Best Best & Krieger News Feed

Ensuring the Financial Health of Your Utility After California's Historic Drought

12 Jan 2017 00:00:00 -0800

As agencies recover from a period of reduced water sales revenues as a result of California's historic drought, several questions remain as to what to expect going forward.

RFC is offering this workshop to help California utilities learn how to develop sustainable financial plans and prepare for California's next drought. Come learn from industry experts:

How to generate sufficient revenue with uncertain sales projections.
A step-by-step approach to developing defensible, cost of service-based rates.
How to be financially prepared for California's next drought.

This session will feature BB&K Partner Kelly Salt, one of California's most well-known authorities on ratemaking law. Kelly works with public agencies on bond and municipal finance matters, rate setting and compliance with Propositions 218 and 26, and drought management and water conservation programs.

REGISTRATION
$40 early-bird, $50 general admission (early-bird ends October 28).

Click Here to Register
Date: Thursday, Jan. 12
Time: 9:30 a.m. - 3:30 p.m.
Location: East Bay Municipal Utility District, 375 11th Street, Oakland, CA 94607
Room: Large Training Room
This session is limited to the first 35 registrants. Ticket sales will end Thursday, Jan. 5.

Are Private E-mails & Text Messages “Public Records?”

09 Dec 2016 00:00:00 -0800

Public agencies in California should prepare for the likelihood that communications on officials’ and employees’ private devices related to the agency’s “conduct of the public’s business” will be subject to disclosure under the state’s Public Records Act. While it is impossible to predict exactly how the California Supreme Court will rule on this issue, questions and comments from the bench during oral argument on Wednesday makes it appear likely the justices will strike down a lower court’s decision. That would mean that such communications are subject to disclosure under the PRA, even if those communications are not retained by or in possession of the public agency.

This “open government” issue has simmered — if not raged — for years. A number of trial courts have found such communications are subject to the PRA. However, in 2014, the Sixth District Court of Appeal held in a published opinion that, because the City of San Jose did not have access to messages on the private accounts and devices of its officials, those records were not “public records” required to be disclosed under the PRA. The California Supreme Court soon after agreed to review that decision. City of San Jose et al. v. Superior Court (Smith) S218066. Public agencies and open government advocates have been anxiously awaiting resolution of the question.

If the discussion during oral argument reveals the thinking the justices will bring to their deliberations, and are a harbinger of their upcoming decision, it appears likely the Court will strike down the appellate court’s decision and hold that such communications are subject to disclosure under the PRA. The Court has 90 days to issue its decision, although it regularly issues opinions within 45 to 60 days of argument.

The Court’s decision will have an immediate impact, as it will be the final word on the subject, and binding on all agencies and courts throughout California. Given the recent history of this issue in the lower courts, it is anticipated that open government advocates and the media will immediately begin to make public records requests for communications on the private devices of officials and employees, if the Supreme Court holds as the tenor of the questions at oral argument seemed to indicate.

Officials and employees should be alerted now to the potential that, within the next two to three months, or less, communications on their private devices related to their agency’s “conduct of the public’s business” (a term that has been broadly construed by the courts) will be subject to disclosure under the PRA. Agency officials should give thought as to how to accommodate privacy and free speech concerns of its officials, employees and constituents; how to account for and “capture” covered communications; how to ensure compliance with the inevitable requests that will be made; how to meet the time constraints of the PRA in this new milieu; and how to address requests for communications for former officials and employees that could still exist.

Best Best & Krieger LLP lawyers are prepared to assist in meeting the legal, policy and procedural compliance challenges, regardless of the result of the Court’s decision in this case. If you have any questions about this case or how it may impact your agency, please contact the attorney authors of this Legal Alert 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.

Claims Resolution Procedure Changes

02 Dec 2016 00:00:00 -0800

Claims resolution procedures for public contracts in California will change under a new law that takes effect Jan. 1. Assembly Bill 626, recently signed by Gov. Jerry Brown, establishes a claims resolution process applicable to any contractor claim, as defined, filed in connection with a public works project for contracts entered into on or after Jan. 1, 2017.

Public Contract Code section 20104, which remains in place and establishes a dispute resolution procedure for local agencies, only applies to public works claims of $375,000 or less; however, AB 626 will apply to all public works claims, regardless of the amount.

Within 45 days of receipt of any claim, AB 626 requires specified public entities to provide a written statement to the claimant identifying the disputed and undisputed portions of the claim. If a written response is not timely issued, the entire claim is deemed rejected. If the claimant disputes the public entity’s response, the claimant may demand a meet-and-confer conference, and any portion of the claim that the parties continue to dispute following the conference is subject to nonbinding mediation.

Payment due on undisputed portions of a claim must be processed within 60 days, and unpaid claim amounts accrue interest at 7 percent per annum. AB 626 also establishes a formal process for subcontractors and lower tier subcontractors that lack standing to assert claims to request the prime contractor to pass through claims, and imposes requirements on the prime contractor with regard to any such requests. AB 626 does not affect other existing claims resolution procedures, such as the Government Claims Act.

Moving forward, this process must be included in the plans or specifications for all public works projects. Best Best & Krieger LLP will issue additional, detailed guidance to clients regarding incorporating these provisions into contract documents. If you have any questions about this legislation or how it may impact your agency, please contact the attorney authors of this Legal Alert, 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.

Draft Plan Released to Establish Permanent Water Conservation Requirements Throughout California

02 Dec 2016 00:00:00 -0800

Urban water agencies would face an increasingly expansive set of water conservation laws and regulations under a new draft plan released Wednesday. The plan, which also addresses water use in agriculture and other sectors, was developed jointly by five state agencies, including the State Water Resources Control Board and the Department of Water Resources. Public comments on the plan are due Dec. 19.

The draft plan was developed in response to Executive Order B-37-16, which Gov. Jerry Brown issued May 9 to address drought preparedness and long-term water conservation. While a number of the draft plan’s provisions would be implemented under already existing authorities, other elements would require either rulemaking by state agencies or new legislation.

During the past two years, water supply agencies have had to deal with challenging emergency water conservation regulations adopted by the State Water Board in the face of a lingering and serious statewide drought. The draft plan moves away from the piecemeal emergency regulatory approach by calling for a new permanent water conservation regime for the State.

A key element involves a requirement that the state’s 410 urban water suppliers meet new water use targets, which would be set locally based on state standards applied to unique local conditions. The proposed new approach is designed to take into account the unique climatic, demographic, geographic and land-use characteristics of each urban water agency’s service area. The Executive Order requires that the new water use targets build on existing statutory requirements that the State achieve a 20 percent reduction in urban water usage by 2020. Under the proposed regime, DWR and the State Water Board would develop new standards by 2020 to address four sectors:

Indoor residential per capita water use
Outdoor irrigation
Water lost through leaks
Commercial, industrial and institutional water use

Local urban water suppliers would calculate their own unique water use targets based on the state standards, and would be required to achieve compliance by 2025. The targets would change each year because, although the standards would be permanent, the targets would be based on variable metrics including population, landscape area and evapotranspiration. The draft plan calls for suppliers to submit annual progress reports to the State, as well as monthly and annual water use data. Suppliers failing to meet their targets could face enforcement actions by the State Water Board.

The draft plan implementing the Executive Order contains a number of other elements, including:

Potential extension of the Board’s current emergency water conservation regulations, which are in effect through February 2017, for an additional 270 days, depending on ongoing drought conditions.
Establishment of permanent monthly urban water use reporting requirements and permanent prohibitions on wasteful water practices, such as hosing down sidewalks, through State Water Board rulemaking.
New measures achieved through rulemaking by several agencies to reduce water lost through leaks.
New legislation requiring urban water suppliers to submit “Water Shortage Contingency Plans” to the State, to conduct a “Five-Year Drought Risk Assessment” every five years, and to submit a water budget forecast annually to the State.
New actions to improve drought preparation among small water suppliers and rural communities.
New legislation placing water use efficiency and drought planning requirements, such as water budgets and water management plans, on suppliers of water to agricultural users.

Comments on the draft plan should be submitted to wue@water.ca.gov no later than Dec. 19, 2016. More information can be found here.

Best Best & Krieger’s attorneys can assist public agency clients in responding to the draft plan. If you have any questions about this draft plan or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Special Districts 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.

Hillsborough Residents File Suit Over Water Rates

02 Dec 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Kelly Salt, who represents the City of Hillsborough, Calif., discussed with reporters a lawsuit filed over water rates. A group of wealthy residents claim the rates and laws intended to encourage water conservation are illegal. In interviews, Kelly said the rates comply with state law.

“The rates are structured to recover the costs of providing more water to those who demand more water,” she told the East Bay Times. “Do they incidentally encourage people to conserve? Yes. They send a price signal.”

Read the entire story, originally posted Nov. 30, 2016 in the East Bay Times, by clicking here.

[VIDEO] Free BB&K Webinar Series: Prop. 64 - Legalized Marijuana: Challenges and Choices

30 Nov 2016 00:00:00 -0800

Free Webinar Series on Proposition 64
On Nov. 8, California voters approved Proposition 64, legalizing recreational use of marijuana. Prop. 64 promises to usher in a new era, with the growth of the recreational marijuana industry and changing attitudes toward marijuana use, and with it, new challenges and opportunities for local governments, regulators, local staff, and the entrepreneurs and landowners who will be vital to the growth of the new industry. For the past several years, Best Best & Krieger has worked hard to keep itself on the cutting edge of marijuana issues, drafting dozens of regulations and working with public agency clients to create marijuana policies that serve their best interests. Now, BB&K is introducing a webinar series to map out this brave new world.

First Webinar - Nov. 30
"The Basics - Cultivating New Regulations and Confronting New Challenges Presented by Marijuana Legalization"
In this first installment, BB&K attorneys Victor Ponto and Jordan Ferguson walked through the Prop. 64 basics: What the law does, what is allowed and not allowed, how local governments can regulate, and the timelines for implementation.

Who Should Attend:

Elected officials
City managers
Planning directors
Finance directors
Police department officials
Fire department officials
Building inspectors
City staff at all levels who may be involved in permitting, enforcement, or policy
Landowners or landlords
HOA members
Entrepreneurs hoping to enter the marijuana industry

When
Wednesday, Nov. 30
10:30 - 11:30 a.m. PST

Click here for questions.

Future Prop. 64 Webinar Topics - Dates to be Announced Soon:

Employer Implications of Prop. 64
Tax and Ballot Measure Implications
Land Use and CEQA Implications
Public Safety Implications

Materials
Prop 64: The Basics - Cultivating New Regulations and Confronting New Challenges Presented By Marijuana Legalization

To view a recording of the webinar, click here.

Bringing Water Together

29 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the ACWA 2016 Fall Conference & Exhibition in Anaheim, Calif.

BB&K Speakers:

Kelly Salt
“Groundwater Sustainability Agency Funding Options”
A discussion of possible groundwater sustainability agency funding options, including Proposition 26, Proposition 218 and other tools being used by those currently forming GSAs. Hear about what the drafters intended possible funding options to be when writing the Sustainable Groundwater Management Act. Get the latest update on how courts interpret the use of Proposition 218 and Proposition 26 for imposing fees and charges. Finally, learn about what current GSAs are contemplating to raise money to form GSAs and prepare groundwater sustainability plans.
Wednesday, Nov. 30
10 - 11:30 a.m.

John Freshman
“ACWA’s Hans Doe Past Presidents’ Breakfast in Partnership with ACWA/JPIA”
After the Elections: What Now? As the dust settles on the 2016 elections, come hear what political insiders have to say about the results. What does it all mean, who are the new players on the scene, and how can you navigate the results?
Friday, Dec. 2
8:30 - 10 a.m.

When
Tuesday, Nov. 29 - Friday, Dec. 2

Where
Anaheim Marriott Hotel
700 West Convention Way
Anaheim, CA 92802

For more information or to register, click here.

Drought Policies, Price of Water Lands in Court

17 Nov 2016 00:00:00 -0800

A group of Hillsborough residents is suing the town over water rate hikes during the drought. Best Best & Krieger LLP attorney Kimberley Hood, representing the town, told the San Mateo Daily Journal: “I think agencies are trying to do the best they can to recoup their costs of service while complying with Prop. 218 and also trying to deal with an unprecedented period of drought.”

“The goal is just to make sure that you’re covering your cost of service and it’s always been clear since Prop. 218 that you can’t be making a profit,” she said. “But the courts have allowed some flexibility in how they [cover costs].”

Click here to read the entire article, which originally appeared in the San Mateo Daily Journal on Nov. 16, 2016.

Urban and Rural: Tying the Partnership Together

16 Nov 2016 00:00:00 -0800

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

BB&K Speakers:

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

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

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

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

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

For more information or to register, click here.

The Future of U.S. Infrastructure and Local Control Amid Post-Election Uncertainty

15 Nov 2016 00:00:00 -0800

Last week, the nation experienced an election unlike any other in history. A major party candidate broke with his party’s governing philosophies, yet led that party to the presidency as well as preserving control of both chambers of the Congress. This week, Congress returns for a lame duck session in which few major votes are expected until December. This may be a good thing as House and Senate leaders are not sure what, if anything, the rank and file are willing to support. We do know that they must fund government beyond a Dec. 9 deadline. It is also highly likely that a major water funding bill will be enacted and signed before the end of the year.

In the next six months, the federal government will remake itself in the Donald Trump promise of economic populism, proactive deregulation and America-first nationalism. The challenge for local governments and special districts will be to align their advocacy messages with these themes for successful outcomes.

Funding for Infrastructure and Job Creation
Both presidential candidates, and their respective parties, agreed that the nation needs a major investment in infrastructure and the domestic jobs such an infusion could create. Both parties also seemed to agree that the way to fund this is to change our tax code such that corporate America would repatriate billions of tax dollars currently sitting offshore. These infrastructure investments are anticipated to fund water, power, communications, and transportation (air and ground) improvements — the life blood of every community!

Opportunity to Advance Local Control
There will also be opportunities for local governments to demonstrate that some current and proposed federal regulations are exercises in preemptive overreach and should be withdrawn or repealed. But local government will have to be vigilant of efforts by corporate America to ride this deregulation wave to preempt local governments’ ability to manage their own communities.

BB&K’s Government Relations Team is Ready to Assist
Best Best & Krieger government relations professionals are well-positioned to help clients identify advocacy and funding opportunities in the year to come, frame their messages to be relevant in this new government environment, and arrange productive meetings with the new policymakers in both Washington, D.C. and Sacramento. Note that visits to D.C. should be scheduled in late-March or later to allow time for the new team to be in place.

For more information on BB&K government advocacy services, please contact the authors of this Legal Alert listed to the right in the firm’s Municipal Law and Government Relations Services practice groups, 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.