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California Supreme Court Curbs Responses to Anti-SLAPP Motions

10 Aug 2016 00:00:00 -0800

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

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

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

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

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

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

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

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

Who Does What? Best Practices in Board/Staff Relations

02 May 2016 00:00:00 -0800

Best Best & Krieger LLP partners Ruben Duran and Christopher Pisano will present "Who Does What? Best Practices in Board/Staff Relations" during a California Special Districts Association workshop. The workshop will cover applicable laws and best practices for developing positive and effective relationships between elected board members and their staffs, including a discussion of legal standards and practical tips to ensure good and productive government.

When
Monday, May 2
10 a.m. - Noon

Where
McKinleyville CSD
Azealea Hall, Hewitt Room
1620 Pickett Rd.
Mckinleyville, CA 95519

For more information or to register, click here.

It Is Now a Crime to Help a Public Official Make a Contract that Holds Personal Financial Interest

20 Nov 2014 00:00:00 -0800

An amendment to Government Code section 1090 now makes it a felony for any person to aid and abet a government official in violating the conflict of interest provisions of the Code. This amendment, made possible with the passage of SB 952, advances the ability of prosecutors to charge all persons, government officials and others who are knowingly involved in aiding and abetting, or directly participating in the making of a contract in which a government official is financially interested.

During the past session, the Legislature passed SB 952, which Gov. Jerry Brown signed into law, amending the powerful and far reaching statute that prohibits a government official from being financially interested in a contract made in the official’s capacity, or by the agency of which he or she is a member. Section 1090 provides felony criminal penalties, including state prison sentences, fines and a lifetime ban from holding office. Any contract made in violation of this law is void and the government retains all the benefits of the contract while recovering any payments or consideration provided pursuant to the contract.

An earlier appellate decision, D’Amato v. Superior Court, had cast some doubt on whether section 1090 criminal liability could be applied to someone other than a government official under an aiding and abetting theory. In D’Amato, the Court of Appeal held that the Legislature intended that section 1090’s liability extend only to an official having an interest in a contract approved by the body or board upon which he or she sits. This amendment to the statute now supersedes that conclusion.

Now with aider and abettor liability explicitly provided for in section 1090, any person who knowingly engages in activity that aids and abets a public official in participating in the making a contract in which the official is financially interested will have shared criminal liability. This will sweep within the statute those who offer inducements or bribes for legislative action, as the inducement or bribe creates a financial interest in the contract for the public official.

How might this new law apply in the real world? Imagine this scenario based on an actual case: Hub City Solid Waste Services, Inc. v. City of Compton. In this case, the principal of a company seeking to do business with the city provided campaign contributions and hired members of council members’ families with the understanding that the council members will vote in favor of a contract with the company. The council members then voted to approve a contract with the company. Under this scenario, not only the council members, but also the company principal, would be criminally liable under Government Code section 1090.

The new law takes effect Jan. 1.

For more information on this amendment or how it may affect your agency, please contact the attorney author of this legal alert listed at right in the firm’s Public Policy & Ethics Compliance practice group or your BB&K attorney.

Communications From Officials’ Private Cell Phones and E-Mail Not Subject to Public Records Act

28 Mar 2014 00:00:00 -0800

A California Court of Appeal ruled yesterday that public agencies are not required to disclose communications from officials’ private cell phones and e-mail accounts under the Public Records Act (PRA). In the same vein, public agencies have no duty to search officials’ and employees’ private devices and accounts in response to a PRA request. The case of City of San Jose v. Superior Court confirms that agencies cannot be responsible for those records, in part because individual officials and employees are not subject to the PRA. Moreover, agencies have no access to those personal communications.

According to the court, public agencies are free to adopt their own policies regarding access to private communications on public issues. The court also acknowledged broader policy issues in the case, including the public’s right-to-know versus the administrative burdens agencies would face if they were forced to obtain individuals’ private communications. However, the court noted that the Legislature was better suited to address those policy concerns.

The San Jose case was prompted after Ted Smith submitted a PRA request to the City of San Jose asking for “any and all voicemails, emails, or text messages sent or received on private electronic devices” used by the mayor, councilmembers and city staff regarding “any matters concerning the City of San Jose.” The city rejected the request because under the PRA, the city did not “prepare, own, use, or retain” messages from those private devices.

Though a trial court sided with Smith, the Court of Appeal overturned that lower court ruling. In news reports, Smith’s attorney has indicated that his client will petition the California Supreme Court to review the Appellate Court decision.

For questions regarding this case or its implications for your agency, 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.

Best Practices For Compliance With SB 751

29 Jan 2014 00:00:00 -0800

California Senate Bill 751, which went into effect January 1, requires the legislative body of a local agency to publicly report any action taken and the vote or abstention on that action of each member present. This new law seeks to prevent anonymous voting on legislative bodies and to provide the public with the ability to monitor the votes of public officials during the open and public sessions of meetings subject to the Ralph M. Brown Act. Given the limited nature of this bill, questions have started to arise as to what is actually required under the bill. Our conclusion is that it must be clear to the public how individual members of the legislative body voted or abstained on a particular matter. As a result, we offer a few best practices for your consideration:

Confirm under the Government Code, or your agency’s particular primary or special act, the meetings for which your agency is legally required to maintain minutes or other records of proceedings.
Have all minutes specifically state any action taken by a legislative body and the vote or abstention on that action of each member present for the action. If a vote is unanimous, we do not believe that each member’s vote must be announced or included in the minutes. However, if the vote is not unanimous, the public in attendance and the meeting minutes need to be clear regarding how each member voted. This practice should be extended to any meeting of a “legislative body” as defined under the Brown Act*.
Any advisory committees subject to the Brown Act for which minutes are not regularly kept because the committee’s recommendations are simply reported out during the meeting of the agency’s governing body can continue without change. However, the chair or presiding officer of the advisory committee should make it clear to the public in attendance how any particular member voted in the event of a disagreement.
If an agency is considering a controversial matter and the presiding officer believes there will be a split vote, the presiding officer should ensure that the vote is taken in a manner that permits the clerk to maintain accurate records and the public to understand the vote. The presiding officer may do so by announcing the vote of the legislative body after the vote is taken or by taking a roll call vote.
Similarly, public officials should make it clear to the presiding officer/chair and the clerk/secretary when he or she is either voting no or abstaining on a particular matter.

Under existing law, the Brown Act requires all meetings of the legislative body of a local agency be open and public, and all persons are permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided. The Brown Act requires local agencies to report the vote or abstention of every member present for specified closed meetings or for meetings using teleconferencing. The Brown Act also forbids the use of secret ballots when taking actions in public meetings whether preliminary or final. Previously, the Brown Act did not specifically require agencies to report the vote of individual members except for the exceptions stated above.

For questions regarding this new rule or other open meeting 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.

* Legislative body is defined under the Brown Act to include (1) the governing body, (2) any commission, committee, board or other body of the agency, whether permanent or temporary, decision-making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body; or (3) as otherwise defined under Government Code section 54952.

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.

Brown Act Bill May Limit Individual Meetings Between Staff and Legislative Body Members

06 Jun 2007 00:00:00 -0800

The Ralph M. Brown Act (California Government Code Sections 54950 et seq.) (“Brown Act”) requires that meetings of local governmental legislative bodies be “open and public.” Thus, the Brown Act currently prohibits any use of direct communication, personal intermediaries, or technological devices by a majority of a legislative body to develop a collective concurrence as to an action, such as a future vote. (Cal. Gov. Code Section 54952.2(b)).

The Brown Act also prohibits a “serial meeting,” which is a chain of communications, each involving less than a quorum of a legislative body, but which, when linked together, involve a majority of the legislative body members. Last year, in Wolfe v. Fremont, 144 Cal.App.4^th 533 (2006), a California Court of Appeal held that a city manager’s meetings with individual councilmembers to discuss a particular topic, standing alone, could not be the basis for a violation of the Brown Act because such communications did not result in a collective concurrence.

State Senate Majority Leader Gloria Romero has authored a bill, Senate Bill 964 (sponsored by the California Newspapers Publishers Association), which was originally designed to overturn Wolfe, although the most recent version of the bill has been amended so as not to expressly prohibit the type of individual meetings permitted in Wolfe.

However, in its legislative intent section, SB 964 suggests that it is intended to strike down Wolfe in its entirety: “It is the intent of the Legislature that the changes made by Section 3 of this act supersede the court’s holding [in Wolfe, n.6].” (Emphasis added). Thus, if a series of informational briefings between a staff member and a legislative body member is challenged in court, the language in the legislative intent will make it easier for a court to construe SB 964’s language as prohibiting these types of individual meetings.

Currently, there are over 70 cities and public agencies opposing SB 964. If you wish to send a letter to your public agency’s State Assemblymember(s) expressing your opposition to SB 964, we have drafted a sample letter of opposition for your convenience. If you would like a copy of the letter, or assistance in obtaining the names, fax numbers and addresses of your Assemblymember(s), please contact Heather Kenny in our Irvine office at (949) 263-6581.

Best Best & Krieger attorneys will continue to monitor and report on SB 964. For more information on "open and public" meeting best practices, please contact an attorney with BB&K's Municipal & Redevelopment Law Practice Group.

Disclaimer: BB&K eBulletins 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. ©2007 Best Best & Krieger LLP.