This post was authored by Laura Schulkind, Jenny Denny and Eileen O’Hare-Anderson
Many of you are facing tremendous challenges with the current fires in both ends of the state. We wish we could stand next to you and be of practical help. Since we can’t do that, we offer these legal answers to the immediate questions you are facing, so you have ready answers at your fingertips. While these are by no means complete answers to every issue that can, will, and has come up, they address the most pressing questions that we have already started to hear. We hope that having this information easily accessible will allow you more time to focus on the needs and safety of your students, employees, and facilities. We are available to help in any way we can. We will keep you all in our thoughts, and look forward to hearing from you soon, in happier times.
HOW CAN WE CONVENE OUR BOARD AS QUICKLY AS POSSIBLE?
What is an emergency meeting?
“Emergency meetings” are a limited class of meetings held when prompt action is needed due to an actual or threatened emergency situation and are held on little notice. (Gov. Code, § 54956.5.) An emergency situation means a work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body. (Gov. Code, § 54956.5 subd. (a)(1).) It also means a dire emergency, which is a crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting (discussed below) may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body.
What are the notice requirements for an emergency meeting?
Before the meeting
A legislative body may hold an emergency meeting without complying with either the 72-hour notice and agenda posting requirement of regular meetings or the 24-hour notice and agenda posting requirement of special meetings. (Gov. Code, § 54956.5 subd. (b)(1).)
Although the 72 hours’ or 24 hours’ notice is not necessary, the Board President or designee should notify each local newspaper of general circulation and radio or television station that has requested notice of special meetings one hour prior to the emergency meeting. In the case of a dire emergency, the Board President or designee should provide this notice at or near the time they notify the Board Members of the emergency meeting. (Gov. Code, § 54956.5 subd. (b)(2).)
The Board President or designee should provide this notice by telephone and attempt to provide notice using all telephone numbers provided in the media’s written request. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the holding of the meeting, the purpose of the meeting, and any action taken. (Gov. Code, § 54956.5 subd. (b)(2).)
If news media does not have a written request on file for notification of special or emergency meetings, a legislative body has no legal obligation to notify news media of special or emergency meetings—although notification may be advisable in any event to promote communication during disasters.
After the meeting
As soon as possible after the emergency meeting, the legislative body must post the minutes of the meeting, a list of persons whom the body notified or attempted to notify, a copy of the roll call vote and any actions taken at the meeting for at least 10 days in a public place. (Gov. Code, § 54956.5 subd. (e).)
How do you convene an emergency meeting?
When a majority of the legislative body determines that an emergency situation exists, it may call an emergency meeting. (Gov. Code § 54956.5.) Thus, the first order of business at an emergency meeting must be declaration of an emergency. An emergency must be declared by a majority of the full board (not just a majority of those present.)
What may be covered at an emergency meeting?
Business should be limited to those items requiring prompt attention due to the emergency. Further, while a legislative body is relieved of the responsibility to post an agenda prior to an emergency meeting, an agenda consistent with the parameters of an emergency meeting should be developed and utilized. A legislative body may not take action on items of business not appearing on the agenda. (Gov. Code §§ 54956; 54956.5 subd. (d).) Finally, as a general rule, emergency meetings may not be held in closed session. However, a legislative body may meet in closed session, where the basis for closed session complies with section 54957, if agreed to by a two-thirds vote of the members of the legislative body present, or, if less than two-thirds of the members are present, by a unanimous vote of the members present. (Gov. Code, § 54956.5 subd. (c).)
What is a special meeting?
“Special meetings” are meetings called by the Board President or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings. (Gov. Code, § 54956 subd. (a).)
What are the notice requirements for a special meeting?
At least 24 hours before the meeting, a legislative body must post a notice in a location freely accessible to the public that contains the time and place of the meeting and identifies matters to be transacted or discussed at the meeting. The body must also post the agenda on its Internet website, if it has one. (Gov. Code, § 54956(a).) The District should describe the business to be transacted or discussed be in the same manner that an item for a regular meeting would be described on the agenda—with a brief general description. Closed session items should be described in accordance with the Brown Act’s provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.
How do you convene a special meeting?
The Board President or a majority of the members of the legislative body, may call a special meeting by delivering written notice to each member of the legislative body. The notice must be delivered to all members of the legislative body (typically personally) at least 24 hours before the meeting (unless waived in writing before the meeting or if the member actually appears at the meeting). The body must also provide notice to any newspaper, radio or television station that requested notice of special meetings in writing. (Gov. Code, § 54956 subd. (a).)
A legislative body may not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive. (Gov. Code, § 3511.1 subd. (d).) This does not apply to a local agency calling a special meeting to discuss the local agency’s budget.
What are the agenda requirements for a special meeting?
There is no specific agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed. No other business may be considered by the legislative body. (Gov. Code, § 54956.) The legislative body must give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body. (Gov. Code, § 54954.3 subd. (a).)
What if it is not safe to meet in our regular meeting place?
The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction. (Gov. Code, § 54954 subd. (b).) However, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the Board President is authorized to designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available. (Gov. Code, § 54954 subd. (e).) This means you may move your Board meetings to another public venue within your District boundaries.
May members of the legislative body teleconference into the emergency or special meeting?
The Brown Act allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session. (Gov. Code, § 54953 subd. (b)(1).) However, the decision to use teleconferencing is entirely discretionary within the body and can present some issues.
“Teleconference” is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.” (63 Ops.Cal.Atty.Gen. 215 (1980).) Teleconference meetings must comply with all requirements of the Brown Act, including, but not limited to, including the address of each teleconference location in the agenda, posting the agenda in the teleconference location, and public accessibility to the teleconference location. The legislative body must conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the public or parties appearing before the legislative body. This might indicate that teleconferenced emergency meetings, where there is little or no public notice, might be problematic. When the public has short notice of emergency meetings, Districts should be careful in limiting access further by using teleconferenced meetings.
HOW DO WE HANDLE EMPLOYEE ISSUES?
DISASTER SERVICES WORKERS
What is a disaster services worker?
Under the California Emergency Services Act (Gov. Code, § 8550) all public employees are required to render all possible assistance to the Governor and the Secretary of Emergency Management in carrying out the provisions of the Emergency Services Act. (Gov. Code, § 8614.) In addition, all public employees, except legally employed aliens, are deemed disaster service workers. (Miller v. Board of Supervisors (1981) 121 Cal.App.3d 184.)
What is disaster service?
Disaster service means “all activities authorized by and carried on pursuant to the California Emergency Services Act, including approved and documented training necessary or proper to engage in such activities.” (Cal. Code Regs., tit. 19, § 2570.2 subd. (b)(1).)
How can we assign work to a disaster services worker?
The California Emergency Services Act does not set out how employees should be notified of their disaster service assignments. Rather, District disaster plans should set out potential disaster scenarios. (Gov. Code, §§ 8610, 8877.5.)
How do we compensate employees performing disaster services?
The provisions of the Emergency Services Act give agencies some power to direct their employees to perform disaster service duties outside of their typical job duties. The Education Code addresses a District’s obligation to pay overtime for hours worked in excess of eight hours in a day or forty hours in a week. (Ed. Code, § 88027.) (If an employee has a regular workday of less than eight but more than seven hour, or a regular workweek of less than 40 but more than 30 hours, for certain classes the employee will be entitled to overtime for time worked in excess of the established workday. Ed. Code, § 88027.) The District may order employees to work overtime. If your collective bargaining agreement addresses the rotation of overtime, Districts should follow that language.
If the bargaining agreement is silent, use a fair system, such as asking for volunteers or by assigning overtime by lot. Taking such steps unilaterally is likely authorized by the management rights clauses in your CBAs, regarding disaster situations. However, we also recommend communicating and working with your union leadership as quickly as possible, to share information on the well-being and needs of impacted employees as well as district plans for directing and compensating disaster service work.
What if employees are unable to work?
Employees who have suffered personal loss or injury, or who are needed to care for a family member, may of course utilize the full array of applicable leaves available to them by law and pursuant to your collective bargaining agreements. These include but are not limited to: sick leave, extended leave, personal necessity leave, and FMLA/CFRA leave.
Districts should also work with employees who live or travel through affected areas. The fires or associated road closures may interfere with their travel and they may have trouble getting to work on time or at all. School closures will also play havoc with parents’ arrangements.
To address employee’s inability to attend work, districts should:
- Review the management rights clauses in all your contracts. As noted above, these likely authorize some amount of unilateral action in the face of such a natural disaster. This would include making decisions about work schedules, revised call-in procedures, revised uses of available paid leaves, and other workplace issues normally subject to negotiation.
- While some unilateral action is likely authorized, we recommend meeting quickly—by phone is fine—with union leadership. Check-in and share information each may have on affected employees; strategize how to get support to those in need; inform how the district is addressing needs for leave; etc.
Do we pay employees for time the district is closed?
Whether or not there is a legal obligation to pay employees during a district closure depends on a variety of factors under both the federal FSLA, and state wage and our law, such as: whether the employee is exempt or nonexempt, the length of the closure, whether the employee worked during any period of an FLSA workweek, and whether the employee is otherwise ready, willing and able to work. Thus, as a first step we recommend that you look at your own policies and collective bargaining agreements—which may address the issue. If your policies and/or CBAs are silent, unclear, or you are not sure if they meet minimum legal requirements, contact legal counsel.
Student Attendance Accounting
We anticipate that if campus closures last long enough to affect student contact hours the California Community College Chancellor’s Office will issue guidance as it has in the past. For programs with specific clinical or other attendance requirements, such as allied health, districts will need to work with the State Accrediting Agency to determine whether those requirements will be revised or modified.
Individual Course Requirements
At colleges fortunate enough to be open, districts should encourage individual faculty members to be flexible, and work with students living or traveling through affected areas.