Best Best & Krieger News Feed

Urban and Rural: Tying the Partnership Together

16 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 California Association of Resource Conservation Districts' 71st Annual Conference in Ontario, Calif.

BB&K Speakers:

Steve Martin and Nancy Stubbs: "The California Public Records Act - What your District Needs to Know Now"
Jordan Ferguson: "New Horizons: Drones and Regulatory Challenges for the 21st Century"
Thursday, Nov. 17
1:45 - 3 p.m.

Roger Crawford: "The Legal Options and Pitfalls to Avoid when Sharing Employees among Districts"
Friday, Nov. 18
9:45 - 10:45 a.m.

Steve Anderson: "How RCDs can Participate in the Implementation of the Sustainable Groundwater Management Act"
Friday, Nov. 18
3:20 - 4:30 p.m.

When
Wednesday, Nov. 16 - Saturday, Nov. 19

Where
DoubleTree by Hilton Hotel Ontario Airport
222 North Vineyard Ave.
Ontario, CA 91764

For more information or to register, click here.

Play hard. Play fair. Play together.

01 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 CALPELRA 41st Annual Training Conference in Monterey, Calif.

BB&K Speakers:

Isabel Safie and Katrina Veldkamp
"ACA Implementation: What Comes Next?"
Although it seems that the ACA is finally in full effect, the IRS continues to publish new guidance, and aspects of the ACA are in flux or have not yet been implemented. For example, the Cadillac tax – although it has been delayed until plan years beginning on or after Jan. 1, 2020, it is moving forward – in this session you’ll learn about its application and how it will impact your health benefit programs. This session will also focus on recent IRS guidance regarding ACA implementation, including new limitations on health reimbursement arrangement coverage and the effect of cash-in-lieu/opt-out programs on affordability calculations. In this session, you’ll also learn what the presenters have learned from the first year of employer reporting and what employers should change in 2017.
Wednesday, Nov. 2
1:30 - 3 p.m.

Alison Alpert and Joseph Sanchez
"You Can't Say That! Free Speech Issues In Public Employment"
Public employees’ right to free speech is more limited than that of the general public. Whether or not a public employer may take disciplinary action against an employee for speech-related conduct, however, is based on a developing body of case law that provides certain balancing tests and guidelines to determine if the speech is protected under the First Amendment. In this session, you’ll learn how you can legally address employee speech that impairs your agency's mission. The session will also highlight issues involving free speech in cyberspace, union speech, and special rules involving high-level policymakers.
Wednesday, Nov. 2
3:30 - 5 p.m.

Arlene Prater
"Severance and Last Chance Agreements: How to Negotiate and Draft Agreements That Comply With the Law and Protect Your Agency"
Drafting an agreement that best protects your agency, is acceptable to employees’ representatives, and complies with current legal standards can be a challenge. This session starts with an introduction to the benefits of using these agreements and then covers specific provisions and standards, such as complying with recent EEOC and NLRB enforcement actions, restrictions on employment and employee behavior, Public Records Act and Brown Act requirements, waiving due process rights, and use for creative resolutions of discipline and layoff disputes.
Thursday, Nov. 3
10:30 a.m. - Noon

Alison Alpert
"When an Employee Says, 'I’ve Got My Medical Marijuana Card,' What Can an Employer Do?"
Medical marijuana is in the news. As many states, including California, pass laws for the legal use of medical marijuana, employers are left questioning their drug use policies. Explore this important issue in light of federal and state law and existing employer policies. You’ll learn whether an employer can discipline an employee for off-hours and off-site use or influence, when it is pursuant to a valid prescription, or for off-hours and off-site recreational use, whether employers can still lawfully implement zero-tolerance drug use policies, and whether medical marijuana use must be accommodated. You’ll also learn how employers might accommodate medical marijuana use, if they choose. Learn what should be included in your policies to ensure that any discipline will be upheld on appeal, and leave this session feeling relaxed, knowing you’ve learned how to comply with the law.
Thursday, Nov. 3
3:30 - 5 p.m.

When
Tuesday, Nov. 1 - Friday, Nov. 4

Where
Portola Hotel & Spa at Monterey Bay
Two Portola Plaza
Monterey, CA 93940

and

Monterey Marriott
350 Calle Principal
Monterey, CA 93940

For more information or to register, click here.

2016 PELRAC Annual Conference

27 Sep 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 Public Employer Labor Relations Association of California Conference in San Diego, Calif.

BB&K Speakers
Arlene Prater: “Severance Agreements and Last Chance Agreements – How to Negotiate and Draft Agreements That Comply with the Law and Protect Your Agency”
Wednesday, Sept. 28
10:15 - 11:45 a.m.

Alison Alpert: “When Your Employee Says, ‘I’ve Got My Medical Marijuana Card’ What Can an Employer Do?”
Wednesday, Sept. 28
2:45 - 4 p.m.

When
Tuesday, Sept. 27 - Thursday, Sept. 29

Where
Handlery Hotel
950 Hotel Circle North
San Diego, CA 92108

For more information or to register, click here.

New Legislation Impacts Special Parcel Taxes, Community Facilities Districts, and Notices for Property-Related Fees

22 Sep 2016 00:00:00 -0800

Three new laws require local agencies to comply with new notice requirements for special parcel taxes, publication of annual reports on community facilities district special taxes, and retention of any written protests to any new or increase in any existing property-related fee or charge. The new laws are contained in Assembly Bills 2476, 1666 and 2801. Public agencies are required to comply with these new requirements beginning Jan. 1.

Assembly Bill 2476

AB 2476 adds section 54930 to the Government Code and requires a local agency to provide notice of a new parcel tax to an owner of a parcel affected by the new tax if that owner does not reside within the jurisdictional boundaries of the taxing entity. The notice must contain certain information, including: 1.) the amount or rate of the parcel tax in sufficient detail to allow the property owner to calculate the amount of the tax to be levied against the owner’s property; 2.) the method and frequency for collecting the tax; and 3.) the telephone number and address of an individual, office or organization that interested persons may contact to receive additional information. The form of the notice is included in the legislation. A copy of the bill may be obtained by clicking here.

Assembly Bill 1666

The Mello-Roos Community Facilities Act of 1982 authorizes the formation of a community facilities district to finance various facilities and services. The Act requires a community facilities district formed after Jan. 1, 1992 to prepare an “Annual Report,” if requested by a person who resides or owns property in a CFD, and within 120 days after the last day of each fiscal year. The report contains information regarding the activities and finances of the CFD. The Act also requires local agencies to report information regarding the sale of bonds to the California Debt and Investment Advisory Commission. Other existing law requires each county, city and special district that assesses a parcel tax to provide specific information to the State Controller in connection with reports compiled and published by the Controller on the financial transactions of those entities.

AB 1666 adds section 53343.2 to the Government Code and requires local agencies that have a website to prominently display on the website a copy of the annual report, if requested, a copy of the bond sale report to CDIAC and a copy of the report to the State Controller within seven months after the last day of each fiscal year of the CFD.Local agencies that impose CFD special taxes should consider amending their reporting procedures to reflect this new change in the law. A copy of the bill may be obtained by clicking here.

Assembly Bill 2801

California Constitution article XIII D, section 6 (commonly referred to as Proposition 218) generally requires that any local agency proposing to impose a new or increase an existing property-related fee must provide written notice by mail to the record owner of each parcel upon which the fee will be imposed and hold a public hearing not less than 45 days after the mailing of the notice. If a majority of property owners send written protests to the new fee or increase, the fee may not be imposed. The Proposition 218 Omnibus Implementation Act (Government Code section 53750, et seq.) prescribes certain procedures and parameters for local jurisdictions to comply with article XIII D, including that one written protest per parcel, filed by an owner or tenant of the parcel, is counted in calculating a majority protest to a proposed new or increased property-related fee. AB 2801 amends Government Code section 53755 and requires that any written protests submitted to a local agency be retained by the local agency for a minimum period of two years following the date of the public hearing. Local agencies that impose property-related fees should consider amending their records retention schedules to reflect this new requirement. A copy of the bill may be obtained by clicking here.

If you have any questions about this legislation or how it may impact your agency, please contact the attorney author of this Legal Alert listed to the right in the firm’s Public Finance 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.

MOUs, LPAs, NDAs, and Other Prenups: Can't We All Just Get Along?

16 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Seth Merewitz will serve as a panelist at the Southern California Association of NonProfit Housing Conference. The topic will be "MOUs, LPAs, NDAs, and Other Prenups: Can't We All Just Get Along?" The panelists will provide best practices and offer general suggestions.

When
Friday, Sept. 16
1:30 - 3 p.m.

Where
JW Marriott @ LA Live
900 W. Olympic Blvd.
Los Angeles, CA 90015

For more information or to register, click here.

California Appellate Court Holds Police Video of Arrest Not Protected Under “Pitchess”

21 Jul 2016 00:00:00 -0800

The California Court of Appeal has ruled in City of Eureka v. Superior Court (Greenson) that a police “dash cam” video of an arrest does not become a protected “police personnel record” under Pitchess just because it might later be used by the police department in connection with a citizen complaint against an officer related to that arrest. The court made clear that only a record generated as part of an internal investigation is protected by Pitchess, not a record or recording considered in that process.

The growing use of video cameras in police work, including automobile dashboard-mounted cameras in patrol cars and police body-worn cameras, has generated widespread interest in public access to this often compelling evidence. Balanced against the interest in public access are concerns for the privacy rights of those involved in the incidents captured on video, including suspects, witnesses, bystanders and the police themselves.

In December 2012, Eureka police officer Laird and other officers arrested a minor, identified as H.M. The minor’s arrest involved a chase and concluded with the minor either falling or being taken to the ground. Some of the activity was captured on the police car’s dashboard video camera. The minor was charged in the Juvenile Court, but that charge was dropped. Then, a citizen lodged a complaint regarding the officers’ handling of the arrest of the minor, leading to a statutorily required police internal investigation. As that was in process, the district attorney charged Laird with misdemeanor assault on the minor and making a false report. After prosecution and defense experts reviewed the video of the arrest and concluded that Laird acted reasonably, the prosecution dropped the case against the officer.

Seven months later, Greenson, a local reporter who had written stories concerning the incident and its aftermath, filed a request with the City under the Public Records Act (Government Code § 6250) to obtain the video. The City declined the request citing the personnel file and investigative record exemptions under the Act. Greenson then turned to the Juvenile Court seeking the video in its file under a provision of the Welfare & Institutions Code authorizing limited disclosure of juvenile records. The County Probation department objected and the City joined in this judicial process and asserted the confidentiality of the video under the protection provided by Pitchess process for “police personnel records.” The minor waived his right to confidentiality of the video, removing that particular consideration. The court eventually ordered the video released, ruling that it was not a confidential “police personnel record” under Pitchess. The City appealed.

The appellate court upheld the lower court’s ruling that the video was not a confidential “police personnel record” protected from disclosure under Pitchess. The court pointed out that just because the video became part of the internal investigation or was used as part of that investigation did not convert it into a confidential “police personnel record.” Rather, the video was part of the initial incident report that led to the charge against the minor and later the charges against the officer.

Notably, the appellate court did not address the City’s Public Records Act exemption, because that was not raised and considered by the court below.

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.

IRS Extends Deadlines for 2015 ACA Reporting

30 Dec 2015 00:00:00 -0800

The IRS has extended the deadlines for information reporting by employers and coverage providers as required under the Affordable Care Act. Notice 2016-4, issued Monday, applies only to reporting for the 2015 calendar year, for which information returns are furnished and filed in 2016.

Information returns are required to be furnished to individuals and filed with the IRS to report (i) enrollment in minimum essential coverage, and (ii) offers of coverage by applicable large employers (i.e., employers with 50 or more full-time employees, including full-time equivalents) to full-time employees and their dependents. Generally, information returns supplied to individuals are due by Jan. 31 and returns to the IRS are due by Feb. 28 (or March 31 if filing electronically) following each calendar year. If these dates fall on a weekend or holiday, they are extended to the next business day.

The IRS has extended these deadlines for 2015 returns only. The extended deadlines are:

No further extensions for 2015 reporting will be granted, and employers or other coverage providers that do not comply with these extended due dates may be subject to penalties for failure to timely furnish and file the information returns.

For more information on ACA reporting requirements, please contact the author of this Legal Alert listed at right in the firm’s Business Services 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.

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 certify a class of California Uber drivers in their lawsuit claiming Uber has misclassified them as independent contractors rather than employees has numerous potential impacts on both private and public employers. The decision is a big win for Uber drivers, allowing them to proceed with the class action on their core claims, which provides them much greater leverage in any efforts to settle the case. There is also the possibility that regulatory considerations for the sharing economy will be affected based on this case.

An ultimate finding that drivers are employees rather than independent contractors would have massive effects on Uber’s business model, forcing it to comply with minimum wage, overtime and meal and rest break laws, to pay payroll taxes, to obtain workers’ compensation coverage, and to potentially provide benefits. A decision that drivers are employees would also grant the employees the right to unionize, as well as the right to seek reimbursement for both mileage and tips. The decision follows the June ruling by a California labor commissioner that a single Uber driver was an employee.

Beyond its implications for Uber itself, this decision highlights the potential for other class actions based on independent contractor misclassifications throughout the sharing economy. Many sharing economy businesses rely on workers that they classify as independent contractors, to keep costs low and valuations high. While no company has done this to the same extent as Uber (which is currently valued at $50 billion), the fact remains that the cost of doing business in the sharing economy will greatly increase if these companies are required to treat their workers as employees. A classification of the workers as employees would also extend additional protections and benefits, including protection under antidiscrimination statutes, application of the full scope of state and federal labor laws, and even a requirement to provide paid sick leave under California’s new sick leave law.

For more information about this decision and how it may relate to your agency or business, contact the attorney authors of this Legal Alert listed at right in the Labor and Employment and Municipal Law practice groups, or your BB&K attorney.

First Amendment Protects Public Employees for Sworn Testimony Given Outside Scope of Regular Job Duties on Matters of Public Concern

26 Jun 2014 00:00:00 -0800

The First Amendment protects a public employee from adverse employment action taken in retaliation for providing truthful sworn testimony, compelled by subpoena, outside the course of the employee’s ordinary job responsibilities, the U.S. Supreme Court ruled in a unanimous decision.

The case arose from a corruption scandal involving Community Intensive Training for Youth, a program for underprivileged youth operated by Central Alabama Community College. Edward Lane was CITY’s director. While conducting an audit of CITY’s expenses, Lane discovered that Suzanne Schmitz, an Alabama state representative on CITY’s payroll, had not been reporting for work. Lane terminated Schmitz’ employment.

Federal authorities later indicted Schmitz on charges of mail fraud and theft. Lane testified under subpoena regarding the events that led to his terminating Schmitz. Schmitz was convicted and sentenced to 30 months in prison. CACC’s president, Steve Franks, then terminated Lane in a claimed effort to address financial difficulties within the CITY program.

Lane sued Franks in his individual and official capacities under 42 USC section 1983, alleging that Franks violated the First Amendment by firing him in retaliation for testifying against Schmitz. The Eleventh Circuit held that Lane’s testimony was not entitled to First Amendment protection, and affirmed the trial court’s summary judgment for Franks. The Supreme Court granted certiorari to resolve what it perceived as discord among the Courts of Appeal.

The Court applied the balancing framework articulated in Pickering v. Board of Education to weigh the interests of the employee, as a citizen, in commenting upon matters of public concern against those of the State, as an employer, in promoting the efficiency of its public services. The Court noted that its previous holding in Garcetti v. Ceballos distinguished between “employee speech” and “citizen speech” in public employment. Garcetti held that the First Amendment does not insulate public employees from employer discipline for statements made pursuant to their official duties.

Lane’s situation, the Court reasoned, was different. The giving of truthful testimony under oath was protected “citizen speech” because it was outside the scope of his normal job duties — even though the testimony related to his public employment and information he derived from that employment. The Court further opined that Lane’s testimony involved a matter of significant public concern: corruption in a public program and misuse of state funds.

The Court found that CACC had not come close to filling the employer’s side of the Pickering scale. CACC presented no evidence that Lane’s testimony was false, disclosed sensitive information, or otherwise justified treating Lane differently than any other member of the public. Thus, the Court held that Lane’s “citizen speech” was entitled to First Amendment protection.

The Court went on to decide that the claims against Franks in his individual capacity should be dismissed based on qualified immunity. The Court concluded that conflicting legal precedents among the Courts of Appeal did not preclude Franks from holding a reasonable belief that CACC could fire Lane for testifying in the criminal proceeding against Schmitz. The Court ruled, however, that Lane had a viable section 1983 claim against Franks and his successor in their official capacities and remanded the case to the lower court for further proceedings.

If you have any questions about this case or how it might impact your agency, please contact one of the attorney authors of this legal alert listed at right in the firm’s Labor & Employment or Municpal Labor and Employment practice groups, or your BB&K attorney.