Best Best & Krieger News Feed

Request to Hear Police Video Case Denied by California Supreme Court

02 Nov 2016 00:00:00 -0800

The California Supreme Court has decided to not reconsider a recent appellate ruling establishing a statewide precedent that police arrest videos cannot be considered confidential officer personnel records, and thus that they cannot be shielded from public view. The Court’s decision relates to an ongoing battle between the City of Eureka and the North Coast Journal over public access to video depicting the arrest of a 14-year-old suspect that led to criminal excessive force allegations against an officer.

The decision by the Supreme Court simply declined to de-publish the previous ruling in the case, meaning the appellate court’s decision stands and can be cited as precedent going forward. The appellate court concluded that video of an arrest captured by a patrol car’s dashboard camera is not a confidential “personnel” record, and thus is not protected by Pitchess statutes. As a result, the court ordered a portion of the arrest video in question be released to a local reporter.

The court determined video footage of an arrest is not information traditionally considered subject to a Pitchess motion, such as confidential citizen complaints and any internal investigations of an officer, but rather is information which would form the basis of a criminal complaint against an officer. Because an arrest video does not relate to an officer’s “advancement, appraisal, or discipline,” it is not a “personnel record” for purposes of Pitchess statutes. The court held only records generated in connection with appraisal or discipline are protected from disclosure, not records that may eventually result in appraisal or discipline. Thus, though an arrest video may lead to an internal investigation, only records produced as part of any investigation would be protected by Pitchess statutes.

The appellate court expressed no opinion on whether the arrest video would be considered a public record under the California Public Records Act, leaving that an open question for the moment.

This case narrows the options of a law enforcement agency seeking to keep video taken in the field from disclosure. While the case itself arguably furthers efforts to promote transparency in law enforcement, the widespread effects of holding these records are not protected by Pitchess statutes remains to be seen. Law enforcement agencies can no longer claim these records are part of a confidential personnel record — yet footage taken by dashboard or body worn cameras may still be exempt from disclosure under the Public Records Act or other provisions of California law. Prior to disclosing any record that may contain sensitive or confidential information, law enforcement agencies should seek advice from their attorneys to determine the best course of action. Compliance with Public Records Act requests must be carefully conducted and scrutinized, both to ensure complete disclosure and to assure that material covered by legal privileges or otherwise exempt from disclosure under the Act is not inadvertently disclosed.

For more information regarding this new decision and how it impacts your agency or public safety department, please contact the attorney author of this Legal Alert listed at the right in the firm’s Public Safety 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.

LCC Annual Conference

05 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 League of California Cities’ Annual Conference in Long Beach, Calif.

BB&K Speakers

Ruben Duran: “Understanding Public Service Ethics Laws and Principles (AB 1234 Training)”
Wednesday, Oct. 5
9 - 11 a.m.

Alisha Winterswyk: “Complying with CEQA, Brown Act, and Other Public Noticing Requirements”
Thursday, Oct. 6
8 - 9:30 a.m.

Ryan Baron: “Energy Reliability: Understanding the Natural Gas and Electricity Nexus”
Thursday, Oct. 6
Noon

Gail Karish and Christy Marie Lopez: “The Advance of Wireless Infrastructure”
Thursday, Oct. 6
4:15 - 5:30 p.m.

Isabel Safie and Katrina Veldkamp: “Reducing Pension and OPEB Costs”
Thursday, Oct. 6
4:15 - 5:30 p.m.

Jordan Ferguson: “What Municipalities Can Do About the Coming Drone-pocalypse”
Friday, Oct. 7
10:30 - 11:45 a.m.

When
Wednesday, Oct. 5 - Friday, Oct. 7

Where
Long Beach Convention Center
300 E Ocean Blvd
Long Beach, CA 90802

For more information or to register, click here.

California Appellate Court: Possession of Documents Requested Under Public Records Act Does Not Render Request Moot

05 Jan 2016 00:00:00 -0800

When a party is seeking release of documents under the California Public Records Act, a public agency can’t deny the release based on the party’s already having possession of the information, a state appellate court has ruled. In Caldecott v. Superior Court of Orange County, published Dec. 21, the Fourth District Court of Appeal in Orange County considered an employee’s lawsuit to obtain records from his former public school district employer under the PRA.

John Caldecott requested documents relating to his complaint for wrongful termination against Newport-Mesa Unified School District. The District denied the request on the grounds it was moot because Caldecott already possessed the documents sought and that the documents sought were not subject to disclosure because they were privileged.

As to mootness, the lower court denied the PRA request on the grounds that Caldecott already possessed the documents. Caldecott argued that a court order was necessary because the school had maintained that the documents were confidential and could not be released. The court agreed with Caldecott and clarified that “[t]he issue is not his current possession of the documents. [Caldecott] seeks the documents so he has the ability to publicly promulgate them without fear of any liability for doing so.” Based on this reasoning, the court concluded that possession of copies is not necessarily a basis to withhold documents, and therefore, the request was not moot. Because the exception for disclosure of personal records contains a balancing test, the court then proceeded to balance the director’s privacy interests in his personnel file against the public’s interest in assessing serious misconduct allegations. It found that in this particular case, the public interest was greater.

As to privilege, the District cited three different privileges: 1.) deliberative process privilege, 2.) official information privilege and 3.) attorney-client privilege. Applying a balancing test, the court dismissed the first two privileges, finding that the interest in disclosure of these records substantially outweighed the privileges. The deliberative process privilege is a limited privilege that protects the mental processes, discussions, and opinions of public officials in reaching a particular conclusion regarding government policy. The official information privilege protects information officials obtain in confidence in the course of performing their duties. The court concluded that any official information contained the documents is subject to disclosure because of the public’s right to know how senior administrators are performing is not confidential. The court left the door open as to the potential applicability of the attorney-client privilege and tasked the lower court with making that determination by returning the case to the Orange County Superior Court.

This case continues the trend favoring access to public records. Because the PRA disregards the motive of a particular requester, it may be used as a litigation tool. Case law already permits the use of the PRA to obtain documents to sidestep discovery requirements and timelines. Once obtained under the PRA, a requester may subsequently publicly disseminate documents with impunity. The decision also demonstrates that the courts will narrowly construe the reasons for denying access.

For more information about this decision and how it may impact your agency, contact the authors of this Legal Alert listed at right in the firm’s Public Policy and 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.

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.

Webinar: Best Practices in Agenda Preparation and Minutes

09 Apr 2015 00:00:00 -0800

Best Best & Krieger LLP Partner Kara Ueda will present “Best Practices in Agenda Preparation and Minutes,” a California Special Districts webinar. Agendas and minutes drive the various meetings special district staff and elected officials participate in regularly. Understanding the essential and required components in agendas and how you can assist with agenda items is a key function for staff. Accurately recording minutes at meetings is also a critical function as they serve to reflect the general discussion and action taken at a meeting as well as being historical documents for the district. In this webinar, attendees will learn some best practices and legal requirements as they relate to agendas and minutes.

When
Thursday, April 9, 2015
10 – 11:30 a.m.

For more information or to register, click here.

An Administrative Guide to Public Law: Applying California Law to Daily Procedure

25 Feb 2015 00:00:00 -0800

This half-day training will address the statutory duties of public agency filing officers, officials, and support staff including Form 700 Statements of Economic Interests (SEIs), conflict of interests codes, public meeting agendas, Public Records Act requests and more.

This informative training will discuss the Brown Act, the California Public Records Act and the Political Reform Act, identifying:

Legislative & Regulatory Changes
General Rules - What's Your Role?
- How to Respond to Requests
- When to Involve Legal Counsel
Guidelines - Notices, Fines & Waivers
Reviews - Facial vs. Full
- What to Look For
- Common Errors/Misconceptions
Public Access - Violations

Who should attend:

Filing officers and their assistants(includes board secretaries, city clerks, deputy city clerks, executive assistants, administration and anyone else handling these matters on a daily basis) for:
- Cities
- Counties
- School Districts
- Special Districts

When:
Wednesday, Feb. 25
8:30 a.m. - Check-in and pastries
9 - Noon - Training

Where:
The training will be held at BB&K offices throughout California. When you register indicate where you will attend the training.

Per Person Cost: $100
Clients who are paid participants in the Pulic Policy & Ethics Program will receive the discounted price of $75 per person.

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.

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.

Conflict law doesn't apply to UC faculty

08 Sep 2014 00:00:00 -0800

Government Code Section logo is the far-reaching and powerful anti-conflict provision that prohibits state, county, district and city officers and employees from having a financial interest in any contract made by them in their official capacity. Violation of the law is a felony offense, results in disqualification from office, and invalidates any contract except as to the interested party who bears the burden of loss incurred or disgorgement of any proceeds or profits from the contract being void.

Michael Lofchie was a faculty member and department chair at UCLA. In 2008, he taught a summer session abroad course and participated in a decision to hire his wife as a program assistant, a position paving 53,100, plus per diem. The Los Angeles district attorney charged Lofchie with a felony violation of Section toga because he was "financially interested" in his wife's pay and was involved in the decision to hire her.

Lofchie brought a motion to dismiss the charge, contending that the University of California's unique constitutional status prevented its employment practices from being regulated by Section logo; that Section logo does not apply to a UC professor as a state employee; and that a more specific employment statute, Public Contract Code Section 10516, preempts application of the more general Section logo. 'The trial court granted Lofchie's motion to dismiss the charge and the district attorney appealed.

In People v. Lofchie, 2014 DJDAR 11952 (Aug. 27, 2014), the Court of Appeal affirmed the dismissal of the Section logo charge. The court noted that state Constitution, Article IX, Section 9, establishes the University of California as a "public trust," which the courts have construed as giving the regents broad powers to organize and govern the UC and limits the Legislature's power to regulate through the general laws ¬providing the UC with general immunity from legislative regulation. The only exceptions, which are contained in the enabling constitutional provision, are to ensure the security of its finds, the use of endowments, and to require competitive bidding processes. The courts have further held the Legislature may (i) affect appropriations to the UC, (2) apply the general police powers to the LTC, such as workers compensation laws, and (3), apply legislation regulating public agency activity, not generally applicable to the general public, related to matters of statewide concern not involving internal university affairs.

Click here to read the entire article published on Sept. 8, 2014 in the Daily Journal’s Development Supplement (subscription required).

When are Individuals Providing Services Considered Consultants for Disclosure Purposes?

03 Jan 2014 00:00:00 -0800

A recent advice letter by the Fair Political Practices Commission (FPPC) provides additional guidance to public agencies for classifying consultants in human resources or administrative positions. Anyone providing services under a contract that makes governmental decisions or serves in a staff capacity and participates in making governmental decisions is considered a consultant. The consultant would therefore fall under the jurisdiction of the agency’s conflict of interest code and must file appropriate disclosure statements. Many agency services and positions are now outsourced and contracted which means positions within each vendor may need to be analyzed to determine the requirement to file a statement of economic interests.

In contrast, employees of a contracted firm who implement decisions already made by the agency or its employees would not be considered consultants and are not required to file disclosure statements. However, employees of a contracted firm making executive decisions concerning human resources matters on behalf of the agency, such as hiring decisions, deciding what health benefits to offer or approving contracts on behalf of the agency, would need to be designated as consultants and required to file disclosure statements.

Examples of outside personnel duties requiring designation as a consultant under the agency’s conflict of interest code:

Hire an outside attorney to represent agency in personnel issues
Select and purchase software for agency for use in payroll and HR administration
Select benefits packages offered to agency employees, including determining what kind of benefits to provide or which providers to utilize
Participate as part of agency’s executive management team
Approve health benefit claims

Examples of outside personnel duties not requiring consultant designation:

Payroll administration
Administration of employee benefits
Processing new agency hires or separation of employees
Implementing authorized employee overtime
Preparation of salary or benefits surveys for consideration by government agency

For more information regarding consultant designation as it relates to your agency’s conflict of interest code and disclosure requirements, please contact one of the attorney authors of this legal alert listed at right in the Municipal Law practice group, or your BB&K attorney.

New Laws Affecting Public Agencies in California

25 Nov 2013 00:00:00 -0800

During the 2013 legislative session, Gov. Brown signed into law new legislation affecting California public agencies, most of which will go into effect in less than six weeks. For more information on any of the new laws below, click on the title to view the full legal alert or article and contact the attorney author or your BB&K attorney.

AB 44 - Assembly Bill 44 Requires Submission of Subcontractors' License Numbers in Public Construction Bids
Effective July 1, 2014.

AB 218 and AB 556 – Two New California Laws Will Affect Hiring and Fair Employment Practices
AB 218 effective July 1, 2014
AB 556 effectiveJanuary 1, 2014.

AB 354 - Local Ballots Must Identify Whether Measures Are Proposed By Public Agency
Effective January 1, 2014.

AB 409 – FPPC to Establish Electronic Filing and Public Disclosure System for Statements of Economic Interests
AB 409 was effective immediately.

AB 562 – Cities and Counties Must Provide Report Before Approving Economic Development Subsidies to Businesses
Effective January 1, 2014.

AB 1090 - New California Law Authorizes FPPC to Provide Advice or Opinions, Investigate and Enforce Violations of Government Code Section 1090
Effective January 1, 2014.

AB 1149 and SB 49 - New Law Requires Local Public Agencies in California To Notify Anyone Affected by a Security Breach
Both laws effective January 1, 2014.
To read a more detailed article authored by BB&K attorneys, click here.

SB 7 – Controversial New Law Conditions State Funding on Charter City Compliance With State Prevailing Wage Law for Locally Funded Projects
Effective January 1, 2015, unless the contract was advertised for bid prior to that date.

SB 510 – New Law Gives Local Agencies the Power to Reject Mobile Home Park Conversions
Effective January 1, 2014.

SB 553 – New California Law Establishes Additional Requirements for Conducting Elections Involving Stormwater and Flood Control Service Fees
Effective January 1, 2014.

SB 594 – New California Law Further Restricts Nonprofit Organizations From Engaging in Campaign Activity
Effective January 1, 2014.

SB 743 - CEQA Reform: The Third Rail of California Politics
Article examining the challenges of CEQA reform and what laws passed.
Effective January 1, 2014.

SB 751 - New Law Requires Public Report on Action and Vote of Each Member in Open Sessions
Effective January 1, 2014.