Response to Widespread Fire Emergency (CCD)

Since October 9, 2017, numerous community college districts in multiple counties have been affected by the widespread wildfires that have resulted in the destruction of many homes and businesses. This Legal Update provides information for districts determining whether to close campuses, how to address damage or destruction of district property, and how to address other issues related to the fires. This is an updated version of previous Legal Update 19-2014 regarding emergency issues for severe winter storms.

LEGAL UPDATE

October 13, 2017

To:  Superintendents/Presidents/Chancellors, Member Community College Districts

From: Frank Zotter, Jr., Senior Associate General Counsel, Mia N. Robertshaw, Associate General Counsel and Ellie R. Austin, Schools Legal Counsel

Subject: Response to Widespread Fire Emergency

Memo No. 22-2017(CC)

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Since October 9, 2017, numerous community college districts in multiple counties have been affected by the widespread wildfires that have resulted in the destruction of many homes and businesses.  This Legal Update provides information for districts determining whether to close campuses, how to address damage or destruction of district property, and how to address other issues related to the fires.  This is an updated version of previous Legal Update 19-2014 regarding emergency issues for severe winter storms.

General Emergency Obligations:

Districts should have an emergency preparedness plan, which is tailored for its specific region.[1] The District’s emergency preparedness plan must be written in accordance with the Standardized Emergency Management System (“SEMS”) and the National Incident Management System (“NIMS”) guidelines.  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.[2] Furthermore, the SEMS must be used to coordinate emergency operations[3] and each local agency must integrate the NIMS with SEMS.

Districts’ emergency preparedness plans should include guidelines addressing the following areas:

1.     Campus Emergency Management Team

2.     Employee Training

3.     Emergency Management Team / Specialized Employee Training

4.     Emergency Preparedness Components

a.     Preparedness

b.     Prevention

c.     Response

d.     Recovery

e.     Mitigation

5.     Agency Coordination

6.     Active Shooter Response Plan

More information regarding emergency preparedness plans can be found on the Chancellor’s Office website at http://extranet.cccco.edu/Divisions/FinanceFacilities/EmergencyPreparedness.aspx.

Districts should also follow their emergency response and evacuation procedures as described in their annual security reports under the Clery Act.[4]

Districts have an additional obligation under the Clery Act to issue emergency notifications when there is an immediate threat to the health or safety of students or employees occurring on campus, such as an approaching fire or a fire raging in one of the district’s buildings.  Districts should follow their emergency notification procedures adopted in compliance with the Clery Act.[5] If the district issues an emergency notification, it is not required to issue a timely warning based on the same circumstances; however, the district should provide adequate follow-up information to the community as needed.[6]

Districts may grant the use of college facilities, grounds, and equipment to public agencies, including the American Red Cross, for mass care and welfare shelters during natural disasters or other emergencies.[7] Districts may cooperate with such agencies by furnishing and maintaining whatever services the district deems necessary to meet community needs, which could include cots, blankets, food, water, and similar amenities.[8] Moreover, District employees are considered disaster service workers and are subject to disaster service assignment in an emergency.[9]

Whenever a local emergency has been proclaimed by an official or the governing body of a city, county, or city and county, districts may provide mutual aid to any affected area in accordance with local ordinances, resolutions, emergency plans, and agreements therefor.[10] During a local emergency, district governing boards or officials designated by the board may promulgate orders and regulations necessary to provide for the protection of life and property.[11] Any such orders or regulations must be in writing and must be given widespread publicity and notice.[12] The costs of extraordinary services incurred by districts operating under mutual aid agreements are addressed in Government Code section 8567.

Districts should contact the Governor’s Office of Emergency Services[13] or the county emergency management agency for more information on planning and preparedness for school emergencies.

Whether to Close a Campus:

Clients sometimes ask under what circumstances the decision should be made to close a campus or all campuses within a district—i.e., should this be made on a districtwide basis, or should each campus be left to make that decision individually?  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, as well as the district’s emergency preparedness plan.

In many cases during the recent emergency, this decision was straightforward because the fire emergency was immediate.  In the coming days, or should a new emergency arise, districts should keep in mind that this is really a political or administrative decision and not a legal question per se.

One can envision situations in which it might be relatively safe for students in one part of a county to go to campus when the situation in another part of the county places the students and staff at serious risk, both in trying to get to campus or in trying to evacuate if the campus is closed mid-day.  In some situations it is safe for some campuses to remain open even while others must close, thus making this a campus-by-campus basis rather than a districtwide or county-wide issue.

Student and Staff Notification:

Plans for notifying students and staff of campus or district closures should be addressed in each district’s emergency preparedness plan.[14]  For more information on emergency preparedness plans, please see the attached memorandum from the Chancellor’s Office.

Districts should make preliminary contacts with local press organizations, particularly radio stations, in order to have a ready list of contact information to disseminate word of the closure. The closure should be announced on the district’s and each affected campus’s websites.  Districts should also contact the county emergency management agency to determine whether “reverse 911” is available in a district’s jurisdictional area so that a single call can be placed to each student’s and staff member’s contact number to advise of the closure.

Entitlement to Apportionment:

Another issue is whether districts are obligated to make up a missed day to receive their full apportionment.

As a general rule, districts must “maintain the colleges of the district” and have a minimum of 175 days of instruction in order to receive the full apportionment.[15]  If a district fails to meet the 175 day minimum, its apportionment may be withheld by “the product of 0.01143 times the district’s apportionment for each additional day the district would have had to maintain its colleges in order to meet the requirement prescribed by [the regulation].”[16]

However, if a district is prevented from maintaining its schools for at least 175 days because of a fire, flood, epidemic, or certain other conditions, the district “shall receive the same apportionment from the State School Fund as it would have received had it not been so prevented from maintaining school for at least 175 days.”[17]

In addition, if “the full-time equivalent student of a district is materially decreased during any fiscal year because of:  1) fire, 2) flood, 3) impassable roads, … 5) the imminence of a major safety hazard as determined by local law enforcement, … 7) the unavailability of classroom facilities leased by the district … and is caused by extraordinary factors wholly external to and beyond the control of the district,” or certain other conditions, then “[t]he funding workload measures of the district for the fiscal year shall be estimated by the Board of Governors in such manner as to credit to the district from the State School Fund approximately the total which would have been credited to the district had the emergency not occurred.”[18]  In order to get credit when the full-time equivalent student has been materially decreased, the district must demonstrate that it made good faith efforts to seek alternate facilities.[19]  Such credit will not be allowed for facilities that are unavailable for more than one full term from the beginning of the particular condition that caused the decrease.

To receive full apportionment when either the district is prevented from maintaining school for 175 days or when the full-time equivalent student has been materially decreased due to the fire, flood, or other extraordinary conditions, the governing board of the district must submit an affidavit to the Chancellor’s Office asserting the applicability of one or more of the above circumstances.[20] Districts should submit Form FS-313 to the Chancellor’s Office.  Form FS-313 includes both the required affidavit and information concerning a district’s inability to meet the 175-day requirement and/or a material decrease in full-time student equivalent, and can be found online at http://extranet.cccco.edu/Portals/1/CFFP/Fiscal_Services/Attndc_Acctg/Emergency_FTES_Allowance_Form_RevJun2013.pdf.

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 normally will 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 an emergency, 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 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 guarantee pay during such a closure or give an hourly employee the 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 apportionment despite closing for one or more days 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 working a make-up day should be negotiated.

Contractual Obligations between Districts:

Another issue is whether contractual obligations between districts are enforceable despite a campus closure. 

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 that was supposed to perform or deliver goods to another is typically excused from performance under the contract.  Thus, if a road is closed or a bridge has been damaged or destroyed by fire, the party that 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, it would have been obligated to perform.  This likewise excuses the payment of damages for the non-performance.  In the event of a challenge to a party’s non-performance, a court would consider the particular facts at issue to determine whether the non-performing party was excused from performance because of its inability to perform.  The determination may depend on the particular provisions of the contract at issue.

Solicitation of Donations:

Unfortunately, in too many cases arising from the recent events, some districts’ employees have lost their homes, vehicles, or both.  We have been asked to address whether it is proper for a district to put a notice on its website soliciting donations to assist a specific person, e.g., “Donna Brown lost her home in the recent firestorm, and anyone wishing to donate to assist her should click here.” While such sentiments are certainly laudable, our office has cautioned in the past against using district property or resources to assist a specific individual.

Instead, we recommend that districts that wish to assist fire victims either accept general donations (or perhaps coordinate with local relief agencies for the delivery of any such funds that are received) or perhaps put a general appeal for such donations on their website.  Alternatively, districts could provide a link to local relief agencies so that someone who wants to donate can find those links through the district website.  Specific employees who have lost their homes or other possessions and who want to solicit donations can, of course, do so through private on-line crowdfunding sites, such as www.gofundme.com.

In addition, for those employees who are members of a union, assistance for victims of a natural disaster may be available.  For example, the California School Employees Association (CSEA) offers financial assistance to unit members who are displaced and/or suffered a loss.  There are applications on CSEA’s website, www.csea.com, or unit members can call their chapter President for assistance with the application process.  CSEA unit members can also call their area field office, such as the North Bay Field Office at (925) 288-1154.  Members of the California Teachers Association, Service Employees International Union, and other unions should explore whether similar benefits are available.

Waiver of Bidding Requirements in an Emergency:

Under some circumstances, districts can avoid the normal requirement to seek bids for construction because of damage to or destruction of district property.  There are actually two different procedures to follow—one for those districts that have adopted the California Uniform Public Cost Accounting Act, or “CUPCAA,” and one for those districts that have not.

a.     Districts that have not adopted CUPCAA:

For those districts that have not adopted CUPCAA, Public Contract Code § 20111, subdivision (b) requires competitive bidding for construction services (which Public Contract Code § 22002 refers to as “public projects”), and sets the threshold at which bidding is required at projects costing $15,000 or more.  “Public project” is defined in the Public Contract Code, among other things, as construction, reconstruction, erection, alteration, renovation, improvement, demolition, repair, painting and repainting.

In an emergency, however, when any repairs, alterations, work, or improvement is necessary to any facility of the college, or to permit the continuance of existing college classes, or to avoid danger to life or property, the board may by unanimous vote, and with the approval of the county superintendent of schools, make a contract for the performance of labor and furnishing of materials or supplies without advertising or inviting bids, and may authorize the use of day labor or force account for that purpose.[21] An emergency is defined as an unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services.[22]

b.     Districts that have adopted CUPCAA:

For those districts that have adopted CUPCAA, in cases of emergency, the public agency is to comply with the procedures found commencing with Public Contract Code § 22050.[23]  This procedure is slightly different from the one for non-CUPCAA entities.  It permits the district’s board act to by a four-fifths vote, not unanimously, and requires that the entity review the emergency action at every succeeding regular meeting to find whether the conditions for the emergency continues to exist until the action is completed.  An emergency declaration under CUPCAA also does not require approval by the County Superintendent.

Courts interpret the existence of an “emergency” under these statutes narrowly, because they do away with the competitive bidding that ordinarily would ensure that public entities get construction work at the lowest available price.  The longer after the conclusion of the emergency situation that a district acts, therefore, the likelier that it will not be able to argue that dispensing with bidding was necessary.  Furthermore, depending upon how long it will take for the construction, it is arguable that there is no emergency if the work involves complete reconstruction instead of, e.g., repair to a damaged roof.  In the latter situation, it could be argued that immediate work is necessary to preserve the integrity of a structure or to protect the contents before the winter rains arrive, whereas complete reconstruction, because it may take most of the remainder of a school year, might not really justify an emergency declaration “to avoid danger to life or property.”

Sample resolutions for each kind of entity (non-CUPCAA and those operating under CUPCAA) are attached.

We recommend you seek legal counsel if the district intends to utilize the emergency allowances under the Public Contract Code.

Accommodation for Impacted Students:

A district may provide a full refund of enrollment fees to any student who withdrew from one or more classes, where the district finds that such withdrawal was necessary for one of the following reasons:

1.     The college attended by the student was closed or the college was unable to provide all or substantially all of the instruction in the course(s) in which the student was enrolled due to fire, flood, or other conditions qualifying for adjustment of apportionment pursuant to California Code of Regulations, Title 5, section 58146; or

2.     Although the district does not qualify for an apportionment adjustment pursuant to section 58146, one of the conditions enumerated in that section made it difficult or impossible for the student to attend one or more courses because the student was actively engaged in responding to the fire, flood or other condition or because such condition required the student to evacuate his or her home.[24]

The district need not record a “W” on the academic records of a student who withdraws from one or more classes due to either of the above reasons.[25]

Homeless Students:

Many families have lost their homes due to the fires and are currently residing in temporary living situations such as a hotel, friend’s house, shelter, etc.  The McKinney-Vento Act and Education Code define homeless youth as students under age 25, who at any time during the 24 months immediately preceding their application for admission, lack a fixed, regular, and adequate nighttime residence.[26] Students who are verified as homeless shall retain that status for six (6) years from the date of admission to the district or until age 25, whichever comes first.[27] District campuses that administer a priority enrollment system are required to grant priority registration for enrollment to homeless youth until January 1, 2020.[28] Students verified as homeless at the time of enrollment are eligible for a Board of Governors fee waiver.[29] Homeless students must also be served by the Community College Student Financial Aid Outreach Program[30] and the Student Opportunity and Access Program.[31]

Each community college campus that maintains student housing facilities is requested to give priority for housing to current and former homeless youth, and is requested to develop a plan to ensure that current and former homeless youth can access housing resources during and between academic terms.[32] Furthermore, if a community college campus has shower facilities for student use on campus, the district must grant access to those facilities to any homeless student who is enrolled in coursework, has paid enrollment fees, and is in good standing with the district.[33] For additional information, please review Legal Update No. 16-2015.

Districts that are “qualifying institutions” under Education Code section 69432.7 are required to designate a staff member to serve as a Homeless and Foster Student Liaison.[34]

For additional information on community colleges’ obligations to homeless students, please see the Chancellor’s Office Memorandum 17-07, available at  http://extranet.cccco.edu/Portals/1/SSSP/FA/FWAx/SS1707801GuidanceMemo.pdf.   

Continued Absence After Classes Resume:

After classes resume and campuses are open, some employees may not be able to return immediately to work as they may have evacuated out of the immediate geographical area.  These missed days will count as absences for which the employee may be able to receive compensation depending on your applicable collective bargaining agreements and board policy/procedures.  For example, the missed days could be considered vacation days or personal necessity leave for classified employees and personal necessity leave for academic employees.  The governing board also has the authority to grant additional leave (paid or unpaid at the board’s discretion) for employees.[35]

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.

 

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