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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.

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.

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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.

Court Clarifies the “Cease & Desist” Requirement Prior to Initiating Brown Act Litigation

02 Jun 2016 00:00:00 -0800

In 2012 the California Legislature amended the judicial remedies aspect of the Brown Act “Opening Meetings” Law. That amendment added section 54960.2 to the Government Code to require that a party seeking a judicial remedy for a past action of a legislative body alleged to be in violation of the Brown Act must first submit to that body a cease and desist letter. If the legislative body responds with an unconditional commitment to cease and desist from, and not repeat, the alleged violation, then a judicial remedy is foreclosed. In other words, the cease and desist letter is a pre-requisite to initiating a judicial action to stop or prevent past violations of the Act.

The City Council of San Diego regularly meets on Mondays and Tuesdays in a two-day regular meeting, which the City considered to be a single meeting. Pursuant to a city ordinance, only one non-agenda public comment period, required by the Brown Act, was afforded — on Tuesday mornings. Without providing a cease and desist letter, the Center for Local Government Accountability brought suit against the City asserting its single, non-agenda public comment practice violated the Brown Act. After the action was filed, the City changed course and adopted an ordinance providing for non-agenda public comment periods on both Mondays and Tuesdays.

The City demurred to the complaint, first asserting that the Center had failed to satisfy the cease and desist letter requirement of section 54960.2, and second that the complaint was moot, as the City had changed its ordinance to provide for two public comment periods — one each day. The trial court sustained the demurrer, dismissed the action and the Center appealed.

The Court of Appeal, in a decision issued in Center for Local Government Accountability v. City of San Diego on May 31, reversed the trial court order. First, the appellate court found that the cease and desist letter requirement applied only to actions seeking a remedy solely for a past action of a legislative body. (The trial court had concluded that it applied to both past actions and future threatened actions.) The appellate court found that the Center’s complaint was focused on the one non-agenda comment period ordinance and practice, which extended to all council meetings, including those in the future. Therefore, the complaint sought a remedy for future threatened actions and the cease and desist letter requirement did not apply.

Finally, the court rejected the City’s contention that the enactment of the new ordinance providing for a non-agenda public comment period on both days of the Council’s meetings rendered the lawsuit moot. The court noted that the City continued to insist that its two-day meeting regime was in fact one continuous meeting, rather than two separate meetings, and refused to concede that its prior practice of a single non-agenda public comment period violated the Brown Act. (One of the conditions of the “unconditional commitment” to cease and desist is a confession that the Act had been violated.) Reasoning that the City could easily resurrect its prior ordinance, the court allowed the Center to return to the trial court, amend its complaint, and seek a judicial determination that the one non-agenda comment period practice violated the Brown Act.

This case illustrates the risks of Brown Act litigation for legislative bodies. Indeed, the City here appears to have lost the battle and lost the war, and will most likely be tagged with the Center’s attorney’s fees, as well as costs, which the appellate court ordered it to pay.

If you have any questions about this opinion or how it may impact your local agency, please contact the attorney authors 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.

CEQA, Brown Act and Planning and Zoning Law Challenges Overcome in Development Project

02 Jun 2016 00:00:00 -0800

A team of Best Best & Krieger LLP attorneys successfully defeated environmental and other legal challenges to a master planned infill residential and habitat preservation project in the City of Montebello. Los Angeles Superior Court Judge John A. Torribio denied a petition for a writ of mandate that claimed the project plan was inconsistent with the City’s General Plan and that the City violated open meeting laws during the approval process. In a decision issued May 23, Torribio found both those claims and others lacked merit.

The project is planned on a nearly 500-acre plot of undeveloped land in Montebello. The land is being used for oil production, and has been for a century. About 10 years ago, the plan to develop about 150 acres of the site into a residential community was proposed. The rest of the site will be dedicated to open space uses, with approximately 260 acres reserved for the California gnatcatcher, a species designated as threatened by the federal government. The development also includes trails and parks, allowing the public access to the space for the first time in recent history.

Following numerous public hearings before both the City Council and the Planning Commission, as well as several revisions to the environmental impact report based on feedback from the public and other public agencies, the plan was approved in June 2015. A month later, the lawsuit was filed.

The petitioner claimed the project should be halted because the City’s administrative process was flawed in that the wrong address for a public hearing was on the City’s website. However, noting that the correct address was on the properly noticed meeting agenda, Torribio, rejected the claim. He also rejected a claim that the plan was inconsistent with the City’s General Plan for not addressing low-income and special needs housing issues. Torribio noted that the proposed project need only be “compatible” with the General Plan and that they are, indeed, compatible in that they do not preclude affordable housing and programs to assist the elderly and the disabled elsewhere in the City. He also found that the petitioner did not properly follow procedure on other claims, and rejected those.

The case is Citizens for Open and Public Participation v. City of Montebello, BS156922.

New California Laws Impacting Public Agencies

18 Dec 2015 00:00:00 -0800

There were many bills passed by California lawmakers this year that will impact municipalities and other public agencies. Follow the link below to read more about the bills that are of specific importance to your work. Please contact us for further information about the bills you see here, or any legal matters with which you need assistance.

RECENT CHANGES

AB 1 - Drought: local governments: fines. Prohibits a city, county, or city and county from imposing a fine under any ordinance for a failure to water a lawn or having a brown lawn during a period for which the Governor has issued a proclamation of a state of emergency based on drought conditions.

AB 2 - Community revitalization authority. Authorizes certain local agencies to form a community revitalization authority within a community revitalization and investment area, as defined, to carry out provisions of the Community Redevelopment Law in that area for purposes related to, among other things, infrastructure, affordable housing and economic revitalization.

SB 21 - Political Reform Act of 1974: gifts of travel. Requires a nonprofit organization that regularly organizes and hosts travel for elected officials, as specified, and that pays for these types of travel for an elected state officer or local elected officeholder, to disclose the names of donors who, in the preceding year, both donated to the nonprofit organization and accompanied an elected officer or officeholder for any portion of the travel, as specified. The bill requires a person who receives a gift of a travel payment from any source to report the travel destination on his or her statement of economic interests. This bill contains other related provisions and other existing laws.

SB 34 - Automated license plate recognition systems: use of data. This bill imposes specified requirements on an "ALPR operator" as defined, including, among others, maintaining reasonable security procedures and practices to protect ALPR information and implementing a usage and privacy policy with respect to that information, as specified. The bill imposes similar requirements on an "ALPR end-user," as defined. This bill contains other related provisions and other existing laws.

AB 57 - Telecommunications: wireless telecommunication facilities. Provides that a collocation or siting application for a wireless telecommunications facility is deemed approved if the city or county fails to approve or disapprove the application within the reasonable time periods specified in applicable decisions of the Federal Communications Commission, all required public notices have been provided regarding the application, and the applicant has provided a notice to the city or county that the reasonable time period has lapsed. This bill contains other existing laws.

AB 69 - Peace officers: body-worn cameras. Requires law enforcement agencies to consider specified best practices when establishing policies and procedures for downloading and storing data from body-worn cameras, including, among other things, prohibiting the unauthorized use, duplication, or distribution of the data, and establishing storage periods for evidentiary and non-evidentiary data, as defined.

SB 88 - Water. Authorizes the State Water Resources Control Board to order consolidation with a receiving water system where a public water system, or a state small water system within a disadvantaged community, consistently fails to provide an adequate supply of safe drinking water. This bill also authorizes the Board to order the extension of service to an area that does not have access to an adequate supply of safe drinking water so long as the extension of service is an interim extension of service in preparation for consolidation.

SB 107 - Local government. Current law dissolved redevelopment agencies and community development agencies as of Feb. 1, 2012, and provides for the designation of successor agencies to wind down the affairs of the dissolved redevelopment agencies and to, among other things, make payments due for enforceable obligations and to perform obligations required pursuant to any enforceable obligation. This bill provides that any action by the Department of Finance, that occurred on or after June 28, 2011, carrying out the Department's obligations under the provisions described above constitutes a Department action for the preparation, development, or administration of the State budget and is exempt from the Administrative Procedures Act.

AB 169 - Local government: public records. If a local agency, except a school district, maintains an Internet resource, including, but not limited to an Internet website, Internet web page, or Internet web portal, which the local agency describes or titles as "open data," and the local agency voluntarily posts a public record on that Internet resource, then this bill requires the local agency to post the public record in an open format that meets specified requirements, including, among others, that the format is able to be retrieved, downloaded, indexed, and searched by a commonly used Internet search application.

AB 219 - Public works: concrete delivery. Current law defines "public works," for purposes of requirements regarding the payment of prevailing wages for public works projects, to include, among other things, the hauling of refuse from a public works site to an outside disposal location with respect to contracts involving any state agency. This bill expands the definition of "public works" for these purposes to include the hauling and delivery of ready-mixed concrete, as defined, to carry out a public works contract, with respect to contracts involving any state agency or any political subdivision of the State.

SB 239 - Local services: contracts: fire protection services. With certain exceptions, this bill permits a public agency to exercise new or extended services outside the public agency's jurisdictional boundaries pursuant to a fire protection contract, as defined, only if the public agency receives written approval from the local agency formation commission in the affected county. This bill contains other related provisions and other existing laws.

AB 243 - Medical marijuana. Requires the Department of Food and Agriculture, the Department of Pesticide Regulation, the State Department of Public Health, the Department of Fish and Wildlife, and the State Water Resources Control Board to promulgate regulations or standards relating to medical marijuana and its cultivation, as specified. The bill also requires various state agencies to take specified actions to mitigate the impact that marijuana cultivation has on the environment.

AB 266 - Medical marijuana. Enacts the Medical Marijuana Regulation and Safety Act for the licensure and regulation of medical marijuana and establishes, within the Department of Consumer Affairs, the Bureau of Medical Marijuana Regulation, under the supervision and control of the director of Consumer Affairs. The bill would require the director to administer and enforce the provisions of the Act.

SB 272 - The California Public Records Act: local agencies: inventory. Requires each local agency, except a local educational agency, in implementing the California Public Records Act, to create a catalog of enterprise systems, as defined, to make the catalog publicly available upon request in the office of the person or officer designated by the agency's legislative body, and to post the catalog on the local agency's Internet website.

AB 277 (& SB 493) - Legislation narrows use of at-large elections to elect public officials. AB 277 codifies the holding in Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781 to prohibit the use of at-large elections in a political subdivision if it would impair the ability of a protected class to elect their chosen candidates or otherwise influence the outcome of an election. The definition of “political subdivision” has been amended to expressly include a charter city, charter county, or charter city and county.

AB 313 - Enhanced infrastructure financing districts. Requires, after the adoption of a resolution of intention to establish a proposed district, the legislative body to send a copy of the resolution to the public financing authority. This bill would revise the duties of the public financing authority after the resolution of intention to establish the proposed district has been adopted, so that the public financing authority, instead of the legislative body, will perform the specified duties related to the preparation, proposal, and adoption of the infrastructure financing plan and the adoption of the formation of the district.

SB 331 – Public contracts: local agencies: negotiations. Enacts the Civic Reporting Openness in Negotiations Efficiency Act to establish specific procedures for the negotiation and approval of certain contracts valued at $250,000 or more for goods or services by cities, counties, cities and counties, or special districts that have adopted a civic openness in negotiations ordinance, defined as an ordinance imposing specified requirements as part of any collective bargaining process undertaken pursuant to the Meyers-Milias-Brown Act. The Act requires the designation of an independent auditor to review and report on the cost of any proposed contract.

SB 374 - Local agency design-build projects: transit districts. This bill specifies that the definition of a local agency authorized to use the design-build method of project delivery includes the San Diego Association of Governments. The bill defines projects, as it pertains to the San Diego Association of Governments, to include development projects adjacent, or physically or functionally related, to transit facilities developed by the association.

SB 383 – Civil actions: objections to pleadings. Requires a demurring party in certain civil actions, before filing the demurrer, to engage in a specified meet-and-confer process with the party who filed the pleading demurred to. This is for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer. The bill prohibits a party from amending a complaint or cross-complaint more than three times in response to a demurrer filed before the case is at issue, except as specified.

AB 401 - Low-Income Water Rate Assistance Program. Requires the State Water Resources Control Board, no later than Jan. 1, 2018, in collaboration with the State Board of Equalization and relevant stakeholders, to develop a plan for the funding and implementation of the Low-Income Water Rate Assistance Program, which includes specified elements. The bill permits the board to consider existing rate assistance programs authorized by the commission in developing the plan and authorizes the plan to include recommendations for other cost-effective methods of offering assistance to low-income water customers.

AB 402 – Local agency services: contracts. Establishes a pilot program, until Jan. 1, 2021, for the Napa and San Bernardino commissions that permits those commissions to authorize a city or district to provide new or extended services outside both its jurisdictional boundaries and its sphere of influence under specified circumstances. This bill contains other related provisions.

SB 415 - Voter participation. Beginning Jan. 1, 2018, this law prohibits a political subdivision, as defined, from holding an election, other than on a statewide election date, if holding an election on a non-concurrent date has previously resulted in voter turnout for a regularly scheduled election in that political subdivision being at least 25 percent less than the average voter turnout within the political subdivision for the previous four statewide general elections, except as specified. This bill contains other related provisions.

SB 493 (& AB 277) - Legislation narrows use of at-large elections to elect public officials. SB 493 authorizes the legislative body of a city with a population of fewer than 100,000 people to adopt an ordinance that requires the members of the legislative body to be elected by district without submitting the ordinance to the voters for approval.

SB 533 - Cities and counties: sales and use tax agreements. Repeals a specified prohibition of the Bradley-Burns Uniform Local Sales and Use Tax Law and instead prohibits, on or after Jan. 1, a local agency from entering into any form of agreement that would result, directly or indirectly, in the payment, transfer, diversion, or rebate of Bradley-Burns local tax revenues to any person, as defined, for any purpose, if the agreement results in a reduction in the amount of Bradley-Burns local tax revenues that, in the absence of the agreement, would be received by another local agency and the retailer continues to maintain a physical presence within the territorial jurisdiction of that other local agency, with specified exceptions.

AB 552 - Public works contracts: damages. Among other things, this bill provides that a public works contract, entered into on or after Jan. 1, that contains a clause expressly requiring a contractor to be responsible for delay damages, as defined, is not enforceable unless the delay damages have been liquidated to a set amount and identified in the public works contract. Under the bill, these provisions do not apply to specified state agencies. The bill also makes findings and declarations related to public contracts.

SB 555 - Urban retail water suppliers: water loss management. This bill requires each urban retail water supplier, on or before Oct. 1, 2017, and on or before Oct. 1 of each year thereafter, to submit a completed and validated water loss audit report for the previous calendar year or previous fiscal year as prescribed by rules adopted by the Department of Water Resources on or before Jan. 1, 2017, and updated as provided. The bill requires the Department to post all validated water loss audit reports on its website in a manner that allows for comparisons across water suppliers and to make these reports available for public viewing.

SB 570 - Personal information: privacy: breach. Current law requires a person, business, or agency that is required to issue a security breach notification to meet specific requirements, including that the notification be written in plain language. This bill additionally requires the security breach notification to be titled "Notice of Data Breach" and to present the information under prescribed headings. The bill prescribes a model security breach notification form, as specified.

AB 594 - Political Reform Act of 1974: campaign statements. Recasts the requirements for filing pre-election statements and repeals other reporting requirements, including supplemental pre-election statements and supplemental independent expenditure reports. This bill contains other related provisions and other existing laws.

AB 622 - Employment: E-Verify system: unlawful business practices. Expands the definition of an unlawful employment practice to prohibit an employer or any other person or entity from using the E-Verify system at a time or in a manner not required by a specified federal law or not authorized by a federal agency memorandum of understanding to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment, except as required by federal law or as a condition of receiving federal funds.

SB 643 - Medical marijuana. Sets forth standards for a physician and surgeon prescribing medical cannabis and requires the Medical Board of California to prioritize its investigative and prosecutorial resources to identify and discipline physicians and surgeons that have repeatedly recommended excessive cannabis to patients for medical purposes or repeatedly recommended cannabis to patients for medical purposes without a good faith examination, as specified. The bill requires the Bureau of Medical Marijuana to require an applicant to furnish a full set of fingerprints for the purposes of conducting criminal history record checks.

SB 664 - Water: urban water management planning. This bill requires an urban water supplier to include within its plan, beginning Jan. 1, 2020, a seismic risk assessment and mitigation plan to assess the vulnerability of each of the various facilities of a water system and mitigate those vulnerabilities. This bill also authorizes an urban water supplier to comply with this requirement by submitting a copy of the most recently adopted local hazard mitigation plan or multi-hazard mitigation plan under specified federal law that addresses seismic risk.

AB 744 - Planning and zoning: density bonuses. Current law prohibits a city, county, or city and county from requiring a vehicular parking ratio for a housing development that meets specified criteria in excess of specified ratios. Notwithstanding the above-described provisions, this bill additionally prohibits, at the request of the developer, a city, county, or city and county from imposing a vehicular parking ratio, inclusive of handicapped and guest parking, in excess of .5 spaces per bedroom on a development that includes the maximum percentage of low- or very low-income units, as specified, and is located within 1/2 mile of a major transit stop, as defined, and there is unobstructed access to the transit stop from the development.

SB 761 - Advertising: Internet private residence rental listings: notice. Requires a hosting platform, as defined, to provide a specific notice to an occupant listing a residence for short-term rental on a hosting platform that states, among other things, that, if the occupant is a tenant, listing the room, home, condominium, or apartment may violate the lease or contract and could result in legal action by the landlord, including possible eviction.

AB 809 - Local initiative measures: ballot printing specifications. Current law requires that the ballots used when voting on a proposed county, city, or district ordinance submitted to the voters as an initiative measure have printed on them specified text relating to the proposed ordinance and dictates the placement of that text. This bill also requires that, if the ordinance proposes to impose a tax or raise the rate of a tax to be levied, the ballot include in the statement of the ordinance the amount of money to be raised annually and the rate and duration of the tax to be levied.

AB 848 - Alcoholism and drug abuse treatment facilities. Current law requires the State Department of Health Care Services to license adult alcoholism or drug abuse recovery or treatment facilities, as defined. This bill authorizes an adult alcoholism or drug abuse recovery or treatment facility that is licensed under those provisions to allow a licensed physician and surgeon or other health care practitioner, as defined, to provide incidental medical services, as defined, to a resident of the facility at the facility premises under specified limited circumstances.

AB 851 - Local government: organization: disincorporations. Current law authorizes a local agency that is conducting proceedings for the incorporation of a city, formation of a district, change of organization, a reorganization, a change of organization of a city, or a municipal reorganization to propose the adoption of a special tax on behalf of the affected city or district in accordance with this procedure. This bill additionally authorizes a local agency conducting proceedings for the disincorporation of a city to propose the adoption of a special tax on behalf of an affected city in accordance with the above-described procedure.

AB 852 - Public works: prevailing wages. Expands the definition of "public works," for the purposes of provisions relating to the prevailing rate of per diem wages, to also include any construction, alteration, demolition, installation, or repair work done under private contract on a project for a general acute care hospital, except on a project for a rural general acute care hospital with a maximum of 76 beds, when the project is paid for, in whole or in part, with the proceeds of conduit revenue bonds, as defined, that were issued on or after Jan. 1, 2016. This bill contains other related provisions and other existing laws.

AB 856 - Invasion of privacy. Expands liability for physical invasion of privacy to additionally include a person knowingly entering into the airspace above the land of another person without permission, as provided.

AB 901 - Solid waste: reporting requirements: enforcement. The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of solid waste. This bill revises specified provisions by, among other things, 1.) requiring recycling and composting operations and facilities to submit specified information directly to the Department, rather than to counties, 2.) requiring disposal facility operators to submit tonnage information to the Department, and to counties only on request, and 3.) deleting the requirement for counties to submit that information to cities, regional agencies and the Department.

AB 952 - Local government: vacancies. Provides that if a city council fills a vacancy in an elective office by appointment, and that vacancy occurred in the first half of the term of office and at least 130 days prior to the next general municipal election, the person appointed to fill the vacancy holds office until the next general municipal election at which a person is elected to fill that vacancy, and thereafter, until the person elected is qualified.

AB 953 - Law enforcement: racial profiling. Enacts the Racial and Identity Profiling Act of 2015, which, among other changes, revises the definition of racial profiling to instead refer to racial or identity profiling, and makes a conforming change to the prohibition against peace officers engaging in that practice.

AB 990 - Political Reform Act of 1974: advertisement disclosures. The Political Reform Act of 1974 imposes various disclosure statement requirements with respect to advertisements supporting or opposing a candidate or ballot measure. This bill requires that disclosure statements be printed in no less than 14-point bold, sans serif type font. The bill requires that an advertisement supporting or opposing a candidate that is paid for by an independent expenditure include a disclosure statement with specific content and, if the advertisement is mailed, it requires that the disclosure statement be located within a quarter of an inch of the recipient's name and address and be contained within a box that meets prescribed criteria.

AB 1020 (& AB 1461) - Expanded options for voter registration. AB 1020 authorizes persons to pre-register to vote in an election if that person is at least 16 years of age and makes other voter registration changes applicable to local elections officials.

AB 1077 - Mutual water companies: open meetings. Prohibits a mutual water company from meeting solely in an executive session without holding a meeting. The bill requires notice of a meeting to be given to an eligible person at least four days prior to the meetings. The bill also requires a board of directors of a mutual water company to allow an eligible person to personally attend a meeting of the board, if the eligible person gave the board at least 24 hours advance written notice of his or her intent to personally attend the meeting.

AB 1119 - Public utilities: municipal corporations: rights of way. Requires a municipal corporation, before using any street, alley, avenue or highway within any other municipal corporation or county, to request of the municipal corporation or county that has control over the street, alley, avenue or highway to agree with it upon the location of the use and the terms and conditions to which the use shall be subject. This bill contains other related provisions and other existing laws.

AB 1164 - Water conservation: drought tolerant landscaping. Prohibits a city, including a charter city, county, and city and county, from enacting or enforcing any ordinance or regulation that prohibits the installation of drought tolerant landscaping, synthetic grass or artificial turf on residential property, as specified. The bill additionally states that this is an issue of statewide concern. This bill contains other related provisions.

AB 1191 – Quimby Act: fees. This bill defines the term "fee," as used in the Quimby Act with regard to the expenditure of fees, to include any interest income generated from a fee charged and collected pursuant to that Act. The bill provides that these provisions are declaratory of current law.

AB 1194 - Mental health: involuntary commitment. Under the Lanterman-Petris-Short Act, when a person, as a result of mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, he or she may, upon probable cause, be taken into custody and placed in a facility for 72-hour treatment and evaluation. This bill provides that, when determining if a person should be taken into custody pursuant to specified provisions, the individual making that determination shall consider available relevant information about the historical course of the person's mental disorder if the individual concludes that the information has a reasonable bearing on the determination, and that the individual shall not be limited to consideration of the danger of imminent harm.

AB 1222 - Tow trucks. Current law makes it a misdemeanor for the owner or operator of a tow truck to stop at the scene of an accident or near a disabled vehicle for the purpose of soliciting an engagement for towing services, either directly or indirectly, or to furnish any towing services, unless summoned to the scene, requested to stop, or flagged down by the owner or operator of a disabled vehicle, or requested to perform the service by a law enforcement officer or public agency pursuant to that agency's procedures. This bill applies those provisions to a towing company.

AB 1303 - Subdivision Map Act: map expiration dates. Extends, by 24 months, the expiration date of any approved tentative map or vesting tentative map that was approved on or after Jan. 1, 2002, and not later than July 11, 2013, within a county that meets certain criteria, except as specified. The bill additionally requires the extension of an approved or conditionally approved tentative map or vesting tentative map, or parcel map for which a tentative map or vesting tentative map was approved on or before Dec. 31, 2001, upon application by the subdivider at least 90 days prior to the expiration of the map, as specified.

AB 1358 – School facilities: design-build contracts. Current law authorizes the governing board of a school district, until Jan. 1, 2020, and upon a determination by the governing board of the school district that it is in the best interest of the school district, to enter into a design-build contract for both the design and construction of a school facility if that expenditure exceeds $2.5 million, as provided. This bill makes those provisions inoperative on July 1, 2016, and as of that date, instead authorizes, until Jan. 1, 2025, a school district, with the approval of the governing board of the school district, to procure design-build contracts for public works projects in excess of $1 million, awarding the contract to either the low bid or the best value, as provided.

AB 1431 - Local Agency Public Construction Act: job order contracting. The Local Agency Public Construction Act authorizes job order contracting, as provided, by the Los Angeles Unified School District, until Dec.31, 2020. This bill repeals the provisions relating to the LAUSD and instead authorizes job order contracting in a similar manner for school districts until Jan. 1, 2022.

AB 1461 (& AB 1020) - Expanded options for voter registration. AB 1461 requires the Secretary of State and Department of Motor Vehicles to establish the California New Motor Voter Program. Under this program, the DMV is required to electronically provide to the Secretary of State the records of a person issued an original or renewal driver’s license or state identification card. That person is automatically registered to vote unless s/he affirmatively declines to be registered to vote or is deemed to be ineligible to vote.

AB 1533 - Infrastructure financing. The Bergeson-Peace Infrastructure and Economic Development Bank Act makes findings and declarations, provides definitions and authorizes the board to take various actions in connection with the bank, including the issuance of bonds, as specified. This bill, among other things, revises the definition of economic development facilities to include facilities that are used to provide goods movement and defines goods movement-related infrastructure. The bill revises the definition of port facilities to specifically reference airports, landports, waterports and railports.

AB 1544 - Political Reform Act of 1974: behested payments. The Political Reform Act of 1974 provides for the comprehensive regulation of campaign financing and related matters, including campaign contributions, as defined. This bill provides that the provision relating to payments made by a government agency exclusively governs a payment by a governmental agency that is made principally for legislative or governmental purposes at the behest of a candidate who is an elected officer, and consequently the payment is not subject to the reporting requirement that applies generally to payments made for legislative, governmental, or charitable purposes.

For more information, contact the authors of this Legal Alert listed at right in the firm’s opinion. The narrowly tailored exception does not apply because the contractors and laborers covered by such an agreement are not district employees.

The Brown Act generally requires legislative bodies to deliberate in open session, but there is an exception for discussion of labor negotiations. The labor negotiations exception allows a legislative body to meet in closed session with its negotiating representative to discuss salaries and benefits of the body’s employees.

The board of trustees of a community college district that is undertaking a construction project sought to meet in closed session with its negotiator to discuss the terms of a proposed project labor agreement. A project labor agreement is a pre-hire collective bargaining agreement between the owner of a construction project and one or more labor organizations, designed to set terms and conditions of employment for the construction. Once a public entity enters a project labor agreement with a labor organization, any contractors the public entity selects to do the construction work (and their subcontractors) are bound by the terms and conditions of the agreement in employing the project’s workers.

The Attorney General concluded that the board could not hold the discussion in closed session because the labor negotiations exception does not include discussions of a project labor agreement where the construction workers covered by the agreement are not district employees.

To determine whether a worker is an employee, courts look to whether the purported employer has the right to control not only the result of the work, but the manner and means of accomplishing the desired result, and whether the employer could fire the employee without cause. In this case, the Attorney General concluded that, because the district and its board would not hire, manage, pay, discipline, or fire the construction workers who are covered by the labor agreement, those workers are not employees of the district. Accordingly, the labor negotiations exception did not apply.

For more information about this opinion and how it may relate to your public agency, contact the attorney author of this Legal Alert listed at right in the Public Policy & Ethics Compliance practice group, or your BB&K attorney.

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.

Inconsistencies Between Practices, Brown Act Guidelines Highlighted During LBCCD Training

24 Jun 2015 00:00:00 -0800

By Jason Ruiz

The Long Beach Community College District (LBCCD) Board of Trustees took some extra time before last night’s regular meeting for a refresher course on the Ralph M. Brown Act, a law that upholds the public’s right to participate in meetings of local legislative bodies. The training session revealed further inconsistencies between the board's practices and established Brown Act guidelines.

The two hour long presentation, which appeared to be about as enjoyable as traffic school for some members of the board, was given by Ruben Duran, a partner with the law firm Best Best & Krieger. It spanned multiple topics, including what kind of information needs to be shared with the public, what can be discussed in closed session and general “best practices” for preventing a possible violation of the act.

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To read the full article in the Long Beach Post, which was posted on June 24, 2015, click here.

2015 California Public Records & Open Meetings Conference

19 Jun 2015 00:00:00 -0800

Best Best & Krieger attorneys Matthew (Mal) Richardson and Richard Egger are among the speakers at The State Bar of California Public Law Section’s 2015 California Public Records & Open Meeting Conference.

BB&K Speakers

Mal Richardson, “Records Related to Public Business, But Not Controlled by Third Parties”
This session will track developing law regarding records related to public business, but controlled by third parties. This includes the use of private email accounts to conduct public business, as well as records relied upon by a public entity in conducting business, that are maintained by a third party, such as n investment firm.
3:30 – 4:40 p.m.

Richard Egger, “Ethical Issues Related to Open Government Law”
This session will explore ethical issues arising from public entities’ obligations to provide public record access, including determining who your client is for purposes of attorney-client privilege and related third-party protection of confidential personal information held by agencies. Discussion will also include the potential waiver of any privileges caused by inadvertent PRA-document disclosures and the public attorney’s potential ethical duty to third parties under this circumstance.
4:30 – 5:30 p.m.

BB&K is a sponsor of this event. MCLE Credit is available.

When
Friday, June 19, 2015

Where
UCLA-Palisades Room at Carnesales Commons
251 Charles E. Young Dr. West
Los Angeles, CA 90095

For more information or to register, click here.

Closed Session Final Decision and Vote Details Must Be Publicly Reporter at the Same Public Meeting

23 Apr 2015 00:00:00 -0800

BY GARY SCHONS AND VICTORIA HESTER

Pasadena City College is facing criticism — and a lawsuit — for its perceived lack of transparency regarding its Board of Trustees’ vote to approve a $400,000 severance package for controversial former school President Mark Rocha. The lawsuit, filed September 25, 2014 by Sacramento-based watchdog group Californians Aware, claims the board took the action in closed session to avoid a public hearing. The board cited “anticipated litigation” as the reason for the closed session. But, according to the lawsuit, the severance package was part of Rocha’s existing contract and was not a result of any litigation or litigation threat.

The board unanimously approved the severance package during a closed session on August 6, but failed to announce the decision during the open session of the same meeting, as required under California’s Brown Act, which regulates meetings of governing bodies. The Brown Act generally requires that all votes taking final action on a matter in closed session be publicly reported orally or in writing at the public meeting. In addition, copies of any contracts or settlement agreements finally approved (not those awaiting approval of the other party) must be made available promptly. In addition to failing to report the vote, college officials also failed to make the severance package available when reporters beg n requesting it. If a judge rules against the college, the severance package could be voided and the board would have to take a legal vote on the issue, which could include a public hearing.

To read the full article in the March-April 2015 edition of California Special District magazine, click here. Reprinted with permission.

Local Agencies Face Suits Alleging Brown Act Violations for Failing to Release Closed Session Vote Details

02 Feb 2015 00:00:00 -0800

Pasadena City College is facing criticism — and a lawsuit — for its preceived lack of transparency regarding its Board of Trustees’ vote to approve a $400,000 severance package for controversial former school President Dr. Mark Rocha. The lawsuit, filed Sept. 25 by Sacramento-based watchdog group Californians Aware, claims that the Board took the action in closed session to avoid a public hearing. The Board cited “anticipated litigation” as the reason for the closed session. But, according to the lawsuit, the severance package was part of Rocha’s existing contract and was not a result of any litigation or litigation threat.

The Board unanimously approved the severance package during a closed session on Aug. 6, but failed to announce the decision during the open session of the same meeting, as required under California’s Brown Act, which regulates meetings of governing bodies. The Brown Act requires that all votes in closed session be publicly reported orally or in writing within 24 hours and copies of any contracts or settlement agreements approved be made available promptly. In addition to failing to report the vote, College officials also failed to make the severance package available when reporters began requesting it. If a judge rules against the College, the severance package could be voided and the Board would have to take a legal vote on the issue, which could include a public hearing.

On a similar note, the Chico City Council came under fire this month for alleged ongoing Brown Act violations, including failure to release the details of a July closed session vote not to recruit for city manager, thereby immediately promoting Assistant City Manager Mark Orme to the position. The City’s refusal to release the roll call votes from the closed session meeting is part of a pattern of Brown Act violations, according to Jessica Allen, who sent the City Council a cease-and-desist letter regarding its meeting practices and filed a lawsuit on Oct. 24.

The Brown Act is clear about closed session — only certain matters can be discussed, and the governing body must make public any action taken in closed session as well as the vote or abstention of every member present. Although local government bodies may want to shield certain matters from public hearing or public comment, it is important to remember that only certain issues — including litigation, real property purchases and labor negotiations — can be discussed in closed session, and even when closed session action is appropriate, the topic must be disclosed in advance and a detailed voting record must be released to the public.

If you have any questions about the Brown Act, please contact the attorney author of this legal alert listed to the right in the firm’s Public Policy and Ethics Compliance group, or your BB&K attorney.

Join the conversation on Twitter @BBKlaw.

BB&K Attorneys Successfully Defend City Client from Brown Act and Other Claims

12 Dec 2014 00:00:00 -0800

In Ontario Mountain Village Association et al v. City of Ontario, Best Best & Krieger LLP attorneys Michelle Ouellette, Richard T. Egger and Sarah Owsowitz successfully defended the legality of an ordinance by the City of Ontario that extended by one-year the expiration dates for all development plans, conditional use permits and variance approvals. The extension was challenged in a lawsuit on the alleged grounds that the City violated the Ralph M. Brown Act and the California Environmental Quality Act (CEQA). The plaintiffs also alleged violation of their due process rights.

The lawsuit was filed after the City approved extension of the expiration dates in December 2011 — as it had done several times previously to support development and economic recovery in the City. The plaintiffs claimed the City violated the Brown Act, which guarantees the public’s right to attend and participate in meetings of local legislative bodies, and their due process rights by failing to disclose a legal memorandum. They also alleged the City violated CEQA by not substantiating that the ordinance extending the expiration dates was exempt from environmental review, among other claims.

As the trial court had done, the 2nd District Court of Appeal, in an opinion issued Dec. 11, sided with BB&K attorneys and rejected all the plaintiffs’ claims.