Recent weather forecasts have suggested that the “El Niño” conditions in the Pacific Ocean may lead to significant rainfall in California during the upcoming rainy season. While providing welcome relief from the drought, heavy rainfall within a short time may lead to flooding (or mudslides, especially in areas where there has been fire damage during this year’s fire season). And even if flooding does not occur, the severe weather may make travel treacherous enough, especially in rural districts, that some school districts may cancel school or close early. We distributed Legal Update 39-2014 on some of these topics last winter, and are supplementing it to discuss some new issues, as well as to confirm the continuing accuracy of the information provided in 2014.

LEGAL UPDATE

September 11, 2015

To: Superintendents, Member School Districts (K-12)

From: Frank Zotter, Jr., Senior Associate General Counsel

Subject: Preparation for Possible Severe Winter Storms

Memo No. 21-2015 – Revised

General Emergency Obligations

Education Code § 32282 requires that emergency procedures be incorporated into the comprehensive school safety plan, and 5 Cal. Code of Regs. § 560 mandates that each Board adopt a policy for civil defense and disaster preparedness. Section 32282 also requires that districts grant the use of school buildings, grounds, and equipment to public agencies, including the American Red Cross, for use as shelters during natural disasters or other emergencies. Districts must cooperate with such agencies by furnishing and maintaining whatever services that the district deems necessary to meet community needs, which could include cots, blankets, food, water, and similar amenities. Assuming that districts will not stock such materials, they will need to procure them with the assistance of the emergency management and relief agencies.

Government Code § 8607 and 19 Cal. Code of Regs. §§ 2400-2450 created the Standardized Emergency Management System (SEMS). While SEMS must still be used to coordinate emergency operations, each local agency must integrate the National Incident Management System (NIMS) with SEMS. Districts should work with their local emergency management agency and their county office of education to assist with this integration.

To be eligible for reimbursement of response-related personnel costs due to a Governor-proclaimed disaster, each district must follow the SEMS Guidelines to coordinate multiple-jurisdiction or multiple-agency operations. Districts should contact the California Emergency Management Agency or the county emergency management agency for more information.

Whether to Close a School

One issue we have been asked to address is under what circumstances the decision should be made to close a school—i.e., should this be made on a county-wide basis, or should each district be left to make that decision individually? This is a difficult question to answer in the abstract, being tied as it is to factual circumstances that will always be unique. In many ways, this is really a political or administrative decision and not a legal question per se. Most districts have adopted Model CSBA Policy 3516.5 – Emergency Services which provides:

In order to provide for the safety of students and staff, the Governing Board authorizes the Superintendent or designee to close a school site, change the regular school day schedule, or take any necessary action when hazardous environmental or weather conditions or other emergencies warrant.

Having said that, one can envision situations in which it might be relatively safe for students in one part of a large county to go to school when the situation another part of the county places the children and staff at serious risk, both in trying to get to the school or in trying to evacuate if the school is closed mid-day. In such counties, it is likely that there will be some situations in which it is safe for some schools to open even while others must close, thus making this less of a county-wide issue. Nevertheless, as noted at the outset, this is a question that always will have to be evaluated at the time, based on the situation facing administrators and taking into account advice from emergency management personnel and state officials.

Parental and Staff Notification

Plans for notifying parents of school closures should have already been addressed in each district’s comprehensive school safety plan or, for smaller districts, their district-wide safety plan.[1] The safety plan should provide, at a minimum, for the collection of emergency contact information from each parent at the beginning of the school year so that districts have a ready means of contacting parents if, e.g., a school must be closed mid-day or to announce the closure of a school at the beginning of the school day.

In the latter situation, districts should make preliminary contacts with local press organizations, particularly radio stations, in order to have a ready list of contact information to disseminate work of the closure. The closure should also be announced on the district’s website. Districts should also contact the county emergency management agency to determine if “reverse 911” is available in a district’s jurisdictional area so that a single call can be placed to each parent’s contact number to advise of the closure.

Similar plans to notify staff in advance of a closure should likewise be readied. The Aeries system may be useful for this purpose; see:

http://help.aeries.com/help/Emergency_School_Closure_Attendance_Procedures#Aeries_SIS_-_Emergency_School_Closure_Attendance_Procedures. School employees, of course, are considered disaster service workers and are subject to disaster service assignment in an emergency. See Government Code § 3100.

Entitlement to Average Daily Attendance (“ADA”)

Another issue is whether, now that most districts have returned to a 180-day school year, they are obligated to make up a missed day or if they must still secure a material decrease waiver. We have checked with the California Department of Education and the short answer is that the change to 180 days did not result in any changes to the law relating to school closures or waivers for ADA because of an emergency.

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

On the other hand, Education Code § 41422 still provides that if “a district that is prevented from maintaining its schools during a fiscal year for at least 175 days” because of various described natural disasters (including flooding), it may show to the satisfaction of the Superintendent of Public Instruction that the natural disasters prevented it from holding classes. In that case, it “shall receive the same apportionment from the State School Fund as it would have received” had the natural disaster not prevented it from meeting the minimum requirements.

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

A district or the county office of education may file a waiver with the Department of Education to request credit for lost ADA and instructional time. This topic is covered in a comprehensive Management Advisory from the California Department of Education, which can be found at http://www.cde.ca.gov/fg/sf/aa/ma9001.asp, which was first issued in 1990 and updated in 2005. As the advisory explains, “School districts and county offices are to be held harmless from revenue loss that might otherwise result from the loss of ADA or instructional time in emergencies.”

The advisory provides detailed instructions on how to claim ADA by using the approved J-13A form, which can be found here in Microsoft Word format: http://www.cde.ca.gov/fg/sf/aa/documents/formj13a.doc. Approval of the waiver allows the school agency to get credit for the lost ADA for the day of the closure as well as for the missed instructional time. While the Form J-13A has many pages, not all of them need be completed for every closure in order to submit the waiver to CDE.

Credit for ADA can also be obtained if a district does not close, but experiences lower than normal enrollment during the time of such emergencies, or even for a reasonable period thereafter. The advisory explains:

Districts that keep schools open during, or immediately after, an emergency may find that attendance is below normal. If the attendance of a school or program is less than 90 percent of “normal” for a reasonable time after the event, then the district may assume that a case exists for claiming emergency attendance credit for the “material decrease” of ADA. Any reduction of ADA in a necessary small school, even if less than 10 percent, may be considered material.

Districts that wish to claim ADA and instructional time credit for a forced closure or reduced enrollment should complete the proper forms and retain supporting documents and records in accordance with the California Department of Education’s instructions outlined in the Management Advisory along with form J-13A. However, as the Department of Education Advisory notes, districts should make every effort to make up lost instructional time.

Districts should also bear in mind that if a school is closed or there is a material decrease in ADA caused by an emergency and the Governor declares a State of Emergency in a county, Education Code § 46392, subd. (b) provides that any decrease in ADA is deemed to be material, and the usual threshold of a minimum decrease of 10% does not need to be met. Thus, filing a waiver application is particularly advisable following a closure in such a situation.

Compensation for Staff during Closures:

Under the Fair Labor Standards Act, exempt employees are not entitled to overtime pay, but they likewise are entitled to receive their full pay for a given pay period (bi-weekly, semi-monthly, or monthly) during which they perform any work. Thus, exempt employees who are told not to report to work because of an emergency closure will normally not lose any compensation if they perform some services during that pay period.

Employees who are paid for a certain number of work days technically may not have to be paid for the day the school is closed, but they also would not be paid any additional amount for a make-up day and so their pay would remain the same overall.

For hourly employees, there is no uniform federal or statewide rule governing whether such employees who are told not to report to duty because of inclement weather, or who are sent home because of such conditions, are entitled to compensation. Ordinarily, that issue is addressed if at all in the collective bargaining agreement or, less commonly, in district policy. Public policy reasons likely would favor an ongoing hourly employee, such as a classified employee, being paid for the time that he or she was scheduled to work but could not because of an emergency school closure. If a district holds a make-up day for the lost instructional time, it may be necessary to pay additional amounts to classified employees who otherwise would not have worked on that day (unlike employees who are paid for a certain number of work days).

We therefore advise districts to review their collective bargaining agreements and/or district policies to see how this issue is addressed. For example, a collective bargaining agreement might give an hourly employee the unfettered right to use a personal necessity day (similar to, or deducted from, sick leave) for such a closure if the employee chooses. Alternatively, as a matter of fairness, districts that receive their full ADA credit for a day on which they closed or had reduced attendance may choose to pay their employees, including hourly staff, their normal or typical day’s pay for that day even though the districts may not be legally obligated to do so. When to schedule a make-up day and compensation issues related to either working a partial day before an emergency closure or scheduling a make-up day (for employees who are not compensated per day worked and so may be entitled to additional pay) should be negotiated.

Contractual Obligations between Districts:

Another issue is whether contractual obligations between districts are enforceable despite a school closure. For example, if one district remains in session and buys lunches from a different district that has elected to close, should the closed district still have to provide lunches?

There is a general legal principle applying to contracts that is referred to as force majeure, also known as “impossibility of performance,” and perhaps more commonly known as an “Act of God.” It describes situations in which, because of natural disasters, civil strife, rioting, acts of terrorism, or the like, one party to an agreement is not able to carry out its obligation under the agreement.

When one party can demonstrate that these kinds of events interfered with the planned provision of goods or services, the party who was supposed to perform or deliver goods to another is typically excused from performance under the contract. Thus, if a road is washed out or a bridge cannot safely be crossed because of high water, the party who was supposed to make a delivery is not expected to risk life and additional property damage (e.g., a vehicle) just to try to perform the obligation that, under normal circumstances, would have been expected. This likewise excuses the payment of damages for the non-performance.

There is, of course, the practical problem of a school that has closed still being expected to provide goods or services to a school that has not, despite conditions at one site being bad enough that cause a closure. Unless (as in the example above) the school lunches or other goods can safely be dispatched from a different location that is not affected by the natural disaster, it is likely that a court would excuse the non-performing party for its inability to perform, and the other party will have to make alternative arrangements.

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.

[1] If a district’s plan has not been updated recently, the U.S. Department of Education has published Practical Information on Crisis Planning, with guidance for schools to develop crisis plans, which is available on its web site at: http://www2.ed.gov/admins/lead/safety/emergencyplan/crisisplanning.pdf . This document recommends that districts work with city and county emergency planners to help integrate resources and that school staff participate in local emergency planning so that the district perspective is addressed by the local government. Likewise, the California Office of Emergency Management has a portion of its website devoted specifically to school emergencies, http://www.caloes.ca.gov/for-schools-educators, with information about responding to a variety of natural disasters.

Preparation for Possible Severe Winter Storms (K-12)

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