Deadline to Present Claims against Public Entities Extended

July 2020
Number 61

In a series of executive orders addressing impacts of the COVID-19 pandemic, Governor Gavin Newsom has extended a statutorily-imposed timeline significant to public entities. The first 60-day extension, which applies to the deadline to file claims against public agencies, was published on March 21, 2020, under Executive Order N-35-20. Then, on May 19th, the Governor issued Executive Order N-65-20 which extended the deadline an additional 60 days. Finally, the deadline was once again extended by 60 days by Executive Order N-71-20 issued on June 30. Accordingly, evaluating the timeliness of claims will require particular attention in the coming months.

These extended deadlines apply to the timeline for presenting a claim against a public entity pursuant to the Government Claims Act found in Government Code section 911, et seq. The Government Claims Act allows a claimant to sue a public entity, including local government agencies, public school districts, and community college districts, after meeting certain procedural requirements. Generally, a claimant must file his or her claim with the governmental entity within six months or one year, depending on the claim, of the “accrual’ (the date of the injury or in some instances the date the claimant learned of the alleged wrongdoing that caused injury to the claimant) of the injury. Due to the multiple extensions and wording outlined by the Executive Orders, the deadline for when a Government Claim is required to be filed is likely unique to the factual situation of the claim. If you receive a claim that could be affected by these Orders, we recommend that you consult with legal counsel immediately in order to preserve your agency’s arguments or defenses.

It should also be noted that none of the Executive Orders modifies the timeframe for a local agency’s response, which must typically occur within 45 days of the submission of the claim. However, the orders do extend the deadlines for the Department of General Services to act on government claims.

If you have any questions regarding responding to a government claim submitted under the extended timeframe, or for more information on issues arising from COVID-19 generally, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Junaid Halani

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court of Appeal Rules that Santa Monica’s At-large Method of Elections Does Not Violate the California Voting Rights Act

July 2020
Number 58

On July 9, 2020, California’s Second District Court of Appeal unanimously held that the City of Santa Monica’s (City) at-large elections do not violate the California Voting Rights Act (CVRA) (Elec. Code, § 14025, et seq.). The CVRA is a state law that allows voters to sue public agencies whose at-large elections may result in underrepresentation of minorities. Pico Neighborhood Association et al., v. City of Santa Monica represents the first time a public agency has successfully defended its at-large method of election when sued under the CVRA. While the case was decided based on the specific facts and record before the court, the decision shows that public agencies can successfully defend a CVRA challenge where there is no evidence of discriminatory intent or effect.

Background

This case’s long history began in 2016 when the Pico Neighborhood Association (Plaintiff) filed a lawsuit alleging that the City’s at-large elections violated the CVRA and the equal protection clause of the California Constitution. In at-large elections, elected officials may reside anywhere within the public agency’s boundaries, and all registered voters in the boundaries may vote for all seats on the governing board. The Plaintiff here argued that the City’s at-large elections prevented Latinos from influencing local elections and diluted their voting power. At the time of the trial, Latinos made up approximately 16 percent of the City’s total population.

On February 15, 2019, the Los Angeles Superior Court issued a judgment in favor of the Plaintiff, holding that the City’s at-large elections violated the CVRA and the California Constitution. As a remedy, the court ordered the City to implement by-district elections. In by-district elections, a public agency is separated into areas (or “districts”), and residents of each area vote to elect a candidate who resides within their specific area. The court also ordered the City to pay the Plaintiff’s attorneys’ fees and costs, estimated at $22 million.

The Appellate Court Rules that the City did Not Violate the CVRA or the California Constitution.

On appeal, a three judge panel from the Second Appellate District unanimously overturned the trial court’s ruling, finding that the City’s at-large method of elections did not violate the CVRA or the California Constitution.

A plaintiff must show five elements to succeed in a CVRA claim:

  1. Membership in a protected class.
  2. Residence in the public agency they are suing.
  3. The public agency uses an at-large method of election.
  4. Racially polarized voting has occurred.
  5. Dilution has occurred.

Here, the parties agreed that the first three elements were met, but disagreed on whether element four, racially polarized voting (meaning there is a difference in the choice of candidates preferred by voters in a protected class and of candidates preferred by the rest of the electorate), and element five, dilution, had occurred. The appellate court’s analysis focused on element five, dilution, eventually holding that no dilution occurred.

The appellate court explained dilution as “the act of making something weaker by mixing in something else,” explaining that “pouring a quart of water into a quart of milk for instance, dilutes the milk to half strength.” The appellate court continued: “this familiar concept applies to electoral results. Many techniques can manipulate a voting system to dilute the ability of particular groups to achieve electoral success.”

After analyzing the history of the City’s election procedures going back almost 75 years, and the City’s prior consideration and rejection of by-district area elections in the 1990’s, the appellate court held that Plaintiffs failed to prove that the City’s at-large elections diluted the votes of Latinos. The appellate court reasoned that the City’s Latino population was not sufficiently large enough to constitute a statistical majority in any potential trustee area. The appellate court concluded that, at most, Latinos would constitute 30 percent of any particular trustee area, and “30 percent is not enough to win a majority and to elect someone to the City Council, even in a district system.” “The reason for the asserted lack of electoral success in Santa Monica would appear to be that there are too few Latinos to muster a majority, no matter how the City might slice itself.” In sum, the appellate court concluded that at-large voting was not to blame for the Latino population’s lack of electoral success. Instead, “small numbers” were.

Additionally, the appellate court found that the City’s at-large elections did not violate the California Constitution because Plaintiff was unable to prove that the City historically implemented at-large elections with the purpose of discriminating against Latinos.

Takeaway

This decision, should it stand after any further appeal, significantly impacts the landscape of CVRA litigation and public agency elections. Most public agencies transition from at-large to by-district elections when threatened with CVRA litigation. Some public agencies make the transition because by-district elections are appropriate for their voters. Other public agencies, however, make the transition in order to avoid incurring significant attorneys’ fees, even if they don’t believe by-district elections are appropriate for their voters, transitioning primarily because at-large elections historically have not stood up to challenge under the CVRA.

This case provides an example of when at-large elections can be found in compliance with the CVRA. By requiring plaintiffs to show that a trustee area can be created that allows a protected class of voters to elect their preferred candidate, the appellate court has acknowledged that by-district elections are not appropriate for every jurisdiction. However, it is too early to know if this case represents a new direction in the law or is an aberration. The court based its decision on the specific record before it, and it may be too soon to expand the holding of the case to other factual settings. Maintaining at-large elections remains problematic for public agencies that do not want to risk a court loss or who do not have the funds and commitment to litigate these types of issues. Additionally, the court noted several arguments that the Plaintiff failed to make, leaving those issues to be litigated elsewhere at some point in the future.

The Plaintiff in this case has already indicated publicly that they plan to appeal to the California Supreme Court. Based on the history and purpose of the CVRA, and the unprecedented nature of this case, it would not be surprising to see the California Supreme Court address this decision in the coming years. We will continue to monitor this case and report on its progress should there be an appeal or if legislation is proposed to address this issue.

If you have any questions about your public agency’s election process, or to discuss any legal matters pertaining to public agencies, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sarah L. Garcia

Partner

Jennifer Baldassari

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Senate Bill 98 Suspends LCAPs for 2020-2021; Instead, LEAs Must Adopt a Learning Continuity and Attendance Plan

July 2020
Number 52

Senate Bill (SB) 98, the Education Budget Trailer Bill, suspends the requirement to adopt a Local Control Accountability Plan (LCAP) for the 2020-2021 school year. Instead, for the 2020-21 school year, local educational agencies (LEA) will be required to adopt a “learning continuity and attendance plan.”

The Governor had previously, through Executive Order N-56-20, extended the 2020-21 LCAP adoption and LCAP budget overview deadlines from July 1 to December 15, 2020. (See 2020 Client News Brief Number 35) Now, the LCAP is eliminated and replaced for 2020-21, although LEAs must still adopt a budget overview for parents by December 15.

Learning Continuity and Attendance Plan

SB 98 adds section 43509 to the Education Code and requires LEAs to adopt, by September 30, 2020, a learning continuity and attendance plan for 2020-2021. This learning plan must include the information specified in the template to be developed by the California Department of Education (CDE) by August 1.

Learning Plan. The learning continuity and attendance plan must include the following:

  • A description of how the LEA will provide continuity of learning and address the impact of COVID-19 on pupils, staff, and the community in the following areas, along with the specific expenditures the LEA anticipates making to support its ability to address the impacts of COVID-19:
    • In person instructional offerings;
    • Distance learning program;
    • Pupil learning loss;
    • Monitoring and support of mental health and social and emotional well-being of pupils and staff;
    • Professional development and resources to address trauma and other impacts of COVID-19 on the school community;
    • Pupil engagement and outreach;
    • School nutrition;
  • A description of how federal and state funding is used to support the efforts described in the learning continuity and attendance plan; and
  • A description of how the LEA is increasing or improving services based on the number and concentration of unduplicated pupils.

Adoption Timeline and Process. Although similar to the LCAP, the adoption timeline and process for soliciting input on the learning plan are distinct, as summarized below.

  • August 1– CDE will publish template for the learning continuity and attendance plan;
  • September 30 – Deadline for LEAs to adopt learning continuity and attendance plan;
  • Five Days After Adoption – Deadline for district to file with county office of education (COE), COE to file with CDE, or charter school to file with its chartering authority and COE;
  • October 30 – Deadline for COE or CDE to provide written recommendations for amendments to the plan, if any;
  • 15 Days after receipt of COE or CDE recommendations – Deadline for LEA to consider written recommendations in a public hearing;
  • December 15 – Deadline for LEAs to adopt the LCAP budget overview for parents.

Similar to the LCAP process, LEAs must solicit and consider stakeholder feedback while developing the learning continuity and attendance plan. Specifically, the LEA must solicit recommendations and comments from members of the public, notify members of the public about the opportunity to submit written comments, present the learning plan to the parent advisory committee (PAC) and the English Learner parent advisory committee (EL PAC), respond to comments from PAC and EL PAC in writing, provide options for remote participation in the public hearings and include efforts to solicit feedback to reach stakeholders who do not have internet access or who speak languages other than English. The learning plan must be presented at a public hearing before the governing board, after posting the agenda for at least 72 hours; then the governing board must adopt the learning plan in a public meeting after, but not on the same day as, the public hearing. Finally, the LEA must prominently post the learning plan on the homepage of its website, consistent with the LCAP posting requirements.

Takeaways

LEAs must adopt a learning continuity and attendance plan by September 30, 2020. Despite a truncated timeline, the requirements for stakeholder engagement, a separate public hearing, and adoption at a public governing board meeting remain. LEAs are not required to adopt an LCAP for the 2020-2021 school year, however, LEAs must adopt a LCAP budget overview for parents by December 15, 2020.

If you have any questions about the learning continuity and attendance plan, the LCAP budget overview for parents; or SB 98 in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Amanda J. Cordova

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Individual Councilmember’s Conduct Found to Deny Fair Hearing

May 2020
Number 44

It is sometimes difficult for elected officials to remain unbiased when considering controversial matters, while properly representing their constituents at the same time. Nonetheless, when acting in a quasai-adjudicatory capacity, elected officials must be “neutral and unbiased,” and must recuse themselves if they are unable to do so. In Petrovich Development Company, LLC v. City of Sacramento (April 8, 2020, C087283) ___Cal.App.5th ___, the court found that a Sacramento City Councilmember was not neutral and impartial, necessitating his self-recusal from voting on an appeal for a conditional use permit. The court also provided guidance on actions that an elected official can take that would not create the “probability of actual bias.”

Background

Petrovich Development Company, LLC (Petrovich) applied for a conditional use permit with the Sacramento Planning and Design Commission (Planning Commission) for a gas station in the shopping center zone of a local residential development. The Planning Commission approved the conditional use permit, however, representatives of the homeowner’s association appealed the decision to the Sacramento City Council. On appeal, the City Council then denied the conditional use permit in a seven-to-two vote. Petrovich sued, alleging multiple claims, including being wrongfully deprived of a fair and impartial quasi-adjudicatory hearing and denial of due process of law. Specifically, Petrovich claimed that there was an unacceptable probability of actual bias by one Councilmember. The trial court held in favor of Petrovich and the matter was appealed to the Court of Appeal.

The Appellate Court’s Decision

The Court of Appeal focused on whether there was a fair hearing. A councilmember must recuse themselves if there are sufficient facts to demonstrate an unacceptable probability of actual bias on their part. The Court of Appeal concluded that a number of factors that were raised did not constitute evidence of actual bias, including:

  • The Councilmember’s membership in the neighborhood association;
  • The Councilmember’s expression of public concern at a meeting of the neighborhood association. At that meeting, the Councilmember stated “I don’t think a gas station fits in with what was originally proposed;” and
  • The fact that the Councilmember lived in the residential neighborhood adjacent to the proposed gas station.

Nonetheless, the Court of Appeal found that Councilmember crossed the line and acted as advocate, not a neutral and impartial decision maker, based on the following actions:

  • The Councilmember engaged in ongoing direct communication with the homeowner’s association who appealed the Planning Commission’s decision to the City Council, advising him on project “talking points,” which in essence coached the appellant on how to prosecute the appeal to the City Council;
  • There was evidence that the Councilmember was counting, if not securing, votes on the City Council against the gas station and communicating an “update” on that score to the Mayor; and
  • The Councilmember prepared a compilation of “talking points” that amounted to a presentation against the gas station, which he emailed to the Mayor. The talking points were modified by the Mayor’s staff to include a sequencing of the hearing and identified which councilmembers would move to deny the permit and second the motion, carried by a majority vote. This sequencing of events was what in fact occurred at the hearing.

The Court of Appeal found that the Councilmember should have recused himself from voting on the appeal. As stated by the Court:

These “concrete facts” establish that [the Councilmember] was biased. He took affirmative steps to assist opponents of the gas station conditional use permit and organized the opposition at the hearing. [The Councilmember] acted as advocate, not a neutral and impartial decisionmaker, and should have recused himself from voting on the appeal. Because he did not, Petrovich did not receive a fair hearing.

Takeaways

Elected officials face challenging circumstances when serving as a quasi-adjudicatory decision maker on a controversial matter. As we learn from Petrovich Development Company, LLC, the analysis of whether a fair hearing was conducted is fact driven. The Court of Appeal in this case outlined examples of facts that do and do not demonstrate an unacceptable probability of actual bias on the part of the decision maker. Elected officials facing such a complex process should consult with their legal counsel early in the process to ensure their ability to legally participate in the decision. The bottom line is that the more involved an elected official becomes in a matter that will be heard by the elected body prior that hearing, the greater chance that the official will be disqualified from participating in the hearing and the decision. Failure of an elected official to recuse themselves can result in invalidating the local agency’s decision about a project.

If you have any questions about the Petrovich case and the issues raised by it, or to discuss any legal matters pertaining to public agencies, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

James Sanchez

Senior Counsel

Jayme A. Duque

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Plaintiffs with Late Tort Claims Take a Hit

May 2020
Number 39

A would-be plaintiff’s ability to obtain relief from the government claim presentation requirement (the Government Claims Act, Gov. Code, § 810, et seq.) has been limited by the California Court of Appeal. In Lincoln Unified School Dist. v. Superior Court (2020) 45 Cal.App.5th 1079, the court held that a plaintiff may not request that a court waive the six-month time limit for submitting a claim to a public entity for reasons different than the plaintiff presented to the public entity when seeking a waiver of the same six-month time limit.

Background Information

 When a person seeks to sue a public entity for personal injury claims, the Government Code requires that, prior to filing their lawsuit, the injured person must first submit their claim for injury and damages to the public entity within six months of the date of the injury. The public entity may then choose to accept the claim, deny the claim, or ignore the claim. If the public entity denies or ignores the claim, the injured person may then proceed to filing a lawsuit in state court. If they do not timely file their lawsuit, they may later be barred due to the expiration of the statute of limitations.

Lincoln USD v. Superior Court

On August 1, 2017, Jayden, a high school student, was participating in football tryouts at Lincoln High School in Lincoln Unified School District (District) in Stockton, California. Jayden collapsed due to extreme exhaustion and dehydration, and suffered permanent injuries as a result.

Jayden’s mother, Ms. Jones, timely submitted a claim on Jayden’s behalf to the District in November 2017, alleging the District was liable to Jayden for his injuries. In November 2017, Ms. Jones also engaged Jayden’s attorney to represent her in her own claim against the District, based on the realization that Jayden’s injuries may be lifelong and may require Ms. Jones’ ongoing care. Ms. Jones, like Jayden, had six months from the date of injury to present her claim to the District but did not do so until March 2, 2018, when she submitted an application to the District seeking an exception to the six-month limit to present the claim on her own behalf. Ms. Jones submitted with her application the facts forming the basis for her legal argument, including that she initially did not file the claim for herself because she believed that Jayden would recover from his injuries; that she was so upset and concerned about him that she was not thinking about herself; and once she realized he may not fully recover, she determined that she too had a claim, as Jayden’s sole caretaker. The District did not respond to Ms. Jones’ application, and therefore it was deemed denied.

In July 2018, Ms. Jones filed a petition for relief from the claim presentation requirement in superior court, using the same factual explanation that she had included in her application to the District. The District introduced evidence contradicting Ms. Jones’ claims that she was previously unaware of the extent of her son’s injuries, and the extent to which she would suffer long-term effects from Jayden’s injuries. Ms. Jones’ attorney filed a supplemental declaration, in which he introduced a new factual theory as to why the petition should be granted. The attorney stated that Ms. Jones had hired him to represent her in November 2017, and due to a highly unusual internal error, his office had failed to timely submit Ms. Jones’ claim. The court granted the petition, based upon the new facts alleged by Ms. Jones’ attorney in the supplemental declaration. The court rejected the District’s argument that the same factual basis must be alleged in the application submitted to the District as the facts alleged in the petition for relief submitted to the court. The District appealed.

On appeal, the court decided that the facts included as the basis for Ms. Jones’ application to the District seeking an exception to the six-month limit to present the claim must be the same as the facts then presented to the trial court in the corresponding petition for relief from the claim presentation requirement. The lower court was overruled, and Ms. Jones’ claim against the District was barred from proceeding. Having prevailed in its appeal, the District was relieved of liability as to Ms. Jones.

Takeaways

Lincoln USD v. Superior Court bolsters the resources available to an accused public entity when a plaintiff has missed the six-month deadline to present their claim and is seeking an exception to the rule, strengthening the overall effect of the Government Claims Act. Under this case, a plaintiff has one opportunity to develop their theory as to why they should be granted an exception to the timeline for filing a claim — they cannot change their story once they get into court. 

If you have any questions about the Lincoln USD case or the Government Claims Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Mary F. Lerner

Partner

Sophia V. Cohn

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

CDE Issues Template for Written Report in Place of LCAP; Executive Order N-56-20 Changes Budget Adoption Process for 2020-2021

May 2020
Number 35

The California Department of Education (CDE) has issued the template for local education agencies (LEAs) to use for their written report to the community explaining their changes to program offerings made in response to school closures to address COVID-19. Governor Newsom’s Executive Order N-56-20 of April 22, 2020, provides that, for LEAs that adopt the written report as described, the deadline to adopt the Local Control Accountability Plan (LCAP) and budget overview for parents is extended to December 15, 2020. The Executive Order defines LEAs to include school districts, county offices of education, and charter schools. Details of the written report and the Executive Order are summarized below.

  • The deadline for adoption of the LCAP and the budget overview for parents has been extended to December 15, 2020, provided that the LEA:
    • adopts a written report explaining changes to program offerings made in response to COVID-19;
    • submits the written report to the County Superintendent concurrently with the LEA’s 2020-2021 budget; and
    • posts a copy of the written report on the homepage of its website, all as further specified in Section 2 of the Executive Order.
  • The written report shall include a description of how the LEA is meeting the needs of unduplicated pupils (i.e., English learners, students eligible for a free or reduced-price meal and foster youth) to support the following during school closures:
    • Continue delivering high-quality distance learning opportunities;
    • Provide school meals in non-congregate settings; and
    • Arrange for supervision of students during ordinary school hours.
  • The written report must be adopted by the LEA’s governing board at the same meeting at which the 2020-2021 budget is adopted by the board.
  • The budget itself must still be adopted by July 1, 2020.

Takeaways

LEAs who choose to take advantage of the extended deadline for adopting the LCAP will not need to hold LCAP stakeholder meetings this spring nor provide for a public hearing on the LCAP. Accordingly, the budget adoption process can be streamlined, with the public hearing and adoption of the budget being accomplished during one meeting. This will require revisions to the LEA’s notice and agenda language related to the public hearings and the budget adoption process. Implementing the changes to the LCAP deadline may also require LEAs to revise or suspend the operation of certain Board Policies and/or Administrative Regulations, depending on whether they incorporate the original July 1 deadline for adoption of the LCAP.

If you have questions about this recent Executive Order or would like assistance in preparing the written report and modifying your budget adoption process, please contact the authors of the Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

Written by:

Ruth E. Mendyk

Partner

James N. McCann

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Brown Act Case Clarifies Brown Act’s Pending Litigation Exception When Litigation is Orally Threatened

April 2020
Number 27

On February 10, 2020, the California Court of Appeal decided Fowler v. City of Lafayette (2020) __ Cal.App.5th __, concluding a five-year dispute among neighbors involving the construction of a tennis court cabana on private residential property. Neighbors opposing the project challenged it at every stage in the review process. In the end, the disagreement embroiled the City of Lafayette (the City) in Brown Act litigation. On appeal, the case established new precedent governing the Brown Act.

The Brown Act generally requires that governing bodies, such as a city council, conduct their business in open session allowing for public participation. Under certain exceptions, governing boards may conduct business in “closed session,” out of the view and participation of the public. One such exception allows governing boards to discuss pending or threatened litigation in closed session, provided that the closed session discussion is properly noticed and any action taken during closed session is “reported out” once the board returns to open session.

One of the issues in Fowler was whether the City violated the Brown Act by discussing in closed session an oral threat of future litigation communicated by the project applicant’s attorney. The applicant’s attorney had told City planning department staff that he would sue the City if the City continued its refusal to allow the project to move forward. The City planner made a digital note of the threat in the relevant project application file in the City’s computer system. He also informed the City attorney.

The timing of the threat coincided with the City council’s review of the project application. Because of this, the City attorney discussed the litigation threat with the council in closed session. The City attorney did not provide the council with the City planner’s note of the communicated threat, and the note was not placed within the meeting agenda packet. Rather, to provide notice of the closed session discussion, the agenda contained a general reference that the City Council would “confer with legal counsel in closed session about one case of anticipated litigation,” without identifying the facts and circumstances of that case. When the Council held the closed session and thereafter approved the project application, the neighbors sued the City, petitioning the court to overturn the City’s approval on the theory that the City council committed a Brown Act violation by not including the City planner’s note of the threat in the publicly-posted agenda for the meeting.

The trial court ruled in favor of the City. However, the Court of Appeal reversed that decision. According to the Court of Appeal, Government Code section 54956.9, subdivision (e)(5) (Section (e)(5)), required the City to provide the litigation threat to the public with the meeting agenda packet.

Under Section (e)(5), a contemporaneous note or other record of “a statement threatening litigation made by a person outside an open and public meeting on a specific matter” constitutes a basis for a closed session discussion pursuant to the Brown Act’s pending litigation exemption. The plain language of Section (e)(5) also requires the note to be made available for public inspection upon request.

However, the Court of Appeal took into consideration that the document containing the litigation threat was buried within the City planner’s notes, in the applicant’s file, located within in a password-protected computer database. The court reasoned that, based on these facts, the public would not have access to the document unless it knew exactly what to request. According to the court, “This availability is illusory if an interested person would not know the question to ask.” And, citing to well-settled case law, the court said “the Brown Act must be construed liberally” to achieve government transparency.

Accordingly, the court held the public is entitled to rely on the agenda packet made available upon request, and in order to base the need for closed session discussion on a staff note memorializing a verbal threat of litigation, the note must be provided within the agenda packet.

Despite the court’s finding that the City did in fact commit a Brown Act violation, the neighbors did not prevail in stopping the tennis cabana project. The court held that the project application approval was a separate and distinct issue from the threatened litigation and closed session discussion. According to the court, the City complied with the Brown Act when it held open meetings to discuss the project application. Therefore, the neighbors were not prejudiced by the City’s violation of the closed session requirement.

Takeaways

Under Fowler, a local agency that receives a verbal threat of litigation that is memorialized by the agency in writing must now make that writing available in a public meeting agenda packet before going into closed session under Section (e)(5). If the threat was in writing, the agency similarly would presumably have to include that writing if relying on Section (e)(5) to allow for a closed session. We note that Government Code section 54956.9, subdivision (d)(3) (Section (d)(3)) allows for a closed session to consult with legal counsel when there are “existing facts and circumstances” that might result in litigation. There are specific rules about how to agenize the matter and what must be on the agenda or disclosed verbally if relying on Section (d)(3), but this may be an alternative to agendizing under Section (e)(5) in certain circumstances that would not require making a record of threatened litigation publicly available with the agenda.

If you would like more information about this case or have any questions related to the Brown Act and closed sessions for potential litigation matters, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Mary F. Lerner

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Public Agencies Must Disclose All Public Documents Regardless of the Record’s Origin

April 2020
Number 25

In Becerra v. Superior Court of San Francisco, California’s First District Court of Appeal broadened the definition of documents that public agencies must provide pursuant to a request made under the Public Records Act (PRA), to include records in the possession of the agency regardless of the record’s origin. The court held that the PRA “generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records.”

Background

The PRA requires public agencies to respond and produce public records whenever they are requested. On January 1, 2019, Senate Bill (SB) 1421 expanded California Penal Code section 832.7 and 832.8 making some peace officer records, previously held to be confidential, public documents under the PRA. (See 2018 Client News Brief No. 60) Those records which are now considered public records include peace officer records involving incidents of the discharge of a firearm at a person, use of force resulting in death or great bodily injury, sustained findings of dishonesty, or sustained findings of sexual assault.

After SB 1421 became law, a coalition of news organizations called theFirst Amendment Coalition requested records from the DOJ. The Attorney General objected to the request, in part, stating that it would not provide documents that it received from other agencies as the DOJ was not the agency that “maintains” those documents. They asked the First Amendment Coalition to request those documents from the separate agencies directly. In response to the objections, the First Amendment Coalition filed a lawsuit seeking to compel the DOJ to produce the requested records. The trial court granted the First Amendment Coalition’s writ and ordered the DOJ to produce all the requested documents by January 4, 2020. The DOJ filed an appeal requesting that the trial court order be vacated with respect to the disclosure of records relating to other agencies’ officers.

Becerra v. Superior Court of San Francisco

This case represents the first time a court has directly tackled the issue of disclosing records in the possession of one agency, but which were created by another agency. The Court of Appeal evaluated the language of Penal Code section 832.7, as amended by SB 1421, and the PRA.

Following its evaluation, the Court of Appeal concluded that based on a plain reading of the PRA, members of the public may inspect any record “retained by” or in the possession of a state agency, despite whether the record was “prepared, owned, [or] used” by the state agency. The Court of Appeal applying this analysis to the new requirement for disclosure of peace officer records found that both the plain language of the statute and the legislative history of SB 1421 supported the position that the statute requires disclosure of all responsive records in the agency’s possession, regardless of where the peace officer was employed or which agency created the record.

Takeaways

The Becerra case provides a broader interpretation of what documents must be disclosed under the PRA and SB 1421, effectively changing a long standing practice by many agencies of not producing records generated by other agencies. As many law enforcement agencies have experienced, the requests for public records under the new provisions of the Penal Code have been numerous and show no sign of ceasing. As more requests come in, issues and interpretation of the new law will continue to evolve. This new case will not only change long standing practices of many agencies, but could have other consequences. For example this new case could be interpreted to require district attorneys’ offices to disclose records from local agencies which relate to issues of officer misconduct if the conduct falls within the four enumerated categories. It could also require agencies to expend additional resources to review all of their records to determine if the agency possesses any documents from other entities responsive to the request received. This is only one of the first opinions, and it is anticipated others will be forthcoming, therefore it is recommended that agencies work with their legal counsel to navigate this new era of transparency.

For more information on the Becerra opinion, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Matthew M. Lear

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Important Update: The deadline to file the Annual Statement of Economic Interests (Form 700) has been extended from April 1, 2020 to June 1, 2020

March 2020
Number 18

In light of the current COVID-19 pandemic, the Fair Political Practices Commission (FPPC) has announced it is allowing a 60-day extension for those required to file a 2019 Annual Statement of Economic Interests (Form 700). As a result of this extension, Form 700’s normally due no later than April 1, 2020 will be accepted by the FPPC as timely filed if submitted by June 1, 2020. This extension applies to all officials required to file in April pursuant to Commission Regulations 18723 and 18730. This extension will likely be welcomed relief for many public officials in California required to file Form 700’s, and is in contrast to the FPPC guidance issued on March 17, 2020 indicating that the April 1 deadline could not be extended by state or local filing officers.

The FPPC still encourages annual filers to file as soon as they are able, in advance of the June 1, 2020 extended deadline. Those who have access to an electronic Form 700 filing system are encouraged to use it. If electronic filing is not available, filers can submit Form 700’s by mail. Statements postmarked on or before June 1, 2020 will be considered filed on time. The Commission intends to formally ratify this extension at its April 2 special meeting.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Scott G. Cross

Partner

Andrea Ortega

Law Clerk

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

How to Address COVID-19 with Your Governing Board: Brown Act Reminders

*** UPDATED AS OF 3/27/20 *****

This Client News Brief (CNB) supersedes and replaces the prior CNB on this topic based on the new Executive Orders and public health officer directives.

March 2020
Number 13

Background

With growing concerns over the spread of the novel coronavirus (COVID-19), many public agencies are closely monitoring guidance and updates from health and science officials. The California Department of Public Health (CDPH) along with the Centers for Disease Control and Prevention (CDC) have been providing regular updates and recommendations for employers, and the fluidity of the situation has resulted in some public agencies taking or considering actions on an emergency basis or without the time for all the public notice and input required for routine public business.

Generally, the public has a right to attend meetings and address the legislative body on any item on the agenda or any item of interest to the public that is within the subject matter jurisdiction of the legislative body. With increased precautions in place related to large gatherings and travel, public agencies are faced with the need to make decisions quickly in response to the latest information available. The following provides guidance for conducting public meetings to discuss COVID-19 with your governing board and the public, in compliance with California’s open meeting laws under the Brown Act.

How to Convene a Meeting:

  • Notice must be given of the time and place for regular meetings, by posting an agenda at least seventy-two (72) hours in advance of the meeting. Posting must occur in a place that is freely accessible to the public and on the agency’s website.
  • A special meeting may be called at any time including weekends and holidays, by notice at least twenty-four (24) hours in advance of the meeting. Only the business set forth in the notice may be considered at the meeting.

Emergency Meetings:

  • In case of an emergency meeting to consider matters that require prompt action due to the disruption or threatened disruption of public facilities and services, the Brown Act meeting notice described above is not required. However, absent a “dire” emergency, attempts must be made to contact the media by telephone at least one hour before the meeting, unless the telephones are not working. Following the emergency meeting, the minutes of the meeting, a list of persons notified or attempted to be notified of the meeting, and actions taken must be posted for ten (10) days in a public place.

Not all discussions about COVID-19 necessarily merit an “emergency” situation allowing for greater flexibility with certain legal requirements. For purposes of the Brown Act, an emergency is defined as a “work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body.” A “dire emergency” is a “crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting under this section may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body.” (Gov. Code section 54956.5(a).) The legislative body should make findings supporting the existence of an emergency.

Attending Meetings Remotely: On March 12 and 17, 2020, as part of a larger effort to address the outbreak, Governor Gavin Newsom issued Executive Orders allowing state and local legislative bodies to hold meetings via conference calls without violating the Brown Act. Board members may attend regular, special, or emergency meetings by telephone (or video conference), and the Governor’s Executive Orders suspends the following requirements which normally apply to teleconference attendance:

  • A quorum of the members participate from locations within the boundaries of the agency and each location is accessible to the public;
  • Each teleconference location from which a member will participate must be publicly noticed, and agendas must be posted at each teleconference location;
  • Each teleconference location be accessible to the public;
  • Members of the public may address the body at each teleconference location; and
  • At least one member of the legislative body must be physically present at the location specified in the notice of the meeting.

These requirements are suspended on condition that 72 hour or 24 hour (whichever applies) public notice is still given, and to give notice by which members of the public may observe the meeting and offer public comment. While the definition and parameters surrounding “public participation” are unclear, there are various options to allow the public to address items on the agenda and provide public comment including, but not limited to conducting the meeting via teleconference, using an internet platform such as Zoom or YouTube to stream the meeting allowing attendees to comment in real-time, or providing a special email address for the public to submit comments in advance of the meeting. Given the Order of the State Public Health Officer of March 19, 2020 and the Governor’s Executive Order of the same date placing limits on the public congregating, public agencies should work closely with their legal counsel as to whether and to what extent public meetings are permissible. Public agencies will need to decide whether to provide such an in-person opportunity for the public to attend meetings, as personal attendance is not “essential.” In addition, if the Board elects to meet in person, it should continue to monitor and adhere to all state and local public health directives and social distancing guidelines.

How to Act on Items Not on the Agenda: Under normal circumstances, the legislative body may not discuss or take action on any item that does not appear on the posted agenda. The following exceptions apply:

  • Subsequent Need. The legislative body may act upon an item not appearing on a regular agenda upon a finding by two-thirds (2/3) vote of the members present, or by unanimous vote if less than two-thirds (2/3) but more than a quorum of members are present, that there is a need for immediate action and the need for action came to the attention of the agency after the agenda was posted.
  • Emergency Situation. If by a majority vote the legislative body determines prior to any such action that an “emergency situation” exists and that prompt action is required, they may take action on an emergency item not appearing on the posted agenda. The emergency situation exception is for an agenda that has already been posted, in contrast to the emergency meeting discussed above.

How to Address the Board in Closed Session:

  • The legislative body may discuss COVID-19 in closed session if there has been a threat of or exposure to litigation. An attorney should be present at such closed session discussion.
  • There is also an exemption under the Education Employment Relations Act for discussing negotiations. Therefore, topics such as changes to work day and work year, overtime for employees doing deep cleaning, addressing non-refundable staff travel plans, changes to employee leave provisions, all of which are negotiable, may be discussed in closed session as long as the purpose of the discussion is to discuss negotiation direction and strategy.
  • The Brown Act provides that the legislative body may go into closed session to discuss threats to public safety/security, including a threat to the public’s right to access public facilities or public services. However, the intent of this exception appears to focus on allowing law enforcement officials or security consultants to advise during closed session and should be used with caution.

Local and State Agency Governing Bodies May Receive COVID-19 Updates Without Violating Open Meeting Laws:

On March 21, 2020, the Governor issued an Executive Order to allow all, or more than a quorum, of a legislative body (local and state), to listen in and ask questions for COVID-19 updates from federal, state or local officials. This limited exception from the open meeting laws does not authorize discussions, serial or otherwise, among members constituting a majority without complying with open meeting law requirements.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.
Written by:

Mary F. Lerner

Partner

Anne L. Collins

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Rules that Second Contract with the Same Vendor Did Not Create a Conflict of Interest

January 2020
Number 6

A recent California Appellate Court ruling has determined that a public entity’s award of a second contract to a construction firm did not create a conflict of interest even though it related to an earlier contract between the parties. InCalifornia Taxpayers Action Network v. Taber Construction, Inc. (2019) A145078, the First Appellate District held that the contractor’s second contract with a school district did not create a conflict of interest because both contracts were part of one initial transaction which had been structured as two contracts because applicable law at the time did not permit the transaction to be structured as a single contract. This is the latest chapter in a series of cases about potential conflicts of interest in lease-leaseback construction contracts for school districts, but the ruling has implications for many different types of contracts made by all local public agencies.

Background

Prior to January 2017, when the Education Code’s lease-leaseback statutes were revised, school districts were prohibited from awarding lease-leaseback construction contracts until plans and specifications for the underlying project were approved by the Division of the State Architect (“DSA”). [Link to CNB re LLB changes in Jan. 2017 – CNB No. 63, 2016] Until those changes took effect, school districts wishing to procure preconstruction services from the contractor who would ultimately perform their lease-leaseback projects commonly entered into a separate contract for such preconstruction services. Mount Diablo Unified School District (“District”) selected Taber Construction (“Taber”) to perform a modernization project through a request for proposal process and first awarded a preconstruction contract to Taber. After completion of the preconstruction services and approval of the plans and specifications by DSA, the District awarded a lease-leaseback construction contract to Taber.

A taxpayer organization challenged this dual contract structure by alleging a conflict of interest based on the contractor’s ability to inappropriately influence the District in the creation of the second contract. In May 2017, an appellate court ruled that the plaintiff’s allegations were sufficient to let that issue proceed to trial. [See CNB No. 23, 2017] That decision agreed with appellate decisions in 2015 and 2016 on similar issues, in which other courts agreed that the preconstruction services contract/lease-leaseback contract structure could lead to violation of Government Code section 1090, which prohibits conflicts of interest in public contracts, because of the contractor’s ability to shape the scope of the second contract through their work under the first contract. Based on this reasoning, a conflict of interest could potentially arise whenever a local public agency entered into two successive contracts with the same contractor, if the work performed under the first contract had an impact on the scope of work under the second contract.

The Appellate Court’s Decision

Following trial on these issues, an appeal once again reached the appellate court, which has now held that when Taber performed the preconstruction services, it was not transacting “on behalf of” the District in violation of Government Code section 1090. The court reasoned that Taber was not hired under the first contract to find a firm to complete the project – rather, the District hired Taber to perform preconstruction services for the District “in anticipation of Taber itself completing” the project. The court reasoned that it was standard practice at the time to award two separate contracts due to the existing lease-leaseback law, and that the District purposefully selected Taber with the initial intent that it would award both contracts to Taber.

The court distinguished an appellate court decision, Stigall v. City of Taft (1962) 58 Cal.2d 565, that the plaintiff relied upon which held that a conflict of interest existed under Section 1090. In that case, which arose outside of the lease-leaseback context, there was evidence that a representative of the selected contractor was involved in the selection process. However, the court found no evidence indicating that during performance of the preconstruction services, Taber influenced the District to select Taber for the second contract.

Takeaways

As noted above, due to revisions that went into effect in January 2017, the lease-leaseback statute (Ed. Code § 17406) now expressly permits a school district to award a single contract that includes preconstruction services and lease-leaseback construction. Therefore, the fact pattern of this case is not likely to recur.

However, similar fact patterns could arise in other contexts, such as architectural contracts for master planning services where the architect may wish to also receive award of a subsequent contract for design of an individual project. Another example might be a vendor who enters a consulting contract with an agency to determine the agency’s technology needs, and then is subsequently awarded a contract to supply technology to the agency. In these situations, this case provides guidance as to when a conflict of interest might exist under Section 1090. While initially selecting one firm for both contracts might reduce the chances of a conflict of interest when the second contract is eventually awarded, risk remains if the firm is involved in the shaping the scope of the second contract. If appropriate for the situation, it may be beneficial simply to award a single contract for all of a contractor’s or consultant’s work, rather than two contracts.

For more information about this ruling and conflict of interest issues, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Arne B. Sandberg

Partner

Gayle L. Ketchie

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Government Code 1090 Challenges by Third Parties Clarified and Limited by California Supreme Court

January 2020
Number 5

The California Supreme Court has ruled that third parties (private citizens, taxpayers, watchdog groups, etc.) do not have legal standing to sue public agencies to invalidate contracts allegedly made in violation of Government Code section 1090.

Background

Government Code section 1090 is a “good government” law prohibiting public officials and public employees from participating in any way in the “making” or awarding of a contract in which they hold a financial interest. The penalties for violating Section 1090 are potentially severe, ranging from imposition of a fine to imprisonment.

Government Code section 1092 allows any contract made in violation of Section 1090 to be voided “at the instance of any party except the officer interested therein.” Previous case law had left open to interpretation the meaning of “party” in this provision. Thus, it was not clear whether Section 1092 created a private right of action to enforce Section 1090, or if that right was limited only to the actual parties to the contract.

San Diegans for Open Government v. Public Facilities Financing Authority of the City of San Diego et al. (2019) __ Cal.5th __ (“San Diegans for Open Government“)

In 2015, a citizens’ taxpayer organization sued to invalidate bonds issued by the City of San Diego to refinance the baseball stadium at Petco Park, alleging that financing participants had a financial interest in the sale of the bonds in violation of Section 1090. The trial court determined that the taxpayer group lacked standing to sue on Section 1090 grounds, and dismissed the complaint. On appeal, the Court of Appeal reversed, finding in favor of the taxpayer group on the issue of standing, reasoning that public policy supports a third party plaintiff having the right to seek relief under Section 1092, and ruling that the phrase “any party” as used in Section 1092 conferred standing upon “any litigant with an interest in the subject contract[.]”

The Supreme Court reversed the appellate decision, holding that Section 1092’s language providing that “any party” may sue to avoid a contract involving a prohibited conflict of interest, only confers standing to sue upon the actual parties to the contract at issue. In this case, the court’s ruling meant that the plaintiff taxpayer organization did not have standing to bring suit or seek relief under Section 1092. In other words, the court determined a private right of action does not exist under Section 1092.

In reversing the lower appellate opinion, the Supreme Court applied basic rules of statutory interpretation in determining that the Legislature had not clearly indicated an intent to create a private right of action under Section 1092. The court found no compelling reason to infer such intent because sufficient enforcement mechanisms already exist to ensure compliance with Section 1090. The court acknowledged cases cited by the taxpayer group suggesting taxpayers have standing to sue to set aside a contract for a Section 1090 violation, but dismissed those authorities as either distinguishable or dicta.

The Supreme Court noted that its decision in San Diegans for Open Government does not reduce the available avenues for enforcement of Section 1090 violations or lessen the severity of the penalties for such violations. While Section 1092 was not deemed an appropriate avenue for taxpayer enforcement of Section 1090, the Supreme Court remanded the case back to the appellate court to determine the plaintiffs’ ability to use alternative statutory provisions as an enforcement mechanism. Specifically, the Court of Appeal will expressly determine what type of relief plaintiffs are seeking, and whether such relief is available under Civil Code section 526a (Section 526a). Section 526a allows taxpayers to challenge government contracts where public funds will be spent illegally. However, Section 526a prohibits injunctive relief where the contract is a debt instrument, such as the bond purchase agreement at issue in this case. At oral argument in front of the Supreme Court, plaintiffs argued they were not seeking injunctive relief, and only sought the conflicted officers to be disgorged of profits from the contract. The Court of Appeal will have to sort out the availability of a remedy for plaintiffs under Section 526a on remand.

Regardless of how the courts ultimately rule on these other causes of action, the Supreme Court’s prohibition on the use of Section 1092 by a taxpayer group remains significant, since Section 1092 calls for the contract to be voided, and allows a challenge to be brought for up to four years. The Civil Code bases for suit that the appellate court will now consider generally have much shorter statutes of limitation and do not provide for voiding the contract as a remedy.

This case highlights the importance of clearly identifying the parties to a public contract, and considering express exclusion of “third party beneficiaries” when drafting public contracts, in order to limit those who may sue.

For more information on issues arising from Government Code Sections 1090 or 1092, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

William P. Curley III

Partner

Kate S. Holding

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Appellate Court Finds That Solar Energy Project Was Not Exempt From City’s Zoning Ordinance

November 2019
Number 75

A recent California appellate court ruling has clarified the requirements for a local agency’s compliance with city or county zoning ordinances. In City of Hesperia v. Lake Arrowhead Community Services District, the Fourth Appellate District held that a community services district did not qualify for zoning compliance exemptions as provided in sections 53091(e) and 53096(a) of the Government Code, after the district had adopted a resolution finding the exemptions applicable in preparation for constructing a solar energy facility.

Background

In City of Hesperia, the Lake Arrowhead Community Services District (District), sought to overturn a trial court’s decision that construction of a solar energy facility did not qualify for exemption from the City of Hesperia’s (City) zoning ordinances. The solar energy facility (Project) was to be constructed on property owned by the District within City limits. The property, which was already in use as a water reclamation facility, was zoned “Rural Residential.” The City’s municipal code provided that “solar farms” were only allowed on nonresidential and nonagricultural property with a conditional use permit and could not be located within 660 feet of agricultural or residential property. Over the City’s objections, the District passed a resolution finding that the City’s zoning ordinances did not apply to the Project, as it was both absolutely exempt and qualifiedly exempt under Government Code provisions specific to energy projects. The City filed suit and prevailed at the trial court level, and the District appealed.

Analysis

Government Code section 53091(a) provides generally that a local agency must comply with “all applicable building ordinances and zoning ordinances of the county or city in which the territory of the local agency is situated.” This case considers two exemptions from this general rule.

Government Code section 53091(e) provides an absolute exemption from local zoning ordinances for the “the location or construction of facilities… for the production or generation of electrical energy” unless the facilities are used for storage or transmission of electrical energy. While the Project was designed to produce energy, that energy was intended to be transmitted to the local utility’s electrical grid. The court concluded that because section 53091(e) does not exempt “transmission” of electrical energy from local zoning ordinances, the Project was not exempt from those ordinances under section 53091(e).

Government Code section 53096(a) provides a qualified exemption to local zoning regulations for a local agency that holds a public hearing and adopts a resolution determining that “there is no feasible alternative to its proposal.” In order to use this exemption, the local agency must properly determine through substantial evidence that no feasible alternatives exist for the location of the proposed facility. The court concluded that the District’s determination that there was no feasible alternative location for the Project was not supported by substantial evidence, and that the District had failed to provide evidence that it had considered “economic, environmental, social, or technological factors associated with an alternative location.” Thus, the Project was not exempt under section 53096(a).

Since the Project did not did not meet the requirements for exemption from the City’s zoning ordinances under either section 53091(e) or section 53096(a), the court ruled that it was not exempt from the City’s zoning ordinances.

Takeaways

The court in City of Hesperia took a narrow view of a local agency’s ability to exempt itself from local zoning ordinances in order to proceed with energy projects. In particular, this ruling makes clear that a local agency’s finding that “there is no feasible alternative to its proposal” must be supported by substantial evidence that the agency had carefully considered alternative locations for its project.

If you have any questions about the City of Hesperia v. Lake Arrowhead Community Services District decision or building and zoning issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The United States Supreme Court Again Confronts The Reach Of The Establishment Clause

September 2019
Number 40

In American Legion, et al. v. American Humanist Association, et al., the United States Supreme Court, by split decision, ruled that a World War I memorial in Prince George’s County, Maryland, consisting of a cross, did not violate the Establishment Clause of the First Amendment of the United States Constitution, which prohibits the government from establishing an official religion or favoring one religion over another.

In 1918, residents of Prince George’s County formed a committee to erect the memorial for County residents who had fallen during World War I. The committee decided a Latin cross would be an appropriate memorial, as it had become a central symbol of the war and “row after row of plain white crosses” marking the graves of the fallen overseas was a central image on the minds of many Americans. When the Committee ran out of money, the local American Legion completed the memorial’s construction, whose emblem is featured at the center. During the dedication ceremony, a Catholic priest and a Baptist pastor engaged in religious ceremonial activities. The memorial has since been used regularly for patriotic events. In 1961, the Maryland-National Capital Park and Planning Commission acquired the memorial and the land where it sits, but the American Legion retained the right to use the memorial for patriotic events. The memorial has been maintained with public funds since the commission took possession of the memorial. In 2012, a group of local residents filed a lawsuit arguing the memorial violates the Constitution’s Establishment Clause. The case ultimately made its way to the Supreme Court.

For context, in 1971, the Supreme Court established the “Lemon test” in Lemon v. Kurtzman. Under the Lemon test which was intended to determine whether a governmental practice violates the Establishment Clause, a court analyzes a governmental practice’s constitutionality based by reviewing whether: (1) the practice has a secular purpose, (2) the practice’s principal effect advances or inhibits religion, and (3) the practice creates an excessive government entanglement with religion. Over time, various members of the Court, past and present, have criticized the Lemon test.

In his opinion in American Legion, Justice Alito declined to apply the Lemon test to the instant case, reasoning that although the cross is historically a Christian symbol and continues to have that meaning today, it has become secular in other contexts. As such, in this instance, the cross’ status as a “central symbol” of World War I explains the choice to use a cross as the memorial. Justice Alito further observed that the Lemon test attempted, but failed, to “bring order and predictability to Establishment Clause decision making.” In reaching this conclusion, the Court noted that “retaining established, religiously expressive monuments” was different than creating new ones, primarily because: established, religiously expressive monuments are often old, and it is difficult to determine the monument’s original intent; over time, the purposes and intent associated with a particular monument increase or, even if the monument was originally associated with religion, the passage of time diminishes that sentiment and the monument is retained for its historical significance; the message of a monument may evolve; and when the passage of time gives a particular monument familiarity, the removal of the monument may not appear neutral.

The Court also found that the memorial clearly had, at least, the secular purpose of memorializing the fallen, which also became important from a historical perspective. The memorial reminds local residents of the heroism of area soldiers. The Court also noted there is no evidence that Jewish soldiers were either “deliberately left off the list on the memorial” or “included on the Cross against the wishes of their families.”

In Justice Breyer’s separate concurring opinion, joined by Justice Kagan, he concluded that the most important consideration in each case is “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.” Justice Breyer’s words could potentially have the effect of narrowing the impact of the decision by making it clear that these cases must be decided on a case-by-case basis.

A majority of the Court seems to agree that the Lemon test’s applicability to all Establishment Clause cases is no longer (and has not been) an absolute. The Court also made clear that the Lemon test does not fit well with cases involving long-established, religiously expressive monuments.

Local governments should take note of this opinion as it will have an impact on what type of religiously-themed monuments are allowable under the Establishment Clause and whether any existing religiously expressive monuments are in violation. Under American Legion, it appears monuments which are established, have assumed a role in history and/or society beyond religious symbolism, and provide some sort of community function aside from religion, are more likely to be allowed under the Establishment Clause.

For more information about the American Legion case, the Establishment Clause, or other constitutional questions common to governmental entities, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The California Court of Appeal Has Spoken, Not Just Anyone Can Be Elected County Sheriff—So Says County Clerk

April 2019
Number 20

In 2017, basketball Hall-of-Famer Shaquille O’Neil was sworn in as a deputy sheriff of Henry County, Georgia. The momentous occasion concluded with a moment levity at the end of the swearing-in ceremony when Mr. O’Neil announced his candidacy for County Sheriff in 2020. His wit was fueled by the tacit understanding that county sheriff is a position requiring the qualification of sufficient prior law enforcement experience. World-class basketball skills, although highly important, are woefully insufficient to inform the leadership of a county’s most powerful elected official. Needless to say, Shaq’s announcement was not taken seriously. The ceremony was, for the most part, a publicity stunt. However, the case ofBruce Boyer v. Ventura County (2019) was not.

On February 22, 2018, Mr. Bruce Boyer, a citizen of Ventura County, who had no prior law enforcement experience, submitted his application to be placed on the ballot for county sheriff. Unlike Shaq, Mr. Boyer was serious. As is required by law, upon review of Mr. Boyer’s application, the County Clerk requested documentation of his qualifications for the office of county sheriff.

Importantly, this case illustrates the role of a county and city clerk as a critical gatekeeper charged with the fundamental and important duty to review documents for statutory compliance. In many cases, a vigilant clerk can avert serious and costly problems. In other cases, a seemingly benign mistake can metastasize into a constitutional crisis. The case of Mr. Boyer is an ode to vigilant clerks.

Mr. Boyer, having neither sufficient documents nor sufficient qualifications, took the matter to court where he argued the qualifications requirement was unconstitutional and the Clerk’s refusal to place his name on the ballot denied citizens of their First Amendment right to vote for elected officials of their own choosing. The trial court disagreed with Mr. Boyer and he appealed the case to the California Court of Appeal, where he made the same arguments a second time.

According to the California Elections Code, no person shall be considered a legally qualified candidate for sheriff unless their declaration for candidacy is accompanied with documentation showing they meet the statutory qualifications. The minimum qualifications are either of the following:

  • An advanced certificate issued by the Commission on Peace Officer Standards and Training;
  • One year of prior full-time law enforcement experience and possession of a master’s degree;
  • Two years of prior full-time law enforcement experience and possession of a bachelor’s degree;
  • Three years of prior full-time law enforcement experience and possession of an associate’s degree; or
  • Four years of prior full-time law enforcement experience and possession of a high school diploma or equivalent.

To support his case, Mr. Boyer argued a prior appellate case ruling unconstitutional Legislative predeterminations for Superior Court judge candidate qualifications similarly applied to, and rendered unconstitutional, the Legislative statute establishing the minimum qualifications for county sheriff. In rejecting Mr. Boyer’s argument, the Court of Appeal held the California Constitution expressly directs the state Legislature to provide for the election of a sheriff for each county, which means the Legislature can determine the qualifications for that office. No such delegation of constitutional authority existed for Superior Court judge. Therefore, the precedent Mr. Boyer relied upon did not apply for his situation.

Mr. Boyer then argued the minimum qualifications requirement violated the First Amendment in that it restricted the pool of sheriff candidates to law enforcement personnel only, thereby excluding civilian viewpoints from being heard. Mr. Boyer went even further to argue “candidacy for public office is a fundamental constitutional right.” The Court of Appeal relied on well-settled United States Supreme Court precedent to reject that argument. Candidacy for public office is not a fundamental constitutional right.

California Court of Appeal precedent also informed the court’s opinion. In 2003, a staunch gun rights advocate with no prior law enforcement experience attempted to run for Sheriff of Santa Clara County on the promise that he would approve the majority of concealed weapons permit applications. There, the plaintiff argued his First Amendment rights were violated because the qualifications requirement impaired access to the ballot. The Court of Appeal rejected this argument. The court maintained this position again in Mr. Boyer’s case.

According to the California Court of Appeal:

“There can be no doubt that the state has a strong interest in assuring that a person with aspirations to hold office is qualified to administer the complexities of that office. And the authority of the state to determine the qualifications of their most important government official is an authority that lies at the heart of representative government.”

Perhaps Shaquille O’Neal will have better luck in 2020.

For more information on Bruce Boyer v. Ventura County, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Brown Act’s “Committee Exception” Does Not Apply To Special Meetings

March 2019
Number 18

A California appellate court has focused on the distinction between a regular meeting and a special meeting of the local legislative body when considering an exception to public comment under the Ralph M. Brown Act (Brown Act). In Preven v. City of Los Angeles (Preven), the Second District Court of Appeal found that the City of Los Angeles had improperly relied on the Brown Act’s “committee exception” to stop public comment during a special meeting regarding a topic that had properly been addressed by a committee composed of City Council members.

Background Information

The Brown Act requires that public agencies provide the public with an opportunity for participation in the legislative process. At a regular meeting, the public has the opportunity to comment on not only agenda items, but also any item within the subject matter jurisdiction of the public agency. During a special meeting, on the other hand, the governing body may limit public comment to only the items described on the agenda.

The Brown Act’s public comment requirement is found at Government Code section 54954.3. Subdivision (a) of that statute sets forth the “committee exception” and specifically references regular meetings:

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

Preven specifically focused on whether the exception applies to special meetings as well as regular meetings. The appellant in Preven filed a lawsuit against the City of Los Angeles after the City, citing the “committee exception,” had denied appellant the opportunity to comment at a special city council meeting because he had already spoken at a regular meeting of the City Council’s Planning and Land Use Committee the night before. The trial court ruled that the committee exception applied to both special meetings and regular meetings. The trial court reasoned that appellant had been afforded the opportunity to discuss the agenda item at the committee meeting the night before, and therefore could be barred from comment at the special meeting addressing the same agenda item.

On appeal, the appellate court found the trial court’s holding in error. It held that, pursuant to the plain language of Government Code section 54954.3(a), the “committee exception” does not apply to special meetings at all. The public is entitled to comment at special meetings even where the agenda item was covered at a prior committee meeting.

Takeaways

In light of this decision, a public agency subject to the Brown Act must take care in denying public comment pursuant to the “committee exception.” This exception only applies to regular meetings, and only applies to items which were previously discussed by a committee made up of board or council members, where the public was allowed to address the committee on those same items. The purpose of the Brown Act is to facilitate public participation with local government decisions, and improperly denying public comment could produce an adverse result.

If you would like more information about the decision in Preven or have any questions relating to exceptions to the Brown Act generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

Matthew M. Lear

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

PERB Decision Provides Guidance Addressing “Public Hearing” Requirement

March 2019
Number 17

In a recent decision, the Public Employment Relations Board (PERB) addressed the public hearing requirement an agency must satisfy before implementing its last, best, and final offer (LBFO), after completing applicable impasse procedures. In City of Yuba City (2018) PERB Dec. No. 2603-M, PERB upheld an administrative law judge decision dismissing an unfair practice charge brought against the City of Yuba City (City) by Public Employees Union Local 1 (Local 1) alleging violation of the Meyers-Milias-Brown Act (MMBA).

Background

Local 1 alleged that the City unlawfully failed to hold a public hearing before imposing a LBFO in violation of section 3505.7 of the MMBA. Government Code section 3505.7 provides that after completing any applicable impasse procedures, and no earlier than 10 days after the parties receive the factfinding report, the agency “may, after holding a public hearing regarding the impasse, implement its [LBFO]….” This case marks the first time PERB has considered violation of the public hearing requirement as a potential standalone violation of the MMBA.

Local 1’s allegations specifically charged that, by identifying the item on the City Council’s agenda as “Local 1 imposition,” rather than as a public hearing regarding the impasse, and by focusing on the need to impose terms rather than on the disputed issues, the City failed to follow the statutory procedures prescribed by the MMBA.

In rejecting this argument, PERB noted that the agenda and staff report described the parties’ bargaining history, and notified the public that the parties had reached impasse and exhausted impasse procedures. Additionally, the union admitted it had the opportunity to prepare for the Council meeting and had received the agenda and staff report. Further, the Mayor “opened up the public hearing” during the public portion of the meeting. Based upon these facts, PERB concluded that the City had satisfied section 3505.7’s requirement to conduct a public hearing regarding the impasse.

Local 1 also argued that the City did not intend to hold a public hearing regarding the impasse because (1) the “Local 1 imposition” item did not appear on the agenda where public hearings were required to be listed per the City’s local rules and (2) the City failed to provide adequate notice required under the Brown Act of a public hearing regarding the impasse. PERB also rejected this argument on the basis that the City had adequately informed the public that the City Council would be considering imposing the LBFO and the opportunity for public comment had been provided.

In other words, the fact the item was not described as a “public hearing” on the agenda at a particular location on the agenda did not establish a violation of section 3505.7’s public hearing requirement under the facts. Rather, PERB clarified that section 3505.7’s public hearing requirement is satisfied when the agency (1) provides adequate notice to the public that it intends to consider imposing terms and conditions on employees (the LBFO) and (2) allows public comment concerning the proposed imposition of the LBFO.

Takeaways

While the PERB’s decision was dependent upon the facts in this case, there are some important takeaways:

  1. After completing impasse procedures and before imposing an LBFO, agencies should ensure that section 3505.7’s public hearing requirements are met. To reduce exposure to similar claims, the agenda should clearly describe the item as a “public hearing regarding impasse pursuant to Government Code section 3505.7,” or words to that effect. Local rules pertaining to agenda requirements (e.g. location of hearings on agenda and timely posting, etc.) should be followed. Please note the Educational Employment Relations Act does not appear to have a similar public hearing requirement.
  2. The staff report should describe the parties’ bargaining history, impasse, and compliance with applicable impasse procedures.
  3. The item should be considered and deliberated upon in open session during a regular meeting in which public comment is invited.
  4. The government agencies should ensure the union is provided with sufficient time to prepare for the public hearing by ensuring the agenda is timely posted and all documents supporting the agenda item are timely provided to the union.

For more information about this decision or about labor law questions in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Meera H. Bhatt

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court To Decide Whether Local Agencies Can Recover Costs Associated With Redacting Video Footage Under The Public Records Act

February 2019
Number 8

Rarely are state and local government agencies permitted to charge for the labor that goes into responding to a California Public Records Act (CPRA) request. In National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937, the First District Court of Appeal held that the City of Hayward was entitled to reimbursement of costs associated with necessary redactions of body camera footage to produce the non-exempt portions of footage requested under the CPRA. This case is now pending before the California Supreme Court, which will be deciding this case in light of the increased availability of law enforcement records under Senate Bill 1421. For more information on SB 1421, please see 2018 Client News Brief No. 60. The outcome of the Supreme Court’s decision will likely establish significant rules regarding the accessibility of public records in video
format.

Background

Historically, the bulk of the costs to comply with the CPRA are borne by the local agency. As technology advances and the ability to retain and access information advances with it, the cost of producing documents has increased in many cases. Under previous case law, public agencies were allowed to charge requestors for an extremely narrow subset of their direct costs. Under the Court of Appeal decision, the City of Hayward would have been able to recover “the City’s actual expenditures to produce a copy of the police body camera video recordings.” This rule would have represented a significant change in the scope of costs that can potentially be recovered. This rule is now on hold until the California Supreme Court decides the issue.

National Lawyers Guild v. City of Hayward

The National Lawyers Guild requested six hours of police body camera footage from a protest in the City of Hayward. In order to comply with the request, the City determined that it needed to purchase a special program to redact confidential sections of the footage, and asked the National Lawyers Guild to bear the cost of the software; this litigation ensued. In the end, the court required the National Lawyers Guild to pay for the costs associated with the redactions. The court explained that:

“For electronic records… the statute allows an agency to recover specified ancillary costs in either of two cases: (1) when it must “produce a copy of an electronic record” between “regularly scheduled intervals” of production, or (2) when compliance with the request for an electronic record ‘would require data compilation, extraction, or programming to produce the record.’ (§ 6253.9, subd. (b)(1), (2); see 88 Ops.Cal.Atty.Gen., supra, at p. 164.) Under those circumstances, the agency may charge the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record. (§ 6253.9, subd. (b).)”

In reviewing the legislative history of the statute, the Court of Appeal reasoned that when an agency “must incur costs to acquire and utilize special computer programming…to extract exempt material from otherwise disclosable electronic public records” the public agency could be reimbursed. The court recognized that lawmakers made a special exemption for processing electronic records because the efforts needed to redact electronic records would greatly exceed those associated with paper records.

Interestingly, the court did not limit cost recovery to extracting exempt material but stated that allowable costs under Government Code section 6253.9, subdivision (b), include the “City’s actual expenditures to produce a copy of the police body camera video recordings” along with the ability to recover costs for extracting exempt material. If the Court of Appeal decision is allowed to stand, the court’s reasoning could theoretically be expanded to support the recovery of costs whenever an electronic record must be altered to comply with a request.

Takeaways

The decision by the Court of Appeal highlights the importance of informing requesting parties that they may be responsible for the costs associated with video footage, and to work out the terms of payment for such work before the redactions are made.

Pending the outcome of the California Supreme Court’s decision, agencies impacted by costly requests for electronic records in need of redaction should consult with legal counsel to evaluate potential cost recovery.

We will issue an update once this case is ultimately decided. If you have any questions about the National Lawyers Guild decision or the California Public Records Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Reaffirms Governing Board’s Ability to Impose Reasonable Limits on Public Comment

September 2018
Number 51

A California appellate court recently reaffirmed the limitations a governing board of a public entity can impose on public comments during a board meeting (Ribakoff v. City of Long Beach).

Background

As was his frequent practice, Joe Ribakoff attended a Long Beach Public Transportation Company (LBTC) board meeting as an interested citizen. LBTC’s lone shareholder is the City of Long Beach, and LBTC operates as a public entity. During the public comment period, Ribakoff spoke for the three minutes that an LBTC board ordinance grants members of the public to address the board. When Ribakoff attempted to speak a second time, after the close of public comment, he was denied the opportunity to speak further and his microphone was cut off. An LBTC representative testified that Ribakoff became argumentative and appeared to approach the dais where the board was seated. A police officer was summoned and told Ribakoff that if he disrupted the meeting again, he would be arrested for violation of a city ordinance prohibiting disturbance or interruption of a board meeting.

Ribakoff sued the board, arguing that the board meeting disturbance ordinance violates the First Amendment, and that its three-minute speaking limit violates the Brown Act and the First Amendment.

To support his argument that the ordinance’s prohibition on disturbance or interruption of a board meeting violated the First Amendment, Ribakoff pointed to precedent that says an ordinance is unconstitutional if interpreted to allow an arrest based on the content of the disruption. However, that precedent also found that an ordinance is constitutional if it is construed to be a content-neutral “time and place” restriction. The court construed the challenged ordinance to be a legitimate “time and place” regulation that only penalized speech based on whether it was disrupting the meeting, not on what was being said.

The Brown Act permits a public agency’s governing board to adopt reasonable time limitations to ensure adequate opportunity for public comment, but prohibits the board from censoring public criticism of it. Ribakoff argued that the three minute limit is not reasonable because the board used it for a purpose other than time limitation-it allowed the board to censor his criticism. However, the court found no evidence to support this argument. The board did not stop Ribakoff from speaking during his initial three minutes, despite his critical statements. It was only when he attempted to speak after his three minutes had expired that he was restrained from speaking further.

Ribakoff also claimed that the time limit is unreasonable because the three-minute limitation applies only to public comment and not the board or its invited speakers. The court disagreed, pointing out the difference in purpose between public comments and board or invited presenter speech. When the board or its invited presenters speak, it is for the benefit of the public. The board regulates the number and length of these presentations, and ensures that they do not take more time than necessary. Conversely, public comment is potentially unlimited depending on how many members of the public are at the meeting, so a reasonable time limitation is justified.

The court recognized that board meetings are open to the public, yet are still governmental processes with an agenda and a purpose. Therefore, limitations for the purposes of keeping the board meeting on schedule and on topic are justified.

Takeaways

  • Boards are generally not permitted to adopt rules that limit public comment based on the content of the comment. But it is not a free speech violation to limit comments to the topic at hand.
  • Cities or other entities with police power may adopt ordinances that authorize penalties for members of the public when their behavior-and not the content of their expression-impairs the conduct of the meeting.
  • Boards may adopt reasonable time limitations on public comment.
  • Boards may have different time limitations for public comment versus board members or invited speakers.

For questions regarding the Ribakoff decision or about public comment or board meetings in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold M. Freiman

Partner

Jordan R. Fong

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Dates for Education Officials to Assume Office, Effective January 1

September 2018
Number 49

A new law will change the date that members of a county board of education, school district governing board, or community college district governing board take office. Assembly Bill (AB) 2449, which resolves clashing Education Code and Elections Code provisions, becomes effective on January 1, 2019.

Background

Existing Education Code provisions require newly-elected county board of education members to be seated on the last Friday in November and newly-elected school and community college district board members to be seated on the first Friday in December. The Elections Code provides that during even-year elections, county election officials have up to 30 days after Election Day to certify voting results. Thus, certification of the vote could occur after the dates for seating new board members. This conflict has up until now created a conundrum for governing boards, which were forced to either abide by the Education Code and seat new members before election results were certified or ignore the Education Code and wait for the completion of the certification process to seat new board members.

AB 2449 amends sections 1007, 1009, 5017, and 72027 of the Education Code to resolve this conflict. The law will change the date on which newly-elected county, school, and community college board members must be seated to the second Friday in December in the year of election. There is an exception for members of the county board of education elected in a primary election: They take office on the first day of July. The new law also changes the date of the organizational meeting, from on or after the last Friday in November to on or after the second Friday in December, except for the county boards of education whose members are elected in the primary election. Those boards’ organizational meetings will occur on or after the first day of July. Finally, the bill changes the date on which governing board members vacate office from the first Friday in December to the second Friday in December.

Takeaways

School districts, community college districts, and county boards of education should note the new dates for seating new board members, vacating office, and holding organizational meetings, effective January 1, 2019. These changes will not affect the upcoming 2018 elections.

If you have any questions about AB 2449, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Louis T. Lozano

Partner

Benjamin Brown

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Public Records Act Does Not Require Creation of Generalized Electronic Data

September 2018
Number 48

A California appellate court has ruled that public agencies are not required to provide anonymized data in response to California Public Records Act (CPRA) requests when doing so would require the public agency to create new data.

Background

The CPRA requires public entities to disclose public records unless there is a specific legal exemption. The courts have previously affirmed that the CPRA does not require public agencies to create new records to satisfy a CPRA request. However, in some circumstances public agencies are required by statute to compile or extract data from electronic records, provided that the requester pays for any associated programming or computer services costs.

Sander v. State Bar of California

In Sander v. State Bar of California, decided on August 23, researchers made a CPRA request for information from the State Bar of California related to applicants to the California Bar Examination, such as applicant race, law school, year of graduation, and undergraduate grade point average, in order to study bar passage rates among racial and ethnic groups. The researchers proposed four methods by which the State Bar could provide access to this data without violating the privacy interests of the applicants. The first method was for the State Bar to create a physical “data enclave” where the public could access and analyze the data under State Bar supervision after it had been stripped of personal identifiers and other sensitive information. The other three proposed methods involved providing anonymized data through various means. All of the methods of anonymizing the data involved some level of “generalizing” the data, such as replacing specific grade point averages with averages or ranges and replacing law school names with law school classifications.

The Court of Appeal affirmed the general principal that the CPRA requires public agencies to provide access to their existing records but does not require the creation of new records to satisfy a request. While public agencies are required to search, extract, compile, or redact electronically stored data, the court held that a request that requires a public agency to create new data is outside of the CPRA. The court also held that nothing in the CPRA required the State Bar to create a supervised “data enclave”.

Takeaways

  • Public agencies are not required to create new records in response to CPRA requests.
  • While public agencies are required to search, extract, compile, or redact electronically stored data, public agencies do not have to create new data in response to CPRA requests.
  • Public agencies are not required to anonymize data by replacing existing data with new, “generalized” data.

From a broader standpoint, this case supports public agencies that are asked to alter or manipulate existing documents or data to meet the demands of a public records requestor. As observed by the Sander court, a public agency “cannot be required to create a new record by changing the substantive content of an existing records or replacing existing data with new data”.

If you have any questions about Sander, or about the CPRA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold M. Freiman

Partner

Nicholas J. Clair

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.