http://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpg00Michael Travishttp://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpgMichael Travis2017-05-22 17:36:162017-05-22 17:47:21Parker & Covert LLP Featured in Orange County Attorney Journal
On November 17, 2016, the Ninth Circuit Court of Appeals decided N.E. v. Seattle School District, in which it considered how to identify a student’s “then-current”/“stay-put” special education placement when a parent brings a due process complaint. The facts are somewhat convoluted: Student is disabled and exhibited serious behavioral problems. District A provided Student with […]
http://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpg00Michael Travishttp://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpgMichael Travis2016-12-07 12:14:022017-05-16 19:17:35Ninth Circuit Rules That Partially Implemented, Multi-Stage IEP, As A Whole, Is Student’s Then-Current Special Education Placement
On October 25, 2016, the California Court of Appeal decided San Diegans for Open Government v. City of Oceanside. At issue was whether the City of Oceanside (“City”) had complied with the Ralph M. Brown Act’s requirements regarding the contents of a local legislative body’s published agenda. (See Government Code § 54954.2, subd. (a).) The appellate court determined that the City had complied, providing a summary of what the Brown Act requires in order for an agenda to withstand such a legal challenge.
The Brown Act requires that the agenda of a regular meeting of a local legislative body (including boards of K-12 and community college districts) be posted 72 hours before the start of the meeting and contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description need not exceed 20 words.” (Government Code § 54954.2, subd. (a).)
Relying on several Court of Appeal decisions, the Court explained that an agenda must give the public more than a mere “clue” as to what a local legislative body intends to do at an upcoming meeting. (Moreno v. City of King (2005) 127 Cal.App.4th 17, 27.) However, a challenge to a local legislative body’s agenda cannot be “hypertechnical” or elevate form over substance. (Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, 1207.)
The Court further clarified that the fact that an agenda could have been more informative is not enough to amount to a Brown Act violation: “[T]o date, the Legislature has not required such detail or precision in local agency agendas; rather,…the statute only requires a ‘brief general description,’ which the cases in turn have determined only requires a fair notice of the essential nature of what an agency will consider.” (Relying on Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196, 200.) It is “an elastic standard,” and the Brown Act is not violated in instances where “an agenda…was not in any sense confusing, misleading or unfairly opaque.”
Should you have any follow-up questions or comments regarding this case, please feel free to contact either our Southern California office at (714) 573-0900 or our Northern California office at (916) 245-8677.
http://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpg00Michael Travishttp://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpgMichael Travis2016-11-16 16:29:482017-05-16 19:17:35How Specific Must A Local Legislative Body’s Agenda Be In Order To Comply With The Ralph M. Brown Act?
In a recent decision, the three-judge panel of the Ninth Circuit Court of Appeals reversed the federal district court’s summary judgment in favor of a defendant school district, disagreeing with the district court’s and the state Administrative Law Judge’s ruling that a student with three disabling conditions did not require special education services because of his satisfactory performance in general education.
In L.J. v. Pittsburg Unified Sch. Distr., No. 14-16139 (9th Cir. Sept. 1, 2016), the Ninth Circuit panel found that the student’s improved performance was due to his receipt of special services not offered to general education students, and that the student’s suicide attempts and absences from school due to psychiatric hospitalizations were relevant to his eligibility even though they did not occur in the school environment. Finally, the panel held that the school district committed procedural violations of the IDEA by failing to disclose school records and failing to conduct a health assessment, thereby interfering with the parent’s opportunity to participate in the IEP process.
Over the course of four school years, the emotionally troubled student exhibited suicidal tendencies and disruptive behaviors. The student had multiple suspensions for kicking and hitting teachers, throwing rocks, calling teacher and peers names, and endangering and physically injuring classmates. The student had attempted to kill himself on at least three occasions, had manifested suicidal ideations prompting district’s mental health providers to conduct an emergency suicide evaluation, was diagnosed with three disorders (bipolar disorder, oppositional defiant disorder, and ADHD), and had been prescribed psychotropic medications.
The school district and the ALJ determined that the student was not entitled to special education services because he was not disabled. On appeal of the ALJ’s decision, the district court found that the student was indeed disabled under three IDEA categories (Specific Learning Disability, Other Health Impaired, and Seriously Emotionally Disturbed), but concluded that an IEP was not necessary because the student was performing well behaviorally, socially, and academically with the help of services the court characterized as general education accommodations, not individualized special education services.
On the parent’s appeal to the Ninth Circuit, the critical issue to be determined was whether general education was appropriate or whether the student demonstrated a need for special education services. Based upon the information reasonably available to the parties at the time of the IEP meeting, the court found that the student should have been categorized as a child with a disability within the meaning of the IDEA, and that, by refusing to provide the necessary services pursuant to an IEP, the student was not ensured such services in the future.
School records showed that, although the student was in a general education classroom, multiple specialized services were being provided and the progress was attributable to those services. The school district had been providing special services, including one-on-one assistance, specially-designed mental health services, clinical interventions by a behavior specialist, and individualized instructional accommodations that resulted in the student’s improved performance. The court further found that, even with the specialized services, the student threatened and attempted to kill himself on several occasions, and was hospitalized. Although the hospitalizations and suicide attempts occurred outside the school environment, the court found that the student’s emotional disturbance adversely impacted his attendance, his absences interfered with his education, he relied on psychotropic medications in order to attend school, and he had ongoing needs associated with his medications.
The Ninth Circuit determined that the school district violated IDEA procedural safeguards by failing to disclose assessments, treatment plans, and progress notes kept by the school, which deprived the parent of her right to informed consent in waiving the attendance of mental health clinicians at the IEP meeting. The school district also failed to conduct a health assessment, which rendered the school district and IEP team unable to evaluate and address the student’s medication and treatment related needs.
The Ninth Circuit Court of Appeals reversed the district court’s decision and the case was remanded for development of an appropriate IEP.
http://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpg00Michael Travishttp://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpgMichael Travis2016-10-28 23:35:132017-05-16 19:17:35Student With Qualifying Disabilities Entitled to Special Education Services in Spite of Satisfactory Academic Performance
Under current law, school districts issuing general obligation bonds, certificates of participation (“COPs”), or other forms of debt must submit timely reports to the California Debt and Investment Advisory Commission (“CDlAC”) of the proposed issuance and final sale. SB 1029 provides that commencing January 1, 2017, a school district must additionally certify that it has adopted local debt policies in the report of final sale for any financing. The local debt policies must include specified provisions concerning the use of debt and that the contemplated debt issuance is consistent with those local debt policies. SB 1029 will also require local agencies to prepare an annual report for any debt issue for which it has filed a CDIAC report of final sale on or after January 21, 2017.
The local debt policies are to include all of the following:
(a) The purposes for which the debt proceeds may be used.
(b) The types of debt that may be issued.
(c) The relationship of the debt to, and integration with, the issuer’s capital improvement program or budget, if applicable, and
(d) Policy goals related to the issuer’s planning goals and objectives.
While the issuance of debt can be an appropriate method of financing capital projects, more stringent monitoring of such debt issuance is now required under SB 1029 to preserve a school district’s credit strength and budget and financial flexibility. The SB 1029 policies will assist school districts in determining the appropriate uses for debt financing as well as establishing prudent debt management goals.
http://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpg00Michael Travishttp://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpgMichael Travis2016-10-12 16:26:312017-05-16 19:17:35New Law Imposes Additional Requirements On School Districts That Engage In Financings
Assembly Bill 2316 (“AB 2316”) has now been signed into law by the Governor in an effort to address uncertainty in the area of lease-leaseback construction projects. Previously, the Court of Appeal decisions in Davis v. Fresno Unified School District (2015) 237 Cal.App.4th 261 and McGee v. Balfour Beatty Construction, LLC, et al. (2016) 247 Cal.App.4th 235 (unpublished), raised significant, conflicting questions about the use of the Education Code’s lease-leaseback statutes for school construction. Among other limitations, the Davis Court held that the school district’s lease was not a “true lease” and as such, was not eligible for exemption from competitive bidding requirements. The Davis Court also held that a potential for conflict of interest under Government Code Section 1090 existed in regard to the contractor’s role on the project including pre-construction services. In the non-binding McGee case, the Court rejected the more stringent Davis finding that competitive bidding was required for a lease-leaseback project. Nevertheless, McGee agreed with Davis on the potential basis for a conflict of interest.
In light of the uncertainty created by these and other court decisions, AB 2316 represents an effort by the Legislature to provide clarification. The Bill does so by amending, deleting and adding several additional requirements to the lease-leaseback statutes of Education Code Sections 17400 through 17429. Although some of the issues have now been resolved, others remain unclear.
Contractor Review and Approval Requirements
AB 2316’s revisions to the Education Code will continue to permit school districts to lease property to third parties by way of a contract providing for construction of buildings on the property. However, under the revisions to Section 17400, any such contract may now be awarded only following a “competitive solicitation process” in an effort to provide “best value to a school district.” In general, the process will require:
The initial drafting, publication and school board approval of procedures and guidelines for evaluating the qualifications of proposers seeking to enter into lease-leaseback contracts. The procedures and guidelines at a minimum must include:
The use of a Request for Proposal (“RFP”) circulated to “qualified proposers.”
The RFP is to be circulated in accordance with Public Contract Code requirements.
In order to be entitled to respond, proposers must be prequalified under the requirements of the Public Contract Code.
The RFP must identify the criteria a school district will consider in evaluating proposals and determining qualifications of proposers.
School districts must identify the rating system applicable to each criteria.
Once the above procedures are established, school districts may seek requests for sealed proposals from qualified contractors that will address the requirements outlined in a school district’s RFP process.
Following a school district’s review of responses generated from the process described above, scores are to be assigned to each proposal which shall then be ranked from “highest best value to lowest best value.” A school board may award the contract to the proposer whose proposal is determined to be the “best value” for the school district. If the school district is unsuccessful in awarding to the best value proposer, the school district may offer the contract to the second proposer, and then to subsequent proposes in descending order until an award is made, or all proposals are rejected.
AB 2316 also contains provisions addressing the Division of the State Architect (“DSA”) approval process for lease-leaseback. School districts may now enter into contracts for preconstruction services as long as DSA review is not applicable to those services. In addition, if DSA approval is required for a project and approval is subsequently obtained following award to a successful proposer, an adjustment to the price for the project may be made to accommodate the additional costs associated with any DSA plan changes that occurred during the approval process.
Subcontractors; Contract Invalidation; Financings; Conflict of Interest
AB 2316 further provides more detailed guidance on several subcontractor issues relating to lease-leaseback. For example, following award of the contract, the successful proposer must meet certain requirements for the selection of subcontractors not identified in the original contract.
The drafters of AB 2316 also addressed the issue of contract invalidation raised by the Davis Court allowing contractors, under certain circumstances, to recover reasonable costs, “excluding profits” for work arising from any contract dated prior to July 1, 2015. To be eligible, a determination must be made that the invalidation resulted from a court’s determination that the contract failed to comply with competitive bidding laws.
The Davis and McGee decisions also raised questions regarding the feasibility of financings for lease-leaseback projects. AB 2316 fails to address these issues. AB 2316 also does not expressly resolve the conflict of interest issues raised by Davis and other cases. It can be argued that the more comprehensive prequalification and RFP procedures are intended to address those conflict of interest issues.
School districts that continue to use lease-leaseback as a construction method should familiarize themselves with the extensive new requirements of AB 2316 (effective January 1, 2017) in the area of prequalification and the awarding of contracts. Although some of these procedures are similar to those already in effect and applicable to design-build contracts, there are also several additional elements contained in the new law.
Should you have any follow-up questions or comments on this information, please feel free to contact either our Southern California office at (714) 573-0900 or our Northern California office at (916) 245-8677 or visit our website at www.parkercovert.com.
http://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpg00Michael Travishttp://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpgMichael Travis2016-09-30 19:02:542017-05-16 19:17:35New Law Revises Lease-Leaseback Procedures For School Districts