Centers for Disease Control and Prevention Issues Interim Guidance for Administrators of US Institutions of Higher Education Including Environmental Cleaning and Disinfection Recommendations
The California Department of Education (CDE) issued guidance on March 13, 2020 stating that the State of California is currently working with the White House, Centers for Disease Control and Prevention (CDC), local governments, health facilities and health care providers across the state to prepare and protect Californians from the 2019 coronavirus (COVID-19). County Public Health officers are working with community college Chancellors and Superintendent/Presidents regarding decisions about school closures or other actions to slow the introduction of COVID-19 in our communities. The Governor’s directive and the urgency of this public health crisis raise several questions that are unfamiliar to many community college districts.
Standard of Care for Facilities Cleaning
On March 12, 2020, the Centers for Disease Control and Prevention issued Interim Guidance for Administrators of Higher Education Institutions in the United States to plan, prepare and respond to COVID-19. (https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-ihe-response.html) The CDC also issued guidance for administrators of institutions that operate childcare programs. (https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html). And, the CDC has issued environmental cleaning and disinfection recommendations. (https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html)
Given that many community colleges operate child development centers, each of the referenced publications issued by the CDC are discussed in this article.
Both the CDC publication directed to administrators of higher education institutions and the publication directed to administrators of childcare centers offer important guidance regarding cleaning and disinfecting school facilities to mitigate the spread of the coronavirus in any event that a person confirmed as infected with COVID-19 has been on school grounds. One key CDC recommendation is that a school remains closed 2-5 days after contact is confirmed. CDC has also issued broader guidance for community groups, from families to schools, to mitigate the spread of COVID-19 (https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf). Districts may need to consider protocols calling for cleaning more frequently in order to ensure that facilities have not been contaminated by asymptomatic carriers of COVID-19, such as the CDC recommendation to “clean and disinfect frequently touched surfaces daily.”
These recommendations for cleaning schools when staff are required to continue coming to work, whether the facility is under suspension of normal operations or continuation, essentially involves washing surfaces susceptible to contamination and disinfecting them with appropriate solutions. These cleaning and disinfecting protocols are similar to the deep cleaning that the custodial staffs of colleges commonly perform before the start of a new academic year. However, if this deep cleaning/disinfecting process becomes a more frequently required protocol (the CDC has not indicated if this process should be repeated if a member of staff who are working during school closures are confirmed to have COVID-19), that may constitute a change in working conditions which may precipitate the need to negotiate relevant elements of the collective bargaining agreement. A review of the CDC interim guidelines does not include any new protocols on cleaning agents which could raise OSHA/CEQA/DTSC chemical usage and storage issues; however we will monitor this subject for any new information.
With regard to cleaning and disinfection after persons suspected or confirmed to have COVID-19 have been in the facility, the CDC recommends that a school, daycare center, office, or other facility that does not house people overnight, close off areas used by the ill persons and wait as long as practical before beginning cleaning and disinfection in order to minimize the potential for exposure to respiratory droplets. The CDC recommends that outside doors and windows be opened to increase air circulation in the area and if possible, wait up to 24 hours before beginning cleaning and disinfection. The CDC further recommends that cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the ill persons, focusing especially on frequently touched surfaces.
Colleges with residential dormitories should work closely with legal counsel to develop protocols for health and safety measures related to preventing the spread of COVID-19 in accordance with the guidance and recommendations provided by the CDC. Such protocols may impact the terms and conditions of employment requiring further negotiations with impacted bargaining units.
As the referenced CDC guidance reiterates, colleges should closely coordinate with their local health authorities. The California Community College system website states that “[c]olleges are urged to follow guidance provided by the California Department of Public Health, working closely with local public health agencies”. Moreover, community college districts should be aware that Health & Safety Code section 120175 directs every local health officer, such as officers of a County Department of Health, among others, having reason to believe that any case of any contagious, infectious or communicable disease exists, or has recently existed, within that officer’s jurisdiction to “take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.” Health & Safety Code section 120175.5 then directs those same local health officials to promptly notify and update other local government agencies of the status of any such diseases, and also empowers those officials to issue orders to other governmental entities within the local health officer’s jurisdiction to take any action the local health officer deems necessary to control the spread of the communicable disease.
Such orders are enforceable through the police power of the local jurisdiction within which the relevant health authority exists, such as a city or county. Furthermore, Health & Safety Code section 120195 requires those local health officers to enforce all orders, rules, and regulations concerning quarantine or isolation prescribed or directed by the department. These legal powers and obligations are reflected in the CDC guidance, which reiterates the urgency of each person and local agency to coordinate and follow the directions of their local health authorities.
Emergency Contracting Authority or Delegation of Contracting Authority
There is no express emergency contracting authority for community college districts other than for public projects. The process for no-bid contracting “in an emergency when any repairs, alterations, work, or improvement is necessary to any facility” is found at Public Contract Code section 20654. In any event that emergency repairs, alterations, work, or improvement is necessary to any facility; counsel can assist with the no-bid contracting process involving unanimous Board approval, coupled with approval of the County Superintendent of Schools.
Many community college districts are facing critical shortages of appropriate cleaning supplies and personal protective equipment for staff tasked with cleaning. The one way to accelerate procurement of necessary supplies and equipment needed during the COVID-19 crisis is to delegate appropriate contracting authority to the Superintendent and Superintendent’s designee(s). For Community College school districts, that authority arises under Education Code section 81656, which allows authorization of any officer or employee of the district that the Board may designate to make purchases of supplies, materials, apparatus, equipment, and services as long as: 1) the amount of the purchase remains under the bid limit specified by Section 20651 of the Public Contract Code, as adjusted annually by the Community College Board of Governors (for calendar 2020, $95,200); 2) the rule adopted by the Board designates the limits of the delegation as to time, money, and subject matter; and, 3) all transactions entered into under this delegation are reviewed by the governing board every 60 days. We routinely assist clients in drafting Resolutions to grant such authority. Please consult your counsel to ensure a Board Policy and accompanying Administrative Regulation are correctly drafted.
Please beware that there is another statute, Public Contract Code section 81655, which also allows delegation, but is commonly misunderstood. While that statute does purport to allow delegation of authority, it also includes this explicit warning: “no contract made pursuant to the delegation and authorization shall be valid or constitute an enforceable obligation against the district unless and until the same shall have been approved or ratified by the governing board, the approval or ratification to be evidenced by a motion of the board duly passed and adopted.” While this delegation of authority can be made in excess of the bid limits under Section 20651 of the Public Contract Code, drafting an appropriate Board Policy and Administrative Regulations requires care to comply with the requirement for Board approval or ratification.
Facing Inadequacy of Supplies or Price Gouging
Price gouging under a declared state of emergency, as Governor Newsom first declared on March 4, 2020, is illegal under Penal Code section 396. However, that statute merely forbids elevating prices more than 10% above what a merchant was charging immediately prior to the declaration of a state of emergency for any consumer food items or goods, goods or services used for emergency cleanup, emergency supplies, medical supplies, home heating oil, building materials, housing, transportation, freight, and storage services, or gasoline or other motor fuels. A merchant may be allowed to charge more than that 10% increase, as well, if they can prove that their cost of furnishing goods has risen higher. Making merchants aware of this requirement, and documenting merchant responses to solicitations and noting merchant prices that far exceed the normal price of goods is important both to aid in later enforcement, and also as a means to compel merchants to continue selling necessary goods and services within the legally mandated price caps during this state of emergency.
There is a doctrine in California commonly known as the “futility doctrine” that allows a public agency to suspend bidding when “competitive proposals work an incongruity and are unavailing as affecting the final result, or where they do not produce any advantage … or it is practically impossible to obtain what is required and observe such forms,” in which, if those facts are determined on the prevailing facts, “a statute requiring competitive bidding does not apply.” That language comes from the venerable case of Los Angeles Dredging Co. v. City of Long Beach, 210 Cal. 348 (1930). This doctrine has been reaffirmed as recently as 1980, in the case of Graydon v. Pasadena Redevelopment Agency, 104 Cal.App.3d 631 (1980). However, application of this doctrine must be made very, very carefully. Consult with counsel on how to make a record of the underlying facts and to prepare an appropriate Board resolution making the necessary fact finding and authorizing the letting of a contract without bidding. Failure to comply with the bidding statutes, without expert legal guidance on the use of the futility doctrine, would invalidate the contract awarded and result in related legal conflicts and expenses.
Atkinson, Andelson, Loya, Ruud & Romo is here to help our California local education agencies, as we have been for over forty years, and we will see them through this latest crisis.