Legal Update Memo No. 40-2018 – Annual Development Fee Accounting (K-12)

Download pdf: 40-2018 – Annual Development Fee Accounting with attachments (EES)

Reminder: Development Fee Accounting requirements must be met prior to December 27, 2018.  The following information and documents are provided to assist school districts in maintaining 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, 2018.  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, 2018, 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, 2018.  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.

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.

 © 2018 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. 16-2018 – SB 820 and SB 1343 – Sexual Harassment Prevention Legislation (CCD)

Download pdf:16-2018(CC) REVISED – SB 820 & SB 1343 – Sexual Harassment Prevention Legislation (CDC)

The Governor signed two Senate Bills (“SB”) 820[1] and 1343[2] relating to sexual harassment issues.

SB 820

Effective January 1, 2019, settlement agreements may not include a provision that prevents the disclosure of factual information related to a claim filed in a civil action or a complaint filed in any administrative action regarding any of the following four issues:

  1. An act of sexual assault that is not governed by subdivision (a) of Section 1002 of the Code of Civil Procedure.
  2. An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
  3. An act of workplace harassment or discrimination based on sex, or failure to prevent an act of workplace harassment or discrimination based on sex or an act of retaliation against a person for reporting harassment or discrimination based on sex, as described in subdivisions (h), (i), (j), and (k) of Section 12940 of the Government Code.
  4. An act of harassment or discrimination based on sex, or an act of retaliation against a person for reporting harassment or discrimination based on sex, by the owner of a housing accommodation, as described in Section 12955 of the Government Code.[3]

SB 1343

Since 2005, California law has required that all supervisors of public employers (such as K-12 school districts, county offices of education, and community college districts) regardless of the number of employees and all supervisors of private employers with 50 or more employees receive at least two hours of interactive training regarding sexual harassment prevention within the first six months of the supervisor assuming the position.

Effective January 1, 2020, all supervisors of public employers and all supervisors of private employers with five or more employees must receive at least two hours of interactive training regarding sexual harassment prevention within the first six months of the supervisor assuming the position and every two years thereafter.[4]

Also effective January 1, 2020, all nonsupervisory staff of public employers and all nonsupervisory staff of private employers with five or more employees must receive at least one hour of interactive training regarding sexual harassment prevention within the first six months of their assumption of a position and every two years thereafter.

Effective January 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than six months, an employer shall provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.[5]

While districts can continue to use other methods to complete the training (such as an “in-person” workshop or via online training), the Department of Fair Employment and Housing (“DFEH”) will be required to offer two online training courses on the prevention of sexual harassment in the workplace with the course for nonsupervisory employees being one hour in length and the course for supervisory employees being two hours in length.[6]

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

© 2018 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] Available at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB820.

[2] Available at: http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1343.

[3] Code of Civil Procedure § 1001.

[4] Government Code § 12950.1(a).

[5] Government Code § 12950.1(h)(1).

[6] Government Code § 12950.1(k).

Legal Update Memo No. 39-2018 – AB 2109 – Changes to General Education Home-Hospital Instruction (K-12)

Download pdf: 39-2018 REVISED – AB 2109 – Changes to General Education Home-Hospital Instruction with attachment (CDC)

The Governor signed Assembly Bill (“AB”) 2109[1] on August 20, 2018, which makes various changes in law regarding general education students with a temporary disability receiving individual instruction in the home or hospital.  The changes in law are effective on January 1, 2019, and this Legal Update will detail the changes in law.  Also, for your convenience, included with this Legal Update is a document showing the additions and deletions in statutory law as a result of AB 2109.

Please note that for special education students, the determination of whether or not a student should receive home-hospital instruction should be made in accordance with the student’s Individualized Education Program (“IEP”) team in accordance with 5 CCR § 3051.4 and the student should not be referred back to the student’s district of residence even if the student is attending the current district through an interdistrict transfer or if the student is enrolled in a charter school.  In addition, this law is not intended to limit the rights for special education students with a temporary disability.

Current Law

The law currently in effect provides that a general education student with a temporary disability, which makes attendance in the regular day classes or alternative education program in which the student is enrolled impossible or inadvisable, shall receive individual instruction provided by the school district in which the pupil is deemed to reside.  This resulted in students enrolled in charter schools or attending a district through an interdistrict transfer to be disenrolled and referred back to the student’s district of residence to address home-hospital instruction requests.

The current law also requires districts who have a student placed in a hospital or other residential health facility located within the district’s boundaries to treat the student as a resident (and provide individual instruction) even if the student’s parents reside outside of the district.  Again, this results in students being disenrolled from the charter school or district the student was attending through an interdistrict transfer.

New Law

AB 2109 allows, but does not require, a school district or charter school to continue to allow the student to be enrolled in the school even though the student has been placed for the entire school week in a hospital or other residential health facility and is receiving individual instruction from the district in which the hospital or other residential health facility is located.[2]  The purpose of the change in law is to facilitate the student’s timely reentry from the hospital or other residential health facility back in the school the student was attending prior to the health issue.

AB 2109 also allows, but does not require, the student to attend a partial school week at the school the student attended prior to the health issue and to also receive individual instruction at the hospital or other residential health facility.  For example, a student receiving medical treatment in a hospital on Monday and Tuesday may receive individual instruction from the district in which the hospital is located and on Wednesday through Friday the student could receive instruction from the school the student attended prior to the health issue.  Also, a student who attends a school operated by a school district or a charter school, who is subsequently enrolled in individual instruction in a hospital or other residential health facility for a partial week, shall be entitled to attend school in his or her school district of residence, or receive individual instruction provided by the school district of residence in the student’s home, on days in which he or she is not receiving individual instruction in a hospital or other residential health facility, if he or she is well enough to do so.[3]

For purposes of computing Average Daily Attendance (“ADA”), the district in which the hospital or other residential health facility is located may only claim ADA for the days of the week the student is receiving individual instruction and the school the student attended prior to the health issue (or, as applicable, the student’s district of residence) may only claim ADA for the days the student attends the school.[4]  The total combined ADA cannot exceed five school days or the equivalent – each hour of individual instruction may be counted as one day of attendance.[5]

AB 2109 provides a right for the student to return to the school, including a charter school, the student attended before receiving individual instruction in the hospital or other residential health facility if the student is well enough to attend school and returns prior to the end of the school year in which the individual instruction was initiated.[6]  Accordingly, all schools must re-enroll a student who receives individual instruction (home-hospital instruction) in another school district, but is well enough to return back to the original school during the same school year.

Other Considerations

The parents of the student placed in a hospital or other residential health facility have the primary responsibility to notify the respective school or charter school of the student’s placement.[7]

Individual instruction in a student’s home shall commence no later than five working days after a school district has determined the student shall receive this instruction within the student’s home.[8]

AB 2109 authorizes a school district, county office of education, and a charter school to issue an honorary high school diploma to a student who is terminally ill.[9]  The honorary diploma must be clearly distinguishable from a regular diploma.

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

© 2018 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] Available at: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2109.

[2] Education Code § 48207(b).

[3] Education Code § 48207.3(b).

[4] Education Code § 48207(c).

[5] Education Code § 48207(d).

[6] Education Code § 48207.3(a).

[7] Education Code § 48208(a).

[8] Education Code § 48207.5.

[9] Education Code § 51225.5(a)(2).

Legal Update Memo No. 38-2018 – SB 820 and SB 1343 – Sexual Harassment Prevention Legislation (K-12)

Download pdf: 38-2018 REVISED – SB 820 & SB 1343 – Sexual Harassment Prevention Legislation (CDC)

The Governor signed two Senate Bills (“SB”) 820[1] and 1343[2] relating to sexual harassment issues.

SB 820

Effective January 1, 2019, settlement agreements may not include a provision that prevents the disclosure of factual information related to a claim filed in a civil action or a complaint filed in any administrative action regarding any of the following four issues:

  1. An act of sexual assault that is not governed by subdivision (a) of Section 1002 of the Code of Civil Procedure.
  2. An act of sexual harassment, as defined in Section 51.9 of the Civil Code.
  3. An act of workplace harassment or discrimination based on sex, or failure to prevent an act of workplace harassment or discrimination based on sex or an act of retaliation against a person for reporting harassment or discrimination based on sex, as described in subdivisions (h), (i), (j), and (k) of Section 12940 of the Government Code.
  4. An act of harassment or discrimination based on sex, or an act of retaliation against a person for reporting harassment or discrimination based on sex, by the owner of a housing accommodation, as described in Section 12955 of the Government Code.[3]

Also, please recall that 5 CCR § 80303 requires a report be made to the California Commission on Teacher Credentialing (“CCTC”) within 30 calendar days following the final employment action for a certificated employee, which occurred as a result of an allegation of misconduct or while an allegation of misconduct is pending.[4]

SB 1343

Since 2005, California law has required that all supervisors of public employers (such as K-12 school districts, county offices of education, and community college districts) regardless of the number of employees and all supervisors of private employers with 50 or more employees receive at least two hours of interactive training regarding sexual harassment prevention within the first six months of the supervisor assuming the position.  This requirement also applies to a K-12 district board member as the board is ultimately responsible for the hiring and termination of employees.

Effective January 1, 2020, all supervisors of public employers and all supervisors of private employers with five or more employees must receive at least two hours of interactive training regarding sexual harassment prevention within the first six months of the supervisor assuming the position and every two years thereafter.[5]

Also effective January 1, 2020, all nonsupervisory staff of public employers and all nonsupervisory staff of private employers with five or more employees must receive at least one hour of interactive training regarding sexual harassment prevention within the first six months of their assumption of a position and every two years thereafter.

Effective January 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than six months, an employer shall provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.[6]

While districts can continue to use other methods to complete the training (such as an “in-person” workshop or via online training), the Department of Fair Employment and Housing (“DFEH”) will be required to offer two online training courses on the prevention of sexual harassment in the workplace with the course for nonsupervisory employees being one hour in length and the course for supervisory employees being two hours in length.[7]

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

© 2018 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] Available at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB820.

[2] Available at: http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1343.

[3] Code of Civil Procedure § 1001.

[4] Please see generally: https://www.ctc.ca.gov/educator-discipline/school-districts.

[5] Government Code § 12950.1(a).

[6] Government Code § 12950.1(h)(1).

[7] Government Code § 12950.1(k).

Legal Update Memo No. 37-2018 – New Law Requires Schools to Limit Use of Restraint and Seclusion for All Students and to Collect Related Data (K-12)

Download pdf: 37-2018 – New Law Requires Schools to Limit Use of Restraint and Seclusion for All Students w attachment (JEN)

Governor Brown recently signed into law Assembly Bill 2657, also known as the Weber Law.  AB 2657, which is attached to this Legal Update, added sections 49005 through 49006.4 to the Education Code.

New law prohibits use of behavioral restraints by any educational providers[1] unless it is necessary to control student behavior that poses a clear and present danger of serious physical harm to the student or others, and that harm cannot be immediately prevented by a response that is less restrictive.[2]  This bill applies to all students, not only students with disabilities.[3]

AB 2657 provides that restraint and seclusion of students should be used as a “last resort,” and can never be used as punishment or discipline or for staff convenience.  Newly added section 49005.8 of the Education Code details what actions are now impermissible as to all students.  Of note is the explicit requirement that no student can be held in a prone (facedown) restraint if his or her hands are held or restrained behind his or her back.

For purposes of this law, “behavioral restraints” includes both mechanical and physical restraints.  Mechanical restraints do not include adaptive devices or restraints used by peace officers or security officers for detention or public safety purposes.  Physical restraints include any action that immobilizes or reduces the ability of a student to move his or her torso, arms, legs, or head.  However, an educational provider is still permitted to physically escort a student who is acting out for the purpose of inducing that student to walk to a safe location, which can involve temporarily touching or holding that student’s hand, wrist, arm, shoulder, or back.

For purposes of this law, “seclusion” includes any involuntary confinement of a child by himself or herself, where the child is physically prevented from leaving.  Educational providers may continue to use “timeout” so long as the timeout is monitored, not locked, and is used only for the purpose of calming.

The new law also requires annual reporting of the use of behavioral restraints and seclusion.  All school districts, county offices of education, and charter schools are required to report to the CDE the number of behavioral restraints and seclusions for students enrolled in or served by the local educational agency.  This reporting must be disaggregated into the both the number of times and the number of students, and separate counts must be provided in each category for students with Individualized Education Plans, students with 504 plans, and all other students.  This reporting must include information on students placed in non-district programs, such as nonpublic schools.

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

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

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

 © 2018 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] “Educational providers” is defined to include any person who provides educational or related services, support, or other assistance to any student enrolled in a local educational agency, nonpublic school, or nonpublic agency.

[2] Existing law prohibited corporal punishment of students.

[3] This bill did not amend the portions of the Education Code related to behavioral interventions and students with disabilities, located at Education Code §§ 56520 to 56525.

Legal Update Memo No. 36-2018 – Legislation Requires Districts that Offer Interscholastic Athletic Programs to Acquire Automatic External Defibrillators (“AEDs”) (K-12)

Download pdf: 36-2018 – Legislation Requires Districts that Offer Interscholastic Athletic Programs to Acquire AEDs w attach (FZ)

On September 21, 2018, Governor Brown signed AB 2009 requiring school districts that offer any interscholastic athletic program to acquire at least one Automatic External Defibrillator (“AED”), also known as an Automated External Defibrillator.  The new law adds §§ 35179.4 and 35179.6 to the Education Code.  Both statutes require the affected districts to take certain steps, and encourage other actions by those districts, and also reiterate that districts can get immunity from lawsuits for AED use by complying with pre-existing statutes.  Most of the legislation takes effect January 1, 2019, although the requirement to acquire an AED does not take effect until July 1, 2019.

An AED is a portable device that can be used to provide emergency treatment for cardiac arrhythmias (i.e., heartbeat irregularities).  The AED diagnoses an arrhythmia and applies electrical therapy to correct the arrhythmia, allowing the heart to reestablish an effective rhythm.  It is intended to be used by non-medical personnel who have been trained in its use.

In 2014, the Legislature adopted AB 2217, which added Education Code § 49417, authorizing school districts to solicit private funds to acquire and maintain one or more AED units.  Any funds solicited can be used only to purchase and maintain AED units, and to provide training to school employees for their use.

Our Legal Update No. 35-2014, which discussed AB 2217, went into some detail about the various statutes and the Title 22 regulation governing ownership and maintenance of an AED.  To avoid lengthening this Update by repeating those details, we instead attach a copy of LU 35-2014.  That Update also summarized the requirements that must be followed in order for a public entity to qualify for immunity from a lawsuit for using an AED

Besides the requirement of acquiring at least one AED, the new legislation has various other provisions affecting school entities that offer interscholastic athletic programs. These provisions include:

1)   Districts must ensure that a written emergency action plan is in place and posted, describing the location and procedures to be followed in the event of sudden cardiac arrest or other medical emergencies related to the athletic program’s activities or events.

2)   Districts are encouraged to ensure that an AED or AEDs are available to render emergency treatment within three to five minutes of sudden cardiac arrest to pupils, spectators, and anyone else attending an athletic program or event.

3)   Districts must ensure that the AED or AEDs are available to trainers, coaches, and other authorized persons at the program or event.

4)   Districts must ensure that the AED or AEDs are maintained and regularly tested (which, as can be seen from the 2014 Update, is also a requirement for districts to benefit from the lawsuit immunity).

IMPLICATIONS FOR DISTRICTS:

In 2014, we advised that Districts should carefully consider whether to use the then-new statute to solicit funds to acquire an AED.  Apart from the 2018 legislation, there is no legal requirement that districts obtain such devices.  Districts that offer interscholastic athletic programs, of course (even elementary school districts) will have to acquire an AED by next July 1 to comply with the new law.

A district that acquires an AED should consult with legal counsel about the full range of obligations it must comply with in order to benefit from the lawsuit immunity discussed in LU 35-2014.  Our office also strongly encourages districts to consult with their insurance carriers about coverage in case of an AED-related issue.

Legal Update written by Frank Zotter, Jr., Senior Associate General Counsel.

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

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

© 2018 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. 15-2018 – Governor Signs Bill Amending Partial Pay During Parental Leave (AB 2012) (CCD)

Download pdf: 15-2018(CC) – Governor Signs Bill Amending Partial Pay During Parental Leave (AB 2012) (NLK-SHS)

Governor Brown signed Assembly Bill (“AB”) 2012 on September 30, 2018, amending “parental leave” pay for academic and classified employees of community college districts, effective January 1, 2019.[1]

Existing law allows academic and classified employees of community college districts to take “parental leave” to bond with their newborn, adopted, or foster child for a period of up to 12 workweeks within one year after the child’s date of birth or placement.[2] Employees are required to exhaust all of their current and accumulated sick leave before they are eligible to receive partial compensation for the remainder of the 12 workweeks pursuant to Education Code sections 87780.1 and 88196.1.

Under existing law, upon exhaustion of current and accumulated sick leave, employees are compensated in accordance with either the differential pay or the fifty percent pay system in effect at the community college district.

Under the differential pay system, academic employees receive the difference between their regular salary and the amount actually paid to a temporary employee employed to fill his or her position during his or her absence or, if no temporary employee was employed, the amount that would have been paid to a temporary employee had one been hired.[3] Classified employees receive the difference between their regular salary and the amount actually paid to their substitutes.[4] Under the fifty percent pay system, academic and classified employees are compensated at a rate of at least fifty percent of their regular salary.[5]

Effective January 1, 2019, employees who continue to take parental leave after exhaustion of all available sick leave must be paid at a rate not less than 50% of their regular salary, without regard to the pay system in effect at the community college district. If the community college district uses the differential pay system, they must pay the employee the differential rate or 50% of the employee’s regular salary, whichever is greater.

Please note that, after exhaustion of all sick leave, employees are entitled to partial compensation only if they qualify and continue their leave of absence for baby bonding purposes pursuant to the California Family Rights Act (CFRA).[6]  Employees who are not eligible for CFRA leave are not entitled to partial pay under Education Code sections 87780.1 and 88196.1.

Legal Update written by Nancy L. Klein, Senior Associate General Counsel and Sarah Hirschfeld-Sussman, Schools Legal Counsel.

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

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

© 2018 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] Assembly Bill 2012 is available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2012 .

[2] Education Code sections 87780.1 & 88196.1.

[3] Education Code section 87780.1(a)(2).

[4] Education Code section 88196.1(a)(2).

[5] Education Code sections 87780.1(a)(3) & 88196.1(a)(3).

[6] Government Code section 12954.2.

Legal Update Memo No. 35-2018 – Governor Signs Bill Amending Partial Pay During Parental Leave (AB 2012) (K-12)

Download pdf: 35-2018 – Governor Signs Bill Amending Partial Pay During Parental Leave (AB 2012) (NLK-SHS)

Governor Brown signed Assembly Bill (“AB”) 2012 on September 30, 2018, amending “parental leave” pay for certificated and classified employees of school districts and classified employees of county offices of education,[1] effective January 1, 2019.[2]

Existing law allows employees of school districts and county offices of education (collectively Local Educational Agencies, or “LEAs”) to take “parental leave” to bond with their newborn, adopted, or foster child for a period of up to 12 workweeks within one year after the child’s date of birth or placement.[3] Employees are required to exhaust all of their current and accumulated sick leave before they are eligible to receive partial compensation for the remainder of the 12 workweeks pursuant to Education Code sections 44977.5 and 45196.1.

Under existing law, upon exhaustion of current and accumulated sick leave, employees are compensated in accordance with either the differential pay or the fifty percent pay system in effect at the LEA.

Under the differential pay system, certificated employees receive the difference between their regular salary and the amount actually paid to their substitute or the amount that would have been paid to their substitute had one be hired.[4] Classified employees receive the difference between their regular salary and the amount actually paid to their substitutes.[5]  Under the fifty percent pay system, certificated and classified employees are compensated at a rate of at least fifty percent of their regular salary.[6]

Effective January 1, 2019, employees who continue to take parental leave after exhaustion of all available sick leave must be paid at a rate not less than 50% of their regular salary, without regard to the pay system in effect at the LEA. If the LEA uses the differential pay system, they must pay the employee the differential rate or 50% of the employee’s regular salary, whichever is greater.

Please note that, after exhaustion of all sick leave, employees are entitled to partial compensation only if they qualify and continue their leave of absence for baby bonding purposes pursuant to the California Family Rights Act (CFRA).[7]  Employees who are not eligible for CFRA leave are not entitled to partial pay under Education Code sections 44977.5 or 45196.1.

Legal Update written by: Nancy L. Klein, Senior Associate General Counsel and Sarah Hirschfeld-Sussman, Schools Legal Counsel

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

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

 © 2018 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] The collective bargaining agreement and/or the county superintendent’s policies or procedures may make AB 2012 also applicable to certificated employees of a county superintendent.

[2] Assembly Bill 2012 is available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2012 .

[3] Education Code sections 44977.5, 45196.1 & 1311.

[4] Education Code section 44977.5(a)(2).

[5] Education Code section 45196.1(a)(2).

[6] Education Code sections 44977.5(a)(3) & 45196.1(a)(3).

[7] Government Code section 12954.2.

Legal Update Memo No. 14-2018 – 2018 Governing Board Elections and Organizational Meetings and Frequently Asked Questions (CCD))

Download pdf: 14-2018(CC) – 2018 Governing Board Elections and Organizational Meetings and FAQs (FZ)

WHAT’S NEW:

Statutes Amended Effective in 2019 (AB 2449)

On July 18, 2018, Governor Brown signed AB 2449, which amended Education Code sections 1007, 1009, 5017, and 72027. As described below, these amendments will change the effective date for the end of an incumbent trustee’s term of office, the commencement of the term of that person’s successor, and the timing of the organizational meeting of a county board of education.

This bill was neither urgency legislation nor was it part of a budget trailer bill, and therefore will take effect only on January 1, 2019. The amendments will not affect the terms of board members whose terms expire in 2018, nor the commencement of the terms of a trustee elected in 2018. See the discussion below under “Term of Office.” Here is a summary of those changes, which, again, will only affect someone who leaves office in 2019 or later, or who takes office following an election in 2019 and thereafter:

County Boards of Education:

The amendment to Education Code section 1007 moves the date on which outgoing members’ terms of office end, and on which newly-elected members take office, from the last Friday in November to the second Friday in December. For county board members elected at the California primary (whether in March or June), their terms of office will continue to commence on the first day of July.

The amendment to Education Code section 1009 likewise changes 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 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.

Community College Districts:

The amendment to Education Code section 72027 changes the last day of the term of office for a sitting board member, and the commencement of the term of a newly-elected board member, 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, school board, and college board trustees—lengthen their terms of office slightly, those incumbents’ terms 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 2018 will commence office on December 7, 2018. Under the pre-AB 2449 legislation, that incumbent’s term of office would have expired on December 2, 2022. Under AB 2449, that person’s term will now expire December 9, 2022. County board members, the only local body whose terms of office began and ended in November, will have their terms of office extended by approximately two weeks.

Because of AB 415, which became law in 2015, most local government entities that formerly held their elections in odd-numbered years have moved their elections to even-numbered years. It is therefore likely that the effects of AB 2449, except for the organizational meetings for county boards, will not be felt until 2020 and later.

ORGANIZATIONAL MEETINGS

(Education Code Section 35143)

Each school district, community college district, and county office of education is required to hold an annual organizational meeting.  In an election year, a school district or community college organizational meeting is 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 first 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 7, 2018. Note that only county boards’ organizational meetings were affected by AB 2449.

Organizational meetings should be held as follows:

  1. Governing Boards of School Districts and Community College Districts.

 The organizational meeting must be held within 15 days of the first 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).

  1. 2. 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.

 The organizational meeting is the first meeting after the last Friday in November or the first meeting on or after the first day in July, depending on whether the terms of office of the Board members commence on the last Friday in November, or July 1. Starting in December, 2019, 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.

ELECTION ISSUES

Districts with the governing board elections scheduled for 2018 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.

  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.  As noted above, 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.

Because most entities that were required to make this change have either already done so or have adopted the required plan by last January, we have removed from this Legal Update the detailed discussion of how to switch an election cycle from odd-numbered to even-numbered years. Any districts that have either not made the switch but that need assistance in doing so 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 section 1090, a long-term school district or community college 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.  See Government Code section 1091.5, subd. (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.

If a spouse has been an employee of the district for at least one year before the other spouse joins the governing board, then the other 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.

  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, subdivision (c), term limits do not apply to school district governing boards.

  1. May a school board member hold another political 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).)

In 2005, the Legislature adopted Government Code section 1099, thereby codifying the common law rule. 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 will continue to aid in the application of the new statute.

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?

For K-12 board members elected in odd-numbered years,[1] Education Code section 5000 provides as follows (emphasis added):

After the initial election of governing board members in any school district or community college district, a governing board member election shall be held biennially on the first Tuesday after the first Monday in November of each succeeding odd-numbered year to fill the offices of members whose terms expire on the first Friday in December next succeeding the election.  Except as provided in this chapter, or in Chapter 2 (commencing with Section 5200), the elections shall be held and conducted in accordance with Chapter 3 (commencing with Section 5300).

Similarly, for board members elected in even-numbered years, Education Code section 5017 provides as follows (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 first 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.

Finally, 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.

Because Education Code section 5300 provides that provisions of the Elections Code apply to school district elections “except as otherwise provided in the code” it appears that the 2018 amendments to sections 1007, 5017, and 72027 about the terms of office commencing on the second Friday in December will take precedence over Elections Code section 10554 beginning in 2019, because the amendments to those statutes by AB 2449 will make them the more specific statutes with respect to when each elected trustee’s term commences.

  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 last Friday in November subsequent to their election.”  Thus, the first day of the term of incoming board members who were elected in June is July 1, and for those elected in November, their first day is the last Friday of November. (Note, once again, that in 2019 this will change to the second Friday in December.)

It is common for new members who are succeeding outgoing members to be sworn in at the first organizational meeting, which as noted above is different from the date upon which the terms of office for these board members actually begin and end.  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—for 2018 only—the last Friday in November (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, before any officer enters on the duties of his office, he 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” 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.  (Emphasis added.)

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 28 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:

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 date upon which a governing board member elected at that election takes office.  Organizational meetings in years in which no such regular election for governing board members is conducted shall be held during the same 15-day period on the calendar.  Unless otherwise provided by rule of the governing board, the day and time of the annual meeting shall be selected by the board at its regular meeting held immediately prior to the first day of such 15-day period, and the board shall notify the county superintendent of schools of the day and time selected.  The clerk of the board shall, within 15 days prior to the date of the annual meeting, notify in writing all members and members-elect of the date and time selected for the meeting.

If the board fails to select a day and time for the meeting, the county superintendent of schools having jurisdiction over the district shall, prior to the first day of such 15-day period and after the regular meeting of the board held immediately prior to 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.  He shall notify in writing all members and members-elect of the date and time.

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.

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

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.

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 which 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.

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

Board Member Resignation

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

Yes.  Government Code section 1770, subdivision (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 . . .”

  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?

Probably not.  The law applicable to resignations has not been amended to provide for electronic or facsimile substitution for written resignations.

  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, subdivision (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.

  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 (Govt. Code section 6250 et seq.) 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?

Good question!  The Brown Act simply does not provide a ready response to this question.

We have recommended 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.

Legal Update written by Frank Zotter, Jr., 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.

 © 2018 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 the discussion in the “What’s New” section above. The Legislature was apparently confident that AB 415 has forced all school entities to switch from odd-year to even-year elections. This can be inferred because AB 2449 only requires those entities that hold elections in even-numbered years to switch the start date for terms of office to the second Friday in December. The start date for entities that hold elections in odd-numbered years has not been changed.

[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.

Legal Update Memo No. 34-2018 – 2018 Governing Board Elections and Organizational Meetings and Frequently Asked Questions (K-12)

Download pdf: 34-2018 – 2018 Governing Board Elections and Organizational Meetings and FAQs (FZ)

WHAT’S NEW:

Statutes Amended Effective in 2019 (AB 2449)

On July 18, 2018, Governor Brown signed AB 2449, which amended Education Code sections 1007, 1009, 5017, and 72027. As described below, these amendments will change the effective date for the end of an incumbent trustee’s term of office, the commencement of the term of that person’s successor, and the timing of the organizational meeting of a county board of education.

This bill was neither urgency legislation nor was it part of a budget trailer bill, and therefore will take effect only on January 1, 2019. The amendments will not affect the terms of board members whose terms expire in 2018, nor the commencement of the terms of a trustee elected in 2018. See the discussion below under “Term of Office.” Here is a summary of those changes, which, again, will only affect someone who leaves office in 2019 or later, or who takes office following an election in 2019 and thereafter:

County Boards of Education:

The amendment to Education Code section 1007 moves the date on which outgoing members’ terms of office end, and on which newly-elected members take office, from the last Friday in November to the second Friday in December. For county board members elected at the California primary (whether in March or June), their terms of office will continue to commence on the first day of July.

The amendment to Education Code section 1009 likewise changes 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 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.

Community College Districts:

The amendment to Education Code section 72027 changes the last day of the term of office for a sitting board member, and the commencement of the term of a newly-elected board member, 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, school board, and college board trustees—lengthen their terms of office slightly, those incumbents’ terms 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 2018 will commence office on December 7, 2018. Under the pre-AB 2449 legislation, that incumbent’s term of office would have expired on December 2, 2022. Under AB 2449, that person’s term will now expire December 9, 2022. County board members, the only local body whose terms of office began and ended in November, will have their terms of office extended by approximately two weeks.

Because of AB 415, which became law in 2015, most local government entities that formerly held their elections in odd-numbered years have moved their elections to even-numbered years. It is therefore likely that the effects of AB 2449, except for the organizational meetings for county boards, will not be felt until 2020 and later.

ORGANIZATIONAL MEETINGS

(Education Code Section 35143)

Each school district, community college district, and county office of education is required to hold an annual organizational meeting.  In an election year, a school district or community college organizational meeting is 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 first 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 7, 2018. Note that only county boards’ organizational meetings were affected by AB 2449.

Organizational meetings should be held as follows:

  1. Governing Boards of School Districts and Community College Districts.

 The organizational meeting must be held within 15 days of the first 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).

  1. 2. 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.

 The organizational meeting is the first meeting after the last Friday in November or the first meeting on or after the first day in July, depending on whether the terms of office of the Board members commence on the last Friday in November, or July 1. Starting in December, 2019, 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.

ELECTION ISSUES

Districts with the governing board elections scheduled for 2018 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.

  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.  As noted above, 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.

Because most entities that were required to make this change have either already done so or have adopted the required plan by last January, we have removed from this Legal Update the detailed discussion of how to switch an election cycle from odd-numbered to even-numbered years. Any districts that have either not made the switch but that need assistance in doing so 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 section 1090, a long-term school district or community college 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.  See Government Code section 1091.5, subd. (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.

If a spouse has been an employee of the district for at least one year before the other spouse joins the governing board, then the other 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.

  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, subdivision (c), term limits do not apply to school district governing boards.

  1. May a school board member hold another political 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).)

In 2005, the Legislature adopted Government Code section 1099, thereby codifying the common law rule. 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 will continue to aid in the application of the new statute.

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?

For K-12 board members elected in odd-numbered years,[1] Education Code section 5000 provides as follows (emphasis added):

After the initial election of governing board members in any school district or community college district, a governing board member election shall be held biennially on the first Tuesday after the first Monday in November of each succeeding odd-numbered year to fill the offices of members whose terms expire on the first Friday in December next succeeding the election.  Except as provided in this chapter, or in Chapter 2 (commencing with Section 5200), the elections shall be held and conducted in accordance with Chapter 3 (commencing with Section 5300).

Similarly, for board members elected in even-numbered years, Education Code section 5017 provides as follows (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 first 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.

Finally, 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.

Because Education Code section 5300 provides that provisions of the Elections Code apply to school district elections “except as otherwise provided in the code” it appears that the 2018 amendments to sections 1007, 5017, and 72027 about the terms of office commencing on the second Friday in December will take precedence over Elections Code section 10554 beginning in 2019, because the amendments to those statutes by AB 2449 will make them the more specific statutes with respect to when each elected trustee’s term commences.

  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 last Friday in November subsequent to their election.”  Thus, the first day of the term of incoming board members who were elected in June is July 1, and for those elected in November, their first day is the last Friday of November. (Note, once again, that in 2019 this will change to the second Friday in December.)

It is common for new members who are succeeding outgoing members to be sworn in at the first organizational meeting, which as noted above is different from the date upon which the terms of office for these board members actually begin and end.  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—for 2018 only—the last Friday in November (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, before any officer enters on the duties of his office, he 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” 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.  (Emphasis added.)

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 28 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:

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 date upon which a governing board member elected at that election takes office.  Organizational meetings in years in which no such regular election for governing board members is conducted shall be held during the same 15-day period on the calendar.  Unless otherwise provided by rule of the governing board, the day and time of the annual meeting shall be selected by the board at its regular meeting held immediately prior to the first day of such 15-day period, and the board shall notify the county superintendent of schools of the day and time selected.  The clerk of the board shall, within 15 days prior to the date of the annual meeting, notify in writing all members and members-elect of the date and time selected for the meeting.

If the board fails to select a day and time for the meeting, the county superintendent of schools having jurisdiction over the district shall, prior to the first day of such 15-day period and after the regular meeting of the board held immediately prior to 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.  He shall notify in writing all members and members-elect of the date and time.

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.

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

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.

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 which 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.

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

Board Member Resignation

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

Yes.  Government Code section 1770, subdivision (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 . . .”

  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?

Probably not.  The law applicable to resignations has not been amended to provide for electronic or facsimile substitution for written resignations.

  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, subdivision (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.

  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 (Govt. Code section 6250 et seq.) 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?

Good question!  The Brown Act simply does not provide a ready response to this question.

We have recommended 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.

Legal Update written by Frank Zotter, Jr., 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.

 © 2018 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 the discussion in the “What’s New” section above. The Legislature was apparently confident that AB 415 has forced all school entities to switch from odd-year to even-year elections. This can be inferred because AB 2449 only requires those entities that hold elections in even-numbered years to switch the start date for terms of office to the second Friday in December. The start date for entities that hold elections in odd-numbered years has not been changed.

[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.