Best Best & Krieger News Feed

BB&K Attorney Irene S. Zurko Honored by IMLA

19 Apr 2016 00:00:00 -0800

For Immediate Release: April 18, 2016

Media Contact: Denise Nix • 213.787.2552 • denise.nix@bbklaw.com

WASHINGTON, D.C. – Best Best & Krieger LLP is pleased to announce that Irene S. Zurko, an associate in the Municipal Law practice group, received an Amicus Service Award from the International Municipal Lawyer’s Association. She was honored on Friday during the organization’s Mid-Year Seminar in Washington, D.C.

The Awards go to lawyers who are actively involved in legal advocacy for, and on behalf of, local governments and IMLA, and who have done “exemplary work to protect and advance local government interests,” according to the organization. Zurko was recognized for her amicus work on behalf of IMLA in the Ardon v. City of Los Angeles case. In March, the California Supreme Court reversed a lower court ruling and found that a public agency’s inadvertent disclosure of privileged documents under the Public Records Act does not waive the privilege.

“This was an important ruling for local governments that often struggle to meet the needs of the public’s PRA requests while overcoming challenges, including short deadlines, voluminous requests and limited staffing.” said BB&K Partner Jeffrey Ballinger, who leads the firm’s Municipal Law practice group. “Irene’s diligent efforts on behalf of these agencies gave them some much-needed protection.”

Zurko litigates on behalf of cities and other public agencies. Her practice emphasizes civil appeals. She is a graduate of the University of California, Davis School of Law.

###

Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.

Inadvertent Disclosure Does Not Waive Exemptions/Privileges Under the PRA

18 Mar 2016 00:00:00 -0800

A public agency’s inadvertent disclosure of privileged documents under the Public Records Act does not waive the privilege, the California Supreme Court has opined, reversing a lower court’s decision.

The Court’s opinion, issued Thursday, gives some much needed breathing room to public agencies struggling to make records “promptly available” while dealing with numerous, and often vague, requests for large numbers of documents. This decision ensures that public agencies will not be forever prejudiced by the accidental disclosure of exempt records.

The ruling comes in Ardon v. City of Los Angeles. The lawsuit stems from the City’s inadvertent disclosure of privileged documents in response to a request under the PRA made by an attorney representing Estuardo Ardon, who sued the City over a telephone users tax. The records disclosed included documents protected by the attorney-client privilege. The City demanded that the attorney return the documents and agree not to rely on them. The attorney refused, contending that the City had waived any claim of privilege by disclosing the records.

The City had argued that inadvertent disclosure of privileged documents under the PRA does not waive the privilege and supported its argument with case law that protects privileged documents inadvertently disclosed during civil litigation discovery. However, the California Appellate Court disagreed and drew a clear distinction between civil discovery and the PRA. The Supreme Court concluded that the PRA’s waiver provision applies to intentional, not inadvertent, disclosures of records protected by the PRA’s exemptions.

For more information on the this opinion and how it may affect your agency, please contact one of the 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.

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.

Public Records Request Panel

24 Feb 2016 00:00:00 -0800

Best Best & Krieger LLP attorney Gary Schons will particpate on the "Public Records Request Panel" during the California District Attorney Association's "National Body Cam Technology & Policy Summit and Expo."

When
Wednesday, Feb. 24
3:30 - 5:30 p.m.

Where
Hyatt Regency Orange County
11999 Harbor Blvd.
Garden Grove, CA 92840

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.

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 ACLU v. Superior Court of Los Angeles County, the ACLU submitted a PRA request for policies and guidelines concerning the use of ALPR technology, as well as for all data collected by ALPRs used by both the Los Angeles Police Department and the Los Angeles County Sheriff’s Department during a single week in August 2012. The LAPD and LASD refused to produce the data, citing the law enforcement investigative records exemption and privacy concerns. The ACLU sued for disclosure, and both the trial and appellate courts found that the investigations exemption applies to all data collected by ALPRs.

This case confirms that law enforcement agencies are not required to release ALPR data following PRA requests. More importantly, it may provide an indication of how courts will treat similar data systemically collected by law enforcement agencies, such as footage from body worn cameras or drones used for surveillance. Because these technologies are used to further police investigations into whether a crime has been committed, and because the exemption is in no way limited to investigations that are still ongoing, this case serves as a strong argument that these types of data will not be subject to disclosure under the PRA, preserving the ability of law enforcement officers to use these tools without fear of disclosure harming their investigations, or the privacy of those whose data may be recorded.

The ALPR systems in place record all plate scan data, whether or not there is a hit off the hot list, and retain that data for up to five years for use in future investigations. The LAPD estimates it records plate scan data for approximately 1.2 million cars per week, while LASD estimates between 1.7 and 1.8 million. Both policies restrict access to plate scan data to use for law enforcement purposes only. The court focused on the meaning of the term “investigations,” determining that the functions performed by the ALPR systems fit within the exemption. The court indicated that the exemption encompasses routine investigations undertaken to determine if a violation of law has, or may have, occurred without distinguishing between investigations to determine if a crime has been committed and those undertaken once criminal conduct is apparent. Further, the court emphasized that the exemption is not limited to “pending investigations,” but covers all investigations by law enforcement agencies.

The ACLU argued that, unlike cases involving requests for documents related to targeted investigations of specific criminal acts, plate scans are not precipitated by a specific criminal investigation, and so ALPRs do not conduct investigations so much as they collect data. The court disagreed, holding that ALPR scans are precipitated by specific criminal investigations—namely, the investigations that produced the hot list against which all scans are checked.

For more information regarding this case or its implications for your agency or public safety department, please contact the attorney author of this legal alert listed at the right in the Public Safety group, 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.

Water District Case Clarifies California Public Records Act Exemption for Utility Customers

16 Apr 2015 00:00:00 -0800

The Public Records Act exempts from required disclosure the identities of commercial, as well as individual, utility customers, according to a recent Riverside County Superior Court decision.

The case, First Amendment Coalition v. Coachella Valley Water District, arose out of CVWD’s denial of a records request for the names, as well as amounts of water usage, for all groundwater customers during the current fiscal year. For several years, CVWD publicly released reports with tables showing, by name, the customers who extracted the most groundwater and diverted the most surface water. The tables consistently showed businesses, including golf courses, as the top water consumers. However, in 2014, CVWD published its report without the table showing the names and usage data of its groundwater customers.

CVWD’s denial of the records request was based on Government Code section 6254.16, which exempts utility customers’ names, addresses and utility usage data from required disclosure under the Act. The plaintiff argued that the purpose of the exemption is to protect the privacy interests of individuals, not commercial entities. However, the trial court agreed with CVWD, stating that the word “customer” in the statute applies to businesses and corporations, as well as individuals.

The case is being closely watched because of the important issues it raises regarding transparency for public utilities during the state’s fourth consecutive year of drought.

The First Amendment Coalition is expected to appeal the decision. Best Best & Krieger represents CVWD in this case.

If you have any questions about this ruling or how it may affect your public agency, please contact the authors of this legal alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney. (A paralegal assisted in the writing, planning and research of this article.)

Attorney Billing Invoices Privileged From Disclosure Under PRA

15 Apr 2015 00:00:00 -0800

Billing invoices sent by an attorney to a client are exempt from disclosure under the California Public Records Act, a California appellate court ruled this week. The court held that, when a government entity declines to disclose records under the Act based on the attorney-client privilege, the inquiry turns on whether there was an attorney-client relationship between the parties to the communication — not on the content of the specific communication in question. The court ultimately determined that attorney-client privilege covers a communication, irrespective of its content.

In County of Los Angeles Board of Supervisors v. ACLU of Southern California, the ACLU submitted a PRA request to the County for invoices specifying the amounts that the County had been billed by any law firm in connection with nine different lawsuits brought by inmates involving alleged jail violence. The ACLU sought the documents to determine what work was being done on the lawsuits, the scope of that work, the quality of the representation and the efficiency of the work. The County maintained that the detailed description, timing and amount of work its attorneys performed would communicate attorney strategy, tactics, thought processes and analysis and was therefore exempt from disclosure under the evidentiary privilege provision of the PRA. The court recognized the tension between the public policies advanced by the PRA and attorney-client privilege, but determined that, because the PRA expressly exempts attorney-client communications, the tension must be resolved in favor of the privilege.

While a public entity opposing disclosure bears the burden of showing the requested information falls within an exemption, the court determined that the County met this burden here. The court examined the legislative history of the attorney-client privilege and found that the privilege was not limited to communicated legal opinions. This means that whether a communication is privileged cannot turn on whether it contains a specific legal opinion. Because the fundamental purpose of the privilege is to safeguard the confidential relationship between clients and their attorneys, it is the relationship that matters, not the specific communication in question. As long as that communication is made in the course of that relationship (and not, for example, legal advice outside the scope of the attorney’s relationship with the client), it retains the privilege.

Compliance with PRA requests must be carefully conducted and scrutinized, both to ensure complete disclosure and that material covered by legal privileges or otherwise exempt from disclosure under the Act is not inadvertently disclosed. This is especially true in the wake of Ardon v. City of Los Angeles, where a California appellate court held that, if a privileged document is accidentally released during compliance with a PRA request, the privilege is waived and the document becomes a public record. Where attorney-client privilege applies, disclosure may be declined. Public agencies should be aware that information that is not otherwise privileged does not now become privileged merely because it is transmitted to or from an attorney. Only information communicated within the course of the attorney-client relationship is exempt from PRA requests.

If you have questions about this opinion or how it will affect your municipality or agency, please contact the attorney authors of this legal alert listed at right in the firm’s Public Policy and Ethics Compliance practice group or your BB&K attorney.

School District Case Clarifies PRA Copying Charges

29 Dec 2014 00:00:00 -0800

A judge has ruled that a California school district’s charging policy for viewing public documents violates the Public Records Act. At issue was Redlands Unified School District’s practice of charging 25 cents a page to copy documents that required redaction before allowing a member of the public to inspect them.

San Bernardino Superior Court Judge Bryan Foster said members of the public should be allowed to inspect the documents for free, but that, if copying is required, the District overcharged for the duplication. If it is necessary to make copies before producing documents under the PRA, Foster said a public agency can charge only for the costs of direct duplication — not the costs associated with reviewing the request or redacting the documents. Foster ordered the District to reduce its copying fee from 25 cents per copy to 10 cents per copy to comply with state law requirements that government agencies charge only for “direct duplication” costs.

Redlands Unified School District has not filed a notice of appeal within the required 60-day period of Foster’s Sept. 29 order that its public records policies violate state law and must be changed. The case does not set precedent, but was closely watched because of the issues it raised.

The lawsuit began when Maia Pawooskar, the mother of a special education student, filed a public records request seeking billing records for an attorney hired to represent the District in an administrative hearing against Powooskar’s son. The District claimed not to have the records she was looking for, so Powooskar expanded her search, and the District produced 11,180 pages of documents.

The District claimed that, because the records contained personal information, they needed to be redacted before Pawooskar could inspect them, and that redacting the documents would require copies to be made. The District did not allow Pawooskar to inspect the documents to decide which documents she wanted to copy. Instead, the District indicated it would charge 25 cents to copy each page — meaning Pawooskar could have paid $2,795 to view the documents.

State law provides that members of the public can inspect documents at no cost; however, if copies must be made, government agencies can charge only for the direct duplication costs and not the “ancillary” costs associated with retrieving, inspecting and handling the documents.

The District stated that its 25 cent rate was based on the fact that senior staff members process the records, and their salaries are higher than those of the employees who operate the copy machine. Foster ruled that this approach is out of line with state law, and ordered the District to reduce the rate to 10 cents per copy.

If you have questions about this ruling, how it will affect your municipality or agency, or the PRA in general, please contact the attorney author of this legal alert listed at right in the firm’s Municipal Law practice group, or your BB&K attorney.