In In re J.D. (2014) 225 Cal.App.4th 709 [170 Cal.Rptr.3d 464], the Court of Appeal held that a school’s search of lockers in an area frequented by a student suspected of an off-campus shooting was reasonable under the Fourth Amendment.
While on duty at the school, a Richmond High School campus security officer (CSO) was informed by a student that the day before, while she was on a public bus, she witnessed another Richmond High School student, T.H., pull out a gun and shoot someone. Another student had also told the student witness what T.H. had done with the weapon. The CSO met with school administrators and was directed to detain T.H. and determine if he had any weapons. The CSO also called the Richmond police for help.
Another Richmond High School CSO had frequently observed T.H. hanging around a locker different from the one he was assigned. In fact, on the day of the shooting, the CSO had observed T.H. with his girlfriend in front of locker 2499. The CSO had also advised school authorities that students often shared their assigned locker with other students who were not assigned to that locker for the purpose of concealing contraband such as drugs and other items not permitted on campus. A search of locker 2499 revealed only a couple of books. The CSO was then directed to check the lockers adjacent to locker 2499 because the student had frequented the “area” of 2499. When locker 2501, which was next to 2499, was opened, a backpack containing a sawed-off shotgun was found. In addition to the sawed-off shotgun, the backpack contained school assignment papers belonging to another student, J.D. A Richmond police officer met with J.D., Mirandized him, and thereafter J.D. admitted that the shotgun in the backpack belonged to him. J.D. stated that he was bothered by other students at the school and possessed the weapon for his safety.
The California Court of Appeal upheld the search of the lockers, finding that the conduct of the school officials was reasonable under the circumstances. The court acknowledged that based on recent events, such as Columbine, Sandy Hook Elementary, and Virginia Tech, school officials now have increased concern in the daily operation of public schools. The court noted that government has a heightened obligation to safeguard students whom it compels to attend school. There is a special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself. This, the court found, justifies excepting school searches from the warrant and probable-cause requirement, and applying a standard determined by balancing the relevant interests. Thus, the state has a compelling interest in assuring that the schools meet this responsibility.
Accordingly, the validity of a search on school property should depend on the reasonableness of the official conduct to deal with the particular school problem. In this case, Richmond High School administrators and security staff were informed by an identified student that the weapon used the previous day to shoot a person on a public bus after school may be at the school, possibly in a student’s locker. This information triggered an inspection of the lockers where it was reasonable to believe that a weapon may be found. The administrator’s actions were narrowly focused, and based on the identity of T.H. and an area of the school he was known to frequent. The actions of school security, based on the belief that T.H. may have stored contraband in another person’s locker, were reasonable under these circumstances.
The appellate court found that determining the reasonableness of any search involves a twofold inquiry: first, whether the action of the school officials was justified at its inception, and second, whether the search as actually conducted was reasonably related in scope to the circumstances. Citing U.S. Supreme Court precedent, the court found that under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
The appellate court also concluded that the school’s reasonable response was not prolonged over time nor a widespread checking of all lockers at the high school. The locker (2501) that was adjacent to the first locker checked, was properly examined based on the observations of the CSOs, their experience with student concealment of items in other lockers, and the prompt need to address a serious shooting the previous day. The fact that J.D., rather than T.H., had stored an illegal weapon in locker 2501 did not disturb the legal validity of this search.
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 Travis2014-05-29 19:25:212017-05-16 19:18:05Search of Different Student's Locker Did Not Violate the Fourth Amendment
In Nathan G. v. Clovis Unified School District, the California Court of Appeal recently held that a school district can involuntarily transfer a student to continuation high school, without having to exhaust all other means of correction. Education Code section 48432.5 states in pertinent part:
“A decision to transfer the pupil involuntarily shall be based on a finding that the pupil … committed an act enumerated in Section 48900 … . Involuntary transfer to a continuation school shall be imposed only when other means fail to bring about pupil improvement. …”
The court found that the foregoing wording does not require exhausting all other means of correction. Section 48432.5 does require a hearing on request of the student or their parent or guardian prior to an involuntary transfer, which can be in the form of a meeting with the superintendent’s designee.
In an important legal determination, the court also found that, in contrast to a suspension or expulsion, an involuntary transfer does not deny access to public education and does not affect a “fundamental vested right.” Therefore, courts should review whether the administrative findings are supported by the evidence under the “substantial evidence” test, which is more deferential to school districts than the “independent judgment” test. The court concluded that a great deal of deference should be given to an administrator’s decision to discipline a student:
“‘[T]he ‘primary duty of school officials and teachers … is the education and training of young people. A State has a compelling interest in assuring that the schools meet this responsibility. Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. …’ At school, events calling for discipline are frequent occurrences and sometimes require ‘immediate, effective action.’ … To respond in an appropriate manner, ‘“teachers and school administrators must have broad supervisory and disciplinary powers.”’ … (In re Randy G. (2001) 26 Cal.4th 556, 562, 563; see also Reeves v. Rocklin Unified School Dist. (2003) 109 Cal.App.4th 652, 664-665 [“’[D]aily administration of public education is committed to school officials and … such responsibility carries with it the inherent authority to prescribe and control conduct in the schools. The interest of the state in the maintenance of its education system is a compelling one … .’”]
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 Travis2014-04-03 19:23:062017-05-16 19:18:06Student May Be Transferred To Continuation High School Following Hearing Without Exhausting All Other Means Of Correction
The California Court of Appeal recently held that the California Public Records Act (“Act”) does not require access to communications between public officials using exclusively private cell phones or e-mail accounts. These private communications sent or received by public officials and employees on their private electronic devices using their private accounts, i.e., communications that are not stored on City servers and are not directly accessible by the City, are not “public records” within the meaning of the Act.
In City of San Jose v. Superior Court of Santa Clara County (Smith), Smith sought to inspect specified written communications (including e-mail and text messages) sent or received by public officials and employees on their private electronic devices using their private accounts. The City refused to produce those records on the grounds that the records sought were not stored on City servers and not directly accessible by the City; thus they were not public records within the meaning of the Act.
Smith argued that communications prepared, received, or stored on City officials’ private electronic devices are public records under the Act because local agencies can only act through their officials and employees. Thus, those officials and employees are acting on behalf of the City and therefore their disclosure obligations are indistinguishable from those of the City.
The City had disclosed responsive non-exempt records sent from or received on private electronic devices using the individuals’ City accounts, but not records from those persons’ private electronic devices using their private accounts (e.g., a message sent from a private Gmail account using the person’s own smartphone or other electronic device). The City argued that messages sent from or to private accounts using private electronic devices are not “public records” under the Act, and that individual officials and employees are not included within the definition of “public agency” under the Act.
The Court of Appeal agreed with the City. The court looked to the exact language of the Act and noted that its definition of “public records” is “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” (Section § 6252(e).)
If a local agency and its officials are, as Smith argued, one and the same, then any writing prepared, owned, used, or retained by the official is deemed that of the agency itself. However, the court found that the Act’s definition of “local agency” does not mention individual members or representatives of any public body. “Had the Legislature intended to encompass such individuals within the scope of ‘public records,’ it could easily have done so,” the court said.
Thus, the court found that individual city council members and their staff are not equivalent to the City for purposes of providing public access to their writings on public business. “Because it is the agency—here, the City— that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the City cannot be said to fall within the statutory definition.
The City cannot, for example, ‘use’ or ‘retain’ a text message sent from a council member’s smartphone that is not linked to a City server or City account,” the court found. Accordingly, the court held that the writings sought by Smith were not “prepared, owned, used, or retained” by a “local agency” as required by the Act.
Additionally, the court acknowledged the possibility that government employees could circumvent the disclosure requirements of the Act by simply using their own private cell phones and computers, over their own private accounts, to communicate City business. However, the court stated that it was the role of the Legislature and not the court to prevent this.
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 Travis2014-04-01 09:00:262017-05-16 19:18:06Communications Between Public Officials Using Private Cell Phones And Email Accounts Are Not Public Records Under The California Public Records Act
The 9th Circuit Court of Appeals recently determined that a university professor’s writings and comments on proposed department reorganization required an analysis under the First Amendment. By so concluding, the appellate court reversed the lower court’s decision that the professor’s speech did not address matters of public concern. Demers v. Austin, 2014 DJDAR 1190 (Jan. 29, 2014).
At issue was the difficult legal question of whether the professor’s writings and comments constituted matters of public concern entitled to First Amendment protections or whether the writings instead were private institutional issues representing classic personnel struggles not entitled to First Amendment protection.
The 9th Circuit decided the case of Professor Demers from Washington State University who alleged First Amendment violations based on alleged retaliation from University administrators. The alleged retaliation included, among other allegations: negative annual performance reviews, two internal audits, and a formal notice of discipline.
The appellate court determined that the writings and commentary related to academic scholarship, academic writings, and teaching performed in accordance with “official duties.” The court observed that even writings about significant budget issues can fall within the protected area of “matters of public concern.” In its decision the court recognized that not all speech by a teacher or professor addresses a matter of public concern. The court gave examples such as, objectionsto closing laboratories and criticisms of a board of trustees process in selecting a president, that were viewed as essentially private grievances. However, in this case, the Court found the writings go to the organization of the Communications Department and substantially alter the nature of what was being taught by the department, as well as the composition of the faculty that would teach it.
As a result, the decision concluded that the legal analysis by the U.S. Supreme Court in Pickering v. Board of Education controlled the disposition of the case. Consequently, the summary judgment in favor of the University was reversed. (The judgment in favor of the administrators was affirmed on the separate grounds that the administrators were entitled to qualified immunity.) The case will now return to the trial court to determine: if the administration’s interest in the written commentaries were sufficient to deprive them of First Amendment protection; whether the commentaries were a substantial or motivating factor in any adverse employment action; and whether the defendants would have taken such employment action absent the protected speech.
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 Travis2014-02-14 09:00:252017-05-16 19:18:06Demers v. Austin: Ninth U.S. Circuit Court Of Appeals Concludes University Professor’s Public Comments On Department Reorganization Plan Constitute Matters Of Public Interest Requiring First Amendment Analysis
The State Allocation Board, at its January 22, 2014 meeting, approved an increase in “level 1” developer fees from $3.20 to $3.36 per square foot on new residential development and residential additions of over 500 square feet, and from $0.51 to $0.54 per square foot on new commercial and industrial development.
School districts may implement these higher fees immediately provided that they have an appropriate fee justification report in place. Your existing justification report may be adequate or may need to be updated. Implementing the higher fees requires passing a resolution, preceded by publishing a notice twice in a 10-day period, posting the notice, and mailing the notice to anyone who has specifically requested notice. The higher fees go into effect 60 days after the resolution is passed, unless urgency resolutions are used to reduce the waiting period. The county and any cities having jurisdiction in your district should be notified of the increase so that they have current information for building permit applicants.
Non-unified districts should adjust their allocation agreement for sharing the total fee amounts.
As always, fee revenues are to be placed in an account to be used for facilities construction and modernization, as well as costs of justifying and collecting the fees. Those districts that have the higher “level 2” fees on new residential development should still increase their level 1 fees to capture revenues from projects not subject to level 2 fees.
If you have any questions concerning developer fees, justification reports, or the process to increase fees, please contact our office.