Legal Update Memo No. 39-2019 – Annual Development Fee Accounting (K-12)

Download pdf: 39-2019 Annual Development Fee Accounting (EES) w attachments

Reminder: Development Fee Accounting requirements must be met prior to December 27, 2019. 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 no later than December 27, 2019. The governing board – at its next regularly scheduled meeting at least 15 days after the accounting has been made available to the public – must review the annual accounting.

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

  1. 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]

Each fee-collecting district must make the accounting available to the public by December 27, 2019, which is within 180 days after the last day of the fiscal year as required by statute. In addition, the governing board must review the 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.

  1. 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 by December 27, 2019. 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:

  • Identify the purpose to which the fee is to be put.
  • 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.
  • 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.
  • 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.

Legal Update written by Erin E. Stagg, Associate General Counsel.

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

© 2019 School and College Legal Services of California

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

[1] 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. 38-2019 – Emergency Conditions that Require School Closure (K-12)

Download pdf: 38 -2019 Emergency Conditions that Require School Closure (LWS)

The recent fires and weather conditions have prompted many questions about when schools are required to close due to the loss of utility services such as water and electricity, including loss of the fire alarm system.

We begin by noting that no specific provision of the Education Code or any other provision of state law directly addresses the issue of when schools must close due to loss of necessary utilities. There are, however, several provisions of law that establish health and safety standards that must be maintained.

As to Employees

Labor Code Section 6400 provides that “every employer shall furnish employment and a place of employment which are safe and healthful for the employees therein.”

Labor Code Section 6401 provides, in part, that “every employer shall do every other thing reasonably necessary to protect the life, safety and health of employees.”

Labor Code Section 6402 provides that “no employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.”

Labor Code Section 6404 provides that “no employer shall occupy or maintain any place of employment that is not safe and healthful.”

Although these provisions may appear redundant, it is prudent to assume that the very redundancy underscores the significance of the legislative mandates. This significance is further underscored by reference to Labor Code Section 6423-6436, which create criminal and civil penalties for those managers and employers who are found to have violated the provisions of the Labor Code sections referred to above.

Finally, Labor Code Section 6401.7 requires every employer to adopt procedures under which, among many other duties, the “employer shall correct unsafe and unhealthy conditions…in a timely manner based on the severity of the hazard.”

Under Labor Code Sections 6304 and 3300, these provisions apply to all public agencies (Oakland Policy Officers Assoc. v. City of Oakland (1973) 30 Cal.App.3d 96), including school districts (Lehmann v. Los Angeles City Board of Education (1957) 154 Cal. App. 2d 256).

Recommendations as to Employees

Based on the law referred to above, it is our opinion that the loss of water and other utilities should be reviewed on a case-by-case basis to determine whether the loss results in an unsafe or unhealthy work environment that will require that the condition be corrected, the employees transferred to a different work location, or that the employee be “sent home.”

We recommend that each district adopt standing procedures under which the administrator in charge of each facility will determine “in a timely manner” whether an unsafe or unhealthy condition exists and, if so, what must be done to correct the situation. Districts should also be familiar with any collective bargaining language concerning employee safety and ensure compliance with those additional requirements.

In determining whether to close a school, circumstances to consider include: (1) whether the facility has enough natural light to permit employees to remain without undue risk; (2) whether the fire alarm systems are operational without electricity and if they are not, whether a fire watch is permissible, as discussed below; (3) whether overhead sprinklers and toilet facilities are operational without water; and (4) whether the outside temperatures are extreme enough to render the workplace too cold or too hot to work.

As to Students

We begin with the obvious: if circumstances require that employees be excused from work, then students also must be excused. This conclusion is derived more from common sense than from any particular law. In addition to common sense, we have identified several provisions of law that address the issue of health and safety of students. These provisions provide as follows:

Title 5 of the California Code of Regulations Section 630 provides “governing boards, superintendents, principals, and teachers are responsible for the sanitary, neat, and clean condition of the school premises and freedom of the premises from conditions that would create a fire or life hazard.”

Title 5 of the California Code of Regulations Section 631 provides “adequate separate toilet facilities shall be maintained for each sex, and all buildings and grounds shall be maintained according to the regulations of the Board of Health having jurisdiction over the school district.”

Education Code Section 17573 provides “the governing board of every school district shall provide a warm, healthful place in which children who bring their own lunches to school may eat the lunches.” Additionally, Education Code Section 38086 and Title 42 of the United States Code Section 1758 requires school districts to provide students with free drinking water during meal times.

Education Code Section 17576 provides in part “the governing board of every school district shall provide, as an integral part of each school building, or as part of at least one building of a group of separate buildings, sufficient patent flush water closets for the use of the pupils. In school districts where the water supply is inadequate, chemical water closets may be substituted for patent flush water closets by the board.”

Education Code Section 17577 provides “In addition to the other powers granted the governing board of each school district may provide sewers and drains adequate to treat and/or dispose of sewage and drainage on or away from each school property. For this purpose it may construct adequate systems or acquire adequate disposal rights in systems constructed or to be constructed by others for these purposes without regard to their proximity. The cost thereof may be paid from the building fund, including any bond moneys therein.”

Education Code Sections 32000 et seq., require each school to maintain a “dependable and operative fire warning system.” However, Title 24 of the California Code of Regulations, Section 901.7 provides as follows:

Where a required fire protection system is out of service, the fire department and the fire code official shall be notified immediately and, where required by the fire code official, the building shall be either evacuated or an approved fire watch shall be provided for all occupants left unprotected by the shutdown until the fire protection system has been returned to service.

Where utilized, fire watch shall be provided with not less than one approved means for notification of the fire department and their only duty shall be to perform constant patrols of the protected premises and keep watch for fires.

Title 24 of the California Code of Regulations sections 901.7.1- 901.7.6, sets forth the specific emergency action requirements that must be taken if the fire protection system becomes inoperable. If the fire code official permits the district to conduct a fire watch in lieu of evacuation, these requirements must be followed.

Pursuant to Title 24 of the California Code of Regulations section 202, the following definitions are provided:

“Fire Code Official” – The fire chief or other designated authority charged with the administration and enforcement of the code, or a duly authorized representative.

“Fire Watch” – A temporary measure intended to ensure continuous and systematic surveillance of a building or portion thereof by one or more qualified individuals for the purposes of identifying and controlling fire hazards, detecting early signs of unwanted fire, raising an alarm of fire and notifying the fire department.

As such, a district would be permitted to conduct a fire watch in lieu of evacuation provided approval is obtained from the fire code official and the district complies with the required fire watch procedures.

Lastly, pursuant to Education Code Section 32282, school districts are required to have emergency procedures in their school safety plans, which should include plans for notifying parents of school closures. Most school districts likely have Board Policy and Administrative Regulation 3516 already in place which requires the district to ensure that the school safety plan’s emergency procedures include a plan for determining when closing a school is appropriate.

Recommendations as to Students

Based on our review of all applicable law, it is our opinion that the decision to close schools and send students home must be made on a case-by-case basis with due consideration given to both the health and safety of students. By way of example, the loss of water may not generate an immediate safety issue if the fire sprinkler system is operational using water stored in-site and that water is not contaminated. We recommend that districts contact our office to assist with making these case-by-case decisions.

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

Legal Update written by Loren W. Soukup, Senior Associate General Counsel.

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

 © 2019 School and College Legal Services of California

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

Legal Update Memo No. 37-2019 – SB 328 – Middle and High School Start Times (K-12)

Download pdf: 37-2019 – SB 328 – Middle and High School Start Times w attachment (KAS)

On October 13, 2019, Governor Newsom signed Senate Bill (“SB”) 328 into law. SB 328 prohibits middle schools from starting before 8:00 a.m., and high schools from starting prior to 8:30 a.m.

SB 328 must be implemented by districts no later than July 1, 2022, or when the school’s collective bargaining agreement expires, whichever is later. The law also allows schools to offer programs prior to the start of the school day, so long as that program does not generate average daily attendance for the purposes of computing any apportionments of state funding.

The law applies to middle and high schools operated by public and charter schools. However, it explicitly states that it shall not apply to “rural school districts.” A rural school district is not defined within the statute. While our office has provided guidance on what may be considered a rural school district, to confirm whether, a district should contact CDE prior to July 1, 2022.

Although the Committee analysis indicates that the Legislature considered the “federal definition” of rural school district, there is no general federal definition of rural school district. Our office believes that if a district is eligible under the Rural Education Achievement Program (“REAP”), administered by the Department of Education under Title VI, it is likely to meet the intentions of the Legislature as a “rural school district.” To be eligible under REAP, the district must meet either of the following definitions:

Definition 1:

Column A Column B
The total number of students in average daily attendance at all of the schools served by the district is fewer than 600; or All of the schools served by the district are designated with a school locale code of 41, 42, or 43, as determined by the Secretary of Education; or
Each county in which a school served by the district is located has a total population density of fewer than 10 people per square mile. The district is located in an area determined to be “rural” by a governmental agency of the State.

(Must match one characteristic from Column A and one from Column B.)

Definition 2:

Twenty percent or more of the children ages 5 through 17 years served by the district are from families with incomes below poverty; and
All of the schools served by the district are designated with a school locale code of 32, 33, 41, 42, or 43.

(Must match both characteristics.)

For your convenience, a copy of SB 328 is included with this Legal Update.

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

Legal Update written by Kaitlyn Schwendeman, Schools Legal Counsel

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

 

© 2019 School and College Legal Services of California

 

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

Legal Update Memo No. 36-2019 – AB 1767 and AB 34 – Creation and Internet Posting of Bullying, Harassment and Suicide Prevention Policies (K-12)

Download pdf: 36-2019 – AB 1767 & AB 34 – Creation and Internet Posting of Bullying Harassment w attachments (KAS)

As part of the final packet of legislation for this legislative year, the Governor signed two bills addressing harassment and bullying within schools – AB 1767 and AB 34.

Assembly Bill (“AB”) 1767 requires any school district, county office of education, or charter school that serves students in kindergarten and grades 1 to 6 to adopt or update a policy on suicide prevention to apply to kindergarten and grades 1 to 6, and specifically address the needs of high-risk groups within those grades. [1]

High-risk groups are defined to include (but not be limited to): students bereaved by suicide, students with disabilities (including mental health disorders), students with substance use disorders, homeless youth, foster youth, and LGBTQ students.

The policy must be adopted at a regularly-scheduled meeting prior to the start of the 2020-21 school year, after consultation with school and community stakeholders, the county mental health plan, school mental-health professionals, and suicide prevention experts. The policy must be age appropriate and address suicide prevention and post-vention. If the policy includes training, there are requirements for such training and the materials used (though training is not required); additionally, the policy must be reviewed every 5 years, minimally.

AB 34 requires any school district, county office of education, or charter school, regardless of grades served, to post specific information in a prominent location on the local educational agency’s (LEA’s) existing website in a manner that is easily accessible to parents/guardians and students.[2]

The information that must be posted to the LEA’s website is the following:

  • The LEA’s policy on student suicide prevention,[3]
  • The LEA’s definition of harassment and discrimination based on sex,[4]
  • Student’s Title IX rights,[5]
  • A link to CDE’s Title IX website,[6]
  • The LEA’s student sexual harassment policy,[7]
  • The LEA’s hate violence prevention policy,[8]
  • The LEA’s anti-discrimination, anti-harassment policy,[9]
  • The LEA’s anti-cyberbullying procedures,[10]
  • A section on social medial bullying with references to all of the following possible forums for social media bullying:
    • Websites with free registration and ease of registration
    • Websites offering peer-to-peer instant messaging
    • Websites offering comment forums or sections
    • Websites offering image or video platforms
  • A link to the CDE’s state-wide anti-discrimination, anti-harassment and anti-bullying resources, and[11]
  • Any additional resources the LEA deems important for preventing bullying and harassment.

Both AB 1767 and AB 34 go into effect on January 1, 2020. However, as noted, AB 1767 requires compliance prior to the start of the 2020-21 school year, and AB 34 does not require compliance until the 2020-21 school year.

For your convenience, copies of AB 1767 and AB 34 are included with this Legal Update.

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

Legal Update written by Kaitlyn Schwendeman, Schools Legal Counsel.

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

 

© 2019 School and College Legal Services of California

 

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

[1] Education Code § 215.

[2] AB 34 adds to the Education Code Article 5.6, which begins with § 234.6.

[3] Both the new policy mandated by AB 1767, and the existing policy for grades 7-12, pursuant to Education Code § 215.

[4] Pursuant to Education Code §§ 230, 221.8.

[5] Education Code §§ 221.8, 221.61.

[6] Education Code § 221.6.

[7] Education Code § 231.5.

[8] Education Code § 233.

[9] Education Code § 234.1.

[10] Education Code § 234.4.

[11] Education Code § 234.5.

Legal Update Memo No. 35-2019 – SB 142 – Employee Lactation Accommodation (K-12)

Download pdf: 35-2019 – SB 142 – Employee Lactation Accommodation w attachment (CDC)

On October 10, 2019, the Governor approved Senate Bill (“SB”) 142, which effective January 1, 2020, requires an employer in California to take various actions regarding employee lactation.  As a preliminary issue, an employee is entitled to a reasonable amount of break time to express breast milk for the employee’s infant with, if possible, the break time running concurrently with any break time the employer is already providing to the employee.[1]  Below the main requirements associated with employee lactation accommodation are detailed.

Lactation Room

An employer shall provide an employee with the use of a room or other location for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.[2]  A lactation room or location shall not be a bathroom and shall be in close proximity to the employee’s work area, shielded from view, and free from intrusion while the employee is expressing milk.[3]

The lactation room shall comply with the following requirements:

  1. Be safe, clean, and free of hazardous materials;
  2. Contain a surface to place a breast pump and personal items;
  3. Contain a place to sit; and
  4. Have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump.[4]

The employer is also required to provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace and if a refrigerator cannot be provided, an employer may provide another cooling device suitable for storing milk, such as an employer-provided cooler.[5]

There is a “hardship” provision for employers that employ fewer than 50 employees to be exempt from a requirement associated with the lactation room and related requirements if the employer can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.[6]

If the employer cannot provide a break time or a location in accordance with the law, then the employee shall be provided with a written response.[7]

Duty to Develop and Implement a Lactation Accommodation Policy

Employers must develop and implement a lactation accommodation policy that includes all of the following:

  1. A statement about an employee’s right to request lactation accommodation;
  2. The process by which the employee makes a request for lactation accommodation;
  3. An employer’s obligation to respond to the request for lactation accommodation; and
  4. A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of a right under this chapter.[8]

The policy must be made available in either an employee handbook and/or in a set of policies made available to employees.[9]  The policy must also be provided to new employees upon hiring or when an employee makes an inquiry or requests parental leave.[10]

For your convenience, a copy of SB 142 is included with this Legal Update.

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

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

© 2019 School and College Legal Services of California

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

[1] Labor Code § 1030.

[2] Labor Code § 1031(a).

[3] Labor Code § 1031(b).

[4] Labor Code § 1031(c).

[5] Labor Code § 1031(d).

[6] Labor Code § 1031(i).

[7] Labor Code § 1034(d).

[8] Labor Code § 1034(a).

[9] Labor Code § 1034(b).

[10] Labor Code § 1034(c).

Legal Update Memo No. 16-2019 – SB 142 – Employee Lactation Accommodation (CCD)

Download pdf: 16-2019(CC) – SB 142 – Employee Lactation Accommodation w attachment (CDC)

On October 10, 2019, the Governor approved Senate Bill (“SB”) 142, which effective January 1, 2020, requires an employer in California to take various actions regarding employee lactation.  As a preliminary issue, an employee is entitled to a reasonable amount of break time to express breast milk for the employee’s infant with, if possible, the break time running concurrently with any break time the employer is already providing to the employee.[1]  Below the main requirements associated with employee lactation accommodation are detailed.

Lactation Room

An employer shall provide an employee with the use of a room or other location for the employee to express milk in private. The room or location may include the place where the employee normally works if it otherwise meets the requirements of this section.[2]  A lactation room or location shall not be a bathroom and shall be in close proximity to the employee’s work area, shielded from view, and free from intrusion while the employee is expressing milk.[3]

The lactation room shall comply with the following requirements:

  1. Be safe, clean, and free of hazardous materials;
  2. Contain a surface to place a breast pump and personal items;
  3. Contain a place to sit; and
  4. Have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump.[4]

The employer is also required to provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace and if a refrigerator cannot be provided, an employer may provide another cooling device suitable for storing milk, such as an employer-provided cooler.[5]

There is a “hardship” provision for employers that employ fewer than 50 employees to be exempt from a requirement associated with the lactation room and related requirements if the employer can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.[6]

If the employer cannot provide a break time or a location in accordance with the law, then the employee shall be provided with a written response.[7]

Duty to Develop and Implement a Lactation Accommodation Policy

Employers must develop and implement a lactation accommodation policy that includes all of the following:

  1. A statement about an employee’s right to request lactation accommodation;
  2. The process by which the employee makes a request for lactation accommodation;
  3. An employer’s obligation to respond to the request for lactation accommodation; and
  4. A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of a right under this chapter.[8]

The policy must be made available in either an employee handbook and/or in a set of policies made available to employees.[9]  The policy must also be provided to new employees upon hiring or when an employee makes an inquiry or requests parental leave.[10]

For your convenience, a copy of SB 142 is included with this Legal Update.

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

Legal Update written by Carl D. Corbin, General Counsel.

 

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

 

© 2019 School and College Legal Services of California

 

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

[1] Labor Code § 1030.

[2] Labor Code § 1031(a).

[3] Labor Code § 1031(b).

[4] Labor Code § 1031(c).

[5] Labor Code § 1031(d).

[6] Labor Code § 1031(i).

[7] Labor Code § 1034(d).

[8] Labor Code § 1034(a).

[9] Labor Code § 1034(b).

[10] Labor Code § 1034(c).

Legal Update Memo No. 34-2019 – AB 1127 – LEAs Must Allow Intradistrict Transfer for Bullying (K-12)

Download pdf: 34-2019 – AB 1127 – LEAs Must Allow Intradistrict Transfer for Bullying w attachment (CDC)

On October 12, 2019, the Governor approved Assembly Bill (“AB”) 1127, which effective January 1, 2020, requires a Local Educational Agency (“LEA”) to grant a victim of an act of bullying the right to an intradistrict transfer to a different school in the LEA.[1]  If the requested school is at maximum capacity, then the LEA shall accept an intradistrict transfer request to a different school within the LEA.[2]

Interdistrict Attendance Permit Implications

If the school district of residence has only one school offering the grade level of the victim of an act of bullying and therefore there is no option for an intradistrict transfer, the victim of an act of bullying may apply for an interdistrict transfer to another school district and the school district of residence shall not prohibit the transfer if the school district of proposed enrollment approves the application for transfer.[3]  Once the school district of proposed enrollment accepts a student who is a victim of an act of bullying, the school district of proposed enrollment shall continue to accept other students who are victims of an act of bullying until the receiving school district is at capacity.[4]

The receiving school district must ensure the students selected for admission through an interdistrict attendance permit are selected through an unbiased process that prohibits an inquiry into or evaluation or consideration of whether or not a pupil should be enrolled based on academic or athletic performance, physical condition, proficiency in English, family income, or any of the individual characteristics set forth in Section 220, including, but not limited to, race or ethnicity, gender, gender identity, gender expression, and immigration status.[5]

Duty to Provide Transportation

Upon request of the parent or guardian on behalf of a pupil eligible for transfer as a victim of an act of bullying, a school district of enrollment shall provide transportation assistance to a pupil who is eligible for free or reduced-price meals.[6]

A school district of enrollment may provide transportation assistance to any pupil who transfers to another LEA as a victim of an act of bullying.[7]

It is the intent of the Legislature that the amount of transportation assistance provided to a pupil not exceed the supplemental grant received, if any, for the pupil pursuant to § 42238.02(e).[8]

Victim of an Act of Bullying Defined

A “victim of an act of bullying” is defined as a pupil who has been determined to have been a victim of bullying by an investigation pursuant to the complaint process described in Section 234.1 [Uniform Complaint Procedures] and the bullying was committed by any pupil in the school district of residence, and the parent of the pupil has filed a written complaint regarding the bullying with the school, school district personnel, or a local law enforcement agency.[9]

An act of bullying that is subject to the Uniform Complaint Procedures is bullying based on the actual or perceived characteristics in Education Code § 220 [disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation or immigration status].

Considerations for LEAs

We advise that LEAs review their policies to ensure compliance with this new law.  We also advise LEAs to carefully consider accepting a student who is the victim of an act of bullying due to the additional requirements imposed by AB 1127.

For your convenience, a copy of AB 1127 is included with this Legal Update.

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

Legal Update written by Carl D. Corbin, General Counsel.

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

 © 2019 School and College Legal Services of California

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

[1] AB 1127 amends Education Code § 46600.  All subsequent references are to the Education Code.

[2] § 46600(d)(2).

[3] Id.

[4] § 46600(d)(3).

[5] Id.

[6] § 46600(d)(5)(A).

[7] § 46600(d)(5)(B).

[8] § 46600(d)(5)(C).  Also, the supplemental grant reference in § 42238.02(e) provides in part: “The Superintendent shall compute a supplemental grant add-on equal to 20 percent of the base grants… “

[9] § 46600(d)(4)(B).

Legal Update Memo No. 33-2019 – AB 543 – High Schools Must Create and Post Sexual Harassment Prevention Poster (K-12)

Download pdf: 33-2019 – AB 543 – High Schools Must Create & Post Sexual Harassment Prevention Poster w attachment (CDC)

On October 2, 2019, the Governor approved Assembly Bill (“AB”) 543, which effective January 1, 2020, requires any school district, county office of education, or charter school that serves students in any grades 9th through 12th to develop a poster that notifies students of the sexual harassment prevention policy developed by the Local Educational Agency (“LEA”).[1]

Existing law at Education Code § 231.5 requires all LEAs to display in a “prominent location” its policy/policies on sexual harassment.[2]

LEAs that serve high school students will now, in addition, have to develop a poster[3] in accordance with the following requirements:

  • The poster shall be no smaller than 8.5 by 11 inches and use at least 12-point font;
  • The poster shall be displayed in English and any primary language spoken by 15 percent or more of the pupils enrolled at the schoolsite;
  • The language in the poster shall be age appropriate and culturally relevant, and the schoolsite may partner with local, state, or federal agencies, or nonprofit organizations, for these purposes;
  • The poster shall display, at a minimum, all of the following:
  • The rules and procedures for reporting a charge of sexual harassment;
  • The name, phone number, and email address of an appropriate schoolsite official to contact to report a charge of sexual harassment; and
  • The rights of the reporting pupil, the complainant, and the respondent, and the responsibilities of the schoolsite in accordance with the applicable written policy on sexual harassment.

The poster is required to be displayed prominently and conspicuously in each bathroom and locker room at the schoolsite.  In addition, the LEA, at the discretion of its governing board, may also prominently and conspicuously display the poster in public areas at the schoolsite that are accessible to, and commonly frequented by, pupils, including, but not limited to, classrooms, classroom hallways, gymnasiums, auditoriums, and cafeterias.

For your convenience, a copy of AB 543 is included with this Legal Update.

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

Legal Update written by Carl D. Corbin, General Counsel.

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

© 2019 School and College Legal Services of California

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

[1] AB 543 is codified mostly at Education Code § 231.6.

[2] “Prominent location” means that location, or those locations, in the main administrative building or other area where notices regarding the institution’s rules, regulations, procedures, and standards of conduct are posted.

[3] 231.6(b) provides the schoolsite may partner with local, state, or federal agencies, or nonprofit organizations, for purposes of the design and content of the poster.

Legal Update Memo No. 32-2019 – Administration of Medical Cannabis on Schoolsites (K-12)

Download pdf: 32-2019 – Administration of Medical Cannabis on Schoolsites w attachment (JEN)

On October 9, 2019, Governor Newsom signed Senate Bill 223 into law.  SB 223 permits, but does not require, the administration of medical cannabis on school campuses in some situations.

Pursuant to Education Code section 49414.1, as of January 1, 2020, the governing board of a school district, county board of education, or charter school serving kindergarten or any of grades 1 through 12, inclusive, may (but is not required to) adopt a policy that permits a parent or guardian of a student to bring medical cannabis onto a school site and administer it to his or her child.  Such a policy must be adopted at a regular board meeting and must contain several elements required in the law.  It is recommended that you consult with legal counsel prior to adoption of any such a board policy.

Nothing in the law requires school staff to administer medical cannabis, nor does anything in the law permit school staff to administer medical cannabis or store it on school grounds.

The full text of the law is attached to this Legal Update.

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

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

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

© 2019 School and College Legal Services of California

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

Legal Update Memo No. 31-2019 – Recovery of Instructional Days Due to Emergency Closures (K-12)

Download pdf:31-2019 – Recovery of Instructional Days Due to Emergency Closures (KAS)

Our office has received multiple inquiries regarding making up instructional days due to emergency school closures following PG&E’s Public Safety Power Shutoff (“PSPS”). This Legal Update provides guidance for determining whether to make-up missed instructional days.

Entitlement to Average Daily Attendance (“ADA”)

School districts are normally required to provide at least 180 days of instruction, both for ADA and Instructional Time Credit for certificated staff.  Education Code § 46200 provides that if a school district offers less than 180 days of instruction, the Superintendent “shall withhold from the district’s local control funding formula grant apportionment” a portion of the funding proportional to the reduction in ADA below 180 days.

On the other hand, Education Code § 41422 still provides that if “a district that is prevented from maintaining its schools during a fiscal year for at least 175 days” because of various described emergency situations, it may show to the satisfaction of the Superintendent of Public Instruction that the emergency prevented it from holding classes. In that case, it “shall receive the same apportionment from the State School Fund as it would have received” had the emergency not prevented it from meeting the minimum requirement. The California Department of Education (“CDE”) has taken the position that PG&E’s PSPS is an extraordinary condition that is likely to meet the conditions of § 41422.

Reading these statutes together, it appears that districts may, but are not required to, file a waiver application if the emergency reduces their number of days below 180 days, but would be required to do so if their number of days falls below 175.  The better practice, however, is to seek the waiver for any reduction below 180 days to avoid any loss of funding.

A district or the county office of education may file a waiver with the Department of Education to request credit for lost ADA and instructional time. This topic is covered in a comprehensive Frequently Asked Questions Document from CDE, which can be found at https://www.cde.ca.gov/fg/aa/pa/formj13afaq.asp. The FAQ provides detailed instructions on how to claim ADA by using the approved J-13A form, which can be found here in PDF format: https://www.cde.ca.gov/fg/aa/pa/documents/j13a.pdf. Approval of the waiver allows the school agency to get credit for the lost ADA for the day of the closure as well as for the missed instructional time. While the Form J-13A has multiple pages, not all of them need be completed for every closure in order to submit the waiver request to CDE.

Districts that wish to claim ADA and instructional time credit for a forced closure should complete the proper forms and retain supporting documents and records in accordance with the CDE’s instructions outlined in form J-13A. However, as the FAQ notes, districts should make every effort to make up lost instructional time.

Making Up Instructional Time

Many districts want to make up this instructional time by converting days held for other, non-instructional purposes to instructional days. Education Code § 48980 requires that districts notify parents of the schedule of minimum days and student free staff development days as part of the annual parent notice at the beginning of each year, and provide 1 month notice when adding any new minimum days or staff development days. However, the Education Code does not require the converse; that is, the Education Code permits, and does not require any notice to parents, if a district changes a minimum day or staff development day back to an instructional day.

Districts should have two concerns regarding converting a non-instructional day to an instructional day. First, is whether it can provide sufficient notice to parents and students to ensure adequate attendance. Many districts have professional development days built in prior to Thanksgiving, as well as the option to convert days around the winter break. Districts should determine, based on historical attendance data, whether attendance would be sufficient on any day they schedule for purposes of ADA.

The second concern is whether there are non-statutory barriers to conversion; specifically, whether Board Policy and collective bargaining agreements permit conversion of days. We recommend that districts carefully review Board Policies and collective bargaining agreements to ensure prior to any conversion. If districts still wish to pursue conversion, we recommend negotiating a one-time, non-precedent setting MOU with all bargaining units setting forth the terms of the conversion.

The decision to make up an instructional day should be made soon. If your district requires assistance with negotiating or crafting a MOU or has any questions regarding this Legal Update or any other matter, please contact our office.

Legal update written by Kaitlyn Schwendeman, Schools Legal Counsel.

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

© 2019 School and College Legal Services of California

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