Legal Update Memo No. 30-2022 – Annual Development Fee Accounting (EES) (K-12)

Download PDF: 30-2022 – Annual Development Fee Accounting (EES) w Attachments

Reminder:  Development Fee Accounting requirements must be met within 180 days after the last day of each fiscal year. This year, 180 days after the last day of the fiscal year falls on Tuesday, December 27, 2022. As a result, we recommend that Development Fee Accounting disclosure requirements be completed prior to any December holiday office closures. The following information and documents are provided to assist school districts maintain statutory compliance.

Government Code Section 66006 requires that an annual accounting of development fees must be made available to the public within 180 days after the last day of each fiscal year, here, no later than December 27, 2022.

In addition, the governing board must review the disclosed information at its next regularly scheduled board meeting held no earlier than 15 days after the information becomes available to the public. Notice of the time and place of this meeting, including the address at which the information may be reviewed, must be mailed at least 15 days prior to the meeting to anyone who has filed a written request with the district for such notice.

Every five years, additional findings must be made for any fund in which development fees remained unexpended at the end of a fiscal year.

I. Annual Accounting: Government Code Section 66006

 School districts collecting development fees (e.g., statutory school facilities fees and other impact mitigation payments) must provide a separate accounting for each separate account or fund into which such fees or payments were deposited.

Section 66006(b)(1) requires the annual accounting for each fund include the following information:

(A) A brief description of the type of fee in the account or fund.

(B) The amount of the fee.

(C) The beginning and ending balance of the account or fund.

(D) The amount of the fees collected and the interest earned.

(E) An identification of each public improvement on which fees were expended and the amount of the expenditures on each improvement; include the total percentage of the cost of the public improvement that was funded with fees.

(F) An identification of an approximate date by which the construction of the public improvement will commence if the local agency determines that sufficient funds have been collected to complete financing on an incomplete public improvement, as identified in paragraph (2) of subdivision (a) of Section 66001, and the public improvement remains incomplete.

(G) A description of each interfund transfer or loan made from the account or fund, including the public improvement on which the transferred or loaned fees will be expended, and, in the case of an interfund loan, the date on which the loan will be repaid, and the rate of interest that the account or fund will receive on the loan.

(H) The amount of refunds made pursuant to subdivision (e) of Section 66001 and any allocations pursuant to subdivision (f) of Section 66001.[1]

II. Every Fifth Fiscal Year: Government Code Section 66001

Government Code section 66001(d)(1) requires that for the fifth fiscal year following the first deposit into each account or fund, and every five years thereafter, the local agency must make certain findings. These findings must also be made available to the public within 180 days after the last day of each fiscal year, here, no later than December 27, 2022. When a local agency fails to make the required five-year findings, the agency is required to refund the unexpended portion of the fee, and any interest accrued thereon. Walker v. City of San Clemente, 239 Cal. App. 4th 1350, 1371 (2015)(emphasis in original).

In Walker, the city was ordered to refund approximately $10.5 million in unexpended fees for failing to make the required five-year findings. Specifically, the city failed to discuss the relationship between the nearly $10 million balance in the Beach Parking Impact Fee account and the purpose for which the fee was established, nor did it demonstrate a reasonable relationship between the unexpended fees and their purpose. The city’s purported findings identifying the sources and funds anticipated to complete financing for incomplete beach parking improvements and designating the approximate dates when it anticipated receiving that funding were also insufficient.

The Walker decision affirms that Section 66001 imposes a duty on the local agency to reexamine the need for the unexpended fees. Specifically, the Walker court explained, “[t]he City may not rely on findings it made 20 years earlier to justify the original establishment of the Beach Parking Impact Fee, or the findings it made 13 years earlier to justify reducing the amount of the fee. Instead, the Act required the City to make new findings demonstrating a continuing need for beach parking improvements caused by the new development in the noncoastal zone.”

To comply with section 66001(d)(1), a district must make all of the following findings with respect to that portion of the account or fund remaining unexpended, whether committed or uncommitted:

(A) Identify the purpose to which the fee is to be put.

(B) Demonstrate a reasonable relationship between the fee and the purpose for which it is charged. The Walker decision interpreted this to include an assessment of the impact of the development on the local agency, the current status of the need for the fund, the status of any improvements identified when the fee was established, what has been done since the fee was imposed, and future plans.

(C) Identify all sources and amounts of funding anticipated to complete financing and incomplete improvements identified in Government Code section 66001(a)(2), which states if the use is financing public facilities, the facilities shall be identified. It is optional, but identification can be made by reference to a capital improvement plan as specified in Government Code sections 65403 or 66002, or in other public documents that identify the public facilities for which the fee is charged.

(D) Designate the approximate dates on which the funding referred to in paragraph (3) is expected to be deposited into the appropriate account or fund.

In sum, the local agency must affirmatively demonstrate that it still needs the unexpended fee to achieve the purpose for which it was originally imposed and that the agency has a plan on how to use the unexpended balance to achieve that purpose.

The findings required by this subdivision need only be made for moneys in possession of the local agency and need not be made with respect to letters of credit, bonds, or other instruments taken to secure payment of the fee at a future date. As noted above, if the findings are not made as required by this subdivision, the local agency must refund the unexpended moneys in the account or fund plus interest as provided in Government Code section 66001(e).

III. Additional Information and Suggestions

Enclosed with this letter are three forms to assist with Government Code sections 66001 and 66006 compliance. The attachments include:

  • A sample resolution related to statutory fees collected under Education Code section 17620. (For districts which still have fees collected under “SB 201” — Government Code section 65970, et seq.—a separate resolution is available upon request.)
    • A sample Exhibit 1, to be completed and attached to the resolution addressing the information required by Government Code section 66006 (Annual Accounting).
    • A sample Exhibit 2, to be completed and attached to the resolution addressing the information required by Government Code section 66001 (Fifth-Year Accounting).
  • Instructions to complete Exhibit 1 and Exhibit 2.
  • Copies of relevant Code provisions.

These three documents assume that there are funds remaining in the account(s) or fund(s) in question for which a report under Government Code section 66001 is necessary. If that is not the case, please contact our office and we can provide a modified form of resolution. Finally, a reminder that even if funds remaining at the end of the fiscal year have been spent prior to the date of the accounting, it remains necessary to comply with Government Code section 66001 and complete the Fifth-Year Accounting. Although, the fact that the funds remaining have been spent will be reflected on both Exhibit 1 (reference (F)) and Exhibit 2 (references (C) and (D).)

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.

© 2022 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] Government Code section 66001(e) requires districts to refund developer fees that are not appropriated within a five-year period from date of collection.  Government Code section 66001(f) provides a method for allocating such non-appropriated fees if the administrative costs of refunding exceed the amount to be refunded.

 

Legal Update Memo No. 29-2022 – SB 906 – Safe Storage of Firearms Notice (LMS) (K-12)

Download PDF: 29-2022 – SB 906 – Safe Storage of Firearms Notice (LMS)

On July 21, 2022, Governor Newsom approved Senate Bill (“SB”) 906, which creates new obligations for Local Educational Agencies (“LEAs”) aimed at preventing firearm-related incidents at schools and addressing threats made by pupils in middle schools and high schools. The bill includes two separate requirements for LEAs.

Notification to Parents/Guardians of Safe Storage of Firearms

SB 906 requires the California Department of Education (CDE), in consultation with relevant local educational agencies, civil rights groups, and the Department of Justice, to develop model content for an annual notification to parents. That notice must, at a minimum, inform parents or guardians of California’s child access prevention laws and laws relating to the safe storage of firearms. The CDE is required to publish this model content by July 1, 2023.

Commencing with the 2023-2024 school year, LEAs maintaining kindergarten or any of grades 1 to 12, inclusive, will be required to include information related to the safe storage of firearms in the annual parent notice required by Education Code section 48980. The notification should be informed by the model content to be developed by the CDE. For LEAs who utilize this office’s model Annual Parent Notice, the document will be updated for 2023-2024 with this information, contingent on the timely publication of the model content by the CDE.

Reporting Threats or Perceived Threats

The bill also requires school officials whose duties involve regular contact with pupils in any of grades 6 to 12 to immediately report to law enforcement any threat or perceived threat that creates a reasonable suspicion that a student is preparing to commit a homicidal act related to school or a school activity.  The school official’s report must include any documentary or other evidence associated with the threat or perceived threat. Upon notice of the threat or perceived threat, the local law enforcement agency or school site police shall immediately conduct an investigation and threat assessment with the support of the LEA. The investigation and threat assessment must include a review of the firearm registry of the Department of Justice and, if justified by a reasonable suspicion that it would produce evidence related to the threat or perceived threat, a school site search.

Where two or more school officials know of the threat, there is joint obligation to report. There may be an agreement between them to file a single report.  However, a school official with knowledge that the designated reporting school official has failed to make the report must thereafter make the report.

The bill provides immunity to employees of an LEA and the LEA from civil liability for any damages allegedly caused by, arising out of, or related to the bill’s provisions.

This bill applies to school districts, county offices of education, and charter schools, which must comply commencing with the 2023-2024 school year.

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.

© 2022 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. 19-2022(CC) – Updated Brown Act Virtual Meeting Requirements (AB 2449) (CC)

Download PDF: 19-2022(CC) – Updated Brown Act Virtual Meeting Requirements (AB 2449) (JH)

Assembly Bill (“AB”) 2449, signed into law on September 13, 2022, amends Government Code section 54953 to provide authority and specific requirements for public agencies to allow individual board members to appear at meetings via videoconference for “just cause” and under “emergency circumstances” while remaining in compliance with the Brown Act (Gov. Code §§ 54950 et seq.). AB 2449 goes into effect on January 1, 2023, and sunsets on December 31, 2025. AB 2449’s primary difference from the pre-pandemic Brown Act rules on teleconferencing[1] is that the teleconference location does not have to be identified on the agenda or accessible to the public.

On the following pages, we have provided a chart comparing pre-pandemic (“traditional”) teleconferencing requirements (which remain in effect and allow Board members to appear virtually for any reason, provided their location meets specific requirements) with AB 361 (which, while operative for the next two months, allows entire meetings to be held virtually under a statement of emergency), and the new AB 2449 rules for individual board members. Effective January 1, 2023, the Brown Act permits teleconferencing under any of the three options – traditional Brown Act teleconferencing, AB 361 state of emergency rules, and AB 2449 individual board member rules.

A: Rules Regarding a Quorum

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
During teleconference meetings, at least a quorum of the members of the local public agency body must participate from locations within the boundaries of the territory over which the local public agency body exercises jurisdiction. Quorum not required to be located within the boundaries of the territory. A quorum must participate in person from a singular physical location identified in the agenda, that is open to the public, and within the boundaries of the LEA.

B: Qualifying Circumstances Permitting Teleconferencing

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
  • The teleconference location must be noted on the agenda.
  • The agenda must be posted at the remote location.
  • Each teleconference location must be accessible to the public so the public may attend the remote location.
  • Any vote must be done by roll call.
  • A majority of the Board must be located within the territory of the district.
  • Only applies during a proclaimed state of emergency, where state or local officials have imposed or recommended measure to promote social distancing.
  • The board must hold a meeting during the proclaimed state of emergency to decide by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
  • Board must make findings every 30 days that the qualifying circumstances continue.
Individual board members may participate in board meetings remotely, if they notify the Board at their earliest opportunity, and have one of the following:

  • Just Cause: Individual board members can participate remotely when caregiving of a family member, a contagious illness, a physical or mental disability, or LEA-related travel prevents them from appearing in person; OR
  • May not be used more than two meetings per calendar year per Board member.

Emergency Circumstances: Individual board members can participate remotely when there is a physical or family medical emergency that prevents them from appearing in person.

  • The board member must describe the emergency in approximately 20 words without disclosing any personal medical information.
  • Board must take action to approve the member’s request.
  • A board member may not claim emergency circumstances more than three consecutive months OR 20 percent of the regular meetings within a calendar year

C: Agenda Requirements for Teleconferencing

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
Each teleconference location from which a member will be participating must be specifically identified in the meeting notice and agenda, including full address and room number.

 

An agenda must be posted for the required period of time (24 or 72 hours) at each teleconference location from which a member will be participating.

Public agency must only give notice and post agenda in accordance with the Brown Act provisions for in-person meetings.

 

The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option.

The agenda must provide notice of how the public can access the meeting and provide comments. The agenda shall identify and include an opportunity for all persons to attend via a call in option, an internet-based option, and an in-person option. The board may not require a member of the public to submit comments prior to the meeting.

 

There is no requirement to disclose the teleconferencing location.

 D: Teleconference Location

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
Each teleconference location must be physically accessible to the public.

 

Members of the public must be able to physically address the body from each teleconference location.

Public agencies do not have to let members of the public attend at each teleconference location, but must allow the public to access the meeting via a call-in or an internet-based service option.

 

The public agency is not required to provide a physical location for the public to attend or provide comments.

Teleconferencing members must participate with both audio and visual, i.e. only via videoconference.

 

Videoconferencing members must disclose whether any individuals 18 years or older are present in the same room and the nature of the relationship.

E: Public Comment

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
Public Comment must be allowed at the in-person meeting and from every teleconference location. The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3. In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. Gov. Code § 54953(e)(1)(B).

 

The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. Gov. Code § 54953(e)(1) (E).

 

An individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. Gov. Code § 54953(e)(1)(F).

[Note: The Brown Act does not allow a public agency to require a meeting attendee to provide their name and address as a condition of attendance and public agencies may need to consider whether pseudonyms will be allowed].

 

A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register until that timed public comment period has elapsed.

 

A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register, or otherwise be recognized for the purpose of providing public comment.

 

A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register until the timed general public comment period has elapsed.

The legislative body must provide to the public a two-way audio-visual platform or a two-way telephonic service with live webcasting.

 

The legislative body must provide a way for the public to remotely hear, visually observe, and remotely address the legislative body in real time.

F: Effective Dates

Brown Act Teleconferencing Requirements AB 361 AB 2449
Government Code section 54953 was initially added in 1953, and amended in 1988 to allow for teleconferencing, with various amendments throughout the years. There is no intended sunset date. AB 361 went into effect on October 1, 2021 and will sunset on December 31, 2023. AB 2449 goes into effect on January 1, 2023 and sunsets on December 31, 2025.

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.

 © 2022 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]   We use “teleconferencing” herein to mean conference via telephone or video, as defined in the Traditional Brown Act statute.

Legal Update Memo No. 28-2022 – Updated Brown Act Virtual Meeting Requirements (AB 2449) (K-12)

Download PDF: 28-2022 – Updated Brown Act Virtual Meeting Requirements (AB 2449) (JH)

Assembly Bill (“AB”) 2449, signed into law on September 13, 2022, amends Government Code section 54953 to provide authority and specific requirements for public agencies to allow individual board members to appear at meetings via videoconference for “just cause” and under “emergency circumstances” while remaining in compliance with the Brown Act (Gov. Code §§ 54950 et seq.). AB 2449 goes into effect on January 1, 2023, and sunsets on December 31, 2025. AB 2449’s primary difference from the pre-pandemic Brown Act rules on teleconferencing[1] is that the teleconference location does not have to be identified on the agenda or accessible to the public.

On the following pages, we have provided a chart comparing pre-pandemic (“traditional”) teleconferencing requirements (which remain in effect and allow Board members to appear virtually for any reason, provided their location meets specific requirements) with AB 361 (which, while operative for the next two months, allows entire meetings to be held virtually under a statement of emergency), and the new AB 2449 rules for individual board members. Effective January 1, 2023, the Brown Act permits teleconferencing under any of the three options – traditional Brown Act teleconferencing, AB 361 state of emergency rules, and AB 2449 individual board member rules.

A: Rules Regarding a Quorum

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
During teleconference meetings, at least a quorum of the members of the local public agency body must participate from locations within the boundaries of the territory over which the local public agency body exercises jurisdiction. Quorum not required to be located within the boundaries of the territory. A quorum must participate in person from a singular physical location identified in the agenda, that is open to the public, and within the boundaries of the LEA.

B: Qualifying Circumstances Permitting Teleconferencing

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
  • The teleconference location must be noted on the agenda.
  • The agenda must be posted at the remote location.
  • Each teleconference location must be accessible to the public so the public may attend the remote location.
  • Any vote must be done by roll call.
  • A majority of the Board must be located within the territory of the district.
  • Only applies during a proclaimed state of emergency, where state or local officials have imposed or recommended measure to promote social distancing.
  • The board must hold a meeting during the proclaimed state of emergency to decide by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
  • Board must make findings every 30 days that the qualifying circumstances continue.
Individual board members may participate in board meetings remotely, if they notify the Board at their earliest opportunity, and have one of the following:

  • Just Cause: Individual board members can participate remotely when caregiving of a family member, a contagious illness, a physical or mental disability, or LEA-related travel prevents them from appearing in person; OR
  • May not be used more than two meetings per calendar year per Board member.

Emergency Circumstances: Individual board members can participate remotely when there is a physical or family medical emergency that prevents them from appearing in person.

  • The board member must describe the emergency in approximately 20 words without disclosing any personal medical information.
  • Board must take action to approve the member’s request.
  • A board member may not claim emergency circumstances more than three consecutive months OR 20 percent of the regular meetings within a calendar year

C: Agenda Requirements for Teleconferencing

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
Each teleconference location from which a member will be participating must be specifically identified in the meeting notice and agenda, including full address and room number.

 

An agenda must be posted for the required period of time (24 or 72 hours) at each teleconference location from which a member will be participating.

Public agency must only give notice and post agenda in accordance with the Brown Act provisions for in-person meetings.

 

The agenda shall identify and include an opportunity for all persons to attend via a call-in option or an internet-based service option.

The agenda must provide notice of how the public can access the meeting and provide comments. The agenda shall identify and include an opportunity for all persons to attend via a call in option, an internet-based option, and an in-person option. The board may not require a member of the public to submit comments prior to the meeting.

 

There is no requirement to disclose the teleconferencing location.

 D: Teleconference Location

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
Each teleconference location must be physically accessible to the public.

 

Members of the public must be able to physically address the body from each teleconference location.

Public agencies do not have to let members of the public attend at each teleconference location, but must allow the public to access the meeting via a call-in or an internet-based service option.

 

The public agency is not required to provide a physical location for the public to attend or provide comments.

Teleconferencing members must participate with both audio and visual, i.e. only via videoconference.

 

Videoconferencing members must disclose whether any individuals 18 years or older are present in the same room and the nature of the relationship.

E: Public Comment

Traditional Brown Act Teleconferencing Requirements AB 361 AB 2449
Public Comment must be allowed at the in-person meeting and from every teleconference location. The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3. In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. Gov. Code § 54953(e)(1)(B).

 

The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. Gov. Code § 54953(e)(1) (E).

 

An individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third-party internet website or online platform to participate. Gov. Code § 54953(e)(1)(F).

[Note: The Brown Act does not allow a public agency to require a meeting attendee to provide their name and address as a condition of attendance and public agencies may need to consider whether pseudonyms will be allowed].

 

A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register until that timed public comment period has elapsed.

 

A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register, or otherwise be recognized for the purpose of providing public comment.

 

A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register until the timed general public comment period has elapsed.

The legislative body must provide to the public a two-way audio-visual platform or a two-way telephonic service with live webcasting.

 

The legislative body must provide a way for the public to remotely hear, visually observe, and remotely address the legislative body in real time.

F: Effective Dates

Brown Act Teleconferencing Requirements AB 361 AB 2449
Government Code section 54953 was initially added in 1953, and amended in 1988 to allow for teleconferencing, with various amendments throughout the years. There is no intended sunset date. AB 361 went into effect on October 1, 2021 and will sunset on December 31, 2023. AB 2449 goes into effect on January 1, 2023 and sunsets on December 31, 2025.

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.

 © 2022 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]   We use “teleconferencing” herein to mean conference via telephone or video, as defined in the Traditional Brown Act statute.

Legal Update Memo No. 27-2022 – SB 1016 – Special Education: Eligibility: Fetal Alcohol Spectrum Disorder (K-12)

Download PDF: 27-2022 – SB 1016 – Special Education – Eligibility – Fetal Alcohol Spectrum Disorder (JEN)

On September 27, 2022, Governor Newsom approved Senate Bill 1016, which requires the State Board of Education include “fetal alcohol spectrum disorder” in the definition of “other health impairment” located in 5 C.C.R. § 3030 (“Section 3030”).

Current Section 3030 provides that a child who is assessed as having a specified health impairment or other health impairment is entitled to special education and related services. That regulation defines “other health impairment” as having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the environment that is due to a chronic or acute health problem and adversely affects the child’s educational performance. The law currently contains a non-exclusive list of chronic or acute health problems that could be relied on in qualifying a student under other health impairment, including asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome. This new law requires that “fetal alcohol spectrum disorder” be added to that list.

SB 1016 is effective January 1, 2023, but does not contain a deadline for the State Board of Education to update the regulation. Local Education Agencies should ensure they are using the current version of Section 3030 following the State Board of Education’s update to that regulation.

Please note that being diagnosed with fetal alcohol spectrum disorder does not, in and of itself, make a child eligible under other health impairment. The child must still be assessed for eligibility and meet the eligibility criteria in Section 3030.

If you receive information that a student has been diagnosed with fetal alcohol spectrum disorder, you should continue to follow all relevant law, including complying with your child-find obligations, if appropriate; conducting assessments in all areas of suspected disability, if necessary; and developing an appropriate IEP if the student is found eligible under the IDEA.

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.

© 2022 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. 18-2022(CC) – Frequently Asked Questions Regarding Political Activities for Local Educational Agencies, Employees, and Candidates (CC)

Download PDF: 18-2022(CC) – FAQ Regarding Political Activities for Local Educational Agencies, Employees, and Candidates (EES)

 

With Election Day just weeks away, our office is recirculating the Frequently Asked Questions Regarding Political Activities for Local Educational Agencies, Employees, and Candidates legal update.

AGENCY[1] Resources

 Question:  Can District[2] funds or supplies be used to urge support for or defeat of an upcoming ballot measure or candidate?

No.  Education Code section 7054, subdivision (a) provides:

No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.

And, subdivision (c) imposes criminal penalties for a violation of this Section.

In addition, Government Code section 8314 provides that “[i]t is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity…”

 Question:  May a District prohibit the use of District mailboxes to distribute campaign materials?

 Yes. Under Education Code section 7054, a District may prohibit the use of campus mailboxes for distribution of materials urging the support or defeat of any ballot measure or candidate.  In San Leandro Teachers Association v. Governing Board,[3] the California Supreme Court upheld a school district’s prohibition of the use of internal faculty mailboxes by the teacher’s union as a means of distributing partisan political information to its members.  However, the Court noted that section 7054 does not prohibit a school board from opening up mailboxes to political endorsement literature, as long as this is done “on an equitable basis.”

 Question:  May the District fund a “mass mailing” that features an elected official?

 No. The Political Reform Act of 1974 was intended to abolish practices that unfairly favor incumbents.[4]  One means of preventing unfair advantage for an incumbent is the prohibition on use of public funds for mass mailings that “feature” the elected official.  Thus, “no newsletter or other mass mailing shall be sent at public expense.”[5]

The “mass mailing” restrictions are designed to prohibit “elected officials from using public moneys to perpetuate themselves in public office.”[6]

Government Code section 89002 defines a “mass mailing” for purposes of section 89001 as follows:

(1) A tangible item delivered, by any means, to the recipient at the recipient’s residence, place of employment or business, or post office box.

(2) The item either: (A) Features an elected officer affiliated with the agency that produces or sends the mailing; [or] (B) Includes the name, office, photograph, or other reference to an elected officer affiliated with the agency that produces or sends the mailing, and is prepared or sent in cooperation, consultation, coordination, or concert with the elected officer.

(3) The costs of distribution are paid for with public money or the costs of design, production, and printing exceeding fifty dollars ($50) are paid with public moneys, and the design, production, or printing is done with the intent of sending the item other than as permitted by this section.

(4) More than 200 substantially similar items are sent in a single calendar month.

PUBLIC EMPLOYEES: POLITICAL ACTIVITES AND EXPRESSION

 Question:  May a public employee engage in political activities while wearing a uniform utilized in his/her public employment?

 No. See Government Code section 3206.[7]

 Question:  Can District employees engage in political activities during off-duty time?

 Yes. Political activities are allowed during off-duty time so long as District resources are not used.  No political activities are allowed during work time.

Teachers have the right to discuss with fellow teachers issues of public concern (such as cutbacks to educational funding) in faculty rooms and lunchrooms during duty-free periods.[8]

Education Code section 7056 provides:

(a) Nothing in this article prevents an officer or employee of a local agency from soliciting or receiving political funds or contributions to promote the support or defeat a ballot measure that would affect the rate of pay, hours of work, retirement, civil service, or other working conditions of officers or employees of the local agency.  These activities are prohibited during working hours.  In addition, entry into buildings and grounds under the control of a local agency for such purposes during working hours is also prohibited.

(b) Nothing in this section shall be construed to prohibit any recognized employee organization or its officers, agents, and representatives from soliciting or receiving political funds or contributions from employee members to promote the support or defeat of any ballot measure on school district property or community college district property during nonworking time.  As used in this subdivision, “nonworking time” means time outside an employee’s working hours, whether before or after school or during the employee’s luncheon period or other scheduled work intermittency during the school day.[9]

Education Code section 7055 provides:

The governing body of each local agency may establish rules and regulations on the following:

(a) Officers and employees engaging in political activity during working hours.

(b) Political activities on the premises of the local agency.

Question:  Can a District regulate the wearing of political buttons by employees or other political expression by employees while on duty?

 Yes. A District can restrict political activities that occur during instructional activities, but not during non-instructional time, such as a lunch break.

In California Teachers Association v. Governing Board,[10] the court held that under Education Code section 7055, a school district could prohibit its employees from wearing political buttons during “instructional activities.” This case considers the interplay between section 7055’s grant of authority to regulate employee political activity and constitutional free speech guarantees.  The court concluded that these constitutional rights should be read to limit regulation of political advocacy under section 7055 to instructional settings:  “Under the California Constitution, as well as the First Amendment, school authorities retain the power to dissociate themselves from political controversy by prohibiting their employees from engaging in political advocacy in instructional settings.”  The court also expressly held that “as applied to non-instructional settings [the] district’s regulation is unconstitutional but that in instructional settings it may be enforced.”  See also 77 Ops. Cal. Atty. Gen 56 (1994).

Question:  Can a school district prohibit teachers from wearing political buttons while attending Back to School Night, where teachers meet only with parents? 

No. “The event does not involve an instructional setting for pupils of the district.  Rather, the parents are in attendance to show support for their children’s educational activities.  In this setting, it need not be feared that ‘young and impressionable minds’ will be unduly influenced by teachers wearing political buttons or that the parents will believe that the teachers’ political buttons reflect the view of the district’s government board or other school officials.”[11]

Question:  Can an employee be prohibited from displaying a large campaign sign on her private car in the District lot?

 Yes. In one case, an employee’s vehicle displayed a two-by-eight foot sign indicating which school board candidates the union endorsed in order to influence voters in the upcoming election.  The district’s request that the sign be removed or the vehicle parked off school property was challenged as an unfair labor practice and ultimately addressed by the California Public Employment Relations Board (“PERB”).  Under the circumstances of the case, PERB found the school’s actions seeking removal of either the sign or the vehicle were permissible under section 7055.[12]

Question:  Can teachers wear union buttons while in the classroom?

 Yes. PERB has held that school districts cannot prohibit teachers from wearing union buttons in the classroom absent “special circumstances.”  One such circumstance might be “distraction,” but PERB found that the district in that case failed to establish distraction as a special circumstance justifying its ban on union buttons.  In addition, PERB rejected the employer’s contention that the buttons at issue could be considered “political activity” within the meaning of Education Code section 7055.[13]

 Question:  May a union group conduct a meeting at a school site when one of the topics is whether to support a school board member’s candidacy?

 Yes.[14]

 Question:  If a District employee makes a political contribution, is that reportable?

 Contributions to a political campaign may be subject to reporting requirements of the Political Reform Act.  There are extensive regulations on this subject available on the Fair Political Practices Commission website.

CANDIDATES/INCUMBENTS

 Question:  Can incumbents send campaign e-mails from or to District e-mail addresses?

No. Candidates who have District e-mail accounts should not use those accounts to send campaign materials.  However, as detailed in the next question, a candidate may use their private email account to send a mass e-mail that targets a significant segment of the public even if some of those contacted are District employees.

Incumbents are also encouraged to be aware of agency policies regarding using the symbols, or indicia of your office such as an official’s title or the agency seal.  Candidates for re-election should be clear in campaign materials that use of an official title is for identification purposes only.

Question:  May a candidate send letters to District employees seeking support?

Candidates should not initiate contact with District employees in an attempt to enlist their support for the campaign; these actions may cause undue pressure on the employee to engage in the political activity.

However, the candidate may send “mass mailings” that target a significant segment of the public even if some of those contacted are District employees.  Mailing lists should be obtained from a public source, not from the District.

Question:  May a candidate promise an employee a promotion in exchange for his/her support of the candidate?

No. Persons who hold office, or who are seeking election to office, may not threaten adverse consequences to District employees if they fail to support them, or promise advantages or benefits to District employees who do support them.[15]

Question:  May a candidate seek political contributions from District employees?

No. Current district employees and candidates for elective office shall not solicit political contributions from other district officers or employees unless “the solicitation is part of a solicitation made to a significant segment of the public . . . ”  It does not matter whether the solicitation is direct or indirect.[16]

Question:  May a candidate obtain from the District the home addresses of District employees to send them campaign material?

No. A candidate for the Board may not access employee home addresses from the District.  They are not public records.[17] If an incumbent used his or her public position to do so, it would be a violation of Education Code section 7054.

Question:  May a candidate initiate contact with parents or boosters to enlist support?

Yes. A candidate for office has the right to meet with members of the general public to enlist support.  The “general public” includes parents and boosters.

Question:  May a candidate address an employee group on site?

Candidates or proponents are allowed to do this only at the invitation of the employee group and only during reasonable non-working hours.

Question:  May a candidate attend school events such as back to school night to enlist support?

This is allowed with certain restrictions and should be accompanied by an approved Use of School Facilities permit.  The main restriction is that the presence may not interfere or disrupt the school event itself.  Typically a candidate or proponent is provided a table in a lobby area to display campaign materials and to discuss campaign issues only if approached by an interested party.  Candidates or proponents shall not initiate interactions with staff or participants attending the school event.  Such attendance would be open to all candidates.

Question:  May a candidate meet with a District official during school hours?

Yes, so long as the meeting is not disruptive, so long as the subject matter is limited to discussing school business (i.e. not campaigning), and so long as the school official is available to meet with other candidates as well.

Candidates who are seeking re-election should be aware that staff time is a District resource. As such, incumbents are encouraged to keep in mind that if you wouldn’t ask a District official for this discussion or to look into a matter if you weren’t running for re-election, it is a misuse of District resources to look into it because you are running for re-election.

Question:  May the candidate seek contributions from vendors of the District?

While a private vendor has a right to make political contributions consistent with legal requirements, a candidate must be careful to avoid the appearance of “pay to play” or a quid pro quo when seeking a contribution from a vendor.

BALLOT MEASURES 

Question:  Can a District use District money to send an informational letter to the public about a ballot measure?

Yes. Education Code section 7054, subdivision (b) provides:

Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met:

(1) The informational activities are otherwise authorized by the Constitution or laws of this state.

(2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.”  (Emphasis added.)

An impartial presentation of the facts will necessarily include all consequences, good and bad, of the proposal, not only the anticipated improvement in educational opportunities, but also the increased tax rate and such other less desirable consequences that may be foreseen.[18]

 Question:  What are some examples of “informational” materials paid for with public money that have been found to be illegal?

The line between unauthorized campaign expenditures and authorized informational activities is often unclear. “In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor, and timing of the publication; no hard and fast rule governs every case.”[19]

In one case, the trustees of the Madera Union High School District spent public funds to place a full-page advertisement in a general circulation newspaper one day before a school board election. The advertisement did not expressly advocate voters to “Vote Yes” on the bond issue, but stated in large letters, “A CLASSROOM EMERGENCY EXISTS NOW AT MADERA UNION HIGH SCHOOL,” and listed a number of reasons why additional funds were needed by the school district. The Attorney General concluded that, in light of the “style, tenor and timing” of the advertisement, it was unlawful for the district to have expended public funds for the advertisement.[20]

Question:  Can a school board express its opinion regarding a ballot measure?

 Yes. In Choice-in-Education League v. Los Angeles Unified School District,[21] the court of appeal considered whether it was proper for the school district board of trustees to announce at a public meeting, which was televised, its opposition to a proposed “choice in education” ballot initiative.  In finding that the board’s conduct was legal, the court noted that speakers in favor of the initiative were afforded an opportunity to speak at that board meeting in accordance with the Brown Act. The fact that no one chose to speak in favor of the initiative at the meeting did not bar the board from expressing its view on the initiative.[22]

Note:  The Board may express its opinion in a resolution, but it should refrain from telling voters how to vote.

Districts must be cautious regarding how to disseminate the Board’s opinion because section 7054 does not permit District funds to be spent to further political advocacy.  However, the Board resolution could be posted on the District website in the same manner as other District resolutions.

Question:  Can Districts spend public money to evaluate whether it is appropriate to propose a ballot initiative?

Yes. Because districts are authorized to place certain measures on the ballot, they may spend public money to evaluate whether to do so.

For example, the Attorney General has found that it is permissible for a community college district to spend district funds to hire a consultant for the purpose of evaluating the likelihood of the electorate’s approval of a bond measure.  The express power to propose a bond measure on the ballot when the district board finds it advisable to do so implies that the board has the power to make reasonable expenditures for the purpose of gathering information in order to exercise its discretion in an informed manner.[23] The district may also submit a partisan ballot argument in favor of a bond measure.

Not all pre-campaign public expenditures, however, are permissible.  For example, a district board may not spend district funds on activities that form the basis for an eventual campaign to obtain approval of a bond measure, and district resources may not be used to recruit or organize supporters for a campaign or raise funds for the campaign.

Question: May a District Foundation use privately raised funds to support a ballot campaign?

 Yes, so long as no District funds, personnel or equipment are used in that effort.  Certain contributions may be reportable under the Political Reform Act and the Foundation should consult with its legal advisor as there are significant restrictions on a non-profit corporation’s ability to engage in political activity, the violation of which may result in loss of tax-exempt status.

Question:  May a booster group use District facilities to help sponsor a campaign in support of a school bond measure?

Yes, with conditions. Organizations separate from the school district itself, such as employee, student, or parent organizations, may hold events and disseminate information on school grounds that advocate for or against a measure providing they receive approval to use school facilities for such purposes through the “Civic Center Act.”[24]  Groups or individuals with opposing viewpoints have the same right to use school facilities under the Civic Center Act.  “The First Amendment precludes the government from making public facilities available to only favored political viewpoints; once a public forum is opened, equal access must be provided to all competing factions.”[25]

LOBBYING 

Question:  Can a District spend public money to lobby the Legislature?

Yes. While public agency lobbying efforts undeniably involve the use of public funds to promote causes which some members of the public may not support, one of the primary functions of elected and appointed executive officials is to devise legislative proposals to attempt to implement the current administration’s policies. Because the legislative process contemplates that interested parties will attend legislative hearings to explain the potential benefits or detriments of proposed legislation, public agency lobbying, within the limits authorized by statute, in no way undermines or distorts the legislative process. By contrast, the use of the public treasury to mount an election campaign which attempts to influence the resolution of issues which our Constitution leaves to the “free election” of the people does present a serious threat to the integrity of the electoral process.[26]

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.

 © 2022 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] See Educ. Code section 7051: “Local agency” means a county superintendent of schools, an elementary, high, or unified school district, or a community college district.

[2] For purposes of this memo, “District” shall be understood to include K-12 school districts, county offices of education and community college districts.

[3] San Leandro Teachers Association v. Governing Board, 46 Cal.4th. 822 (2009).

[4] See Government Code section 81002, subd. (e).

[5] Government Code section 89001.

[6] Watson v. Fair Political Practices Commission (1990) 217 Cal.App.3d 1059, 1074-75.

[7] For purposes of section 3206, local agency is defined as “a county, city, city and county, political subdivision, district other than a school district, or municipal corporation.” Gov’t. Code § 3202.

[8] Los Angeles Teachers Union, etc. v. Los Angeles City Bd. of Ed., 71 Cal.2d 551, 560 (1969); Adcock v. Board of Education, 10 Cal.3d 60, 65 (1973).

[9] Emphases added. Contributions of money, materials, and time to a political campaign are subject to the Political Reform Act, and donors and recipients must comply with certain reporting requirements.

[10] California Teachers Association v. Governing Board, 45 Cal.App.4th 1383 (1998).

[11] 84 Ops. Cal. Atty. Gen. 106 (2001).

[12] 24 PERC 31053 (2000).

[13] 29 PERC 40 (2004).

[14] See CSEA v. Desert Community College District, 31 PERC 137 (2007).

[15] See Education Code section 7053 and Government Code section 3204.

[16] Government Code section 3205.

[17] See Government Code section 6254.3.

[18] Vargas v. City of Salinas, 46 Cal.4th 1, 25 (2009)(citing Citizens to Protect Public Funds v. Board of Education, 98 A.2d 673 (1953)).

[19] Vargas v. City of Salinas 46 Cal.4th at 25.

[20] Stanson v. Mott, 17 Cal.3d 206 (citing 35 Ops. Cal. Atty. Gen 112 (1960)).

[21] Choice-in-Education League v. Los Angeles Unified School District (1993) 17 Cal.App.4th 415.

[22] Choice-in-Education League, supra, 17 Cal.App.4th at 429. See also Vargas v. City of Salinas, supra.

[23] 88 Ops. Cal. Atty. Gen. 46 (2005).

[24] Education Code sections 38130 (K-12 districts) and 82537 (community colleges).

[25] Stanson v. Mott (1976) 17 Cal.3d 206, 219 (1976).

[26] Stanson v. Mott (1976) 17 Cal.3d 206 at 218.

Legal Update Memo No. 26-2022 – Frequently Asked Questions Regarding Political Activities for Local Educational Agencies, Employees, and Candidates (K-12)

Download PDF: 26-2022 – FAQ Regarding Political Activities for Local Educational Agencies, Employees, and Candidates (EES)

 

With Election Day just weeks away, our office is recirculating the Frequently Asked Questions Regarding Political Activities for Local Educational Agencies, Employees, and Candidates legal update.

AGENCY[1] RESOURCES

Question:  Can District[2] funds or supplies be used to urge support for or defeat of an upcoming ballot measure or candidate?

No.  Education Code section 7054, subdivision (a) provides:

No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.

And, subdivision (c) imposes criminal penalties for a violation of this Section.

In addition, Government Code section 8314 provides that “[i]t is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity…”

Question:  May a District prohibit the use of District mailboxes to distribute campaign materials?

Yes. Under Education Code section 7054, a District may prohibit the use of campus mailboxes for distribution of materials urging the support or defeat of any ballot measure or candidate.  In San Leandro Teachers Association v. Governing Board,[3] the California Supreme Court upheld a school district’s prohibition of the use of internal faculty mailboxes by the teacher’s union as a means of distributing partisan political information to its members.  However, the Court noted that section 7054 does not prohibit a school board from opening up mailboxes to political endorsement literature, as long as this is done “on an equitable basis.”

Question:  May the District fund a “mass mailing” that features an elected official?

No. The Political Reform Act of 1974 was intended to abolish practices that unfairly favor incumbents.[4]  One means of preventing unfair advantage for an incumbent is the prohibition on use of public funds for mass mailings that “feature” the elected official.  Thus, “no newsletter or other mass mailing shall be sent at public expense.”[5]

The “mass mailing” restrictions are designed to prohibit “elected officials from using public moneys to perpetuate themselves in public office.”[6]

Government Code section 89002 defines a “mass mailing” for purposes of section 89001 as follows:

(1) A tangible item delivered, by any means, to the recipient at the recipient’s residence, place of employment or business, or post office box.

(2) The item either: (A) Features an elected officer affiliated with the agency that produces or sends the mailing; [or] (B) Includes the name, office, photograph, or other reference to an elected officer affiliated with the agency that produces or sends the mailing, and is prepared or sent in cooperation, consultation, coordination, or concert with the elected officer.

(3) The costs of distribution are paid for with public money or the costs of design, production, and printing exceeding fifty dollars ($50) are paid with public moneys, and the design, production, or printing is done with the intent of sending the item other than as permitted by this section.

(4) More than 200 substantially similar items are sent in a single calendar month.

PUBLIC EMPLOYEES: POLITICAL ACTIVITIES AND EXPRESSION

Question:  May a public employee engage in political activities while wearing a uniform utilized in his/her public employment?

No. See Government Code section 3206.[7]

Question:  Can District employees engage in political activities during off-duty time?

Yes. Political activities are allowed during off-duty time so long as District resources are not used.  No political activities are allowed during work time.

Teachers have the right to discuss with fellow teachers issues of public concern (such as cutbacks to educational funding) in faculty rooms and lunchrooms during duty-free periods.[8]

Education Code section 7056 provides:

(a) Nothing in this article prevents an officer or employee of a local agency from soliciting or receiving political funds or contributions to promote the support or defeat a ballot measure that would affect the rate of pay, hours of work, retirement, civil service, or other working conditions of officers or employees of the local agency.  These activities are prohibited during working hours.  In addition, entry into buildings and grounds under the control of a local agency for such purposes during working hours is also prohibited.

(b) Nothing in this section shall be construed to prohibit any recognized employee organization or its officers, agents, and representatives from soliciting or receiving political funds or contributions from employee members to promote the support or defeat of any ballot measure on school district property or community college district property during nonworking time.  As used in this subdivision, “nonworking time” means time outside an employee’s working hours, whether before or after school or during the employee’s luncheon period or other scheduled work intermittency during the school day.[9]

Education Code section 7055 provides:

The governing body of each local agency may establish rules and regulations on the following:

(a) Officers and employees engaging in political activity during working hours.

(b) Political activities on the premises of the local agency.

Question:  Can a District regulate the wearing of political buttons by employees or other political expression by employees while on duty?

Yes. A District can restrict political activities that occur during instructional activities, but not during non-instructional time, such as a lunch break.

In California Teachers Association v. Governing Board,[10] the court held that under Education Code section 7055, a school district could prohibit its employees from wearing political buttons during “instructional activities.” This case considers the interplay between section 7055’s grant of authority to regulate employee political activity and constitutional free speech guarantees.  The court concluded that these constitutional rights should be read to limit regulation of political advocacy under section 7055 to instructional settings:  “Under the California Constitution, as well as the First Amendment, school authorities retain the power to dissociate themselves from political controversy by prohibiting their employees from engaging in political advocacy in instructional settings.”  The court also expressly held that “as applied to non-instructional settings [the] district’s regulation is unconstitutional but that in instructional settings it may be enforced.”  See also 77 Ops. Cal. Atty. Gen 56 (1994).

Question:  Can a school district prohibit teachers from wearing political buttons while attending Back to School Night, where teachers meet only with parents? 

No. “The event does not involve an instructional setting for pupils of the district.  Rather, the parents are in attendance to show support for their children’s educational activities.  In this setting, it need not be feared that ‘young and impressionable minds’ will be unduly influenced by teachers wearing political buttons or that the parents will believe that the teachers’ political buttons reflect the view of the district’s government board or other school officials.”[11]

Question:  Can an employee be prohibited from displaying a large campaign sign on her private car in the District lot?

Yes. In one case, an employee’s vehicle displayed a two-by-eight foot sign indicating which school board candidates the union endorsed in order to influence voters in the upcoming election.  The district’s request that the sign be removed or the vehicle parked off school property was challenged as an unfair labor practice and ultimately addressed by the California Public Employment Relations Board (“PERB”).  Under the circumstances of the case, PERB found the school’s actions seeking removal of either the sign or the vehicle were permissible under section 7055.[12]

Question:  Can teachers wear union buttons while in the classroom?

Yes. PERB has held that school districts cannot prohibit teachers from wearing union buttons in the classroom absent “special circumstances.”  One such circumstance might be “distraction,” but PERB found that the district in that case failed to establish distraction as a special circumstance justifying its ban on union buttons.  In addition, PERB rejected the employer’s contention that the buttons at issue could be considered “political activity” within the meaning of Education Code section 7055.[13]

Question:  May a union group conduct a meeting at a school site when one of the topics is whether to support a school board member’s candidacy?

Yes.[14]

Question:  If a District employee makes a political contribution, is that reportable?

Contributions to a political campaign may be subject to reporting requirements of the Political Reform Act.  There are extensive regulations on this subject available on the Fair Political Practices Commission website.

CANDIDATES/INCUMBENTS

Question:  Can incumbents send campaign e-mails from or to District e-mail addresses?

No. Candidates who have District e-mail accounts should not use those accounts to send campaign materials.  However, as detailed in the next question, a candidate may use their private email account to send a mass e-mail that targets a significant segment of the public even if some of those contacted are District employees.

Incumbents are also encouraged to be aware of agency policies regarding using the symbols, or indicia of your office such as an official’s title or the agency seal.  Candidates for re-election should be clear in campaign materials that use of an official title is for identification purposes only.

Question:  May a candidate send letters to District employees seeking support?

Candidates should not initiate contact with District employees in an attempt to enlist their support for the campaign; these actions may cause undue pressure on the employee to engage in the political activity.

However, the candidate may send “mass mailings” that target a significant segment of the public even if some of those contacted are District employees.  Mailing lists should be obtained from a public source, not from the District.

Question:  May a candidate promise an employee a promotion in exchange for his/her support of the candidate?

No. Persons who hold office, or who are seeking election to office, may not threaten adverse consequences to District employees if they fail to support them, or promise advantages or benefits to District employees who do support them.[15]

Question:  May a candidate seek political contributions from District employees?

No. Current district employees and candidates for elective office shall not solicit political contributions from other district officers or employees unless “the solicitation is part of a solicitation made to a significant segment of the public . . . ”  It does not matter whether the solicitation is direct or indirect.[16]

Question:  May a candidate obtain from the District the home addresses of District employees to send them campaign material?

No. A candidate for the Board may not access employee home addresses from the District.  They are not public records.[17] If an incumbent used his or her public position to do so, it would be a violation of Education Code section 7054.

Question:  May a candidate initiate contact with parents or boosters to enlist support?

Yes. A candidate for office has the right to meet with members of the general public to enlist support.  The “general public” includes parents and boosters.

Question:  May a candidate address an employee group on site?

Candidates or proponents are allowed to do this only at the invitation of the employee group and only during reasonable non-working hours.

Question:  May a candidate attend school events such as back to school night to enlist support?

This is allowed with certain restrictions and should be accompanied by an approved Use of School Facilities permit.  The main restriction is that the presence may not interfere or disrupt the school event itself.  Typically a candidate or proponent is provided a table in a lobby area to display campaign materials and to discuss campaign issues only if approached by an interested party.  Candidates or proponents shall not initiate interactions with staff or participants attending the school event.  Such attendance would be open to all candidates.

Question:  May a candidate meet with a District official during school hours?

Yes, so long as the meeting is not disruptive, so long as the subject matter is limited to discussing school business (i.e. not campaigning), and so long as the school official is available to meet with other candidates as well.

Candidates who are seeking re-election should be aware that staff time is a District resource. As such, incumbents are encouraged to keep in mind that if you wouldn’t ask a District official for this discussion or to look into a matter if you weren’t running for re-election, it is a misuse of District resources to look into it because you are running for re-election.

Question:  May the candidate seek contributions from vendors of the District?

While a private vendor has a right to make political contributions consistent with legal requirements, a candidate must be careful to avoid the appearance of “pay to play” or a quid pro quo when seeking a contribution from a vendor.

BALLOT MEASURES

Question:  Can a District use District money to send an informational letter to the public about a ballot measure?

Yes. Education Code section 7054, subdivision (b) provides:

Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met:

(1) The informational activities are otherwise authorized by the Constitution or laws of this state.

(2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.”  (Emphasis added.)

An impartial presentation of the facts will necessarily include all consequences, good and bad, of the proposal, not only the anticipated improvement in educational opportunities, but also the increased tax rate and such other less desirable consequences that may be foreseen.[18]

Question:  What are some examples of “informational” materials paid for with public money that have been found to be illegal?

The line between unauthorized campaign expenditures and authorized informational activities is often unclear. “In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor, and timing of the publication; no hard and fast rule governs every case.”[19]

In one case, the trustees of the Madera Union High School District spent public funds to place a full-page advertisement in a general circulation newspaper one day before a school board election. The advertisement did not expressly advocate voters to “Vote Yes” on the bond issue, but stated in large letters, “A CLASSROOM EMERGENCY EXISTS NOW AT MADERA UNION HIGH SCHOOL,” and listed a number of reasons why additional funds were needed by the school district. The Attorney General concluded that, in light of the “style, tenor and timing” of the advertisement, it was unlawful for the district to have expended public funds for the advertisement.[20]

Question:  Can a school board express its opinion regarding a ballot measure?

Yes. In Choice-in-Education League v. Los Angeles Unified School District,[21] the court of appeal considered whether it was proper for the school district board of trustees to announce at a public meeting, which was televised, its opposition to a proposed “choice in education” ballot initiative.  In finding that the board’s conduct was legal, the court noted that speakers in favor of the initiative were afforded an opportunity to speak at that board meeting in accordance with the Brown Act. The fact that no one chose to speak in favor of the initiative at the meeting did not bar the board from expressing its view on the initiative.[22]

Note:  The Board may express its opinion in a resolution, but it should refrain from telling voters how to vote.

Districts must be cautious regarding how to disseminate the Board’s opinion because section 7054 does not permit District funds to be spent to further political advocacy.  However, the Board resolution could be posted on the District website in the same manner as other District resolutions.

Question:  Can Districts spend public money to evaluate whether it is appropriate to propose a ballot initiative?

Yes. Because districts are authorized to place certain measures on the ballot, they may spend public money to evaluate whether to do so.

For example, the Attorney General has found that it is permissible for a community college district to spend district funds to hire a consultant for the purpose of evaluating the likelihood of the electorate’s approval of a bond measure.  The express power to propose a bond measure on the ballot when the district board finds it advisable to do so implies that the board has the power to make reasonable expenditures for the purpose of gathering information in order to exercise its discretion in an informed manner.[23] The district may also submit a partisan ballot argument in favor of a bond measure.

Not all pre-campaign public expenditures, however, are permissible.  For example, a district board may not spend district funds on activities that form the basis for an eventual campaign to obtain approval of a bond measure, and district resources may not be used to recruit or organize supporters for a campaign or raise funds for the campaign.

Question: May a District Foundation use privately raised funds to support a ballot campaign?

Yes, so long as no District funds, personnel or equipment are used in that effort.  Certain contributions may be reportable under the Political Reform Act and the Foundation should consult with its legal advisor as there are significant restrictions on a non-profit corporation’s ability to engage in political activity, the violation of which may result in loss of tax-exempt status.

Question:  May a booster group use District facilities to help sponsor a campaign in support of a school bond measure?

Yes, with conditions. Organizations separate from the school district itself, such as employee, student, or parent organizations, may hold events and disseminate information on school grounds that advocate for or against a measure providing they receive approval to use school facilities for such purposes through the “Civic Center Act.”[24]  Groups or individuals with opposing viewpoints have the same right to use school facilities under the Civic Center Act.  “The First Amendment precludes the government from making public facilities available to only favored political viewpoints; once a public forum is opened, equal access must be provided to all competing factions.”[25]

LOBBYING

Question:  Can a District spend public money to lobby the Legislature?

Yes. While public agency lobbying efforts undeniably involve the use of public funds to promote causes which some members of the public may not support, one of the primary functions of elected and appointed executive officials is to devise legislative proposals to attempt to implement the current administration’s policies. Because the legislative process contemplates that interested parties will attend legislative hearings to explain the potential benefits or detriments of proposed legislation, public agency lobbying, within the limits authorized by statute, in no way undermines or distorts the legislative process. By contrast, the use of the public treasury to mount an election campaign which attempts to influence the resolution of issues which our Constitution leaves to the “free election” of the people does present a serious threat to the integrity of the electoral process.[26]

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.

© 2022 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] See Educ. Code section 7051: “Local agency” means a county superintendent of schools, an elementary, high, or unified school district, or a community college district.

[2] For purposes of this memo, “District” shall be understood to include K-12 school districts, county offices of education and community college districts.

[3] San Leandro Teachers Association v. Governing Board, 46 Cal.4th. 822 (2009).

[4] See Government Code section 81002, subd. (e).

[5] Government Code section 89001.

[6] Watson v. Fair Political Practices Commission (1990) 217 Cal.App.3d 1059, 1074-75.

[7] For purposes of section 3206, local agency is defined as “a county, city, city and county, political subdivision, district other than a school district, or municipal corporation.” Gov’t. Code § 3202.

[8] Los Angeles Teachers Union, etc. v. Los Angeles City Bd. of Ed., 71 Cal.2d 551, 560 (1969); Adcock v. Board of Education, 10 Cal.3d 60, 65 (1973).

[9] Emphases added. Contributions of money, materials, and time to a political campaign are subject to the Political Reform Act, and donors and recipients must comply with certain reporting requirements.

[10] California Teachers Association v. Governing Board, 45 Cal.App.4th 1383 (1998).

[11] 84 Ops. Cal. Atty. Gen. 106 (2001).

[12] 24 PERC 31053 (2000).

[13] 29 PERC 40 (2004).

[14] See CSEA v. Desert Community College District, 31 PERC 137 (2007).

[15] See Education Code section 7053 and Government Code section 3204.

[16] Government Code section 3205.

[17] See Government Code section 6254.3.

[18] Vargas v. City of Salinas, 46 Cal.4th 1, 25 (2009)(citing Citizens to Protect Public Funds v. Board of Education, 98 A.2d 673 (1953)).

[19] Vargas v. City of Salinas 46 Cal.4th at 25.

[20] Stanson v. Mott, 17 Cal.3d 206 (citing 35 Ops. Cal. Atty. Gen 112 (1960)).

[21] Choice-in-Education League v. Los Angeles Unified School District (1993) 17 Cal.App.4th 415.

[22] Choice-in-Education League, supra, 17 Cal.App.4th at 429. See also Vargas v. City of Salinas, supra.

[23] 88 Ops. Cal. Atty. Gen. 46 (2005).

[24] Education Code sections 38130 (K-12 districts) and 82537 (community colleges).

[25] Stanson v. Mott (1976) 17 Cal.3d 206, 219 (1976).

[26] Stanson v. Mott (1976) 17 Cal.3d 206 at 218.

Legal Update Memo No. 17-2022(CC) – 2022 Governing Board Elections and Organizational Meetings and Frequently Asked Questions (CC)

Download PDF: 17-2022(CC) – 2022 Governing Board Elections and Organizational Meetings and FAQs (JH)

ORGANIZATIONAL MEETINGS

(Education Code Section 35143)

Each school district and county office of education is required to hold an annual organizational meeting. In an election year, a school district organizational meeting must be held on a day within the fifteen (15) day period that commences with the date upon which a governing board member elected at that election takes office (the second Friday in December). In years in which no regular election for governing board members is conducted, the organizational meeting is held during that same fifteen day period. Exceptions to this rule are discussed below. This year, the date on which elected trustees will take office is December 9, 2022 (per FAQ #6 below).

Organizational meetings should be held as follows:

  1. Governing Boards of School Districts

The organizational meeting must be held within 15 days of the second Friday in December. Unless otherwise provided by a rule of the Governing Board, the date of the organizational meeting must be selected by the Board at its regular meeting held immediately prior to December 1st (presumably the regular November board meeting).

Since this year is an election year, the organizational meeting must, therefore, be held between December 9, 2022 and December 24, 2022. 

  1. Governing Boards of School Districts Governed by a City Charter

These Boards have the option of holding their organizational meetings as described above, or may hold their organizational meeting between December 15th and January 14th, if so provided by the Governing Board rules.

  1. County Boards of Education

For those boards holding an organizational meeting following the November election, their organizational meetings will now be held on the second Friday in December instead of at the end of November. For boards whose members are elected in June, the organizational meeting remains July 1. (Education Code § 1009.)

Board Member Term of Office

(Education Code Section 1007 and 5017)

County Boards of Education:

Starting in 2019, the date on which outgoing members’ terms of office end, and on which newly- elected members take office, is moved from the last Friday in November to the second Friday in December. The terms of office of county board members elected at the California primary (whether in March or June) will continue to commence on the first day of July.

Likewise, the law has changed the date for county board organizational meetings from the last Friday in November to the second Friday in December. For those county boards with members elected at the primary, their organizational meeting remains the first board meeting held after July 1.

School Districts:

For school district board members, the 2019 amendment to Education Code section 5017 changes the last day of an incumbent trustee’s term of office, and the first day of a newly-elected trustee’s term, from the first Friday in December to the second Friday in December.

Because all of these changes to the terms of office—for county board and school board—lengthen the terms of office for board members slightly, any incumbent’s term of office will simply be extended by that additional time beginning in December 2019 and thereafter, depending on when the term of office would otherwise have expired. For example, someone elected in 2022 will commence office on December 9, 2022. Incumbents’ terms of office were similarly extended – where previously an incumbent’s term would have expired on December 2, 2022, under the new law that person’s term will now expire December 9, 2022. County board members, the only local body whose terms of office previously began and ended in November, will have their terms of office extended by approximately two weeks, and terms will now match those of school boards.

Election Issues

Districts with the governing board elections scheduled for 2022 should be aware of the following information:

  1. Number of Candidates Less Than or Equal to the Number of Board Seats

No election is held. The existing Board members continue to serve until the organizational meeting of the Board, at which time the candidate(s) are seated and become Board members. (Education Code §§ 5326 and 5328.)

  1. No Candidates or Insufficient Candidates for Number of Seats Vacant

Seats for which there are sufficient candidates are discussed above. For those seat(s) for which there are no candidates, the Board must appoint. It is important to note that, except for seats which have been specifically designated two-year seats, an appointment to a governing board seat due to lack of a candidate or candidates is a four-year appointment.

The appointment must be made prior to the election. Prior to making the appointment,

“. . . the governing board shall cause to be published a notice once in a newspaper of general circulation published in the district or, if no such newspaper is published in the district, in a newspaper having general circulation in the district, stating that the board intends to make an appointment and informing persons of the procedure available for applying for the office.” (Education Code section 5328.5.)

  1. Changing the Election Cycle from Odd-Year to Even-Year

Until 2018, the “default” for school districts and community college districts under the Elections Code was to hold elections in odd-numbered years. In 2015, AB 415 was signed into law, and required most local entities that formerly held their elections in odd-numbered years to move them to even-numbered years. Those districts that were required to do so but did not want to make the change-over immediately were required to adopt a plan, by January 1, 2018, to make this change by the November 2022 election. Any districts that have not made the switch and need assistance in doing so should contact our office for further information and assistance.

Because most entities that were required to make this change have either already done so or have adopted the required plan, this Legal Update does not address how to switch an election cycle from odd-numbered to even-numbered years. Any districts that need assistance in doing so before the November 2022 deadline should contact our office for further information and assistance.

FREQUENTLY ASKED QUESTIONS

Eligibility to Hold Office

  1. What are the qualifications to be elected/appointed to a school board?

Education Code section 35107, subdivision (a) provides as follows:

(a) Any person, regardless of sex, who is 18 years of age or older, a citizen of the state, a resident of the school district, a registered voter, and who is not disqualified by the Constitution or laws of the state from holding a civil office, is eligible to be elected or appointed a member of a governing board of a school district without further qualifications.

  1. Can employees of the school district serve on the governing board?

No.  Education Code section 35107, subdivision (b)(1) provides as follows:

An employee of a school district may not be sworn into office as an elected or appointed member of that school district’s governing board unless and until he or she resigns as an employee.  If the employee does not resign, the employment will automatically terminate upon being sworn into office.

  1. Are there limitations on the employment of a spouse or other relatives of a board member?

Yes. Under Government Code sections 1090-1099, a long-term school district employee whose spouse is appointed to or elected to the district’s governing board may not be promoted by the board. “Long-term” means that the employee has served for one year or more. (Government Code section 1091.5(a)(6).) The spouse of a new employee, i.e., someone with less than one year of employment at the district in question, may not be elected or appointed to the board unless the other spouse resigns his or her employment first.

In other words, if a spouse has been an employee of the district for at least one year, then the non-employee spouse may be elected or appointed to serve on the governing board. Even if the employee-spouse meets this requirement, the board will not be able to take action affecting the spouse’s employment status. For example, the employee-spouse could not be promoted, changed from a temporary to a regular employee, or have his or her position selectively reclassified while the other spouse is a board member. Furthermore, under the Political Reform Act (Government Code section 87100 et seq.), the board-member spouse would have to abstain from any discussion or participation in any decision that would uniquely affect the employee-spouse. You should also check your LEA’s Board Bylaw that addresses Conflicts of Interest and may impose any additional restrictions (typically BB 9270).

  1. Are there term limits for school board members?

There can be, but only if the voters choose to impose them. Education Code section 35107, subdivision (c) provides as follows (emphasis added):

Notwithstanding any other provision of law, the governing board of a school district may adopt or the residents of the school district may propose, by initiative, a proposal to limit or repeal a limit on the number of terms a member of the governing board of the school district may serve on the governing board of the school district. Any proposal to limit the number of terms a member of the governing board of the school district may serve on the governing board of the school district shall apply prospectively only and shall not become operative unless it is submitted to the electors of the school district at a regularly scheduled election and a majority of the votes cast on the question favor the adoption of the proposal.

Therefore, unless action is taken as set forth in section 35107 (c), term limits do not apply to school district governing boards.

  1. May a school board member hold another public office?

The answer depends on whether the other public office has “potentially overlapping public duties” with the school board position. Where there is potential for overlapping duties, the common law doctrine of “incompatible” offices prevents one person from holding both offices. By way of example, a board member of a “feeder” elementary school district cannot at the same time also serve as a board member of that elementary district’s high school district.  (See 68 Ops.Cal.Atty.Gen. 171 (1985).)

Government Code section 1099 prohibits holding incompatible offices much like the common law rule. Prior attorney general’s opinions and judicial interpretation of the common law rule continue to aid in the application of this statute. As of 2021, the California Attorney General’s office opined that Section 1099 applies to charter school employees, administrators, and board members as well, such that a charter school Executive Director may not serve as a member of the county board of education in the county where their employing school is located. (104 Ops.Cal.Atty.Gen. 66 (2021).)

Term of Office

Note: The responses set forth below may not apply to school district elections that are subject to the provisions of a city charter. Districts governed by a city charter should always review the charter to determine whether it governs the district’s elections.

  1. When does the term of office begin?

Education Code section 5017 provides as follows[1] (emphasis added):

Each person elected at a regular biennial governing board member election shall hold office for a term of four years commencing on the second Friday in December next succeeding his or her election. Any member of the governing board of a school district or community college district whose term has expired shall continue to discharge the duties of the office until his or her successor has qualified. The term of the successor shall begin upon the expiration of the term of his or her predecessor.

Additionally, Elections Code section 10554 provides that elective officers, elected or appointed pursuant to this part, take office at noon on the first Friday in December next following the general district election. Prior to taking office, each elective officer shall take the official oath and execute any bond required by the principal act.

However, because Education Code section 5300 provides that provisions of the Elections Code apply to school district and community college district elections “except as otherwise provided in the code,” the 2018 amendments to sections 1007, 5017, and 72027 regarding commencement of the terms of office on the second Friday in December will take precedence over Elections Code section 10554.

  1. Is there a different rule for when the term of office begins for County Boards of Education?

Yes. Education Code section 1007, subdivision (a) provides: “Members [of county boards of education] elected at the time of the direct primary shall take office on the first day of July, and members elected at the date on which members of school district governing boards are elected shall take office on the second Friday in December subsequent to their election.” Thus, the first day of the term of incoming board members who were elected in June 2022 is July 1, 2022 and for those elected in November 2022, their first day is December 9, 2022.

The organizational meeting for County Board trustees is either the first meeting on or after the first day in July (for those elected at the June primary) or the second Friday in December (for those elected in November).

Awaiting the organizational meeting is done purely for ceremonial reasons, however, and has no legal effect on the true first day in office of the incoming member (or the last day of office of the outgoing member). Some board members choose to be sworn in privately (e.g., by a notary public) before the organizational meeting. In addition, these statutes permit a district to adopt a local rule of procedure to hold the organizational meeting on a different date, so check your local rules to see if they prescribe a different date.

Oath of Office

  1. Is it necessary for a board member to take an “oath of office”?

Yes. Government Code section 1360 provides as follows:

Unless otherwise provided, following any election or appointment and before any officer enters on the duties of his or her office, he or she shall take and subscribe the oath or affirmation set forth in Section 3 of Article XX[2] of the Constitution of California.

Failure to take the oath of office and file a bond as required by law is one way in which a public office becomes vacant, as provided in Government Code section 1770, subdivision (i).

  1. Who can administer the oath of office to a newly elected/appointed board member?

Any person listed in Education Code section 60 or Government Code section 1362 may administer the oath to a newly elected/appointed board member.

Education Code section 60 provides as follows:

The Superintendent of Public Instruction, Deputy and Assistant Superintendents of Public Instruction, secretary of the Superintendent of Public Instruction, members of the Board of Governors of the California Community Colleges, the Chancellor of the California Community Colleges, county superintendents of schools, school trustees, members of boards of education, secretaries and assistant secretaries of boards of education, city superintendents of schools, district superintendents of schools, assistant superintendents of schools, deputy superintendents of schools, principals of schools, and every other officer charged with the performance of duties under the provisions of this code may administer and certify oaths relating to officers or official matters concerning public schools.

Government Code section 1362 provides as follows:

Unless otherwise provided, the oath may be taken before any officer authorized to administer oaths.

This is a very broad provision – “any officer authorized to administer oaths.” It includes judges, virtually all elected officials, notaries public, and numerous county and state officers.

  1. What happens if the elected/appointed officer fails or refuses to take the oath of office?

Education Code section 5017 provides, in pertinent part, as follows:

. . . Any member of the governing board of a school district or community college district whose term has expired shall continue to discharge the duties of the office until his or her successor has qualified. The term of the successor shall begin upon the expiration of the term of his or her predecessor.

In addition, Government Code section 1302 provides as follows:

Every officer whose term has expired shall continue to discharge the duties of his office until his successor has qualified.

Thus, if an elected or appointed official fails or refuses to take the oath of office, the outgoing board member can continue to discharge the duties of office until a new member qualifies. Conversely, if the office becomes vacant, then the position remains vacant until filled by a qualified candidate, either by appointment or election depending on the procedure to be followed.[3]

  1. When may the oath be taken by a newly elected/appointed school board member?

Elections Code section 10554 provides as follows (emphasis added):

Elective officers, elected or appointed pursuant to this part, take office at noon on the first Friday in December next following the general district election. Prior to taking office, each elective officer shall take the official oath and execute any bond required by the principal act.

Thus, the oath of office may be administered at any time after the election results are certified by the county clerk. This is typically done at the district’s organizational meeting, but once elected, a new board member can choose to be sworn in earlier, as discussed above.

  1. How long does the county clerk have to certify the election results?

Elections Code section 15372 provides as follows:

The elections official shall prepare a certified statement of the results of the election and submit it to the governing body within 30 days of the election or, in the case of school district, community college district, county board of education, or special district elections conducted on the first Tuesday after the first Monday in November of odd-numbered years, no later than the last Monday before the last Friday of that month.

Elections Code sections 15400 and 15401 provides as follows:

The governing body shall declare elected or nominated to each office voted on at each election under its jurisdiction the person having the highest number of votes for that office, or who was elected or nominated under the exceptions noted in Section 15452. The governing board shall also declare the results of each election under its jurisdiction as to each measure voted on at the election.

The elections official shall make out and deliver to each person elected or nominated, as declared by the governing body, a certificate of election or nomination, signed and authenticated by the elections official.

  1. What are the rules with respect to the annual organizational meeting?

Education Code section 35143 provides as follows:

(a) The governing board of each school district shall hold an annual organizational meeting. In a year in which a regular election for governing board members is conducted, the meeting shall be held on a day within a 15-day period that commences with the second Friday in December following the regular election. Organizational meetings in years in which no such regular election for governing board members is conducted shall be held on any date in December, but no later than December 20. Unless otherwise provided by rule of the governing board, the day and time of the annual meeting shall be selected, in a year in which a regular election for governing board members is conducted, by the board at its regular meeting held immediately before the first day of such 15-day period, or in a year in which no such regular election for governing board members is conducted, by the board at its last regular meeting held immediately before the organizational meeting. The board shall notify the county superintendent of schools of the day and time selected. The clerk of the board shall, within 15 days before the date of the annual meeting, notify in writing all members and members-elect of the date and time selected for the meeting.

(b) If the board fails to select a day and time for the meeting, the county superintendent of schools having jurisdiction over the district shall, before the first day of such 15-day period and after the regular meeting of the board held immediately before the first day of such 15-day period, designate the day and time of the annual meeting. The day designated shall be within the 15-day period. The county superintendent of schools shall notify in writing all members and members-elect of the date and time.

(c) At the annual meeting the governing board of each high school district, union high school district, and joint union high school district shall organize by electing a president from its members and a clerk.

(d) At the annual meeting each city board of education shall organize by electing a president from its members.

(e) At the annual meeting the governing board of each other type of school district, except a community college district, shall elect one of its members clerk of the district.

(f) As an alternative to the procedures set forth in this section, a city board of education whose members are elected in accordance with a city charter for terms of office commencing in December, may hold its annual organizational meeting required in this section between December 15 and January 14, inclusive, as provided in rules and regulations that shall be adopted by such board. At the annual meeting the city board of education shall organize by electing a president and vice president from its members who shall serve in such office during the period January 15 next to the following January 14, unless removed from such office by majority vote of all members of the city board of education.

Note that, as discussed in section 7 above, section 35143 permits a district, by local rule, to choose a different date for its organizational meeting.

  1. At the organizational meeting which board members (e.g., outgoing or incoming) convene the meeting?

Where the oath of office is administered at the organizational meeting, the outgoing board may convene the meeting, the oath(s) may be administered, and then the board with new members seated would complete the remainder of the agenda. If a new member or members have taken the oath of office prior to the organizational meeting, the meeting should convene with any previously-sworn members sitting with the board.

Brown Act

  1. Does the Brown Act apply to newly elected members before they take office?

Yes.  Government Code section 54952.1 provides as follows:

Any person elected to serve as a member of a legislative body who has not yet assumed the duties of office shall conform his or her conduct to the requirements of this chapter and shall be treated for purposes of enforcement of this chapter as if he or she has already assumed office.

The reference to “elected to serve” arguably applies once the county clerk has certified the election results (See Elections Code sections 15372, 15400 and 15401, set forth above).

Board Member Resignation

  1. May a school board member resign from his/her office?

Yes. Government Code section 1770(c) provides that “[a]n office becomes vacant. . . [upon the incumbent’s] resignation.”

  1. How does a school board member resign?

Education Code section 5090 provides that “a vacancy resulting from resignation occurs when the written resignation is filed with the county superintendent of schools . . .” (Emphasis added.)

Please note that resignations that are not filed with the county superintendent of schools are not effective.

  1. Is it necessary for the school board to take action to accept a member’s resignation?

No. As noted above the resignation is effective upon the county superintendent of schools’ receipt of the written resignation.

Some governing board meetings do have public agenda items to “accept” a member’s resignation. This is usually done for purposes of creating an occasion to honor a departing board member and is purely ceremonial with no legal significance.

  1. May a board member rescind a written resignation once it is filed with the county superintendent of schools?

No. Education Code section 5090 provides that a “written resignation . . . shall, upon being filed with the county superintendent of schools be irrevocable.”

  1. What constitutes “filing” a resignation with the county superintendent?

A resignation is filed with the county superintendent upon physical receipt by the county superintendent’s office of a writing indicating a resignation.

  1. May a board member defer the effective date of a resignation?

Yes. Education Code section 5090 provides that a board member’s written resignation may indicate a “deferred effective date.” Section 5091 provides further that the resignation may not be deferred “for more than 60 days after he or she files the resignation with the county superintendent of schools.”

  1. Would an e-mail or facsimile transmission constitute a written resignation?

The law is unclear, however likely yes. The law applicable to resignations has not been amended to provide for electronic or facsimile substitution for written resignations, however Evidence Code section 250 defines a “writing” to include an electronic transmission. Therefore, such a method would likely be sufficient. We recommend that districts contact their county superintendent of schools for further clarification.

  1. What is the effective date of a resignation?

Unless the resignation contains a “deferral” date, the effective date of a written resignation is the date it is actually received by the county superintendent’s office.

  1. Are there any limits on the role of a board member who files with the county superintendent a written resignation with a deferred effective date?

Yes.  Education Code section 35178 provides as follows (emphasis added):

A member of the governing board of a school district who has tendered a resignation with a deferred effective date pursuant to Section 5090 shall, until the effective date of the resignation, continue to have the right to exercise all powers of a member of the governing board, except that such member shall not have the right to vote for his or her successor in an action taken by the board to make a provisional appointment pursuant to Section 5091.

Note: This prohibition applies only to the actual vote and does not appear to preclude the member whose resignation is pending from participating in the selection process or board discussion of who to appoint.

  1. What does a school board need to do after learning of a resignation from one of its members?

Education Code section 5091 provides that the governing board “shall, within 60 days of the vacancy or the filing of the deferred resignation, either order an election or make a provisional appointment to fill the vacancy.”

Note: The 60 days starts to run when the resignation is received by the county superintendent even if the resignation contains a deferred effective date.

The governing board must also make sure that the person provisionally appointed to the position is “qualified” under Education Code section 35107 as discussed in more detail above.

  1. May the board meet in closed session to develop questions or interview candidates?

No. Under the Brown Act, all aspects of making a provisional appointment must be done in public session, except where the board appoints an advisory ad hoc committee of less than a quorum of board members and no other members. If an advisory ad hoc committee is appointed it may assist in screening or evaluating applications and preparing interview questions, but may not make any final decisions for the board. (See Government Code section 54952(b).)

The provisional appointment must be put on the public session agenda and the full Board must take action to approve the appointment.

  1. Once the board makes a provisional appointment to fill a vacancy, what happens next?

Education Code section 5092 provides as follows:

Whenever a provisional appointment is made to the governing board of a school district pursuant to Section 5091, the board shall, within 10 days of the provisional appointment of a person to fill a vacancy which occurs or will occur, post notices of both the actual vacancy or the filing of a deferred resignation and also the provisional appointment in three public places in the district and shall publish a notice pursuant to Section 6061 of the Government Code. If there is no newspaper of general circulation published in the district, notice need not be published.

The notice shall state the fact of the vacancy or resignation and the date of the occurrence of the vacancy or the date of the filing of, and the effective date of, the resignation. The notice shall also contain the full name of the provisional appointee to the board and the date of his appointment, and a statement that unless a petition calling for a special election, containing a sufficient number of signatures, is filed in the office of county superintendent of schools within 30 days of the date of the provisional appointment, it shall become an effective appointment.

Thus, the residents of the district whose board has appointed a provisional board member can petition to force a special election—although in practical terms, this rarely happens. Effective 2023, Education Code section 5091 is amended to make it easier to consolidate such a special election with a regularly scheduled election, in order to save election expenses. (SB 1061, 2022)

  1. What happens if vacancies occur in a majority or more of the board seats at the same time?

Education Code section 5094 provides as follows:

If for any reason vacancies should occur in a majority of the offices on any school district or community college district governing board, the president of the county board of education having jurisdiction may appoint members of the county board of education to the district governing board until new members of the governing board are elected or appointed.

Note: At the discretion of the president of the county board of education, appointments may be made in one or more of the vacant positions. In other words, the county board president is not limited to making appointments only sufficient to create a quorum on the district board. Thus, on a five person board with 3 vacancies, the county board president may designate up to 3 members of the county board of education to serve as district board members. Once appointed, the county board members continue to serve as district board members until new members “are elected or appointed.”

  1. May a district board reappoint the same person who resigned from the seat that is vacant?

No. Government Code section 1752, subdivision (a) provides, in pertinent part, as follows:

. . . no person elected or appointed to the governing body of any city, county, or district having an elected governing body, shall be appointed to fill any vacancy on that governing body during the term for which he or she was elected or appointed (emphasis added).

Please note: This provision also prohibits a board member with a “short” term from resigning and being appointed to a vacant “long” term.

  1. If the district chooses to call for written applications from candidates who wish to be considered for appointment, are the submitted applications public records?

Yes. Under the Public Records Act (Government Code section 6250 et seq.[4]) copies of any applications for a board vacancy that are received by the district must be made available for public inspection and copies provided upon request.

Note: Because the applications become public records, we recommend that prospective candidates be so-informed before they submit an application.

  1. If the board chooses to interview candidates one at a time before making an appointment do all candidates have a right to be present?

Under the Brown Act all persons—including candidates for a board appointment—have a right to attend all public sessions of the board.

At the same time the board may request (but not require) the other candidates to remain outside the meeting room until after they are interviewed.

Our experience has been that most candidates honor the request, as they understand the essential fairness of the request, and that the refusal to do so may have an impact on the remaining board members’ willingness to appoint a candidate who refuses to cooperate.

  1. If everything must be done in public session, how does the board develop questions that will not be known in advance by the candidates?

The Brown Act does not provide a ready response to this question. We recommend against using email (or other private communications) among board members to reach a board decision on what questions to ask the candidates.

It is recommended that individual board members submit proposed questions to the board president, who will compile a composite question list. The board can also have such questions referred to an executive officer, such as the superintendent, who can undertake the task of compiling such questions, perhaps in concert with a single board member or an ad hoc committee of the board.

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.

 © 2022 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] Please note that if your district has not yet converted to an even-year election cycle, the rules are slightly different. Please contact legal counsel for additional information if your district is still on an odd-year election cycle.

[2] That is, “Article 20.”

[3] As discussed below, district boards can sometimes make an appointment within 60 days of a vacancy. In other cases, if the vacancy occurs too close to a scheduled election or the end of a member’s term, the vacancy must await an upcoming regular election or a special election.

[4] Beginning January 1, 2023, the Public Records Act will be moved to Government Code sections 7920.000-7931.000, without any substantive changes. (AB 473, 2021).

Legal Update Memo No. 25-2022 – 2022 Governing Board Elections and Organizational Meetings and Frequently Asked Questions (K-12)

Download PDF: 25-2022 – 2022 Governing Board Elections and Organizational Meetings and FAQs (JH)

ORGANIZATIONAL MEETINGS

(Education Code Section 35143)

Each school district and county office of education is required to hold an annual organizational meeting. In an election year, a school district organizational meeting must be held on a day within the fifteen (15) day period that commences with the date upon which a governing board member elected at that election takes office (the second Friday in December). In years in which no regular election for governing board members is conducted, the organizational meeting is held during that same fifteen day period. Exceptions to this rule are discussed below. This year, the date on which elected trustees will take office is December 9, 2022 (per FAQ #6 below).

Organizational meetings should be held as follows:

  1. Governing Boards of School Districts

The organizational meeting must be held within 15 days of the second Friday in December. Unless otherwise provided by a rule of the Governing Board, the date of the organizational meeting must be selected by the Board at its regular meeting held immediately prior to December 1st (presumably the regular November board meeting).

Since this year is an election year, the organizational meeting must, therefore, be held between December 9, 2022 and December 24, 2022. 

  1. Governing Boards of School Districts Governed by a City Charter

These Boards have the option of holding their organizational meetings as described above, or may hold their organizational meeting between December 15th and January 14th, if so provided by the Governing Board rules.

  1. County Boards of Education

For those boards holding an organizational meeting following the November election, their organizational meetings will now be held on the second Friday in December instead of at the end of November. For boards whose members are elected in June, the organizational meeting remains July 1. (Education Code § 1009.)

Board Member Term of Office

(Education Code Section 1007 and 5017)

County Boards of Education:

Starting in 2019, the date on which outgoing members’ terms of office end, and on which newly- elected members take office, is moved from the last Friday in November to the second Friday in December. The terms of office of county board members elected at the California primary (whether in March or June) will continue to commence on the first day of July.

Likewise, the law has changed the date for county board organizational meetings from the last Friday in November to the second Friday in December. For those county boards with members elected at the primary, their organizational meeting remains the first board meeting held after July 1.

School Districts:

For school district board members, the 2019 amendment to Education Code section 5017 changes the last day of an incumbent trustee’s term of office, and the first day of a newly-elected trustee’s term, from the first Friday in December to the second Friday in December.

Because all of these changes to the terms of office—for county board and school board—lengthen the terms of office for board members slightly, any incumbent’s term of office will simply be extended by that additional time beginning in December 2019 and thereafter, depending on when the term of office would otherwise have expired. For example, someone elected in 2022 will commence office on December 9, 2022. Incumbents’ terms of office were similarly extended – where previously an incumbent’s term would have expired on December 2, 2022, under the new law that person’s term will now expire December 9, 2022. County board members, the only local body whose terms of office previously began and ended in November, will have their terms of office extended by approximately two weeks, and terms will now match those of school boards.

Election Issues

Districts with the governing board elections scheduled for 2022 should be aware of the following information:

  1. Number of Candidates Less Than or Equal to the Number of Board Seats

No election is held. The existing Board members continue to serve until the organizational meeting of the Board, at which time the candidate(s) are seated and become Board members. (Education Code §§ 5326 and 5328.)

  1. No Candidates or Insufficient Candidates for Number of Seats Vacant

Seats for which there are sufficient candidates are discussed above. For those seat(s) for which there are no candidates, the Board must appoint. It is important to note that, except for seats which have been specifically designated two-year seats, an appointment to a governing board seat due to lack of a candidate or candidates is a four-year appointment.

The appointment must be made prior to the election. Prior to making the appointment,

“. . . the governing board shall cause to be published a notice once in a newspaper of general circulation published in the district or, if no such newspaper is published in the district, in a newspaper having general circulation in the district, stating that the board intends to make an appointment and informing persons of the procedure available for applying for the office.” (Education Code section 5328.5.)

  1. Changing the Election Cycle from Odd-Year to Even-Year

Until 2018, the “default” for school districts and community college districts under the Elections Code was to hold elections in odd-numbered years. In 2015, AB 415 was signed into law, and required most local entities that formerly held their elections in odd-numbered years to move them to even-numbered years. Those districts that were required to do so but did not want to make the change-over immediately were required to adopt a plan, by January 1, 2018, to make this change by the November 2022 election. Any districts that have not made the switch and need assistance in doing so should contact our office for further information and assistance.

Because most entities that were required to make this change have either already done so or have adopted the required plan, this Legal Update does not address how to switch an election cycle from odd-numbered to even-numbered years. Any districts that need assistance in doing so before the November 2022 deadline should contact our office for further information and assistance.

FREQUENTLY ASKED QUESTIONS

Eligibility to Hold Office

  1. What are the qualifications to be elected/appointed to a school board?

Education Code section 35107, subdivision (a) provides as follows:

(a) Any person, regardless of sex, who is 18 years of age or older, a citizen of the state, a resident of the school district, a registered voter, and who is not disqualified by the Constitution or laws of the state from holding a civil office, is eligible to be elected or appointed a member of a governing board of a school district without further qualifications.

  1. Can employees of the school district serve on the governing board?

No.  Education Code section 35107, subdivision (b)(1) provides as follows:

An employee of a school district may not be sworn into office as an elected or appointed member of that school district’s governing board unless and until he or she resigns as an employee.  If the employee does not resign, the employment will automatically terminate upon being sworn into office.

  1. Are there limitations on the employment of a spouse or other relatives of a board member?

Yes. Under Government Code sections 1090-1099, a long-term school district employee whose spouse is appointed to or elected to the district’s governing board may not be promoted by the board. “Long-term” means that the employee has served for one year or more. (Government Code section 1091.5(a)(6).) The spouse of a new employee, i.e., someone with less than one year of employment at the district in question, may not be elected or appointed to the board unless the other spouse resigns his or her employment first.

In other words, if a spouse has been an employee of the district for at least one year, then the non-employee spouse may be elected or appointed to serve on the governing board. Even if the employee-spouse meets this requirement, the board will not be able to take action affecting the spouse’s employment status. For example, the employee-spouse could not be promoted, changed from a temporary to a regular employee, or have his or her position selectively reclassified while the other spouse is a board member. Furthermore, under the Political Reform Act (Government Code section 87100 et seq.), the board-member spouse would have to abstain from any discussion or participation in any decision that would uniquely affect the employee-spouse. You should also check your LEA’s Board Bylaw that addresses Conflicts of Interest and may impose any additional restrictions (typically BB 9270).

  1. Are there term limits for school board members?

There can be, but only if the voters choose to impose them. Education Code section 35107, subdivision (c) provides as follows (emphasis added):

Notwithstanding any other provision of law, the governing board of a school district may adopt or the residents of the school district may propose, by initiative, a proposal to limit or repeal a limit on the number of terms a member of the governing board of the school district may serve on the governing board of the school district. Any proposal to limit the number of terms a member of the governing board of the school district may serve on the governing board of the school district shall apply prospectively only and shall not become operative unless it is submitted to the electors of the school district at a regularly scheduled election and a majority of the votes cast on the question favor the adoption of the proposal.

Therefore, unless action is taken as set forth in section 35107 (c), term limits do not apply to school district governing boards.

  1. May a school board member hold another public office?

The answer depends on whether the other public office has “potentially overlapping public duties” with the school board position. Where there is potential for overlapping duties, the common law doctrine of “incompatible” offices prevents one person from holding both offices. By way of example, a board member of a “feeder” elementary school district cannot at the same time also serve as a board member of that elementary district’s high school district.  (See 68 Ops.Cal.Atty.Gen. 171 (1985).)

Government Code section 1099 prohibits holding incompatible offices much like the common law rule. Prior attorney general’s opinions and judicial interpretation of the common law rule continue to aid in the application of this statute. As of 2021, the California Attorney General’s office opined that Section 1099 applies to charter school employees, administrators, and board members as well, such that a charter school Executive Director may not serve as a member of the county board of education in the county where their employing school is located. (104 Ops.Cal.Atty.Gen. 66 (2021).)

Term of Office

Note: The responses set forth below may not apply to school district elections that are subject to the provisions of a city charter. Districts governed by a city charter should always review the charter to determine whether it governs the district’s elections.

  1. When does the term of office begin?

Education Code section 5017 provides as follows[1] (emphasis added):

Each person elected at a regular biennial governing board member election shall hold office for a term of four years commencing on the second Friday in December next succeeding his or her election. Any member of the governing board of a school district or community college district whose term has expired shall continue to discharge the duties of the office until his or her successor has qualified. The term of the successor shall begin upon the expiration of the term of his or her predecessor.

Additionally, Elections Code section 10554 provides that elective officers, elected or appointed pursuant to this part, take office at noon on the first Friday in December next following the general district election. Prior to taking office, each elective officer shall take the official oath and execute any bond required by the principal act.

However, because Education Code section 5300 provides that provisions of the Elections Code apply to school district and community college district elections “except as otherwise provided in the code,” the 2018 amendments to sections 1007, 5017, and 72027 regarding commencement of the terms of office on the second Friday in December will take precedence over Elections Code section 10554.

  1. Is there a different rule for when the term of office begins for County Boards of Education?

Yes. Education Code section 1007, subdivision (a) provides: “Members [of county boards of education] elected at the time of the direct primary shall take office on the first day of July, and members elected at the date on which members of school district governing boards are elected shall take office on the second Friday in December subsequent to their election.” Thus, the first day of the term of incoming board members who were elected in June 2022 is July 1, 2022 and for those elected in November 2022, their first day is December 9, 2022.

The organizational meeting for County Board trustees is either the first meeting on or after the first day in July (for those elected at the June primary) or the second Friday in December (for those elected in November).

Awaiting the organizational meeting is done purely for ceremonial reasons, however, and has no legal effect on the true first day in office of the incoming member (or the last day of office of the outgoing member). Some board members choose to be sworn in privately (e.g., by a notary public) before the organizational meeting. In addition, these statutes permit a district to adopt a local rule of procedure to hold the organizational meeting on a different date, so check your local rules to see if they prescribe a different date.

Oath of Office

  1. Is it necessary for a board member to take an “oath of office”?

Yes. Government Code section 1360 provides as follows:

Unless otherwise provided, following any election or appointment and before any officer enters on the duties of his or her office, he or she shall take and subscribe the oath or affirmation set forth in Section 3 of Article XX[2] of the Constitution of California.

Failure to take the oath of office and file a bond as required by law is one way in which a public office becomes vacant, as provided in Government Code section 1770, subdivision (i).

  1. Who can administer the oath of office to a newly elected/appointed board member?

Any person listed in Education Code section 60 or Government Code section 1362 may administer the oath to a newly elected/appointed board member.

Education Code section 60 provides as follows:

The Superintendent of Public Instruction, Deputy and Assistant Superintendents of Public Instruction, secretary of the Superintendent of Public Instruction, members of the Board of Governors of the California Community Colleges, the Chancellor of the California Community Colleges, county superintendents of schools, school trustees, members of boards of education, secretaries and assistant secretaries of boards of education, city superintendents of schools, district superintendents of schools, assistant superintendents of schools, deputy superintendents of schools, principals of schools, and every other officer charged with the performance of duties under the provisions of this code may administer and certify oaths relating to officers or official matters concerning public schools.

Government Code section 1362 provides as follows:

Unless otherwise provided, the oath may be taken before any officer authorized to administer oaths.

This is a very broad provision – “any officer authorized to administer oaths.” It includes judges, virtually all elected officials, notaries public, and numerous county and state officers.

  1. What happens if the elected/appointed officer fails or refuses to take the oath of office?

Education Code section 5017 provides, in pertinent part, as follows:

. . . Any member of the governing board of a school district or community college district whose term has expired shall continue to discharge the duties of the office until his or her successor has qualified. The term of the successor shall begin upon the expiration of the term of his or her predecessor.

In addition, Government Code section 1302 provides as follows:

Every officer whose term has expired shall continue to discharge the duties of his office until his successor has qualified.

Thus, if an elected or appointed official fails or refuses to take the oath of office, the outgoing board member can continue to discharge the duties of office until a new member qualifies. Conversely, if the office becomes vacant, then the position remains vacant until filled by a qualified candidate, either by appointment or election depending on the procedure to be followed.[3]

  1. When may the oath be taken by a newly elected/appointed school board member?

Elections Code section 10554 provides as follows (emphasis added):

Elective officers, elected or appointed pursuant to this part, take office at noon on the first Friday in December next following the general district election. Prior to taking office, each elective officer shall take the official oath and execute any bond required by the principal act.

Thus, the oath of office may be administered at any time after the election results are certified by the county clerk. This is typically done at the district’s organizational meeting, but once elected, a new board member can choose to be sworn in earlier, as discussed above.

  1. How long does the county clerk have to certify the election results?

Elections Code section 15372 provides as follows:

The elections official shall prepare a certified statement of the results of the election and submit it to the governing body within 30 days of the election or, in the case of school district, community college district, county board of education, or special district elections conducted on the first Tuesday after the first Monday in November of odd-numbered years, no later than the last Monday before the last Friday of that month.

Elections Code sections 15400 and 15401 provides as follows:

The governing body shall declare elected or nominated to each office voted on at each election under its jurisdiction the person having the highest number of votes for that office, or who was elected or nominated under the exceptions noted in Section 15452. The governing board shall also declare the results of each election under its jurisdiction as to each measure voted on at the election.

The elections official shall make out and deliver to each person elected or nominated, as declared by the governing body, a certificate of election or nomination, signed and authenticated by the elections official.

  1. What are the rules with respect to the annual organizational meeting?

Education Code section 35143 provides as follows:

(a) The governing board of each school district shall hold an annual organizational meeting. In a year in which a regular election for governing board members is conducted, the meeting shall be held on a day within a 15-day period that commences with the second Friday in December following the regular election. Organizational meetings in years in which no such regular election for governing board members is conducted shall be held on any date in December, but no later than December 20. Unless otherwise provided by rule of the governing board, the day and time of the annual meeting shall be selected, in a year in which a regular election for governing board members is conducted, by the board at its regular meeting held immediately before the first day of such 15-day period, or in a year in which no such regular election for governing board members is conducted, by the board at its last regular meeting held immediately before the organizational meeting. The board shall notify the county superintendent of schools of the day and time selected. The clerk of the board shall, within 15 days before the date of the annual meeting, notify in writing all members and members-elect of the date and time selected for the meeting.

(b) If the board fails to select a day and time for the meeting, the county superintendent of schools having jurisdiction over the district shall, before the first day of such 15-day period and after the regular meeting of the board held immediately before the first day of such 15-day period, designate the day and time of the annual meeting. The day designated shall be within the 15-day period. The county superintendent of schools shall notify in writing all members and members-elect of the date and time.

(c) At the annual meeting the governing board of each high school district, union high school district, and joint union high school district shall organize by electing a president from its members and a clerk.

(d) At the annual meeting each city board of education shall organize by electing a president from its members.

(e) At the annual meeting the governing board of each other type of school district, except a community college district, shall elect one of its members clerk of the district.

(f) As an alternative to the procedures set forth in this section, a city board of education whose members are elected in accordance with a city charter for terms of office commencing in December, may hold its annual organizational meeting required in this section between December 15 and January 14, inclusive, as provided in rules and regulations that shall be adopted by such board. At the annual meeting the city board of education shall organize by electing a president and vice president from its members who shall serve in such office during the period January 15 next to the following January 14, unless removed from such office by majority vote of all members of the city board of education.

Note that, as discussed in section 7 above, section 35143 permits a district, by local rule, to choose a different date for its organizational meeting.

  1. At the organizational meeting which board members (e.g., outgoing or incoming) convene the meeting?

Where the oath of office is administered at the organizational meeting, the outgoing board may convene the meeting, the oath(s) may be administered, and then the board with new members seated would complete the remainder of the agenda. If a new member or members have taken the oath of office prior to the organizational meeting, the meeting should convene with any previously-sworn members sitting with the board.

Brown Act

  1. Does the Brown Act apply to newly elected members before they take office?

Yes.  Government Code section 54952.1 provides as follows:

Any person elected to serve as a member of a legislative body who has not yet assumed the duties of office shall conform his or her conduct to the requirements of this chapter and shall be treated for purposes of enforcement of this chapter as if he or she has already assumed office.

The reference to “elected to serve” arguably applies once the county clerk has certified the election results (See Elections Code sections 15372, 15400 and 15401, set forth above).

Board Member Resignation

  1. May a school board member resign from his/her office?

Yes. Government Code section 1770(c) provides that “[a]n office becomes vacant. . . [upon the incumbent’s] resignation.”

  1. How does a school board member resign?

Education Code section 5090 provides that “a vacancy resulting from resignation occurs when the written resignation is filed with the county superintendent of schools . . .” (Emphasis added.)

Please note that resignations that are not filed with the county superintendent of schools are not effective.

  1. Is it necessary for the school board to take action to accept a member’s resignation?

No. As noted above the resignation is effective upon the county superintendent of schools’ receipt of the written resignation.

Some governing board meetings do have public agenda items to “accept” a member’s resignation. This is usually done for purposes of creating an occasion to honor a departing board member and is purely ceremonial with no legal significance.

  1. May a board member rescind a written resignation once it is filed with the county superintendent of schools?

No. Education Code section 5090 provides that a “written resignation . . . shall, upon being filed with the county superintendent of schools be irrevocable.”

  1. What constitutes “filing” a resignation with the county superintendent?

A resignation is filed with the county superintendent upon physical receipt by the county superintendent’s office of a writing indicating a resignation.

  1. May a board member defer the effective date of a resignation?

Yes. Education Code section 5090 provides that a board member’s written resignation may indicate a “deferred effective date.” Section 5091 provides further that the resignation may not be deferred “for more than 60 days after he or she files the resignation with the county superintendent of schools.”

  1. Would an e-mail or facsimile transmission constitute a written resignation?

The law is unclear, however likely yes. The law applicable to resignations has not been amended to provide for electronic or facsimile substitution for written resignations, however Evidence Code section 250 defines a “writing” to include an electronic transmission. Therefore, such a method would likely be sufficient. We recommend that districts contact their county superintendent of schools for further clarification.

  1. What is the effective date of a resignation?

Unless the resignation contains a “deferral” date, the effective date of a written resignation is the date it is actually received by the county superintendent’s office.

  1. Are there any limits on the role of a board member who files with the county superintendent a written resignation with a deferred effective date?

Yes.  Education Code section 35178 provides as follows (emphasis added):

A member of the governing board of a school district who has tendered a resignation with a deferred effective date pursuant to Section 5090 shall, until the effective date of the resignation, continue to have the right to exercise all powers of a member of the governing board, except that such member shall not have the right to vote for his or her successor in an action taken by the board to make a provisional appointment pursuant to Section 5091.

Note: This prohibition applies only to the actual vote and does not appear to preclude the member whose resignation is pending from participating in the selection process or board discussion of who to appoint.

  1. What does a school board need to do after learning of a resignation from one of its members?

Education Code section 5091 provides that the governing board “shall, within 60 days of the vacancy or the filing of the deferred resignation, either order an election or make a provisional appointment to fill the vacancy.”

Note: The 60 days starts to run when the resignation is received by the county superintendent even if the resignation contains a deferred effective date.

The governing board must also make sure that the person provisionally appointed to the position is “qualified” under Education Code section 35107 as discussed in more detail above.

  1. May the board meet in closed session to develop questions or interview candidates?

No. Under the Brown Act, all aspects of making a provisional appointment must be done in public session, except where the board appoints an advisory ad hoc committee of less than a quorum of board members and no other members. If an advisory ad hoc committee is appointed it may assist in screening or evaluating applications and preparing interview questions, but may not make any final decisions for the board. (See Government Code section 54952(b).)

The provisional appointment must be put on the public session agenda and the full Board must take action to approve the appointment.

  1. Once the board makes a provisional appointment to fill a vacancy, what happens next?

Education Code section 5092 provides as follows:

Whenever a provisional appointment is made to the governing board of a school district pursuant to Section 5091, the board shall, within 10 days of the provisional appointment of a person to fill a vacancy which occurs or will occur, post notices of both the actual vacancy or the filing of a deferred resignation and also the provisional appointment in three public places in the district and shall publish a notice pursuant to Section 6061 of the Government Code. If there is no newspaper of general circulation published in the district, notice need not be published.

The notice shall state the fact of the vacancy or resignation and the date of the occurrence of the vacancy or the date of the filing of, and the effective date of, the resignation. The notice shall also contain the full name of the provisional appointee to the board and the date of his appointment, and a statement that unless a petition calling for a special election, containing a sufficient number of signatures, is filed in the office of county superintendent of schools within 30 days of the date of the provisional appointment, it shall become an effective appointment.

Thus, the residents of the district whose board has appointed a provisional board member can petition to force a special election—although in practical terms, this rarely happens. Effective 2023, Education Code section 5091 is amended to make it easier to consolidate such a special election with a regularly scheduled election, in order to save election expenses. (SB 1061, 2022)

  1. What happens if vacancies occur in a majority or more of the board seats at the same time?

Education Code section 5094 provides as follows:

If for any reason vacancies should occur in a majority of the offices on any school district or community college district governing board, the president of the county board of education having jurisdiction may appoint members of the county board of education to the district governing board until new members of the governing board are elected or appointed.

Note: At the discretion of the president of the county board of education, appointments may be made in one or more of the vacant positions. In other words, the county board president is not limited to making appointments only sufficient to create a quorum on the district board. Thus, on a five person board with 3 vacancies, the county board president may designate up to 3 members of the county board of education to serve as district board members. Once appointed, the county board members continue to serve as district board members until new members “are elected or appointed.”

  1. May a district board reappoint the same person who resigned from the seat that is vacant?

No. Government Code section 1752, subdivision (a) provides, in pertinent part, as follows:

. . . no person elected or appointed to the governing body of any city, county, or district having an elected governing body, shall be appointed to fill any vacancy on that governing body during the term for which he or she was elected or appointed (emphasis added).

Please note: This provision also prohibits a board member with a “short” term from resigning and being appointed to a vacant “long” term.

  1. If the district chooses to call for written applications from candidates who wish to be considered for appointment, are the submitted applications public records?

Yes. Under the Public Records Act (Government Code section 6250 et seq.[4]) copies of any applications for a board vacancy that are received by the district must be made available for public inspection and copies provided upon request.

Note: Because the applications become public records, we recommend that prospective candidates be so-informed before they submit an application.

  1. If the board chooses to interview candidates one at a time before making an appointment do all candidates have a right to be present?

Under the Brown Act all persons—including candidates for a board appointment—have a right to attend all public sessions of the board.

At the same time the board may request (but not require) the other candidates to remain outside the meeting room until after they are interviewed.

Our experience has been that most candidates honor the request, as they understand the essential fairness of the request, and that the refusal to do so may have an impact on the remaining board members’ willingness to appoint a candidate who refuses to cooperate.

  1. If everything must be done in public session, how does the board develop questions that will not be known in advance by the candidates?

The Brown Act does not provide a ready response to this question. We recommend against using email (or other private communications) among board members to reach a board decision on what questions to ask the candidates.

It is recommended that individual board members submit proposed questions to the board president, who will compile a composite question list. The board can also have such questions referred to an executive officer, such as the superintendent, who can undertake the task of compiling such questions, perhaps in concert with a single board member or an ad hoc committee of the board.

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.

 © 2022 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] Please note that if your district has not yet converted to an even-year election cycle, the rules are slightly different. Please contact legal counsel for additional information if your district is still on an odd-year election cycle.

[2] That is, “Article 20.”

[3] As discussed below, district boards can sometimes make an appointment within 60 days of a vacancy. In other cases, if the vacancy occurs too close to a scheduled election or the end of a member’s term, the vacancy must await an upcoming regular election or a special election.

[4] Beginning January 1, 2023, the Public Records Act will be moved to Government Code sections 7920.000-7931.000, without any substantive changes. (AB 473, 2021).

Legal Update Memo No. 24-2022 – Local Educational Agencies Soon Must Provide Ethics Training to “Local Agency Officials” (K-12)

Download PDF: 24-2022 – Local Educational Agencies Soon Must Provide Ethics Training to Local Agency Officials (DLM)

On September 13, 2022, Governor Newsom approved Assembly Bill 2158 (“AB 2158”), adding required ethics training, already mandated for some government  officials, to the obligations of “local agency officials” of school districts, county offices of education, and charter schools (collectively “local educational agencies” or “LEAs”).[1]

Effective Date

This obligation will not go into effect for these agencies and their officials until January 1, 2025.  Local agency officials should receive ethics training before January 1, 2026, and at least once every two (2) years thereafter.  Excluded are officials whose term of office ends before January 1, 2026.[2]

Who is Required to Take Ethics Training

As of January 1, 2025, LEAs must provide information on training available to meet ethics training requirements to its “local agency officials” at least once annually.

AB 2158 defined “local agency official” as any of the following:

(1) A member of a local agency legislative body or an elected local agency official who receives any type of compensation, salary, or stipend or reimbursement for actual and necessary expenses incurred in the performance of official duties.

(2) An employee designated by a local agency governing body to receive the training specified under this article.

(3) A member of the governing board of a school district, a county board of education, or the governing body of a charter school, whether or not that member receives any type of compensation, salary, or stipend or reimbursement for actual and necessary expenses incurred in the performance of official duties.[3]

Therefore, policies should be updated by January 1, 2025, to denote any positions the LEA wishes to designate as required to receive ethics training.  Furthermore, note that all board members, regardless of whether they receive any compensation for the office they hold, must receive this training.[4]

Content of Training

The training will need to be relevant to the particular officials’ public service as well as cover general ethical principles; last a minimum of two hours; and address the following ethics laws, which include, “but are not limited to,” the following:

(1) Laws relating to personal financial gain by public servants, including, but not limited to, laws prohibiting bribery and conflict-of-interest laws.

(2) Laws relating to claiming perquisites of office, including, but not limited to, gift and travel restrictions, prohibitions against the use of public resources for personal or political purposes, prohibitions against gifts of public funds, mass mailing restrictions, and prohibitions against acceptance of free or discounted transportation by transportation companies.

(3) Government transparency laws, including, but not limited to, financial interest disclosure requirements and open government laws.

(4) Laws relating to fair processes, including, but not limited to, common law bias prohibitions, due process requirements, incompatible offices, competitive bidding requirements for public contracts, and disqualification from participating in decisions affecting family members.[5]

Therefore, LEAs should work with their providers of trainings and their Risk Management consultants to ensure all ethics trainings contain the requisite content listed above, with a focus on applying such laws to matters which might arise within an LEA.  Furthermore, if an entity develops curricula to satisfy the requirements of AB 2158, then the Fair Political Practices Commission and the Attorney General must be consulted regarding the sufficiency and accuracy of the proposed course content.[6]

The trainings may be multi-part (i.e. the two hour training need not be completed in a single two-hour session) and may be satisfied by self-study materials with tests upon the subject matter. Courses may be taken at home, in-person, or online.[7]

Record Keeping

A provider of training courses to meet these requirements must maintain records that include:

(1) The dates that local officials satisfied the requirements of this article.

(2) The entity that provided the training.

The LEA must maintain these records for at least five years after local officials receive the training, and they are subject to Public Records Act requests.[8]

We anticipate that our office and most LEAs’ Risk Management consultants will develop training materials and curricula that meet these requirements.

This is a state-mandated program and therefore LEAs are eligible for reimbursement.

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.

 © 2022 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] For full bill, see here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2158;

[2] A local agency official who serves more than one local agency shall satisfy the ethics training requirement once every two years without regard to the number of local agencies with which the official serves. (Cal. Gov. Code § 53235.1.)

[3] Cal. Gov. Code § 53524(c).

[4] Id.  See also Cal. Gov. Code § 53235(a).

[5] Cal. Gov. Code § 53234(d); Cal. Gov. Code § 53235(b)

[6] When reviewing any proposed course content the Fair Political Practices Commission and the Attorney General shall not preclude an entity from also including local ethics policies in the curricula.  (Cal. Gov. Code § 53235.)

[7] Cal. Gov. Code § 53235(d).

[8] See Cal. Gov. Code § 6250 et. seq.