Harold M. Freiman is a Partner in Lozano Smith's Walnut Creek office. He represents school districts, county offices of education, and community college districts in such areas as school facilities, property, general education law, governing boards, student issues, business, and general litigation. He is a recognized leader on such topics as developer fees, school district reorganization, surplus property, the Brown Act and the Public Records Act. Additionally, he provides advice and litigation services related to the California Environmental Quality Act (CEQA) to cities, special districts and educational agencies. He has been with the firm and representing public entities for over 20 years. Mr. Freiman has appeared before the California Supreme Court on behalf of the California School Boards Association's Education Legal Alliance, and has been named a Northern California "Super Lawyer." He also received the 2014 CASBO Associate Member of the Year Award for his exemplary service to schools and to CASBO for many years.
Mr. Freiman, who has received numerous awards for public speaking, has been a speaker for, among others, the California School Boards Association (CSBA), the California Association of School Business Officials (CASBO), the National School Boards Association (NSBA), and the Coalition for Adequate School Housing (CASH). Mr. Freiman also regularly conducts board workshops on topics such as the Brown Act and Board governance.
In addition to writing several of the firm's Client News Briefs, Mr. Freiman's article, "Upcoming Developer Fee Increase, Being Proactive Can Result in More School Facilities Funds" was published in the CASBO Journal
in December 2005. Mr. Freiman also co-authored "Water and Sewer Service Impacts and Fees," Environmental Mitigation Handbook
(California's Coalition for Adequate School Housing, 2009) and Senate Bill 50 and School Facility Fees: A Report Prepared by C.A.S.H.'s Legal Advisory Committee (1999). Mr. Freiman's article, "In Service to the Client"
was published in California Lawyer Magazine
in September 2013.
Mr. Freiman is a frequent presenter and trainer for CASBO, is a member and former Chair of CASBO's statewide Associate Member Committee, and served on the CASBO Board of Directors for 2015-2016. He has also served on the Legal Advisory Panel for the Coalition for Adequate School Housing. Additionally, he is a member of CSBA's Council of School Attorneys as well as the National School Boards Association's Council of School Attorneys.
Mr. Freiman received his J.D. from Columbia Law School, and holds a B.A. from the University of California at Berkeley. He was admitted to the California State Bar in 1990.
In college, he was a teaching assistant and reader in the Rhetoric Department, and worked as an instructor in the Contra Costa College for Kids summer program. While at Columbia, he instructed first year law students in Real Property Law.
A recent California appellate court ruling has clarified the reach of the California Public Records Act (CPRA). InAnderson-Barker v. City of Los Angeles, the Second District Court of Appeal held that records in the possession of a third party contractor under a contract with the City of Los Angeles were not subject to the CPRA where the city had access to but did not actually possess or control the records.
In Anderson-Barker, the plaintiff sought to ...
A California appellate court recently reaffirmed the limitations a governing board of a public entity can impose on public comments during a board meeting (Ribakoff v. City of Long Beach).
As was his frequent practice, Joe Ribakoff attended a Long Beach Public Transportation Company (LBTC) board meeting as an interested citizen. LBTC's lone shareholder is the City of Long Beach, and LBTC operates as a public entity. During the public comment perio...
A California appellate court has ruled that public agencies are not required to provide anonymized data in response to California Public Records Act (CPRA) requests when doing so would require the public agency to create new data.
The CPRA requires public entities to disclose public records unless there is a specific legal exemption. The courts have previously affirmed that the CPRA does not require public agencies to create new records to satisfy...
Public project bid limits are set to increase for public agencies that have opted into uniform cost accounting under the California Uniform Public Construction Cost Accounting Act (CUPCCAA). Assembly Bill (AB) 2249 has been signed by Governor Jerry Brown and is set to take effect on January 1, 2019.
Lawmakers drafted the bill to address construction cost increases that have occurred since the limits were last increased, in 2011.
A school district consultant's services agreements may be void under Government Code section 1090, even though the consultant is not an officer or employee of the school district. Section 1090 prohibits conflicts of interest in the making of public contracts. InStrategic Concepts, LLC v. Beverly Hills Unified School District, the court ruled that a consultant's status as an independent contractor rather than an employee did not exempt her from the law's reach. The tria...
Many school districts throughout the state have recently received one or more California Public Records Act (CPRA) requests from the California Taxpayers Action Network (CalTAN) and the Carlin Law Group regarding lease-leaseback (LLB) transactions. CalTAN and the Carlin Law Group filed multiple lawsuits against school districts in the past regarding lease-leaseback practices, and this CPRA request may be a precursor to future litigation.
The first of the recent CPRA...
As a result of California's affordable housing crisis, school districts face challenges in retaining teachers and school district employees, particularly in regions with high housing costs. California lawmakers sought to address the problem by proposing Assembly Bill (AB) 1157 and AB 45 to make it easier for districts to promote housing development for district employees, though Governor Jerry Brown vetoed the latter bill.
AB 1157 was part of a package of 15 hous...
When Greg Blount embarked on a project to install cameras in the Merced City School District’s schools in an effort to quell a tide of vandalism and break-ins, a host of legal questions greeted him.
Could cameras be used to record threats of violence made in a school office, or would a right to privacy shield the person who made them? Could audio recordings be made on campus at all? How long should the cameras’ recorded footage be kept, and who would have the right to view ...
The State Allocation Board (SAB) has increased the amount of "Level 1" developer fees that school districts are authorized to collect to $3.79 per square foot of residential development and $0.61 per square foot of commercial development. The increase takes effect immediately, and may now be implemented by school districts through local action.
The new rates, which the SAB approved on January 24, 2018, represent an 8.78 percent increase over the maximum amounts a...
Facing one of the tightest housing markets in California history, state lawmakers have approved an extensive package of bills intended to maintain existing housing stocks and boost new housing construction. These bills become effective on January 1, 2018.
This legislative package will provide funding to stimulate housing production and will eliminate procedural hurdles to getting housing built. Alternatively, though, the bills also require more detailed justific...
On September 25, 2017, Governor Jerry Brown signed two bills aimed at giving a stronger voice to student board members of school district governing boards. Assembly Bill 261 confers voting rights upon all student board members, while Senate Bill 468 enhances a student board member's access to board materials. Both bills go into effect on January 1, 2018.
Assembly Bill 261: Voting Rights for All Student Governing Board Members
Existing law requires the governin...
As public agency officials and employees have increasingly turned to text messages and email to facilitate communication anytime and anywhere, they lost touch with a basic truth: Electronic communications are writings. As such, they may fall within the reach of the California Public Records Act (CPRA). Now that the California Supreme Court has opened the door to disclosure of public agency-related communications made or stored on private devices and in private accounts, California’s ...
The California Supreme Court has ruled that an independent contractor can be criminally liable for a conflict of interest under California Government Code section 1090, expanding the universe of penalties a contractor can face for violating the statute and reversing a prior appellate court ruling that exempted contractors from criminal liability for such conflicts.
The Court's decision in People v. Superior Court (Sahlolbei) (June 26, 2017, No. S232639) ___ Cal.5th ...
On May 31, 2017, the First District Court of Appeal ordered publication of its decision in California Taxpayers Action Network v. Taber Construction, Inc. et al.(2017) 12 Cal.App.5th 115 (Taber), which upholds the validity of a lease-leaseback arrangement. This reversed the court's initial decision not to publish the case. Publication of the Taber decision means that it serves as citable precedent upon which school districts and others may now rely.
In Taber, the Co...
Another California appellate court has ruled that a lease-leaseback (LLB) contract made without competitive bidding is legally enforceable.
In California Taxpayers Action Network v. Taber Construction, Inc. et al. (May 2, 2017, No. A145078) [nonpub. opn.] (Taber), the First District Court of Appeal agreed withMcGee v. Balfour Beatty Construction, LLC (2016) 247 Cal.App.4th 235, finding that competitive bidding is not required for an LLB contract. Although the appella...
Emails, text messages and other written communications sent to or from a public official's private account may be subject to disclosure under the California Public Records Act (CPRA), the California Supreme Court ruled unanimously in a highly anticipated decision published on March 2, 2017. (City of San Jose et al. v. Superior Court (March 2, 2017, No. S218066) ___ Cal.5th ___ < http://www.courts.ca.gov/opinions/documents/S218066.PDF>.)
The court held that t...
The California Supreme Court has ruled that invoices from a public agency's legal counsel are subject to disclosure under the California Public Records Act (CPRA), with limited exceptions. Invoices for work in pending and active legal matters may generally be shielded from disclosure under the attorney-client privilege.
In Los Angeles County Board of Supervisors v. Superior Court (Dec. 29, 2016, No. S226645) ___ Cal.4th___ < http://www.courts.ca.gov/opinions/d...
A California court decision has cleared the way for eligible school districts to begin charging Level 3 developer fees to fund new school construction.
The Third District Court of Appeal had previously issued a "stay," or a legal hold, on a decision from the Sacramento County Superior Court that would allow eligible districts to collect Level 3 fees. On November 1, 2016, the court denied a request from the California Building Industry (CBIA) to continue the stay. Immediate...
The State Allocation Board's (SAB) effort to authorize eligible school districts to levy Level 3 developer fees has hit another legal roadblock. On September 1, California's Third District Court of Appeal stayed the proceedings in the trial court case pending in Sacramento County Superior Court. This appears to keep a temporary restraining order in place that prohibited the SAB from notifying the Legislature that state bond funding is no longer available.
In May, the SAB ...
Released in July 2016, Pokémon Go is a technological and gaming sensation that swept across the country, where players use their mobile devices to locate Pokémon (virtual creatures) in the real world. Pokémon can appear in any physical location, and as avid fans know, players "gotta catch 'em all." This may result in players entering or approaching public property to capture Pokémon, which means public agencies may have to address issues regard...
A recent court decision has again opened the door for eligible school districts to impose 'Level 3' developer fees. As Lozano Smith previously reported, the State Allocation Board (SAB) took unprecedented action in May to authorize eligible school districts to collect Level 3 fees. SAB's determination that state funds are no longer available for new school construction, which triggers the Level 3 fees, was challenged in court by the California Building Industry Assoc...
On July 25, 2016, Governor Jerry Brown signed two Assembly bills related to K-12 school district student attendance. Assembly Bill (AB) 2537 indefinitely extends Education Code section 48204 subdivision (b), which permits a student to attend school near where their parent works. Assembly Bill (AB) 1593 makes a student's attendance at a naturalization ceremony an excused absence.
AB 2537: Interdistrict Transfers Because of Parent Employment to Continue Indefinitely...
There has been a proliferation in the State of these types of requests, and they are becoming more sophisticated. As a result, public agencies must counter the sophistication in response, and create a game plan. Now is the time to think about these broad issues and how public agencies take on the flood of information requests in this new era. Harold Freiman, Partner in Lozano Smith’s Walnut Creek office, breaks down the hot topics related to the Public Records Act, and discusses the importa...
School districts selling or leasing surplus property are no longer required to first offer that property to interested charter schools. The requirement has expired and is no longer effective as of July 1, 2016.
Surplus property is real property belonging to a school district that is not needed for school classroom buildings. Before a school district can dispose of surplus property, it must generally take certain steps, which include making written offers or solicita...
As of January 1, California school districts have been authorized to use job order contracts for public works projects greater than $25,000. Approved by Governor Jerry Brown in October of last year, Assembly Bill No. 1431 modified the Local Agency Public Construction Act to authorize job order contracting for school districts until January 1, 2022. This bill comes after a decade-long pilot program of the job order contract project delivery method at Los Angeles Unified...
Lozano Smith Alert
As Lozano Smith reported yesterday, the State Allocation Board (SAB) took unprecedented action this week authorizing eligible school districts to collect ‘Level 3’ developer fees. The litigation that was threatened and that was mentioned in our client news brief has become a reality. On the same day that SAB approved Level 3 fees, the California Building Industry Association (CBIA) filed a Petition for Writ of Mandate in Sacramento County Superior Court....
*** Update: May 27, 2016***
The litigation that was threatened and that was mentioned in the below client news brief has become a reality. Details here.
The State Allocation Board (SAB) has taken the unprecedented step of determining that state funding is no longer available for apportionment for school facilities, triggering some school districts’ eligibility to collect higher ‘Level 3’ fees for the first time ever.
The Board’s historic May 25 decision ...
On May 4, the Second District Court of Appeal in McGee v. Balfour Beatty Construction, LLC, et al. (McGee) ordered publication of its decision upholding the validity of a lease-leaseback arrangement. Publication of the decision means that it now serves as precedent on which school districts and others may rely.
In McGee, the court reviewed the validity of a lease-leaseback arrangement that was challenged on the grounds that the arrangement did not comply with Educati...
An appellate court has ruled that a lease-leaseback (LLB) contract without competitive bidding was legally enforceable. In McGee v. Balfour Beatty Construction, LLC, et al. (Apr. 12, 2016) 2016 Cal.App.Unpub. Lexis 2626, a California appellate court rejected the holding of Davis v. Fresno Unified School District (2015) 237 Cal.App.4th 261, that competitive bidding was required for an LLB contract unless additional non-statutory contract terms were included. However, t...