Rick R. Olivarez Elected to NALEO Educational Fund Board of Directors

In February, Managing Partner Rick R. Olivarez attended a NALEO Educational Fund event in Washington D.C. to witness the presentation of the Edward R. Roybal Award for Outstanding Public Service.
Mr. Olivarez was recently elected to serve on the Board of the NALEO Educational Fund. NALEO is the nation’s leading nonprofit organization facilitating the full participation of Latinos in the American political process, and promoting the governance and policymaking success of Latino elected and appointed officials across the country. The award was given to eight members of the U.S. Senate (Michael Bennet, Dick Durbin, Jeff Flake, Lindsey Graham, John McCain, Bob Menendez, Marco Rubio and Charles Schumer) recognizing their efforts to reform immigration by developing and securing passage of bipartisan legislation.

Congratulations Super Lawyer

Thomas M. Madruga

Tom Super Lawyer

Olivarez Madruga is pleased to announce that Tom Madruga has been elected for the 2014 Super Lawyers list, marking the 7th year of this achievement for Tom. We’re proud to have this exceptional attorney helping to lead our litigation practice, and think it is great that Super Lawyers recognizes that Tom is among the best of the best. Congratulations, Tom.

2014 Legislation Update

Governor Jerry Brown, during the 2013 session of the California State Legislature, signed numerous bills into law, the majority of which became effective January 1, 2014. This legislation update summarizes the relevant new laws that will likely have the greatest impact on local public agencies.

Elections

Assembly Bill 354 requires the impartial analysis for a local ballot measure to specify whether the ballot measure was placed on the ballot either by a petition signed by the requisite number of voters or by the legislative body. Legislative body attorneys are already required to prepare such an impartial analysis for each ballot measure in order to provide voters with objective information concerning the proposed measure’s effects. Such analyses will now be required to contain the additional specification as to how the particular ballot measure was placed on the ballot, within the existing 500 word limit applicable to impartial analyses.

Open Meetings

Although the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) already prohibits votes of legislative bodies by secret ballot, Senate Bill 751 bolsters this prohibition by amending Government Code section 54953(c)(2) to require legislative bodies to publicly report any action taken and the vote or abstention on that action by each member of the legislative body. It would now be advisable for all legislative bodies in local public agencies to conduct votes by roll call and to include a detailed vote tally, including any abstentions, as part of their minutes. It would be prudent for both roll call and detailed minutes to be additionally incorporated into the protocol for smaller agency committees, which are subject to the Brown Act but may not currently keep minutes or conduct votes by roll call.

Conflict of Interest

Public officials and employees are prohibited, under Government Code section 1090, from having financial interests in any contract made by them in their official capacity, or by any Body or Board of which they are members. Whereas current law only allows investigation and prosecution of violations of Government Code section 1090 by the Attorney General or district attorney of the county in which the alleged violation occurred, Assembly Bill 1090 enables the Fair Political Practices Commission (“FPPC”) to investigate or commence an administrative or civil action against an officer or other person for violation of Government Code section 1090, upon written authorization from the district attorney of the county in which the alleged violation occurred. This bill also allows local government officials to request advice or an opinion from the FPPC regarding his or her duties under Government Code section 1090.

Moreover, Assembly Bill 409 authorized the FPPC to establish a statewide online system that will allow public officials to electronically file their economic interest statements. These statements, or Form 700s, are mandatory periodic statements of economic interest that disclose financial information such as income and investments. This bill was passed as emergency legislation and became effective on October 8, 2013.

Information Privacy

As it stands, state security breach notification law requires state agencies and businesses to notify residents when a breach in the security of their information has occurred. Assembly Bill 1149 and Senate Bill 46 extend these notification requirements to all local public agencies. The former applies the disclosure requirement to breaches of computerized data owned, licensed, or maintained by any county, city, school district, municipal corporation, special district, or other local agency, and the latter broadens the scope of personal information subject to security breach disclosure requirements to include a user name or e-mail address, in combination with a password or security question and answer, that permits access to an online account. Disclosures of breaches must be made as quickly as possible and without unreasonable delay. The notice must be written in plain language and include:

  1. The name and contact information of the Agency;
  2. A list of the types of personal information compromised;
  3. The time and date of the breach;
  4. The length of any delays between the breach and notice;
  5. A general description of the incident; and
  6. Contact information for credit reporting agencies.

Public Bidding and Contracts

Currently, the Subletting and Subcontracting Fair Practices Act (Pub. Contract Code, § 4100 et seq.) requires a public entity taking bids for a public construction project to list the name and business location of subcontractors providing labor or services in excess of 0.5% of the prime contractor’s total bid amount. Assembly Bill 44 will, beginning July 1, 2014, require prime contractors bidding on public construction projects to additionally list each subcontractor’s contractor license number in their bids. This inclusion of additional information will enable public entities to verify that the listed subcontractors are validly licensed. Notably, if the prime contractor inadvertently makes an error in listing a subcontractor’s contractor license number, such error will not be grounds for a bid protest so long as the accurate and correct contractor license number is submitted to the public entity within twenty-four hours after the bid opening and the corrected number corresponds to the subcontractor’s submitted name and location. Local agencies should update their contracts and bid request template documents so that they appropriately require prime contractors to provide contractor license numbers for their subcontractors.

With regard to community college districts only, Assembly Bill 173 modifies the Small Business and Procurement Contract Act to allow such districts to award a contract for goods, services, or information technology with a value between $5,000 and $250,000 to a certified small business, including a microbusiness and a disabled veteran business enterprise, without complying with certain competitive bidding requirements. A community college district utilizing this bidding exception must obtain price quotations of two or more certified small businesses. A community college district must also consider any responsible offer from a responsible certified small business including a microbusiness or disabled veteran business enterprise.

Senate Bill 681 adds language to Public Contract Code section 20652 permitting community college districts, where there is an existing contract between a vendor and another public agency, to lease or purchase materials, supplies and equipment directly from the vendor under the same terms and conditions that are available to the other public agency under its contract with the vendor. Community college districts may deal directly with vendors on “piggyback” contracts (lawful contracts held by other public agencies) under the same terms and conditions as provided in the other agency’s contract.

School Facilities

Assembly Bill 56 requires the State Fire Marshal to propose appropriate standards for the installation of carbon monoxide devices in school buildings, by January 1, 2015. With this guidance, the California Building Standards Commission will then include the standards in the 2016 California Building Standards Code, and any public or private school buildings built after these codes have been adopted in 2016 will be required to install carbon monoxide detectors. A public school that uses a school building for K-12 educational purposes that was built before the adoption of title 24 of the California Code of Regulations and has a fossil fuel burning furnace located inside the school building is encouraged to have a carbon monoxide device installed in such building.

Retirement and Pensions

Senate Bill 13, which became effective through urgency legislation on October 4, 2013, provides cleanup language to the California Public Employees’ Pension Reform Act of 2013 (“PEPRA”). Under PEPRA, new members (employees hired on or after January 1, 2013) must pay a contribution rate that is the greater of at least 50% of the normal cost of the new pension plan or the current contribution rate of similarly situated employees. This new legislation stipulates that where the initial contribution rate for new members exceeds 50% of the normal cost rate, then such rate must be agreed to through the collective bargaining process. Under PEPRA, although retired annuitants generally must have a 180-day break in service following retirement before being hired by a public employer, safety employees are exempted from this separation requirement. Senate Bill 13 specifies that this exemption applies only if the employee returns to perform a function regularly performed by a safety officer or firefighter. Under PEPRA, a public employer is barred from providing a public employee — who is elected or appointed, a trustee, excluded from collective bargaining, exempt from civil service, or a manager — a health benefits vesting schedule that is more “advantageous” than that given to other public employees of the same public employer, including represented employees, who are in related retirement membership classifications. This new legislation indicates that employers are not required to change the vesting schedule for post-retirement health benefits of an employee who was subject to the vesting schedule prior to January 1, 2013, even if it is more advantageous than that provided generally to other public employees in related retirement classifications.

AB 1381 harmonizes the Teachers’ Retirement Law (“TRL”) with PEPRA. Some of the salient modifications to the TRL are:

  1. Defines “public employer” in the TRL for both the Defined Benefit Program and the Cash Balance Benefit Program by referencing the definition of “public employer” in the PEPRA;
  2. Makes changes to provisions governing age factors and normal retirement age;
  3. Makes various changes to provisions governing the limits on amount and types of compensation;
  4. Prohibits 2% at 62 members from receiving any benefits from the California State Teachers’ Retirement System (CalSTRS) in excess of the federal limit by excluding them from the Replacement Benefits Program; and
  5. Restricts the purchase of non-qualified service in the TRL.
Public Safety

Currently, the Public Safety Officers Procedural Bill of Rights Act (“POBR”) prohibits public agencies from taking punitive action against a peace officer or denying an officer’s promotion on grounds other than merit, unless a public agency first provides the officer with procedural protections. Senate Bill 313 adds such protection in situations where a peace officer’s name has been placed on a “Brady list,” which is a list containing evidence of bias or dishonesty that may need to be disclosed to a criminal defendant in a case involving the officer. This legislation prevents peace officers from being denied a promotion or disciplined solely because he or she has been placed on a Brady list. Nevertheless, public agencies may still take punitive or personnel action against a peace officer based on the underlying acts or omissions that resulted in the officer’s name being placed on the Brady list, so long as the public agency’s action conforms to other procedural requirements.

Mobilehome Conversions

Pursuant to the Subdivision Map Act (Gov. Code, § 66410 et seq.), those seeking a mobilehome park subdivision must submit a tentative or parcel map to a local agency for review and discretionary approval. Subdividers must also conduct a survey of the relevant mobilehome residents regarding their support for the conversion and submit the results as part of the public hearing on the tentative or parcel map. Previously there had been uncertainty as to how and to what extent this resident survey could factor into a local agency’s decision on a map. Senate Bill 510 clarifies that the local agencies are to factor such survey results into their decisions to approve or deny a map. Therefore, local agencies may deny a map if it determines that the survey results do not demonstrate the support of at least a majority of the mobilehome park’s homeowners.
Hiring and Fair Employment

Assembly Bill 556 amends the Fair Employment and Housing Act (“FEHA”) by adding “military and veteran status” to the list of categories protected from discrimination, harassment, and retaliation. Members or veterans of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard possess such “military and veteran status.” Notwithstanding this protection, employers may make inquiries regarding military or veteran status in the consideration of awarding a lawful veteran preference. Local agencies should ensure that their employment discrimination, harassment, and retaliation policies are amended to include this new protected category of “military and veteran status.”

Currently, the Labor Code allows cities to ask job applicants to disclose information regarding criminal convictions. Assembly Bill 218 amends the Labor Code by adding section 432.9, which will prohibit local agencies, effective July 1, 2014, from asking job applicants to disclose information regarding a criminal conviction until the agency has determined that the applicant meets the minimum employment qualifications for the position. This prohibition does not apply, however, in specific situations that require criminal background checks, such as jobs in criminal justice. Local agency job applications must be reviewed and/or updated to ensure observance of this forthcoming restriction.

Senate Bill 292 amends FEHA’s definition of “sexual harassment” to state that “[s]exually harassing conduct need not be motivated by sexual desire.” This amendment is a direct response to the California Court of Appeal case of Kelley v. Conco Companies, which held that a plaintiff in a same-sex harassment case must prove that the harasser harbored a sexual desire for the plaintiff in order to prevail on the sexual harassment cause of action. Under the new law, harassment based on sex can include harassment between people of the same sex even if sexual desire is not present or cannot be proven.

Economic Development Subsidies

Assembly Bill 562 amends the Government Code by adding section 53083, which requires cities to provide a public report prior to approving any economic development subsidy issued to corporations and business entities that is $100,000 or more. Such reports must provide relatively detailed information about the subsidy and be posted on the relevant city website. The required information includes:

  1. Name and address of any business entity benefiting from the subsidy;
  2. Subsidy beginning and end dates;
  3. A description of the subsidy and estimated total amount of the expenditure of public funds, or revenue lost, as a result of the subsidy;
  4. A statement of the public purpose of the subsidy;
  5. Projected tax revenue to the city or county as a result of the subsidy; and
  6. Estimated number of jobs created by the subsidy, broken down by full-time, part-time and temporary positions.
Moreover, reports on such subsidies must be given at public hearings and updated with actual figures within five years of approval. Unfortunately, it appears that this legislation will make local economic development efforts more cumbersome despite the existing highly-transparent local decision-making process.

Public Officers

In an effort to shorten the “lame-duck” period for outgoing municipal water district directors, Assembly Bill 72 amends Water Code section 71253 that requires elected directors of municipal water districts to take office at noon on the first Friday in December succeeding their election. Prior to this legislation, directors were required to take office in the January following the election. It advisable for municipal water districts to revise their policies and procedures to comply with this new time frame.
Sale of Surplus Property

Existing law imposes limits on school districts’ use of funds derived from a sale of surplus property. Generally, and subject to the following exceptions, the funds must be used for either capital outlay or costs of maintenance of school district property that the Governing Board determines will not recur within a five-year period. Assembly Bill 308 adds section 17462 to the Education Code to authorize the State Allocation Board (“SAB”) to establish a program requiring School Districts that sell real property purchased with, modernized with, or on which it constructed improvements with, any moneys from a state school facilities funding program to return those moneys to the SAB. A district will need to return a proportionate amount of funds received from the state school facilities funding program to the SAB based upon the percentage of real property sold.

A district will not need to return any money to the SAB if the surplus property is sold more than ten years after the funds were used for the property or if it is sold to a charter school, school district, county office of education, or any agency that will use the property exclusively for child care and development services. Additionally, the refunding requirements would not apply if the district leases the property or if it uses the proceeds of the sale for capital outlay.

Community Colleges

Senate Bill 440 amends the Education Code to allow more community college students to transfer to California State University (“CSU”) campuses. Under existing law, the CSU is required to guarantee admission to California community college students that the community college deems are eligible for transfer to a CSU. However, the current law provides that the eligible student is not guaranteed admission to a specific campus or major, although the student is granted priority admission to his or her local campus and to a program or major that is similar to his or her community college major or area of emphasis. Before the commencement of the 2015–16 academic year, each California community college must create an associate degree for transfer in the major and area of emphasis offered by that college for any approved transfer model curriculum finalized prior to the commencement of the 2013–14 academic year. This legislation will also require each California community college to create an associate degree for transfer in every major and area of emphasis offered by that college for any approved transfer model curriculum approved subsequent to the commencement of the 2013–14 academic year. Colleges must do so within 18 months of the approval of the transfer model curriculum. This legislation will require the California community colleges and the CSU to establish a student-centered communication and marketing strategy to increase the visibility of the associate degree transfer pathway. This will include, but is not limited to, the following: outreach to high schools; information on the pathway prominently displayed in all community college counseling offices and transfer centers; and information on the pathway prominently displayed in community college course catalogs.

Assembly Bill 1030 provides guidance as to what the governing board of a community college district may do if a student member’s seat becomes vacant during his or her term. Specifically, AB 1030 provides that if the seat of a student member becomes vacant during his or her term, the governing board may authorize the officers of the student body association to appoint a student to serve the remainder of the term in accordance with procedures established by the governing board.

Senate Bill 150 will authorize community college districts to exempt a student, attending a community college as a special part-time student, from paying nonresident tuition at the community college. Currently, the Governing Board of a school district allows students, that the school district has determined would benefit from advanced scholastic or vocational work, to attend a community college as special part-time or full-time students. In addition, community college districts are currently authorized to admit nonresident students but are required to charge the students a nonresident tuition fee. Through June 30, 2013, the per-unit nonresident fee was two times the amount of the resident fee. Beginning July 1, 2013, the per-unit nonresident fee was changed to three times the amount of the resident fee. Currently, community colleges are only authorized to exempt special part-time students from paying the $46 per unit per semester enrollment fee.

Assembly Bill 955 amends the Education Code to authorize community college districts to establish and maintain extension programs at specified community college campuses during the summer and winter intersessions. In order to participate in this program, an eligible community college district will need to meet certain criteria, including, but not limited to, the following: (1) District shall have served a number of students equal to, or beyond, its funding limit for the two immediately prior academic years; (2) Courses offered for credit that receive state apportionment funding shall meet basic skills, transfer, or workforce development objectives; and (3) District shall not have received a stability adjustment to state apportionment funding in the prior two years. In addition, this new legislation notes that it is the intent of the legislature that at least one of the California community colleges should begin implementation of this program by January 1, 2014 and that an additional five campuses should implement the program by July 1, 2014. For the time being, this is a pilot program that will be in effect until January 1, 2018.
Assembly Bill 595 adds sections 66025.91 and 66025.95 to the Education Code which mandate that community college districts grant priority registration to students in the Community College Extended Opportunity Programs and Services program. This program is a student support program for educationally and economically disadvantaged students. In addition, this legislation provides that disabled students, within the meaning of the Americans with Disabilities Act, who are determined to be eligible for disabled student programs and services, shall also be granted priority registration. For the time being, this new law will be in effect until January 1, 2017.

School Districts

Senate Bill 185 affects procurement and use of instructional materials for students. First, it specifies that school districts, county offices of education or charter schools are not restricted in their ability to negotiate the price of standards-aligned instructional materials and supplemental instructional materials in a printed or digital format. It also requires a publisher or manufacturer to offer instructional materials as unbundled elements to enable digital materials or printed materials to be purchased separately from other components. Finally, this legislation authorizes a school district to use instructional materials in digital format that were purchased by the school district to create a district-wide online digital database for classroom use. Such use must be consistent with an online security system that is mutually agreed upon by the publisher and the school district.
Assembly Bill 133 amends the definition of “electronic act” in the Education Code to specify that “bullying” can include electronic conduct occurring both on and off campus. California law presently permits superintendents and principals to suspend students for bullying. For purposes of this provision, the Education Code defines “bullying” as any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an “electronic act.” This statute modifies the definition of an “electronic act” as “the creation and transmission originated on or off the school site, by means of an electronic device, including, but not limited to, a telephone, wireless telephone, or other wireless communication device . . . .” This legislation will give school personnel greater authority to suspend or recommend for expulsion students who bully other students through electronics on or off campus.
Assembly Bill 449 requires superintendents of school districts to report to the Commission on Teacher Credentialing (“CTC”) any change in the employment status of a credential holder to the CTC no later than 30 days after the change in employment status. This mandate only applies if the change in employment status is a result of an allegation of misconduct or while an allegation of misconduct is pending, the employee is dismissed, not reelected, resigns, is suspended, is placed on unpaid administrative leave for more than 10 days as a final adverse action, retires, or is otherwise terminated by a decision not to employ or reemploy.

In addition, AB 449 specifies that failing to report misconduct to the CTC may result in serious penalties for a superintendent. Specifically, failing to report employee misconduct will constitute unprofessional conduct and could subject the superintendent to adverse actions by the CTC. In addition, refusing or willfully neglecting to make the report will now be a misdemeanor, punishable by not less than $500 or more than $1,000. If such a fine is imposed, it will be the personal responsibility of the superintendent.

This legislation codifies, in the Education Code, the reporting obligation on superintendents that currently appears as a part of the state’s administrative regulations in the California Code of Regulations, title 5, section 80303.

Pupil Records

Currently, state law prohibits schools from allowing access to pupil records to any person without parental consent or judicial order, unless under special circumstances. Assembly Bill 1068 loosens this prohibition by allowing pupil records to be released to a pupil who is at least 14 years of age, a homeless child or youth, and an unaccompanied youth. This legislation also bars the release of directory information of a pupil who is a homeless youth or child, unless a parent or eligible pupil has given written consent that such information may be released. This amendment to Education Code sections 49073 and 49076 will enable many homeless children to access necessary information needed when seeking community agency assistance. School districts should revise all relevant record policies and procedures to reflect this legislative amendment.

Assembly Bill 643 amends Education Code section 49076 to comport with federal law by specifying that a child welfare agency or tribunal organization, which has the legal responsibility for a pupil, shall have access to that pupil’s records, so long as the requester has a legitimate educational interest in the requested records. Moreover, the statute allows agencies to disclose pupil records to an individual or entity that is authorized to address the pupil’s educational needs.

Continuation School Placement

Currently, students could voluntarily transfer to a continuation school to receive special attention, such as individual instruction, or could be involuntarily transferred for disciplinary reasons. Assembly Bill 570 amends the Education Code by adding section 48432.3, which permits the voluntary enrollment of high school students in continuation schools only after a finding that the placement will promote the student’s educational interests. In addition, for those districts that permit voluntary transfers to continuation school, the statute requires such districts to establish and adopt policies and procedures to ensure that clear criteria exist to determine which students may voluntarily transfer to a continuation school.

Student Rights

Assembly Bill 1266 amends Education Code section 221.5 to require school districts to offer transgender students equal access to sensitive sex-segregated school facilities such as showers, restrooms and locker rooms, irrespective of the gender listed on the pupil’s student records. Thus, a student listed as a male in student records who identifies as a female must be given access to the female facilities. In addition, schools must permit students to participate in sex-segregated school programs and activities, including joining and competing on sex-segregated sports teams consistent with the student’s gender identity.

Standardized Testing

Assembly Bill 484 establishes the California Measurement of Academic Performance and Progress (“CalMAPP”) system to replace the Standardized Testing and Reporting (“STAR”) program as the statewide assessment program for specified pupils. CalMAPP will have computer-based assessments and will be aligned with California’s common core curriculum. The transition to the CalMAPP system will take several years to complete.

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