Harold M. Freiman
Partner | Walnut Creek
hfreiman@lozanosmith.com
Tel: 925.953.1620
Fax: 925.953.1625
Vcard
Bio
Overview
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.Experience
He has been with the firm and representing public entities for over 25 years. Mr. Freiman has appeared before the California Supreme Court on behalf of the California School Boards Association's (CSBA) Education Legal Alliance, and has been named a Northern California "Super Lawyer." He also received the 2014 California Association of School Business Officials (CASBO) Associate Member of the Year Award for his exemplary service to schools and to CASBO for many years. Mr. Freiman previously served as a Briefing Attorney for the Texas Supreme Court.Presentations and Associations
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 (CASH). 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, who has received numerous awards for public speaking, has been a speaker for these and numerous other state and local organizations. Mr. Freiman also regularly conducts board workshops on topics such as the Brown Act and Board governance.Articles
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.Education
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 and served as an editor for the Columbia Human Rights Law Review.New Bill Addresses Independent Contractor Conflicts of Interest and Provides Safe Harbor
February 2024Number 10Assembly Bill (AB) 334, which became effective on January 1, 2024, clarifies conflict of interest rules for independent contractors, particularly in relation to projects that have multiple phases.BackgroundGovernment Code section 1090 (Section 1090) generally prohibits public officials and employees from having personal financial interest in contracts made in their official capacities and imposes severe penalties for violations, including voiding of contracts, civil pena...
State Allocation Board Approves Increase to Level 1 Developer Fees
January 2024 Number 6 The State Allocation Board (SAB) has approved a 7.84% increase for the "Level 1" developer fees that school districts are authorized to collect. School districts are now authorized to collect up to $5.17 per square foot of residential development and $0.84 per square foot of commercial development. The increase takes effect immediately and may now be implemented by school districts through local action. Government Code section 65995 authorizes the SAB to adopt a L...
SB 760 Ensures All-Gender Restrooms Are Accessible to Students
December 2023Number 46On September 23, 2023, Governor Gavin Newsom signed Senate Bill (SB) 760, which requires each school district, county office of education, and charter school maintaining any combination of classes from first grade to twelfth grade, inclusive, to provide and maintain at least one all-gender restroom for student use at every school site, by no later than July 1, 2026.SB 760 requires identifying signage to be placed outside of all-gender restrooms, and for such restrooms to...
California Supreme Court Issues Long-Awaited Decision in California Voting Rights Act Challenge
September 2023Number 34On August 24, 2023, the California Supreme Court issued its highly anticipated opinion in Pico Neighborhood Association et al., v. City of Santa Monica, reversing an unprecedented Court of Appeal decision that had previously favored the City of Santa Monica. In reaching its decision, the Supreme Court established a new standard for evaluating California Voting Rights Act (CVRA) claims, including: (1) clarifying that a plaintiff must prove both racially polarized v...
Legislature Addresses Affordable Workforce Housing on School District and County Office of Education Property
November 2022Number 53On September 28, 2022, Governor Gavin Newsom signed Assembly Bill (AB) 2295, which allows a school district or county office of education (local educational agency or LEA) that meets certain criteria to utilize its surplus property to provide affordable housing to its employees. AB 2295 seeks to streamline the process for an LEA to utilize its surplus property for workforce housing without having to go through cumbersome zoning and surplus property processes. ...
Legislature Corrects Error Regarding Requirements for Schools' Adoption of Developer Fee Justification Studies
September 2022Number 44On July 19, 2022, Governor Newsom signed Assembly Bill (AB) 2536 into law. AB 2536 includes a provision to correct a drafting error in AB 602 from the prior legislative year that had sparked confusion for school districts as to the applicability of new requirements for local educational agencies conducting developer fee studies. AB 2536 will take effect on January 1, 2023 and will allow school districts to revert to the procedures for noticing and adopting de...
Level I Developer Fee Raised, and Important New Requirements to Adopt Justification Studies and School Facilities Needs Analysis
March 2022Number 14In each even calendar year, the State Allocation Board (SAB) adopts an inflationary increase to what is commonly known as the “Level 1” school impact fee. At its meeting on February 23, 2022, the SAB increased the statutory Level 1 fees by 17.45 percent, to $4.79 per square foot for residential construction and $0.78 per square foot for commercial construction.In order to collect either Level 1 fees, or the higher Level 2 fees, school districts must first ...
Online Public Meetings Still Allowed Until September 30
June 2021Number 12On March 17, 2020, the Governor issued Executive Order N-29-20. This order allowed local agencies to address emergent pandemic conditions by allowing local officials, and the public, to participate in public meetings via virtual platforms. Ordinarily, board attendance via teleconference is regulated by certain provisions of California’s open meeting law, the Ralph M. Brown Act (Brown Act). With recent announcements anticipating the end of certain COVID-19 related restr...
New Appellate Court Case Reaffirms that School District's Imposition of Developer Fees is Tied to the General Type of Construction, not the Particular Project
November 2020Number 82In a recent ruling, a California appellate court upheld a school district's imposition of developer fees on a residential project oriented towards college students, rejecting the developer's argument that the fees were improper because the project would allegedly generate no district students. (AMCAL Chico LLC v. Chico Unified School District (November 5, 2020) __ Cal.App.5th. _____ ). The Court borrowed heavily from the decision in Tanimura & Antle Fresh Foods, Inc....
New Law Finally Attempts to Address Social Media Use and the Brown Act
October 15, 2020Number 73May a member of an elected board, council, or other body subject to the Brown Act comment on, “retweet” or “like” a social media post from another member without risking a Brown Act violation? A new law signed by Governor Newsom, Assembly Bill (AB) 992, effective January 1, 2021, aims to clarify what types of social media interactions are permissible under the Brown Act, and which are not.When the Brown Act was enacted in 1953, social media as ...
New Laws Streamline Process for Sale or Lease of School District Surplus Property and Allow for Flexible Use of Sale Proceeds
September 2020Number 68With two separate recently passed laws, the California Legislature has altered the procedures surrounding school district disposition of surplus property. Senate Bill 98 (SB 98), an education omnibus budget trailer bill signed into law on June 29, 2020, allows for more flexible use of the proceeds of a sale of surplus property. Senate Bill 820 (SB 820), an education finance bill signed into law on September 18, 2020, makes significant changes to requirements related to ...
Questions Remain Regarding Face Coverings in Schools
July 2020Number 59As California's local educational agencies (LEAs) examine how and when schools can reopen, a frequent question has been the extent to which face coverings will be required for staff and students. While there have been numerous questions and some confusing guidance from the California Department of Public Health (CDPH), the issue has come more into focus with the latest guidance. Based on the July 17 CDPH "COVID-19 Industry Guidance: Schools and School-Based Programs" school ...
Court of Appeal Rules that Santa Monica's At-large Method of Elections Does Not Violate the California Voting Rights Act
July 2020Number 58On July 9, 2020, California's Second District Court of Appeal unanimously held that the City of Santa Monica's (City) at-large elections do not violate the California Voting Rights Act (CVRA) (Elec. Code, § 14025, et seq.). The CVRA is a state law that allows voters to sue public agencies whose at-large elections may result in underrepresentation of minorities. Pico Neighborhood Association et al., v. City of Santa Monica represents the first time a public agency has su...
Surplus School District Property and the Budget Crisis: New and Proposed Legal Requirements and Opportunities
June 2020Number 47The COVID-19 pandemic has created a looming fiscal crisis across California. As local agencies prepare to adopt their fiscal year 2020-21 budgets, some are eyeing the option of selling or leasing surplus property in order to generate funds to ease potential shortfalls. There is a great deal happening in Sacramento currently that may impact that option for better or worse.School districts must follow specific procedures prior to selling or leasing real property. These procedu...
Individual Councilmember's Conduct Found to Deny Fair Hearing
May 2020 Number 44 It is sometimes difficult for elected officials to remain unbiased when considering controversial matters, while properly representing their constituents at the same time. Nonetheless, when acting in a quasai-adjudicatory capacity, elected officials must be "neutral and unbiased," and must recuse themselves if they are unable to do so. In Petrovich Development Company, LLC v. City of Sacramento (April 8, 2020, C087283) ___Cal.App.5th ___, the court found that a Sacramen...
State Allocation Board Adopts Developer Fee Increases For 2020
January 2020Number 9The State Allocation Board (SAB) has increased the amount of "Level 1" developer fees that school districts are authorized to collect to $4.08 per square foot of residential development and $0.66 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 22, 2020, represent a 7.64 percent increase over the maximum amounts authorized as...
Government Code 1090 Challenges by Third Parties Clarified and Limited by California Supreme Court
January 2020Number 5The California Supreme Court has ruled that third parties (private citizens, taxpayers, watchdog groups, etc.) do not have legal standing to sue public agencies to invalidate contracts allegedly made in violation of Government Code section 1090.BackgroundGovernment Code section 1090 is a "good government" law prohibiting public officials and public employees from participating in any way in the "making" or awarding of a contract in which they hold a financial interest. The...
Bill Intended To Establish E-Mail Retention Requirement For Public Agencies Vetoed By Governor Newsom
December 2019Number 82California lawmakers recently proposed Assembly Bill (AB) 1184, which would have required public agencies to retain business related e-mails for at least two years. While the Governor did not sign the bill, this legislative effort again shows the significant interest in preserving e-mails as part of a public agency's public record.AB 1184: Public Records E-Mail RetentionThe California Public Records Act establishes that every person has a right to inspect public records....
AB 48 Increases Bonding Capacity, Provides Facilities Funding At Multiple Levels, Prioritizes Small School Districts, And Reduces Available Developer Fees For School Districts ... But Only Applies If Voters Approve A School Facilities Bond In March
October 2019Number 62The California Legislature recently passed, and on October 7 Governor Newsom signed, Assembly Bill (AB) 48, known as the "Public Preschool, K-12, and College Health and Safety Bond Act of 2020."AB 48 places a $15 billion statewide K-12 school and college facilities general obligation bond on the March 3, 2020 ballot.Contingent on voter approval of the statewide bond measure at the Presidential Primary election on March 3, 2020, AB 48 would introduce a slew of significant ...
Significant New Developer Fee Cases
October 2019Number 44As part of an uptick of cases in recent years regarding school impact fees, two recent cases argued by Lozano Smith on behalf of school districts have been decided by the California Sixth District Court of Appeal, with mixed results. The court ruled in relation to an "adults only" agricultural worker housing project that, when imposing prospective developer fees on development projects, school districts need not establish a reasonable relationship between the fee and the ...
Schools And Public Agencies Face A Rise In Digital Copyright Infringement Claims For Use Of Protected Photos
April 2019Number 19Cease and desist letters alleging copyright infringement for the unauthorized use of digital photos-along with demands for settlement payments ranging from hundreds to tens of thousands of dollars-are being sent to public agencies. This trend seems to be on the rise, whether it is a journalism student's use of a photo for the online student newspaper, or a social media manager's use of a graphic for the agency's Facebook feed. Although the initial demands can be quite high,...
Records Owned And Held By A Third Party Are Not Public Records Even If A Public Agency Has A Right To Access Such Records
March 2019Number 16A 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.BackgroundIn Anderson-Barker, the plaintiff sought to compel the cit...
Court Reaffirms Governing Board's Ability to Impose Reasonable Limits on Public Comment
September 2018Number 51A 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).BackgroundAs 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 period, Ribakoff sp...
Public Records Act Does Not Require Creation of Generalized Electronic Data
September 2018Number 48A 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.BackgroundThe 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 a CPRA reques...
Legislature Increases Bid Limits under Uniform Public Construction Cost Accounting Act
September 2018Number 47Public 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.BackgroundCalifornia law generally requires...
Another Court Rules that Consultant Contracts May be Void Due to Conflict of Interest
June 2018Number 21A 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 trial cour...
Alert: California Public Records Act Requests Regarding Lease-Leaseback Procedures
June 2018Number 23Many 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 requests ...
New Law Eases Path to School Employee Housing
February 2018 Number 5 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...
Cameras, Questions and Collaboration
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 ...
State Allocation Board Adopts Developer Fee Increases
February 2018 Number 3 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...
State Adopts Comprehensive Housing Legislation
December 2017 Number 81 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...
New Laws Enhance Role of Student School Board Members
October 2017 Number 63 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...
Private Emails Discussing Public Business are Public Records. Now What?
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 ...
State's Top Court Rules that Contractors Can be Prosecuted for Conflict of Interest
July 2017 Number 40 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 ...
Appellate Court Orders Publication of Lease-Leaseback Decision, Making it Binding Precedent
June 2017 Number 32 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...
Appeals Court Says Bidding Not Required for Lease-Leaseback Contract
May 2017 Number 23 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...
California Public Records Act Applies to Private Accounts
March 2017 Number 11 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...
Attorney Invoices are Subject to Disclosure under the Public Records Act
January 2017 Number 3 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...
Appellate Court Reopens Door for Level 3 Fees
November 2016 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...
Fate of Level 3 Developer Fees Remains Clouded
September 2016 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 ...
Gotta Catch 'Em All: Spotting the Issues Augmented Reality Games Raise for Public Agencies
September 2016 Number 59 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...
Level 3 Developer Fees are Again Moving Forward after Latest Court Decision
August 2016 Number 55 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...
Legislative Update: Governor Signs Two Attendance-Related Bills
August 2016 Number 48 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...
Public Records Act and Legal Trends
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 importanc...
Requirement to Offer Surplus Property to Interested Charter Schools Prior to Sale or Lease No Longer in Effect
July 2016 Number 44 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...
Job Order Contracting for School District Public Works Projects
June 2016 Number 35 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...
Level 3 Litigation Underway, Prohibiting Collection of Level 3 Fees
Lozano Smith Alert May 2016 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. Ye...
State Allocation Board Authorizes Collection of "Level 3" Developer Fees for the First Time in California History
*** 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. May 2016 Number 33 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 is alrea...
Appellate Court Orders Publication of Decision on Lease-Leaseback, Making it Binding Precedent
May 2016 Number 29 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...
Another California Appellate Court Opines On Lease-Leaseback Construction
April 2016 Number 25 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...
Morgan Hill Court Modifies Protocol Regarding Disclosure of Student Data
March 2016 Number 12 In July 2015, the Court in Morgan Hill Concerned Parents Ass'n v. Cal. Dep't of Educ. (E.D. Cal. January 26, 2016) Case No. 2:11-cv-3471, 2016 U.S. Dist. LEXIS 8952, issued an order that would require the California Department of Education (CDE) to release student data in its possession of as many as 10 million current and past public school students. This data would include sensitive information such as social security numbers. The Court also opened the door to objec...
State Allocation Board Adopts Increase to Level One Developer Fees That Can Be Imposed by School Districts
February 2016 Number 9 On February 24, 2016, the State Allocation Board (SAB) adjusted the amount of "Level 1" developer fees that school districts are authorized to collect to $3.48 per square foot of residential development and $0.56 for commercial development. The SAB's action represents a 3.59 percent increase over the maximum amounts authorized as of January of 2015. The increase takes effect immediately, and may now be implemented by school districts through local action. The latest...
Notice of Disclosure of Student Records
February 2016 The California Department of Education ("CDE") recently sent an alert to school districts, charter schools and special education local plan areas ("SELPA") describing a pending court action and requesting that certain information be posted on their websites. The court action involves student records and the posting is intended to notify families of relevant Family Educational Rights and Privacy Act ("FERPA") provisions. In addition to posting the specific information and link r...
Recent Appellate Court Ruling Provides Guidance on Contractor's Delay Damages and on Challenging a Performance Bond Surety's "Lack Of Notice" Defense
January 2016 Number 3 The appellate court in JMR Construction Corp. v. Environmental Assessment and Remediation Management, Inc. (December 30, 2015, M105497) 2015 Cal.App.Lexis 1172 (JMR Construction), recently affirmed a trial court's six-figure judgment in favor of a general contractor against its subcontractor and the subcontractor's performance bond surety arising from a federal works project. The judgment included an award of damages for, among other things, the subcontractor's delay...
Court of Appeal Highlights the Importance of a Public Agency Complying With its Own Bid Requirements
January 2016 Number 2 The Third District Court of Appeal's recent decision in DeSilva Gates Construction, L.P. v. Department of Transportation (2015) 242 Cal.App.4th 1409 (DeSilva), confirms the importance of ensuring that bidders on public construction projects comply with the express requirements of an invitation for bids. In DeSilva, the Court of Appeal held that a public entity incorrectly determined a contractor's bid to be nonresponsive where the contractor had complied with all requir...
Taxpayer Organization Lacks Standing To Bring Conflict Of Interest Lawsuit; Court's Decision Questions Part of Recent Lease-Leaseback Case
November 2015 Number 68 The fourth district court of appeal recently addressed the question of whether taxpayer organizations have standing to sue to invalidate an agreement due to an alleged conflict of interest under Government Code section 1090. In San Bernardino County v. Superior Court (San Bernardino) (August 17, 2015) 239 Cal. App. 4th 679, the court held that taxpayer organizations may not sue to void an agreement under Government Code section 1090 unless they are parties to the a...
Governor Signs Two New Bills Significantly Easing the Ability for Certain Students to Establish Residency and Placing Limitations on Residency Investigations
October 2015 Number 58 On August 11, 2015, the Governor approved two bills pertaining to student residency requirements and residency investigations, both of which will become effective on January 1, 2016. Both of the bills stemmed from media attention to a particular California school where the school district conducted a residency investigation by hiring a private investigator to investigate the residency of a student in the home of their parent's employer. Senate Bill (SB) 200 amend...
Local Agency Ordered to Refund More Than Ten Million Dollars for Failure to Comply with Developer Fee Accounting Requirements
October 2015 Number 55 A recent court decision underscores the importance of local agencies complying with accounting requirements related to the collection and use of developer fees. In Daniel Walker v. City of San Clemente ((August 28, 2015) 2015 Cal.App. Lexis 757 (Walker)), the Court of Appeal affirmed a trial court decision finding the City's accounting and related findings to be inadequate, and requiring that all unspent developer fees be refunded with interest. This case is a remin...
Court Overturns School Closure Decision Based on Insufficient Evidence to Support a CEQA Categorical Exemption
October 2015 Number 54 In a recent decision, a California appellate court voided a school district's action to close two schools and transfer the students to other schools based on the court's finding that the district did not comply with the California Environmental Quality Act (CEQA). The district had found the closure and transfer to be exempt from CEQA, but the court held that there was insufficient evidence in the record to support that finding. The case is a reminder of the importance ...
California Appellate Court Holds That Closed Session Agenda Language Substantially Complies with the Brown Act Despite Errors in Agenda Item
August 2015 Number 47 In Castaic Lake Water Agency v. Newhall County Water District, et al. (Castaic) (June 26, 2015) 2015 Cal. App. Lexis 641, the court of appeal recently addressed the question of what constitutes substantial compliance with the Brown Act's agenda requirements. The court addressed whether the Newhall County Water District's (Newhall) description of a closed session agenda item complied with the Brown Act. The court held that Newhall substantially complied with the Brown...
Significant Lease-Leaseback and Conflict of Interest Issues Sparked by Appellate Court
June 2015 Number 30 Despite a recent appellate court decision that affirmed the validity of "lease-leaseback" contracts for school districts to build facilities under Education Code §§17400, et seq., a new appellate court decision from a different appellate court district has allowed a lawsuit to proceed against a particular lease-leaseback arrangement that was similar to many in use by school districts in the State. In a portion of the decision relevant to all public agencies, ...
Court Rules That Public Agencies' Attorney Bills May Be Protected From Disclosure Under The Public Records Act
May 2015 Number 27 An appellate court, in County of Los Angeles Bd. of Supervisors v. Superior Court (2015) 2015 Cal.App. Lexis 308, recently addressed the question of whether billing invoices sent by an attorney to a public entity client must be disclosed pursuant to the California Public Records Act (CPRA), or whether they are protected by the attorney-client communication privilege. In a shift of the CPRA landscape, the court held that, because the CPRA exempts attorney-client privileg...
It's An E-World: Governing in the Electronic Age
March 2015 Number 17 Technology often outpaces the law. Lozano Smith attorneys have emphasized this point at numerous presentations on technology legal issues over the past decade. Occasionally, the Legislature tries to catch up with changes in technology: in 2015, such legislative changes focused on school districts, which now must enact new policies on several fronts, as discussed below. However, the law on many other local government issues remains unsettled, and is not likely to be cl...
California Supreme Court Restores the Integrity of Categorical Exemptions Under CEQA, But Questions Remain
March 2015 Number 12 The California Supreme Court has reversed a 2012 appellate court decision that, if allowed to stand, would have significantly narrowed the application of categorical exemptions under the California Environmental Quality Act (CEQA). (Berkeley Hillside Preservation v. City of Berkeley (March 2, 2015) 2015 Cal. Lexis 1213 ("Berkeley Hillside").) The Supreme Court's decision in Berkeley Hillside preserves the ability of a public agency to exempt itself from CEQA's require...
Court Reverses Attorneys Fee Award to Public Agency in Public Records Act Case Regarding Emails and Electronic Data [For School Districts]
February 2015 Number 5The latest appellate court decision addressing the Public Records Act has confirmed both how difficult it is for a public agency to recover its attorneys fees when litigating a dispute under that Act, and how unsettled the legal issues remain regarding public scrutiny of electronic communications. In Bertoli v. City of Sebastopol (January 30, 2015) 2015 Cal.App. Lexis 98, the court of appeal overturned a trial court’s finding that litigation under the Calif...
Court Decision Reinforces Public Agencies' Right to Access Retention Funds
January 2015 Number 2 An appellate court has confirmed that a public agency can access retention funds held in escrow simply by declaring the contractor to be in default on the public works project. In Pittsburg Unified School District v. S.J. Amoroso Construction Co., Inc. (December 22, 2014) 2014 Cal.App. Lexis 1175, the contractor attempted to distinguish its case from other recent court decisions that allowed such access, but the court rejected its arguments. Generally, if requeste...
Local Educational Agencies Must Provide Staff Training on How to Recognize and Report Suspected Child Abuse and Neglect
November 2014 Number 85 For years, mandated reporters were held legally responsible for reporting suspected instances of child abuse or neglect regardless of whether the employee was trained on what to look for or on the process for reporting. With the recent passage of Assembly Bill (AB) 1432, mandated reporters in the field of education must now receive annual training on how to fulfill their legal obligation to help protect children. Under the new law, both the California Departmen...
New Laws Seek to Improve College Safety
October 2014 Number 80 The Governor recently signed three bills addressing campus or student safety at higher education institutions. Senate Bills (SB) 967, regarding sexual assault, and 1400, regarding keeping students who are subject to protective orders out of classes, take effect January 1, 2015. Assembly Bill (AB) 1433, regarding reporting of crimes, took effect immediately upon the Governor's September 29, 2014 signature. Together, the three bills signal heightened attention to issu...
Student Privacy Issues and Technology Addressed in Three New Bills - UPDATED
October 2014 Number 78 Three new bills intended to protect students in cyberspace recently became law, including a bill that affects how educational agencies contract for technology services. These new laws are the result of a fast changing landscape educators must navigate in order to provide students with state of the art technology. Until now, state law was largely silent on the specific rules applicable to student privacy in the cyber world. In response to a demand for guidance, Assem...
Baccalaureate Degrees Soon to Be Available at Select California Community Colleges
October 2014 Number 75 In late September 2014, Governor Brown signed Senate Bill (SB) 850, granting California community colleges the authority to award certain baccalaureate degrees. This brings California in line with twenty-one other states. The new legislation will be found in Education Code sections 78040, et seq. Beginning January 1, 2015, the Board of Governors of the California Community Colleges may establish a pilot baccalaureate degree program at no more than 15 community co...
Public Agencies May Recover Costs of Preparing the CEQA Record Even if the Party Suing the Agency Elects to Self-Prepare the Record
September 2014 Number 65 An appellate court has held that a public agency may recover administrative record preparation costs in a lawsuit filed against it under the California Environmental Quality Act (CEQA), even where the petitioner elects to prepare the record. This decision calls into question CEQA petitioners' tendency to elect to prepare the record themselves in order to avoid paying agency costs. In CEQA lawsuits, Public Resources Code Section 21167.6 governs the record of pro...
Legality of "Lease-Leaseback" Construction Delivery Method is Confirmed by Appellate Court
September 2014 Number 62 Addressing a long-simmering issue, a California appellate court decision has confirmed that a school district need not comply with competitive bidding when constructing facilities under a "lease-leaseback" arrangement. This ruling confirms that recent challenges to lease-leaseback agreements are without merit. Lease-leaseback is a construction delivery method authorized by Education Code section 17406, which allows a school board "without advertising for bids" ...
Can School Districts Collect "Level 3" Developer Fees?
September 2014 Number 57 In June 2012, the Legislature suspended school districts' ability to levy "Level 3" developer fees. This suspension would be lifted if, by August 31, 2014, a statewide facilities bond was not placed on the ballot for the November 4th general election. As a statewide facilities bond was not placed on the ballot, the suspension on collecting Level 3 fees was lifted on September 1, 2014. Despite anticipation that a further extension of the suspension of Level 3 fees ...
Court Upholds Withholding of Public Employees' Names in the Latest California Public Records Act Case
August 2014 Number 48 Revealing the identities of public employees is not always required under the California Public Records Act (CPRA), according to a recent court decision. With this case, public entities now have greater clarity on how to balance an individual's right to privacy against the public's right to access documents under the CPRA. (Gov. Code, §§ 6250, et seq.) In previous decisions, such as Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App...
Expanded Civic Engagement Opportunities For High School Students Result From New Law
Number 47 August 2014 Assembly Bill (AB) 1817, recently signed into law, provides high school students a greater role in the voter registration process and related elections activities. At the same time, the bill creates the possibility of controversies around election-related discourse on campus. Under existing state and federal law, a person who is at least 17 years old and meets all voter eligibility requirements may submit an affidavit of registration, which is deemed effective t...
Staying Well Grounded While Computing in the Clouds
July 2014 Number 32 Before leaping into the technology cloud, taking a moment to look for the legal pitfalls really pays off. As cloud computing has grown, school districts have increasingly had to weigh the convenience of the new technologies against the potential challenges that come from sending confidential district information to third parties for cloud storage. Third party vendors often obtain extensive access to the district's technology systems and student and employee information...
California Appellate Court Rules that Public Records Act Does Not Apply to Electronic Communications Sent on Personal Devices to Personal Accounts
April 2014 Number 21 What happens when elected officials and government employees communicate using their personal electronic devices and private accounts? If these messages relate to government business, are they subject to public disclosure under the California Public Records Act (CPRA) (Gov. Code §§ 6250 et seq.)? In the first published appellate court decision in California addressing this issue, the court on March 27, 2014, ruled that private communications sent on perso...
State Allocation Board Increases Developer Fees School Districts are Authorized to Collect
January 2014 Number 10 On January 22, 2014, the State Allocation Board (SAB) approved an inflationary increase applicable to "Level 1" developer fees. Based on application of the Marshall & Swift Eight California Cities Index for construction costs, SAB adjusted the Level 1 fee to $3.36 per square foot for residential development and $0.54 for commercial development. The increases take effect immediately, and constitute a 4.93 percent change over the previously authorized amounts of $...
Recent Cases Emphasize Need for Education and Training Regarding the Mandatory Reporting of Suspected Child Abuse
January 2014 Number 1 At the recent California School Board's Association (CSBA) Annual Education Conference in San Diego, Lozano Smith attorneys, school district representatives, and the Contra Costa County Child Abuse Prevention Council presented on "The Board and Mandatory Child Abuse Reporting." One of the panel's themes was the need for school districts to provide adequate training and education to their staff and their student and parent populations regarding mandatory child abuse r...
Don't Overlook New Requirements Impacting School Facilities under the Local Control Funding Formula
November 2013 Number 81 With all of the attention that has been paid this year to the various impacts of the recent overhaul of the state's finance system for K-12 schools, known as the Local Control Funding Formula ("LCFF"), sometimes overlooked are new responsibilities relating to school facilities. As a primary component of the LCFF, the governing board of each school district must adopt a Local Control Accountability Plan ("LCAP") on or before July 1, 2014, and update it on or before ...
School Districts May Be Required to Refund Certain Surplus Property Proceeds to the State Allocation Board
October 2013 Number 68 A newly signed bill will require school districts and county offices of education to return moneys received from the state school facilities funding program if the school districts or county offices sell real property that was purchased, modernized, or improved with such moneys in the prior ten years, and if certain other criteria are met. The bill, Assembly Bill (AB) 308, which was recently signed by the Governor, applies only to sales and not leases. Existing l...
Developer Fees for School Facilities May Not Be Imposed on Replacement Housing Absent Specific Study and Findings
August 2013 Number 44 We are often asked whether a development project that replaces existing housing must pay school impact fees. In the recent case of Cresta Bella, LP v. Poway Unified School District (July 31, 2013) __ Cal.App.4th __ 2013 WL 3942961, a California Court of Appeal concluded, based on the specific facts before it, that other than increased square footage beyond the original square footage, a school district may not impose fees on replacement housing unless a study express...
Legislature Extends and Revises Requirements Related to Charter Schools and Surplus Property
July 2013 Number 38 As part of the trailer bills adopted to implement the 2013-2014 State Budget, the Legislature extended until July 1, 2016, the requirement that school districts offer surplus property to interested charter schools. The Legislature also made other modifications to the law relating to such offers, and extended the right of school districts to deposit the proceeds from the sale of certain surplus real property into the general fund for one-time general fund purposes to Ja...
United States Supreme Court Addresses Out-of-State Public Records Requests
May 2013 Number 23 In recent years, school districts and local governments have increasingly received California Public Records Act (CPRA) requests from out-of-state entities. This has often raised the question of the extent to which the CPRA applies to out-of-state residents or entities. In a recent decision, the U.S. Supreme Court unanimously held that out-of-state residents do not have a federal constitutional right to obtain public records in the state of Virginia. (McBurney v. Young ...
A Trial Court Holds that Public Officials Must Disclose Communications Concerning Agency Business From Their Private Electronic Accounts in Response to a Public Records Act Request (UPDATED)
April 2013 Number 17 Last month, in Smith v. City of San Jose (March 19, 2013, No. 1-09-CV-150427), a Santa Clara County Superior Court judge ruled that voicemails, text messages, emails, and other electronic communications relating to City business, sent and received by San Jose City officials from their private electronic devices, are subject to disclosure under the California Public Records Act. (Gov. Code §§ 6250 et seq.) The overall principle of the Public Records Act is...
Two New Decisions Address the Adequacy of Environmental Impact Reports
November 2012 Number 75 California courts at all levels have been faced with an increasing myriad of lawsuits and appeals relating to the California Environmental Quality Act (CEQA). Two courts of appeal recently considered issues relating to the adequacy of environmental impact reports (EIRs), with mixed results. CEQA requires an EIR to be prepared in certain circumstances when an agency finds that a non-exempt project may have a significant effect on the environment. When required, the ...
School Board Meetings: Before The Public, But Under The Direction Of The School Board
October 2012 Number 73 We often receive questions about the conduct of school board meetings, including public requests to participate in the meeting, add items to the agenda, and obtain board meeting documents. While the Brown Act requires that board meetings generally must be held in public, with the exception of certain closed sessions, the meetings are still meetings of board held in front of the public, and not a meeting of the public that merely includes the board. This distinction ...
Policy Options For Retaining Email Records
October 2012 Number 63 The use of email and other electronic communication between school administrators, professional staff, employees and the public has increased tremendously, raising complex issues with respect to communication, creation of information and systems, and retrieval and storage of electronic records. School districts often experience confusion over which content should be retained or destroyed according to existing district policies and regulations and disclosure rules un...
California Courts Explore Issues Relating to CEQA Exemptions
September 2012 Number 49 Continuing a recent trend, another California Court of Appeal has reviewed a public agency's reliance on a Notice of Exemption under the California Environmental Quality Act (CEQA). In Coalition for Clean Air v. City of Visalia (Sept. 14, 2012) __ Cal.App.4th __ (2012 WL 4653808), the court confirmed that a Notice of Exemption must be filed after project approval in order to trigger a 35-day statute of limitations for any challenge to the exemption. CEQA is a c...
California Legislature Suspends School Districts' Ability to Collect Level Three Developer Fees
July 2012 Number 44 On June 27, 2012, the Governor signed Senate Bill (SB) 1016, a budget-related bill which, among other things, suspends school districts' ability to levy "Level 3" developer fees until December 31, 2014. Although these types of fees represented part of a compromise between the interests of school districts and the building industry when SB 50 was enacted in 1998, and notwithstanding disappearing state bond funds, school districts have yet to actually collect any Level 3...
School Districts Must Offer Surplus Property to Charter Schools Requesting Notification
July 2012 Number 41 New legislation that became effective on June 27, 2012, gives charter schools interested in surplus school district real property priority to buy or lease such property. Senate Bill (SB) 1016 requires school districts seeking to sell or lease surplus property to offer that property first to any charter school that has submitted a written request to be notified of surplus property offered for sale or lease by the school district. Such offers are required for any propert...
A Local Funding Source In Troubled Fiscal Times: The Potential Of Parcel Taxes
May 2012 Number 25 With the ongoing uncertainty of state funding, school districts are forced to continue exploring local funding options to address funding shortfalls. A parcel tax is an attractive option because a school district can use parcel taxes for any purpose identified in the ballot measure, including operating expenses. As a result, a parcel tax can be a significant source of unrestricted general fund dollars to support any district programs and needs. In 2011, 18 of 27 (67%...
New Case Lends Support To Agency Discretion Under CEQA
May 2012 Number 20 The California Environmental Quality Act (CEQA) requires a lead agency to consider the environmental impacts of a proposed project. Generally, when considering such impacts, a lead agency uses as the baseline the conditions in the vicinity of the project as they exist at the time environmental analysis is commenced. This approach of using existing conditions as the baseline is supported by the CEQA Guidelines. (Cal. Code Regs., tit. 14, §§ 15000 et seq.) Bas...
Court Narrows Use Of Categorical Exemptions Under CEQA
April 2012 Number 16 In a recent decision, Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656, the court of appeal significantly limited categorical exemptions to the California Environmental Quality Act (CEQA) that are regularly relied upon by public agencies to avoid undertaking further environmental analysis of discretionary projects. There is a relatively complex set of considerations when undertaking CEQA review. The first determination that must be mad...
Public Employees May File Suit Seeking Nondisclosure of Personnel Information Pursuant to Public Records Act Requests
February 2012 Number 07 In a recent decision, Marken v. Santa Monica-Malibu Unified School District, Case No. B231787, the court of appeal granted public employees the right to file a lawsuit to prevent an employer from disclosing private personnel information in response to Public Records Act (PRA) requests. The court also concluded that under the PRA, complaints against employees that are substantial and well-founded must be disclosed. As the court made clear, balancing the privacy righ...
Supreme Court Decision Eliminates Redevelopment Agencies: What Is The Impact On School Funding?
January 2012 Number 06 In connection with approval of the state budget for fiscal year 2011-2012, the California Legislature enacted two bills addressing redevelopment agencies. ABX1 26 suspended all redevelopment activities and scheduled dissolution of redevelopment agencies. ABX1 27 would have allowed redevelopment agencies to remain in existence by agreeing to pay an amount set by formula to their county auditor-controllers for distribution to other taxing entities, including schools....
State Allocation Board Increases Developer Fees; 2012 Updates To Lozano Smith's Developer Fee Handbook Are Now Available
January 2012 Number 05 On January 25, 2012, the State Allocation Board (SAB) approved a substantial inflationary increase applicable to "Level 1" developer fees. Based on application of the Marshall & Swift Eight California Cities Index for construction costs, SAB adjusted the Level 1 fee to $3.20 per square foot for residential development and $.51 for commercial development. Pursuant to Government Code section 65995, the fee may be increased in every even year. Because there was no ...
Attorney General Addresses Scope Of Brown Act Exception For Closed Session Discussions About Real Estate Negotiations
December 2011 Number 86 On December 27, 2011, the California Attorney General issued an opinion addressing what matters may be discussed in closed session under the Brown Act's exception for real estate negotiations. (__ Ops.Cal.Atty.Gen. __ (2011, Op. No. 10-206.)) While the Attorney General opinion concluded that this exception is relatively narrow, thus potentially limiting what may be addressed in closed session, it also recognized the reality that discussion of certain topics should ...
Legislature Extends Flexibility In Use Of Revenue From Sale Of Surplus Property
July 2011 Number 25 As a part of the 2009 State Budget package, the Legislature passed Assembly Bill (AB) No. 4X 2, which added section 17463.7 to the Education Code allowing school districts to use the proceeds from sales of surplus property for any one-time general fund purchase, as long as certain criteria were met, including that the property was originally purchased entirely with local funds. For a fuller explanation of the 2009 legislation and these surplus property provisions, p...