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SGMA, GSA Setup & GSP Preparation

09 Jan 2017 00:00:00 -0800

Join Best Best & Krieger LLP for an Advanced Two-Day Conference on SGMA, GSA Setup & GSP Preparation in Los Angeles. presented by Law Seminars International. The program will also be webcast live.

Deborah Wordham:
"Introduction and Overview"
Monday, Jan. 9, 8:30 - 8:45 a.m.

Program Co-Chair: "Practical Tips for Working through the Technical Concerns in Developing GSPs"
Tuesday, Jan. 10, 8:30 - 10:15 a.m.

Alisha Winterswyk:
Panelist: "The Interplay between the Sustainable Groundwater Management Act and the California Environmental Quality Act (CEQA)"
Monday, Jan. 9, 10:45 a.m. - Noon

Steve Anderson:
Panelist: "Development of Groundwater Sustainability Plans (GSPs): Settled and Still Pending Legal Issues"
Monday, Jan. 9, 3:15 - 5 p.m.

When
Monday, Jan. 9 - Tuesday, Jan. 10

Where
DoubleTree by Hilton Los Angeles Downtown
120 S. Los Angeles St.
Los Angeles, CA 90012

For more information or to register, click here.

Are Private E-mails & Text Messages “Public Records?”

09 Dec 2016 00:00:00 -0800

Public agencies in California should prepare for the likelihood that communications on officials’ and employees’ private devices related to the agency’s “conduct of the public’s business” will be subject to disclosure under the state’s Public Records Act. While it is impossible to predict exactly how the California Supreme Court will rule on this issue, questions and comments from the bench during oral argument on Wednesday makes it appear likely the justices will strike down a lower court’s decision. That would mean that such communications are subject to disclosure under the PRA, even if those communications are not retained by or in possession of the public agency.

This “open government” issue has simmered — if not raged — for years. A number of trial courts have found such communications are subject to the PRA. However, in 2014, the Sixth District Court of Appeal held in a published opinion that, because the City of San Jose did not have access to messages on the private accounts and devices of its officials, those records were not “public records” required to be disclosed under the PRA. The California Supreme Court soon after agreed to review that decision. City of San Jose et al. v. Superior Court (Smith) S218066. Public agencies and open government advocates have been anxiously awaiting resolution of the question.

If the discussion during oral argument reveals the thinking the justices will bring to their deliberations, and are a harbinger of their upcoming decision, it appears likely the Court will strike down the appellate court’s decision and hold that such communications are subject to disclosure under the PRA. The Court has 90 days to issue its decision, although it regularly issues opinions within 45 to 60 days of argument.

The Court’s decision will have an immediate impact, as it will be the final word on the subject, and binding on all agencies and courts throughout California. Given the recent history of this issue in the lower courts, it is anticipated that open government advocates and the media will immediately begin to make public records requests for communications on the private devices of officials and employees, if the Supreme Court holds as the tenor of the questions at oral argument seemed to indicate.

Officials and employees should be alerted now to the potential that, within the next two to three months, or less, communications on their private devices related to their agency’s “conduct of the public’s business” (a term that has been broadly construed by the courts) will be subject to disclosure under the PRA. Agency officials should give thought as to how to accommodate privacy and free speech concerns of its officials, employees and constituents; how to account for and “capture” covered communications; how to ensure compliance with the inevitable requests that will be made; how to meet the time constraints of the PRA in this new milieu; and how to address requests for communications for former officials and employees that could still exist.

Best Best & Krieger LLP lawyers are prepared to assist in meeting the legal, policy and procedural compliance challenges, regardless of the result of the Court’s decision in this case. If you have any questions about this case or how it may impact your agency, please contact the attorney authors of this Legal Alert in the firm’s Municipal Law practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Corruption-McDonnell Decision

17 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Gary Schons will discuss the recent U.S. Supreme Court decision in the Virginia Gov. Bob McDonnell case, and give a historical perspective on the High Court’s track record in political corruption matters.

When
Saturday, Sept. 17

Where
Aria Resort
3730 S. Las Vegas Blvd.
Las Vegas, NV 89158

For more information or to register, click here.

Effective Oral Argument in the Court of Appeal

08 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Gary Schons will speak to members of the Orange County Bar Association on Effective Oral Argument in the Court of Appeal.

When
Thursday, Sept. 8
Noon

Where
12 Civic Center Plaza
Santa Ana, CA 92701

Public Agency Not Subject to 60-Day Limit

22 Aug 2016 00:00:00 -0800

Claims by a public agency seeking a court’s help in undoing a contract, because one of the parties to the agreement had a conflict of interest, are not time barred, a California appellate court has ruled. The 60-day validation statute does not apply, but, rather, the Government Code section that authorizes a four-year period for an interested party to bring suit to void a contract made in violation of the law does.

Two public agencies and a water company in Monterey County entered into a series of agreements to collaborate on a water desalination project. As the final agreement was being considered for approval by the Monterey County Water Resources Agency, one of its directors revealed for the first time that he had had a consultant agreement with the business that was selected as the project General Manager and was paid to advocate for the agreements. The director resigned and was later convicted of a felony violation of Government Code section 1090, a willful violation of the law.

More than two years later, California-American sued Monterey and the other water agency, Marina Coast Water District, to have the contracts declared void under section 1090. Eventually, Monterey filed a cross-complaint also seeking to have the agreements declared void under section 1090. Marina, alone, sought to “defend” the contracts by contending that the section 1090 claims were time barred because no party had sought to have the contracts declared void within 60 days of their execution as required by the validation statutes.

Government Code section 1090 is the powerful anti-conflict of interest statute that declares that any contract made by a government entity in which a member of the board or council of the entity has a financial interest is void. A related statute, section 1092, authorizes an interested party to bring suit to have a contract made in violation of the law voided, and provides a four-year period to bring such a lawsuit from the time of the discovery of the conflict.

A quite separate group of statutes create a process known as “validation.” Under these validating proceedings (CCP § 860 et seq.), a public agency may file a legal action to have a court determine the validity of any matter enacted by the agency. The validation process has a 60-day window and, even if the agency does not file an action seeking validation, a challenge must be filed within that same 60-day period or the validation is deemed to occur.

The tension, if not outright conflict, between section 1092’s four-year statute of limitations and the validation statutes’ 60-day window is evident. The First District Court of Appeal held that the validation statutes do not apply to a government entity who is a party to the contract. Therefore, Monterey’s lawsuit was timely because it was filed within the four years statute of limitations provided for in section 1092. The court went on to find that the director clearly had a prohibited financial interest in the contracts and they were accordingly void.

Of greater significance to future section 1090 litigation is what the court had to say about the conflict between section 1092 and the validation statutes, even ignoring its express language exempting a public agency. The court suggested, without deciding, that the validation statutes’ 60-day window should not apply to any action under section 1090.

Why does this matter? Two reasons. First, any party to a contract made in violation of section 1090 may bring suit within four years to have it declared void. Thus, a private entity who is a party to a contract, like the private water company in this lawsuit, may bring an action under section 1092 seeking to have a contract declared void. However, only a public agency contracting party is exempt from the validation statute, and its 60-day window, by the express terms of the statute. So, if the validation statutes do not apply to a section 1090 lawsuit, the private entity may seek to sue outside the 60-day window. Second, and more significantly, some appellate courts have recognized that taxpayers or citizen taxpayer groups have standing to sue under section 1092 to have a contract declared void, and even to name the public entity as a defendant. Here again, if the short validation 60-day window does not apply, these parties may sue within four years and this will serve to foster and promote this type of litigation.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Appellate Court “SLAPP”s Residents in Culver City Upset Over Parking Restriction Changes

11 Aug 2016 00:00:00 -0800

The state’s anti-SLAPP law comes into play, even if a lawsuit appears to be in the public interest, but will specifically benefit the plaintiff, a California appellate court ruled this week. The decision, handed down in Cruz v. Culver City, also found that the state’s open meeting law cannot be wielded as a sword to fight the internal procedures of a public entity: the Brown Act requires matters to be put on an agenda, but it cannot be used to litigate whether a matter can be placed on an agenda in the first place.

A group of Culver City residents sued the City for violating the Brown Act when the Council considered changes to parking restrictions. The Second District Court of Appeal on Monday upheld a trial court ruling dismissing the residents’ case on a motion brought by the City under the anti-SLAPP statute, which protects against lawsuits that quash the right to speak on issues of public concern.

Farragut Drive residents in Culver City had enjoyed years of city-imposed parking restrictions that limited the ability of parishioners from a nearby church from parking on their street. In 2014, the church sent a letter to a City Council member complaining about the inability to challenge the restrictions under the City’s existing parking control procedures. The council member discussed the letter as a non-agenda item at a Council meeting, and the church’s request was placed on the agenda at the next meeting.

The residents then sued, asserting the discussion of the letter violated the Brown Act because it was not on the meeting agenda. They also claimed that placing it on the agenda for the next meeting ignored that the City’s own parking regulation procedures made no provision for such action. The City countered by filing an anti-SLAPP motion seeking dismissal of the lawsuit, contending the Council’s actions arose from First Amendment activity and that the Brown Act claims were groundless and the residents could not prevail on the merits. The trial court granted the motion, dismissed the suit and the residents appealed.

The principal claim of the residents on appeal was that their lawsuit was not subject to the anti-SLAPP law because it was brought in the “public interest” to establish and correct the Council’s Brown Act violations. The anti-SLAPP law provides an exemption from that law for suits “brought solely in the public interest” as established by 1.) the fact the plaintiff seeks no relief greater than what any member of the public would be entitled to, 2.) if successful, the judgment would enforce an important right affecting the public interest, and 3.) private enforcement is necessary and poses a financial burden on the plaintiff greater than the plaintiff’s stake in the matter.

The appellate court agreed with the City and held that the residents’ lawsuit did not qualify as a “public interest” suit because it essentially sought to preserve the parking restrictions and would therefore uniquely benefit the plaintiffs.

The appellate court went on to find that the plaintiffs were also unlikely to prevail on the merits of their lawsuit because the Council had not violated the Brown Act. The court held that the initial discussion of the church’s letter was not substantive or substantial. Second, the court held that the Brown Act did not stand as a barrier to the Council considering changes to its parking restriction procedures, which was strictly an intramural issue affecting the City.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

California Supreme Court Curbs Responses to Anti-SLAPP Motions

10 Aug 2016 00:00:00 -0800

Individual elected officials are exercising their right to free speech when they cast their votes — even if those votes might be the result of corruption or based in a conflict of interest, the California Supreme Court has decided. The opinion, handed down Monday, includes an in-depth analysis of the State’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law. The law is designed to end lawsuits that chill the right to speak on issues of public concern.

The opinion in City of Montebello v. Vasquez stems from an allegedly tainted waste disposal contract for the City of Montebello. Amid allegations of votes purchased with campaign contributions, recall elections and a referral to the District Attorney, a private citizen sued the City to invalidate the contract under Government Code section 1090, asserting it was the product of bribery — campaign contributions offered and then delivered. Just days before a judgment in the citizen’s suit voiding the contract, the City, under new leadership, brought its own lawsuit under section 1090 against the three now ousted Council members who voted for the contract and the now retired city administrator. The City’s suit sought to void the contract and disgorgement of the campaign contributions the Council members had allegedly received to purchase their votes.

Those defendants brought an anti-SLAPP motion in the trial court seeking to have the City’s lawsuit dismissed, alleging it was an effort to punish them for exercising their right to free speech in connection with a matter of public interest related to their official duties. The City countered the anti-SLAPP motion by asserting the “public enforcement” exemption, which applies when a lawsuit is brought as an enforcement action on behalf of the People of the State of California. The trial court denied the motion. It found the “public enforcement” exception did not apply because the suit was not brought in the name of the People by a public prosecutor and that the defendants’ acts were protected activity under the law. But, the court found that the City established it would likely prevail on the merits of its lawsuit. An appellate court agreed the “public enforcement” exemption did not apply, but held the defendants’ votes on the contract were not protected activity under the law and, therefore, the anti-SLAPP statute did not apply. Thus, it upheld the trial court’s denial of the anti-SLAPP motion, but for a different reason. The Supreme Court granted review.

On the issue of public enforcement, the Court found that the exemption only applies to actions brought by a public prosecutor in the name of the People and, thus, did not apply here.

But, were the Council members’ votes protected as an exercise of free speech? The Court concluded that the anti-SLAPP statute protects not only the exercise of free speech rights, but also “any act in furtherance of” those rights, which “extends beyond the contours of the constitutional rights themselves.” On the City’s argument that the votes were not valid, and, thus, not protected by free speech, the Court opined that those allegations were premature and did not apply to whether the Council members were exercising their constitutional rights. Because the appellate court had not reviewed the trial court's determination that the City would prevail on the merits of the lawsuit’s claims, i.e., that the votes were tainted, the matter was sent back to the appellate court to review that issue.

Finally, but significantly, the Court distinguished this case against individual elected officials from those cases challenging a board’s collective action, which, the Court held, is not an exercise of free speech. The Montebello Council’s vote — the “collective action” — was successfully challenged here in the private citizen’s section 1090 action after an anti-SLAPP motion was denied. The Court emphasized that the City’s suit challenged the individual votes of the defendants as Council members, and that activity was protected by the anti-SLAPP statute. Thus, individual elected officials may assert the anti-SLAPP statute while the public entity may not.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Detecting and Preventing Fraud in Government

14 Jul 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Gary Schons will speak on detecting and preventing fraud in government during the Orange County Auditor-Controller's Orange County Fraud Seminar.

When
Thursday, July 14
9 - 11:30 a.m.

Where
12 Civic Center Plaza #200
Santa Ana, CA 92701

High Court Clarifies “Official Act” in Former Gov. Bob McDonnell Decision

28 Jun 2016 00:00:00 -0800

By Gary Schons

This week, the U.S. Supreme Court overturned the federal bribery convictions of former Virginia Gov. Bob McDonnell. While politicians and public officials from Washington, D.C. to Juneau, Alaska might be breathing a sigh of relief, the implications of the opinion for public officials in California are far less reassuring.

First the facts: McDonnell all but solicited and eagerly accepted more than $175,000 in gifts, including a $55,000 loan, a $20,000 shopping spree in Manhattan, lavish meals and $15,000 in cash, from Virginia businessman Jonnie Williams. Williams wanted McDonnell help him push his diet supplement product by convincing Virginia’s public universities to study the product. McDonnell contacted these school officials, although no studies materialized. McDonnell arranged meetings between Williams and state officials and hosted a lunch party at the Governor’s Mansion. At that lunch, McDonnell touted the product and once produced a bottle of the product at a meeting with the head of the state employee health plan and suggested that state employees start taking the supplement.

The receipt of the “quid” — the gifts — was undeniable. But what McDonnell challenged was the existence of the “quo”— whether what he did amounted to “official action” within the ambit of the federal bribery statute (18 U.S.C. §201). In essence, McDonnell argued that even “exchanging” (the “pro”) meetings, promotion and contacts with state university officials for cash, on its own, did not constitute bribery.

The Court overturned McDonnell’s convictions on the basis that the trial court provided erroneous jury instructions on the meaning of what constitutes an “official act” in the federal bribery statute. The Court held that “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The Court held those matters must also be something specific and focused, that is “pending” or “may by law be brought” before a public official.

The Court held that the possible state university research, the allocation of state grant money to fund research of the diet supplement, and whether the state health insurance plan would cover the supplement could be “questions” or “matters” arising from the Williams-McDonnell relationship.

To qualify as an “official act,” the Court held, the public official must make a decision or take an action on that “question” or “matter,” or agree to do so. Further, that decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official.

So far, so good for the government’s position — as it appears that is precisely what McDonnell did.

But where the Court found fault was that merely “setting up a meeting, talking to another official, or organizing an event [or agreeing to do so]” — a phrase Chief Justice John Roberts repeated like a mantra in his opinion — does not fit that definition of “official act.” Thus, the jury instruction, in suggesting otherwise, was erroneous and the convictions could not stand.

Roberts explained that, if such activity was swept into the federal bribery statute, it would “cast a pall” on “the basic compact underlying representative government” — that is to say, how business gets done in politics and government.

So, why is this decision of lesser import to California public officials? The simple reason is that under California’s Political Reform Act (Government Code section 87100 et seq.) had McDonnell been an official in California, the mere receipt of the lavish gifts from Williams would have been their own crimes because they grossly exceeded the state’s gift limits. Further, under that Act, those gifts would have to be accurately, timely and publicly reported to the FPPC, under the threat of felony prosecution for perjury, even if that report exposed the gift limit violations. It is also possible that McDonnell’s contacts with other state officials on Williams’ behalf could be viewed as acts seeking to influence a governmental decision in which McDonnell had a financial interest (the gifts) under the Act.

Originally published on PublicCEO.com on June 28, 2016. Republished with permission.

Attorneys React to High Court’s Political Bribery Ruling

28 Jun 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Gary Schons was included in a round-up of reactions from lawyers to the U.S. Supreme Court’s decision Monday to overturn former Virginia Gov. Bob McDonnell’s corruption convictions.

“Public officials are breathing a collective sigh of relief in the wake of the Court’s decision that former Gov. Bob McDonnell’s acts did not constitute ‘official acts’ under the federal bribery statute, finding that merely ‘setting up a meeting, talking to another official, or organizing an event’ does not fit the definition of ‘official act.’ Chief Justice Roberts explained that, if such activity was swept into the federal bribery statute, it would ‘cast a pall’ on ‘the basic compact underlying representative government’ — that is to say, how business gets done in politics and government.” – Gary Schons

Read all the reactions, posted June 28, 2016 to Law360, by clicking here (subscription required).