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Legislative Roundup: Significant 2021 Legislation Impacting Schools and Community Colleges

Posted by Jonathan J. Mott | Mar 28, 2022

A number of significant new laws were passed in 2021 that were enacted in 2022, which impact school and community college districts in California.  Below is a summary of each new law, many of which impose new legal duties.  Feel free to contact our office with any questions or for further information.

AB 27 (Homeless children and youths and unaccompanied youths)

This bill requires each school within a school district to identify all homeless children and youths and unaccompanied youth enrolled at the school. All LEAs receiving designated federal funds are required to administer a housing questionnaire for purposes of identifying homeless children and youths and unaccompanied youths and annually provide the housing questionnaire to all parents or guardians of pupils or unaccompanied youths. The bill also requires the LEA to post on its website a list of LEA liaisons for homeless children and youths and unaccompanied youths in that district, with contact information for the liaisons and information regarding the educational rights and resources for homeless people. Schools within the LEA are also required to post the contact information for the liaison on their website, along with that of anyone contracted to assist the liaison.

AB 101 (Ethnic Studies)

This bill will require completion of one semester in ethnic studies for pupils graduating in 2029-2030 and thereafter. LEA's would have to offer one ethnic studies course starting in 2025-26.

AB 104 (2020-21 Grades)

This bill requires LEA's to offer a consultation with a parent requesting that their student be retained in the 2021-22 school year, creates a process for parents to request that their students receive a “pass” or “no pass” instead of a letter grade in the 2020-21 school year; requires that higher education institutions accept a “pass” for credit for admissions purposes; and requires that students in the third or fourth year of high school in 2020-21 and who are not on track to graduate be exempted from local graduation requirements and be given the opportunity to complete the coursework required for graduation.

AB 275 (Community college classified employee probationary period).

This bill shortens the probationary period for community college classified employees from one year to six months or 130 days paid service, whichever is longer. Full-time peace officers and public safety dispatchers will have a one-year probationary period, whether or not in a merit system district. These changes do not go into effect until the expiration or renewal of collective bargaining agreements in effect as of January 1, 2022.

AB 361 (Meeting Teleconferences)

This bill allows, until January 1, 2024, local agencies to continue to use teleconferencing without Brown Act restrictions during certain state emergencies.

AB 438 (Classified Layoffs)

This is the bill that changes classified layoff requirements to have the same notice and hearing requirements as for certificated employees, including the March 15 notice.

AB 516 (Excused absences for cultural ceremonies or events).

This bill creates a required excused absence for participating in a cultural ceremony or event, defined as relating to the habits, practices, beliefs and traditions of a certain group of people.

AB 846 (Job order contracting authority extension)

This bill extends job order contracting authority for school districts and community college districts to January 1, 2027. There is a new requirement that an entity awarded a job order contract in excess of $25,000 provide an enforceable commitment that the entity and all subcontractors will use a skilled and trained workforce to perform all work that falls within an apprenticeable occupations in the building and construction trades, unless a project labor agreement already provides for that.

AB 1383 (Involuntary administrative leave for community college academic employees).

This bill provides that the 90-day period while the employee is on paid administrative leave for a community college employer to complete an investigation of misconduct and initiate disciplinary proceedings against an academic employee, or reinstate the employee, is 90 working days, and that the 90 working day period may be extended by mutual agreement, not to exceed 30 calendar days.

SB 14 (Excused absence for mental health)

This bill provides that an excused absence for illness includes an absence for a pupil's mental or behavioral health.

SB 97 (Diabetes information)

This bill will require school districts to make type 1 diabetes information available to a parent or guardian when a pupil is first enrolled, on and after January 1, 2023. The information is to be developed by CDE and made available to school districts on the CDE website.

SB 224 (Mental health education)

This bill requires school districts to include mental health in middle school or high school health courses. CDE is to develop a plan to expand mental health education in schools on or before January 1, 2024.

SB 16 (Release of Peace Officer Personnel Records)

This bill pertains to peace officer records, including those at community colleges and makes several types of previously confidential records publicly accessible. This is a follow on to SB 1421 in 2019.

SB 1421 removed protection from records pertaining to officer-involved shootings, uses of force resulting in death or great bodily injury, sustained findings of dishonesty in investigations, and sustained findings of sexual assault. The records that must be disclosed include all investigative reports; audio, photo and video evidence; interviews; autopsy reports; all materials presented for review to determine whether to file criminal charges against an officer or for potential discipline; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident.

SB16 goes father and removes protection from the following types of records:

  • Records of sustained findings involving complaints alleging unreasonable or excessive force;
  • Records of sustained findings that an officer failed to intervene against another officer using force that was clearly unreasonable or excessive;
  • Records of sustained findings that an officer engaged in conduct involving prejudice or discrimination on the basis of race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender identity, or gender;
  • Records of sustained finings that an officer made an unlawful arrest or conducted an unlawful search.

SB 16 also makes public any records where an officer resigned during an investigation for these four categories, plus records of dishonesty and sexual misconduct. SB 16 disallows use of the attorney-client privilege to deny release of information provided to or discovered by lawyers in these types of investigations. It creates rigid timelines for the release of documents, which go into effect in 2023.

SB 16 establishes that if an officer committed misconduct that still falls within protection, information about those allegations would remain confidential; however, factual information about that officer that was relevant to a finding that is not protected against another officer must be released.

SB 16 also adds a requirement that an officer “immediately” report all uses of force by that officer to his or her employing agency, but the statute does not define “use of force.”

Existing law required agencies to establish procedures to investigate complaints by the public, and to keep for five years any records of these complaints, including related findings or reports regarding the complaints. SB 16 extends the records retention requirement - agencies must retain records for at least five years (where the complaint was not sustained) to 15 years (for sustained findings). For records that already exist, these five- and 15-year clocks began running on January 1, 2022, rather than the date the records were created.

The new law also prohibits agencies from destroying any record while a request related to that record is being processed, or while any process or litigation is ongoing to determine whether that record is to be released. SB 16 eliminates the previous requirement that courts exclude evidence of complaints concerning conduct by officers that occurred more than five years before the event that is the subject of litigation.

Finally, SB 16 now obligates agencies, as part of the hiring process, to request and review an officer's personnel file from any previous employing agency.

 

SB 274 (Meeting Agendas)

This bill requires a local agency, including a school district or community college district, to email a copy of an agenda or a copy of all documents in the agenda packet, or email a link to the information on the website, to anyone requesting delivery by email. If this is not feasible, the local agency has to mail a copy of the agenda or website link and a copy of all documents in the agenda packet.

SB 278 (CalPERS Retirement)

This bill provides that when a CalPERS retiree's pension is reduced by CalPERS post-retirement due to the inclusion of compensation that was agreed to under a collective bargaining agreement that is later determined to be non-compensable, the public employer must cover the difference between the pension as originally calculated and as reduced by CalPERS.

SB 294 (Retirement Service Credit for Union Official on Compensated Leave of Absence)

This bill removes the 12-year limit on CalSTRS or CalPERS service credit for a member of an employee organization on a compensated leave of absence. This leave is in addition to any other leave they are entitled to by law or under a collective bargaining agreement. For community college districts, this is retroactive to August 21, 1978, for service as an elected officer of the employee organization.

SB 331 (Settlement and Non-disparagement Agreements)

This bill provides that a settlement agreement cannot contain a provision to prohibit the disclosure of acts of workplace harassment or discrimination not based on sex (provisions in a settlement agreement prohibiting disclosure of acts of sexual assault, sexual harassment, workplace harassment or discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act, are already prohibited).

This bill also prohibits requiring an employee to sign a “non-disparagement agreement”, even outside a formal settlement agreement, if it has the effect or purpose of denying the employee the right to disclose unlawful acts in the workplace. While a non-disparagement agreement can still be used, provisions to that effect in an agreement are against public policy.

 

SB 501 (Late Claims under the Tort Claims Act)

This bill requires that an application for leave to permit a late claim must be granted if the claimant was a minor or was physically or mentally incapacitated at any time during the six months after the accrual of the cause of action, rather than during the entire six months, provided the application is submitted within one year after the claim accrues, or within six months after the claimant turns 18 or is no longer physically or mentally disabled, whichever occurs first.

SB 722 (Pool Safety)

This bill requires a school district to have at least one adult with valid CPR training present during an on-campus event in or around a swimming pool, other than as part of an interscholastic athletic program, where CIF requirements already require a CPR-trained coach to be present.

SB 807 (DFEH Claims Procedures)

This bill makes a number of changes to DFEH procedures pertaining to employer record-keeping and the statute of limitations:

  • Employers are required to maintain personnel and other employment records for four years, rather than three years, after the records are created, and for four years, rather than three years, after the employer takes any action as to an applicant or a terminated employee.
  • Once a “verified” DFEH complaint is filed, the employer must preserve all records and files on the employee until the later of either (a) the date the time for filing a lawsuit has expired; or (b) the date the DFEH complaint has been finally disposed of, and all administrative proceedings, civil actions, appeals, etc. have been terminated. These requirements only apply to a “verified” DFEH complaint, not the usual “unverified” complaint.
  • The statute of limitations to file a civil action is tolled while a mandatory or voluntary dispute resolution process (DFEH mediation) is pending.
  • The statute of limitations to file a civil action is tolled until either (a) DFEH files a civil action for an alleged violation; or (b) one year after DFEH issues notice to the complainant that it has closed the investigation without electing to file a civil action.

This Parker & Covert LLP post is intended for informational purposes only and should not be relied upon as legal advice. Legal issues and principles apply differently, sometimes substantially, depending on context and facts. Review or receipt of this post does not create an attorney-client relationship.

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Parker and Covert LLP, through its Northern and Southern California offices, provides comprehensive legal representation to school districts, community colleges, and other educational clients in communities throughout the state of California.

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