Friday, October 11, 2013

Governor Vetoes AB 375

On October 10, 2013, Governor Brown vetoed Assembly Bill 375.  AB 375 had proposed to "streamline" the certificated dismissal process, but would have imposed significant burdens on districts that potentially would have made it more difficult to dismiss teachers.  Governor Brown specifically acknowledged problems with the ability to amend charges and the limit to five depositions per side.

In his veto message, Governor Brown urged the Legislature and stakeholders to continue working towards a solution that would reduce procedural complexities of the teacher dismissal process.

Opponents of the bill included CSBA and ACSA.

~Meghan Covert Russell

Monday, October 7, 2013

Governor Signs Assembly Bill 182 Adding Requirements for Issuance of Capital Appreciation Bonds and Current Interest Bonds

On October 2, 2013 the Governor signed into law Assembly Bill 182 (“AB 182”).  AB 182 requires that the total debt payments for each bond series be limited to no more than four times the principal amount.  Further, capital appreciation bonds (“CABs”) are limited to a maximum term of 25 years.  CABs that mature more than 10 years after their date of issuance must be subject to refinancing on the 10th anniversary of the date the bond was issued or earlier.  AB 182 also requires that if the proposed bond sale includes CABs, school board members must be presented with specific information about the total overall cost of the bonds, a comparison to the overall cost of current interest bonds, and the reasoning that CABs are recommended.  The school board’s resolution authorizing the sale of the CABs must include the financing terms, maturity dates, repayment ratio and estimated change in the assessed value of taxable property within the district.  School boards must also make certain findings with respect to current interest bonds with maturities greater than 30 years.

The full text of AB 182 can be found here.

Please sign up to receive our Legal Alerts for a more detailed analysis of AB 182.

Tuesday, September 10, 2013

Mixed Results in California Student Performance on State Standardized Testing

Last week the California Department of Education ("CDE") issued a news release announcing the results of the California High School Exit Exam ("CAHSEE") and the Standardized Testing and Reporting ("STAR").  

CAHSEE: An estimated 95.5% of the Class of 2013 passed the CAHSEE, a 0.5% increase from the previous year, and a 5.1% increase since the first was first administered in 2006.  Pass rates for the Class of 2013 included an estimated 91.8% of African American students; 82.2% of students who are learning English; 98.5% of white students; 93.5% of students who are economically disadvantaged, and 93.8% of Hispanic or Latino students.

API: However, the Growth Academic Performance Index ("API") has declined 2 points statewide, from 791 to 789.  The API ranges from 200 to 1000, with a statewide target of 800.  The API shows that 56% of elementary schools, 50% of middle schools and only 30% of high schools are meeting the state benchmark.  Several subgroups say an increase in API, including 5 points by socioeconomically disadvantaged students and students with disabilities.

AYP:  Adequate Yearly Progress ("AYP") targets, as set forth under the federal No Child Left Behind program, continue to lag.  Only 14% of schools met AYP benchmarks, a sharp decline from 26% last year. 

For more information, please see the CDE's August 29, 2013 news release here.

Meghan Covert Russell

Thursday, September 5, 2013

"Hours" Worked Cannot Be Converted To "Days" In Order To Earn Permanent Employee Status

In Cox v. Los Angeles Unified School District (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., July 23, 2013), a California court of appeal considered whether a school district employee could apply hours of credit she claimed to have worked during a maternity leave as "days" for the purpose of satisfying the number of days needed to satisfy the Education Code 44908 “complete school year” threshold requirement for earning permanent employee status.  The appellate court held that the Code's specific reference to "number of days worked" plainly required probationary certificated employees to work the number of actual days, and that extra hours an employee may have worked while on leave of absence or partial days worked cannot be considered the equivalent to days for that purpose. 

For more information, see KMTG's Legal Alert

Legal Alert Series: Education Legislation (Set No. 2)

KMTG will be publishing a series of Legal Alerts summarizing pertinent legislation to the education community.

In the second round, we examine AB 20 (obscene matters depicting minors), AB 166 (financial literacy instruction), AB 86 (surplus property), Sb 73 (Prop 39 implementation and funding), and AB 133 (digital format for instructional materials).  To read about these recently passed bills, check out our Legal Alert.


Friday, August 30, 2013

CDE Publications Available to Help Implement Common Core State Standards

The California Department of Education ("CDE") has two publications available to help schools and students with the transition to the Common Core State Standards ("CCSS").  This week the CDE announced that these publications are now available in print form, in addition to the previously available electronic formats.

 The publications are:
California Common Core State Standards: English Language Arts and Literacy in History/Social Studies, Science and Technical Subjects (CA CCSS for ELA/Literacy)
California Common Core Standards: Mathematics (CA CCSSM)

Additionally, Tom Torlakson released a video explaining the importance of the transition to assessments based on the new CCSS.

The CCSS are a set of standards for English and math that are consistent across the 45 states that have adopted them since 2010.  More information on California's implementation of the CCSS can be round on the CDE's website, here.

For more information, please see the CDE's August 26, 2013 News Release available here.

Meghan Covert Russell

Wednesday, August 28, 2013

50 Years After "I Have a Dream"

Fifty years ago today, Dr. Martin Luther King Jr. capped the March on Washington with his influential "I Have a Dream" speech given at the steps of the Lincoln Memorial.

The progress this nation has made in the past 50 years is undeniable.  Today, our first African-American president will mark Dr. King's historic speech with a speech of his own.  However, the struggle to obtain equal rights is ongoing.  Equitable access to education, racial and gender equality, and LGBT rights all remain pressing issues today.  Reflecting on Dr. King's words spoken 50 years ago highlight both the progress we have made and the ground we have yet to cover.

Below is an excerpt from Dr. King's speech.  The complete speech is available at the National Archives by clicking here. 

"We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood...

"I say to you today, my friends, though, even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.  I have a dream that one day this nation will rise up and live out the true meaning of its creed: 'We hold these truths to be self-evident, that all men are created equal.'

"I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.  I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.  I have a dream.  I have a dream that one day in Alabama, with its vicious racists, with its governor having his lips dripping with the words of "interposition" and "nullification" -- one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers..." 

~Dr. Martin Luther King, Jr., August 28, 1963

Meghan Covert Russell

Tuesday, August 27, 2013

Legal Alert Series: Education Legislation

KMTG will be publishing a series of Legal Alerts summarizing pertinent legislation to the education community.

In the first round, we examine AB 226 (school police workweek), AB 643 (student records), AB 1266 (sex-segregated programs and activities), SB 546 (layoff hearing terminology), SB 581 (bond accountability), and  SB 292 (sexual harassment).  To read about these recently passed bills, check out our Legal Alert.

Friday, August 23, 2013

Hughes Bill Repealed as Part of Trailer Bill AB 86

Another component of the budget trailer bill, AB 86, repeals the “Hughes Bill” mandate imposed on Local Educational Agencies (“LEAs”) to provide specific behavioral assessments and interventions for special education students exhibiting serious behavioral problems, beyond those required under the Individuals with Disabilities Education Act (“IDEA”). AB 86 revises Education Code sections 56520 through 56525 to more closely resemble the requirements of the IDEA.  AB 86 also provides that the Superintendent of Public Instruction must repeal regulations set forth at 3001 (d)-(g) and (ab) and 3052 of Title 5 of the California Code of Regulations.  The new statutory provisions found in the Education Code are “intended to provide the clarity, definition, and specificity necessary for local educational agencies to comply with the [IDEA]” and must be implemented by those “agencies without the development by the Superintendent and adoption by the state board of any additional regulations.”  

For more information on the repeal of the Hughes Bill, see KMTG's Legal Alert.

Tuesday, August 20, 2013

Legislature Extends Requirement to Offer Surplus Facilities to Charter Schools

A law requiring school districts to offer surplus property to charter schools, which was set to expire at the end of June, has been extended until July 1, 2016.

Education Code section 17457.5, as originally enacted, was set to become inoperative on June 30, 2013 and repealed as of January 2014.  However, as part of the budget trailer bill, AB 86, this section was extended through July 1, 2016.

Several other changes were also made, including that the offer only needs to be made to a charter school with projections of at least 80 students at the time of the offer and that property sold or leased to a charter school must be exclusively used to provide direct instruction or instructional support (the revisions remove the requirement that the property be used for instruction for not less than 5 years).  Additionally, facilities that are built by the charter school on property acquired through this process must be Field Act compliant. Finally, if a charter school decides to sell property obtained via this process, it can only use the proceeds for capital outlay, maintenance, and other facilities related costs.

The full budget trailer bill, AB 86, is accessible here

Meghan Covert Russell

Monday, August 19, 2013

Senate Bill 73: Implementation of Proposition 39 Funding for Energy Efficiency Projects and Clean Energy Jobs

On June 27, 2013 the Governor signed into law Senate Bill 73 (“SB 73”), implementing Proposition 39, the California Clean Energy Jobs Act, approved by the voters on November 5, 2012 to provide funds to improve energy efficiency and create clean energy jobs.  SB 73 provides that for five fiscal years, commencing with the 2013-2014 Fiscal Year, up to $550,000,000 annually will be transferred from the General Fund to the Clean Energy Job Creation Fund.  Of that amount, for the upcoming 2013-2014 Fiscal Year, $28,000,000 will be transferred from the Clean Energy Job Creation Fund to the Education Subaccount for low-interest and no-interest revolving loans for eligible projects and technical assistance made available to local educational agencies or “LEAs” (school districts, county offices of education, charter schools, or state special schools) and community college districts.  Funds will also be available to develop and implement a competitive grant program for eligible community-based and training workforce organizations serving disadvantaged youth and veterans.  The balance of the Clean Energy Job Creation funds will be allocated 89% to LEAs and 11% to community college districts.  For LEAs, allocation of such funds will be based on average daily attendance and students eligible for free and reduced-price meals for the prior year.  Further guidelines will be developed and promulgated in consultation with the Department of Education and the Chancellor of the California Community Colleges, including how LEAs will submit energy project expenditure plans to the California Energy Commission for approval and how the California Department of Education will disburse funds.  Please note that the deadline for LEAs with 1,000 or less ADA to receive the current and subsequent year Proposition 39 funding entitlements has passed.

The full text of SB 73 can be found here.

More detailed information on the California Clean Energy Jobs Act (Proposition 39) can be found here and here.

The Coalition on Adequate School Housing ("CASH") has also provided information regarding Proposition 39 Implementation Program -- Funding Allocation for Energy Products.



Stacy Toledo

Friday, August 16, 2013

AB 1266 Clarifies Existing California Law Regarding Access to Programs and Facilities by Transgender Students

This week Governor Brown signed AB 1266, which adds section 221.5(f) to the Education Code.  It provides "A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records."

News outlets pounced on the new law, some sides celebrating the law and others criticizing it.  However, what most stories failed to mention was that AB 1266 didn't grant transgender students any new rights, it merely clarified existing laws.  Education Code section 220 already provides that "No person shall be subjected to discrimination on the basis of ... gender, gender identity, gender expression, ... sexual orientation, ... in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid."  (emphasis added)

The new law clearly provides that students are to be allowed to participate in sex-segregated athletic teams and use sex-segregated facilities, such as locker-rooms, based on their gender identity.  This is consistent with the provisions of Section 220 which prohibit discrimination of students in any school activity based on their gender identity or gender expression.

The new law goes into effect on January 1, 2014.

Meghan Covert Russell

Wednesday, August 14, 2013

Why does teacher evaluation based on student performance continue to be a hot topic?

U.S. Secretary of Education Arne Duncan recently granted seven California school districts waivers of some requirements of the No Child Left Behind Act (NCLB) in exchange for, among other things, a promise to include student performance data in the evaluations of teachers.  The California Teachers Union immediately criticized that waiver deal and continued to oppose using student data in locally negotiated evaluation procedures. 

The question is: why does this continue to be such a hot button issue?  Since the 1970's, Education Code section 44662(b)(1) has required districts to evaluate certificated employee performance based, in part, on "the progress of pupils" toward the standards of achievement set by the governing board.  Los Angeles Unified School District was recently successfully sued by a citizen group to require compliance with that statute.  The District has now implemented a new evaluation procedure after reaching agreement with the United Teachers of Los Angeles.  Other districts have been threatened with similar litigation and are deciding how to best comply with the statute while maintaining an effective teacher evaluation process.  Given the statute as recently enforced, it does not seem like the seven California districts gave up anything significant in exchange for the federal waivers.

Moreover, it is difficult to understand why so much energy is being expended around this issue by advocates of using student data.  The literature on teacher evaluation by such experts as Linda Darling-Hammond, Chairperson of the Commission on Teacher Credentialing, says that student performance data is only one of many indicators of teacher quality, and not a factor that has a major effect on improving student achievement.  There does appear to be agreement that "value-added models" (VAMs) can be instructive, meaning that it helps to track the change in student performance while under the instruction of a particular teacher.  However, even VAMs are inconsistent due to the influence of multiple factors outside the teacher's control.  While it may not be a powerful tool for actual school improvement, the student data issue is still a tool available to those who are critical of the teachers' union and the entire public school system.

The bottom line for school districts is that state statute, court decisions, and the conditions of federal grants all point toward inclusion of student data in certificated employee evaluations.  The lack of a strong research basis and the continued opposition of the teachers' union notwithstanding, the writing on this issue appears to be "on the wall."

Why do you think teacher evaluations are such a hot topic? Do they deserve this much attention?  Feel free to add your thoughts/opinions in the comments section below.

Michael E. Hersher



Monday, August 12, 2013

California Supreme Court Rules That School Employees Can Administer Insulin Shots

Today the California Supreme Court ruled that school employees can administer insulin shots to diabetic students when a nurse is not available.  This decision arises in the context of a continuing shortage of school nurses available to administer the shots and a federal class action lawsuit alleging that California schools have failed to provide adequate health services to students as required by law.  In 2007 the California Department of Education ("CDE") advised school districts that a trained school employee may administer insulin when a school nurse is not available.  The case at issue in today's decision was filed by the American Nurses Association and challenged CDE's advice as "condoning the unauthorized practice of nursing."

The California Supreme Court concluded that "California law expressly permits trained, unlicensed school personnel to administer prescription medications such as insulin in accordance with the written statements of a student's treating physician and parents...and expressly exempts persons who thus carry out physicians' medical orders from laws prohibiting the unauthorized practice of nursing."  Therefore, it is up to each student's treating physician and parent to determine whether insulin may be administered by an unlicensed school employee.  Today's ruling is in line with the "practical reality that most insulin administered outside of hospitals and other clinical settings is in fact administered by laypersons."

Today's ruling reverses the lower court opinion, which held that only licensed professionals were permitted to administer insulin shots.

Additional information is available in our Legal Alert.

The full opinion of American Nurses Association v. Torlakson is available here.

For more information, please contact Meghan Covert Russell or the KMTG attorney you normally consult.

Court of Appeal Reverses Award of Attorneys' Fees to School District Where Publisher's PRA Request Was Meritless But Not Frivolous

School districts and other public agencies are frequently the recipients of Public Records Act requests.  These requests are time consuming and subject to litigation if not properly complied with.   Cases brought to seek compliance with the PRA are frequently litigated and continue to refine the contours of the PRA statues.  A recent case discusses the award of costs and fees when a case that is brought does not compel the public agency to disclose any additional documents.

Recently, a superior court ordered a newspaper publisher to pay the attorney fees of a school district because it determined the publisher’s Public Records Act petition was frivolous.  However, on appeal, the court of appeal held that although the publisher’s petition lacked merit, it was not frivolous and therefore the publisher was not required to pay attorney fees.  (Crews v. Willows Unified School District (--- Cal.Rptr.3d ----, 217 Cal.App.4th 1368, Cal.App. 3 Dist., July 17, 2013).  Although the District complied with the PRA request, it was still subject to a lawsuit and even when the publisher did not prevail, was unable to recoup its costs of litigating the matter. 

Districts should carefully comply with PRA requests for the dual purposes of (1) providing access to public records as required by statute and in the public interest of furthering open access to government and (2) avoiding potentially costly litigation.

For more information, please see our Legal Alert and contact Meghan Covert Russell or the KMTG attorney you normally consult with.


Wednesday, August 7, 2013

Update -- State Supreme Court Denies Review of Bond Expenditure Case

We  reported back in April that the Court of Appeals restricted the use of bond expenditures in the case Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (---Cal.Rptr.3d---, Cal.App. 4 Dist., April 25, 2013).  The California Supreme Court has denied the petition for review and the case remains "good" law.  However, a request for depublication of the lower court ruling is still pending. 

Meghan Covert Russell

Tuesday, August 6, 2013

World Breastfeeding Week -- Make Sure You Comply With Legal Requirements For Providing Employees With Reasonable Accommodations

August 1-7 marks World Breastfeeding Week.  It is well established that breastfeeding is beneficial for both mom and baby.  As an employer, ensure you are providing breastfeeding mothers with appropriate resources.

Both state and federal law provide protection to pregnant and nursing mothers.  Specifically, California Labor Code 1030 requires employers, including the state and political subdivisions of the state, to provide a reasonable amount of break time to accommodate breastfeeding mothers (this can run concurrently with other break time and additional break time can be unpaid).  However, employers are not required to provide breaks if it would "seriously disrupt" the operations of employers.

Additionally, Labor Code 1031 requires employers to make a reasonable effort to provide breastfeeding mothers with the use of a room/location to express milk in private, except a bathroom stall, in close proximity to the employee's work area.

Employers should encourage their employees to notify them in advance in order to address scheduling and make arrangements for the accommodations. 

It is important for employers to understand their legal requirements to provide accommodation for breastfeeding employees.  Employers who fail to provide reasonable accommodations may be subject to investigation and prosecution of complaints by the Department of Fair Employment and Housing for gender discrimination, a citation from the Labor Commissioner for violation of the Labor Code, and/or civil penalty. 

The California Department of Public Health's website also has more information on breastfeeding for both employers and employees. 

Meghan Covert Russell

Friday, May 17, 2013

Court Prohibits Bond Expenditure on Stadium Lighting Because Lighting Was Not Specifically Listed as Contemplated Project

The California Court of Appeal, Fourth Appellate District, recently held that school district bond revenues could not be spent on stadium lighting where the bond proposition did not specifically list field lighting as part of the contemplated projects, in accordance with the requirements of Proposition 39. (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (---Cal.Rptr.3d---, Cal.App. 4 Dist., April 25, 2013).

Read the Legal Alert for the details and what it means for your district.

Meghan Covert Russell

Tuesday, May 14, 2013

Gov. Brown Proposes Boost To Education Funding

Governor Brown's proposed budget, released today, includes a much needed boost to spending on public education. 

The Governor's plan provides $1,046 more per K-12 student in 2013-14 than was provided in 2011-12.  The plan also proposes to invest $1 billion in one-time revenues to fund professional development, instructional materials and enhancements to technology to support the implementation of the Common Core Standards.

For more details, access the press release from Governor Brown's office here and the revised budget here.

Meghan Covert Russell

Monday, April 15, 2013

State Board of Education Issues Proposed Regulations on Student Fees and Bullying



The State Board of Education recently announced it was beginning the process to adopt regulations to implement AB 1575 (2012) and AB 9 (2011) regarding bullying.  AB 1575 prohibits school districts from charging students fees for participating in any educational activity, including extracurricular activities. Districts were required to have policies in place to implement AB 1575 by March 1, 2013. The bill allows complaints regarding fees to be filed with the school principal. Anonymous complaints are permitted, and if the complainant is not satisfied with the decision at the school level, an appeal to the California Department of Education may go forward. The department is authorized to direct reimbursement of all improperly collected fees if it finds an appeal has merit. AB 9 required districts to adopt policies prohibiting bullying based on specific characteristics, including disability, gender, gender identity and expression, nationality, race or ethnicity. AB 9 also required districts to have procedures for receiving and investigating complaints of such bullying. The  proposed regulations published by the State Board of Education amend the existing Uniform Complaint Procedures to include complaints about student fees and complaints of bullying. Comments on the proposed regulations may be submitted by e-mail or in writing until May 15, 2013. The regulations are posted at www.cde.ca.gov/re/lr/rr. 

Wednesday, March 27, 2013

PERB Ruling Affirms Teacher on 39-Month Reemployment List Remains an Employee of the District and Able to File Grievance

In Nelson v. Jurupa Unified School District (PERB Decision 2309E, March 8, 2013), the Public Employment Relations Board ("PERB") considered whether a school district committed an unfair labor practice by rejecting a teacher’s grievance because she was on the district's 39-month reemployment list after she had exhausted all her sick leave.  PERB affirmed the ALJ’s ruling that teachers on the 39-month reemployment list remain employees of the district and have the right to file grievances against the District.

For more information, read the KMTG Legal Alert here.

Meghan Covert Russell

Monday, March 18, 2013

Court of Appeal Upholds Invalidation of Parcel Tax That Differentially Taxes Commercial and Residential Property; Legislature Introduces SCA 3 To Ease Parcel Tax Restrictions

The court of appeal recently upheld its previous ruling that a parcel tax approved by Alameda Unified School District (“District”) voters violates the Government Code’s restriction that special taxes apply “uniformly to all taxpayers or all real property within the” district.  On rehearing, the court of appeal upheld its previous ruling that the property classifications and differential tax burdens imposed pursuant to the voter-approved measure exceed the taxing authority of the District under section 50079 of the Government Code.  The court held that the special tax imposed by the measure is invalid to the extent it imposes a different tax rate on commercial property versus residential property.  (Borikas v. Alameda Unified School District (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., March 6, 2013).

In response to the restrictive court of appeal decision in Borikas, legislators have introduced a bill that would ease the requirements for a school district seeking to pass a parcel tax.  SCA 3 seeks to amend the California Constitution relating to taxation by amending Section 4 of Article XIIIA, adding Section 4.5 to Article XIIIA, amending Section 2 of Article XIIIC, and amending Section 3 of Article XIIID, and would reduce the voted approval needed for parcel taxes from the current two-thirds to 55 percent.  The Constitutional amendment would help school districts that have been subjected to years of continued funding cuts. 


Read KMTG's Legal Alert on Borikas v. Alameda Unified School District here.

Read KMTG's Legal Alert on SCA 3 here.

Meghan Covert Russell

Friday, March 15, 2013

SB 559 Proposes to Shift Certificated Layoff Timelines

The March 15 deadline is upon California school districts to issue written notices to certificated employees who will be subject to a layoff. 

Right in line with the deadline comes a new bill that proposes to shift the timeline for certificated layoffs to later in the year to better align with budget requirements.  Of course this is not the first bill of this type and there have been several attempts in the recent years to streamline and revamp the layoff process.

SB 559 seeks to shift the March 15 layoff notice date to June 1 and the May 15 notice of termination to August 1.  The findings of SB 559 explain why lawmakers have repeatedly sought to shift the layoff timelines:

Existing law requires school districts to issue preliminary reduction in force notices by March 15 and final reduction in force notices by May 15 of each year. As a result of this existing law and in order to guarantee that it will remain fiscally solvent, school districts have relied on the January budget proposed by the Governor to determine the number of layoff notices that it must give to its employees. This results in thousands of teachers receiving notices that are later rescinded when more accurate information is available in May when the proposed budget is revised and later when the annual Budget Act is enacted.  According to the Legislative Analyst Office, this practice unnecessarily costs taxpayers $706 per teacher, amounting to millions of dollars annually that could be spent in the classroom and employing teachers. Given the evidence that the existing statutory deadlines hurt schools across the State of California, it will be more productive for the schools, pupils, and teachers if the deadlines for giving notice to certificated employees that the school district may terminate their services are extended by two and one-half months.

KMTG will continue to track the progress of this bill and issue updates as developments occur.

Meghan Covert Russell

Thursday, February 28, 2013

March 1, 2013 Deadline for Implementing Requirements of Pupil Fee Laws

AB 1575 was the law which went into effect January 1, 2013 regarding charging of pupil fees in schools.  As part of that bill, Education Code section 49013 was added to the code and makes complaints regarding the unauthorized charge of pupil fees subject the uniform complaint process and requires school districts to establish policies and procedures for pupil-fee complaints by March 1, 2013.  Please feel free to contact our offices if you need assistance with implementing these procedures.

Chelsea Olson






Thursday, February 21, 2013

Department of Finance Releases Local Control Funding Formula

The Department of Finance released a long-awaited table today that shows how each K-12 District fares in Governor Jerry Brown’s new plan, aptly labeled Local Control Funding Formula, to direct more money to schools with low-income students and English learners. The 80-page chart calculates districts’ base per student funding for 2011-12 as a comparison and lists funding for the next two years and full per-student funding in seven years, if projected State revenues hold up.

In the Overview of the Local Control Funding Formula Proposal, the Department of Finance laid out its purpose:

Current funding for schools is inequitably distributed, not tied to student demographics, largely state-controlled, and lacking appropriate accountability measures.  These inequities are primarily the result of how the current general purpose “revenue limit” funding system was created in response to court rulings and Proposition 13, freezing in funding decisions made decades ago.  In addition, over time, the state created more than 60 categorical programs, each with accounting and reporting requirements, many of which are not outcome-focused.  These categorical program funding allocations have also been frozen due to recent fiscal constraints and no longer are reflective of current demographics.

The Formula would increase flexibility and accountability at the local level so those closest to the students can make the decisions, reduce State bureaucracy, and ensure that student needs drive the allocation of resources.

Starting off with what districts now receive in base funding (known as “revenue limit” funding), it would create a new financing system as additional money becomes available from increased revenues generated by an improving State economy, and as past debts that the State owes to schools are paid off.

Brown’s plan would provide additional funds to districts having to meet the extra costs of educating economically disadvantaged and other high-needs students. There would be a “phase in” period, with annual funding increases, leading to full funding.

Under the plan, no district would receive less than they receive this year in State support, and “the vast majority” – 1,700 districts and charter schools – would get unspecified “moderate to significant” funding increases over the next five years, according to the overview. During this time, the average per-student funding under Proposition 98 is projected to rise $2,700 per student.

Approximately 230 school districts and charter schools are estimated to receive little or no additional funding as a result of the Formula.  Almost all of those districts and charter schools are basic aid, where local property tax revenues alone are more than sufficient to finance their funding formula entitlement.  Others receive necessary small school funding or have unique  funding issues that result in them having current funding levels well above what all other schools are receiving.

EdSource did an analysis of how the formula would work:

•    Every district would receive a base grant for every student – an average of $6,800 when fully funded, with more for high schools and less for elementary schools (to reflect the differential costs of educating pupils in different grade spans). Once the Formula is fully implemented, the significant reductions made to current general purpose “revenue limit” funding over the last five years (known as the deficit factor) will be restored, ensuring that the new base grant funding level is equivalent to the statewide average from 2007-2008.

•    It would not include money for special education and a few other categorical programs that would be funded outside of the formula. Schools would get an extra $700 per student in grades K-3 for smaller classes, though districts could spend the money otherwise.

•    Districts with disadvantaged students – low-income students, English learners and foster youth – would get additional dollars:

o    A supplement of $2,385 per student, which is equal to 35 percent of the base grant for every disadvantaged student in the district.

o    An additional grant for those districts in which high-needs students comprise 50 percent or more of students, reflecting the need for additional money to counteract the demands on districts with a high concentration of poor children. Districts with 60 percent high-needs students would get 38.5 percent more revenue per high-needs student ($2,624); a district in which every child is an English learner or low-income student would get a maximum of 52.5 percent more ($3,578) in per-student funding than a district with no high-needs children.

Accountability at the Local Level:

In addition, the Governor Brown and the Department of Finance have particular requirements for how to keep districts, charter schools, and county offices of education accountable:

•    Each school district, charter school and county office of education will produce a local control and accountability plan that will set annual goals and describe how the local agency would use available resources.

•    The proposal will provide greater transparency and allow a local agency to better craft solutions to address local needs; involve principals, teachers, parents, students, and other community members in the planning process; and require governing boards to approve the plan at a public meeting.

•    The plans will include actions the local agency will take to provide basic conditions necessary  for student achievement (such as credentialed teachers, adequate instructional materials, facilities in good repair); implement the common core standards; improve academic outcomes; and address the needs of English learners, foster children, and students from low-income backgrounds.

•    A governing board will be required to adopt a budget that aligns with the agency’s local control and accountability plan.  A county office of education will review both a district’s budget and its plan to ensure that they are aligned.  The Superintendent of Public Instruction will perform this review function for local plans adopted by county offices.

The Table can be found here.

Nevin Trehan

Wednesday, February 20, 2013

Department of Industrial Relations (DIR) Makes Changes to the Prevailing Wage Reporting Process

The Department of Industrial Relations (DIR) has taken proactive steps to address problems users have had in using MyLCM. Compliance Monitoring Unit staff, contractors and awarding agencies had concerns that MyLCM was not user-friendly and contractors spent a significant amount of time with each certified payroll records (CPR) submission. DIR decided to discontinue their service with MyLCM after several technical requirements were not met by Hill International. DIR and Hill agreed to mutually end the contract effective April 1, 2013.

Contractors should continue to enter their CPRs via MyLCM through the month of February. Effective March 1, the PWC100 application will be activated to allow contractors to submit CPRs online via PDF.

For contractor projects that will not be completed by April 1, contractors should back up their CPRs previously submitted into the MyLCM service. Starting with the first CPR in March, contractors should register into the PWC 100 application and begin uploading CPRs by PDF.

DIR will be hosting a series of webinars for the public. The webinars will cover registration and how to use the online application, PWC 100.

For questions on the new system, please refer to the “Frequently Asked Questions on Filing Certified Payroll Records with the Compliance Monitoring Unit, ” which you can find here.

Sirenia Jimenez, Law Clerk


Thursday, February 7, 2013

USDA Guidelines Seek to Curb Unhealthy Snacks in Schools

The U.S. Department of Agriculture (USDA) is proposing regulations to keep the nation’s students from buying certain snacks from vending machines and at-campus snack bars during the school day.
The Healthy, Hunger-Free Kids Act of 2010, aimed at reducing childhood obesity and related diseases, requires the USDA to establish nutrition standards for all foods sold in schools. While the new rules have a list of prohibited snacks, the rules would not prohibit candy sales and other fundraisers to continue during non-school hours and at off-campus events. Furthermore, parents would still be able to pack whatever they choose in their children’s lunch bags and bring treats for special events such as birthdays.

The California Department of Education’s Nutrition Department is currently reviewing the 160-page document with proposed regulations to determine whether the state needs to make any changes to its extensive regulations for “competitive foods” — those sold outside of the regular school meals. The proposed federal rules set a minimum standard, and states and local schools are allowed to have more stringent regulations. In some areas, California has already implemented what the federal rules propose. For example, the federal proposal would eliminate foods with trans fats, which are linked to heart disease, a regulation California put in place in July 2009.

The USDA based its guidelines, in part, on an April 2007 report by the Institute of Medicine, Nutrition Standards for Foods in Schools: Leading the Way toward Healthier Youth. However, the USDA is not recommending all of the institute’s guidelines. For example, the institute’s report says sports drinks are appropriate for athletes and others engaged in rigorous physical activity, but not for all students. The USDA’s proposed regulation would make no such distinction, allowing any high school student to purchase the drink. California currently allows the sale of sports drinks in both middle and high schools.

The proposed regulations are available here.

Sirenia Jimenez, Law Clerk
 

Tuesday, February 5, 2013

Equal Opportunities in Extracurricular Athletics for Students with Disabilities

Extracurricular athletics—which include club, intramural, or interscholastic athletics at all education levels—are an important component of an overall education program. The United States Government Accountability Office (GAO) published a report that underscored that access to, and participation in, extracurricular athletic opportunities provide important health and social benefits to all students, particularly those with disabilities. However, the GAO found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public elementary and secondary schools.

In response to GAO's findings, the United States Department of Education, Office for Civil Rights, released guidance to clarify schools’ responsibilities under Section 504 of the Rehabilitation Act of 1973, which requires schools to provide students with disabilities an equal opportunity to participate alongside their peers in after-school athletics and clubs.

The Rehabilitation Act provides that schools may not exclude students who have an intellectual, developmental, physical, or any other disability from trying out and playing on a team, if they are otherwise qualified. However, this does not mean that schools have to change the essential rules of the game. Schools are not required to do anything that would provide a student with a disability an unfair competitive advantage; but they do need to make reasonable modifications to ensure that students with disabilities get the very same opportunity to play as everyone else.

The guidance issued will help schools meet this obligation and will allow increasing numbers of kids with disabilities the chance to benefit from playing sports.

Specifically, this guidance:

·         Provides an overview of the obligations of public elementary and secondary schools under Section 504 and the Department’s Section 504 regulations.

·         Cautions against making decisions based on presumptions and stereotypes.

·         Details the specific Section 504 regulations that require students with disabilities to have an equal opportunity for participation in nonacademic and extracurricular services and activities.

·         Discusses the provision of separate or different athletic opportunities.

For more information please see the released guidance here.

Sirenia Jimenez, law clerk


Wednesday, January 30, 2013

AB 182 Seeks to Limit School Districts' Issuance of Capital Appreciation Bonds

Last week a bill was introduced that would affect school districts' ability to issue capital appreciation bonds ("CABs").

AB 182 would require the ratio of total debt service to principal for each bond series to not exceed four to one (4:1). The bill would also require each CAB maturing more than ten years after its date of issuance to be subject to mandatory tender for purchase or redemption before its fixed maturity date beginning no later than the tenth anniversary of the date the CAB was issued.

The bill would also require changes to how the information is presented to the board of education, including specifying that CABs are proposed and requiring that the board be presented with an analysis containing the overall cost of the CABs, a comparison to the overall cost of current interest bonds, the reason the CAPS are being recommended, and a copy of certain disclosures made by the underwriter.

You can read the letter from State Superintendent of Public Instruction, Tom Torlakson, and State Treasurer, Bill Lockyer, cautioning against the issuance of CABs until legislative reforms are enacted here.

The full text of the proposed legislation, AB 182, is available here.

Meghan Covert Russell

Tuesday, January 22, 2013

Summary of 2012 Education Legislation

KMTG has compiled its 2012 education legislation Legal Alerts into one easy to reference location.  Here you will find a recap of all the legislation we summarized, along with a link to the actual Legal Alert, as well as the bill itself.

You can access the 2012 Education Legislation Summary here.

Meghan Covert Russell

Wednesday, January 16, 2013

Legislature Expands Definition of "Direct Cost" Relating to Reimbursement for Use of Civic Center Act Facilities

SB 1404 expands the scope of direct costs that school districts can recover for allowing Civic Center use of its facilities.  The new legislation, which went into effect January 1, 2013, amends Education Code section 38134, known as the Civic Center Act, which allows the governing board of a school district to authorize the use of school facilities or grounds under the district’s control to certain organizations or clubs.  In making these changes to the Civic Center Act, the Legislature declared that it intended to “encourage all school districts to maximize opportunities to make available and accessible public school facilities and grounds to their communities as civic centers.”

SB 1404 notes that it was the intent of the Legislature to amend the Civic Center Act in order to “ authorize a school district to charge an organization using school facilities or grounds an amount proportional to the organization’s use of the school facilities or grounds to maintain, repair, restore, and refurbish the school facilities or grounds and to limit the proportional costs related to maintenance, repair, restoration, and refurbishment to only a school’s nonclassroom space and grounds.”

For more information, read KMTG's full Legal Alert here.

Meghan Covert Russell

Tuesday, January 15, 2013

New LAO Report "Overview of Special Education in California"

On January 3, 2013, the State's Legislative Analyst's Office ("LAO") issued a report entitled Overview of Special Education in California. The report provides a broad summary of special education.

Below is the Executive Summary of the report.  A link to the full report is at the bottom of this page.

LAO's Executive Summary

Special education is the “catch–all” term that encompasses the specialized services that schools provide for disabled students. This report provides a comprehensive review of special education—conveying information on applicable laws, affected students, services, funding, and student outcomes.

Public Schools Must Provide Special Support for Disabled Students. Federal law requires schools to provide “specially defined [sic] instruction, and related services, at no cost to parents, to meet the unique needs of a child with a disability.” The law requires schools to provide disabled students with these special supports from age 3 until age 22, or until they graduate from high school, whichever happens first. These services are in addition to what a nondisabled student receives.

About One in Ten California Students Receives Special Education Services. About 686,000 students with disabilities (SWDs) receive special education services in California, comprising about 10 percent of the state’s public school enrollment. Specific learning disabilities—including dyslexia—are the most common diagnoses requiring special education services (affecting about 4 percent of all K–12 students), followed by speech and language impairments. While the overall prevalence of students with autism and chronic health problems still is relatively rare (each affecting 1 percent or less of all public school students), the number of students diagnosed with these disabilities has increased notably over the past decade.

Special Education Services Vary Based on Individual Student Needs. Federal law only requires schools to provide special education services to students with diagnosed disabilities that interfere with their educational attainment. To determine a student’s need and eligibility for special education, schools must conduct a formal evaluation process. If schools determine that general education programs cannot adequately meet a disabled student’s needs, they develop Individualized Education Programs (IEPs) to define the additional services the school will provide. Each student’s IEP differs based on his or her particular disability and needs. Specialized academic instruction is the most common service that schools provide. This category includes any kind of specific practice that adapts the content, methodology, or delivery of instruction to help SWDs access the general curriculum. Other commonly provided services include speech and language assistance and various types of therapies for physical and psychological needs that may be impeding a SWD’s educational attainment. Although federal law encourages schools to educate disabled students in mainstream settings, most (about three–quarters) of special education services are delivered in settings other than regular classrooms.

In General, the State Uses a Regional Structure to Organize Special Education. Because economies of scale often improve both programmatic outcomes and cost–effectiveness, special education funding and some services are administered regionally by 127 Special Education Local Plan Areas (SELPAs) rather than by the approximately 1,000 school districts in the state. Most SELPAs are collaborative consortia of nearby districts, county offices of education (COEs), and charter schools, although some large districts have formed their own independent SELPAs, and three SELPAs consist of only charter schools.

The Excess Costs Associated With Providing Special Education Services Are Supported by Federal, State, and Local Funds. Schools receive billions of dollars to provide a basic educational program—including teachers, instructional materials, academic support, and enrichment activities—for all students, including SWDs. The average annual costs of educating a SWD, however, are more than double those of a mainstream student—approximately $22,300 compared to $9,600. (It is important to note that most SWDs require less severe, less costly services, whereas some students require intensive interventions that cost notably more than $22,300 per year.) Schools receive categorical funds to cover a portion of these additional, or “excess costs,” associated with addressing students’ disabilities. Because federal and state special education funds typically are not sufficient to cover the costs of all IEP–required services, however, schools spend from their local unrestricted general funds to make up the difference. In 2010–11, special education expenditures totaled $8.6 billion. State special education categorical funds covered the largest share of these costs (43 percent), combined with spending from local general purpose funds (39 percent) and federal special education funds (18 percent). Over the past several years, a combination of increasing special education costs and relatively flat state and federal special education funding has resulted in local budgets covering an increasing share of these costs.

Special Education Funds Allocated to SELPAs Based on Overall Student Population, Not Number of Disabled Students. California relies primarily on a “census–based” funding methodology that allocates special education funds to SELPAs based on the total number of students attending, regardless of students’ disability status. This funding model implicitly assumes that SWDs—and associated special education costs—are relatively equally distributed among the general student population and across the state. The amount of per–pupil funding each SELPA receives varies based on historical factors. In 2011–12, the weighted statewide average per–pupil rate was $645 per student (including both state and federal funds). After receiving its allocation, each SELPA develops a local plan for how to allocate funds to the school districts and charter schools in its region based on how it has chosen to organize special education services for SWDs.

Mixed Academic Outcomes for Disabled Students. Some performance indicators suggest SWDs generally are performing well, whereas other indicators are less encouraging. For example, performance on standardized tests (including those specifically designed for SWDs) has improved over the past several years, but a majority of SWDs still fail to meet state and federal achievement expectations. As SWDs near the end of their time receiving special education services, data show that about 60 percent of SWDs graduate on time with a high school diploma and about two–thirds of SWDs are engaged productively after high school (with about half enrolled in an institute of higher education and 15 percent competitively employed within one year after high school).


The complete report, Overview of Special Education in California, is available in PDF or HTML from the LAO.

Monday, January 14, 2013

Join KMTG Attorneys at the ACSA Every Child Counts Symposium!

The 2012 Association of California School Administrators (ACSA) Every Child Counts Symposium will take place this year on January 16-18 at the Portola Hotel and Spa in Monterey. This annual event is hosted by ACSA’s Student Services and Special Education Council.

This year several KMTG attorneys were again selected as speakers and panel participants, including Diane Beall on the hot-topics Legal Issues Panel on Thursday afternoon and Meghan Covert Russell presenting “Leaving a Paper Trail: Best Practices for District Retention and Disclosure of Documents” on Thursday at 8:30 a.m.

If you are attending the ACSA symposium you won't want to miss these insightful presentations by members of the KMTG Special Education group. We hope to see you there!

For more information about the symposium, please visit ACSA's website here.

Friday, January 11, 2013

Court of Appeal Grants Petition for Rehearing in School District Parcel Tax Case

The court of appeal in Borikas v. Alameda Unified School District (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., December 6, 2012; re-hearing granted January 7, 2013) held that the school district did not have the authority to impose a special tax (a parcel tax in this case) that classifies and differentially taxes property within the district.

This initial appellate decision held that a special tax is invalid where it imposes differential tax rates based on the taxpayer or parcel.  In this case, the court initially found that the District had violated Government Code section 50079 where the District’s Measure H taxed residential taxpayers at $120 per parcel per year and commercial and industrial parcels on a per square foot basis (not to exceed $9,500 per year).  According to the court, treating residential and commercial parcels differently when applying a qualified special tax violates the provision that taxes apply uniformly to all taxpayers or all real property within the school district, except where exempted.

However, the court of appeal has granted the District’s petition for rehearing.  KMTG will follow this case and provide an update to our Legal Alerts as this case proceeds in the appellate process.

To read more, please see KMTG's full legal alert on Borikas here.

Meghan Covert Russell

Thursday, January 10, 2013

1% Assessment on Lumber Products

Starting January 1, 2013, lumber and engineered wood products purchased for use in California are subject to a 1% assessment based on the sales price.  This includes many wood products used for school construction, including lumber, plywood, and lath.  However the assessment does apply to products such as furniture, cabinets, or windows. 

For more detailed information you can read the Special Note from the State Board of Equalization here.

Meghan Covert Russell