Response to Widespread Fire Emergency (K-12)

Since October 9, 2017, numerous school 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 schools, how to address damage or destruction of school property, and how to address other issues related to the fires. This is an updated version of previous Legal Updates 39-2014 and 21-2015 regarding emergency issues for severe winter storms.

LEGAL UPDATE

October 11, 2017

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

From: Frank Zotter, Jr., Senior Associate General Counsel and Carl D. Corbin, General Counsel

Subject: Response to Widespread Fire Emergency

Memo No. 23-2017

---

Since October 9, 2017, numerous school 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 schools, how to address damage or destruction of school property, and how to address other issues related to the fires.  This is an updated version of previous Legal Updates 39-2014 and 21-2015 regarding emergency issues for severe winter storms.

General Emergency Obligations:

Emergency procedures must be incorporated into the comprehensive school safety plan,[1] and each Board must adopt a policy for civil defense and disaster preparedness.[2] In addition, districts must 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.[3] 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.  If districts do not stock such materials, they will need to procure them with the assistance of the emergency management and relief agencies.

The Standardized Emergency Management System (“SEMS”) must be used to coordinate emergency operations.[4]  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:

Clients sometimes ask under what circumstances the decision should be made to close a school or all schools within a district—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 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.

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. 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.

One can envision situations in which it might be relatively safe for students in one part of a county to go to school when the situation in 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 some situations it is safe for some schools to remain open even while others must close, thus making this a district-by-district or school-by-school question rather than a county-wide issue.

Parental and Staff Notification:

Plans for notifying parents of school closures should be addressed in each district’s comprehensive school safety plan or, for smaller districts, their district-wide safety plan.[5] 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 to contact 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.

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 website. Districts should also contact the county emergency management agency to determine whetherif “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 are considered disaster service workers and are subject to disaster service assignment in an emergency.[6]

 Entitlement to Average Daily Attendance (“ADA”):

Another issue is whether districts are obligated to make up a missed day or if they must secure a material decrease waiver.

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, is to seek the waiver for any reduction below 180 days to avoid any loss of funding.

A district or the county office of education may file a waiver with the Department of Education to request credit for lost ADA and instructional time.  This topic is covered in a comprehensive Management Advisory from the California Department of Education, which can be found at http://www.cde.ca.gov/fg/sf/aa/ma9001.asp.  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 multiple pages, not all of them need be completed for every closure in order to submit the waiver request 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, 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.[7]  Thus, for districts in those counties that have had a State of Emergency declaration, filing a waiver application is particularly advisable.

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 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 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 working a make-up day  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 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.

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 to 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.

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-Jones 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:

A final issue is under what circumstances districts can take advantage of the normal requirement to seek bids for construction because of damage 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 Code as including construction, reconstruction, erection, alteration, renovation, improvement, demolition, repair, painting and repainting.

However, a public entity may dispense with the bidding requirement when there is an “emergency,”[8] which is defined as, “a sudden, 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.”[9]

In the event of an emergency, when any repairs, alterations, work, or improvement is necessary for any public school facility “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 labor, materials, or supplies without advertising for or inviting bids.[10] Districts should be aware that declaring an emergency and doing away with the competitive bidding requirement does not excuse the requirement for bonds or other security typically required for a public works project.[11]

b.      Districts that have adopted CUPCAA:
 

For those districts that have adopted CUPCAA, the bidding requirements are more expansive. In cases of emergency, the public agency is to comply with the procedures found commencing with Public Contract Code § 22050.[12]  This procedure is slightly different from the one for non-CUPCAA entities. It requires that the district’s board act by a four-fifths vote, not unanimously, and that the entity review the emergency action at every succeeding regular meeting to find that the conditions for the emergency continue 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.

Homeless Students and Families:

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 students as individuals who lack a fixed, regular, and adequate nighttime residence.[13] Students who are homeless have a right to continue to attend their school of origin during the period they are homeless and through the remainder of the school year if they become permanently housed during the school year (except high school students are allowed to continue at the high school of origin through graduation).  The school district of origin and the school district of location may need to work with the homeless family to arrange for transportation for the student to/from the school of origin.  For additional information, please contact your County Office of Education Homeless Youth Liaison.  For Sonoma County, please see the following link:

http://www.scoe.org/pub/htdocs/schoolresource.html.

Continued Absence After School Has Resumed:

After school resumes, 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/regulations.  For example, the missed days could be considered vacation days or personal necessity leave for classified employees and personal necessity leave for certificated employees.  The governing board also has the authority to grant additional leave (paid or unpaid at the board’s discretion) for employees.[14]

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.

© 2017 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.