Legal Update Memo No. 08-2019 – Everything You Never Wanted to Know About CBD (CCD)

Download pdf: 08-2019(CC) – Everything You Never Wanted to Know About CBD w attachment (JEN)

Our office has gotten a number of questions lately about cannabidiol (CBD) and products containing CBD. This Legal Update is intended to provide a general overview of the legal landscape. Specific questions should be directed to legal counsel.

CBD is a non-intoxicating molecule found in industrial hemp and marijuana.[1] CBD oil[2] is extracted when either plant is processed. CBD derived from industrial hemp typically is tetrahydrocannabinol (THC)-free, but CBD derived from marijuana may contain some of the compound THC, which makes users “high.”

The distinction of source is important for regulatory reasons. The California Department of Public Heath (CDPH), Manufactured Cannabis Safety Branch (MCSB), regulates medicinal and adult-use manufactured cannabis products. Food products[3] derived from industrial hemp fall under the jurisdiction of the CDPH, Food and Drug Branch (FDB). State law generally requires the CDPH, FDB, to incorporate into state law relevant federal law regarding food additives, dietary use products, food labeling, and good manufacturing practices for food. Currently, the U.S. Food and Drug Administration (FDA) has determined that it is prohibited to introduce or deliver for introduction into interstate commerce any food to which THC or CBD has been added, regardless of the source (i.e., regardless of whether it is derived from industrial hemp or marijuana).

Accordingly, under California law, the manufacturing and sale of cannabis products (including edibles) is permitted,[4] but the use of CBD derived from industrial hemp in food products is prohibited. Until the FDA rules change or California makes an independent determination of safety, CBD products are not an approved food, food ingredient, food additive, or dietary supplement. CBD derived from cannabis may only be sourced from, produced by, and sold by those with commercial cannabis licenses to persons aged 21 and older.

The CDPH, FDB, put out a Frequently Asked Questions on this subject on July 6, 2018. Since that time, state and local health officials have been requiring some small businesses to pull products that are not in compliance with federal and state law regarding CBD in food and supplements. Pending legislation (Assembly Bill 228) could amend state law on this matter.

Implications for Schools

Schools should prohibit all food and supplements containing CBD allegedly derived from industrial hemp, as those products are not permitted in California.

Schools should continue to prohibit all cannabis products on school campuses, including those containing CBD. It continues to remain unlawful under federal and state law to possess and/or use marijuana or cannabis on a school campus when children are present. Please reference Legal Update No. 41-2016 for more information on this topic.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Jennifer E. Nix, Associate General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Under U.S. law, a cannabis plant consists of “hemp,” which is the stalks, stems, and sterilized seeds of cannabis sativa, and “marijuana,” which is the leaves, flowers, and viable seeds of cannabis sativa.

[2] CBD oil is different from hemp seed oil.

[3] The definition of “food” includes any article used or intended for use for food, drink, condiment, or chewing gum.  It does not include products containing cannabis, including cannabis edibles.

[4] Please note that you must be aged 21 and older to purchase any cannabis product, and persons under age 21 must possess a medical marijuana card in order to possess any cannabis product.

Legal Update Memo No. 13-2019 – Everything You Never Wanted to Know About CBD (K-12)

Download pdf: 13-2019 – Everything You Never Wanted to Know About CBD w attachment (JEN)

Our office has gotten a number of questions lately about cannabidiol (CBD) and products containing CBD. This Legal Update is intended to provide a general overview of the legal landscape. Specific questions should be directed to legal counsel.

CBD is a non-intoxicating molecule found in industrial hemp and marijuana.[1] CBD oil[2] is extracted when either plant is processed. CBD derived from industrial hemp typically is tetrahydrocannabinol (THC)-free, but CBD derived from marijuana may contain some of the compound THC, which makes users “high.”

The distinction of source is important for regulatory reasons. The California Department of Public Heath (CDPH), Manufactured Cannabis Safety Branch (MCSB), regulates medicinal and adult-use manufactured cannabis products. Food products[3] derived from industrial hemp fall under the jurisdiction of the CDPH, Food and Drug Branch (FDB). State law generally requires the CDPH, FDB, to incorporate into state law relevant federal law regarding food additives, dietary use products, food labeling, and good manufacturing practices for food. Currently, the U.S. Food and Drug Administration (FDA) has determined that it is prohibited to introduce or deliver for introduction into interstate commerce any food to which THC or CBD has been added, regardless of the source (i.e., regardless of whether it is derived from industrial hemp or marijuana).

Accordingly, under California law, the manufacturing and sale of cannabis products (including edibles) is permitted,[4] but the use of CBD derived from industrial hemp in food products is prohibited. Until the FDA rules change or California makes an independent determination of safety, CBD products are not an approved food, food ingredient, food additive, or dietary supplement. CBD derived from cannabis may only be sourced from, produced by, and sold by those with commercial cannabis licenses to persons aged 21 and older.

The CDPH, FDB, put out a Frequently Asked Questions on this subject on July 6, 2018. Since that time, state and local health officials have been requiring some small businesses to pull products that are not in compliance with federal and state law regarding CBD in food and supplements. Pending legislation (Assembly Bill 228) could amend state law on this matter.

Implications for Schools

Schools should prohibit all food and supplements containing CBD allegedly derived from industrial hemp, as those products are not permitted in California.

Schools should continue to prohibit all cannabis products on school campuses, including those containing CBD. It continues to remain unlawful under federal and state law to possess and/or use marijuana or cannabis on a school campus when children are present. Please reference Legal Update No. 41-2016 for more information on this topic.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Jennifer E. Nix, Associate General Counsel.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Under U.S. law, a cannabis plant consists of “hemp,” which is the stalks, stems, and sterilized seeds of cannabis sativa, and “marijuana,” which is the leaves, flowers, and viable seeds of cannabis sativa.

[2] CBD oil is different from hemp seed oil.

[3] The definition of “food” includes any article used or intended for use for food, drink, condiment, or chewing gum.  It does not include products containing cannabis, including cannabis edibles.

[4] Please note that you must be aged 21 and older to purchase any cannabis product, and persons under age 21 must possess a medical marijuana card in order to possess any cannabis product.

Legal Update Memo No. 07-2019 – July Notice of Temporary Faculty Employment (CCD)

Download pdf: 07-2019(CC) – July Notice of Temporary Faculty Employment (SPR)

This is a reminder that districts are required to provide temporary faculty members written notice indicating the temporary nature of their employment, the salary, and length of time for which the employee is being hiredThis notice must be given at the time of initial employment and thereafter in the month of July each school yearTemporary faculty members must be given written notice of their classification when hired and before starting work.

The notice requirement is described in Education Code section 87477 as follows:

Governing boards of community college districts shall classify as contract employees, those faculty members who have not been classified as regular employees or as temporary employees. The classification shall be made at the time of employment and thereafter in the month of July of each school year. At the time of initial employment during each academic year, each new faculty member shall receive a written statement indicating his or her employment status and the salary that he or she is to be paid.  If a community college district hires a faculty member as a temporary employee, the written statement shall clearly indicate the temporary nature of the employment and the length of time for which the person is being employed. If a written statement does not indicate the temporary nature of the employment, the faculty member shall be deemed to be a contract employee of the community college district, unless employed with regular status.

The written notice required by section 87477 is critically important when a district hires temporary faculty.  Failure to provide specific notice to each temporary faculty member that he or she is classified as temporary may entitle that temporary faculty member to claim contract (probationary) status.

Temporary faculty members can be released from employment at the board of trustee’s discretion “at the end of a day or week, whichever is appropriate” and subject to any locally established conditions.[1]

Once an employee is considered a contract (probationary) employee, he or she can only be dismissed through the non-reelection process or for cause.[2]  The removal of a probationary employee through the non-reelection process requires compliance with various pre-requisites and for-cause dismissal is time consuming, expensive, and may not ultimately be successful.

We cannot overemphasize the importance of complying with Education Code section 87477 and giving your temporary faculty the written notice described above that specifically identifies them as temporary employees in July of each year.

We understand that some districts refer to their temporary faculty who are employed at 67% or less under Education Code section 87482.5 as “adjunct” faculty.  It is important that the notice of temporary status specifically identify the employee classification as “temporary” as opposed to “adjunct.”  The term “adjunct” is not a recognized legal classification under the Education Code and we advise districts use the classification of “temporary” employee.

Please also ensure that your district is able to identify a specific Education Code provision that allows for temporary employment for each faculty member you classify as temporary.  If the district cannot identify a specific basis for temporary status, the individual employee may claim contract (probationary) status.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Steven P. Reiner, Associate General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Education Code section 87665

[2] Education Code sections 87610 & 87732

Legal Update Memo No. 12-2019 – July Notice of Temporary Employment (K-12)

Download pdf: 12-2019 – July Notice of Temporary Employment (SPR)

This is a reminder that districts are required to provide each temporary certificated employee written notice indicating the temporary nature of his or her employment, the salary, and length of time for which he or she is hiredThis notice must be given at the time of initial employment and thereafter in the month of July each school yearA temporary certificated employee must be given written notice of his or her classification before starting work.

The notice and classification requirements are described in Education Code section 44916 as follows:

The classification shall be made at the time of employment and thereafter in the month of July of each school year. At the time of initial employment during each academic year, each new certificated employee of the school district shall receive a written statement indicating his employment status and the salary that he [or she] is to be paid. If a school district hires a certificated person as a temporary employee, the written statement shall clearly indicate the temporary nature of the employment and the length of time for which the person is being employed. If a written statement does not indicate the temporary nature of the employment, the certificated employee shall be deemed to be a probationary employee of the school district, unless employed with permanent status.

The written notice required by section 44916 is critically important when a district hires a temporary certificated employee.  Failure to provide specific notice to each temporary certificated employee that he or she is classified as temporary may entitle that employee to claim probationary status.
A temporary certificated employee can be released from employment under the following circumstances:[1]

  1. At the pleasure of the board prior to serving during one school year at least 75 percent of the number of days the regular schools of the district are maintained.
  2. After serving the number of days set forth above, if the employee is notified before the end of the school year of the district’s decision not to reelect the employee for the next succeeding year.

Once an employee is considered a probationary employee, he or she can only be dismissed for cause[2] or through the non-reelection process.[3]  Classification as a probationary employee greatly limits a district’s ability to remove that employee as compared to a temporary employee.

Accordingly, we cannot overemphasize the importance of giving each temporary certificated employee the written notice described above that specifically identifies him or her as a temporary employee at the time of initial employment before starting work and in the month of July each year.

Please also ensure that your district is able to identify a specific Education Code provision that allows for temporary employment for each certificated employee that you classify as temporary.  If the district cannot identify a specific basis for temporary status, the individual employee may claim probationary status.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Steven P. Reiner, Associate General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Education Code section 44954

[2] Education Code section 44948

[3] Education Code section 44948.5

Legal Update Memo No. 06-2019 – California Supreme Court Issues Major Ruling About Pension Benefits (CCD)

Download pdf: 06-2019(CC) – California Supreme Court Issues Major Ruling About Pension Benefits (ERA)

In March, the California Supreme Court decided the long-awaited Cal Fire Local 2881 v. California Public Employees’ Retirement System,[1] which upheld the 2013 Public Employees’ Pension Reform Act’s (“PEPRA”) elimination of the “air time” benefit, but preserved the so-called “California Rule.” Both aspects of the Court’s holding are significant for identifying some parameters around which public employee pension benefits may be altered after hire.

“Air time” refers to the ability of public employees to purchase up to five (5) years of service credit for time not actually worked if they pay the employee- and employer-side contributions to CalPERS.

The so-called “California Rule” stems from the 1955 case Allen v. City of Long Beach,[2] in which the California Supreme Court recognized that certain pension benefits that were in place at the time of hire could not be altered after hire. In other words, there are certain employment benefits that become vested upon acceptance of employment, and thus cannot be changed post-hire. In the progeny of cases after Allen, courts have found that altering post-employment benefits for current employees violated the U.S. and California Constitutions’ Contract Clauses.[3] (The Contract Clause is a constitutional limit on the government’s ability to impair the obligation of contracts, including public employee post-retirement benefits such as pensions.)

Significantly, while acknowledging the California Rule may apply to certain public employee post-retirement benefits, the Court held that the entitlement to purchase air time could be discontinued even as to current employees because it was not a “vested right” but instead was an “optional benefit,” and therefore was not constitutionally protected.[4]

While finding PEPRA’s elimination of the benefit of purchasing “air time” permissible, the Court in Cal Fire left the California Rule intact, providing:

Because we conclude that the opportunity to purchase ARS [air time] credit was not a term and condition of public employment protected from impairment by the contract clause, its elimination does not implicate the Constitution. For that reason, we have no occasion in this decision to address, let alone to alter, the continued application of the California Rule.[5]

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Ellie R. Austin, Associate General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] 435 P.3d 433 (Cal. 2019).

[2] 287 P.2d 765 (Cal. 1955).

[3] See, e.g., United Firefighters of Los Angeles Cty. v. Cty. of Los Angeles, 259 Cal.Rptr. 65 (Cal. Ct. App. 1989); Protect Our Benefits v. Cty. and Cnty. of San Francisco, 185 Cal.Rptr. 3d 410 (Cal. Ct. App. 2015).

[4] Other examples of “optional benefits” advanced by the Court include the opportunity to purchase: (1) different types of health insurance benefits from a variety of providers or (2) life and long-term disability insurance, or the opportunity to create a flexible spending account to cover health or child-care costs. The Court explained “[w]e have never suggested that this type of benefit is entitled to protection under the contract clause.” (Cal Fire Local 2881, 435 P.3d 449).

[5] Cal Fire Local 2881 v. California Pub. Employees’ Ret. Sys., 435 P.3d at 437.

Legal Update Memo No. 11-2019 – California Supreme Court Issues Major Ruling About Pension Benefits (K-12)

Download pdf: 11-2019 – California Supreme Court Issues Major Ruling About Pension Benefits (ERA)

In March, the California Supreme Court decided the long-awaited Cal Fire Local 2881 v. California Public Employees’ Retirement System,[1] which upheld the 2013 Public Employees’ Pension Reform Act’s (“PEPRA”) elimination of the “air time” benefit, but preserved the so-called “California Rule.” Both aspects of the Court’s holding are significant for identifying some parameters around which public employee pension benefits may be altered after hire.

“Air time” refers to the ability of public employees to purchase up to five (5) years of service credit for time not actually worked if they pay the employee- and employer-side contributions to CalPERS.

The so-called “California Rule” stems from the 1955 case Allen v. City of Long Beach,[2] in which the California Supreme Court recognized that certain pension benefits that were in place at the time of hire could not be altered after hire. In other words, there are certain employment benefits that become vested upon acceptance of employment, and thus cannot be changed post-hire. In the progeny of cases after Allen, courts have found that altering post-employment benefits for current employees violated the U.S. and California Constitutions’ Contract Clauses.[3] (The Contract Clause is a constitutional limit on the government’s ability to impair the obligation of contracts, including public employee post-retirement benefits such as pensions.)

Significantly, while acknowledging the California Rule may apply to certain public employee post-retirement benefits, the Court held that the entitlement to purchase air time could be discontinued even as to current employees because it was not a “vested right” but instead was an “optional benefit,” and therefore was not constitutionally protected.[4]

While finding PEPRA’s elimination of the benefit of purchasing “air time” permissible, the Court in Cal Fire left the California Rule intact, providing:

Because we conclude that the opportunity to purchase ARS [air time] credit was not a term and condition of public employment protected from impairment by the contract clause, its elimination does not implicate the Constitution. For that reason, we have no occasion in this decision to address, let alone to alter, the continued application of the California Rule.[5]

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Ellie R. Austin, Associate General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] 435 P.3d 433 (Cal. 2019).

[2] 287 P.2d 765 (Cal. 1955).

[3] See, e.g., United Firefighters of Los Angeles Cty. v. Cty. of Los Angeles, 259 Cal.Rptr. 65 (Cal. Ct. App. 1989); Protect Our Benefits v. Cty. and Cnty. of San Francisco, 185 Cal.Rptr. 3d 410 (Cal. Ct. App. 2015).

[4] Other examples of “optional benefits” advanced by the Court include the opportunity to purchase: (1) different types of health insurance benefits from a variety of providers or (2) life and long-term disability insurance, or the opportunity to create a flexible spending account to cover health or child-care costs. The Court explained “[w]e have never suggested that this type of benefit is entitled to protection under the contract clause.” (Cal Fire Local 2881, 435 P.3d 449).

[5] Cal Fire Local 2881 v. California Pub. Employees’ Ret. Sys., 435 P.3d at 437.

Legal Update Memo No. 10-2019 – 2019-2020 Annual Notice to Parents (K-12)

Download pdf: 10-2019 – 2019-20 Annual Notice to Parents w attachments (SHS)

Consistent with Education Code section 48980 and other state and federal laws which require districts to annually notify students, parents, and guardians of their legal rights and responsibilities, attached is a form Annual Notice to Parents appropriate for use in the 2019-2020 school year.

The attached Annual Notice to Parents will satisfy a school district’s obligations under Education Code section 48980 and other state and federal laws addressing annual notice requirements.  However, please be aware that the attached Annual Notice to Parents:

  • Provides only summary notification to parents for annually required notices; and
  • Does not satisfy any specific circumstance notifications that may be required under state and/or federal law, which will vary from district to district and may vary from school site to school site.

Notes and Changes for the 2019-2020 Notification

Please note the following for the 2019-2020 Annual Notice to Parents:

  • Scoliosis Screening Notice May Not Be Required: Education Code section 49452.5, which requires school districts to provide for scoliosis screenings for all female pupils in grade 7 and all male pupils in grade 8, was suspended last year pursuant to the Governor’s Budget Act of 2018 for the 2018-2019 fiscal year.  As a result, school districts could exercise their discretion as to whether to provide this service since it was not mandated.

Please be advised that in approximately July of 2019, the California Department of Finance will advise the California Department of Education if this mandate will continue to be suspended for the 2019-2020 school year.  We anticipate that the mandate will continue to be suspended for the 2019-2020 school year. However, if scoliosis screenings are mandated for the 2019-2020 school year, school districts may need to provide notice to parents of this change.

  • Photographs – Directory Information: Consistent with Education Code section 49061, “directory information” does not include photographs of students, meaning that photographs of students are “pupil records” and cannot be released without parent/guardian consent. “Directory information” under federal law could include photographs, and some districts have included photographs in the definition of directory information in their board policies. Please note that we have included a section within the attached “Acknowledgement of Parent or Guardian of Annual Rights Notification” giving the district permission to publish photographs of students.  Districts are advised to check their board polices to ensure the definition they have adopted for “directory information” correlates to the definition in the Annual Notice to Parents, and if it does not, to make any necessary changes.  If a parent or guardian directs the district not to release “directory information,” the district needs to be aware of the definition it has adopted to ensure compliance.

The following change has been made for the 2019-2020 Annual Notice to Parents:

  • Pregnant and Parenting Pupils: Legislation passed in 2018 (A.B. 2289) provides protections and accommodations for pregnant and parenting pupils designed to afford them the opportunity to succeed in school while protecting their health and the health of their children. The legislation requires that districts notify pregnant and parenting pupils and the parents and guardians of such pupils of the rights and options available to them under the law. These rights include an entitlement to 8 weeks of excused parental leave (and additional leave if deemed medically necessary) during which the pupil shall not be required to complete academic work or other school requirements. A section has been added to the Annual Notice to Parents to comply with this law.

Additional Documents That Must be Included in the Annual Notice to Parents

As always, each school district is required to provide, in addition to the Annual Notice to Parents, documents that are specific to each individual school district.  The following documents must be included with the Annual Notice to Parents:

  • Your district’s policy on sexual harassment;
  • A listing of all pesticides that will be used at each school site in your district (including the Internet address developed by the Department of Pesticide Regulation pursuant to Food and Agricultural Code section 13184 for access to information on pesticides and pesticide use reduction, and the parent option to register to receive notification of individual pesticide applications at the school facility) and, if using pesticides not listed in Education Code 17610.5, the district’s integrated pest management (IPM) plan or the district website address where the plan may be viewed;
  • The schedule of all minimum and pupil-free staff development days for your district (your school calendar);
  • Your district’s policy on parent classroom visits;
  • Your district’s Uniform Complaint Procedures, which should include an explanation of the process, opportunity to appeal to the California Department of Education (Education Code section 262.3), district persons responsible for processing complaints, and a statement that additional civil law remedies may be available under state and federal discrimination laws. Each district’s Uniform Complaint Procedures, typically found in Board Policy and Administrative Procedure 1312.3, should be updated annually to ensure compliance with current laws.

If your school district offers any of grades 9 to 12, you must provide information about college admission requirements and career technical education with your Annual Notice to Parents:

  • Pursuant to Education Code section 51229, each district offering grades 9-12 is required to provide the parent or guardian of each minor pupil enrolled in any of those grades in the district with an annual written notification of the College Admission Requirements and Career Technical Education. This written notice, to the extent possible, shall not exceed one page in length and must include the following:
  • A brief explanation of the college admission requirements;
  • A list of the current University of California and California State University websites and a list of high school courses that have been certified by the University of California as satisfying the requirements for admission to the University of California and the California State University;
  • A brief description of career technical education, as defined by the CDE;
  • The internet address for the portion of the website of the CDE where students can learn more about career technical education; and
  • Information about how students may meet with school counselors to help them choose courses at their school that will meet college admission requirements and/or enroll in career technical education courses, or both.
  • In addition, if a district elects to allow a career technical education course to satisfy the visual/performing arts or foreign language graduation requirement, the district shall provide information about the high school graduation requirements of the district and how each requirement satisfies or does not satisfy the subject matter requirements for admission to state public colleges, as well as a complete list of career technical education courses offered by the district that satisfy the subject matter requirements for admission to the state public colleges, and which of the specific admission requirements these courses satisfy. It is recommended that the College Admission Requirements and Career Technical Education notification be included with your Annual Notice to Parents.

Other Relevant Laws to Consider

As described above, several state and federal laws require that many documents and other information be made available to parents/guardians upon request, including, but not limited to, each school’s Prospectus of School Curriculum and district non-discrimination policies.  In satisfaction of these requirements, the 2019-2020 Annual Notice to Parents provides that such information may be obtained either from the student’s school or the district office (as appropriate).  Some laws require notifying parents or guardians in particular situations that do not apply to all students or all schools.

Please review the following sections carefully to ensure that your district’s policies and procedures and your Annual Notice to Parents are consistent with the relevant laws.

Code of Conduct for Employee-Pupil Interactions 

Pursuant to Education Code section 44050, LEAs that maintain an employee code of conduct containing a section on employee interactions with pupils must provide a written copy of the section to the parent or guardian of each pupil at the beginning of the school year. This requirement is satisfied by including the relevant section in the Annual Notice to Parents. If you have a code of conduct containing a section on employee interactions with pupils, we strongly encourage you to include the language in your Annual Notice to Parents.

Long-Term English Learners

Under Education Code section 440, each parent or guardian must be given notice when their child is assessed for English language proficiency no later than 30 days after the start of the school year. Education Code section 313.2 recently expanded these parental notification requirements to include the following additional information: 1) whether the child is a long-term English learner or at risk of becoming a long-term English learner; 2) the manner in which the English language development instruction will meet the educational needs of long-term English learners or those at risk of becoming long-term English learners; and 3) the manner in which the program for English language development instruction will help long-term English learners or those at risk of becoming long-term English learners develop English proficiency and meet age-appropriate academic standards.

School Accountability Report Card

Pursuant to Education Code section 35256, the governing board of each school district annually shall issue a School Accountability Report Card for each school in the district, publicize those reports, and notify parents or guardians of pupils that a hard copy will be provided upon request.  Each district must make hard copies of its annually updated report card available, upon request, on or before February 1st of each year.  We strongly encourage that each district include this information in its Annual Notice to Parents.

Title I / Every Student Succeeds Act

For districts that may be receiving Title I and/or any other federal funds, please note that the Annual Notice to Parents is not intended to satisfy other specific notification obligations you may have under federal law, including ESSA.  Although the Annual Notice to Parents does contain some parent notifications in satisfaction of ESSA, the scope of such notice is limited to providing only those notices universally required of all districts.  Similar to the ESSA requirements, California has enacted the Open Enrollment Act[1], which requires districts with a “low-achieving school” to notify the parents at that school of their option to transfer to another public school served by the district of residence or another school district.  Districts should consult with their Title I and other special program coordinators as well as School and College Legal Services with respect to any additional notifications that may be required.

The U.S. Department of Education has provided a Frequently Asked Question document to assist districts in the transition from NCLB to ESSA.  This can be found at: https://www2.ed.gov/policy/elsec/leg/essa/essatransitionfaqs11817.pdf.

Title VI of the Civil Rights Act of 1964

Additionally, Title VI of the Civil Rights Act of 1964 requires that each district have a policy of non-discrimination on the basis of race, color, national origin, sex, age, or disability.  We recommend that this policy be included with your Annual Notice to Parents.

Title IX of the U.S. Education Amendments of 1972

Title IX of the U.S. Education Amendments of 1972 requires that each district provide a notice of nondiscrimination and state that the district does not discriminate on the basis of sex in its educational programs and activities.  The notice must state that questions regarding Title IX may be referred to the school’s Title IX coordinator or the Office of Civil Rights.  The district must notify all students and employees of the name or title, office address, telephone number, and email address of each district’s designated Title IX coordinator.

Federal Race and Ethnicity Data Collection Reporting

Based upon final guidance from the U.S. Department of Education regarding the collection of race and ethnicity data for students and staff, the California Department of Education has revised its data collection requirements using the California Pupil Achievement Longitudinal Data System (CALPADS). School districts are obligated to comply with the reporting requirements using a two-part question (https://www.cde.ca.gov/ds/dc/es/refaq.asp).  It is recommended that the Annual Notice to Parents be used as the mechanism for distributing the information to students.

Translation

For those districts subject to Education Code section 48985[2], the 2018-2019 Annual Notice to Parents has been translated into Spanish and is attached for your convenience.  The California Department of Education has established a Clearinghouse for Multilingual Documents to help school districts meet state and federal requirements for document translation and parental notification, including the requirements in Education Code section 48985, Every Student Succeeds, and other legislation.  The Clearinghouse may be accessed at the following web address: http://www.cde.ca.gov/Ls/pf/cm/.

Bullying

Districts are required to adopt and publicize a policy prohibiting discrimination, harassment, intimidation, and bullying, based on actual or perceived characteristics.  The policy must include a statement that the policy applies to all acts related to school activity or school attendance occurring within a school under the jurisdiction of the superintendent of the school district.  Districts are required to post the policy in all schools and offices, including staff lounges and student government meeting rooms and the policy must be translated as required by Education Code section 48985.  It is recommended that the Annual Notice to Parents be used as a mechanism for distributing the policy to students.

Sections of the Annual Notice to Parents Required Under Specific Circumstances

Lastly, please find below a list of updated code sections that require annual notice to parents only under specific circumstances.  Most of these code sections have not been added to the Annual Notice to Parents as they may not be applicable to all students and specific policies may vary from district to district.  It is the responsibility of the individual school district to notify parents regarding the following sections:

  • Education Code section 310 – Multilingual Education

If a school district implements a language acquisition program under this section, information on the types of language programs available and a description of each program must be given to parents and guardians in the annual parent notice or upon enrollment.

  • Education Code section 49073.6 – Information from Social Media

If your district has adopted a program or entered a contract for services to gather and maintain information from social media[3] about enrolled students, the district must provide certain information to the parent or guardian of any student whose information has been gathered.  This information may be included in the Annual Notice.  The parent or guardian of the student whose information has been gathered must be notified of the following: 1) the student’s information is being gathered from social media; 2) the process by which the student or his or her parent or guardian can access and examine the collected information; and 3) the process by which the student or his or her parent or guardian can request the correction or removal of information gathered.

  • Education Code section 35182.5 – Electronic Products or Services that Disseminate Advertising

If a district enters into a contract for electronic products or services that requires the dissemination of advertising to students, the district must provide written notice to the parents or guardians of the students that the advertising will be used in the classroom or other learning centers.

  • Education Code section 69432.9 – Cal Grant Program

Districts must notify students enrolled in 11th grade and, for pupils under 18 years of age, his or her parent or guardian, that the students will be deemed Cal Grant applicants unless the students opt out of being automatically deemed a Cal Grant applicant.  If 11th grade students do not opt out,[4] their grade point average will be submitted electronically.  This written notice must be provided to all 11th grade students, and their parents (for students who are under 18), by January 1 of the student’s 11th grade year.  The notice must specify the process and time by which students may opt out within a set period of time, but not less than 30 days.  The notice must indicate when the school will send grade point averages to the commission and the submission deadline of October 1.

  • Health and Safety Code sections 120325 & 120335 – Immunizations

Immunizations are discussed in the Annual Notice to Parents under “Communicable Diseases.” However, districts may want to provide supplemental information detailing the specifics of the immunization requirements due to the impact it may have on students.  The law requires all students entering kindergarten, including transitional kindergarten, or advancing from sixth to seventh grade in the district, or prior to his or her first admission to the district, to comply with the immunization requirements of Health and Safety Code section 120335, unless the student provides the district with a valid exemption from a licensed physician. New personal-belief exemptions filed with the district will no longer be accepted.  Documented immunizations appropriate for each student’s age include (1) Diphtheria, (2) Haemophilus influenzae type b, (3) Measles, (4) Mumps, (5) Pertussis (whooping cough), (6) Poliomyelitis, (7) Rubella, (8) Tetanus, (9) Hepatitis B, (10) Varicella (chickenpox), and any other diseases deemed appropriate by the department.  Students qualified for an individualized education program may access special education and related services.  Full immunization against Hepatitis B shall not be a condition of admittance to 7th grade.  All students entering 7th through 12th grades must be immunized with a pertussis (whooping cough) vaccine booster called Tdap.  This affects all students – current, new, and transfers – in public and private schools.  It is recommended that the immunization notification be included with the Annual Notice to Parents.

  • Education Code section 32221.5 – Pupils Insurance for Athletic Teams

Requires school districts that elect to operate an interscholastic athletic team(s) to include the following statement, printed in boldface type of prominent size, in all offers of insurance coverage that are sent to members of school athletic teams:

“Under state law school districts are required to ensure that all members of school athletic teams have accidental injury insurance that covers medical and hospital expenses.  This insurance requirement can be met by the school district offering insurance or other health benefits that cover medical and hospital expenses.

Some pupils may qualify to enroll in no-cost or low-cost local, state, or federally sponsored health insurance programs.  Information about these programs may be obtained by calling ____________ [Insert toll-free telephone number] [5].”

  • Education Code section 49475 – Concussions and Head Injuries in Athletics

Requires districts that elect to offer athletic programs to provide, on a yearly basis, a concussion and head injury information sheet, which must be signed and returned by the athlete and the athlete’s parent or guardian before the athlete may initiate practice or competition.

  • Education Code section 48980(m) – Transfer of Student with Felony Conviction

A school district that elects to adopt a policy regarding the transfer of pupils convicted of a violent felony or misdemeanor, pursuant to Education Code section 48929, shall inform parents or guardians of the policy in the Annual Notice to Parents.

  • Education Code section 49452.8 – Pupil Health: Oral Health Assessment

Requires public schools to send a notification of the oral health assessment requirements, including a standardized form that can be used for the assessment or on which the parent or legal guardian can indicate one of several specified reasons why an oral health assessment by a licensed dentist or other registered dental health professional assessment cannot be completed for any pupil enrolled in kindergarten in a public school, or in first grade if the pupil was not previously enrolled in kindergarten in a public school.

  • Education Code section 44808.5 – High School Open Campus

If a school district allows high school students to leave campus at lunchtime, a copy of the following notice set forth below in bold letters must be included as part of the Annual Notice to Parents:

The governing board of the __________ School District, pursuant to Section 44808.5 of the Education Code, has decided to permit the pupils enrolled at _____________ High School to leave the school grounds during the lunch period.

 Section 44808.5 of the Education Code further states:

 

“Neither the school district nor any officer or employee thereof shall be liable for the conduct or safety of any pupil during such time as the pupil has left the school grounds pursuant to this section.” 

  • Education Code section 35211 – Driver’s Training

School districts that maintain a driver’s training course must advise parents of students participating in the course of the civil liability that will be imposed on the parent or guardian, and insurance coverage carried by the district for such courses, specifically including any limitations of such coverage as it relates to parent liability.

  • Education Code section 11503 – Programs to Encourage Parental Involvement

Districts receiving funds under the federal Elementary and Secondary Education Act (20 U.S.C. Sec. 6301 et seq.), as amended by the federal Every Student Succeeds Act are required to develop a written parent and family engagement program for each school in the district that receives these funds. Each year, these districts must provide:

  • An annual statement identifying specific objectives of the program.
  • An annual review and assessment of the program’s progress in meeting those objectives with the review being made available to parents upon request.

 

  • Title 20 of the United States Code section 1232h – Protection of Pupil Rights

The Protection of Pupil Rights (“PPRA”) requires that districts develop policies that obligate them to obtain prior written consent from parents prior to their student participating in a survey containing one or more of the following items:

(1)  political affiliations or beliefs of the student or the student’s parent;

(2)  mental or psychological problems of the student or the student’s family;

(3)  sex behavior or attitudes;

(4)  illegal, anti-social, self-incriminating, or demeaning behavior;

(5)  critical appraisals of other individuals with whom respondents have close family relationships;

(6)  legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers;

(7)  religious practices, affiliations, or beliefs of the student or student’s parent; or

(8)  income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program).

The PPRA requires that school districts provide parents with annual notice of these policies and parents’ rights under the policies at the beginning of the school year and within a reasonable period of time after any substantive change in such policies, including the process to opt their children out of participation in certain activities, and the dates during the school year when the district schedules: (a) surveys requesting personal information; (b) physical examinations or screenings; and (c) collection of personal information from students for marketing or sale.

California has also adopted a similar requirement to the PPRA in Education Code section 51513, which requires written parent consent prior to their students participating in a survey, test, questionnaire, or examination regarding the pupil’s or the pupil’s family’s beliefs, morality, and similar issues.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Enclosures

Legal Update written by Sarah Hirschfeld-Sussman. 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] Education Code sections 48350 et seq.

[2] Where 15 percent or more of pupils enrolled speak a primary language other than English, all notices, reports and statements sent to the parent or guardian must be written in the primary language in addition to being written in English.

[3] “Social media” is defined as an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. (Education Code section 49073.6(a)(2).)

[4] Until a pupil turns 18 years of age, only a parent or guardian may opt the pupil out. Once a pupil turns 18, only the pupil may opt out.

[5] Under the law, the toll-free telephone number can be for: 1) The Healthy Families Program; 2) Medi-Cal; 3) Any other comparable toll-free telephone number for a no-cost or low-cost local, state, or federally sponsored health insurance program. (Education Code § 32221.5, subd. (c).) The number for Medi-Cal, 1-800-880-5305, will meet this requirement.

Legal Update Memo No. 05-2019 – Brown Act Requirement Regarding the Approval of Salary Changes for High Level Administrators (CCD)

Download pdf: 05-2019(CC) – Brown Act Requirement Re the Approval of Salary Changes for High Level Admin (JH)

The Brown Act requires governing boards that intend to approve a change of salary or benefits for administrative staff to orally report, in open session, the District’s recommendation regarding the changes to salary or fringe benefits for “local agency executives” prior to the Board taking final action to approve the salary or fringe benefits change.

Senate Bill 1436, which went into effect January 1, 2017, amended Government Code section 54953. SB 1436 was a “City of Bell” amendment to the Brown Act to make more transparent salary and benefit increases for administrative staff.

A local agency executive (“LAE”) is defined in Government Code section 3511.1 to include:

(d) “Local agency executive” means any person employed by a local agency who is not subject to the Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500)), Chapter 5 (commencing with Section 45100) of Part 25 of Division 3 of Title 2 of the Education Code, or Chapter 4 (commencing with Section 88000) of Part 51 of Division 7 of Title 3 of the Education Code, and who meets any of the following requirements:

(1) The person is the chief executive officer, a deputy chief executive officer, or an assistant chief executive officer of the local agency.

(2) The person is the head of a department of a local agency.

(3) The person’s position within the local agency is held by an employment contract between the local agency and that person.

Because of this 2017 amendment to the Brown Act, changes to salary or fringe benefits for a LAE should be processed as follows:

1. Discussion or action regarding salary or benefits shall only occur at a regular meeting.

2. Any closed session consideration of the change should be agendized as follows:

Closed Session:

With regard to every item of business to be discussed in closed session pursuant to section 54957.6:

Conference with Labor Negotiator:

Board Representative:  (Insert name of person whom the Board has designated to negotiate with the LAE, usually the Board President.)

Unrepresented Employee:  (Insert the title of the LAE.)

3. The agenda should also have an open session item, after the closed session, as follows:

Oral recommendation regarding proposed changes to salary and/or fringe benefits of (specified local agency executive).

Discussion and possible approval of changes to salary and/or fringe benefits of (specified local agency executive).

4. Action by the Board shall be memorialized in the minutes clearly stating how each board member voted on the item.

5. We advise that (for PERS and STRS retirement salary verification purposes) any salary changes should be reflected on the publicly available salary schedule.

Please note that we advise that while the Board is meeting in closed session with its designated representative to discuss the salary of an unrepresented employee, the unrepresented employee should be excluded from the closed session.

For the protocol of board approval of changes to the superintendent/president’s salary and/or contract, please see our Legal Update Memo No. 04-2019(CC) dated April 16, 2019.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Jennifer Henry, Assistant General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 © 2019 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 04-2019 – Required Procedure When the Governing Board Approves or Extends the Superintendent’s/President’s Contract or Sets the Salary of the Superintendent/President (CCD)

Download pdf: 04-2019(CC) – Required Procedure When Governing Board Approves or Extends Supt-Pres Contract (JH-CDC) 05-2019(CC) – Brown Act Requirement Re the Approval of Salary Changes for High Level Admin (JH)

This Legal Update provides a review of the recommended protocol when the governing board wishes to approve or extend the superintendent/president’s contract or set the salary of the superintendent/president.

A. BOARD APPROVAL OF OR AMENDMENT TO EMPLOYMENT CONTRACTS

The Government Code sets forth the procedures for a governing board’s approval of a district superintendent/president’s employment agreement.

Prior to taking action in open session to approve a superintendent’s/president’s contract, Government Code § 54953 requires an oral summary of the recommendation for approval of the salary and fringe benefits provided to the superintendent/president.

  1. Open Session Ratification of the Superintendent’s/President’s Contract.

Government Code sections 53260-53264 apply to various local agency employment agreements, including school district contracts involving the superintendent/president.

Section 53262 provides that the contract of employment of a district superintendent/president “shall be ratified in an open session of the governing body which shall be reflected in the governing body’s minutes.”  This provision assumes that the governing board took action in closed session to appoint or re-employ the superintendent/president pursuant to Government Code section 54957.

The requirement to approve or ratify the contract in public session exists for new contracts and for extensions or other amendments of existing contracts.

Contract approval of superintendent/president contracts must be taken at a regular meeting only.  Government Code section 54956(b) provides:

(b) Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive, as defined in subdivision (d) of Section 3511.1. However, this subdivision does not apply to a local agency calling a special meeting to discuss the local agency’s budget.

If the governing board takes action in closed session to approve the contract at a regular meeting, the open session agenda must have an action items as follows:

  • Oral Recommendation Regarding Salary and/or Fringe Benefits
  • Ratification of Superintendent’s Employment Agreement

The term “ratification” makes it clear that the Board already took action in closed session on the same subject (which would have been “reported out” by the Board, as described below).  However, prior to taking action in open session to ratify the superintendent’s/president’s contract Government Code § 54953 requires an oral summary of the salary and fringe benefits provided to the superintendent/president.

If the Board will not take action in closed session, the open session agenda would have an action item as follows:

  • Oral Recommendation Regarding Salary and/or Fringe Benefits
  • Consideration and Possible Approval of Superintendent’s/President’s Employment Agreement

As with any other final action by the Board, action taken to approve or ratify the agreement must be duly noted in the minutes.  Also, prior to taking action in open session to approve the superintendent’s/president’s contract Government Code § 54953 requires an oral summary of the salary and fringe benefits provided to the superintendent/president.

2. Closed Session Consideration of the Contract (Excluding Compensation).

As noted above, Section 54957 of the Brown Act authorizes, but does not require, a governing board to meet in closed session to consider the appointment or employment of any employee of the public agency.  Section 54957 also allows, but does not require, a board to take action in closed session with respect to the appointment or employment of employees.

Any closed session consideration of the superintendent’s/president’s employment or continued employment should be described on the agenda as follows:

1.0  Public Employee Appointment/Employment

(Government Code section 54957) 

Title: Superintendent/President

3. Reporting Action Taken in Closed Session.

Section 54957.1 of the Brown Act requires certain public disclosures after closed session if “reportable action” was taken in closed session.  As applicable here, Section 54957.1(a)(5) provides that following the closed session the Board “shall publicly report any action taken in closed session, and the vote or abstention of every member present … to appoint [or] employ … a public employee …”

Thus, following any closed session during a regular meeting where the Board votes to approve or extend the superintendent’s/president’s contract, the Board president must publicly announce the action taken in closed session and the vote of each board member present.  This announcement must be made in public session at the same regular meeting as the closed session and the action and vote must be noted in the minutes.

Even though the Board has publicly disclosed the closed session action, the Board should still ratify the employment agreement in public session as described above.

B. THE BOARD’S CONSIDERATION OF THE SUPERINTENDENT’S/PRESIDENT’S SALARY

  1. Closed Session Discussion of the Superintendent’s/President’s Salary.

Section 54957 provides that a closed session held pursuant to that section shall not include discussion or action on proposed compensation.

Thus, when the Board meets in closed session pursuant to Section 54957 to consider the employment or further employment of the superintendent/president, no discussion of salary can take place.

Section 54957.6 of the Brown Act authorizes the Board to meet in closed session with its “designated representatives regarding the salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees …”

Under this section, the Board may discuss the superintendent’s/president’s salary in closed session.  The superintendent/president should not be present in the closed session during this discussion.  The protocol for any closed session discussion of the superintendent’s/president’s salary should be exactly the same as for a closed session discussion of salaries for represented employees:  in closed session, the Board will give instructions to its negotiator (typically the Board president) who will then meet with the superintendent/president outside of the closed session and report back to the Board on the results of the discussion.  When an “agreement” has been reached (it being recognized that the Board may unilaterally set the salary of all unrepresented employees) that “agreement” must be “sunshined” by way of the open session ratification of the contract described above.

If the closed session is to include a discussion of the superintendent’s/president’s salary or compensation package the regular meeting agenda should contain the following closed session description:

1.0  Conference with Labor Negotiator (Government Code section 54957.6)

Agency Negotiator:  (specify name)

Unrepresented Employee: Superintendent/President

  1. OTHER CONSIDERATIONS
  • Any superintendent/president contract shall not include “an automatic renewal of [the] contract that provides for an automatic increase in the level of compensation that exceeds a cost of living adjustment.”  (Government Code section 3511.2(a).)
  • In light of the “City of Bell” legislation involving abuse of office, we recommend including the following provision in the contract: “To the extent applicable to school districts, this Agreement is subject to the provisions of Government Code sections 53243-53243.4 which requires reimbursement under the circumstances stated therein.”
  • The superintendent/president and all other employment contracts are public records.  (Government Code section 53262(b).)  (Some redactions may be permissible.)

For the protocol of board approval of salary changes for high level administrators other than the superintendent/president, please see our Legal Update Memo No. 05-2019(CC) dated April 16, 2019.

Legal Update written by Jennifer Henry, Assistant General Counsel and Carl D. Corbin, General Counsel.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

Legal Update Memo No. 06-2019 REVISED – Required Procedure When the Governing Board Approves or Extends the Superintendent’s Contract or Sets the Salary of the Superintendent (K-12)

Download pdf: 06-2019 REVISED – Required Procedure When Governing Board Approves or Extends Supt Contract (JH-CDC)

The purpose of this Revised Legal Update is to clarify the requirement for an oral report, in open session, regarding any changes to salary or fringe benefits for a “local agency executive,” which includes a district superintendent.  The duty to make an oral report in open session regarding other high level positions in a district prior to taking action is referenced in our Legal Update Memo No. 05-2019.  Please discard the previous version of Legal Update Memo No. 06-2019 and please reference this revised version.

This Revised Legal Update provides a review of the recommended protocol when the governing board wishes to approve or extend the superintendent’s contract or set the salary of the superintendent.

A. BOARD APPROVAL OF OR AMENDMENT TO EMPLOYMENT CONTRACTS

The Government Code sets forth the procedures for a governing board’s approval of a district superintendent’s employment agreement. Prior to taking action in open session to approve a superintendent’s contract, Government Code section 54953 requires an oral summary of the recommendation for approval of the salary and fringe benefits provided to the superintendent.

1. Open Session Ratification of the Superintendent’s Contract.

Government Code sections 53260-53264 apply to various local agency employment agreements, including school district contracts involving the superintendent.

Section 53262 provides that the contract of employment of a district superintendent “shall be ratified in an open session of the governing body which shall be reflected in the governing body’s minutes.”  This provision assumes that the governing board took action in closed session to appoint or re-employ the superintendent pursuant to Government Code section 54957.

The requirement to approve or ratify the contract in public session exists for new contracts and for extensions or other amendments of existing contracts.

Contract approval of superintendent contracts must be taken at a regular meeting only.  Government Code section 54956(b) provides:

(b) Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive, as defined in subdivision (d) of Section 3511.1. However, this subdivision does not apply to a local agency calling a special meeting to discuss the local agency’s budget.

If the governing board takes action in closed session to approve the contract at a regular meeting, the open session agenda must have an action items as follows:

  • Oral Recommendation Regarding Salary and/or Fringe Benefits
  • Ratification of Superintendent’s Employment Agreement

The term “ratification” makes it clear that the Board already took action in closed session on the same subject (which would have been “reported out” by the Board, as described below).  However, prior to taking action in open session to ratify the superintendent’s contract Government Code section 54953 requires an oral summary of the salary and fringe benefits provided to the superintendent.

If the Board will not take action in closed session, the open session agenda would have an action item as follows:

  • Oral Recommendation Regarding Salary and/or Fringe Benefits
  • Consideration and Possible Approval of Superintendent’s Employment Agreement

As with any other final action by the Board, action taken to approve or ratify the agreement must be duly noted in the minutes.  Also, prior to taking action in open session to approve the superintendent’s contract Government Code § 54953 requires an oral summary of the salary and fringe benefits provided to the superintendent.

2. Closed Session Consideration of the Contract (Excluding Compensation).

As noted above, Section 54957 of the Brown Act authorizes, but does not require, a governing board to meet in closed session to consider the appointment or employment of any employee of the public agency.  Section 54957 also allows, but does not require, a board to take action in closed session with respect to the appointment or employment of employees.

Any closed session consideration of the superintendent’s employment or continued employment should be described on the agenda as follows:

         1.0 Public Employee Appointment/Employment

        (Government Code section 54957)

       Title: Superintendent

3. Reporting Action Taken in Closed Session.

Section 54957.1 of the Brown Act requires certain public disclosures after closed session if “reportable action” was taken in closed session.  As applicable here, Section 54957.1(a)(5) provides that following the closed session the Board “shall publicly report any action taken in closed session, and the vote or abstention of every member present … to appoint [or] employ … a public employee …”

Thus, following any closed session during a regular meeting where the Board votes to approve or extend the superintendent’s contract, the Board president must publicly announce the action taken in closed session and the vote of each board member present.  This announcement must be made in public session at the same regular meeting as the closed session and the action and vote must be noted in the minutes.

Even though the Board has publicly disclosed the closed session action, the Board should still ratify the employment agreement in public session as described above.

B. THE BOARD’S CONSIDERATION OF THE SUPERINTENDENT’S SALARY

1. Closed Session Discussion of the Superintendent’s Salary.

Section 54957 provides that a closed session held pursuant to that section shall not include discussion or action on proposed compensation.

Thus, when the Board meets in closed session pursuant to Section 54957 to consider the employment or further employment of the superintendent, no discussion of salary can take place.

Section 54957.6 of the Brown Act authorizes the Board to meet in closed session with its “designated representatives regarding the salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees …”

Under this section, the Board may discuss the superintendent’s salary in closed session.  The superintendent should not be present in the closed session during this discussion.  The protocol for any closed session discussion of the superintendent’s salary should be exactly the same as for a closed session discussion of salaries for represented employees:  in closed session, the Board will give instructions to its negotiator (typically the Board president) who will then meet with the superintendent outside of the closed session and report back to the Board on the results of the discussion.  When an “agreement” has been reached (it being recognized that the Board may unilaterally set the salary of all unrepresented employees) that “agreement” must be “sunshined” by way of the open session ratification of the contract described above.

If the closed session is to include a discussion of the superintendent’s salary or compensation package the regular meeting agenda should contain the following closed session description:

1.0     Conference with Labor Negotiator (Government Code section 54957.6)

            Agency Negotiator:          (specify name)

           Unrepresented Employee: Superintendent

C. OTHER CONSIDERATIONS

  • Effective January 1, 2016, a superintendent contract executed after that date cannot include a cash settlement upon termination that is greater than 12 months salary, or the number of months left on the contract, whichever is less.  (Government Code section 53260(a).)  Other administrators can still be granted up to 18 months salary upon non-renewal of the contract, or the number of months left on the contract, whichever is less.
  • Any superintendent contract shall not include “an automatic renewal of [the] contract that provides for an automatic increase in the level of compensation that exceeds a cost of living adjustment.”  (Government Code section 3511.2(a).)
  • In light of the “City of Bell” legislation involving abuse of office, we recommend including the following provision in the contract: “To the extent applicable to school districts, this Agreement is subject to the provisions of Government Code sections 53243-53243.4 which requires reimbursement under the circumstances stated therein.”
  • The superintendent and all other employment contracts are public records.  (Government Code section 53262(b).)  (Some redactions may be permissible.)

For the protocol of board approval of salary changes for high level administrators other than the superintendent, please see our Legal Update Memo No. 05-2019 dated February 26, 2019.

Please contact our office with questions regarding this Legal Update or any other legal matter.

Legal Update written by Jennifer Henry, Assistant General Counsel and Carl D. Corbin, General Counsel.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2019 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.