Contracting COVID-19 While Working Could Make Employees Eligible for Workers’ Compensation Benefits

May 2020
Number 45

On May 6, 2020, Governor Gavin Newsom signed Executive Order N-62-20, the latest in a series of Executive Orders expanding protections for workers during the ongoing COVID-19 pandemic. This order imposes a presumption that a California worker working outside their home who contracts COVID-19 has contracted the illness at work, making them eligible for workers’ compensation benefits. The presumption remains in place from March 19, 2020, through July 5, 2020, and can be rebutted by the employer.

When Does the Presumption Arise?

For the presumptions to apply, an employee must test positive for or be diagnosed with COVID 19 within 14 days after the employee worked for their employer at a location outside of their home or residence. The date the employee worked must have been on or after March 19, 2020. If the employee’s contracting of the virus is established through diagnosis rather than testing, the diagnosis must be provided by a physician who holds a physician and surgeon license issued by the California Medical Board and the diagnosis must be confirmed by further testing within 30 days of the date of the diagnosis.

The presumption is rebuttable and may be controverted by other evidence. If the claim is not denied within 30 days—a shortened timeframe from the typical 90 days—of the claim form being filed by the employee, it is presumed compensable, unless rebutted by evidence that could only be discovered subsequent to the 30-day period.

Eligibility Requirements

To qualify for workers’ compensation benefits such as temporary disability or Labor Code section 4850 salary continuation benefits under Executive Order N-62-20, an employee must satisfy either of the following:

  1. If the employee tests positive for COVID-19 or is diagnosed with the virus on or after May 6, 2020, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis; or
  2. If the employee tested positive or was diagnosed prior to May 6, 2020, the employee must obtain a certification by May 21, 2020, documenting the period for which the employee was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.

What Benefits Are Available?

Under this Order, qualifying employees are eligible for all workers’ compensation benefits, including full hospital, surgical, medical treatment, disability indemnity, and death benefits, and are subject to the workers’ compensation laws.

Typically under the workers compensation rubric, there is a three day waiting period prior to an injured worker receiving temporary disability benefits. Executive Order N-62-20 waives this waiting period.
However, where an employee has paid sick leave benefits specifically available in response to COVID-19, for example, benefits provided under the Families First Coronavirus Response Act (FFCRA), those benefits shall be used and exhausted before any temporary disability benefits or benefits under Labor Code section 4850 are due and payable. (See 2020 Client News Brief Number 17 for more information on FFCRA)

Takeaways

The Governor has put in place another protection for California workers who return to work during the COVID-19 pandemic, creating further incentive for employees to seek medical treatment if they experience COVID-19 symptoms contracted at work and for employers to implement policies and procedures to protect workers and reduce their risk of exposure. This Executive Order raises questions regarding its interplay with other leave provisions. For example, it is unclear what impact this presumption has on industrial illness and accident leave under the Education Code. See the Lozano Smith COVID-19 Leave Chart for further information regarding how leave is affected by the ongoing COVID-19 pandemic.

If you have any questions about Executive Order N-62-20, COVID-19 related leave or any other leave related questions, 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:

Gabriela D. Flowers

Partner

Sarah E. Fama

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.

Data Breach Notification Law Gets Updates With Important Implications

January 2020
Number 2

Data breaches are all but inevitable and occur in all types of organizations. Public entities are no exception, with cyber criminals increasingly targeting the wide-range of sensitive information they maintain (e.g., student data, resident data, confidential government infrastructure data, etc.). Against the backdrop of and in response to this looming threat of cyber-attacks, Governor Newsom recently signed into law Assembly Bill (AB) 1130, which makes small but significant changes to the state’s existing data breach notification laws.

Current Law

Under Civil Code section 1798.29, any agency (including a local government or school district) that owns or licenses computerized data that includes personal information has an obligation to provide notice to any California resident whose unencrypted personal information is or is reasonably believed to have been acquired without authorization. Notification to affected individuals must be made in the format and include the information specified in the law. Importantly, notification obligations are triggered when the acquired information includes personal information as defined under the law, unless the information was encrypted and the security credentials or encryption key that would permit access to the information was not also acquired. As defined under the law, personal information includes an individual’s first name or first initial, and last name, in combination with certain other types of information including social security number, driver’s license number, and medical information. For a more detailed discussion, including the specific information required to be included in a breach notice, see Lozano Smith’s 2017 TIPJar Article.

New Law

Effective January 1, 2020, AB 1130 amends the definition of personal information under Civil Code section 1798.29 with the purpose of addressing perceived gaps in the categories of sensitive information protected under the law. Under these amendments, personal information will now include an individual’s first name or first initial, and last name, in combination with either of the following (in addition to the data elements previously included in the definition):

  • Driver’s license number, California identification card, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual.
  • Unique biographic data generated from measurements or technical analysis of human body characteristics, such as fingerprint, retina, or iris image, used to authenticate a specific individual (not including a physical or digital photograph, unless used or stored for facial recognition purposes).

These changes have the potential to significantly impact public entities in terms of data breach notification obligations. Because biometric data is less commonly found in public entity databases, the largest impact from the new law will likely be the expansion of the types of government identification numbers that, if disclosed, may create a reportable event. By including within this definition “other unique identification numbers issued on a government document,” the law now potentially encompasses many additional types of information used by public entities to identify individuals within their databases and which they would not normally associate with or guard as personal information, one of example of which would be student identification numbers.

Takeaways

The best response to the threat of a cyber-attack is being prepared for it. Public entities should act now to review their data security and breach incident policies and procedures to ensure those documents define a reportable incident in compliance with the changes made by AB 1130. Personnel responsible for the organization’s data security should be placed on notice of these changes and instructed to make updates to all relevant policies, procedures, and data security training, as appropriate. Finally, those organizations without such policies or procedures should strongly consider adopting them to ensure they are prepared to comply with the California’s breach notification requirements, when, not if, an information security incident occurs.

If you have any questions about AB 1130 or data security breach notification obligations of public entities 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:

Devon B. Lincoln

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.

In An Historic Move, California Paves Way For Public Banks

December 2019
Number 86

Effective January 1, 2020, local agencies will be allowed to create their own public banks. Assembly Bill (AB) 857, known as California’s Public Banking Act, allows local agencies and/or joint powers associations to organize nonprofit mutual benefit corporations for the purpose of engaging in the banking business. The stated purpose of the Public Banking Act is achieving cost savings for local government entities, strengthening local economies, supporting local economic development, and addressing community infrastructure and housing needs.

The procedural requirements for establishing a public bank include the following: the local agency must establish a separate corporate legal entity with appropriate articles of incorporation setting forth a specified purpose statement for the bank. Then, the entity must conduct a required feasibility study to assess the viability of the proposed bank. Next, the entity must submit a certificate of authorization to the Commissioner on Business Oversight (CBO). (Non-charter cities must have voter approval of a motion to submit an application to the CBO.) Finally, the public bank must secure Federal Deposit Insurance Corporation (FDIC) insurance and obtain a license from the CBO.

Entry into the public banking market is limited. Under AB 857, the CBO is allowed to issue just two licenses per year, and there can be no more than 10 public banks authorized to operate at one time.

Once the public bank is operational, it will be prohibited from competing with other retail banking financial institutions. Accordingly, the public bank’s primary function will be lending money to local initiatives that fall within the purview of its specified purpose statement in the articles of incorporation. Public banks are exempt from state taxes and a county is able to lend available funds to the bank.

Notably, the Public Banking Act includes Brown Act and Public Records Act exceptions. Brown Act open meeting requirements are waived when a local agency’s board convenes to discuss matters involving loan or investment decisions, and matters involving internal audits, compliance, governance, and meetings with state or federal regulators. Public Records Act disclosure requirements will not apply to any information or records pertaining to decisions made in any closed session meeting, information regarding investment decisions, information regarding specific bank accounts, and information regarding meetings with state and federal regulators. Furthermore, all information received by a shareholder, member, or owner of a public bank must remain confidential.

Takeaways

The process for establishing a public bank involves multiple procedural steps each requiring state and federal approval. There will likely be significant competition to obtain state licensure because licenses will be severely restricted. Time is of the essence for local government entities interested in establishing their own public bank. Once established, a public bank will need to observe and comply with state and federal regulations applicable to financial institutions.

If you have questions regarding establishing a public bank, 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:

Daniel Maruccia

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.

Appellate Court Refuses To Enforce An Indemnity Provision Included In Consultant Agreement It Considers To Be Unfair To Consultant Plaintiffs

December 2019
Number 85

On December 9, 2019, the Appellate Court filed its decisions inLong Beach Unified School District v. Margaret Williams LLC, holding that an indemnity provision included in a consultant agreement between the parties was unfair and therefore inapplicable to claims brought by the consultant, Margaret Williams, or her consultant company, Margaret Williams LLC, against the District.

Background

In 2006, Long Beach Unified School District prepared and entered into its standard form consultant agreement with Margaret Williams LLC to perform full-time consultant work related to construction management and environment compliance on District projects.

In October 2013, a general contractor illegally brought contaminated material on one of the District’s construction sites. Based on this incident, a dispute arose between Ms. Williams and the District representatives assigned to the construction site as to how the contamination would be addressed, and Ms. Williams contracted arsenic poisoning. The District terminated the consultant agreement over its dispute with Ms. Williams.

Ms. Williams and her company brought an action against the District based on claims of retaliation and numerous causes of action for breach of contract and Ms. Williams’ wrongfully caused arsenic poisoning. The District filed a cross-complaint alleging the company was required to indemnify the District against the company’s and Ms. Williams’ claims, according to the terms of the consultant agreement. The consultant agreement required the company “at its own expense, cost, and risk, [to] defend any and all claims, actions, suits, or other proceedings . . . that may be brought or instituted against the DISTRICT, its officers, agents or employees . . . and shall pay or satisfy any judgment that may be rendered against the DISTRICT, its officers, agents or employees in any action, suit or other proceedings as a result thereof.” Thus, according to the District, the company was required to indemnify the District even against claims brought by the company and Ms. Williams, and even if the District was at fault.

Ms. Williams and her company asked that the trial court strike the District’s cross-complaint in its entirety. That motion was granted by the trial court, and the trial court’s decision was then appealed by the District.

The Court’s Unconscionability Test

The appellate court’s opinion focused on Williams’ argument that the District could not force the company to indemnify the District because the indemnity provision included in the consultant agreement was unconscionable. The court was required to determine if the indemnification provision was so one-sided in favor of the District that it should not be enforced, and it did so by analyzing multiple factors to consider both the provision’s procedural unconscionability (the allegedly unfair fashion in which the contract was imposed) and its substantive unconscionability (the alleged unfairness of the contract’s terms).

  • Procedural Unconscionability: The consultant agreement was presented to the company in a standard form, on a take-it or leave-it basis, with no negotiation. Based on these facts, the District was found to have the superior bargaining power and, according to the court, the company faced economic pressures to accept the contract as drafted. In addition, the court stated that, based on the terms of the agreement, the company was unfairly surprised to learn it would be required to pay for the District’s defense and indemnity, since the agreement also included a requirement that each party pay their own costs and attorney’s fees in any litigation arising from the agreement. For these reasons, the court found procedural unconscionability.
  • Substantive Unconscionability: The court also considered the fairness of the consultant agreement’s terms, and found a high degree of substantive unconscionability. The indemnity provision as drafted by the District, if enforced, would limit the company’s opportunity to obtain meaningful recovery in numerous valid actions against the District. Further, because Ms. Williams was not herself a party to the consultant agreement, the company would, under the language of the agreement, be required to pay the cost of defending against her claims as well as the cost of any ultimate judgment awarded to Ms. Williams against the District. For these reasons, the court found the clause to be substantively unfair.

Based on the court’s finding of both procedural and substantive unconscionability, it determined the provision could not be enforced because it would result in the unfair scenario of the company being required to pay for the entire lawsuit- required to defend its own lawsuit and indemnify any damages they may be due.

Takeaways

The court’s decision inLong Beach Unified School District v. Margaret Williams LLC, reinforces the legal concept that if a provision of a contract is considered by a court to be unfair, the court has discretion to limit the provision’s application to avoid an unfair result. Therefore, this decision acts as a caution against overly broad indemnification clauses. We recommend reviewing such clauses with legal counsel to determine their enforceability.

If you have any questions about indemnity provisions or contracting 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:

Devon B. Lincoln

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.

Charter Cities Bound By More General Law

December 2019
Number 84

A recent ruling of the Sixth District Court of Appeal found that a charter city, the City of San Jose, must abide by the California Surplus Land Act. In Anderson v. City of San Jose (November 26, 2019, H045271) __Cal.App.5th __, the court’s ruling focused on the Act’s provisions requiring that local agencies offer surplus property for subsidized housing affordable to low and moderate-income residents. The City of San Jose argued that its status as a charter city and its “home rule” power allowed the city to determine the best policy for land use within its boundaries. The Court of Appeal rejected this argument and stated that the shortage of affordable housing was a matter of statewide concern, which justifies application of general law regardless of San Jose’s status as a charter city.

Background

The Surplus Land Act requires local agencies to first offer surplus land to a developer for the purposes of a residential project where 25 percent of the units will be affordable housing for at least 55 years. If no such deal can be reached, the local agency may list the land on the open market with the condition that if the land is used to build 10 or more homes, at least 15 percent of those units must be affordable.

The California Constitution defines general law cities and charter cities, and authorizes them to: (1) make and enforce all local laws and regulations not in conflict with general state laws (Cal. Const., art. XI, § 7);(2) establish, purchase, and operate public works and utilities or franchise others to do so (Cal. Const., art. XI, § 9); and (3) be free from state legislation delegating to a private person or body control over city property, funds, tax levies and municipal functions (Cal. Const., art. XI, § 11). Cities with voter-approved charters have additional “home rule” authority or supremacy over their municipal affairs, police, subgovernments, city elections, and their elected and appointed city officials and employees (Cal. Const., art. XI, § 5). However, as to matters of statewide concern, charter cities remain subject to state law. (Bishop v. City of San Jose (1969) 1 Cal.3d 61.) The designation of matters of statewide concern is elastic and often reflects the current times and policies of the state.

Anderson v. City of San Jose

In addressing the City of San Jose’s argument in this case, the appellate court’s analysis centered on the application of the test set out in California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1. According to the appellate court, the key elements of the test at issue here are “whether the disposal of locally owned surplus property for affordable housing purposes is a matter of statewide concern. If so, we consider whether the provisions of the Act are reasonably related to resolution of that concern and narrowly tailored to avoid unnecessary interference in local governance.” The court ultimately opined that, “[b]y requiring municipalities to prioritize surplus land for the development of low- and moderate-income housing, the statute addresses the shortage of sites available for affordable housing development as a matter of statewide concern. Because the statute also narrowly tailors the restrictions on local government to avoid unnecessary interference in the locality’s affairs, it meets the test for statewide preemption.”

Takeaways

In ruling that the disposal of surplus land by a charter city is a matter for statewide concern, the Sixth District Court of Appeal offered a new strategy to those looking to challenge the “home rule” and the discretion afforded to charter cities in deciding matters of public policy under their purview. The success of the appellant’s arguments in this case may have a ripple effect far beyond the application of the Surplus Land Act. This ruling may encourage challenges of other charter cities’ application of their “home rule” in other contexts.

For more information about this ruling, 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

Junaid Halani

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.

Settlement Agreements To Resolve Employment Claims Filed By A Person Against Their Employer Can No Longer Contain No-Rehire Clauses

December 2019
Number 83

In the wake of the #MeToo movement, and as part of the ongoing legislative response to it, Governor Gavin Newsom signed Assembly Bill (AB) 749 into law, which prohibits no-rehire clauses in certain types of settlement and severance agreements. While the intent behind that law focused on victims of sexual harassment or sexual assault, the law is broad in scope and is not limited to such claims.

AB 749 applies to any settlement agreement between an employer and an “aggrieved person” entered into to resolve an employment dispute. An “aggrieved person” is defined as a “person who has filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.” Beginning January 1, 2020, California employers-including public agencies-will be prohibited from including no-rehire language in any settlement agreement to resolve a claim filed by such aggrieved persons against their employer. Existing agreements regarding an employment dispute containing a no-rehire clause will be void (as to that provision) as of January 1, 2020.

Under AB 749, no-rehire clauses can only be included where there is a good faith determination by the employer that the person entering into the settlement agreement engaged in sexual harassment or sexual assault. The bill further clarifies that employers are not required to continue employing or rehire a person if there is a legitimate nondiscriminatory or nonretaliatory reason for terminating or refusing to rehire the person. In addition, the settlement agreement can contain resignation or termination of employment language.

Takeaways

Employers should review and revise standard settlement and severance agreements regarding employment disputes and remove any no-rehire clauses. It is important to keep in mind that not all settlement agreements will be subject to this prohibition, only those to resolve a claim or claims filed by a person against their employer. Additionally, employers may see an uptick in applications for reemployment from employees who settled employment disputes with the employer in the past, and employers should be prepared on how to handle such applications.

If you have any questions about AB 749 or about labor and employment 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 LinkedInor download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Marina L. Ramirez

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.

Bill Intended To Establish E-Mail Retention Requirement For Public Agencies Vetoed By Governor Newsom

December 2019
Number 82

California lawmakers recently proposed Assembly Bill (AB) 1184, which would have required public agencies to retain business related e-mails for at least two years. While the Governor did not sign the bill, this legislative effort again shows the significant interest in preserving e-mails as part of a public agency’s public record.

AB 1184: Public Records E-Mail Retention

The California Public Records Act establishes that every person has a right to inspect public records. Public records include any e-mail containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency.

Existing law authorizes cities, counties, and special districts to destroy or to dispose of duplicate records when they are no longer required by the city, county, or special district. However, the law does not address the requirements for the retention of e-mails. AB 1184 intended to add section 6253.32 to the Government Code to require all public agencies to retain and preserve every public record that is transmitted by electronic mail for at least two years.

Governor Newsom returned AB 1184 without his signature, stating it did “not strike the appropriate balance between the benefits of greater transparency through the public’s access to public records, and the burdens of a dramatic increase in records-retention requirements, including associated personnel and data-management costs to taxpayer[s].”

Had AB 1184 been signed into law, any other statute or regulation that required a longer retention period, or any rule established by the Secretary of State that provided for a longer retention period, would have remained in place.

With or without this legislation, school districts remain subject to specific California Code of Regulations requirement governing the retention and destruction of school district records in California. The contents of a particular record will determine how long a school district must maintain that record and all records must be classified prior to destruction. (See 2017 Client News Brief No. 2). Community college districts are also subject to retention regulations under the California Code of Regulations, although those retention requirements differ from the rules regarding school districts’ records.

Takeaways

Governor Newsom suggests that legislation must find a balance between the benefits of greater transparency through the public’s access to public records and the burdens of a dramatic increase in records-retention requirements. Though AB 1184 was unsuccessful, local agencies should be aware that the question of preservation of e-mails will remain of interest to the Legislature and to advocates for greater transparency.

For public agencies who may wish to establish or update their own record retention policies to address existing retention requirements, Lozano Smith provides policy options for addressing the complexities raised by the retention of e-mails. For a copy of the retention policy documents, contact Client Services. For more information on AB 1184 or guidance on e-mail retention, please contact the author 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:

©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.

Public Agencies Can Be Liable For Attorney’s Fees In Reverse-CPRA Actions

December 2019
Number 80

The risks involved in asking a court to halt the disclosure of documents sought under a California Public Records Act (CPRA) request were just expanded to public agencies. About a year ago, we reported that a pair of court decisions held that private parties who lose in a lawsuit, to prevent government agencies from disclosing personal information, may be required to pay the requester’s attorney’s fees (see 2018 Client News Brief Number 35). In the recent case of City of Los Angeles v. Metropolitan Water District of Southern California (November 19, 2019, B272169) __Cal.App.5th__, this rule has now been extended to third-party public agencies seeking to prevent the disclosure of governmental records.

Background

During a time of severe drought in California, the Metropolitan Water District (Metropolitan) implemented a rebate program for customers who replaced their grass with drought tolerant landscaping. The City of Los Angeles Department of Water and Power (DWP) is a member agency of Metropolitan, and has customers who received rebates through Metropolitan’s program.

On May 19, 2019, a reporter from the San Diego Union Tribune (Tribune) wanted to research allegations that the rebate program was favoring affluent communities. The reporter made a CPRA request to Metropolitan for information about the rebate recipients, seeking information including recipients’ names, addresses, and rebate amounts. Before responding to the request, Metropolitan provided DWP with a copy of the request. Metropolitan and DWP agreed to limit the response to only generalized block numbers, and Metropolitan’s share of the rebate amount (member agencies had the option of supplementing customer rebates). Tribune objected to the withholding of information, and DWP filed a “reverse-CPRA” lawsuit, seeking to broadly prevent Metropolitan from releasing customer information about anyone who participated in the rebate program. At trial, the court ruled in Tribune’s favor, determining that the records in dispute must be disclosed. The trial court required Metropolitan to pay about $25,000 to Tribune for attorney’s fees under the CPRA. The court further awarded Tribune about $136,700 in attorney’s fees under California’s Private Attorneys General Act (PAGA) (Code Civ. Proc., § 1021.5), to be paid by DWP and other intervening utilities. PAGA allows a court to grant attorney’s fees in favor of a party who seeks to enforce an important public right, such as the disclosure of records concerning public expenditures.

On appeal, the court affirmed for the first time that governmental agencies risk liability for attorney’s fees under PAGA if the agency loses a lawsuit challenging the agency’s decision to withhold public records. Here, DWP lost its appeal to withhold its customer’s information, and the trial court affirmed the initial attorney’s fees and added an additional $12,350 to the award.

Takeaways

City of Los Angeles should serve as a cautionary tale for public agencies considering intervening in CPRA disputes, to prevent disclosure of public records. The financial risks involved in such intervention have now significantly increased for public agencies, and the court has reaffirmed the general stance favoring the broad disclosure of information. When a public agency is at risk of having its information disclosed in another agency’s response to a CPRA request, seek legal assistance in conducting a careful analysis of how to proceed.

If you have any questions about the City of Los Angeles case, the CPRA or PAGA 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:

Manuel F. Martinez

Partner

Sophia V. Cohn

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.

Complainants Now Have 3 Years To File Charge Of Employment Discrimination

December 2019
Number 79

Effective January 1, 2020, employees complaining of discrimination in the workplace will have three years to file a charge of discrimination with the California Department of Fair Employment and Housing (DFEH).

On October 10, 2019, Governor Gavin Newsom signed Assembly Bill 9 into law, which extends the deadline under the Fair Employment and Housing Act (FEHA) for employees to file a charge from one year to three years-tripling the amount of time employees previously had to do so.

According to the bill’s author, extending the deadline was prompted by the #MeToo movement, which “has brought attention to many of the dynamics related to sexual harassment.” Many victims needed “ample time to fully grasp what happened to them before they felt comfortable coming forward,” and “the fear of retaliation often prevented victims from being able to report incidents of sexual harassment.” The same is true for other types of discrimination as well, where victims “may be initially unclear about what happened, unaware of their rights, or reluctant to report misconduct to their boss.”

FEHA prohibits employer discrimination, harassment, and retaliation against employees based on certain protected classes, such as race, religion, sex, gender, sexual orientation, marital status, disability, and age. Employees must first file a charge with the DFEH, which entails filling out and filing an intake form provided by the DFEH. The DFEH then reviews the information provided by the complainant supporting his or her claim. If the DFEH declines to investigate the case, the complainant receives a “right-to-sue” letter, allowing him or her to file a complaint in superior court within one year from receiving the letter.

AB 9 defines “filing a complaint” as filing the DFEH intake form. So, under the new law, employees must file the intake form with the DFEH within three years of the alleged unlawful practice. This deadline may be extended by 90 days if, within 90 days of the deadline, the complainant first learns of the unlawful conduct. This situation commonly arises when employers conceal their unlawful conduct and the employee has no reasonable means to discover it.

The new law will not apply retroactively-that is, it will not revive claims that have already lapsed under the former one-year limitations period. And it only applies to claims under the California-specific FEHA; for most employers, federal claims of discrimination under Title VII must still be filed with the EEOC within 300 days of the alleged discriminatory conduct.

Takeaways

This new law will have a significant impact on all employers, including public agencies. Employees will now have up to four years to file an employment discrimination complaint in state court-three years from the misconduct, plus one year to file in court. This places employers in the difficult position not only to maintain documentation and other evidence for longer, but to rely on fading memories and to locate witnesses who may have since relocated. In light of these new realities, employers should revisit and update their internal document retention policies, implement effective anti-discrimination trainings and policies, and promptly address any inappropriate conduct in the workplace.

For more information about AB 9, including Lozano Smith training opportunities, 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:

Michelle L. Cannon

Partner

Angela J. Okamura

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.

AB 101 And SB 330: The Juggernauts Of The 2019 Housing Laws

December 2019
Number 76

During the 2019 legislative season, upwards of 20 housing bills were passed, all with the purpose of addressing California’s affordable housing crisis. Chief among these bills were Assembly Bill (AB) 101 and Senate Bill (SB) 330, each of which, in different ways, will likely have a significant impact on the discretion exercised by local jurisdictions over how their housing elements are carried out and in their approval of housing developments. Below is a high-level overview of these bills and some practical takeaways.

AB 101

Enacted as urgency legislation as a trailer to the state’s Budget Bill, AB 101 took effect immediately upon its approval by the Governor on July 31, 2019. As an omnibus bill, AB 101 contains distinct measures designed to address affordable housing, ranging from new regulatory enforcement mechanisms to creation of additional housing grants and tax credits for low-income housing projects. Here are the most critical to keep in mind:

1. New Regulatory and Judicial Enforcement of Housing Element Compliance

By way of amendment to Government Code section 65585, AB 101 establishes a detailed framework for enforcement actions against cities and counties when the Department of Housing and Community Development (HCD) finds the jurisdiction’s housing element to be noncompliant with state law. After notification by HCD of a noncompliant housing element, the Attorney General is now required to request a court order directing compliance by the city or county. If the alleged violation relates to the city or county meeting its regional housing need allocation under Government Code section 65863, the HCD must offer the city or county an opportunity for two in person or telephonic meetings to discuss the alleged violations, and must provide the city or county written findings regarding the violations prior to the Attorney General seeking a court order. After the Attorney General obtains a court order, if the city or county does not comply, the following penalty scheme applies:

  • An initial penalty of between $10,000 and $100,000 per month, if within 12 months of the order, the city or county does not comply.
  • Triple the initial penalty, if within three months of the imposition of the first penalty, the city or county does not comply.
  • Six times the initial penalty, if within six months of the imposition of the first penalty, the city or county does not comply. The court may also appoint a receiver with all powers necessary to bring the city or county into substantial compliance.

2. Approval of Low Barrier Navigation Centers

AB 101 creates a special category of homeless shelters called “Low Barrier Navigation Centers” (LBNC), the development of which is a “use by right” in areas zoned for mixed use and nonresidential purposes. Use by right means that the development is ministerially approved through a streamlined process and exempt from review under the California Environmental Quality Act (CEQA). An LBNC is unique from other homeless shelters in that it is a Housing First, low-low barrier, service-enriched shelter focused on moving people into permanent housing while providing temporary living facilities and connecting individuals to basic resources and services such as income, public benefits, and health services. The purpose of this measure is to address the homeless crisis in California and remove legal challenges to the establishment of such navigation centers. Critically, the measure also requires cities and counties to respond to applications for navigation centers within 30 days of receipt in order to notify the prospective developer whether the application is complete and to approve or deny a completed application within 60 days of receipt.

3. Changes to Streamlined Approval Process, Housing Element Bonus Points, and New Grants

Other important changes from AB 101 include an amendment to Government Code 65913.4 (the streamlined ministerial approval process commonly known as SB 35), to make it easier for developers to qualify for streamlined approval by requiring cities and counties to consider any additional density, floor area, and units granted pursuant to a density bonus in their calculation of whether a development has at least two thirds of the square footage of the development designated for residential use. AB 101 also creates a sort of “carrot and stick” approach to housing element compliance with “prohousing” compliant jurisdictions awarded bonus points in the scoring of housing and infrastructure program applications, and conversely, HCD posting on its website each month a list of cities and counties that have failed to adopt a compliant housing element – public shaming if you will. Finally, AB 101 establishes two one-time grants, one in the amount of $650 million to assist cities and counties in addressing homelessness, and another in the amount of $250 million to assist in meeting regional housing needs. Applications must be submitted by February 15, 2020 for the first of these and by July 1, 2020 for the second.

SB 330

This bill, known as the “Housing Crisis Act of 2019,” adds additional teeth to the Housing Accountability Act and Permit Streamlining Act and continues the trend from the last few years of removing local discretion in the approval of housing developments. The purpose of the bill is to address the current housing supply crises, and to that end, to suspend certain restrictions on housing development and work with local governments to expedite the permitting of housing in those areas hit the worst by the housing shortage. In effect, SB 330 makes the process for approving non-ministerial housing projects more akin to the ministerial approval process by strengthening existing requirements that cities and counties apply objective standards in their review of project applications.

SB 330 makes the following important changes:

1. Addition of a Preliminary Application. The most important change with SB 330 is the addition of a checklist and preliminary application to the housing development approval process. Cities and counties must develop their own checklist and preliminary application for housing projects to satisfy this requirement, or in the absence of doing so, use an application developed by the HCD.

2. Limited Information Requested in the Preliminary Application. The checklist and preliminary application is limited to approximately 17 categories of information and an application developed by a city or county may not require or request information beyond the information specified in SB 330. However, it may be permissible to request information to substantiate claims made in the preliminary application, such as a cultural resources study to substantiate the statement that no cultural resources exist on the property, though this is an open question.

3. Earlier Date for Deemed Completion of the Application. A preliminary application is deemed complete once the developer submits the preliminary application with all the required information and pays the permit processing fee. The determination of when the application is deemed complete is important because the city or county may only use their zoning ordinance and general plan land use designation as they existed at the time the application was deemed complete for purpose of approving or denying the final application for the development project. Importantly, SB 330 does not include requests for mitigation measures under CEQA in its prohibition against the application of new ordinances, policies, and standards.

4. Limited Opportunity to Challenge the Sufficiency of the Preliminary Application. SB 330 states that a preliminary application is deemed complete once the required information is submitted, without any determination as to its completeness by the city or county. While the bill is unclear on the degree to which a city or county can respond to an incomplete preliminary application, it is likely that a city or county would be permitted to make a request for any of the information specified in SB 330 that is not provided with the application.

5. Updated Timeframes for Approval/Denial. SB 330’s addition of the preliminary application adds complexity to the timeframes for approval or denial of housing projects, including the addition of a 180-day timeframe in which an applicant must submit a final development application following submission of a preliminary application, as well as a 90-day timeframe in which an applicant must provide information missing from the final application when requested.

6. Limited Amount of Information Requested for the Final Application. Through a small but significant amendment to the Government Code, SB 330 completely changes the process and practice of cities and counties in reviewing and approving the final development application. While current law permits cities and counties to make multiple requests for additional information to clarify information submitted with the application, SB 330 limits this process by requiring cities and counties to provide one exhaustive list of the information missing from the final application. Once this exhaustive list has been provided, no new information may be requested in a subsequent review of the application.

7. Limitations on “Affected” Cities and Counties. SB 330 places restrictions on the ability of affected cities and counties, defined as those in urban areas or urban clusters, to downzone any property to a less intensive use by changing the general or specific plan land use designation or zoning of a parcel, unless such less intensive designation was in effect on January 1, 2018 or there is no net loss in residential capacity. This includes any new or increased space or lot requirements. SB 330 also places strict limits on the ability of affected cities and counties to impose a moratorium or similar restriction on housing development, except to protect against imminent health and safety threats.

8. Steep Penalties. Cities and counties found to have violated SB 330 and existing housing development approval laws may be subject to fines of at least $10,000 per housing unit, which may be increased by a factor of five with a finding of bad faith.

AB 330 will take effect on January 1, 2020 with many of its provisions set to expire on January 1, 2025.

Takeaways

AB 101 and SB 330 make significant changes to California’s housing laws and the way in which local governments review and approve housing developments. Cities and counties can respond to AB 101, which is now in effect, by reviewing their housing elements to ensure compliance with all applicable state laws and ensuring a process exists for timely response to the HCD if allegations of noncompliance are made. To prepare for SB 330, cities and counties should, prior to January 1, 2020, develop a checklist and preliminary application. This checklist and application must be available in writing and on the city’s or county’s website. In addition, cities and counties may wish to establish a local housing trust fund to capture and keep local any fines that may be assessed under SB 330. Finally, any policies implicated by either AB 101 or SB 330 should be updated to reflect changes in the law.

If you have any questions about AB 101, SB 330, or housing laws in general, please contact the author 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. Over the next few weeks our housing experts will also be developing materials in response to the 2019 housing laws including sample checklists and preliminary applications to assist local governments in complying with SB 330. Keep an eye out for these resources.

Written by:

Jenell Van Bindsbergen

Partner

James N. McCann

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.

California Supreme Court Holds Firefighting Immunity Under California’s Government Claims Act Is A Waivable Affirmative Defense

October 2019
Number 45

In Quigley v. Garden Valley Fire Protection District, the California Supreme Court rejected the midtrial dismissal of a lawsuit involving a firefighter who suffered severe and permanent injuries after she was run over by a water truck while sleeping at a base camp. The court held that a firefighting immunity under Government Code section 850.4, part of California’s Government Claims Act (GCA) (Gov. Code, § 810 et seq.) is an affirmative defense which must be raised before trial and may be waived absent timely assertion.

Background

Plaintiff Rebecca Quigley was a U.S. Forest Service firefighter and part of a team assigned to assist with a large fire which broke out in the Plumas National Forest in September 2009. While Quigley was fighting the fire, she had to sleep at a base camp with other firefighters. One night, while Quigley was sleeping in a field in her sleeping bag, an employee of an independent contractor who was servicing a nearby shower unit drove his truck onto the field where Quigley was sleeping, severely injuring her. Quigley sued Garden Valley Fire Protection District, Chester Fire Protection District, and their employees for damages based upon claims of negligence, failure to warn, and dangerous condition of public property.

During the trial, defense counsel filed a motion for nonsuit arguing, for the first time, that the defendants were entitled to immunity under Government Code section 850.4, which grants public agencies and public employees immunity against claims for injuries caused by fighting fires. The trial court granted the motion, rejecting Quigley’s argument that the defendants waived the immunity defense when they failed to invoke immunity in their answer to her complaint. The trial court specifically ruled that Government Code section 850.4 immunity-one of several governmental immunities provided for under the Government Claims Act -is jurisdictional and therefore could be raised by a defendant at any time, including during trial. On appeal, the Court of Appeal affirmed the nonsuit in favor of the defendants and found that the defendants were immune from liability based upon a broad interpretation of section 850.4, and that such immunity is jurisdictional and thus can be raised at any time.

The Court’s Opinion

On review, the California Supreme Court considered whether the subject governmental immunity provision, section 850.4, constituted an affirmative defense, which a defendant must timely raise, or whether such immunity was absolute so that it served as a limitation on the fundamental jurisdiction of the courts. Affirmative defenses are considered waived if not timely asserted. In reaching its conclusion, the state high court affirmed that section 850.4 in fact confers an absolute immunity from liability.However, the court distinguished absolute immunity from a question of fundamental jurisdiction, and found the section 850.4 also operates as an affirmative defense. In other words, even as an absolute immunity, section 850.4 is only effective as a shield from liability if a defendant invokes the immunity before trial as an affirmative defense.

The court found that there existed a factual dispute as to whether the defendants timely invoked firefighting immunity when they raised an affirmative defense in their answer which broadly cited all the applicable immunity provisions “from Sections 810 to 996.6, inclusive” of the Government Claims Act. The court remanded the case back to the appellate court for further adjudication on this issue.

Takeaways

Quigley is significant in that it clarifies that defendants must timely invoke the absolute firefighting immunity provided for by Government Code section 850.4 in order to reap the benefits of the affirmative defense. Critically, it is likely that the court’s analysis in this respect will apply to the timely assertion of the other governmental immunity defenses provided for under the Government Claims Act.

If you have any questions about the Quigley case or about government claims 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:

Sloan R. Simmons

Partner

Lauren A. Lyman

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.

Significant New Developer Fee Cases

October 2019
Number 44

As part of an uptick of cases in recent years regarding school impact fees, two recent cases argued by Lozano Smith on behalf of school districts have been decided by the California Sixth District Court of Appeal, with mixed results. The court ruled in relation to an “adults only” agricultural worker housing project that, when imposing prospective developer fees on development projects, school districts need not establish a reasonable relationship between the fee and the specific project in question. Instead, districts are merely required to establish a nexus between the fee and the general type of project that is at issue (e.g. residential, commercial, industrial). This favorable outcome came after the same appellate court, straying from prior precedent that supported deference to local agencies, issued a published decision invalidating a school district’s developer fee justification study. The court held that the study in question was invalid because it did not provide sufficient analysis to demonstrate that the school district would have to house new students generated from development in new facilities. Both cases are part of a trend toward greater judicial scrutiny of school districts’ imposition of developer fees.

School districts in California are authorized by law to impose fees on development projects, referred to as “developer fees” or “school impact fees.” There are three separate levels of fees that can be charged, each of which are subject to different legal requirements. The first case below addresses whether a school district must analyze the potential residential population of a particular development, as projected by the developer, before imposing fees on that particular development. The second case addresses the legal requirements for preparing a Level I fee justification study.

The Tanimura Case

Tanimura & Antle Fresh Foods v. Salinas Union High School District, 34 Cal.App.5th 775, addressed a dispute regarding Level 2 developer fees. The Salinas Union High School District (Salinas) had imposed a developer fee on a 100-unit agricultural employee housing complex commissioned by Tanimura & Antle Fresh Foods, Inc. (Tanimura) within Salinas. The complex, per the terms of its development permit issued by the Monterey County Board of Supervisors, was designed to house only agricultural workers, without dependents.

In recent years, many school districts have contended with developers who argue that fees should not be imposed on their projects because the developers expect that few or no potential school age students will live in the finished project. These arguments have been made, for instance, regarding housing intended for agricultural workers, college students, or young professionals. This case affirms that a school district need not consider the developer’s intended residents for a particular project, and can instead analyze the impact of residential housing projects across the district when imposing developer fees on residential projects.

In relation to its agricultural worker housing project, Tanimura sued for a refund of its fees, alleging that the developer fees imposed by Salinas were not reasonably related to a need for school facilities, as required by statute. Tanimura cited the project’s prohibition on dependents, arguing that, as no children would reside in the complex, its construction would not generate an increased burden on the district’s facilities. The Government Code requires a public agency, before imposing prospective developer fees, to establish the purpose of the fee, the agency’s use for the funds, a reasonable relationship between the fee’s use and the type of development project on which it will be imposed, and a reasonable relationship between the need for public facilities and the type of development project on which the fee is imposed. The trial court held in favor of Tanimura, reasoning that “case law-and common sense-preclude the application of an overbroad label in a fee study that does not account for a project’s actual impact.” The court opined that Salinas was required to account for the fact that no children would be permitted to live at the complex, and in failing to do so had not met the nexus requirement of the Government Code.

In a victory for school districts, and following argument by Lozano Smith (acting as co-counsel in this matter), the Court of Appeal reversed. The court held that, when establishing a nexus between developer fees and a development project, a public agency need not consider the specific project in question; its calculus is limited to the general type of project at issue (e.g., residential, commercial, or industrial). As applied here, Salinas was not required to consider the complex’s prohibition on dependents in its fee analysis. The district’s treatment of the complex as a generic, residential development was lawful.

The court asserted that its interpretation was the only “commonsense” reading of the statute that avoided practical absurdities. To adopt Tanimura’s position, the court held, “would have the practical effect of requiring a school district to expand its needs analysis to address the projected impact on school facilities of undefined, variant subtypes of residential construction not contemplated in the statute.” The court found such an effect to be contrary with the purpose of the statutes. Further, the law contains exceptions from developer fees for certain types of developments, including government-financed agricultural migrant worker housing. However, the Legislature has created no such exception for privately-financed farmworker housing. This indicates that the Legislature did not intend for projects such as the complex to be exempted from developer fees.

The Summerhill Case

In Summerhill Winchester, LLC, v. Campbell Union School District 30 Cal.App.5th 545, the Appellate Court invalidated the Level 1 developer fees adopted by Campbell Union School District (Campbell). In doing so, the court applied the rule laid out in a prior case, Shapell Industries, Inc. v. Governing Board of the Milpitas Unified School District (1991) 1 Cal.App.4th 218, that a Level 1 fee study must include an analysis of the following three factors: (1) the projection of the total amount of housing to be constructed within the school district; (2) estimation of the number of new students that are expected to result from the new development; and (3) estimation of what it will cost to provide the necessary school facilities for that approximate number of new students.

Regarding the first Shapell element, Campbell’s fee study stated that there were “in excess of 133” residential units that could be constructed over the next five years. The court took issue with the fact that these projections were not based on data from all of the planning departments within Campbell’s boundaries. The court also held that the study’s projection was too vague to support the imposition of fees. According to the court, a projection based on consultation with only some of the local jurisdictions within Campbell’s boundaries and using a phrase such as “in excess of” is “little better than saying that ‘some’ development is anticipated.” This was found to be inadequate because the study did not provide sufficient guidance for Campbell’s Board to determine whether or not new school facilities would be needed due to anticipated development. The court found it irrelevant that the district was already over capacity at all of its schools, and essentially rejected Campbell’s argument that new facilities would be needed to house students generated from development, regardless of the number of such students.

The court also found that the fee study was invalid because it did not provide sufficient evidence for the district’s Board to determine what type of school facilities would be needed to accommodate students generated by development, if any. The court based its decision on a narrow reading of the applicable statutes.

Developers may argue that the court’s decision means that a fee study must now establish what “type” of facilities a school district will construct to house students generated by development. However, prior case law, includingGarrick Development Co. v. Hayward Unified School District (1992) 3 Cal.App.4th 320, held that specific improvement plans or building proposals were not necessary. The court acknowledged that, underGarrick, “the Board did not have to identify specific facilities that would be built or make concrete construction plans.” At the same time, however, the court concluded that “the key missing element in the fee study was what new facilities would be necessary for the new students generated by new development.” These two statements are difficult to reconcile, and create a challenge when school districts decide how specifically their fee studies must describe student housing needs. However, it remains clear that specific school construction projects need not be identified.

The court’s opinion is likely to cause confusion and possibly to disrupt established law. As a result, school districts may wish to review the adequacy of their fee justification studies.

Lozano Smith represented the school district in the litigation and appeal, and requested, on behalf of the district, that the California Supreme Court depublish the case. The request for depublication was supported by CASBO, CASH, and CSBA, and not opposed, but the request was nevertheless denied by the Supreme Court.

Takeaways

Tanimura clarifies that public agencies, when imposing prospective developer fees, need not consider the specific development project, but only the type of development project at issue. The case should also help school districts resist the claims of developers who assert that they should be relieved of fees because few or no students will allegedly be generated by a specific project.

While some may argue for a broader application, the Summerhill decision can be viewed as the court’s application of the three-factorShapell test to a particular fee study. In this regard, the case simply calls for a fact-specific analysis based on already-established precedent. The following are some best practices following the Summerhill case:

  • Avoid use of imprecise language like “at least” when describing projected development.
  • If at all possible, consult with all planning departments within the school district’s jurisdiction.
  • If at all possible, identify the general types of school facility projects that may be constructed to accommodate students (e.g., new school construction, portable additions, a mix of both, etc.). We note that such identification in the fee study is not necessarily binding on the school district when it later implements its facilities plans.

If you have any questions about the Tanimura orSummerhill cases or about developer fees in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. Copies of Lozano Smith’s Developer Fee Handbook are available for purchase from Lozano Smith’s Client Services Department; you can submit your request to clientservices@lozanosmith.com. 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

Devon B. Lincoln

Partner

Kelly M. Rem

Partner

Benjamin Brown

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.

California Expands Definition Of Domestic Partners To Include Opposite Sex Couples

October 2019
Number 63

In California, registered domestic partners have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under the law” as spouses. (Fam. Code § 297.5, subd. (a).) Existing law limits domestic partnerships, among other requirements, to two groups of individuals: (1) couples of the same sex or (2) couples of the opposite sex, one or both of whom are over the age of 62 and eligible for social security benefits. On July 30, 2019, Governor Newsom signed Senate Bill (SB) 30 which eliminates these criteria for registering as domestic partners. As of January 1, 2020, any couple over the age of 18 (or under 18 with a court order), regardless of gender, can enter into a domestic partnership. This expansion has significant legal implications for California employers, including public entity employers.

Policy and Review of Collective Bargaining Agreements

To the extent an employer has policies, negotiated collective bargaining agreements, or employee handbooks that address domestic partnerships, it is important for employers to review such documents to ensure compliance with SB 30.

Health Benefits and Other Considerations

In light of SB 30, employers may have more employees eligible and interested in enrolling their domestic partner in an employer-sponsored healthcare plan. If such plan, whether self-insured or otherwise, offers health benefits to spouses then it must afford the same health benefits to registered domestic partners, under the same terms and conditions. Employers may, but are not required to, offer healthcare benefits to unregistered domestic partners as well. Employers should review the terms and conditions of their insurance policies/healthcare plans to ensure compliance with SB 30.

Because healthcare benefits are generally included as part of an employee’s wage for tax purposes, absent an exception, there may be related tax implications that employers should be aware of.

For more information about SB 30 and its implications for employers, or to discuss any other labor or employment questions, 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:

Gabriela D. Flowers

Partner

Carolyn L. Gemma

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.

AB 392 Changes Use of Force Standards

October 2019
Number 47

Governor Gavin Newsom has signed the California Act to Save Lives (AB 392) into law. AB 392 modifies the standards surrounding the use of deadly force by Police and other peace officers in the line of duty.

California Penal Code section 196, enacted in 1872, was the single oldest un-amended law enforcement use of force statute in the country. This Penal Code section provided that killing by police was justifiable when necessarily committed when arresting or retaking felons who are fleeing, resisting, or who have escaped. In addition, California Penal Code section 835a authorized police to use force to arrest, prevent escape, and overcome resistance – without requiring the force to be proportional.

AB 392 significantly changes these rules, including amending the longstanding justifiable homicide standard. The bill states, “Peace officers are justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary.” The new law goes on to state that the use of deadly force is limited to two circumstances. First, deadly force may be used when the officer reasonably believes it necessary to defend themselves against “an imminent threat of death or serious bodily injury.” Second, deadly force may be used in order to apprehend a person fleeing from a felony that may have caused or resulted in death or serious bodily injury or where the officer reasonably believes that the fleeing person will pose a similar danger to another unless “immediately apprehended.” However, prior to the use of deadly force to apprehend a fleeing person the officer must make “reasonable efforts” to identify themselves as an officer and warn that deadly force may be used. The officer does not have to identify and warn if they have objectively reasonable grounds to believe that that the person is aware of those facts.

AB 392 also includes a clarification that de-escalation techniques should be used by law enforcement agencies prior to the use of deadly force. When reviewing situations in which deadly force has been used, the new law requires such review be done under the “totality of circumstances” standard. That is a review of all facts known to the officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force. Departments may want to provide updated training and information to their officers following this new law.

For more information about AB 392, 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

Junaid Halani

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.

New Law Clarifies Anti-Discrimination Laws Include Hair Discrimination

August 2019
Number 38

The California Legislature recently passed Senate Bill (SB) 188, known as the CROWN Act, which amends the definition of “race” contained in state anti-discrimination laws under both the Fair Employment and Housing Act and the Education Code to include “hair texture and protective hairstyles.” The new law does not mean that public agencies have to change their dress codes unless specific hair texture and hairstyles are specified in their policy. Rather, the new law clarifies that dress codes may be considered discriminatory if they explicitly or implicitly affect individuals who have their hair textured or styled in a manner historically associated with their race. For example, a public agency could not have a policy restricting Black workers or students from wearing dreadlocks, twists, or braids. Further, a public agency could not enforce a policy demanding “professional” or “clean and tidy” hair that effectively limits workers or students from wearing dreadlocks, twists, or braids.

Courts and administrative agencies have routinely and clearly established that public agencies have a management prerogative to impose non-discriminatory employee dress code policies. Indeed, in the K-12 school context, there is a heightened importance associated with standards for professional appearance because employees’ behavior is often imitated or modeled by students. Similarly, courts have held that school districts may impose viewpoint neutral and content neutral dress code policies for students as long as they are implemented in a consistent and equal manner among all students.

The California Legislature passed the CROWN Act to provide clarity in light of recent federal case law declining to extend anti-discrimination protections based on hairstyles or textures commonly associated with a protected class. Because hair can be changed (i.e., is mutable), federal courts have refused to equate hairstyle with race, with a limited exception for afros, and thus limited Title VII race discrimination claims to only protect against “immutable characteristics.” In contrast, the legislative analysis for SB 188 notes that discrimination is often not based on the immutable nature of a trait but is instead based on the trait’s connection with an identity associated with a protected characteristic.

Importantly, the new law reaffirms a public agency’s control over dress code policies for employees and students. These dress code policies will be lawful so long as they are imposed in a valid and non-discriminatory manner with no disparate impact on individuals based on their dress and appearance’s association with a protected characteristic. Public agencies should review their existing dress code enforcement practices to ensure compliance with SB 188. In addition, public agencies may consider conducting implicit bias training and refocus practices to ensure inclusivity and compliance with this new law.

For more information about SB 188 or about public agency dress code policies in general, whether directed at employees or students, 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:

Gabriela D. Flowers

Partner

Joshua Whiteside

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.

U.S. Supreme Court Overrules Precedent And Opens the Federal Court Door to Takings Lawsuits Before Exhaustion of State Law Just Compensation Remedies

August 2019
Number 37

The Supreme Court of the United States held in Knick v. Township of Scott that plaintiffs claiming a local government action has interfered with their use of property may bring their constitutional “takings lawsuit” under 42 U.S.C. section 1983 directly in federal court, and before exhausting other related state law remedies. The Supreme Court’s opinion overruled a 34-year old precedent requiring plaintiffs to first seek just compensation under state law in state court. This is a major change in takings law, which alters long-held takings strategies used by local agencies.

The United States Constitution prohibits the “taking” of private property for public use without the payment of just compensation. In Knick, the Township of Scott informed a private landowner that her property, which contained a small graveyard, must be opened to the public during daylight hours, pursuant to a local cemetery ordinance. The landowner brought an action in federal court alleging that the ordinance’s mandatory public access requirement effected a “taking” of her property without the payment of just compensation. Existing, long standing Supreme Court precedent, specifically, the opinion in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, required plaintiffs to first seek just compensation under state law in state court before bringing a federal takings claims. Because landowner had proceeded directly to federal court without first seeking a state court remedy, the U.S. District Court dismissed her action.

The 1985 Williamson County opinion had held that the constitutional prohibition on the taking of private property has not been violated until the government denies payment of just compensation. Williamson County drew from cases dating back to 1890 for the proposition that just compensation does not need to be paid to the private property owner at the time of the taking, provided a “reasonable, certain, and adequate” mechanism exists for obtaining just compensation, such as an inverse condemnation action in state court. On this authority, a plaintiff cannot bring a claim for violation of the takings clause until just compensation has been denied by the state. However, as a perhaps unintended consequence, federal law requires federal courts to give preclusive effect to state court decisions. This means that a plaintiff who loses its inverse condemnation case in state court would often be barred from then bringing a claim in federal court due to the issue preclusion rule.

In Knick, the Supreme Court overruled the Williamson County precedent, holding “[i]f a local government takes private property without paying for it, that government has violated the Fifth Amendment, just as the Takings Clause says, without regard to subsequent state court proceedings. And the property owner may sue the government at the time in federal court for the ‘deprivation’ of a right secured by the Constitution.” The assertion of an uncompensated taking is now enough to obtain immediate standing to sue in federal court on an immediate basis.

The Supreme Court’s Knick opinion decision means that plaintiffs may sue local governments in federal court for alleged “takings” withoutfirst bringing a state court inverse condemnation action.

For further information regarding the Knick opinion, or governmental land use and taking 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:

William P. Curley III

Partner

Nicholas J. Clair

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.

Police Officer’s Pre-Promotion Conduct Could Be Basis to Rescind Promotion

July 2019
Number 35

On June 14, 2019 the California Court of Appeal for the Second Appellate District issued its opinion in Conger v. County of Los Angeles, finding that denying a police officer’s promotion because of his conduct prior to the promotion, was not a violation of his rights and was instead a legitimate merit-based decision.

In November 2015, the Los Angeles County Sheriff’s Department promoted Sergeant Thomas L. Conger to the rank of lieutenant, a position subject to a six-month probationary period. In mid-April 2016, before the six-month probationary period expired, Conger was informed that he was being investigated for a use of force incident that occurred before Conger’s probationary promotion. As a result, the probationary period was extended. In May 2016, while still on probation, Conger was released from the probationary position of lieutenant due to his failure to adhere to Department policies regarding use of force. The evaluation period was listed as November 1, 2015, to May 20, 2016, but the incident described in the evaluation was the May 21, 2015 use of force incident that had occurred almost six months before the promotion.

Conger filed a petition for a writ of mandate in the trial court, arguing that the promotion rescission was based on alleged misconduct that happened before he was promoted, and constituted a “denial of promotion on grounds other than merit” pursuant to the Public Safety Officers Procedural Bill of Rights (POBR) Act (Government Code section 3300, et seq.), and therefore he was entitled to an administrative appeal hearing.

The trial court denied Conger’s petition, concluding that Conger could be denied a promotion based on merit factors arising prior to the probationary period because section 3304(b)’s relevant period was not limited to the duration of the probation itself. The trial court found that the decision to rescind the promotion based on Conger’s failure to report a use of force was merit-based.

Conger appealed and the California Second District Court of Appeal affirmed the trial court’s decision. The court observed that an employer may deny a promotion without triggering the right to appeal under POBR so long as the denial is based on merit. The court noted that while a demotion is one of the listed punitive actions under section 3303 that triggers the administrative appeal right, regardless of whether it was based on merit or nonmerit grounds, this promotion was not yet permanent and thus its denial did not qualify as a demotion. The court found that the critical factor was that the adverse action took place during the probationary period while the employer was still assessing whether the officer deserved the higher position. The court concluded that Conger’s release from his probationary position before he achieved permanent status constituted a “denial of promotion” for POBR purposes, and not a “demotion.” While this decision establishes that an agency may consider a police officer’s pre-promotion conduct during the probationary period, and that a subsequent denial of a promotion based on such conduct may be found to be merit-based, it is still a fact-specific analysis and does not mean that every situation will result in an officer being ineligible for the administrative appeal.

If you have any questions about probationary considerations in promotions of police officers, or about the POBR 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

Michele R. Lyons

Senior Counsel

©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.

Court Reaffirms Absences To Attend Medical Appointments May Be Evidence Of A Disability

July 2019
Number 34

In Ross v. County of Riverside, decided on June 20, 2019, the California Court of Appeal for the Fourth Appellate District reaffirmed that repeated or extended absences from work for the purpose of attending doctor’s appointments amount to a limitation on a major life activity, thus physical impairments which cause such repeated or extended absences may meet the definition of a physical disability.

Christopher Ross, a County of Riverside employee, brought a lawsuit against his former employer for multiple claims including violations of the Fair Employment and Housing Act (FEHA). The trial court had granted the County of Riverside’s summary judgment motion, stating that Mr. Ross could not establish his FEHA disability-related claims. The Court of Appeal reversed, holding that although Mr. Ross had not provided any medical documentation to his employer stating restrictions or limitations on his ability to perform his job duties, the evidence presented could establish a temporary physical impairment that was actually disabling or perceived as disabling, and was enough to demonstrate there is a triable issue to allow the case to proceed in court.

Background

Mr. Ross worked for the County as a deputy district attorney. In 2013, Mr. Ross began exhibiting symptoms that required medical evaluation and testing to determine whether he had a serious medical condition.

A few months later, Mr. Ross informed his supervisors that he was receiving testing from an out-of-state clinic and that the doctors had informed him he could not have any stress at work as it was causing many of his symptoms. However, a formal diagnosis of Mr. Ross’ condition had not been made.

Shortly after notifying his supervisors of the testing, Mr. Ross requested an assignment “without stress, no quotas, no deadlines, no pressure.” At that time, the County requested a doctor’s note indicating Mr. Ross’ work restrictions or limitations. Mr. Ross did not provide medical documentation outlining any restrictions or limitations on his ability to perform his work duties, and even admitted that none of his physicians at the out-of-state clinic suggested any restrictions on his work, other than advising him to reduce his stress.

From June 2013 through November 2013, Mr. Ross missed approximately three weeks of work to attend medical appointments. The County placed Mr. Ross on a paid leave of absence pending a fitness for duty examination, but Mr. Ross never returned to work with the County.

In July 2014, Mr. Ross sued the County for multiple violations of law, including violations of FEHA’s disability-related provisions. The trial court granted the County’s motion for summary judgment as to Mr. Ross’ claims for disability discrimination, failure to reasonably accommodate and failure to engage in the interactive process, on the grounds that Mr. Ross could not establish he was disabled. The Court of Appeal reversed, finding that the trial court had erred in granting the motion as there was sufficient evidence presented by Mr. Ross to demonstrate an issue as to whether Mr. Ross had a disability under the FEHA that the trial court should consider.

“Disability” Within the Meaning of the FEHA

Both the federal Americans with Disabilities Act (ADA) and the FEHA under California law, prohibit discrimination on the basis of disability. Employers must take part in a good faith interactive process and provide reasonable accommodations to qualified individuals with disabilities, unless to do so would cause an undue hardship.

“Physical disability” is defined to include any physical impairment that affects one or more body systems-including the neurological and immunological systems, and limits a major life activity. Working is considered to be a major life activity, and a physical impairment is considered limiting if it makes the achievement of the major life activity difficult. The appellate court pointed to repeated or extended absences from work for medical appointments as constituting a limitation on the major life activity of working, therefore supporting Mr. Ross’ claim of having a “disability.”

Further, physical disabilities can be temporary or short term and include not only those physical impairments that are actually disabling, but include those which are potentially disabling or are perceived to be potentially disabling. Therefore, even in cases where an employee does not have a current disability, if by the employer’s actions it is apparent that the employer perceives the employee could be disabled in the future, this would be considered a physical disability under FEHA. The Court of Appeal found that the County’s actions in transferring Mr. Ross to another unit, requests for medical documentation, and placing him on a paid leave of absence pending a fitness-for-duty exam, potentially show that Mr. Ross had a disability or should have been perceived by the County as being disabled and therefore protected under the FEHA.

Takeaways

While the court did not decide the merits of this case, the opinion does provide many different types of evidence, including absences for medical appointments, which can establish a disability or a potential disability thereby triggering an employer’s duty to engage in the interactive process with and accommodate an employee. The decision in Ross highlights the fact-specific nature of all disability cases, and further reminds employers that their obligation to their employees may go beyond what is included in an employee’s doctor’s note.

If you have any questions about this case or labor and employment matters 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:

Dulcinea Grantham

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.

Supreme Court Says Plaintiffs In Law Enforcement First Amendment Retaliation Cases Must Prove No Probable Cause For Arrest

July 2019
Number 31

Once a year, deep in the Alaskan wilderness, twelve thousand “snow hippies” exercise their right to party. Law enforcement officers chaperone them at a ratio of ten thousand to seven. At “Arctic Man,” not to be confused with “Burning Man,” there is a blizzard of skiers, snowmobilers, and bonfires. According to the popular sports blogging network SB Nation, “Arctic Man is a weeklong, booze and fossil-fueled Sledneck Revival bookended around the world’s craziest ski race.” From this setting results the latest United States Supreme Court opinion on retaliatory-arrest claims, in which the plaintiff has alleged their arrest was made in retaliation for the exercise of First Amendment free speech rights.

Background

On May 28, 2019, the United States Supreme Court decidedNieves et al. v. Bartlett. In the case, Mr. Bartlett, an authentic “Arctic Man Sledneck,” was arrested by police officers for disorderly conduct and resisting arrest. According to the officers, Mr. Bartlett had been inserting himself into conversations between law enforcement and other partygoers. As the facts provide, Mr. Bartlett, with drunken and slurred speech shouted, “Don’t talk to the cops!” to two separate partygoers conferring with two separate law enforcement officers regarding issues the details of which Mr. Bartlett was wholly unaware.

According to the facts in the opinion, the first officer claimed he deescalated Mr. Bartlett’s imposition by walking away. The second officer confronted Mr. Bartlett and claimed Mr. Bartlett then approached him in an aggressive manner, which ultimately resulted in both officers arresting Mr. Bartlett. The officers held Mr. Bartlett in a temporary lockup for a short period of time, eventually releasing him, and the local district attorney’s office did not pursue any charges. Mr. Bartlett later sued the officers, claiming they violated his First Amendment free speech rights by arresting him in retaliation for his speech.

Prior to Nieves, there was no clear Supreme Court precedent requiring a plaintiff in a First Amendment retaliatory-arrest case against police officers to show the officers had no probable cause to arrest. The Ninth Circuit, however, in Ford v. Yakima (2013) held that a plaintiff can prevail on a First Amendment retaliatory-arrest claim (i.e., arrest in retaliation for exercising of free speech rights) even in the face of probable cause for the arrest. The Ninth Circuit’s holding inFord v. Yakima was designed to avoid official conduct that would “chill a person of ordinary firmness from future First Amendment activity.” In Nieves, the Supreme Court did away with the Ninth Circuit’s precedent and rule on point.

The Court’s Opinion and New Rule

Under the new rule established by Nieves, as a matter of law, for a First Amendment retaliatory -arrest claim against a law enforcement officer to have a chance to succeed, the plaintiff must establish the absence of probable cause for arrest and then show that retaliation for the exercise of free speech rights

was a substantial motivating factor behind the arrest. If the plaintiff makes this showing, law enforcement can prevail only by showing that the arrest would have been initiated without respect to retaliation.

The Supreme Court also provided a narrow exception to this general requirement for a plaintiff in such cases. According to the exception, if the plaintiff shows that despite the existence of probable cause to arrest, the officers exercised their discretion not to arrest other similarly situated individuals not engaging in the alleged protected speech, then the plaintiff need not make the required showing of no probable cause. In other words, if Mr. Bartlett had a like-minded wingman engaging in similar behavior, who did not get arrested by the same officers for disorderly conduct and resisting arrest, Mr. Bartlett’s First Amendment retaliation claim could have potentially proceeded to trial.

The viability of the exception to the new rule is debatable because the plaintiff bears the burden of producing objective evidence of similarly situated comparators. And it is well-settled that spontaneous statements can justify the reasonable belief of probable cause for a law enforcement officer to affect an arrest.

Takeaways

In Nieves, the Supreme Court has taken the position of encouraging proactive law enforcement. Accordingly, the standard for pursuing a citizen First Amendment retaliatory-arrest case has become more difficult to satisfy.

If you would like more information about this case or have any questions related to First Amendment retaliation claims, whether in the context law enforcement arrests, public employment, or otherwise, 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

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.

Local Governments Maintain Aesthetic Control Over Their Rights Of Way

June 2019
Number 29

A public agency’s right to enforce reasonable aesthetic criteria on telecommunications installations is a valid exercise of power. So says the California Supreme Court in its recent ruling inT-Mobile West LLC v. City and County of San Francisco (T-Mobile) (April 4, 2019, S238001) __ Cal. __. In a long-awaited decision by local governments and wireless carriers alike, the court held that local government ordinances requiring aesthetic guidelines for equipment erected by wireless telephone companies were neither preempted by, nor in violation of, state law. Thus, cities and counties need not fear a loss of community quality and aesthetic beauty as a result of unattractive telecommunications installations.

Background

For decades, local governments have battled over the amount of aesthetic control they hold over wireless telecommunications carriers constructing telecommunication facilities located in public rights of way. This struggle by cities and counties to maintain their local character has presented valid concerns regarding the extent of local government regulatory authority. The T-Mobile case settles this squabble by providing local governments with clear authority to establish aesthetic guidelines for wireless carriers locating equipment in public rights of way.

Analysis

In T-Mobile, plaintiffs, national telecommunications carriers including T-Mobile and Crown Castle contended that defendant, the City and County of San Francisco’s (City) ordinance which established aesthetic guidelines was preempted by California state law. They asserted that California Public Utilities Code (CPUC) section 7901 preempted the local rule and, even if not preempted, the ordinance violated CPUC section 7901.1 by singling out wireless telecommunications carriers for regulation.

Plaintiffs’ preemption argument stemmed from the parties’ disagreement over their interpretation of section 7901 which permits wireless carriers to construct and maintain cell towers and wireless facilities along public roads “in such manner and at such points as not toincommode the public use of the road…” Plaintiffs asserted a narrow interpretation of section 7901 stating that the statute granted them the right to construct and erect equipment along public roads, and local governments could not prevent such construction, so long as Plaintiffs did not “obstruct the path of travel.” The court disagreed with Plaintiffs, holding that the City’s ordinance is not preempted by section 7901, concluding that obstructing the path of travel was just one of multiple ways that public road use could be disturbed or made inconvenient, and that the City retained inherent local police power to regulate the manner and location of telephone line installations of all types. Ruling in favor of the City, the court stated that the statute “leaves room for additional local action” and that there are “significant local interests relating to road use that may vary by jurisdictions.”

Plaintiffs additionally asserted that the City’s ordinance violated CPUC section 7901.1, which provides that local governments may “exercise reasonable control as to the time, place, and manner” in which roads are “accessed,” and that the control must “be applied to all entities in an equivalent manner. Considering the legislative history of section 7901.1, the court held that the statute only applies to temporary access during construction and installation of telephone lines and equipment, and the City’s ordinance did not violate the statute because the City did not discriminate amongst entities when regulating temporary access to public rights of way.

Takeaways

The T-Mobile case is a win for cities and counties seeking to maintain their unique character during a time of increased necessity for cell towers and other wireless facilities. The Court here provided clear guidance on local government authority to regulate aesthetics of telecommunication equipment. This may set the stage for future Federal Communications Commission rule-making to attempt to limit this well-deserved affirmation of local control and community quality of life.

If you have any questions about this case or regulation of public rights of way 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:

William P. Curley III

Partner

Lauren Kawano

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.

Letter Saves City From Potential Brown Act Violations

June 2019
Number 27

Sometimes public entities stumble despite their best efforts to dutifully comply with the Brown Act. Fortunately, the Brown Act allows these entities to fix certain violations by identifying the problem and promising never to do it again.

Public entities faced with allegations of Brown Act violations can look to TransparentGov Novato v. City of Novato as a guide to avoid ensuing litigation.

TransparentGov Novato v. City of Novato

In TransparentGov Novato, a group of city residents filed a lawsuit against the City of Novato. Before filing suit, the group had sent a letter to the City alleging a Brown Act violation after councilmembers discussed a controversial project which was not on the agenda, and subsequently voted to establish a subcommittee to consider the project at a future meeting. In a responding letter, the City promised that going forward it would only create subcommittees if the item is on an agenda. The City also amended its own policy manual requiring all requests for future agenda items to be in writing. TransparentGov Novato filed suit after the City issued the letter and amended its policy.

In affirming the trial court’s decision in favor of the City, the Court of Appeal found that the underlying basis for the lawsuit had been resolved because the City had amended its policy and “provided an ‘unconditional commitment to cease, desist from, and not repeat the [allegedly wrongful] past action.'” The court was persuaded by the unequivocal nature of the City’s new policy to support its conclusion that there was “no reasonable basis to believe that [the] past action would be repeated.” The court acknowledged that while policy changes do not automatically invalidate pending Brown Act litigation, the policy change in this case was adopted before TransparentGov Novato filed suit. The timing of the adoption convinced the court that it was less likely that the City would repeat the alleged violation. The court affirmed the trial court’s judgment and awarded the City of Novato its costs on appeal.

Takeaways

The TransparentGov Novato case emphasizes the fact that the Brown Act requires courts to dismiss lawsuits alleging Brown Act violations when public entities provide an “unconditional commitment” to stop and not repeat the allegedly wrongful past action. (Gov. Code, § 54960.2, subds. (c)(1) & (3).) A letter by itself does not necessarily guarantee that a court will determine that the public entity provided an “unconditional commitment.” Actions speak louder than words, and courts will take the public entity’s other actions into consideration before making a determination.

Public entities already facing viable allegations of Brown Act violations may want to consider adopting or changing their policies in a manner that unequivocally negates the prospect that the alleged violation will reoccur. If the public entity determines that a particular allegation is viable and decides to amend or adopt its policy, it should do so before a lawsuit is filed, if possible.

If you have any questions about TransparentGov Novato v. City of Novato, or the Brown 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:

Manuel F. Martinez

Partner

Tina C. Mirzazadeh

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.

First Published Case On Issues Raised By SB 1421, Which Requires The Disclosure Of Certain Police Records

May 2019
Number 24

The California Court of Appeal for the First Appellate District recently handed down a decision denying Walnut Creek Police Officers’ Association’s request to stay the enforcement of a February 2019 Superior Court ruling which allowed for the release police records pursuant to Senate Bill (SB) 1421. SB 1421 went into effect on January 1, 2019, amending portions of Penal Code section 832.7 to allow for the disclosure of certain police misconduct records and records related to specific incidents, complaints, and investigations. (See 2018 Client News Brief No. 60.)

One of the issues addressed in Walnut Creek Police Officers’ Assn. v. City of Walnut Creek is the question of whether records created prior to the new SB 1421 were subject to disclosure due to the lack of “retroactive language” in the new law. The appellate court’s decision made it clear that records created prior to January 1, 2019, are subject to disclosure under SB 1421 if the request for the records was made after January 1, 2019.

Takeaways

Public Agencies with peace officer employees need to be cognizant that the decision inWalnut Creek Police Officers’ Assn. v. City of Walnut Creek establishes that certain law enforcement records which were previously confidential are now subject to public disclosure, even if they were created before 2019.

This premise is furthered by the May 17, 2019 press release by California Attorney General, Xavier Becerra, stating that the California Department of Justice will begin producing documents pre-dating January 1, 2019, pursuant to SB 1421. This statement was released following a tentative ruling in San Francisco Superior Court case First Amendment Coalition v. Becerra , which also dealt with the SB 1421 disclosure issue.

For more information about SB 1421, the potential issues raised by this new law or about the California Public Records Act in general, please contact the author 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

©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.

California Recognizes “Nonbinary” Gender Category And Requires Certain State Agencies To Collect Sexual Orientation And Gender Identity Data

April 2019
Number 22

The California Legislature recently passed legislation, taking effect in 2018 and 2019, making it easier for individuals to change their gender identity on official documents, adding a new gender identity option to certain forms of identification and vital records, and requiring certain state and local agencies to change data collection practices so that gender identity is more accurately accounted for in demographic data.

Assembly Bill (AB) 677: Sexual Orientation and Gender Identity Data Collection

Current law requires specific state departments, in the course of collecting certain demographic data, to collect voluntary self-identification information pertaining to sexual orientation and gender identity. AB 677 expands the list of state entities that must comply with these data collection requirements to include, among others, the California Department of Education (CDE). CDE must comply with the requirements as early as possible, but not later than July 1, 2019.

Additionally, AB 677 prohibits public schools administering a voluntary survey from removing any question pertaining to sexual orientation and/or gender identity. This prohibition became effective January 1, 2018. Under prior law, public schools were permitted to remove any question regarding sexual orientation and/or gender identity from voluntary surveys.

Senate Bill (SB) 179: Male, Female and Nonbinary Gender Markers

SB 179, also known as the Gender Recognition Act, was signed into law by Governor Jerry Brown and went into full effect on January 1, 2019. (See 2018 CNB No. 13.) Now, for the first time in state history, California legally recognizes a third gender option for individuals who do not identify as either male or female. Specifically, California residents may choose from three equally recognized gender options – female, male, or nonbinary – on birth certificates, driver’s licenses, and other state-issued identification cards.

Additionally, the law eliminates previous barriers for individuals wanting to change their gender marker and name on these identifying documents. Under prior law, an individual was required to obtain a physician’s declaration confirming that the individual had undergone clinically appropriate treatment for the purpose of gender transition in order to obtain a new birth certificate or to petition for a court order confirming the individual’s name and gender identity. With the passage of the Gender Recognition Act, a physician’s declaration is no longer required. Instead, individuals seeking a new birth certificate or court order confirming their name and gender identity may submit an affidavit attesting, under penalty of perjury, that the request for a change of gender is to conform to their gender identity and not for any fraudulent purpose. Minors may also petition the court for an order confirming gender identity with the support of a parent or legal guardian.

The law does not affect documents issued by other states or the federal government, such as Social Security cards, passports, and documents issued by US Citizenship and Immigration Services.

Takeaways

School districts, community colleges, and other public agencies will need to review and potentially revise forms, documents, and policies to ensure compliance with the Gender Recognition Act.

For additional information regarding AB 677 and SB 176 or to discuss student rights and gender issues 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:

Gabriela D. Flowers

Partner

Courtney de Groof

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.

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.

Records Owned And Held By A Third Party Are Not Public Records Even If A Public Agency Has A Right To Access Such Records

March 2019
Number 16

A recent California appellate court ruling has clarified the reach of the California Public Records Act (CPRA). InAnderson-Barker v. City of Los Angeles, the Second District Court of Appeal held that records in the possession of a third party contractor under a contract with the City of Los Angeles were not subject to the CPRA where the city had access to but did not actually possess or control the records.

Background

In Anderson-Barker, the plaintiff sought to compel the city to disclose electronically stored data relating to vehicles that private towing companies had impounded as directed by Los Angeles Police Department per a contractual agreement. The city had access to this information but did not control the data stored, nor did it control the databases on which it was stored. The city argued that the requested data did not qualify as “public records” under the CPRA because the city did not possess or control the data. Recent amendments to the contract with the third party contractors expressly stated that the data was “owned” by the contractors. The trial court ruled in favor of the city, and the Court of Appeal
affirmed that decision.

Analysis

The court focused on the issue of possession to decide whether the data in question must be produced under the CPRA. Prior state and federal cases (the latter addressing the Freedom of Information Act) had held that records are considered in possession or “constructive possession” of a public entity if they have “the right to control the records.” The court, particularly following federal cases, held that constructive possession does not apply when the entity only has access to the data: “[t]o conclude otherwise, would effectively transform any privately-held information that a state or local agency has contracted to access into a disclosable public record.”

The court further explained why this case does not reach the same result as the California Supreme Court’s decision inCity of San Jose v. Superior Court (2017) 2 Cal.5th 608. At issue in City of San Jose was a CPRA request for “all electronic information relating to public business, sent or received by [mayor and council members] using his or her private electronic devices” related to a city-involved real estate matter. The California Supreme Court ruled that such records were subject to the CPRA. (See 2017 Client News Brief No. 11.) The City of San Jose court, focusing on the definition of “public record,” held that a record does not lose its “public record” status simply because of its location on a public employee’s personal account. The Anderson-Barker court focused on a CPRA requirement distinct from the definition of “public record,” that the record must be in the possession or control of the agency, ultimately finding that the City of Los Angeles did not have possession or control of the record because the record was with a third party. The city had only access to the records, and the court concluded that access does not satisfy the requirement of possession or control. However, the court also explained that data actually extracted from the database by the governmental agency and used for a governmental purpose might be disclosable.

Anderson-Barker thus creates a distinction between documents in possession of an employee or official versus documents controlled by a third party contractor. The former will generally be subject to the CPRA, while the latter generally will not.

Takeaways

Under Anderson-Barker, members of the public may not have a right to access records in the possession of a third party contractor. An agency or its employees or officials must control, and not merely have access to records, in order for the records to be subject to mandatory production under the CPRA. Public agencies may wish to address the structure of document control through contractual arrangements with third party contractors, allowing the agency to decide who controls records for purposes of CPRA production.

If you have any questions about theAnderson-Barker v. City of Los Angeles 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:

Harold M. Freiman

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.

Court Clarifies Interplay Between Education Code Discipline And The Brown Act’s 24-Hour Notice Requirement

February 2019
Number 14

In Ricasa v. Office of Administrative Hearings, certified for publication on January 14, 2019, the California Court of Appeal attempted to harmonize an apparent dissonance between the Ralph M. Brown Act’s personnel exception, and the disciplinary procedures of the Education Code. The opinion constitutes the first time an appellate court has ruled on the Brown Act’s personnel exception in the context of community college districts, and the opinion’s implications reach to all public entities that discipline employees under the Education Code. Lozano Smith attorneys, including Mark Waterman (one of the authors of this news brief), successfully represented the community college on this appeal.

Background

Appellant Arlie Ricasa (Ricasa) served as the Director of Student Development for the Southwestern Community College District (Southwestern), while at the same time serving as an elected board member of a separate, but closely tied, entity, the Sweetwater Union High School District (Sweetwater). Ricasa was implicated in the Sweetwater scandal, which received substantial media coverage, and had criminal charges filed against her for counts that included bribery and corruption. As a Sweetwater board member, Ricasa voted on million-dollar vendor contracts while also receiving gifts from the contractors, including dinners and a scholarship for her daughter. She did not disclose the gifts on her required Economic Interest Form 700, and ultimately pled guilty to violating the Political Reform Act. Her guilty plea admitted she accepted gifts and failed to disclose them, and that the gifts were provided with the intent to influence her vote on business awarded to the contractor.

After Southwestern demoted Ricasa in compliance with the Education Code, Ricasa exercised her right to appeal the demotion to the Office of Administrative Hearings (OAH), but lost her appeal on the merits. Ricasa also filed petitions in trial court to challenge the demotion, including on the ground that Southwestern’s Board violated the Brown Act by meeting in closed session without first providing Ricasa 24-hour notice under Government Code section 54957. The Superior Court denied Ricasa’s petitions generally, but ruled that the Brown Act required the college to give her 24-hour notice of the Board’s closed session discussion. Both sides appealed, and the Court confirmed that the Brown Act must be interpreted consistently with the Education Code when determining whether 24-hour notice is required.

Education Code Discipline and 24-Hour Notice under the Brown Act

The Education Code governs discipline of community college district employees, which may occur under section 87732 for immoral or unprofessional conduct, or for conviction of a felony or any crime involving moral turpitude. The Education Code imposes specific procedural requirements for such discipline, including the board’s receipt of recommendations from the district’s superintendent/president, the receipt and consideration of certain information, the preparation of charges, and notice to the employee of the right to appeal the discipline via a full evidentiary hearing before an administrative law judge.

The Brown Act generally requires that board meetings be open to the public. Closed sessions may be conducted only if authorized by statute. The relevant statutory authorization, often referred to as the personnel exception, is found in Government Code section 54957. The personnel exception allows a board in closed session to “consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests an open public session.” [Emphasis added.] For the latter category of actions, the employee must be given 24-hour advance written notice of his or her right to have the complaints or charges heard in an open session.

Ricasa argued, and the Superior Court held, that the Education Code’s disciplinary requirements transformed the closed session into a “hearing” for which 24-hour notice was required. The Court of Appeal rejected Ricasa’s theory and clarified the interplay between the Education Code and the Brown Act. The Court of Appeal held that the presentation of charges and a recommendation by the district president (who was not a percipient witness) did not transform the closed session into a “hearing” requiring 24-hour notice, nor did the length of the closed session, the lack of a post-session announcement, or the closed session debate as to whether the facts in the guilty plea sufficed to impose discipline. The Court ruled that Ricasa’s contrary “interpretation would eviscerate the personnel exception by preventing the governing boards of community colleges from engaging in the type of ‘free and candid’ discussions that the Legislature has deemed necessary for them to manage their personnel.”

Takeaways

Disciplining employees without violating the Brown Act’s 24-hour notice rule involves complex, nuanced legal evaluations for which counsel should be consulted. The Ricasa opinion confirms that for educational agencies the Brown Act must be interpreted in light of the Education Code and that compliance with the mandatory Education Code disciplinary requirements does not necessarily transform a board’s closed session into a “hearing” requiring 24-hour notice. While the Court did not rule that Education Code compliance forecloses 24-hour notice in all Education Code disciplinary matters, it provided substantial clarification for how the Education Code and the Brown Act must be interpreted together so as not to “eviscerate” the personnel exception.

For additional information regarding the Ricasa opinion and how it may impact disciplinary matters in your district, please contact the author 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:

Mark W. Waterman

Partner

Marisa Montenegro

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.

Lay Opinions May Trigger The Need For An Environmental Impact Report

February 2019
Number 12

A California appellate court has ruled that lay public opinions on nontechnical issues concerning a project’s size and general appearance can provide substantial evidence of environmental impact, triggering the need to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA).

The California Environmental Quality Act

CEQA generally requires public agencies to identify potentially significant impacts of projects they carry out or approve, and mitigate those impacts where feasible. Unless a project is exempt from CEQA, the public agency must prepare one of three types of documents. A negative declaration (ND) can be prepared where there is no substantial evidence that the project may have a significant effect on the environment, and a mitigated negative declaration (MND) can be prepared where the project has potentially significant environmental effects, but these effects will be reduced to insignificance by mitigation measures. An EIR, however, is required whenever substantial evidence in the record supports a “fair argument” that the project may produce significant impacts or effects. An EIR generally involves more time and often more cost than an ND or MND.

Georgetown Preservation Society v. County of El Dorado

The Third District Court of Appeal filed its decision inGeorgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App5th 358, on December 17, 2018, affirming the trial court’s writ setting aside El Dorado County’s (County) approval of a project based on an MND. The County had prepared an initial study to analyze the environmental impacts of a proposed Dollar General chain discount store (Project) and found that there was no basis to require an EIR. Local residents acting through plaintiff Georgetown Preservation Society (Society) objected, claiming that the Project would impair the aesthetic character of their town. The Project was located in a historic center and several lay opinions were submitted by the local community, which commented that the Project was
too big and too boxy and would damage the look and feel of the town, and would therefore have significant and negative effects related to aesthetics. The County slightly modified the project and ultimately adopted the MND. In part, it found that the project complied with local zoning because the area was zoned for commercial retail, that the Project’s design, architectural treatments, and associated improvements substantially conform to the County’s Historic Design Guide and, that the Project would not substantially detract from the town’s historic commercial district.

The Society filed a lawsuit seeking to require the County to prepare an EIR. The trial court applied prior case law and found that the Society’s evidence supported a fair argument that the Project may have a significant aesthetic effect on the environment. Accordingly, the trial court issued a writ of mandate compelling the County to prepare an EIR.

On appeal, the County relied on the fact that it had applied its Historical Design Guide principles when it found the project met aesthetic standards. In the County’s view, the ensuing finding of compliance with its Historical Design Guide principles could not be disputed by lay opinion evidence. A key issue addressed by the Court of Appeal was whether non-expert factual evidence or lay opinion evidence proffered by area residents can support a “fair argument” that the Project may have a significant aesthetic impact on the environment. In reaching its decision, the Court of Appeal followed the rationale in Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, and held that (1) consistency with local design guidelines could not be used to insulate a project from CEQA review; (2) lay opinions can provide substantial evidence to support a “fair argument” that a project may have a significant aesthetic impact on the environment, triggering the need to prepare an EIR; and (3) since the County made no credibility determinations, it could not categorically disregard the
public’s comments.

Takeaways

Georgetown Preservation Society serves as a reminder of the impact public opinion may have on projects approved or carried out by public agencies, and that lead agencies should not disregard public opinion in non-technical areas like aesthetics. Previous court decisions have also considered lay opinions in other impact areas such as noise, traffic safety, and parking. Therefore, lead agencies should not solely rely on its industry experts when evaluating the environmental impacts of a project. If the community members’ opinions on these issues are not properly taken into consideration, project delays and increases costs can result.

If you have any questions about the appellate court’s decision in Georgetown Preservation Society and its impact on CEQA compliance, or about the CEQA 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:

Kelly M. Rem

Partner

Jose Montoya

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.

Settlement Addresses Discriminatory Treatment of Minority Students and Students with Disabilities

February 2019
Number 11

A settlement agreement was recently reached between the California Department of Justice (DOJ) and the Stockton Unified School District (District) to address discriminatory treatment of minority students and students with disabilities. The agreement resolves a comprehensive investigation conducted by the DOJ, which found that the District’s policies and practices with respect to law enforcement referrals discriminated against African-American and Latino students as well as students with disabilities.

According to the investigation, it identified certain practices by the District which led to students being criminalized for minor misconduct. These practices included:

  • Using law enforcement for minor disciplinary infractions that are more appropriately the responsibility of school administrators and teachers;
  • Operating a canine inspection program where canines were brought to school sites on a random and suspicionless basis and students were directed to leave their belongings in the classroom without their consent to be sniffed by canines. Though the District’s Board Policy included that students could not be required to leave their belongings, the investigation by the DOJ found that in practice, students had no choice;
  • School administrators conducting classroom-wide random, suspicionless pat-down searches of students’ persons;
  • Having law enforcement cite or book students for truancy or disturbing the peace violations;
  • School administrators not being properly trained in and utilizing de-escalation techniques for preventing student behavior that may lead to the use of physical restraints; and
  • Failing to ensure effective communication in the context of law enforcement investigations for students who are hard-of-hearing or deaf.

To address these concerns by the DOJ, the parties worked cooperatively to agree on an extensive five-year plan memorialized in a stipulated judgment that requires the District to create clear policies and procedures with respect to how and when school administrators refer students to law enforcement as well as a formal diversion program to address minor school-based criminal offenses which will minimize arrests, citations and bookings. A copy of the proposed judgment can be viewed here. The agreement also calls for the revision of policies and procedures relating to the treatment of students with disabilities in order to prevent discrimination, including hiring a disability coordinator at the police department that will ensure compliance with disability laws and creating a protocol for school site administrators to refer students who exhibit mental health indicators to services rather than to law enforcement. Additionally, the District agreed to train all officers (in this case, the officers were employees of the District’s Police Department) on crisis-intervention as well as provide extensive training on the constitutional and civil rights of all students. Lastly, the District agreed to track and analyze all arrests and referrals of students to law enforcement, and create a community advisory committee for oversight.

The takeaways from this agreement can be summarized as follows:

  • Districts should review their policies with respect to how and when school site administrators refer students to law enforcement and consider creating a diversion program for minor, school-based criminal offenses;
  • Districts should review their policies and procedures relating to the treatment of students with disabilities in order to prevent discrimination, and may consider hiring a trained disability coordinator to ensure compliance with disability laws;
  • Districts should review their current search and seizure policies to make sure they conform with current laws and constitutional standards.

For more content related to school safety and School Resource Officers, check out this episode of Lozano Smith’s podcast.

If you have any questions regarding this settlement agreement or student rights 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

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.

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.

PERB Admonishes School District for Blanket Prohibitions on Distributing Union Literature

December 2018
Number 87

On October 22, 2018, the Public Employment Relations Board (PERB) upheld an administrative law judge (ALJ) decision finding that the Petaluma City Elementary School District/Joint Union High School District (“District”) interfered with employee and organizational rights by: (1) directing employees not to distribute literature “of a political or union nature” on District property, including during non-work time and in on-work areas; and (2) directing employees not to distribute any pamphlets “during the workday” without regard to breaks or other non-work time during the day.

Background

On September 5, 2014, the District administration emailed a memo to school administrators advising them of the “rules for staff handing out flyers.” A school site principal forwarded this memo to teachers at his school site. The memo said:

Teachers may hand out flyers after school when they finish their work obligations. They may not hand them out before school as they are to be in their classroom 30 minutes prior to school starting. They cannot hand out flyers of a political or union nature. They must be off school property when they hand out flyers, not in a driveway or walkway on school campus. The sidewalk in front of a school is public property and they may hand them out there.

On October 10, 2014, a different school site principal sent an email to at least one teacher, saying, in relevant part:

It is my understanding that handing out pamphlets can only happen outside of your work day. I know the long hours you all put in and that an official ‘work day’ is not defined. Since an official teacher duty begins at 7:55, we can safely call that the start of your work day. And at the end of the day, the final teacher duty ends around 2:45 so that can be considered the end of your work day. Please hand out pamphlets outside of your work day.

The Petaluma Federation of Teachers, Local 1881 filed an unfair labor practice charge alleging the September 5 and October 10 emails interfered with union members’ right to engage in protected activity – i.e., distribute flyers and pamphlets containing union information. An ALJ found that the union proved its allegations and held that both emails constituted interference with protected activity.

In its appeal to PERB, the District made two arguments. First, with regard to the September 5 email, the District challenged the union’s evidence of interference, claiming that the union failed to prove “actual harm” to the teacher. PERB rejected this argument. UnderCarlsbad Unified School District (1979) PERB Dec. No. 89 (Carlsbad), the appropriate inquiry “is an objective one which asks not whether any employee felt subjectively threatened or intimidated or was actually discouraged from engaging in protected activity, but whether, under the given circumstances, the employer’s conduct had discouraged, orreasonably would discourage, employees from engaging in present or future protected activity.”

PERB will apply a heightened level of review when an employer explicitly bans “union” activity. Specifically, the employer must show anoperational necessity for the ban, or that there wasno alternative available to the ban. (Long Beach Unified School District (1980) PERB Dec. No. 130.)

Second, with respect to the October 10 email, the District took exception with the ALJ’s finding of interference because the email prohibiting the distribution of pamphlets never mentioned anything about the union. PERB also rejected this argument, holding that an employer’s directive may be unlawful even without an explicit reference to union or protected activities. Rather, it is unlawful if a union member would reasonably construe the District’s directive to prohibit protected activity. Since the October 10 email came soon after the memo was distributed, it was reasonable for the teacher to construe the email to mean it prohibited the distribution of pamphlets containing union information.

PERB further stated that an employee’s right to “join, form and participate” in union activities protects “not only union-related speech, but broader categories of employment-related speech, including employees’ communications with one another about their wages, hours and working conditions.” Accordingly, an employer’s rule banning a general category of conduct, that includes both protected and unprotected activity, is presumptively unlawful because “employees should not have to decide at their own peril what information is not lawfully subject to such a prohibition.”

Takeaways

  • Where a District’s directive reasonably would discourage a union member from engaging in protected activity, no showing of actual harm is required to establish interference.
  • A general directive that prohibits both protected and unprotected activity presumptively violates the Educational Employment Relations Act because the onus cannot be on union members to interpret which prohibitions are lawful or unlawful.
  • Public employers should be careful when crafting directives that may unintentionally affect an employee’s ability to engage in protected activity.

For more information about PERB’s decision or to discuss protected activity and employee rights generally, 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 Facebookor Twitteror download our Client News Brief App.

Written by:

Darren C. Kameya

Partner

Carolyn L. Gemma

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.

Legislature Further Limits the Ability to Consider Expunged, Dismissed, or Sealed Convictions in Hiring Decisions

December 2018
Number 84

Senate Bill (SB) 1412, which takes effect on January 1, 2019, builds on prior law limiting consideration of expunged, dismissed, or sealed convictions in hiring decisions. SB 1412 prevents employers from requiring job applicants to disclose certain criminal convictions that have been expunged, dismissed, sealed, or statutorily eradicated. SB 1412 also provides that employers may only consider particular expunged convictions that are enumerated in the law when making hiring decisions. Exceptions to this prohibition remain for employers-like public school districts and certain other public agencies-that are prohibited from hiring individuals with certain convictions even if the conviction has been dismissed, expunged, or sealed.

Background

In recent years, the Legislature has focused on limiting the types of convictions that may be considered by employers when making hiring decisions. For example, in 2016, AB 1843 was passed generally prohibiting employers from seeking or using information about an applicant’s juvenile convictions in hiring decisions. (See 2016 Client News Brief No. 86.)

Separate from the use or consideration of juvenile convictions in hiring, existing law prevents employers from requiring applicants to disclose convictions that have been expunged, dismissed, or sealed, subject to several exceptions. These exceptions include situations where: (1) the employer is required by law to obtain information regarding an applicant’s convictions; (2) the applicant is applying for a job that would require him to possess or use a firearm; (3) the law prohibits an individual convicted of a crime from holding the position, even if the conviction is expunged, sealed, or dismissed; or (4) the law prohibits the employer from hiring an applicant who has been convicted of a crime. Aside from the above exceptions, once a conditional offer of employment has been made to an applicant, an employer may consider an expunged, dismissed, or sealed conviction.

Since January 1, 2018, California’s Fair Employment and Housing Act also prohibits similar conduct, with specified exemptions. (See 2017 Client News Brief No. 80; 2016 Client News Brief No. 86.)

Under the above legal protections for job applicants, concerns were raised that employers have been broadly rejecting applicants with expunged convictions, regardless of the nature of these convictions or their relevance to the job or future job performance. With SB 1412, the Legislature narrows the aforementioned exceptions so employers may only consider expunged, dismissed, sealed, or statutorily eradicated convictions that are enumerated in the law. Specifically, this bill provides that employers may only consider such convictions if: (1) the employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) the law prohibits an individualwith that particular conviction from holding the position sought, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; or (4) the employer is prohibited by law from hiring an applicantwho has that particular conviction, regardless of whether that conviction has been expunged, sealed, dismissed, or statutorily eradicated.

Takeaways

Employers should note that the Legislature has instituted additional protections for the consideration of expunged convictions in the applicant screening process. Under the SB 1412, employers can only ask an applicant about or consider expunged, sealed, or dismissed convictions to the extent permitted by law; they cannot simply withdraw an offer merely because an applicant has a conviction that was dismissed, expunged, or sealed. Keep in mind that public school employers are prohibited from hiring individuals convicted of certain crimes, even if such convictions have been dismissed, expunged, or sealed. The laws concerning the use of criminal convictions in hiring public school staff is highly technical and should be carefully reviewed before making a hiring decision based on a conviction, even if it has been dismissed, expunged, or sealed.

If you have any questions about SB 1412, 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:

Gabriela D. Flowers

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.

FCC Threatens Public Agencies’ Local Control Over Next-Gen Cellular Deployment

November 2018
Number 76

In anticipation of the wave of next-generation cellular technology, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Third Report and Order significantly preempting state and local control over the use of public rights of way for the deployment of “small wireless facilities” (i.e., micro cellular antennas and equipment). The preemption order was published in the Federal Register on October 15, 2018, and will become effective on January 14, 2019, unless a petition for reconsideration or judicial review is filed. The FCC’s preemption has broad-ranging impacts on local jurisdictions’ ability to impose both application and recurring fees. It also dramatically reduces timeframes for application review (especially for multi-site applications), and places important restrictions on aesthetic and historical preservation regulations. Although the FCC does not directly address school districts or county offices of education – agencies that often site cell towers on their properties – failure of these entities to abide the FCC’s new state and local restrictions would likely invite the FCC to extend its preemption to these entities in the future, especially where the school agency has already established facilities.

Scope of Preemption

From 2006 to 2016, the wireless industry constructed approximately 308,000 “macro cell sites” across the country. Macro cell sites use technology that allows the cellular signal to traverse long distances, so the cell towers can be located hundreds of feet, if not miles, apart. Due to the exponentially fast-growing demand for wireless services, the need to ensure adequate bandwidth to accommodate that demand is compelling the wireless industry to “densify” cellular networks using fifth-generation (5G) ultra-high-frequency wave technology. Because the signals do not travel as far, 5G deployment will require many more “small cell” facilities than previously constructed.

In comments to the FCC, wireless carriers estimated they will need to construct at least 3 to 10 small cells for every macro cell previously built. Taken in the aggregate, some carriers estimate that the industry will need to construct hundreds of thousands of small cell facilities, more than doubling the number of macro cells that were constructed nationwide in the last decade. To put that in context, imagine processing 3 to 10 times the number of cell siting applications your agency processed in the last decade with significantly lower review and attachment fees, and doing it in much shorter timeframes.

The overall objective of the FCC’s preemption order is to restrict state and local measures that “materially inhibit” small cell facilities deployment. The FCC has concluded that states and cities have several regulatory tools they use to “materially inhibit” such deployment: purportedly unreasonable application fees, supposedly excessive recurring fees for access to or pole attachments in the public rights of way, lengthy review times, and onerous zoning and permitting requirements, which include, but are not limited to, minimum-spacing requirements between cells, undergrounding requirements, and ambiguous aesthetics review and regulation. The FCC addressed each of these types of regulations.

Application Review and Recurring Attachment Fees

The FCC’s order unambiguously preempts some state and local fees and creates “safe harbors” for others so long as they are set below “presumptively reasonable” rates. The FCC determined, for instance, that “per-facility fees” – as opposed to per-application fees for applications that propose multiple sites – are “effective prohibitions” on deployment that are now preempted. Similarly, “gross revenue fees” for occupying public rights of way (such as requiring the carrier to pay five percent of gross revenues derived from the site) are also preempted.

Although the FCC acknowledged that local jurisdictions may have unique community needs and that one fee structure will not meet the needs of all agencies, it established a framework for determining whether an agency’s fees are legal (i.e., if the fees do not meet all of these conditions, they are deemed illegal). That framework requires that the fees:

  • Reasonably approximate actual costs;
  • Are based only on objectively reasonable costs (e.g., excessive contractor or consultant fees are not “objectively reasonable” and may not be factored into the fees a local agency may charge); and
  • Are no higher than those charged similarly situated users of the right of way.

The FCC did not find it necessary to set a particular accounting or costing method for determining whether particular fees meet these criteria, but it will hold local agencies to these criteria.

As an alternative, the FCC established that, if a jurisdiction was to charges fees equal to or lower than a certain threshold, it would constitute a “safe harbor” against any legal challenges of reasonableness. The “safe harbor” would cover fees that are equal to or lower than:

  • A non-recurring application review fee of $500.00 for proposed construction of up to five small cells, plus $100.00 for each additional cell proposed in that application;
  • A $1000 non-recurring charge where proposed construction involves the deployment of a new pole in the public right of way; and
  • An annual recurring charge of $270 per micro cell for right-of-way access or pole attachment fees.

Application Review Times

In 2009, the FCC established what are called “Shot Clocks,” which are “presumptively reasonable periods” for local agency review of and action on a proposed wireless facility application. Those Shot Clocks allowed 90 days for review of applications proposing to collocate wireless equipment on existing poles with other equipment attachments, and 150 days for reviewing new siting applications. If an agency did not act within the Shot Clock period, that inaction was deemed a “failure to act” and the carrier could seek legal redress immediately in the courts.

In its preemption order, the FCC shortened the Shot Clocks for small wireless facilities applications while increasing the ease with which the carrier can secure injunctive relief directing the local agency to issue the permits if the agency “fails to act” timely. Specifically, the FCC reduced the application processing times from 90 to 60 days for applications proposing to collocate on existing poles, and from 150 to 90 days for reviewing new siting applications. In addition, the FCC stated that, not only would the carrier have the same access to court redress for an agency’s failure to act within the Shot Clock deadline, but the inaction is now defined as a “presumptive prohibition” against deployment, which allows for expeditious granting of injunctive relief directing the issuance of the permit(s).

Where this shortened review period becomes especially challenging at the local level is when carriers “batch” applications for processing. “Batched applications” involve two scenarios where a single application proposes multiple sites, or multiple applications for single sites are filed at the same time. Regardless of the number of sites proposed in batched applications, the Shot Clock deadlines remain the same: 60 days for collocated facilities and 90 days for new siting. The FCC’s reasoning is that, even if each siting application was filed separately but simultaneously, the deadlines would be the same for processing regardless. The only allowable exception would be where the local agency can show that the batch of applications resulted in a “legitimate overload on the agency’s resources.”

In addition, the local jurisdiction should be aware that the review period begins on the day the application is submitted, regardless of whether it is later deemed to be incomplete. If the local agency notifies the applicant within 30 days of the initial submission that the application is incomplete, the Shot Clock is paused until the carrier submits the necessary supplemental information. If the application is still incomplete after the supplemental filing, the local agency must notify the applicant within 10 days of the supplemental submission, at which point the Shot Clock will be tolled again. The FCC order does anticipate that these restrictive provisions will apply unless the agency and the carrier agree to a different tolling arrangement.

Other, Non-Fee Land Use Requirements

As noted above, local agencies have many cell siting concerns that are unrelated to siting application fees and processing times. These concerns include aesthetic considerations – like avoiding unsightly overhead clutter – undergrounding of facilities, and historical preservation. First, the FCC ordered that any local requirement that all small wireless facilities must be undergrounded is an effective prohibition against deployment and is, therefore, preempted. All other non-fee land use requirements will be evaluated regarding whether they “materially inhibit” deployment. The only “safe harbor” for non-fee land use requirements is where they (1) preserve and advance “Universal Service,” (2) protect public safety and welfare, (3) ensure the quality of telecommunications service(s), or (4) safeguard consumer rights. To the extent a community wishes to maintain aesthetic review of these applications, it must clearly articulate the criteria by which the application will be judged, and it must publish those criteria in advance of an application being filed.

Non-Discriminatory Treatment

The FCC also prohibited discriminatory treatment between different types of right-of-way users, including macro cell versus small cell facilities. The FCC set out two types of discriminatory treatment that it specifically prohibits. First, a local agency may not charge new entrants right-of-way fees that it does not charge incumbent users. Second, the range of fees charged to one type of user (e.g., small wireless facilities users) cannot deviate significantly from the range of fees charged to other users with similar right-of-way uses (e.g., utility users versus small cell users). These non-discrimination concerns apply to both one-time, non-recurring charges and to recurring use fees.

Takeaways

All local agencies that regulate land use for cell siting, including counties, cities, and school districts that already have cell towers, must reevaluate their siting practices to conform to the FCC’s preemption order or face the further loss of local control over the public rights of way. Our team of land use and technology attorneys can assist with your review and update of siting practices to include development of a “safe harbor” fee structure, establishing process times that meet or beat the “Shot Clock,” tolling agreements that may relieve some of the Shot Clock pressure, and aesthetic review criteria that will withstand legal scrutiny.

For more information on the FCC’s action or for land-use or cellular facilities questions generally, 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:

William P. Curley III

Partner

Lee Burdick

Senior Counsel

©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 Law Updates Bidding Preferences for Various Public Agencies

November 2018
Number 75

The Legislature has significantly expanded local agencies’ ability to use a small business preferences on a public works projects, and has expanded the use of preferences for small businesses, disabled veterans businesses and social enterprises in some counties. This new law seems to indicate the Legislature is responding to the desire of local agencies to support local businesses.

Assembly Bill (AB) 2762, signed by Governor Jerry Brown, increases the small business preference from five percent to seven percent for all local agencies, including counties, cities, school districts, and other districts. The bill limits the value of a preference to a maximum of $150,000 on any contract, no matter the value of that contract. The small business preference authorizes a local agency, in facilitating contract awards to small businesses, to provide for a small business preference in construction, the procurement of goods, or the delivery of services.

AB 2762 also authorizes local agencies in the counties of Alameda, Contra Costa, Lake, Los Angeles, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma, to adopt preferences for disabled veteran businesses and social enterprises, and provides for the preferences to be a maximum of seven percent for an individual preference and up to fifteen percent for a single bid having two or more preferences. In these counties, an agency’s ability to use a small business preference is not different from agencies outside those counties.

This new law defines a social enterprise to include a nonprofit or for-profit business whose primary purpose is to benefit the economic, environmental, or social health of the community and which uses the methods and disciplines of business and the power of the marketplace to advance its social, environmental, and human justice agendas. The business must also have been in operation for at least one year providing transitional or permanent employment to a transitional workforce or providing social, environmental, or human justice services.

Under AB 2762, each local agency within the specified counties that chooses to utilize a disabled veteran business or social enterprise preference is authorized to define a disabled veteran business and social enterprise and to define their eligibility for the purposes of these preferences and goals. The statute granting authority in certain counties to utilize preferences is set to expire in 2024. However, the statute permitting small business preferences by all local agencies in the state has no expiration date.

To help local agencies meet these preferences, the new law permits a prime contractor, with the approval of the local agency, and subject to meeting specified conditions, to substitute one subcontractor for another, if doing so will help meet the preference adopted by the agency. This provision seems to create a scenario where a subcontractor could be substituted solely in the interest of meeting the agency’s adopted preference, but the new law explicitly states that subcontractors are still afforded all the protections of the Subletting and Subcontracting Fair Practices Act.

Takeaways

AB 2762 demonstrates a greater interest by the Legislature in allowing public agencies to adopt preferences for certain types of businesses. Agencies wishing to adopt such preferences should first review their existing policies and bidding practices for any needed updates to comply with the new law.

For more information on AB 2762, or preferences in bidding generally, including for assistance in drafting policies and bid documents to implement preferences, 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:

Devon B. Lincoln

Partner

Alyse A. Pacheco

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.

Directory and Personal Information Must Be Withheld from Board Meeting Minutes upon Request

November 2018
Number 72

Governor Jerry Brown has signed into law Senate Bill (SB) 1036, which will allow parents and adult pupils to prevent the governing board of a local education agency from including the directory and personal information of a student and/or the student’s family in the governing board’s meeting minutes. SB 1036 is set to take effect on January 1, 2019.

Federal and State law define the extent to which local educational agencies (LEAs), including schools districts, charter schools, community college districts, and county offices of education, can collect and distribute information about students and their families. Under the federal Family Educational Rights and Privacy Act (FERPA) and California law, LEAs are generally prohibited from releasing a student’s “educational” or “pupil” records without written consent.

However, both Federal and State law exclude “directory information” from the definition of “educational” and “pupil records.” Directory information includes a student’s name, address, telephone number, date of birth, email address, major field of study, and dates of attendance.

SB 1036 was proposed to protect directory and personal information of students and their parents or guardians at school board meetings by not allowing their information to be published in the minutes of the meeting upon request. According to the author of the bill, some students and parents feel that the release of their information presents the potential for intimidation, harm, or other harassment based on their testimony during meetings. For this reason, SB 1036 authorizes students and their families to prevent their directory and “personal information” (defined to include a person’s address, telephone number, date of birth, and email address), from being disclosed in the minutes of an LEA board meeting if a student who is age 18 or older, or the parent or guardian of a student, so requests in writing to the secretary or clerk of the LEA governing body.

Takeaway

While SB 1036 provides students and their families with some basic protections against public disclosure of personal information, it is by no means a guarantee that such information will be protected. As stated by the Assembly Committee on Education, given the public nature of LEA meetings, excluding names from meeting minutes is not a guarantee of anonymity, as the names of speakers can be obtained from other meeting participants and attendees, other written reports, and video or audio tape recordings. Further, the new law explicitly states that the provision is not intended to affect the public’s right of access to information pursuant to any other law (e.g., the California Public Records Act or the Brown Act). Entities and individuals should, therefore, be aware of the limits of SB 1036.

Further, LEAs should make sure their staff are aware of SB 1036, and should consider adopting practices and procedures allowing them to properly respond to written requests from parents or adult students. LEAs should also ensure that their board policies pertaining to the release of directory information are updated to be consistent with the new requirements of SB 1036. Finally, school districts may consider alerting parents and the public of SB 1036 through their annual parental notification.

If you have any questions about SB 1036 or about data privacy laws 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

Bradley R. Sena

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.

Bathrooms Are No Longer Acceptable Lactation Accommodations

November 2018
Number 66

Beginning January 1, 2019, employers will have to make reasonable efforts to provide employees with the use of a room or location, other than a bathroom, as a lactation accommodation.

Existing law already requires employers to make reasonable efforts to provide employees the use of a room or location, other than a single toilet stall, in close proximity to the employee’s work area for the purpose of expressing milk in private. Under these requirements, employers could provide space in a bathroom as an accommodation. Assembly Bill (AB) 1976, which was signed into law by Governor Jerry Brown on September 30, 2018, amends existing Labor Code requirements to expressly state that employers will now have to designate space other than a restroom facility for this purpose. Employees may still use the room or location where they normally work, such as a private office.

AB 1976 creates exceptions to the above requirements in limited circumstances. Relevant to districts and public agencies, an employer who can demonstrate the requirements impose an undue hardship relative to the size, nature, or structure of the employer’s business, may remain legally compliant by providing a room or location, other than a single toilet stall, to an employee wishing to express milk in private.

While AB 1976 narrows employers’ ability to create legally compliant permanent lactation accommodations, it also further amends Labor Code section 1031 to allow employers to create temporary lactation locations, so long as the following conditions are met:

  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.
  • The temporary lactation location is private and free from intrusion while an employee expresses milk.
  • The temporary lactation location is used only for lactation purposes while the employee expresses milk.
  • The temporary lactation location otherwise meets the requirements for state law concerning lactation accommodation.

Because the provisions of AB 1976 take effect January 1, 2019, and violations are subject to a civil penalty, public agencies should take steps now to amend their board policies and administrative practices, and update employee handbooks regarding provisions interpreting Labor Code sections 1030 and 1031 to ensure they are compliant.

If you would like to discuss what might constitute an acceptable permanent or temporary lactation accommodation location, the process to be considered for an exception, or any other matters related to employee accommodations, 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:

Dulcinea Grantham

Partner

Michelle N. Sinks

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 Law Requires Paid Time Off for Union Stewards and Officers

October 2018
Number 65

Effective January 1, 2019, Senate Bill (SB) 1085 requires public agency employers in California to grant, upon the request of a union, “reasonable” paid leaves of absence to employees serving as stewards or officers of the union or of any statewide or national employee organization with which the union is affiliated.

While on such leave, employees must suffer no loss of compensation or benefits and retain reinstatement rights, meaning they have the right to return to the same position and work location held before the leave, or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification. Benefits while on leave also include retirement fund contributions and service credit. Unions must reimburse the employer within 30 days for all compensation paid to employees while on leave, unless negotiated otherwise.

“Steward” is defined very broadly as:

[A]ny employee designated by the exclusive representative as a representative for unit employees, whether for the unit as a whole or at a particular site, department, or other division of the employer’s operations, regardless of whether the employee is referred to by the exclusive representative as a steward or by a different title.

In other words, the designation of an employee as a “steward” for purposes of this new law is left up to the union, or potentially up to the negotiation process.

The bill faced opposition from many public agency employer groups who argued that it creates a highly expansive form of protected leave for employees without consideration of the potential burdens on employers. Opponents further argued that such leave is traditionally negotiated at the bargaining table where both parties are better positioned to have their interests equally represented.

The new law also provides that employers are not liable for any acts, omissions, or injuries by employees on leave. In the event that liability arises, the union is required to indemnify the employer and hold the employer harmless.

The actual procedures for requesting and granting leave are still left up to negotiations and the mutual agreement of the employer and the union. Generally, the law as written contains significant ambiguities that will likely need to be resolved at the bargaining table, such as what is considered “reasonable.”

This new State legislation may have been intended to counter the effect of the decision issued in Janus v. AFSCME earlier this year. (See 2018 Client News Brief No. 27.) In Janus, the United States Supreme Court held that public

employees may not be compelled to pay fair share fees to public sector unions, as such fees violate the First Amendment. SB 1085 offers a layer of protection for labor organizing at a time when unions are feeling threatened and fear low participation rates.

Existing Law

Protected paid time off for public employees for labor-related reasons is not a new concept. The paid time off granted by SB 1085 is in addition to leave entitlements provided to employees by negotiated agreement and by the various collective bargaining laws in California. Most of the public sector collective bargaining laws in California guarantee employee representatives the right to receive reasonable periods of release time without loss of compensation when meeting and negotiating or conferring and for purposes of processing grievances. This includes, but is not limited to, the Educational Employment Relations Act (EERA) (covering K-12 and community college public school districts), the Higher Education Employer-Employee Relations Act (HEERA) (covering public institutions of higher education), the Ralph C. Dills Act (covering state government employees), and the Meyers-Milias-Brown Act (MMBA) (covering local public agencies). Going beyond these minimum release time entitlements, the Education Code also requires public school or community college districts to grant paid time off to specified represented employees to serve as elected officers or attend important organizational activities; and the MMBA provides paid time off for public agency employees to testify or appear in certain conferences, hearings, and general matters before a personnel or merit commission.

SB 1085 addresses what some may identify as an inconsistency with regard to existing statutory paid time off allowances by creating an entitlement that applies uniformly to stewards of public employee unions (however steward may be defined for the particular organization).

Next Step: Negotiation

With some exception, SB 1085 leaves the technical details up to the employer and union and does not invalidate existing negotiated agreements, which must be reopened for negotiations on the subject of this new leave entitlement upon request of the union.

Public agency employers are encouraged to review their existing collective bargaining agreements to determine if existing language conflicts or can be harmonized with SB 1085 and consider their interests in anticipation of the inevitable requests and proposals that will likely come in from the unions representing their employees.

If you have any questions about SB 1085, 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:

Thomas R. Manniello

Partner

Niki Nabavi Nouri

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.

Court Rejects Developer-Sponsored Initiatives

October 2018
Number 61

A California appellate court has ruled that development agreements may not be approved through voter initiatives. Development agreements are contracts between a local agency and a property owner or developer.

In Center for Community Action and Environmental Justice v. City of Moreno Valley et al., the California Court of Appeal for the Fourth Appellate District held that it was the Legislature’s intent to exclusively delegate approval of
development agreements to local legislative bodies and that such approval is subject to voter referendum, but not voter initiative.

Background

In August 2015, the Moreno Valley City Council adopted an ordinance approving a development agreement for the development of the World Logistics Center project, which was proposed by Highland Fairview. Environmental groups sued, alleging the project failed to comply with the California Environmental Quality Act (CEQA). The developer, Highland Fairview, subsequently backed and supported the filing with the city of an initiative petition that would repeal the ordinance approving the
development agreement and approve substantially the same development agreement. Once the initiative qualified for the ballot, the city council had the option of adopting the initiative without change, or submitting it to the voters for approval. The city council chose to adopt the initiative, instead of submitting it to the voters. In these instances, cities are powerless and cannot reject an initiative or require alterations to a project.

The environmental groups challenged the city council’s adoption of the initiative, contending that the adoption of a development agreement by an initiative violated the development agreement statute (Gov. Code, § 65864, et seq.) and article II, section 12 of the California Constitution. The trial court denied the groups’ petitions. The Court of Appeal reversed, directing the trial court to issue a writ of mandate instructing the city council to set aside its adoption of the initiative.

In reviewing the legislative history and the express statutory language of the development agreement statute, the Court of Appeal concluded there was clear evidence that the Legislature intended to exclusively delegate approval of development agreements to governing bodies and to preclude their adoption by initiative. According to the court, as a negotiated contract between a developer and a municipality, a development agreement was incompatible with the initiative process, in which the measure is proposed by the voters and, if approved, cannot be changed.

Takeaways

The City of Moreno Valley decision offers important judicial guidance on the longstanding practice of developers using the initiative process to circumvent the traditional local legislative process. Because voter initiatives can only be revised by another vote of the people, initiatives developed and sponsored by developers significantly impede a city council’s ability to regulate a project. The development agreement statute contemplates negotiation between a local government and developer. An initiative, on the other hand, cannot be changed before adoption, making it impossible for the city council to secure assurances from the developer and benefits for local residents.

Since the California Supreme Court’s 2014 decision inTuolumne Jobs & Small Business Alliance v. Superior Court, which held that that an initiative is not subject to the California Environmental Quality Act, California cities and counties have seen a dramatic increase in development projects proposed by developer sponsored initiatives. At least for the moment, the City of Moreno Valley decision will put an end to this practice and restore negotiation power over development projects to local governments.

For more information about the City of Moreno Valley decision or about development agreements 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:

William P. Curley, III

Partner

Jose Montoya

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 Laws Increase State Control of Addiction Treatment Facilities, Require Student Athlete Opioid Warning

October 2018
Number 58

On September 26, Governor Jerry Brown signed a package of bills designed to enhance state regulation of licensed alcohol and drug abuse recovery or treatment facilities (RTFs). Governor Brown also signed Senate Bill (SB) 1109, which aims to better inform the public of the risks associated with the use of opioids. These bills take effect January 1, 2019 unless otherwise noted.

Senate Bill (SB) 992: Disclosure of Business Relationships; Developing Plans to Address Resident Relapse

SB 992 expands the types of facilities subject to licensing and regulatory requirements by broadening the definition of “alcoholism or drug abuse recovery or treatment facility” to include facilities that provide residential nonmedical services for less than 24 hours per day. Additionally, SB 992 requires all RTFs and certified outpatient programs to publicly disclose ownership of, financial interest in, or control over recovery residences, which include residential dwellings commonly referred to as “sober living homes,” “sober living environments,” or “unlicensed alcohol and drug free residences.” RTFs must develop plans to address resident relapses, including details regarding how the resident’s treatment stay and treatment plan will be adjusted to address the relapse episode and how the resident will be treated and supervised while under the influence. It is unclear where the plans will be kept or who will enforce use of the plans.

Assembly Bill (AB) 3162: Facility Licenses and Increased Penalties for Unlicensed Operations

AB 3162 makes initial licenses to operate a new RTF provisional for one year and revocable by the Department of Health Care Services for good cause. It also requires licensed services offered or provided by an RTF to be specified on the license and provided exclusively within either the licensed facility or any facility identified on a single license by street address. AB 3162 also increases the civil penalty assessed by the Department of Health Care Services for providing recovery, treatment, or detoxification services without a license from $200 per day to $2,000 per day, and increases the penalties for a violation of the licensing and regulatory provisions from $25 to $50 per day for each violation to $250 to $500 per day for each violation.

SB 823: Evidence-Based Standard of Care for Licensed Facilities

RTFs currently vary in their level of service provided. SB 823 requires the Department of Health Care Services to adopt the American Society of Addiction Medicine’s treatment criteria, or an equivalent evidence-based standard, as the minimum standard of care for RTFs by January 1, 2023. The Department of Health Care Services will require RTFs to maintain those standards with respect to the level of care to be provided by the facilities.

SB 1228: Ban on Patient Brokering

SB 1228 prohibits RTFs and other alcohol or drug programs certified by the Department of Health Care Services and their employees from patient brokering, a practice in which patients are recruited to go to a treatment facility in exchange for cash payments, drugs, or other items of value. The Department of Health Care Services may investigate allegations of patient brokering and may, upon finding a violation, assess a penalty or impose other enforcement mechanisms. RTFs or other programs that engage in patient brokering may be fined or have their license or certification suspended or revoked. RTF or program employees who engage in patient brokering may be recommended for disciplinary action, such as termination of employment and suspension and revocation of licensure or certification.

SB 1109: Opioid Factsheet to Youth Athletes

SB 1109 requires school districts, charter schools, private schools, and youth sports organizations offering an athletic program, other than as part of the regular school day or as part of physical education, to annually give the Opioid Factsheet for Patients published by the Centers for Disease Control and Prevention to each athlete. The athlete and, if the athlete is under 17, the athlete’s parent or guardian, must sign and return a document acknowledging receipt of the factsheet before the athlete begins practice or competition. Youth sports organizations include local government agencies that sponsor or conduct amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate.

If you have any questions about these new laws, 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:

William P. Curley, III

Partner

Jose Montoya

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 Laws Restrict Law Enforcement Agencies’ Right to Withhold Recordings Relating to “Critical Incidents”

October 2018
Number 60

After years of failed attempts, the Legislature has passed, and Governor Brown has signed into law, two bills that remove the longstanding layers of protection and confidentiality for certain law enforcement records. Senate Bill (SB) 1421, which becomes effective January 1, 2019, increases public access to certain records relating to allegations of misconduct by law enforcement. Assembly Bill (AB) 748, effective July 1, 2019, subjects body camera footage to public records requests.
These laws will be applicable to all public entities employing peace officers or custodial officers, including cities, counties and school districts.

Background

For more than four decades, records relating to citizen complaints against law enforcement officers that are held by the officers’ employing agency have only been made available in a civil or criminal matter, after a showing of cause established in a “Pitchess” motion or through an officer’s voluntary waiver. The courts have supported the protection of peace officer personnel files over the years. In 2006, the California Supreme Court ruled that the record of an officer’s administrative disciplinary appeal from a sustained finding of misconduct was confidential and could not be disclosed to the public. However, the confidential status of these records is about to change.

SB 1421 expands the public’s right, through the California Public Records Act (CPRA), to request and receive records related to reports, investigations, or findings of:

  • An incident involving an officer’s discharge of a firearm at a person;
  • An incident in which the use of force by an officer against a person resulted in death or great bodily injury;
  • An incident in which a finding that an officer engaged in sexual assault involving a member of the public was sustained; and
  • Any record relating to a sustained finding that an officer was dishonest relating to the reporting, investigation, or prosecution of a crime, or relating to the misconduct of another officer.

While SB 1421 permits the redaction of certain personal information and allows a public agency to withhold records when their release would create a reasonable safety concern, and also while an investigation into the use of force is ongoing, the new law will change who has access to information historically found to be confidential.

Separately, AB 748 will require law enforcement agencies to release, upon request, video or audio recording footage of a “critical incident” within 45 days of the incident. A critical incident is defined as a recording that depicts:

  • An incident involving an officer’s discharge of a firearm at a person, or
  • An incident in which the use of force by an officer against a person resulted in death or great bodily injury.

AB 748 provides limited exceptions to the requirement that such video or audio footage be released. In an effort to balance transparency with law enforcement’s ability to conduct effective investigations and the right to privacy, a law enforcement agency may withhold such footage for up to one year if it can “demonstrate that disclosure would substantially interfere with the investigation.” An agency may withhold such footage for longer than one year if it can establish by “clear and convincing” evidence that substantial interference would occur if the information is released.

The new law will also allow an agency, when it can demonstrate that release would violate the subject’s reasonable expectation of privacy, to blur, obscure and redact the recordings, so long as the changes do not interfere with the public’s ability to “fully, completely, and accurately comprehend the events captured in the recording.”

Takeaways

As early as January 1, 2019, the right to obtain copies of law enforcement agency records pertaining to citizen complaints and recordings of “critical incidents” will be expanded under the CPRA, barring certain limited exceptions. It is not yet clear what facts may pass scrutiny for these exceptions to apply. Public agencies should review their current policies regarding CPRA, body camera footage, video and other recordings to determine what changes will be necessary to comply with these new laws.

For more information about SB 1421, AB 748 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:

Jenell Van Bindsbergen

Partner

Mark Murray

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.

Court Restricts Ability to Seek Mandate Reimbursements

October 2018
Number 59

A California appellate court has ruled that a public agency is not entitled to seek reimbursement from the state for the cost of implementing mandated programs if the agency has existing statutory authority to impose or raise fees, even if the attempt to impose or raise fees is prevented by a successful Proposition 218 majority protest.

In Paradise Irrigation District v. Commission on State Mandates, decided on October 1, the Court of Appeals held that the Proposition 218 majority protest process does not deprive local agencies of the “authority” to levy new fees or charges. This decision raises the bar for public agencies seeking reimbursement of state mandates.

Background

Article XIII B of the California Constitution provides that “[w]henever the Legislature or any state agency mandates a new program or higher level of service on any local government, the state shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service.” The Legislature has provided an exception to this general rule by prohibiting reimbursement for state mandates where “[t]he local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the mandated program or increased level of service.” (Gov. Code, § 17556(d).)

The Commission on State Mandates has traditionally found that a local agency does not have “authority” to impose or increase fees if such is subject to either the “majority protest” or voter approval requirements of Proposition 218. This “majority protest” process generally requires public agencies to inform property owners of proposed new or increased fees and allows a majority of property owners to block such new or increased fees by submitting written protests prior to a required public hearing on the new or increased fees.

The commission recently reversed itself, finding that the majority protest process does not deprive public agencies of “authority” to levy new or increased fees. A trial court, deciding on a challenge to the commission’s new position, held that public agencies must at least “try and fail” to impose or increase fees subject to the majority protest process before the commission could find that the agency to lacks “authority” to levy the fee and thus entitle the public agency to reimbursement.

The Court of Appeals disagreed with the trial court’s “try and fail” test and instead held that the only relevant question is whether some statutory authority to levy new or raise existing fees exists. The practical inability of a public agency to impose or increase fees, whether due to a majority protest or otherwise, is irrelevant in determining whether the public agency is entitled to state reimbursement. Accordingly, even if a local agency is unable to raise fees due to a majority protest, the local agency is not entitled to reimbursement from the state for the cost of implementing the mandated program.

Lozano Smith’s litigation team of Nicholas J. Clair, Anne L. Collins, and Sloan R. Simmons assisted the court by filing an amicus curiae brief on behalf of California Special Districts Association, Association of California Water Agencies, and California Association of Sanitation Agencies that emphasized the legal and practical issues of the appeal.

Takeaways

  • Public agencies are not entitled to reimbursement from the state for mandated programs so long as there is some statutory fee authority which the public agencies could use to impose new or increased fees to cover the cost of the state mandated programs, regardless of the potential problems with the revenue authority.
  • Public agencies cannot seek reimbursement from the state even if attempts to impose new or increased fees are blocked by majority protests. Those agencies must then decide to forgo projects or reduce services to fund the state imposed mandates.
  • From a broader standpoint, the Court of Appeal decision means that the political costs of the Legislature’s new programs or mandated higher levels of service will be borne by local agency officials.

    If you have any questions about Paradise Irrigation, or about state mandates 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:

    William P. Curley, III

    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.

    Court Limits Enforcement of Public Sleeping Ordinances

    September 2018
    Number 50

    A federal appeals court has held that a city could not enforce local ordinances that prohibit homeless persons from sleeping outside when shelter is not available. Municipalities with similar ordinances may be affected by the Ninth Circuit Court of Appeals’ decision in Martin v. City of Boise.

    Background

    At a time when homelessness is an issue that cities and counties are increasingly called to address, a common trend is to prohibit sleeping and camping on the sidewalk, in parks, and in other public places. The City of Boise enacted ordinances to do just that. The ordinances prohibit the use of “any of the streets, sidewalks, parks, or public places as a camping place at any time” where “camping” is defined as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence” and “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private” without permission.

    Several homeless residents challenged enforcement of the Boise ordinances. The factual basis for their claim was fairly straightforward: Plaintiffs are homeless; there is not enough room at the homeless shelters for all of the city’s homeless; plaintiffs and other homeless persons have no choice but to sleep outside and in public when the shelters are full; therefore, plaintiffs and other homeless persons are forced to violate the city’s ordinances. Their claim rested on the Eighth Amendment’s prohibition against cruel and unusual punishment. Specifically, the Amendment’s “substantive limits on what the government may criminalize” was at issue.

    The court examined prior U.S. Supreme Court cases concerning narcotics addiction and public drunkenness, as well as the since-vacated Ninth Circuit decision in Jones v. City of Los Angeles that restrained enforcement of an ordinance that prohibited sitting, lying, and sleeping in public. The court adopted the reasoning of its prior ruling inJones, finding Boise’s ordinances effectively criminalize the status of being homeless, as opposed to undesirable conduct that can be prohibited.

    The Martin court concluded that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” “[A]s long as there is no option of sleeping indoors,” the court ruled, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

    Takeaways

    Despite the ruling, there is likely a future for sleeping and camping ordinances. The court declared that “[its] holding is a narrow one” and made some important qualifications regarding its ruling. Some clues are also found in the text of the decision. For example, the court’s regular reference to “public property” suggests that sleeping and camping ordinances may still be enforced when the conduct occurs on private property, regardless of shelter space.

    The court further made clear, albeit in a footnote, that the ruling “does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it.” Moreover, it did not say a city can never prohibit sleeping in public when there is insufficient shelter space. Without making an express decision on this point, the court said that “an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible,” and, “an ordinance barring the obstruction of public rights of way or the erection of certain structures” may be acceptable. This may mean that permitting outdoor sleeping in designated places and times will permit widespread enforcement of such an ordinance elsewhere.

    Throughout Martin, the court focused on the natural and necessary act of sleeping, stating that “the two ordinances criminalize the simple act of sleeping outside on public property.” This raises an interesting point about camping ordinances. The court was critical of the city’s enforcement of the camping ordinance against homeless persons “with some elementary bedding,” sleeping “with blankets,” or when other indicators of “camping” are absent. It appears that the problem did not lie with the camping prohibition itself, which would prevent the act of constructing a camp or other shelter, but with sleeping and taking basic precautions in order to sleep outside.

    The court stated that its ruling does not require cities to provide homeless shelters. But, when there are more homeless people than available shelter beds, the ordinances will be unenforceable. Practical unavailability of shelter beds may also impact enforcement. During the litigation, Boise instituted a “no space, no enforcement” protocol where the shelters would self-report if they were full so the ordinances would not be enforced that night. However, one shelter had a policy of not turning away anyone seeking shelter and never reported that it was full. As a result, the exception was never actually triggered. There was also evidence of limits on the number of consecutive days someone could stay at one shelter before a mandatory stay-away period. Additionally, due to the time of day that beds were assigned and preferences given to returning guests, a shelter with available room might stop making assignments for the night before prospective guests learn they are unable to get a bed at the other shelter, leaving them with no place to go.

    The city reportedly will appeal the panel decision to the full Ninth Circuit. Until new decisions are issued, this ruling applies and municipalities that prohibit sleeping or camping in public places should review their ordinances and consult legal counsel concerning continued enforcement.

    If you would like more information about the Martin decision or have any questions regarding municipal sleeping or camping ordinances, 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 orTwitter or download our Client News Brief App.

    Written by:

    Jennel Van Bindsbergen

    Partner

    Wesley L. Carlson

    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.

    Ninth Circuit Upholds California’s Voters’ Choice Act

    September 2018
    Number 45

    The Ninth Circuit Court of Appeals recently affirmed the constitutionality of California’s Voters’ Choice Act (VCA), which provides for an all-mail ballot election system. The court’s opinion validates the ability of states and local election officials to implement and operate systems that are designed to increase voter turnout.

    In this litigation, Lozano Smith represented respondent County of Madera, which had opted in to the VCA system for the 2018 election cycle and beyond.

    Background

    Responding to low voter turnout in the 2014 election cycle, the California Legislature enacted the VCA in 2016. Prior to the VCA, California voters could opt to vote by mail on an individual basis. Under the VCA, a ballot is automatically mailed to every registered voter 29 days before the election date. A voter may cast the ballot by mailing the ballot back in, depositing the ballot at a designated locked mailbox location, or turning in the ballot at a “vote center” (which replaces traditional polling places).

    However, the VCA did not require all California counties to adopt the new system. Instead, under a pilot program, 14 enumerated counties were authorized to opt in after January 1, 2018. With an exception for Los Angeles County (which has its own set of options by statute), all other counties may opt in to the VCA system on or after January 1, 2020. For the 2018 election cycle, five counties-Madera, Napa, Nevada, Sacramento, and San Mateo-opted in to the VCA system. The option of voting by mail is still open in non-VCA counties.

    Jeffrey Short, et al. v. Edmund G. Brown et al.

    On February 26, 2018, plaintiffs Jeffrey Short, Trina T.R. Heter, and the Sacramento Valley Lincoln Club sued the State of California and the counties of Madera, Nevada, and Sacramento, seeking to enjoin the operation of the VCA. The individual plaintiffs were citizens of counties who could not opt in to the VCA until 2020, and they alleged that the VCA’s structure violated the Fourteenth Amendment’s Equal Protection Clause by permitting voters in certain counties to receive a mail ballot automatically, while requiring voters in other counties to register to receive a mail ballot. According to the plaintiffs, this would result in the dilution of votes in non-VCA counties because voter turnout would likely be greater in VCA counties, as intended by the Legislature.

    In the trial court, the plaintiffs’ motion for preliminary injunction was denied based on the hardship that enjoining the 2018 elections would create. However, the trial court also held that the plaintiffs had raised “serious questions on the merits” as to the constitutionality of the VCA related to vote dilution.

    The plaintiffs appealed to the Ninth Circuit Court of Appeals. On June 22, 2018, the Ninth Circuit denied the appeal. The Ninth Circuit held that the injunction request was properly denied based on hardship, and further held that the injunction should also have been denied based on a lack of substantive merit. Consistent with established constitutional law holding that challenges to state election laws are only strictly scrutinized when there is a severe burden on the right to vote, the Ninth Circuit held that the VCA did not burden the right to vote, but simply made it easier for some voters to cast mail ballots by mail. The burden on non-VCA county voters in having to request a mail ballot was considered minimal at best, and thus not demanding of strict scrutiny. Assuming such a slight burden even would exist, the Ninth Circuit held that California had a legitimate interest in increasing voter turnout, and that there was a specific interest in the incremental phasing that the VCA provides for, to allow for reporting back on the results of the VCA for legislative guidance.

    Takeaways

    The Ninth Circuit’s opinion supports the proposition that unless there is a substantial burden placed on the voters, state legislatures have ample discretion as to how to deal with low voter turnout, including the implementation of pilot programs that can eventually be applied to the entire state.

    If you have any questions about Short et al. v. Brown et al., or the VCA 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:

    Sloan R. Simmons

    Partner

    Michael R. Linden

    Senior Counsel

    ©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.

    Mayor-Sponsored Pension Reform Ballot Measure Triggered Meet and Confer Requirement, Court Rules

    August 2018
    Number 43

    When a public official with responsibility for labor relations sponsors a ballot measure affecting workers’ terms and conditions of employment, the duty to meet and confer arises, the California Supreme Court recently ruled. (Boling v. Public Employment Relations Board)

    Background

    In 2010, San Diego Mayor Jerry Sanders developed a citizen’s initiative to eliminate traditional pensions for new hires. Sanders told the press that his purpose for pursuing pension reform through a citizen’s initiative rather than through a measure proposed by City Council was to avoid the meet and confer process.

    The City of San Diego is a charter city with a “strong mayor” form of government. As mayor, Sanders’ responsibilities include acting as the city’s chief executive officer, serving as its designated bargaining agent, and recommending measures to the City Council. (In other cities, these duties may be assigned to a city manager.)

    Sanders actively developed and promoted the initiative in his official capacity. He issued news releases bearing his official title, approved a “message from Mayor Jerry Sanders” soliciting signatures for the initiative, and recommended to the Council that pensions be replaced with 401(k)-style plans. His staff also assisted in developing the proposal and gathering signatures for the initiative.

    After the initiative garnered sufficient support to qualify for the ballot, the San Diego Municipal Employees Association wrote to Sanders, demanding that the city meet and confer on the grounds that Sanders had promoted the initiative in his official capacity. When the city refused, the union filed an unfair labor practice charge with the Public Employment Relations Board (PERB) alleging violations of the Meyers-Milias-Brown Act (MMBA).

    PERB ruled in the union’s favor, finding that the city had engaged in an unfair labor practice in failing to meet and confer and that Sanders had acted in his official capacity in supporting the initiative. The Court of Appeal reversed, determining that the MMBA’s meet and confer requirements only to apply to proposals considered by a governing body.

    In overturning the appellate court’s decision, the California Supreme Court found that the MMBA imposes a duty to meet and confer not just on the governing board, but also on “administrative officers or other representatives.”

    As the city’s chief executive officer and bargaining agent, Sanders had a duty to meet and confer with the union regarding any matter that would affect the terms and conditions of employment, even though the policy was being pursued through a citizen’s initiative. The Court reasoned that “[a]llowing public officials to purposefully evade the meet-and-confer requirements of the MMBA by officially sponsoring a citizens’ initiative would seriously undermine the policies served by the statute: fostering full communication between public employers and employees, as well as improving personnel management and employer-employee relations.”

    The Supreme Court also held that the appellate court should have given deferential treatment to PERB’s decision, noting that the lower court should have “followed PERB’s interpretation unless … clearly erroneous.”

    Takeaways

    Local city and county officials with labor relations responsibilities should be cautious when it comes to promoting in their official capacities ballot measures that affect represented workers’ terms and conditions of employment, as this may give rise to the duty to meet and confer.

    If officials choose to promote ballot measures affecting the terms and conditions of employment of their agency’s employees, they should make clear they are doing so in their individual capacities. They should not use staff time or agency resources to develop policy, promote policy, or solicit signatures. To do otherwise may give rise to a duty to meet and confer.

    For more information about this decision or about meet and confer obligations 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:

    Jenell Van Bindsbergen

    Partner

    Meera H. Bhatt

    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 Entities May Rely on Claimant’s False Representations of Timeliness on Claim Forms

    August 2018
    Number 41

    In Estill v. County of Shasta, the Court of Appeal has ruled that a public entity has no duty under the Government Claims Act to advise a claimant that they may seek leave to file a late claim within 45 days, where the claim appears to be timely on its face.

    Background

    Renee Estill, a former employee of the Shasta County Sherriff’s Office, submitted a government claim form to Shasta County on February 23, 2012. In the claim form, she alleged that her coworkers discussed a confidential internal investigation of which she was the subject, and spread rumors about her based on the investigation. Estill repeatedly represented on the form that she first became aware of the alleged incidents on September 9, 2011. The county accepted the claim as timely, and denied the claim on the merits without warning Estill to seek leave to present a late claim.

    After Estill filed suit, the county learned at her deposition that she was actually aware of the alleged incidents in 2009. The county’s motion for summary judgment was granted by the trial court based on Estill’s claim being untimely filed. Following the judgment, Estill requested and was granted a new trial. Estill asserted that the county waived its defense of untimeliness when it failed to warn Estill that she should seek leave to present a late claim pursuant to Government Code section 911.3(b). The county appealed.

    The Court of Appeal ruled in favor of the county and found that a claimant may be prevented from asserting that a public entity has waived its defense of untimeliness when the reason the public entity fails to notify the claimant that a claim is untimely results from the claimant’s representations on the government claim form.

    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. One requirement is that a claimant must file his or her claim with the governmental entity within six months of the “accrual” (learning of the alleged wrongdoing that caused injury to the claimant) of the injury. Under Government Code section 911.3, a waiver of the six month timeliness requirement occurs when the governmental entity does not advise a claimant within 45 days of the presentation of an untimely claim that leave may be sought to file that late claim.

    In this case, Estill first became “aware” of the alleged wrongdoing in 2009, but represented on her government claim form that she did not become aware until 2011. The court reasoned that because Estill withheld information that would alert the county that she might have been aware of the incident prior to 2011, she intended for the county to rely on her representations that her claim was timely filed, which the county did. The court continued that it would be unfair to allow Estill to subsequently assert that under section 911.3, subdivision (b), the county waived its timeliness defense by accepting her repeated representations at face value, especially when there was no indication the representations were untrue.

    Takeaways

    This new ruling allows any public entity to accept the representations of timeliness on a government claim form at face value and to deny the claim on its merits, while also preserving its defense of untimeliness if it learns at a later date that the claim was untimely. Furthermore, a public entity may rely on the representations in the claim form without conducting its own investigation into the timeliness of the claim, so long as the claimant does not provide information that the claim might be untimely.

    For more information about the Estill case or about 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Jenell Van Bindsbergen

    Partner

    Mark Murray

    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.

    Records Requesters May Recover Attorney Fees in Reverse-CPRA Actions

    August 2018
    Number 35

    The stakes of asking a court to halt the disclosure of documents sought under a California Public Records Act (CPRA) request just got higher for private parties. California appellate courts have handed down a pair of decisions holding that private parties who sue to prevent the government agency from disclosing their personal information may be required to pay the requester’s attorney fees if they lose.

    Background

    The CPRA requires public entities to disclose public records unless there is a specific legal exemption. Under the CPRA, if a public entity has refused to produce documents and the matter is litigated, the plaintiff may recover attorney fees against the public entity if the plaintiff prevails.

    In 2012, a court recognized private parties’ right to go to court to protect their records by filing a “reverse-CPRA” lawsuit. (Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250.) Until recently, private parties filing a reverse-CPRA suit were not required to pay the requester’s attorney fees if the requester prevailed. That has changed. Now, private parties must proceed with caution when seeking to protect their personal records or risk being ordered to pay a records requester’s attorney fees.

    Pasadena Police Officers Association v City of Pasadena

    In Pasadena, a newspaper sought to obtain records regarding a police shooting, including personnel records of the officers involved. The city refused to disclose the information, and the newspaper sued. The city was joined in the litigation by the police officers and their union, who filed a reverse-CPRA action to protect the officers’ private information. The newspaper prevailed, and the trial court ordered the city to pay the newspaper’s attorney fees pursuant to the CPRA. But the court denied the newspaper’s request to award attorney fees against the union and the police officers.

    The Court of Appeal reversed, granting attorney fees against the union and the individual police officers. The court held that the union and police officers were responsible for attorney fees under California Code of Civil Procedure section 1021.5, the Private Attorney General Act (PAGA). The statute allows a court to grant attorney fees when certain criteria are met.

    National Conference of Black Mayors v. Chico Community Publishing

    In National Conference, a newspaper requested records which included communications between Sacramento’s mayor and a law firm representing his private organization. Unlike in the Pasadena case, the city was willing to release the records requested, but the mayor, in his private capacity, filed a reverse-CPRA action to prevent their disclosure. A court ordered the release of some of the records. However, the court denied the newspaper’s request for attorney fees from the city and the mayor, which it made pursuant to the CPRA.

    The Court of Appeal affirmed the trial court’s decision not to award fees, stating that while the CPRA allows for attorney fees against a governmental agency, it does not allow recovery of attorney fees against a private party who files a reverse-CPRA action. Since the city was willing to disclose the records, it was not subject to attorney fees. The court specifically noted that the newspaper failed to challenge the trial court’s decision to deny fees under PAGA, adding that attorney fees would have been granted against the mayor under PAGA, consistent with the Pasadena ruling.

    Takeaways

    Pasadena and National Conference encourage private parties to think carefully before suing to prevent the release of their personal information pursuant to CPRA requests. Individuals who may otherwise have fought to keep their information private may now be inclined to allow release of their records to avoid the risk of being ordered to pay the requester’s attorney fees.

    If you have any questions about Pasadena, National Conference, or the CPRA or PAGA 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.

    Overturning Longstanding Precedent, Supreme Court Rules that Non-Union Members Cannot Be Required to Pay Agency Fees

    June 2018
    Number 28

    This news brief is intended for municipalities and special districts. For the Janus news brief intended for public school districts, including community colleges, click here.

    In a 5-4 decision, the United States Supreme Court has held that non-union public employees may no longer be required to pay mandatory agency fees on the grounds that such fees violate the First Amendment. In so holding, Janus v. AFSCME reverses 40 years of legal precedent. Janus may be one of the most significant decisions to affect the labor relations landscape in decades and will have an immediate impact on public sector labor relations through the country, including California.

    Background

    Petitioner Mark Janus is a State of Illinois employee whose unit is represented by the American Federation of State, County and Municipal Employees (AFSCME). Janus refused to join AFSCME on the basis that he opposed many of the union’s positions in bargaining. Janus sued AFSCME, challenging the constitutionality of the state law permitting the union to collect fees from non-union members.

    The Supreme Court held that permitting a union to collect agency fees from a non-member violates the First Amendment unless the employee clearly and affirmatively consents. The Court noted that requiring non-members to pay agency fees was akin to “forcing” public employees to “subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities.” The Court further stated that “[c]ompelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”

    In ruling that non-union members could not be required to pay agency fees, the Supreme Court overturned Abood v. Detroit Board of Education, which was decided in 1977. Abood upheld public sector unions’ collection of mandatory agency fees from non-members, provided that the agency fees did not support unions’ political or ideological activities. In Janus, the Supreme Court has now made clear that unions can no longer collect agency fees from non-members for any purpose, unless the employee “clearly and affirmatively consents to pay” the agency fees.

    In overruling Abood, the Court rejected the notion in Abood that mandatory agency fees were required to ensure “labor peace” (i.e., avoidance of conflict and disruption that would occur if employees were represented by more than one unit). The Janus Court noted that unions could be effective without mandatory agency fees, and that a union’s designation as the “exclusive representative” conferred many benefits, such as the exclusive right to speak for all employees in collective bargaining. Janus noted that a designation as exclusive representative “results in a tremendous increase in the power” of the union. Janus also noted that unions representing nonmembers even without collective agency fees furthered the union’s interests and not just the nonmembers’ interests because the union was able to keep “control of the administration of the collective-bargaining agreement.”

    In rejecting the argument that not requiring non-members to pay agency fees would result in a “free-rider” system in which non-union members could enjoy the benefits of union representation without shouldering the costs, the Court noted that non-members could potentially be required to pay for certain union services, such as union representation in disciplinary proceedings.

    Next Steps and Considerations for Public Agency Employers

    1. Stop Agency Fee Deductions

    The Court’s decision in Janus is effective immediately, meaning employees who are non-members cannot be charged agency fees. Accordingly, employers must stop deducting agency fees from the paychecks of public employees. Going forward, an employer may not deduct fees unless an employee clearly and affirmatively consents to the deduction before it is implemented.

    SB 866 creates a layer of potential complication because it modifies the law to require public employers to rely on the representations of the union regarding an employee’s deduction authorizations. This likely leaves public agency employers with at least three potential options: (1) stop agency fee deductions immediately without communication with union leadership; (2) stop the agency fee deductions after providing a notice to union leadership as to the employees who the public agency believes to be agency fee payers and whose deductions will be halted with the July paycheck; or (3) stop the fee deductions after the union and public employer agree to the list of employees whose fee deductions will be halted, and rely on the new provisions of SB 866 requiring the union to defend and indemnify the employer in the event a fee payer brings suit to recover fees deducted subsequent to the issuance of the Janus decision.

    To avoid future lawsuits, public agencies are encouraged to have their human resources and payroll departments work collaboratively with union leadership to identify employees who are agency fee payers and develop a strategy to ensure prompt compliance with Janus. For many public school district employers, working closely with their county office of education will be critical to accurately updating payroll records to ensure employees are no longer charged agency fees going forward.

    2. Implement a Communication Plan

    Public agency employers who have agency fee provisions in their union agreements should develop a communication plan to address the likely questions that will come from employees and unions in the days and weeks following this decision. Specifically, taking steps to identify a single point person to respond to questions regarding the impacts of the Janus decision will ensure cohesive and clear messaging and avoid the potential for managers and supervisors to inadvertently run afoul of laws prohibiting discouraging or deterring union membership. In developing these communication strategies regarding whether, and how, to communicate the Janus decision to employees, employers should remain neutral and mindful of applicable law, including SB 285, which prohibits employers from deterring or discouraging public employees from becoming or remaining members of a union, and SB 866, which restricts a public employer’s ability to communicate with employees about the Janus decision.

    Specifically, under SB 866, any “mass communication” sent to employees or applicants concerning their rights to join or support or refrain from joining or supporting their union requires a meet and confer process with the applicable union. “Mass communication” means a written document, or script for an oral or recorded presentation or message, that is intended for delivery to multiple public employees” under the new Government Code section 3553(e). Any mass communication concerning the Janus decision will likely fall within this provision and requires the parties to attempt to craft a mutually agreeable content, or follow the alternate process of distributing two sets of mass communication: one from the employer and one from the union.

    Public agency employers are further encouraged to provide an update on the case to their unrepresented managers and supervisors, along with governing board members, and to provide talking points in the event they are faced with questions about the Janus decision.

    To assist our clients, we are developing a communication template. If you are interested in receiving this, please contact one of our offices.

    3. Examine Collective Bargaining Agreements

    After these immediate next steps are in place, in consultation with legal counsel, public agency employers should review their collective bargaining agreements to determine how the Court’s decision impacts current contract language, assess what articles are impacted by Janus, and determine whether any immediate action or negotiation is required.

    While the Court’s decision may not immediately impact current dues-paying union members, some members could choose to opt out of union membership in the future as a result of the Court’s decision, in accordance with applicable collective bargaining agreements and membership agreement. To the extent membership in a union and attendant dues deductions are premised on an opt-out article or practice, wherein the employee is automatically in the union and automatically charged union dues unless he or she ops out, such provisions will need to be negotiated with the union to comply with Janus so that an employee clearly and affirmatively consents to union membership.

    Related Bills

    In addition to SB 866, please be aware that there are other bills pending in the California Legislature that address union dues and labor relations. Lozano Smith is tracking all of these pending bills and will provide updates if any are adopted by the Legislature and signed by the Governor.

    Guidance Measures – Full Suite of Resources

    Lozano Smith has partnered with leading associations and has also developed several training opportunities and resources to assist public agency employers in addressing new requirements and obligations. We invite you to download and register for any of the following:

    • Webinar:Join a panel of Lozano Smith attorneys for a live webinar on Friday, June 29. This interactive podcast will break down the Janus decision and SB 866 and offer a guide for implementation.Registration is open here.
    • Toolkit: Lozano Smith will be soon publishing an in-depth resource with answers to frequently asked questions, an implementation checklist, templates for communication, and more.

    For assistance responding to the immediate and long-term impacts of Janus, 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:

    Regina A. Garza

    Partner

    Meera H. Bhatt

    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.

    Retiree Work Hour Limitation Suspended for Fire and Mudslide Response Work

    February 2018
    Number 4

    Governor Jerry Brown has suspended the 960-hour per year work hour limit for retired annuitants who assist California counties battling fires and mudslides. CalPERS announced Brown’s suspension of the rule in a January 29 Circular Letter.

    Governor Brown issued a pair of executive orders lifting the work hour limit and other rules in an effort to expedite hiring of emergency workers and to streamline the recovery of communities devastated by the disasters. In addition to suspending the work hour limitation for retired annuitants who assist in disaster response and recovery in the affected counties, the emergency orders exempt retired annuitants hired to expedite disaster recovery from separation and break in service requirements and also, limits on the duration of emergency appointments, the Circular Letter says.

    Generally, CalPERS retirees may only work 960 hours per year. Retirees who have reached normal retirement age may only be employed with such an employer after their first 180 days of retirement have passed and only during an emergency to prevent stoppage of public business or because they have skills needed to perform work of limited duration, unless an exception applies.

    Retirees who have not reached normal retirement age must have a bona fide separation in service. Normal retirement age is defined by CalPERS as the benefit formula age for a position, i.e. age 55 for the 2% at 55 retirement formula. For a bona fide separation to have taken place, the employee must have a 60-day separation from employment and there must not be a pre-determined agreement between employer and employee to work after retirement.

    The suspension applies to hours worked to expedite disaster response and recovery in the affected counties beginning on the date a state of emergency was declared and remaining in place until the declaration is lifted. The Governor issued state of emergency declarations on the following dates:

    • Napa, Sonoma, Yuba, Butte, Lake, Mendocino, Nevada and Orange counties: October 9, 2017
    • Solano County: October 10, 2017
    • Ventura County: December 5, 2017
    • Santa Barbara County: December 7, 2017

    Per the Circular Letter, all other provisions related to working after retirement will continue to apply, including the requirement that local government agencies continue to enroll and report retired annuitants to CalPERS, the limits on hourly compensation rates and the prohibitions on other forms of compensation in addition to the hourly pay rate, including any benefit, incentive, or compensation in lieu of benefits.

    Any agency employing a retired annuitant pursuant to the waivers must notify the director of the California Department of Human Resources. Notification may be sent via email to wildfirerecovery2017@calhr.ca.gov.

    In its letter, CalPERS said it will continue to monitor work hours for retired annuitants covered by the Governor’s executive orders and will communicate to confirm when a violation of the work order limitation is found and if it is accepted under the exception in the executive orders. Anyone with questions about the waivers may contact CalPERS’ Customer Contact Center at (888) 225-7377.

    For more information about the impact of the Governor’s executive orders or about pensions in general, please contact 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:

    Thomas R. Manniello

    Partner

    Michele Ellson

    Paralegal

    ©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.

    State Adopts Comprehensive Housing Legislation

    December 2017
    Number 81

    Facing one of the tightest housing markets in California history, state lawmakers have approved an extensive package of bills intended to maintain existing housing stocks and boost new housing construction. These bills become effective on January 1, 2018.

    This legislative package will provide funding to stimulate housing production and will eliminate procedural hurdles to getting housing built. Alternatively, though, the bills also require more detailed justification and reporting on planning for and production of housing, limit local agencies’ ability to say no to development projects, and may increase local agencies’ infrastructure costs.

    Summaries of the legislation are provided below.

    Funding

    Senate Bills 2 and 3: The Building Homes and Jobs Act and Veteran and Affordable Housing Bond

    Senate Bills (SB) 2 and 3 provide funding opportunities for local housing projects and programs. SB 2 establishes a $75 fee for recorded documents, excluding commercial and residential real estate sales. During the first year the fee is collected, local governments will have access to half of the money collected to update planning documents and zoning ordinances, while the rest will be allocated to the Department of Housing and Community Development (HCD) to assist homeless people. After the first year, up to 70 percent of the fee proceeds will be allocated to local governments for purposes including development of affordable rental and ownership housing, creation of home ownership opportunities, and matching funds for localities that approve low-income housing projects.

    SB 3 places a $4 billion general obligation bond for veteran and affordable housing and infill infrastructure on the November 2018 ballot.

    Assembly Bill (AB) 571: Expands Funding Access for Farmworker Housing Projects

    AB 571 expands the availability of the state’s Low Income Housing Tax Credit Program to aid farmworker housing development and redefines the term “farmworker housing” to mean “housing which is available to and occupied by not less than 50 percent of farmworkers and their households” rather than the prior 100 percent requirement. The bill also extends the occupancy period during which migrant farm labor centers are open from 180 days to 275 days.

    Local governments, particularly those in rural districts, should prepare for additional housing developments for farmworkers. The reduction of the occupancy requirement for farmworker housing and the extension of the occupancy period during which migrant farm labor centers are open may result in increased costs to the migrant farm labor centers.

    Approvals

    Senate Bill 35: Streamlined Approval of Multifamily Residential Developments

    SB 35 streamlines the development process for infill multifamily residential developments in communities that have not met their fair share housing goals. The bill makes approval of such developments on sites already zoned to accommodate them a ministerial action, eliminating public input and CEQA review and removing local discretion. A developer must pay prevailing wages on the projects fast-tracked under this bill. The bill sunsets on January 1, 2026.

    Senate Bill 167 and Assembly Bills 678 and 1515: Higher Burden of Proof for Disapproval of Development

    SB 167 and AB 678 make significant changes to the Housing Accountability Act (HAA), also known as the Anti-NIMBY Law. These amendments impose a heightened standard of proof on local agency governing bodies that vote no on housing projects, authorize the award of attorneys’ fees to housing advocates and project applicants who successfully challenge such disapprovals and allow courts to vacate local disapprovals and impose fines of $10,000 or more per housing unit within an affected project where a local government failed to comply with a court order.

    Local agencies should be aware that if courts find that the agency acted in bad faith when it disapproved or conditionally approved a development, the agency could be subject to additional fines if it fails to abide by a court’s injunctive order. To prevent the imposition of fines, local agencies should ensure that their decision to disapprove or conditionally approve a development is based on sufficient evidence that meets the higher burden of proof.

    AB 1515 strengthens the HAA by imposing a “reasonable person” standard for determining consistency, compliance, and conformity with any applicable plan or requirement for a housing development project or emergency shelter under the HAA. Concurrent with AB 678’s changes, this law makes it more difficult for localities to vote down housing projects or emergency shelters that comply with existing land use regulations. Per the bill’s author, AB 1515 gives courts a clear standard for interpreting the HAA in favor of building housing, thus weakening local government power to disapprove development.

    Assembly Bill 1505: Restores Locals’ Right to Apply Inclusionary Ordinances to Rental Housing

    AB 1505 restores a local agency’s right to require that at least 15 percent of units in a rental housing development be set aside as affordable to low-or moderate-income residents. The bill supersedes a 2009 appeals court decision that eliminated local governments’ ability to apply inclusionary policies to rental housing. In addition to restoring locals’ rights to apply inclusionary housing rules to rental housing developments, AB 1505 grants HCD authority to review such ordinances if they were approved or amended after September 15, 2017 and if the locality fails to meet certain housing production thresholds.

    Local governments that already have inclusionary housing policies on the books should be prepared to re-familiarize themselves with their inclusionary policies and to apply them as necessary.

    Housing Element

    Senate Bill 166: Local Governments Must Perpetually Maintain Housing Site Inventory

    SB 166 revises the “No Net Loss” zoning law to require local governments to maintain enough housing sites to meet their assigned housing needs at all times during a general plan housing element planning period. Existing law prohibits local agency governing boards from approving new housing development at significantly lower densities than are projected in the housing element of the local agency’s general plan without identifying other sites that could accommodate the lost units. SB 166 ensures that, as development occurs, local governments reassess their ability to accommodate new housing on remaining housing sites in their inventory and make adjustments to their zoning if needed. According to the bill’s author, prior law did not adequately ensure that local governments would maintain a supply of available land to accommodate unmet housing needs because land that was previously zoned for lower-income housing could later be developed into high-end market-rate housing or a commercial development. SB 166 requires local governments to maintain housing site inventory at each income level.

    Local governments should maintain a log of adequate housing sites, which may or may not result in development of the sites that include affordable housing. Local governments should also be prepared to review their remaining housing sites and analyze zoning.

    Assembly Bill 72: Permits HCD to Revoke Findings of Compliance with Housing Element

    AB 72 enhances HCD’s authority to review any local government action or failure to act that it deems inconsistent with that local government’s housing element. HCD may revoke its finding that a housing element complies with state law and notify the local government entity and the state Attorney General that the entity is in violation of state law.

    Assembly Bill 879: Mandates More Comprehensive Housing Element and Annual Report

    AB 879 creates additional requirements for a local government’s housing element and the housing element portion of its general plan annual report and also applies the existing and new requirements to charter cities, which were previously exempt. Under the new law, the housing element must discuss efforts to address restraints to housing development, while the annual report must include:

    • The number of housing development applications received in the prior year;
    • Units included in all development applications in the prior year;
    • Units approved and disapproved in the prior year; and
    • A list of sites rezoned to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on specified sites.

    The bill also requires the housing element portion of the annual report to be prepared using standards adopted by HCD and requires that agency to conduct a study evaluating the reasonableness of local development fees.

    Local governments should be prepared to create a more extensive general plan and to include a housing element that addresses constraints affecting development, maintenance, and improvement of housing for all income levels.

    Assembly Bill 1397: Zoning for Realistic Housing Capacity

    AB 1397 establishes higher standards and requires localities to conduct a stronger analysis before they may include sites with existing uses in their housing element, and limits reliance on potential housing development sites that are considered too large or too small or sites that have been recycled across multiple housing elements without development occurring. The bill also requires replacement of existing affordable housing slated for demolition with housing affordable to occupants at the same or lower income levels.

    Local governments should be prepared to provide more evidence demonstrating the suitability of sites listed in a housing element for residential development, and particularly those expected to accommodate affordable housing development. Local governments may face funding difficulties in implementing the new mandates of AB 1397, such as bringing utilities to each identified site in the housing element.

    Zoning

    Senate Bill 540 and Assembly Bill 73: Establish New Zoning Designations

    SB 540 allows cities and counties to adopt a specific plan establishing a Workforce Housing Opportunity Zone, which is intended to encourage workforce and affordable housing close to jobs and transportation. The zones may be created by preparing a specific plan and an environmental impact report, both of which would remain valid for five years. Approval of housing developments in these zones will be streamlined, with no further environmental review required, and the local agency will be mandated to approve projects meeting the plan criteria. HCD funds may be made available to create the zones. The developer of a project that takes advantage of this process must pay prevailing wages.

    AB 73 creates a new type of overlay district intended to speed development of high density housing in areas with transit and existing infrastructure. Local governments that create such districts are eligible for state incentive payments when the districts are created and when housing is permitted. Local governments would conduct environmental review of a “housing sustainability district” in advance of any development proposals. Residential projects within a housing sustainability district would be subject to ministerial review that must be completed within 120 days. At least 20 percent of the units in a residential project to be built in a housing sustainability district must be affordable units, and such projects are subject to prevailing wage requirements.

    Assisted Housing Developments

    Assembly Bill 1521: Stricter Notice Requirement for Assisted Housing Development Owners

    AB 1521 requires an owner of an assisted housing development to accept a bona fide offer to purchase from a qualified purchaser, if specified requirements are met. It also requires the HCD to monitor assisted housing development owners’ notice requirement compliance.

    This bill is intended to help keep affordable housing available for low-income families and to reduce displacement of low-income residents. Owners who receive a market rate offer from a qualified preservation entity that intends to maintain the property’s affordability restrictions must either accept the offer or abide by the affordability restrictions for another five years.

    Local governments should be aware of this notice requirement, as owners of assisted housing developments may fail to meet the requirement and would then be required by law to maintain the characterization of their property. Owners may turn to cities or counties to seek the ability to sell property for market rate conversion and cities and counties should be prepared for potential pushback.

    Takeaways

    This comprehensive housing package seeks to encourage a more residential development- and affordable housing-friendly environment in local communities. City and county planning staff should review the benefits of streamlining development approvals and work closely with their legal counsel to ensure that the streamlined procedures are in place. Additionally, staff should ensure that enhanced findings are included in staff reports to supplement records of housing project disapprovals. Local agencies should also prepare for housing advocates and HCD to conduct far more rigorous review of any decisions related to their housing element.

    These new laws are complicated, presenting a double-edged sword to public agencies, and Lozano Smith stands ready to assist. For more information on these bills or on law governing housing projects 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

    William P. Curley III

    Partner

    James Sanchez

    Senior Counsel

    Lauren Kawano

    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 Law Requires Legal Consult Prior to Custodial Interrogation of Minor under Age 16

    November 2017
    Number 78

    Beginning January 1, 2018, minors under the age of 16 must consult with legal counsel prior to a custodial interrogation and before waiving their Miranda rights.

    Existing law requires a peace officer to advise minors of their rights by providing a Miranda warning. But if the minor or parent waives those rights, officers can interrogate the minor. Senate Bill (SB) 395, which adds section 625.6 to the Welfare and Institutions Code, will prohibit a law enforcement officer from conducting a custodial interrogation of or accepting a waiver of Miranda rights by a minor 15 or younger until the minor has had an opportunity to consult with legal counsel. This consultation must occur in person, by telephone or by video conference and may not be waived.

    SB 395 requires a court to consider the impact of a peace officer’s failure to provide such legal consultation in determining the admissibility of statements the minor made during or after a custodial interrogation.

    SB 395 provides limited exceptions to its consultation requirement. The new law does not require probation officers to comply with its requirements and also excludes questions related to obtaining information believed to be necessary to protect life or property from an imminent threat.

    SB 395 creates new issues for police and other public agencies, including schools, when dealing with minors and illegal or inappropriate conduct. School districts that rely upon interviews of students by school district police department officers or contract school resource officers (SRO) in relation to student discipline proceedings may wish to review those practices for conformance with the new law, which covers potential criminal misconduct occurring on school campuses. In particular, school districts may wish to review how and when a law enforcement officer or an SRO may become involved with investigations of student misconduct.

    Lozano Smith is currently working with our law enforcement, municipal, school district and community college district clients to address these and other issues related to the enactment of SB 395. If you have questions or need more information on how the new law impacts your agency, 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:

    Jenell Van Bindsbergen

    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.

    Legislative Update: Bill Eases Fee Collection for Storm Water Systems

    November 2017
    Number 74

    A new law will make it easier for local governments to raise the revenue necessary to maintain and upgrade storm water management systems. Senate Bill (SB) 231 becomes effective on January 1, 2018.

    Proposition 218

    Proposition 218 limits local governments’ ability to impose new or increased fees or charges. The California Constitution defines a “fee” or “charge” as “any levy other than an ad valorem tax, a special tax, or an assessment, imposed by an agency upon a parcel or upon a person as an incident of property ownership, including a user fee or charge for a property related service.” Prior to imposing a new or increased fee or charge, local governments are required to provide notice to the property owners or ratepayers that would be responsible for the fee or charge. The proposed new or increased fee or charge can be blocked by the submission of written protests from a majority of property owners. This is commonly known as the “majority protest process.”

    Proposition 218 requires, in addition to the majority protest process, that new or increased fees or charges be approved by either a majority vote of the property owners or a two-thirds vote of the electorate in the affected
    area. The exception to this voter approval requirement is for fees or charges for “sewer, water, and refuse collection services.”

    SB 231

    In the case of Howard Jarvis Taxpayers Ass’n v. City of Salinas (2002) 98 Cal.App.4th 1351, the Court of Appeal considered, among other things, whether a storm drainage fee was subject to the voter approval requirement. The court held that the exception to the voter approval requirement for fees or charges for sewer services did not apply because the term “sewer” as defined in the Proposition 218 Omnibus Implementation Act was limited to “sanitary sewage.” SB 231 is a direct response to theCity of Salinas decision.

    SB 231 creates a new, expansive definition of “sewer” for the purposes of Proposition 218 that explicitly includes storm water systems. The new definition is contained in the Proposition 218 Omnibus Implementation Act. SB 231 also contains findings that state the Legislature’s disapproval of the City of Salinas decision. This change will make it easier for local government to raise the revenue necessary to maintain proper storm water management systems.

    For more information on SB 231 or on Proposition 218 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:

    David J. Wolfe

    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.

    New Restrictions on Disclosure of Video and Audio Recordings

    November 2017
    Number 72

    A new law will restrict the public disclosure of video and audio recordings created during the commission or investigation of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate
    body part, or voice of a victim of the incident. Assembly Bill (AB) 459 goes into effect on January 1, 2018.

    The California Public Records Act (CPRA) requires public agencies to respond to a records request within 10 days, and to make eligible public records promptly available to a requester who pays the costs associated with duplication. Video and audio data are generally considered public records that are subject to disclosure, unless they are exempt under the express provisions of the CPRA or the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.

    Over the past several years, peace officers’ use of body-worn cameras has become a frequent topic of public debate. Advocates stress public benefits such as improved evidence documentation and greater transparency, while others express concerns regarding potential invasions of privacy and violations of trust. AB 459 addresses the possibility that such recordings, which may contain sensitive, personal, or violent imagery or audio, could be distributed to the public, and is designed to provide victims of sexual or domestic violence with greater confidence that such footage will not be released.

    AB 459 adds section 6254.4.5 to the Government Code, which specifies that the CPRA “does not require disclosure of an audio or video recording that was created during the commission or investigation of the crime of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate body part, or voice of a victim of the incident depicted in the recording.” A public agency may withhold any such video or audio recording by showing that the public interest served by not disclosing the recording clearly outweighs the public interest served by disclosure of the recording. When balancing the public interest served by disclosure, AB 459 sets forth the two factors the public agency must consider:

    • The constitutional right to privacy of the person or persons depicted in the recording; and
    • Whether the potential harm to the victim caused by disclosing the recording may be mitigated by redacting the recording to obscure images showing intimate body parts and personally identifying characteristics of the victim or by distorting portions of the recording containing the victim’s voice, provided that the redaction does not prevent a viewer from being able to fully and accurately perceive the events captured on the recording.

    Notably, AB 459 also explicitly allows a victim of sexual assault or domestic violence, or his or her parent or guardian (if the victim is a minor), next of kin, or legally authorized designee, to obtain a copy of any such recordings. Such a disclosure to a victim or family member does not require that the recording be made available to the public.

    Lozano Smith will provide additional details about how AB 459 is applied and interpreted as public agencies begin utilizing these new standards. For more information on AB 459, please contact the authors of this Client News Brief or an attorney in our Charter Schools Practice Group or 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:

    Penelope R. Glover

    Senior Counsel

    Ellen N. Denham

    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.

    Legislative Update: Employers Can’t Ask, but Applicants Can Tell

    October 2017
    Number 68

    Employers, including public agency employers, will be forbidden from asking job applicants for their salary history when Assembly Bill (AB) 168 becomes effective on January 1, 2018.

    AB 168 explicitly prohibits public agency employers from asking job applicants for salary history information. However, when an applicant voluntarily and without prompting provides salary history information, employers may use the information as a factor in determining salary if the employer’s decision is supported by a bona fide factor other than sex, race, or ethnicity. Further, if the applicant’s prior salary history information is subject to public disclosure pursuant to federal or state law, employers may independently obtain the public information and use it as a factor in determining salary if the employer’s decision is supported by a bona fide factor other than sex, race, or ethnicity.

    AB 168 also requires employers to provide a pay scale for an open position upon an applicant’s “reasonable request.” Employers that violate AB 168 are subject to monetary civil penalties under the Private Attorneys General Act.

    The bill’s supporters argue that eliminating the practice of asking for salary history information will equalize pay for women and people of color. They claim that basing wages on market value instead of salary history will eradicate pay inequality.

    Critics of AB 168 say the new law is gratuitous because there are already protections in place to prevent wage discrimination. For example, California Labor Code section 1197.5 prohibits an employer from using an applicant’s salary history, by itself, to justify a pay disparity. They argue that there are often legitimate reasons to ask about salary history, including unavailability of information regarding the market value for a newly created position. The new law may expose employers to litigation by creating another reason for applicants to sue prospective employers.

    The availability of public agency salary information and the uniformity of wages paid to similarly situated workers may blunt the impact of AB 168 on the process of hiring rank-and-file employees and may minimize the need to ask applicants for salary history information. For school districts, the uniform salary schedule rule provides a rigid benchmark for certificated salaries that are paid uniformly based on an employee’s education and years of experience. Classified employee salary schedules are similarly uniform in nature. Applicants for both certificated and classified positions are placed on the salary schedules based upon standard criteria.

    AB 168 will likely have a greater impact on the negotiation of salaries for management position applicants, because public employers are now required to produce a salary range for open positions upon request and cannot place new hires within the range based solely upon the applicant’s prior salary level. As a result, public employers may not have as much room to negotiate.

    Takeaways

    Public employers should ensure that their standard application forms do not include a request for prior salary information. Further, public employers should train employees who interview prospective employees to refrain from asking applicants about their salary history.

    For more information about AB 168 or on hiring practices 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:

    Darren C. Kameya

    Partner

    Carolyn L. Gemma

    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.

    California Supreme Court Holds Disclosure Is the Rule, Not the Exception, in Public Record Requests

    October 2017
    Number 59

    Automated license plate reader (ALPR) scan data is not subject to the “records of investigation” exemption under the California Public Records Act (CPRA), the California Supreme Court has ruled. The Court, however, did not foreclose the ability to withhold such information if it would invade an individual’s privacy.

    In American Civil Liberties Union of Southern California v. Superior Court of Los Angeles County (Aug. 31, 2017, No S227106) ___ Cal.5th ____, the Court considered whether a request for ALPR data was exempt from disclosure.

    Background

    The Los Angeles Police Department (LAPD) and the Los Angeles Sheriff’s Department (LASD) both utilize ALPR technology to locate vehicles linked to crimes under investigation. High-speed computer-controlled cameras that are mounted onto fixed structures or patrol cars automatically capture images of license plates for each vehicle that passes through the optical range. Each number captured is then checked against a list of license plate numbers that are associated with crimes or criminal investigations-the “hot” list. If a match occurs, the system alerts either officers or a central dispatch unit.

    The American Civil Liberties Union (ACLU) sought to investigate the legal and policy implications of the government’s use of ALPR data. The ACLU submitted a CPRA request to the LAPD and LASD seeking all ALPR data collected over a one-week period, consisting of at minimum the license plate number, date, time and location information of each license plate recorded. The ACLU did not seek disclosure of any license plate numbers that matched the hot list. Both the LAPD and LASD declined to produce the requested scan data, citing the CPRA’s exemption for law enforcement records of investigation.

    Both the trial court and the Court of Appeal concluded that the requested data was exempt from disclosure under the records of investigation exemption. But in a unanimous decision, the California Supreme Court reversed the appellate court’s decision, noting that its obligation to interpret the CPRA in a manner that favors disclosure required that all exemptions be construed narrowly. The Court reasoned that in order to qualify as an “investigation,” an inquiry by law enforcement must be targeted at suspected violations of the law and not collected as part of “bulk data collection.” Here, the ALPR scans were not each “conducted as part of a targeted inquiry” into a specific crime, and therefore could not be considered records of investigation.

    The Court recognized the public interest in not disclosing the data. As the Court explained, such disclosure threatened individuals’ privacy, since “data showing where a person was at a certain time could reveal where that person lives, works, or frequently visits.” However, the Court also recognized that disclosure of the ALPR data could be used to determine if the information was being properly obtained and used. Accordingly, the Court returned the case to the trial court with instructions to consider whether the balance of public interests would be altered if the ALPR data could be redacted or anonymized by “replacing the actual license plate numbers with fictional numbers.” The Court cautioned that in analyzing the catchall exemption of the CPRA, a court “cannot allow ‘vague safety concerns’ to foreclose the public’s right of access.”

    Takeaways

    This opinion serves as an important reminder that courts are likely to err on the side of disclosure under the CPRA and will likely continue to restrict the general use of disclosure exemptions.

    For more information on this case or the California Public Records Act in general, 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:

    Jenell Van Bindsbergen

    Partner & Co-Chair

    Alyse Pacheco

    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.

    Rescission of DACA: What Public Agencies Need to Know

    October 2017
    Number 57

    On September 5, 2017, the Trump Administration announced plans to end the Deferred Action for Childhood Arrivals (DACA) program. The program temporarily permitted some 800,000 undocumented immigrants who arrived in the United States as children to lawfully stay, attend school, and work in the U.S. without the threat of deportation. The Administration is phasing out the program over a six-month period that will end on March 5, 2018, unless Congress enacts legislation extending DACA’s protections.

    The Department of Homeland Security’s (DHS) official memorandum rescinding the program provides the following:

    • New Initial DACA Applications: New initial DACA applications will no longer be accepted.
    • Pending Initial DACA Applications: Pending initial DACA applications submitted before September 5, 2017will still be adjudicated and processed on a case-by-case basis.
    • New DACA Renewal Requests: Requests for DACA renewals from current beneficiaries whose benefits expire between September 5, 2017 and March 5, 2018 are eligible for a two-year extension, but the applications must be sent in by October 5, 2017. For individuals whose renewal date is after March 5, 2018, the individual’s current work permit expiration date will be his or her last day of DACA status and employment authorization-no renewals will be allowed.
    • Pending DACA Renewal Requests: Renewal requests from current beneficiaries that were accepted by DHS as of September 5, 2017 will still be adjudicated and processed on a case-by-case basis.
    • Existing DACA Beneficiaries: DHS will not terminate previously issued DACA removal protections or revoke work authorization for the remaining duration of their validity periods.

    The Administration’s decision has raised many concerns. According to an August 2017 report by the Migration Policy Institute, the vast majority of DACA recipients are employed or attending school, with one quarter of recipients juggling both college and work. Thus, the end of DACA is poised to have significant impacts on both public employers and schools. Below we highlight some of the implications for public agencies, and note a few measures that agencies can take now to prepare for the upcoming changes.

    Implications for Employers

    Proving Authorization to Work

    Federal law prohibits employers from employing an individual when the employer knows that the individual is not authorized to work in the U.S. Within three days of hire, all employees must fill out an employment eligibility verification Form I-9, regardless of the employee’s immigration or citizenship status, in order to verify identity and employment eligibility. DACA beneficiaries granted work authorizations are issued Employment Authorization Documents (EADs) by U.S. Citizenship and Immigration Services (USCIS). An EAD card issued to a DACA recipient is one of the acceptable identification and work authorization documents listed on Form I-9. EADs are issued to foreign nationals with different types of legal status (e.g., refugees and asylum recipients), not just DACA beneficiaries, and employers are not permitted to ask employees for specific details regarding their immigration status.

    Reverification

    Once an employee has completed Form I-9 or the E-Verify work eligibility process, an employer should not ask to see the employee’s work permit or other identity or employment eligibility verification documents until the document the employee provided expires or is about to expire. When an employer asks to see such a document again, the process is called “reverification.” Based on USCIS guidance, in order to continue to employ an individual whose EAD has expired, employers will need to reverify the employee no later than the date of expiration. If the reverification process is not completed by the expiration date, the employee may not continue to work and should be put on leave of absence or terminated, in accordance with the employer’s policy.

    Avoiding Discriminatory Practices

    Although it is unlawful to continue to employ DACA recipients after the expiration of their EADs, it is also unlawful to subject them to greater scrutiny than other employees for reverification purposes, or fire them prematurely based on having a permit that will expire in the future. Under both the federal Immigration and Nationality Act (INA) and Title VII of the Civil Rights Act, employers are prohibited from discriminating against work-authorized individuals based on their nationality or their citizenship or immigration status. It is unlawful, for example, for an employer to selectively reverify the employment eligibility of one employee or a group of employees based on their country of origin, citizenship or immigration status. Employers are also prohibited from discriminating in the verification and reverification process by requesting additional or different documents than are required for verification, demanding a specific document, or refusing to accept a document because of an unfounded suspicion that a document is fraudulent. In addition, authorized workers are protected from intimidation, threats, coercion and retaliation for having filed a discrimination charge against their employer.

    Employers should have an established, periodic practice of internally reviewing their employees’ Form I-9 paperwork in order to ensure compliance with federal laws. A best practice is for employers to keep track of all temporary work authorizations that are about to expire and then give employees advance notice that they will soon need to show proof of updated work authorization when their permits are about to expire. USCIS suggests establishing a calendar notification system for employees whose EADs will expire and providing those employees with at least 90 days’ notice prior to the expiration date. Employers without a current practice of internal reviews should consider implementing such a practice.

    Implications for Schools

    Public schools have an obligation to provide K-12 students a free public education, regardless of their citizenship or immigration status. The rescission of DACA does not change a public school’s obligations to educate and provide a safe learning environment for all students. In addition, undocumented students are afforded protections under the Family Educational Rights and Privacy Act (FERPA) and the McKinney-Vento Homeless Assistance Act. Under FERPA and California student records laws, schools may not provide information from a student’s education record to federal immigration agents unless they obtain parental consent or receive a warrant, court order or lawfully issued subpoena for the information. Immigrant students may also be protected under the federal McKinney-Vento Homeless Assistance Act, which provides certain educational rights for displaced and migrant children. For college students, undocumented status does not affect a student’s ability to attend California colleges, qualify for exemptions of non-resident tuition, or to apply for financial aid. Thus, the rescission of DACA has minimal impact on students’ eligibility for school attendance and financial aid.

    Takeaways

    While pending federal lawsuits and various companies and organizations are actively urging the reinstatement of DACA, the future for DACA beneficiaries remains uncertain. As public agencies wait for further guidance from Congress and the courts, there are some proactive measures that employers and schools can take now, including:

    • Avoid discriminatory practices, such as engaging in unfair verification and reverification; prematurely terminating employees before work authorization expires; treating individuals differently based on their nationality, immigration or citizenship status; or intimidating or retaliating against employees for having filed discrimination charges;
    • Have an internal practice of consistently tracking work authorizations, and provide an employee with at least 90 days’ notice prior to the expiration of his or her work authorization that he or she will need to show proof of updated authorization; and
    • Inform students and parents of DACA students’ education and privacy rights, which include the right to attend college and the right to apply for financial aid, regardless of immigrations status.

    If you have any questions about the federal government’s rescission of DACA or its impact on 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Dulcinea A. Grantham

    Partner & Co-Chair

    Sloan R. Simmons

    Partner & Co-Chair

    Sara E. Santoyo

    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.

    Court Eliminates Registration Requirement for Model Aircraft

    September 2017
    Number 55

    The Federal Aviation Administration (FAA) may no longer require the registration of model aircraft, following the D.C. Circuit’s decision in Huerta v. Taylor.

    Model aircraft, commonly known as drones, are unmanned aircraft that weigh 55 pounds or less and are used exclusively for recreational purposes. Small unmanned aircraft used for any commercial purposes, or unmanned aircraft heavier than 55 pounds, are not impacted.

    The Huerta case challenged a rule promulgated by the FAA in 2015 known as the Registration Rule that required model aircraft to be registered with the FAA. Challenged on the basis of the 2012 FAA Modernization and Reform Act, which specifically prohibits the FAA from promulgating any rule or regulation regarding a model aircraft, the court barred the application of the Registration Rule to model aircraft.

    The court did not consider the application of the FAA Modernization and Reform Act to an FAA circular that restricted model aircraft flight in the Washington, D.C. area, because the challenge fell outside of the 60-day window to challenge the rule and the plaintiff did not have reasonable grounds for the delay. FAA Advisory Circular 91-57A continues to prohibit the operation of model aircraft in Prohibited Areas, Special Flight Rule Areas or the Washington National Capital Region Flight Restricted Zone without specific authorization.

    Previously, the FAA took the position that state and local government regulation of unmanned aircraft must be consistent with the federal statutory and regulatory framework. Federal registration was the exclusive means for registering unmanned aircraft, and no state or local government could impose an additional registration requirement without first obtaining FAA approval. The court’s ruling did not address whether state and local governments may now be permitted to require registration of model aircraft pursuant to their police power.

    Regardless, state and local governments may still rely on their traditional police power in areas such as land use, zoning, privacy, trespass and law enforcement operations to regulate uses of unmanned aircraft, including model aircraft. FAA examples of permissible state and local regulations include prohibitions against use for voyeurism, against use for hunting or fishing, and against attaching firearms or similar weapons.

    For more information on the Huerta decision or on drone regulation 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:

    William P. Cureley III

    Partner & Co-Chair

    ©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.

    Discovery of Public Records after Requester Filed Lawsuit Leads to Attorney Fee Award for Plaintiff

    September 2017
    Number 51

    A California appeals court has found a city liable for attorney’s fees after determining that a related lawsuit prompted the city to produce records during the litigation that the plaintiff had first sought through a California Public Records Act (CPRA) request.

    In Sukumar v. City of San Diego, the Court of Appeal held that the City of San Diego, although acting in good faith and having ultimately disclosed all records responsive to a CPRA request, had to pay a plaintiff’s attorney fees after being sued under the CPRA. A key factor in the court’s decision was the city’s repeated assurances to both the plaintiff and the trial judge that all responsive records were disclosed when in fact this was not the case.

    The CPRA and the Catalyst Theory

    A public agency may be sued under the CPRA if a requesting party believes the agency’s response to their request for records was inadequate. Plaintiffs in such cases are eligible for an award of attorney’s fees if they win their case. They may also be eligible for fees in situations where they do not win but can prove there was a substantial causal relationship between the lawsuit and the public agency’s production of additional records. This method of securing attorney fees is known as the “catalyst” theory. This rule applies to all local agencies that must produce records
    under the CPRA.

    Background

    Plaintiff Ponani Sukumar made a CPRA request seeking 54 separate categories of records dating back to 1990 that related to neighbors’ complaints regarding a list of code violations Sukumar allegedly committed and the city’s investigation of those complaints. About a month after Sukumar made his request, the city provided access to some of the records and sent a letter stating that this was the city’s “last response.” Three weeks later, Sukumar filed a lawsuit alleging that the city was withholding responsive documents. The city continued to produce records after the suit was filed.

    During the legal proceedings, the city’s attorney claimed that all of the responsive documents had been produced. However, a key document was subsequently produced on the day that depositions of city employees were scheduled. During a deposition, a city employee indicated that additional records may not have been produced. Following the depositions, the city produced an additional 146 pages of emails and five photographs.

    After the city produced these additional records, the trial court held that Sukumar’s lawsuit was moot because the city had produced all of the responsive documents. The court also decided that the lawsuit was not the motivating factor for the city’s production of the additional records, and as a result, Sukumar was not eligible for recovery of attorney’s fees. Sukumar appealed the attorney fee decision.

    The appeals court reversed the trial court’s decision, determining that substantial evidence existed to show that the lawsuit induced the city to locate and produce additional records, entitling the plaintiff to recover attorney’s fees. The Court of Appeal was not persuaded by the city’s argument that the lawsuit did not cause it to produce requested records because the city had already agreed to turn them over, holding that “but for” the court-ordered depositions, which were a direct product of the lawsuit, the city would not have continued to look for, or produce, the responsive records. The Court of Appeal acknowledged that there was no evidence of bad faith on the city’s behalf, but held that bad faith is not the applicable test.

    Takeaways

    The decision in this case highlights the importance of carrying out broad and comprehensive searches for records responsive to CPRA requests from the outset. Such searches may reduce the likelihood of overlooking responsive records. This will be especially challenging given the volume of electronic data under a public agency’s control. Also, when a public agency knows that additional records may be discovered at a later date, it may be in the agency’s best interest to immediately notify the requesting party when the records will be made available. By following these practices, public agencies can hopefully avoid the issues presented in this case and the accompanying risk of attorney’s fees.

    If you have any questions about the Sukumar 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

    Steve Ngo

    Senior Counsel

    Jerrad M. Mills

    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.

    Despite Marijuana Industry Efforts, Local Control Survives

    August 2017
    Number 48

    Eight months after California voters approved Proposition 64, which legalized adult use of recreational marijuana in California, Governor Jerry Brown signed a new bill that will facilitate the issuance of marijuana business licenses beginning in January 2018. Despite marijuana industry efforts to minimize local government regulation, the new bill guarantees continued local agencies’ control over marijuana operations in their jurisdictions.

    The primary thrust of Senate Bill (SB) 94, the Medical and Adult Use Cannabis Recreation and Safety Act (MAUCRSA) is to combine state regulation of medical and recreational marijuana under the new Bureau of Cannabis Control (BCC). However, the bill also provides for local control over permitting and safety regulation of marijuana businesses. Under the new law, local agencies have the right to:

    • Expand the prohibition zones around schools, daycare centers and youth centers for marijuana businesses;
    • Inspect the premises and examine the records of licensed cannabis businesses, during normal business hours, and set fines up to $30,000 for each incident of non-compliance with local laws;
    • Regulate mobile dispensaries and require a physical, permitted location for the dispensary, even if it is closed to the public;
    • Enforce fire and life safety requirements on marijuana operations; and
    • Seize and destroy illegal marijuana, including during peace officers’ investigation stage, with unlicensed individuals being held responsible for the cost of the destruction.

    Local ordinances remain exempt from California Environmental Quality Act (CEQA) review until July 1, 2019.

    SB 94 also clarifies the scope of joint state and local agency jurisdiction. The bill provides:

    • State authority to delegate full power and authority to local agencies – through an agreement with local jurisdictions – to enforce regulations promulgated by the BCC;
    • Revocation of state licensure if the cannabis licensee is not complying
      with local laws;
    • The allocation of $3 million to the California Highway Patrol to be used for training drug recognition experts, which might also be used to support local drug enforcement;
    • Streamlined processes for the collection and remitting of marijuana taxes and fees;
    • A requirement that local jurisdictions provide the BCC with copies of any ordinances or regulations related to commercial cannabis operations as well as designating a contact person to act as a liaison between the BCC and the local government; and
    • Establishment of a process for local agencies and the BCC to share information about an applicant for a marijuana license.

    For more information on Proposition 64 and the Medical and Adult Use Cannabis Recreation and Safety Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Local Government Practice Group or 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:

    Jenell Van Bindsbergen

    Partner

    Lee Burdick

    Senior Counsel

    ©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.

    Appellate Courts Reject Recreational Trail Immunity for Adjacent Hazards

    August 2017
    Number 47

    Two decisions in the last three months have increased the potential for a public entity to be held liable for an injury suffered on one of its recreational trails. Appellate courts decidingGarcia v. American Golf Corporation (May 3, 2017, No. B267613) ___ Cal.App.5th ___ and Toeppe v. City of San Diego (July 27, 2017, No. D069662) ___ Cal.App.5th ___ held that a public entity cannot assert recreational trail immunity when an adjacent hazardous condition of the public entity’s property is unrelated to, or independent of, the trail. Previous decisions had broadly applied statutory recreational trail immunity to hazards on property adjacent to public trails.

    The California Supreme Court denied review of the Garcia decision on August 9. As of this writing, no request for Supreme Court review has been filed in Toeppe.

    Prior Law

    Public entities generally are immune from liability for injuries caused by their recreational trails, pursuant to Government Code section 831.4. The statute specifically provides that a public agency is not liable for an injury caused by a “condition of” an “unpaved road” or “trail” used for general recreational purposes.

    In the past, this immunity has been consistently interpreted to broadly protect public agencies from liability due to injuries from both design elements and locations of trails. InAmberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, the plaintiff was bumped off a path and started to slip down a hill. The court held that recreational trail immunity extended to both the design of a trail (the lack of handrails) and the location (the placement next to a steep slope). One year later, in Prokopv. City of Los Angeles (2007) 150 Cal.App.4th 1332, the appellate court held that the “condition of” a bikeway included the design of a bicycle gate into which plaintiff had crashed, and that even though the injury occurred just off the bikeway itself, that the gateway to the bike path was “an integral part of the bike path.”

    Earlier this year, in Leyva v. Crocket & Company, Inc. (2017) 7 Cal.App.5th 1105, an appellate court considered a case where the plaintiff was struck by a golf ball while on a publicly owned trail. The plaintiff argued that the lack of safety barriers on the adjacent golf course caused the injury, and that this condition was not a faulty design or condition of the trail. The appellate court disagreed and concluded that the immunity applied since the trail’s location next to the golf course was an “integral feature” of the trail, and the erection of a safety barrier would be equivalent to the installation of a handrail in Amberger.

    The Garcia Decision

    Factually similar to Leyva, the plaintiff in Garcia was a child in a stroller who was hit in the head by a golf ball while on a pedestrian walkway between a roadway and a golf course, which were all owned by a city. However, in Garcia the court concluded thatAmberger “did not hold that there must be immunity for every injury occurring on a trail when an adjacent public property was a contributing factor. … It identified the issue as whether the trail and an adjacent public property meet a relatedness test.” The court found that the trail and golf course did not pass this relatedness test, and it distinguished Leyva despite its strong factual similarities.

    Consequently, the court issued a narrow holding: A public golf course cannot assert a recreational trail immunity defense when the trail abuts a public street; the course is a commercially-operated, revenue-generating enterprise; the course has a dangerous condition; and the dangerous condition caused harm to a user of the trail.

    The Toeppe Decision

    Issued by the same appellate district that issued Leyva, theToeppe decision used an approach similar to Garcia but stated a broader holding. The plaintiff was walking on a trail in a public park when a eucalyptus branch fell and injured her. The court distinguishedAmberger by saying that the tree was “independent of the trail” and that the dangerous conditions in the two cases were fundamentally different. The court also distinguished Leyva despite the fact that the hazardous condition in Leyva was off the trail and independent of it. The court concluded that the recreational trail immunity did not apply, holding that “this is not a case about trails. It is about trees.”

    Impact on Public Agencies

    Leyva still has some precedential value, but by tacitly disapproving that case, the Garcia and Toeppe cases seem to establish a new paradigm that limits public agency immunity for hazardous conditions
    adjacent to recreational trails. Accordingly, public agencies may need to reassess the design, insurance, maintenance and use of their trails to minimize the risk of liability.

    If you have any questions about these decisions or trail immunity 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:

    William P. Curley III

    Partner

    Arne B. Sandberg

    Senior Counsel

    ©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.

    California Travel Ban Does Not Apply to Local Agencies

    July 2017
    Number 41

    A California law that bars state agencies from funding travel, and from requiring employees to travel, to states that permit discrimination on the basis of sexual orientation, gender identity or gender expression – and Attorney General Xavier Becerra’s recent expansion of the list of states covered by the ban – have raised questions regarding whether the law applies to cities, counties, school districts and community college districts.

    While there is no definitive legal guidance on the issue, the law expressly applies to state agencies, departments, boards, authorities and commissions, including the University of California and the California State University system. As “state agencies,” it appears the law also applies to the California Community Colleges Chancellor’s Office and the California Department of Education. AB 1887 does not state that it applies to cities, counties, school districts or community college districts, nor do these entities appear to be state agencies under the law.

    The acting general counsel of the California Community Colleges Chancellor’s Office agrees: In a June 29 legal update, he said that while the restrictions apply to the chancellor’s office itself, community college districts are local education agencies that are not covered by the ban. Still, the letter cautioned local community college districts that the chancellor’s office may not be able to approve a request for state-funded travel to any of the states covered by the ban.

    Effective January 1, 2017, Government Code section 11139.8 (enacted by Assembly Bill (AB) 1887) prohibits California state agencies, departments, boards, authorities and commissions from requiring any state employees, officers or members to travel to other states that permit discrimination on the basis of sexual orientation, gender identity, or gender expression and also, from approving a request for state-funded or state-sponsored travel to a state that has passed such a law.

    AB 1887 prohibits travel to any state that has enacted a law after June 26, 2015 that voids or repeals existing state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression or permits discrimination against same-sex couples or their families on those bases.

    The original list of states covered by the ban included Kansas, Mississippi, North Carolina and Tennessee. On June 22, Becerra added Alabama, Kentucky, South Dakota and Texas to the list after those states approved laws that permit such discrimination.

    Exceptions to the travel restrictions include:

    • Enforcement of California law, including auditing and revenue collection;
    • Litigation;
    • To meet contractual obligations incurred before January 1, 2017;
    • To comply with requests by the federal government to appear before committees;
    • To participate in meetings or training required by a grant or required to maintain grant funding;
    • To complete job-required training necessary to maintain licensure or similar standards required for holding a position, in the event that comparable training cannot be obtained in California or a different state not subject to the travel prohibition; and
    • For the protection of public health, welfare or safety, as determined by the affected agency, department, board, authority, commission or legislative office.

    If local government agencies intend to use state grant money for travel to any of the states covered by the ban, they should check to determine if the travel restrictions are included as a condition of the grant. In addition,
    local agencies may have adopted their own policies that mirror AB 1887.

    Additional information about AB 1887 and the states the travel ban applies to is available on the Attorney General’s website. For more information on AB 1887, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Stephanie M. White

    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 Law Requires Union Access to Employee Orientation Sessions

    June 2017
    Number 34

    Governor Jerry Brown has signed legislation that requires public agency employers to give union representatives access to new employees during orientation sessions. The bill, which went into effect immediately after Brown signed it on June 27, is part of Assembly Bill (AB) 119, a budget trailer bill.

    The bill is a product of the efforts by unions representing public employees to mitigate the impact of an anticipated United States Supreme Court decision that could make union dues in public agencies voluntary. Under current law, public agency employees who opt out of participating in their union may be required to pay fees to cover union services including collective bargaining.

    AB 119 requires public agency employers to grant union representatives access to new employee orientations, which are defined as onboarding processes conducted in person, online or by other means in which new employees are advised of their employment status, rights, benefits, duties and responsibilities. The structure, time and manner of access is subject to negotiations. This new law also requires that negotiations must be conducted during the period between the effective date of the bill and the expiration of a union’s existing contract.

    Public agency employers must give their unions at least 10 days’ notice of a new employee orientation session, unless the employer and the bargaining unit reach an alternate agreement or in specific cases where an urgent, unforeseeable need prevents it. It also requires public agency employers to provide the names, job and contact information for new employees to unions within 30 days of hire or by the first pay period of the month following a hire, even if the employee previously worked for the district. Public agencies must provide the same information about all bargaining unit members every 120 days, though public agency employers and unions may negotiate the provision of more detailed lists or different time intervals for providing the information regarding new employees or bargaining unit members.

    If a public agency and a union are unable to reach an agreement on the structure, time and manner of access, the dispute is subject to compulsory interest arbitration which means that that arbitrator has the authority to dedicate the terms of the agreement. Alleged violations of the new law may be addressed by the Public Employment Relations Board (PERB).

    The budget trailer bill is less prescriptive than last year’s Assembly Bill (AB) 2835, which would have required public agency employers to hold in-person new employee orientations every four months during work hours, and also to allow unions to conduct 30-minute presentations during the first half of these orientations. That bill would also have required public agency employers to provide contact and job description information about bargaining unit members to unions every 90 days.

    AB 119 gives public agency employers the opportunity to work with their labor partners to negotiate terms for access to employee orientations that are workable for the employer and meaningful to the union. There are a variety of options for implementing the requirements of this legislation, including airing a videotaped presentation from the union during employee orientations or allowing for an in-person presentation by a union representative. Public agency employers are encouraged to review existing collective bargaining agreements to determine if existing language conflicts with AB 119 and negotiate any necessary change, or develop, through negotiations, language to implement the terms of AB 119.

    Lozano Smith has been tracking this legislation and court cases on union dues closely and is ready to assist public agencies with the implementation of these new mandates. A Frequently Asked Questions document that offers more details on the bill is available below. For more information on these new mandates, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    FREQUENTLY ASKED QUESTIONS

    Q: What does this bill require public agencies to do?
    A: Assembly Bill (AB) 119 requires public agencies to provide unions with access to new employee orientation sessions. It also requires public agencies to provide unions with names and contact information of new employees in bargaining unit positions.
    Q: What was the reason for this bill?
    A: Unions representing public employees sought this legislation because there is at least one case pending before the United States Supreme Court that could result in the Court ruling that union dues are voluntary, which could greatly reduce revenues for public employee unions. Currently, public employees who opt out of union membership are often required to pay service fees to cover the cost of negotiations and other union-provided services.
    Q: When does the bill go into effect?
    A: The bill went into effect immediately after the Governor signed it on June 26, 2017.
    Q: Does the bill require public agencies to conduct face-to-face orientations?
    A: No. Orientations may be conducted in person, online or by other means.
    Q: Does the bill spell out when and how access must be provided?
    A: No. The structure, time and manner of access are all subject to negotiations. However, the bill does, in the absence of an alternate agreement, require public agency employers to give unions at least 10 days’ notice before holding an employee orientation, except in specific instances where there is “an urgent need critical to the employer’s operations that was not reasonably foreseeable.”
    Q: When should negotiations over access take place?
    A: Negotiations must take place between the effective date of the bill and the expiration of a union’s contract.
    Q: What happens if we can’t reach an agreement with the union on the structure, time and manner of access?
    A: If any dispute that occurs during negotiations over access is not resolved within 45 days after the first meeting of the parties or 60 days after the initial request to negotiate, either side may make a demand for compulsory “interest arbitration.”
    Q: What is “interest arbitration?”
    A: “Interest arbitration” is one in which the arbitrator has the authority to determine the terms that will resolve the dispute, i.e. dictate the terms of the resolution to the parties.
    Q: Couldn’t unions demand to bargain their role in employee orientations prior to AB 119?
    A: Yes, unions could bargain their role in employee orientations prior to AB 119 taking the position that such participation was necessary in order to fulfill their representational rights under the EERA and because it impacted terms and conditions of employment.
    Q: My agency hires new employees continuously, which will make it difficult to provide the notice and access the bill requires. How can I comply?
    A: The bill permits public agencies and unions to reach an agreement that differs from the requirements of the new law. For example, public agencies could seek to negotiate an arrangement with their labor unions to provide access via a video aired at all in-person orientations or provided along with other orientation materials if orientations are conducted online.
    Q: What information does the bill require public agencies to provide to unions?
    A: Public agencies must provide the union a new employee’s name; job title; department; work location; work, home and personal cell phone numbers; personal email addresses on file with the agency; and home address, within 30 days of hire or by the first pay period of the month following the hire, even if the employee previously worked for the district. The bill also requires public agencies to provide the same information about all bargaining unit members every 120 days, though public agency employers can negotiate agreements with their unions to provide more detailed lists of information or different intervals for providing information about new employees and bargaining unit members. Public agency administrators may wish to work with their human resources departments to find out whether the generation of these lists can be automated to save time and ensure consistent compliance.
    Q: What if an employee doesn’t want to stay to hear from the union?
    A: The law only requires public agency employers to provide unions with access to new employees and to information on new employees and bargaining unit members. It does not require that an employee stay to hear from the union. This would be the employee’s choice.
    Q: What happens if the union believes the public agency is violating the law?
    A: Disputes may be submitted to the Public Employment Relations Board (PERB).

    Written by:

    Louis T. Lozano

    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.

    Public Entities Must Proceed with Caution When Preparing an Addendum to a Negative Declaration

    June 2017
    Number 31

    A California appellate court has held that a public entity violated the California Environmental Quality Act (CEQA) by preparing an addendum to a mitigated negative declaration. In Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal.App.5th 596, the court found that proposed changes to the District’s original facilities project might have a significant effect on the environment, requiring further analysis, rather than use of an addendum.

    The California Environmental Quality Act

    Under CEQA, a public agency generally conducts an initial study to determine if a project may have a significant effect on the environment unless an exemption applies. If the initial study shows that there is no substantial evidence that the project may have a significant effect on the environment, CEQA requires the agency to prepare a negative declaration. Alternatively, if the project has potentially significant environmental effects but these effects will be reduced to insignificance by mitigation measures, CEQA requires the agency to prepare a mitigated negative declaration. Projects where the environmental effect cannot be reduced to insignificance by mitigation measures require an environmental impact report (EIR).

    In the event an agency modifies a project after a negative or mitigated negative declaration has been adopted, CEQA outlines subsequent review provisions that apply so long as the original declaration is relevant. These provisions require the agency to prepare a subsequent negative or mitigated declaration or subsequent EIR depending on certain circumstances. The guidelines also allow the agency to prepare an “addendum,” rather than a subsequent negative or mitigated negative declaration, if there are only “minor technical changes or additions.” Such addenda have more limited analysis and do not reopen public comment opportunities. Alternatively, if the modifications are such that the original negative or mitigated declaration is no longer relevant, the public entity must start over by conducting a new initial study.

    Background

    The San Mateo County Community College District (District) adopted a facilities master plan proposing nearly $1 billion in new construction and facilities renovations that involved demolition of certain buildings and renovation of others. In order to comply with CEQA, the District published an initial study and mitigated negative declaration analyzing the physical environmental effects of implementing the plan’s proposed improvements in 2006. However, after the District failed to obtain adequate funding for its original plan, it added one building to its demolition list and removed two others. As a result of these changes, the District prepared an addendum to the 2006 mitigated negative declaration.

    The proposed changes to the plan prompted complaints by a number of students and faculty which ultimately led to a lawsuit challenging the addendum. (Friends of College of San Mateo Gardens v. San Mateo County Community
    College Dist.
    (Sept. 26, 2013, No. A135892) [nonpub. opn.].) The community members expressed concern that the proposed changes would eliminate a portion of an existing garden making up one-third of one percent of the total landscaped and open space on campus. The court concluded that the proposed changes constituted a “new” project, meaning that new CEQA review was required. However, the California Supreme Court disagreed and remanded the case with
    additional instructions. (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937.)

    On remand, the appellate court found that substantial evidence supporting the District’s original mitigated negative declaration was still relevant and agreed with the District’s determination that CEQA’s somewhat more limited subsequent review provisions were applicable. However, the court concluded that the District did not properly comply with its obligations under those provisions. The court considered testimony from community members regarding the project’s aesthetic value to be substantial evidence that the project might have a significant environmental effect, rendering the proposed changes more than “minor technical changes or additions,” and therefore requiring more than the adoption of an addendum.

    Takeaway

    The lesson from this case is that, when modifying a project after a negative or mitigated negative declaration has been adopted, public entities should be very cautious when deciding whether to prepare an addendum or adopt a subsequent or supplemental negative declaration or EIR. Although courts give public entities deference when deciding whether to proceed under CEQA’s subsequent review provisions so long as there is evidence that the original negative or mitigated declaration remains relevant, the decision to prepare an addendum (rather than a subsequent or supplemental negative declaration or EIR) is reviewed with much more scrutiny. As we learn from San Mateo Gardens, even complaints about aesthetics from community members could be enough evidence for a court to conclude that modifications to a project may have a significant environmental effect, requiring further review. No matter what subsequent review process is selected, it is important to ensure that the rationale is well-documented in the administrative record in order to best defend the public entity’s decision.

    For more information about the California Environmental Quality Act, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Anne L. Collins

    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.

    High Court Declines to Review Ruling on Cash in Lieu Payments

    June 2017
    Number 28

    The United States Supreme Court has denied review of a Ninth Circuit Court of Appeals ruling that cash payments made to employees in lieu of benefits must be included as pay when calculating their overtime pay rate under the Fair Labor Standards Act (FLSA). On May 15, 2017, the Court denied the City of San Gabriel’s petition for review of Flores v. City of San Gabriel (2016) 824 F.3d 890 (Flores), allowing the decision to remain legal precedent.

    Flores provides narrow interpretations of exemptions to the FLSA when calculating an employee’s “regular rate of pay” and a broad definition of what constitutes an employer’s “willful” violation of the FLSA. This ruling also highlights the importance of employers carefully reviewing all payments made to employees to determine if the payments must be included in calculations of the employee’s regular rate of pay for purposes of overtime.

    In Flores, a group of police officers sued the City of San Gabriel (the City) for overtime pay they said they were owed under the FLSA. The City had a flexible benefit plan which allowed employees to forego medical benefits if they had alternative coverage. Employees who made this election received the unused portion of their benefit allotment as a cash payment added to their regular paycheck. The police officers argued that the City should have included these payments when calculating their overtime pay rate. The officers also argued that the City’s violation of the FLSA was “willful” and thus triggered an extension of the two-year limit on back pay that could be recovered.

    Under the FLSA, an employer must pay its employees overtime compensation of one and one-half times the “regular rate of pay” for any hours worked in excess of 40 hours in a seven-day work week. An employee’s “regular rate of pay” must include all remuneration for employment paid to, or on behalf of, the employee, unless the payment is excluded as set forth in the FLSA. The FLSA allows employees to sue for unpaid wages owed to them within a two-year statute of limitations for claims unless an employer’s violation of the law was “willful,” in which case the statute of limitations is extended to three years.

    The Ninth Circuit held that the City’s cash-in-lieu of benefits payment may not be excluded as exemptions to the FLSA and therefore must be included in the calculations of the plaintiffs’ “regular rate of pay,” rejecting the City’s argument that the cash-in-lieu benefits were exempt because the payments were not tied to hours worked or amount of services provided by the plaintiffs. The court reasoned that the City’s interpretation contradicted a regulation implementing the FLSA which provides that a payment may not be excluded from regular rate of pay if it is generally understood as compensation for work, even though the payment is not directly tied to specific hours worked by an employee. The court further determined that the FLSA exemption did not apply because the unused benefits were paid directly to the employees and not a “trustee or third person.”

    The court also deemed the City’s violation of the FLSA “willful,” saying that the City did not put forth any evidence of any actions it took to determine whether its treatment of cash-in-lieu of benefits payments complied with the FLSA, despite full awareness of its obligation to do so. (For more details on the decision, see 2016 Client News Brief No. 47.)

    The court’s narrow interpretation of the FLSA exceptions for calculating “regular rate of pay” could have a significant impact on the way agencies pay employees and provide benefits. This interpretation of the FLSA means that employers must be cautious when offering cash-in-lieu of benefits payment programs to employees because of the consequences such offers may have on overtime payment calculations.

    The broad interpretation of what constitutes an employer’s “willful” violation of the FLSA requires employers to be proactive when even the slightest possibility of violating the FLSA arises. The ruling emphasizes the importance of conducting and documenting regular review of payments made to employees and a determination of whether they must be included in the employee’s regular rate of pay for purposes of overtime. Determining whether a specific payment fits into one of these statutory exclusions and is therefore properly excluded from the regular rate of pay involves a highly fact-specific analysis. To that end, case law, regulations and the Department of Labor provide extensive guidance regarding how specific forms of common arrangements are treated under these exclusions, and legal counsel should be consulted as needed during an analysis of whether a particular payment should be included in the regular rate of pay.

    For more information on the Flores case or FLSA claims in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Jayme A. Duque

    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.

    Attorney General Sessions Defines Federal Funding Subject to Withholding Due to Sanctuary Policies

    June 2017
    Number 27

    U.S. Attorney General Jeff Sessions provided clarity on which federal funding would be subject to a withholding for implementing “sanctuary” policies that direct employees to refuse to communicate with, or frustrate communication of immigration status information to, Immigration and Customs Enforcement (ICE) as required by federal law.

    On May 22, 2017, the Attorney General issued a memorandum regarding one of President Donald J. Trump’s executive orders that would withhold federal funds from “sanctuary jurisdictions.” The executive order, issued on January 25, 2017, charges the U.S. Attorney General and Secretary of the Department of Homeland Security with ensuring that “sanctuary jurisdictions” are not eligible for federal grants, except as deemed necessary for law enforcement purposes. While the order defines “sanctuary jurisdictions” as those that refuse to comply with 8 U.S.C. § 1373 – which prohibits government entities from restricting or creating policies restricting agencies from communicating immigration status information with ICE – it does not spell out the types of government agencies that will be considered “sanctuary jurisdictions” or the types of grants subject to a potential withholding.

    The Attorney General’s memorandum narrows the scope of the executive order to apply only to “federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding.”

    This memorandum follows a recent decision out of the federal district court for the Northern District of California, which had granted a preliminary injunction halting execution of the executive order’s enforcement provision. In separate lawsuits, both San Francisco and Santa Clara counties challenged the executive order’s enforcement provision as unconstitutional. (County of Santa Clara v. Trump, No. 17-cv-0574-WHO; City and County of San Francisco v. Trump, 17-cv-0485-WHO.) The order’s lack of specificity, and President Trump and his administration’s statements, sowed fears among cities, counties and school districts that their policies could result in the loss of millions of dollars of federal funding for everything from law enforcement to special education programs and health care subsidies.

    The court agreed with the counties’ argument that the executive order was unconstitutionally vague and did not provide any notice or opportunity for local jurisdictions to provide input. The court agreed that the executive order is unconstitutional because the President lacks the authority to place new conditions on federal funds. The court also held agreed that any conditions for receipt of federal funds must be unambiguous and timely made.

    The court drew inferences about the scope of the executive order from the public comments made on television and in press briefings and conferences from the President; his press secretary, Sean Spicer; and Sessions. In particular, the court considered a quote from the President saying he would use “defunding” as a “weapon” so that sanctuary cities would change their policies. In issuing the injunction, the court ruled that these statements erased any doubt that this was a threat of major cuts to federal funding, and that it has caused budget uncertainty within the plaintiff counties. The Attorney General’s memorandum appears to be in direct response to these inferences and significantly limits the risk of implementing these sanctuary laws and policies.

    The memorandum and court decision mean that, for now, the federal government may not withhold federal funding from any sanctuary jurisdiction based on the executive order, except for those with federal grants through the Department of Justice or the Department of Homeland Security that had already contained requirements to comply with 8 U.S.C. § 1373. This likely means that many school districts are not intended to and would not be subject to a withholding of federal funding under this executive order.

    However, the memorandum states the Department of Justice will continue to point out actions taken by state and local public agencies who are undermining “our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.”

    The memorandum comes as state legislators consider laws that seek to protect immigrants and limit the state and local role in enforcement and both state and local government agencies seek to reassure immigrant communities. On April 3, 2017, the California Senate passed and forwarded to the state Assembly a “sanctuary state” bill, Senate Bill (SB) 54, which bars state and local law enforcement agencies from using their resources to conduct immigration enforcement activities. Notably, state and local law enforcement would be prohibited from asking about immigration status and would not be allowed to give ICE access to interview individuals in custody. A related, bill, SB 6, would provide money for legal services for undocumented immigrants.

    As we await further guidance, regulations and case law regarding the impact sanctuary policies may have on federal funding, Lozano Smith encourages public agencies to discuss drafting or revising sanctuary or safe haven laws and policies with legal counsel in order to ensure compliance with federal law.

    For more information on the executive order, the district court’s decision or adopting compliant policies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Joshua Whiteside

    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.

    Meet-and-Confer Requirement Does Not Apply to Pension Reform Measure Placed on Ballot through Voter Initiative Process

    April 2017
    Number 20

    In Boling v. Public Employment Relations Board (Apr. 11, 2017, D069626) ___ Cal.App.4th ___ (Boling), the Fourth District Court of Appeal invalidated a decision by the Public Employment Relations Board (PERB) holding that a city council violated the Meyers-Milias-Brown Act (MMBA) by placing a voter initiative to amend the city’s charter on the ballot without first meeting and conferring with the unions representing affected city employees. In doing so, the court rejected PERB’s reasoning that the mayor’s public support of the initiative effectively transformed it from a voter initiative to a city council-sponsored ballot proposal subject to meet-and-confer requirements.

    This case addresses a longstanding issue. In a 1984 case, People ex rel. Seal Beach Police Officers Assn. v City of Seal Beach, the California Supreme Court concluded that a charter amendment proposed by a governing body is subject to the MMBA’s requirements, but cautioned that the case did “not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposed by initiative.” Three decades after Seal Beach, a California appellate court has addressed that question for the first time.

    The Boling case traces back to a City of San Diego decision on an issue that rarely evades controversy: public employee pension plans. In 2010, the city’s mayor and a city councilmember separately announced plans to replace the city’s existing defined benefit pension plans with 401(k)-style defined contribution plans for new hires. Ultimately, supporters of the mayor’s proposal and of the city councilmember’s competing proposal joined forces to produce an initiative to adopt a charter amendment mandating changes to pension plans for new hires.

    The California Constitution provides two options for proposing an amendment to a city charter: an initiative qualified for the ballot through signed voter petitions, or a ballot measure sponsored by the governing body of the city. Rather than pursuing a ballot measure sponsored by the San Diego City Council (City Council), which the mayor believed the City Council would not place on the ballot “under any circumstances,” he launched a citizens’ initiative for his pension reform proposal. The parties to the case never disputed the fact that the mayor and his staff assisted in drafting the proposal and in campaigning for the citizens’ initiative.

    In the summer of 2011, proponents of the proposal circulated a voter petition to place the initiative on the ballot. Meanwhile, a municipal employees’ union wrote to the mayor and asserted that the MMBA required the city to meet and confer over the initiative before it could be placed on the ballot. The city disagreed and refused to do so. In November 2011, the county’s registrar of voters reviewed and certified the petition. Subsequently, the City Council passed a resolution of its intention to put the measure on the ballot.

    In January 2012, the union filed an unfair practice charge. Other unions followed suit. Later that month, the City Council enacted an ordinance placing the initiative on the June 2012 ballot. Shortly thereafter, PERB issued a complaint against the city and ordered an expedited administrative hearing. PERB also filed a superior court action seeking a preliminary injunction to bar the city from putting the initiative on the ballot. The trial court denied PERB’s request for an injunction and the voters overwhelmingly approved the initiative in June 2012.

    However, the proceedings before PERB continued and the case went to a hearing in July 2012. At the conclusion of the PERB hearing, the administrative law judge (ALJ) issued a proposed decision determining that the mayor, acting under the color of his elected office and with support of councilmembers and the city attorney, violated the MMBA by denying the unions the opportunity to meet and confer over the mayor’s decision to launch and pursue the initiative. The ALJ further determined that since the mayor was an agent of the city, and because the city ratified the mayor’s policy decision, the obligation to meet and confer extended to the city. PERB agreed and issued a decision consistent with the ALJ’s proposed decision.

    The city and the initiative’s proponents filed separate petitions for writs of extraordinary relief with the Fourth District Court of Appeal challenging PERB’s decision, which the Court of Appeal consolidated for purposes of its decision.

    The Court of Appeal disagreed with PERB’s conclusions and determined that the MMBA’s meet-and-confer requirement does not apply when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process. Instead, only a governing body-sponsored proposal willtrigger the meet-and-confer requirement.

    Central to the court’s analysis was the principle that procedural requirements that govern city council action generally do not apply to citizen-sponsored initiatives. Unlike a charter amendment proposed by a city council, a voter-initiated charter amendment proposal must be placed on the ballot; the city council has no discretion to decide otherwise. (Elec. Code, § 9255.) In contrast, a city council’s vote to adopt a ballot proposal for submission to its voters is discretionary and is thus subject to certain procedural constraints, including the requirement to negotiate. Moreover, the court reasoned, the MMBA’s meet-and-confer provisions expressly refer to “governing body” proposals, which a voter initiative is not.

    The court further determined that PERB erred when it applied legal theories regarding principal-agent relationships to transform the initiative from a citizen-sponsored initiative into a governing body-sponsored ballot proposal, even given the mayor’s role in developing and supporting the initiative. This was in part because under the express language of the city’s charter, the mayor had no authority to place a City Council-sponsored ballot proposal on the ballot without City Council approval, and there were no indicators that he obtained such approval. The court also rejected PERB’s arguments under the theories of apparent authority, respondeat superior, and ratification as legally erroneous.

    This case resolves a major question regarding the balance of power between voter-driven initiatives and union collective bargaining rights, with the court deciding the issue in favor of the electoral process.

    For more information on the Boling decision or a local government agency’s collective bargaining duties, please contact the authors of this Client News Brief or an attorney at one of ournine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Steven A. Nunes

    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.

    California Public Records Act Applies to Private Accounts

    March 2017
    Number 11

    Emails, text messages and other written communications sent to or from a public official’s private account may be subject to disclosure under the California Public Records Act (CPRA), the California Supreme Court ruled unanimously in a highly anticipated decision published on March 2, 2017. (City of San Jose et al. v. Superior Court (March 2, 2017, No. S218066) ___ Cal.5th ___ < http://www.courts.ca.gov/opinions/documents/S218066.PDF>.)

    The court held that the public has a right under the CPRA to access texts, emails and other records discussing public business regardless of whether the records were created, received by or stored in a private account. “If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device,” the court wrote, “sensitive information could routinely evade public scrutiny.”

    This case had its origin in a 2009 lawsuit against the City of San Jose, its redevelopment agency and several city officials. The plaintiff in that case, a community activist, claimed that the city’s failure to provide certain records regarding a downtown redevelopment project and other city business violated the CPRA. The city had provided certain records, but declined to provide voicemails, emails and text messages that were sent and received by city officials on personal devices using personal accounts. In 2013, a trial court judge ruled against the city, finding that communications sent to or received from city officials regarding public business are public records regardless of what device or account was used to create and deliver them. ( See 2013 Client News Brief No. 17.)

    The city appealed the decision, and in 2014, the Sixth District Court of Appeal reversed the decision. The appellate court ruled that the CPRA’s definition of public records as communications “prepared, owned, used, or retained” by a public agency did not include messages sent or received on individual city officials’ and employees’ private devices and accounts. ( See 2014 Client News Brief No. 21.) Distinguishing between a public agency as the holder of public documents and its individual elected officials and employees, the appellate court held that, as a practical matter, the city could not use or retain a message sent from an individual council member’s phone that was not linked to a city server or account. While acknowledging the potential for abuses, the court determined that it is up to the Legislature to decide whether to require public agencies to police officials’ private devices and accounts.

    The community activist then appealed to the California Supreme Court, where the case languished for nearly three years before the high court overturned the appellate decision.

    In its ruling, the Supreme Court disagreed with the appellate court because records “prepared” on private devices could still qualify as public records. The high court observed that the agency itself is not a person who can create, send and save communications; rather, any such communication would come from or be received by an individual. As such, the city’s elected officials and employees were in essence acting as the city, and to the extent that their emails pertained to city business, they were public records.

    The court did narrow the type of records that are subject to disclosure, holding that records containing conversations that are primarily personal in nature are not subject to disclosure under the CPRA. The court also acknowledged that determining whether particular communications constitute public records is a heavily fact-specific process, and decisions must be made on a case-by-case basis. This will create challenges for public agencies as they attempt to follow the reasoning of this decision.

    The court also addressed the practical challenges around retrieving records from personal accounts, including ways to limit the potential for invading personal privacy. For guidance, the court offered examples of methods for retrieving records from personal accounts including procedures adopted by federal courts applying the Freedom of Information Act and followed by the Washington Supreme Court under that state’s records law that allow individuals to search their own devices for responsive records when a request is received and to submit an affidavit regarding potentially responsive documents that are withheld. The court also discussed adoption of policies that would prohibit the use of personal accounts for public business, unless messages are copied and forwarded to an official government account. While these methods were offered as examples, the court did not endorse any specific approach.

    The opinion did not address a host of other practical issues, such as how public agencies should proceed when employees refuse or fail to provide access to records contained in their private accounts.

    The decision means that public agencies must now carefully consider how to retrieve business-related public records that may be located in employees’ and officials’ personal accounts. One approach is to create new policies that address the decision. However, public agencies should consider the implications such policies may have on issues such as collective bargaining, records retention, acceptable use policies and other policies concerning technology.

    Lozano Smith attorneys can provide a wide array of CPRA services, including preparing policies to address this opinion, responding to CPRA requests, analyzing documents and assisting in related litigation. Lozano Smith has a model email retention policy, and is in the process of reviewing and updating this and other model policies to reflect the impact of this decision. In order to receive our existing retention policy, which addresses individual employees’ obligations in relation to electronic communications, or to request our upcoming board policy to address the court’s decision, you may also email Harold Freiman at hfreiman@lozanosmith.com or Manuel Martinez at mmartinez@lozanosmith.com. We will also be producing webinars about the City of San Jose case and electronic records under the CPRA.

    For more information on the City of San Jose opinion or about the California Public Records Act application to personal technology in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    ©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.

    Change in Law May Require Shift to Even-Year Elections

    February 2017
    Number 8

    In September 2015, Governor Jerry Brown signed into law Senate Bill (SB) 415. SB 415, which becomes operative on January 1, 2018, prohibits political subdivisions from holding odd-year regular elections if a prior odd-year election resulted in a “significant decrease in voter turnout,” as defined by statute. The new law reflects a policy of encouraging election consolidations to defray election costs and encourage voter participation. It applies only to regular elections and not to special elections.

    Specifically, the new law, which is codified at Elections Code sections 14050 et seq., provides that a political subdivision (such as a city, school district, community college district or other district organized pursuant to state law) shall not hold an election other than on a statewide election date if holding an election on a “nonconcurrent date” has previously resulted in a “significant decrease in voter turnout.” “Nonconcurrent dates” are non-statewide election dates such as odd-year board member elections (or “off-cycle” election dates). A “significant decrease in voter turnout” is a voter turnout in a regular election in a political subdivision that is at least 25 percent less than the average voter turnout within that political subdivision for the previous four statewide general elections.

    If a political subdivision has experienced such a “significant decrease in voter turnout” and is prohibited from holding future off-cycle elections, it may still hold off-cycle elections through 2021 if, by January 1, 2018, it has adopted a plan to consolidate a future election with a statewide election not later than the November 8, 2022 statewide general election.

    In determining when to make the transition, political subdivisions should build in an administrative time buffer. In order to consolidate a currently-scheduled election into a general election, cities will need to enact an ordinance and seek approval from their county board of supervisors, among other requirements. Likewise, certain other categories of political subdivisions that wish to consolidate a currently-scheduled legislative body member election will need to adopt a resolution, seek approval from their county board of supervisors and comply with other statutory preconditions. Elections Code sections 10404 and 10404.5 provide that such a resolution must be adopted and submitted for approval no later than 240 days prior to the date of the currently-scheduled election. For an election scheduled in November 2017, the deadline for such actions would be March 13, 2017.

    Political subdivisions should also consider the short-term effects of the transition. School districts, for example, which may now be able to hold Proposition 39 bond measure elections on an annual basis, will be limited to holding such elections once every two years once they transition to even-year election cycles. Political subdivisions should also be aware that consolidating elections to move them from odd to even years may affect the duration of their officers’ or board members’ terms. Consolidating school board elections, for example, will result in extending terms for current board members by one year.

    A political subdivision that holds an odd-year election after January 1, 2018 without first adopting a transition plan can be sued by a voter within the political subdivision and compelled to comply with SB 415. If the voter prevails, the political subdivision will be liable for attorney’s fees and litigation expenses.

    Lozano Smith has assisted political subdivisions with applying the 25 percent rule of SB 415 and with the mechanics of transitioning to even-year election cycles. If you have questions about compliance with SB 415 or any other issues impacting school districts and other local government entities, please contact an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Steven Nunes

    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.

    County Boards of Education May Not Exempt Charter Schools from Local Zoning Regulations

    February 2017
    Number 7

    A California Court of Appeal has held that a county board of education may not grant exemptions from zoning ordinances under Government Code section 53094. ( San Jose Unified School District v. Santa Clara County Office of
    Education
    (Jan 24, 2017, No. H041088) ___ Cal.App.5th ___ < http://www.courts. ca.gov/opinions/documents/H041088.PDF >.) Specifically, county boards may not exempt the charter schools they authorize from zoning ordinances. School districts have this power; county boards do not.

    The Santa Clara County Office of Education granted Rocketship Education (“Rocketship”) a countywide charter to operate up to 25 charter elementary schools within the county. Rocketship proposed to locate one of its elementary schools on property that was owned by the City of San Jose (“City”) and not zoned for school use. The proposed property was located within the jurisdiction of the San Jose Unified School District (“District”), but was zoned only for open space, parklands and habitat. Because the City’s General Plan prohibited operating a school on the property, the Santa Clara County Board of Education granted Rocketship an exemption to the City’s zoning ordinance under Government Code section 53094.

    Under the language of Government Code section 53094, subdivision (b), only the “governing board of a school district” may grant zoning exemptions. The San Jose Unified School District and a local property owner filed separate petitions for writs of mandate seeking to invalidate the exemption. They argued that county boards of education are not school district governing boards, and lack authority to exempt property from local zoning laws. The trial court granted the District’s writ petition and ordered the County Office of Education to rescind Rocketship’s zoning exemption – thus leaving Rocketship without a school site.

    The Court of Appeal upheld the trial court’s decision. In reaching its conclusion, the appellate court relied on the legislative history of section 53094, which was enacted in response to the decisions inHall v. City of Taft (1956) 47 Cal.2d 177 andTown of Atherton v. Superior Court (1958) 159 Cal.App.2d 417.Hall and Atherton generally held that school districts engage in sovereign activities of the state when they design and construct school facilities, and therefore are not required to comply with local zoning ordinances in designating school locations. These cases, however, unwittingly immunized a large number of state agencies from local regulation, and section 53094 was passed to narrow this exemption authority specifically to local school districts.

    The court noted that, although county offices of education have authority to grant charter petitions and oversee charter schools, it is local school districts that are obligated to provide charter school facilities under Proposition 39 (Ed. Code, § 47614, subd. (b).) Because a county office of education does not bear responsibility to acquire sites for charter schools, it does not perform a sovereign activity on behalf of the state if it chooses to do so. This is because the state has tasked districts, not county offices of education, with such responsibility. Therefore, empowering county boards of education to issue zoning exemptions would not advance section 53094’s purpose – namely, preventing local interference with the state’s sovereign activities.

    While each charter school’s situation is unique, this decision will likely impact the siting of county-authorized charter schools and require increased collaboration between government entities when zoning serves as an impediment to locating a charter school facility.

    For more information on the San Jose Unified School District opinion or the Charter Schools Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Charter School Practice Group or at one of our nine offices located statewide. You can also visit our website , follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Edward Sklar

    Partner

    Erin Hamor

    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.

    Attorney Invoices are Subject to Disclosure under the Public Records Act

    January 2017
    Number 3

    The California Supreme Court has ruled that invoices from a public agency’s legal counsel are subject to disclosure under the California Public Records Act (CPRA), with limited exceptions. Invoices for work in pending and active legal matters may generally be shielded from disclosure under the attorney-client privilege.

    In Los Angeles County Board of Supervisors v. Superior Court (Dec. 29, 2016, No. S226645) ___ Cal.4th___ < http://www.courts.ca.gov/opinions/documents/ S226645A.PDF >, the court considered to what extent invoices from a public entity’s attorney are subject to disclosure under the CPRA.

    The American Civil Liberties Union (ACLU) suspected attorneys for the Los Angeles County jail system of wasting public funds by engaging in “scorched earth” litigation tactics. The ACLU submitted a CPRA request to Los Angeles County (County) seeking invoices indicating amounts billed in connection with nine different lawsuits in order to determine whether the county engaged in wasteful legal strategies. The county agreed to produce invoices relating to three lawsuits that were no longer pending, with attorney-client privileged information redacted, but declined to produce invoices for the six remaining lawsuits that remained pending, claiming the attorney-client privilege protected them from disclosure.

    The Court of Appeal ruled that the attorney-client privilege generally protects attorney invoices from disclosure if the invoices were maintained in a privileged manner.

    In a close 4-3 ruling, a divided Supreme Court reversed the appellate court’s decision, balancing competing rights and privileges in its majority opinion. While the CPRA provides the public with a broad right of access to records in the possession of state and local government agencies, it also contains a number of exceptions that protect certain categories of documents from disclosure, including documents protected by the attorney-client privilege.

    In analyzing whether attorney invoices are categorically protected by the attorney-client privilege, the Supreme Court adhered to the principle that “the heartland of the privilege protects those communications that bear some relationship to the attorney’s provision of legal consultation.” The court explained that the attorney-client privilege does not extend toall communications between an attorney and client, but rather “to communications that bear some relationship to the provision of legal consultation.” The court concluded that the primary purpose of invoices is for the attorney to receive payment, and not “for the purpose of legal consultation.” In other words, invoices may not be withheld simply because they are sent from an attorney. Whether an invoice or specific information in the invoice can be withheld is a fact-specific inquiry into whether the invoice as a whole, or certain information contained in it, bears a relationship to the provision of legal consultation.

    The court concluded that information in an invoice “to inform the client of the nature or amount of work occurringin connection with a pending legal issue” is protected by the attorney-client privilege. The amount of fees being expended on a pending and active legal matter is also privileged, because changes in spending could indirectly reveal legal strategy to a party that can use that information to the detriment of the government agency. However, fee information for concluded legal matters may not be subject to the privilege because, over time, the information “no longer provides any insight into litigation strategy or legal consultation.” While the fee information contained in such an invoice may not be protected by the attorney-client privilege, the court’s opinion appears to allow redaction of specific information in the invoice that may reveal information about legal consultation, though the court was not that express about this point.

    The takeaways from this case can be summarized as follows:

    • Legal invoices for concluded matters are disclosable, subject to any lawfully allowed redactions of information that reveals attorney-client confidences; and
    • Legal invoices for pending or active matters can be withheld in their entirety.

    Lozano Smith strives to provide invoices that have sufficient information for audit purposes and to keep clients informed. However, we are conscious of our clients’ obligations under the CPRA and endeavor to avoid including information in invoices that could reveal attorney-client privileged advice or strategy.

    For more information on this case or the California Public Records Act in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App .
    Written by:

    Nicholas J. Clair

    Associate

    ©2016 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.

    Proposition 64: Legal and Practical Considerations

    December 2016
    Number 87

    On November 8, 2016, California voters passed the “Control, Regulation and Tax Adult Use of Marijuana Act” (“Prop. 64”), legalizing recreational marijuana use for those 21 years old and older. The new law, effective immediately, among many other provisions does the following related to marijuana:

    • Establishes a regulatory scheme for cultivation, distribution, sale, testing and use;
    • Allows for personal cultivation of up to six plants inside a private home;
    • Prohibits public use;
    • Prohibits all use in vehicles and maintains existing laws about driving while impaired;
    • Prohibits use within 1,000 feet of a school, day care center or youth center (unless it is in a private residence within that radius and the smoke cannot be detected at the school or center);
    • Allows cities and counties significant local control over regulation related to sale, manufacturing, production, cultivation and related businesses, including the authority to ban certain activities within the agency’s jurisdiction;
    • Allows public and private employers to prohibit use, possession, purchasing, transporting, obtaining or giving away marijuana on their premises and to establish and enforce drug- and alcohol-free workplace policies;
    • Imposes penalties for public use, use in prohibited school or tobacco-free zones or for having an open container; and
    • Provides for drug prevention education and community service for offenders younger than 18 years.

    The Act also establishes the Bureau of Marijuana Control, a division within the Department of Consumer Affairs, which will oversee the licensing, regulation and taxation of all marijuana businesses beginning January 1, 2018. Thus, provisions related to licensing and taxation are not effective until January 1, 2018. However, the provisions allowing personal use and cultivation of marijuana inside a private residence are effective immediately.

    The impact of federal law on enforcement of Prop. 64 is uncertain. Marijuana continues to be a Class 1 narcotic under the federal Controlled Substances Act, but the U.S. Department of Justice indicated in a 2013 memorandum that it would defer enforcement for marijuana violations to states that had established “strong and effective regulatory and enforcement systems.” It is uncertain whether the Department of Justice’s current practice will remain in effect or be altered when a new presidential administration takes office in January.

    The passage of Prop. 64 raises many issues for public agencies responsible for school and child safety, public health and safety, law enforcement, and for maintaining safe and drug-free workplaces. These issues include, but are not limited to:

    • Employees possessing, using or sharing marijuana in or near the workplace;
    • Establishing a defensible drug-free workplace policy, including a drug-testing protocol; and
    • Dealing with employees and/or students who are suspected of being under the influence.

    Lozano Smith is currently working with our municipal, school district, community college and special district clients to address these and other issues related to the enactment of Prop. 64. For more information on how the new law impacts your agency, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit ourwebsite, follow us on Facebook or Twitter or download our Client News Brief App.

     
    Written by:

    Lee Burdick

    Senior Counsel

    ©2016 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.

    Labor and Employment Legislative Update, Part Two

    December 2016
    Number 86

    Governor Jerry Brown considered several bills this legislative season that will affect the rights of public employees and their employers. In this second part of a two-part series, Lozano Smith summarizes seven new laws with the greatest potential impact on public employers in 2017.

    Assembly Bill (AB) 2248: Expedited Authorizations for Out-of-State Teachers with Bilingual Authorization

    AB 2248 seeks to address California’s teacher shortage and expedite the ability of schools to place qualified bilingual teachers (i.e., teachers authorized to deliver content instruction in a pupil’s primary language) in California classrooms. Under existing law, teachers who hold an out-of-state credential authorizing instruction of English learners are allowed to earn an English learner authorization to teach in California. However, current law does not extend that authorization to out-of-state bilingual teachers. Instead, out-of-state bilingual teachers must take professional tests and coursework to obtain a bilingual authorization in California regardless of their qualifications. AB 2248 amends Education Code section 44253.4 so that a teacher who holds an out-of-state bilingual authorization can earn an equivalent bilingual learner authorization in California by simply submitting an application and a fee.

    Senate Bill (SB) 1001: New Prohibitions on Employer Review of Employment Authorization Documents

    On September 28, 2016, Governor Jerry Brown signed SB 1001 into law. SB 1001 adds section 1019.1 to the Labor Code, which will prohibit employers from engaging in certain practices when reviewing employment authorization documents in order to verify, as required by federal law, whether an individual is authorized to work in the United States. Pursuant to SB 1001, an employer is prohibited from: (1) requesting more or different work authorization documents than are required under federal law; (2) refusing to honor documents that on their face reasonably appear to be genuine; (3) refusing to honor documents or work authorization based upon the specific status that accompanies the authorization to work; and (4) attempting to re-investigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice. The new code section also provides for sanctions against employers who violate its provisions, including monetary penalties imposed by the state Labor Commissioner of up to $10,000 per violation. In addition, job applicants and employees can bring a complaint with the Division of Labor Standards Enforcement to address violations of this new law. Employers should be mindful of these new prohibitions when reviewing employment authorization records to ensure compliance with the law.

    SB 1180: Additional Leave Rights for Military Veterans

    On September 28, 2016, Governor Brown signed SB 1180 into law. The bill, which adds sections 44978.2 and 45191.5 to the Education Code, is intended to provide disabled veterans who are new school employees with additional leave benefits during their first year of employment. Pursuant to SB 1180, certificated and classified employees hired on or after January 1, 2017 who are military veterans with a military service-connected disability rated at 30 percent or more by the U.S. Department of Veterans Affairs are entitled to a leave of absence for illness or injury with pay of up to 10 days (certificated) or 12 days (classified) during their first year of employment for the purpose of undergoing medical treatment for their military service-connected disability. This new leave is in addition to other leave already provided by existing law.

    AB 1676 and SB 1063: Amendments to California’s Fair Pay Act

    Existing law prohibits an employer from paying any employee “at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Willfully doing so is a misdemeanor punishable by a fine of up to $10,000 and/or six months imprisonment. (Lab. Code, §§ 1197.5, 1199.5.) The law contains specific exceptions, including where the pay differential is based on (1) a seniority system, (2) a merit system, (3) a system that measures earnings by quantity or quality of production or (4) a bona fide factor other than sex, such as education, training, or experience. These factors must be reasonably applied and account for the entire wage differential. (Lab. Code, § 1197.5.)

    AB 1676 amends Labor Code section 1197.5 to provide that an employee’s “prior salary,” by itself, is not sufficient to justify any disparity in compensation. That is, an employer who relies solely on the employee’s prior salary to explain a pay differential will not qualify for the “bona fide” factor exception.

    SB 1063 amends Labor Code sections 1197.5 and 1199.5 so that in addition to pay differentials based on sex, employers are prohibited from paying employees “at wage rates less than the rates paid to employees of another race or ethnicity.” Willfully paying employees less based on race and ethnicity is a misdemeanor. Local agencies and school districts are not entitled to reimbursement from the state for any costs they may incur as a result of SB 1063.

    AB 1843: Juvenile Record Off Limits in Employment Decisions

    With some exceptions, under existing law set forth in Labor Code section 432.7, when making employment decisions, an employer cannot inquire about or consider information concerning an arrest or detention that did not result in a conviction, a referral to or participation in any pretrial or post-trial diversion program or a conviction that has been judicially dismissed or ordered sealed. AB 1843 amends Labor Code section 432.7 to prohibit employers from asking a job applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. In addition, the definition of “conviction” in Labor Code section 432.7 will expressly exclude any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.

    AB 2028: Reinstatement of PERS Benefits

    AB 2028 adds section 20969.3 to the Government Code and applies it to all active Public Employees’ Retirement System (PERS) school and local agency members. Pursuant to AB 2028, a member who is involuntarily terminated on or after January 1, 2017 and is later reinstated to that employment pursuant to an administrative, arbitral or judicial proceeding – including proceedings before school boards – is entitled to reinstatement with all retirement benefits that the member otherwise would have accrued. In addition, PERS contributions must be made, and service credit given, for any period for which salary is awarded in the proceeding. The reinstatement of benefits is effective as of the date from which salary is awarded. Employers are required to notify PERS of the final decision ordering the member’s reinstatement within five days of the date the decision becomes final.

    For more information on these new laws, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Marisa Lincoln

    Partner

    Sarah Starcevich Miller

    Senior Counsel

    Nicholas Smith

    Associate

    ©2016 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.

    Labor and Employment Legislative Update, Part One

    December 2016
    Number 85

    Governor Jerry Brown considered several bills this legislative season that impact the rights of public employees and their employers. In this first part of a two-part series, Lozano Smith examines four new laws with the greatest potential impact on public employers in 2017, plus two major bills the Governor vetoed.

    Assembly Bill (AB) 1918: County Offices of Education May Issue Temporary Certificates to Teachers Working in Nonpublic Schools while their Credential Applications are processed

    AB 1918, signed into law on August 17, 2016, enables county offices of education to issue temporary certificates to certificated employees whose credentials are being processed by the California Commission on Teacher Credentialing (CCTC), including persons who have a certificate from another state and certificated employees of nonpublic schools. Prior to issuing a temporary certificate, a county office of education is required to obtain a certificate of clearance from the CCTC for the employee. The new law goes into effect on January 1, 2017.

    Senate Bill (SB) 916: CCTC May Now Issue Single Subject Teaching Credentials in Dance and Theater

    SB 916 authorizes the CCTC to issue two new single subject teaching credentials, in dance and theater. The bill, which the Governor signed on September 26, 2016, goes into effect on January 1, 2017. Existing law requires teachers to possess a single subject English credential in order to teach theater. Similarly, to teach dance, a teacher is required to possess a physical education teaching credential. In addition to the new credentials, the bill also permits current holders of physical education and English credentials, or persons who pursue such credentials before the establishment of a single subject teaching credential, to teach dance and theater, respectively. The Legislature made clear that these new provisions do not prohibit a school district from employing a teacher with a single subject teaching credential in another subject with an authorization to teach theater or dance.

    Senate Bill (SB) 1413: Teacher Housing Act of 2016

    The Teacher Housing Act of 2016 could make housing more affordable for school district employees throughout California. SB 1413, signed into law on September 27, 2016, will enable California school districts serving grades Pre-K through 12 to use federal tax credits and state and local funds to develop affordable housing for teachers and other school district employees. The Legislature anticipates SB 1413 will help address high teacher turnover rates that are driven, in part, by the increasing cost of housing in many California markets.

    The stability of housing for school employees is critical to the overall success of California schools. Many believe that the current lack of affordable housing for educators negatively impacts teacher retention. The lack of affordable housing exacerbates the record low supply of new teachers in California, which disproportionately impacts schools serving low-income and minority students. According to the Legislature, both students and the community benefit from teachers living near their employing school district.

    Under the new law, which goes into effect on January 1, 2017, districts may leverage federal low-income housing tax credits, along with state and local public and private funding, in order to establish affordable housing programs for district employees. The law also creates a new state policy, pursuant to the federal Internal Revenue Code, allowing district-owned land to be developed as affordable rental housing earmarked solely for district employees. In order to comply with SB 1413, a school district must offer a majority of the rents at levels that are affordable to low or moderate income levels. Affordable housing options on or near school sites will offer the added benefits of reducing employees’ commute time and time away from the home.

    While SB 1413 does not address local zoning requirements for such housing, it is unlikely that local zoning laws could be overridden by the school district. SB 1413 signals an opportunity for school districts to seek out local housing developers interested in proposing options to develop affordable housing on District-owned property and shoulder the burden of any zoning variance required for such purpose.

    Senate Bill (SB) 294: Military Service Retirement Credits for Public Employees

    SB 294 requires school districts and other employers participating in the California Public Employees’ Retirement System (CalPERS) to inform military veteran employees of their right to receive CalPERS credit for periods of active service.

    Under existing law, public employees participating in CalPERS are entitled to certain rights upon return to public employment following a leave of absence to perform active military duty. Such employees have the right to receive salary adjustments, retirement contributions and applicable employer-paid service credit in the retirement system to include the employee’s period of active duty. Veterans who performed active military duty prior to membership in CalPERS are also allowed to self-purchase additional military service credits. In order to receive service credits, eligible employees must properly file an application form with CalPERS.

    Under SB 294, on or by March 31, 2017, school districts and other CalPERS employers must inform returning veterans of their rights to receive applicable service credits and, within 30 days of their return to state service, must provide veterans with the appropriate CalPERS application forms. Upon hire, CalPERS employers must also inform veterans of their right to purchase CalPERS credits for military service prior to employment and membership in CalPERS.

    Currently, some veterans are unaware that they are eligible for this important CalPERS benefit, or do not know how to submit forms in order to apply for the benefit. With SB 294, the Legislature aims to simplify the benefits process and ensure military veterans and their survivors have a greater chance of receiving the retirement credits to they are entitled to.

    Assembly Bill (AB) 2826: Governor Vetoes Law that would have Expanded Methods and Measures Available for Use in Teacher Evaluations

    AB 2826, which was vetoed by Governor Jerry Brown on September 30, 2016, would have expanded methods and assessment tools available for use and consideration in the formal teacher evaluation process. The Education Code requires school districts to evaluate teachers according to standards relating to pupil progress toward certain academic standards, instructional techniques and strategies used and teacher adherence to curricular objectives.

    AB 2826 would have added an Education Code section to specifically permit and encourage the use of certain student academic progress information and data in teacher assessment and evaluation. The bill also included specific measures for assessing instructional techniques and strategies and adherence to curricular objectives.

    While some school districts already use student progress data in teacher evaluations, its use has been the subject of recent legal challenge. (See 2016 Client News Brief No. 80.) In his veto message, Governor Brown expressed his belief that the additional assessment factors would not “materially change current teacher evaluations in California.” Given the veto, it is likely that districts’ ability to use student assessment data in teacher evaluations will be decided by the courts rather than the Legislature.

    Assembly Bill (AB) 2197: Unemployment Insurance for Classified Employees

    AB 2197, which was vetoed by the Governor on September 30, 2016, would have made classified school employees eligible to receive unemployment benefits between school years, with or without a reasonable assurance of being employed the next academic year. Under the proposed law, classified employees would have been eligible to receive up to two weeks of unemployment benefits beginning July 1, 2017, increasing to eight weeks of benefits by July 1, 2020. In his veto message, the Governor declined to approve the bill due to conformity issues with federal unemployment insurance laws, potentially resulting in sanctions from the federal government and the loss of significant tax credits for California employers.

    For more information on these new laws, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Penelope Glover

    Senior Counsel

    Gabriela Flowers

    Senior Counsel

    Erin Hamor

    Associate

     

    ©2016 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.

    California Supreme Court Rules That Retirement is a Form of Quitting Under the Labor Code

    October 2016
    Number 71

    The California Supreme Court has ruled that retirement is a form of quitting under the prompt payment protections in California’s Labor Code. (McLean v. State of California (2016) 1 Cal.5th 615.)

    However, this ruling only applies to State of California and private employees, as Labor Code section 220 continues to exempt employees directly employed by any county, incorporated city, town or other municipal corporation.

    In McLean, a retired California Department of Justice employee sued the state claiming she had not received her final wages within the time period set out in the Labor Code. Labor Code sections 202 and 203 require an employer to make prompt payment of all final wages to an employee who “quits” his or her employment, or else pay extended wages for up to 30 days. Labor Code section 202 states that an employee, not having a written contract for a definite period, is entitled to his or her final wages within 72 hours of quitting employment, or no later than the time of quitting if the employee provides the employer with 72-hour advance notice of his or her intention to quit.

    The California Supreme Court was unpersuaded by the state’s argument that retirement does not qualify as “quitting” under Labor Code section 202. Instead, the court concluded that California’s laws regarding wages, hours and working conditions are to be liberally construed in favor of protecting employees. After looking at the plain language of the Labor Code’s prompt payment provisions, the high court unanimously affirmed the Court of Appeal decision in the former employee’s favor and held that retirement is a form of quitting, thus entitling the retired employee to statutory penalties of up to 30 days of wages at the same rate they earned prior to quitting.

    Secondly, the court held that the retired employee’s lawsuit was not subject to dismissal simply because the employee filed it against the state rather than the agency she worked for. In coming to this conclusion, the court highlighted Labor Code section 220’s prompt payment exemption for “employees directly employed by any county, incorporated city, or town or other municipal corporation.” As supported by the plain language of Labor Code section 220 and subsequent California Courts of Appeal decisions (see Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729; Division of Labor Law Enforcement v. El Camino Hosp. Dist. (1970) 8 Cal.App.3d Supp. 30) holding that water districts and hospital districts qualify as “other municipal corporation[s]” for purposes of Labor Code section 220, it is highly likely that public corporations and quasi-municipal corporations such as K-12 school districts, community college districts, county offices of education and other special districts qualify for the exemption.

    If you have any questions about the decision or wage issues in general, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    William Curley III

    Senior Counsel

    Iain MacMillan

    Associate

     

    ©2016 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.

    California Agencies May Now Have Their Code Enforcement Officers Certified

    September 2016
    Number 64

    The Governor recently signed Assembly Bill 2228, establishing a program for California code enforcement officers to become certified. The purpose of the program, which is voluntary, is to provide a mechanism for code enforcement officers to become trained in the substantive law and legal processes affecting their duties while also reducing the risk of liability for the agency. The program will ensure uniform and consistent training throughout the state, increasing efficiency and productivity.

    The bill authorizes the California Association of Code Enforcement Officers (CACEO) to develop and maintain standards for the designation of Certified Code Enforcement Officers (CCEO); establish minimum training qualifications and experience requirements for applicants to qualify as a CCEO; qualify cities, counties and accredited educational institutions as Certified Code Enforcement Officer Education Program Providers; set continuing education standards; and set annual fees and discipline procedures regarding CCEO eligibility. Under the bill, CACEO becomes an agency with state authority to regulate and maintain standards for CCEOs, similar to how the State Bar of California regulates licensed California attorneys.

    Lozano Smith has been partnering with clients for over 25 years to provide training to code enforcement officers. Lozano Smith attorneys regularly work with agency code enforcement officers, whether they are in designated positons, law enforcement staff, planning staff or others, to ensure compliance with applicable local codes, state statutes and due process requirements. Lozano Smith will be closely monitoring CACEO’s development of the training curriculum.

    Once the curriculum is approved, Lozano Smith attorneys will be able to provide the necessary training for an agency to qualify as a program provider, or otherwise work on a regional level to ensure small agencies have the same opportunities to have their code enforcement officers certified. In addition, clients will be able to rely on Lozano Smith’s expertise in the form of continued education courses that will provide the necessary credits in maintaining a code enforcement officer’s certification.

    If you have questions regarding AB 2228, or have current code enforcement training needs, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    David Wolfe

    Partner

    William Curley III

    Senior Counsel

    Nicholas Felahi

    Associate

     

    ©2016 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 Holds District’s Delay in Responding to Union Information Request, Policy Banning Distribution of Union Materials in the Workplace May Violate the EERA

    September 2016
    Number 60

    The Public Employment Relations Board (PERB) recently held that an employee union could bring claims alleging violations of the Educational Employment Relations Act (EERA) for a district’s unreasonable delay in providing the union with requested negotiations information and for its blanket prohibition on the distribution of union literature in the workplace.

    In this case, the Petaluma Federation of Teachers (PFT) filed an unfair practice charge with PERB Counsel, alleging the District committed several violations of the EERA. Most notably, PFT alleged the District violated the EERA when it delayed in responding to a request for employee information for a period of six weeks. The PFT also alleged the District unlawfully interfered with employee rights by prohibiting distribution of union flyers in the workplace, including during non-duty time. After the PERB agent dismissed the unfair practice charge for failure to state a prima facie case, PFT brought an appeal with the board.

    On July 2, 2014, as the District and PFT were in the middle of negotiations, a representative of the PFT requested information from the District regarding employee salaries and the number of certificated employees who had retired the prior year. The letter requested that the information be provided at the next negotiations session, which was scheduled for July 7, 2014. The District did not object to the request, nor did it advise that the information was unavailable. The July 7, 2014 meeting was canceled by the District due to reasons unrelated to the request. On August 13, 2014, approximately six weeks after PFT’s request, the District provided the information.

    PERB held that the exclusive representative has a broad right to all information that is relevant and necessary to discharge its representational duty. PERB found that a request for information pertaining to unit employee wages, hours or working conditions is presumptively relevant and must be disclosed, unless the employer can establish that the information is plainly irrelevant or can provide some other justification for the nondisclosure. PERB found that in the absence of any concurrent explanation by the District for the delay in providing the relevant information, PFT need only demonstrate sufficient facts to allege that the District’s delay was unreasonable. Notably, and contrary to prior PERB decisions, PERB did not require PFT to present facts showing that it was prejudiced by the delay.

    The second issue before PERB focused on the District’s alleged ban on distributing union information. On September 5, 2014, the District superintendent’s executive assistant sent a message to teachers via email and site mailboxes intended to “define the rules for staff handing out flyers.” In the email, teachers were directed not to pass out flyers before school starts “as they are to be in their classroom[s] 30 minutes prior to school starting.” The message further stated that teachers could pass out flyers only off school property and after their work duties were finished. Teachers were also directed not to hand out flyers of a “political or union nature.” On October 10, 2014, the principal of one of the school sites sent an email to the teachers advising that they would only be permitted to hand out pamphlets outside of the workday, which she defined as before 7:55 a.m. and after 2:45 p.m.

    PERB held that the District’s message constituted unlawful interference with union representation. PERB found that a union may establish interference where an employer is alleged to have engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by EERA. In its decision, PERB reiterated its prior decisions that peaceful picketing, including distribution of leaflets or other materials to advance grievances or solicit support from employees and the public are among the employee rights guaranteed under EERA. PERB found that the District’s blanket restriction on distributing flyers at any time during the work day, including non-duty time and in non-working areas, was overbroad and presumptively unlawful. The District’s geographic restriction to allow distribution of flyers only “off campus” was also not permissible, as it could reasonably be interpreted to prohibit these activities on campus but in non-working areas such as the parking lot, a breakroom or a staff lounge.

    This case serves as an important reminder of the scope of representational rights for unions and employees and what employer actions may interfere with such rights. School districts and community colleges should carefully evaluate practices and policies.

    If you have any questions regarding this decision or employee rights in general, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

    Written by:

    Dulcinea Grantham

    Partner

    Amanda Ruiz

    Associate

     

    ©2016 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.

    Gotta Catch ‘Em All: Spotting the Issues Augmented Reality Games Raise for Public Agencies

    September 2016
    Number 59

    Released in July 2016, Pokémon Go is a technological and gaming sensation that swept across the country, where players use their mobile devices to locate Pokémon (virtual creatures) in the real world. Pokémon can appear in any physical location, and as avid fans know, players “gotta catch ’em all.” This may result in players entering or approaching public property to capture Pokémon, which means public agencies may have to address issues regarding disruption to operations, trespass, safety and privacy, among others. While the Pokémon Go phenomenon seems to be cooling, there may be an increase in the number of games utilizing Pokémon Go’s gaming format, known as “augmented reality.” Below, we highlight some issues that public agencies may need to consider as a result.

    Augmented Reality Basics
    Augmented reality games utilize a mobile device’s GPS and camera capabilities to generate a virtual map based on real-life surroundings. Players create a virtual version of themselves, which appears on the map on the mobile device’s screen. In the case of Pokémon Go, players are directed to nearby virtual Pokémon, PokéStops and Pokémon gyms, where players can buy in-game items like lure modules that help attract Pokémon to a trainer, meet up and battle one another.

    Disruption to Operations and Trespassing
    Local agencies may need to anticipate disruption to their operations and trespassing issues as a result of Pokémon Go and future augmented reality games. The game’s popularity has seen increased pedestrian traffic in public areas as members of the public take to the streets to play the game. For Pokémon Go, PokéStops, Pokémon gyms and Pokémon may be located in any physical location, including in a public agency’s restricted areas. For example, players found a Pikachu in an employee-only room of a county hospital. Additionally, as the game may be played at all hours, public agencies may need to guard public property after business hours. In one instance, trainers trespassed onto a zoo after climbing a fence at 1:30 a.m. to capture a Pokémon located within the zoo’s grounds.

    Safety
    Augmented reality games raise safety concerns for local agencies. The increased potential for large crowds gathering on public property may lead to increased accidents or confrontations. Individuals have even used Pokémon Go to lure and rob players who were in search of a rare Pokémon.

    School districts will need to be vigilant about the potential increase in unauthorized people trying to enter school sites while students are present. Likewise, school authorities will need to ensure that students do not leave campus in response to lure modules set off campus.

    Privacy
    Augmented reality games raise privacy concerns for public agencies.

    School districts need to be aware that they are responsible for protecting student data. As a mobile device’s camera helps create the images on the device’s screen, there may be an increased risk that players will use the game as a pretext to take pictures of employees, members of the public or, in the case of schools, students. In other words, a player may have his mobile device raised as if he is playing, but he may actually be taking pictures of a person.

    Technology Use Policies/Agreements and Discipline
    Pokémon Go’s popularity may result in increased mobile device activity in the workplace during work hours or attempts to access the game using a public agency’s Internet or wireless networks, in violation of technology use agreements, policies or professional standards governing the workplace. This may lead to discipline of employees who engage in non-related work activities during work hours or who create liability for the local agency by failing to comply with use agreements or policies.

    School districts may face an increase in student disciplinary issues resulting from disruptions on campus, like playing the game during class; violations of behavior expectations, such as bringing mobile devices to campus if they are not allowed; and violations of technology use agreements, like using district-issued mobile devices to play or to try to download the game.

    How to Prepare for a Future with Augmented Reality
    For a public agency, one way to prepare is to use Pokémon Go to inspect areas of the public agency. This will help identify specific issues the public agency may face and to find out if any PokéStops, Pokémon gyms or Pokémon are located in any restricted areas.

    Local agencies may wish to review and update their policies regarding access to their respective parks, buildings, schools and other maintained venues, as well as safety procedures, employees’ and students’ expectations and technology use.

    Where access needs to be prohibited, public agencies may need to work toward removing Pokémon, PokéStops and Pokémon Gyms from public property. Working with Pokémon Go creator Niantic and other third-party cybersecurity companies, local businesses and companies have been able to prevent the game from drawing individuals to specific geographic locations that maybe sensitive.

    Pokémon Go may be the tip of the iceberg for augmented reality games. Our Technology and Innovation Practice Group will continue to monitor this emerging field and analyze its impact on public agencies.

    If you have any questions regarding how Pokémon Go and other augmented reality games and technology may impact your agency, or need assistance reviewing or revising your policies and technology use agreements, please contact the authors of this Client News Brief or an attorney at one of our 10 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 Freiman

    Partner

    William Curley III

    Senior Counsel

    Elí Contreras

    Associate

    Nicholas Felahi

    Associate

     

    ©2016 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.

    Governor Signs Bill Requiring Local Legislative Bodies to Provide Oral Summary of Compensation Recommendations for Local Agency Executives

    September 2016
    Number 58

    Governor Jerry Brown recently signed into law Senate Bill (SB) 1436, which impacts the process for approving the compensation of a local agency executive. To encourage transparency, SB 1436 requires that, before taking final action, a local agency’s legislative body orally report a summary of the recommended compensation of a local agency executive. This report must be made during the same open meeting in which final action on the compensation is to be taken.

    In 2011, the Legislature passed Assembly Bill (AB) 1344 in reaction to the City of Bell corruption scandal. AB 1344 increased the procedural requirements and limitations related to local agency executives (LAE) and added Government Code section 3511.1, which defined a “local agency executive.” An LAE is defined under this statute as a person employed by a local agency who is not represented by an employee organization and who meets any of the following requirements:

    (1) The person is the chief executive officer, a deputy chief executive officer or an assistant chief executive officer of the local agency.

    (2) The person is the head of a department of a local agency.

    (3) The person’s position within the local agency is held by an employment contract between the local agency and that person.

    AB 1344 prohibited a legislative body from calling a special meeting regarding LAE salaries, salary schedules or compensation paid in the form of fringe benefits. Approval of an LAE’s compensation must instead be made at a regular meeting. AB 1344 did not affect a local agency’s ability to hold a closed session with its designated representatives regarding the negotiation of compensation with the agency’s unrepresented employees, but the closed session may not include final action on the proposed compensation for an unrepresented employee.

    SB 1436’s purpose is to further the goals of AB 1344 by fostering openness and transparency regarding LAE compensation. Effective January 1, 2017, SB 1436 amends Government Code section 54953 and will require a legislative body to orally report a summary of the recommendation for a final action on LAE salaries, salary schedules or compensation paid in the form of fringe benefits. The oral report must be given in open session at the same open meeting that the final action is to be taken. SB 1436 also provides that amended Government Code section 54953 will not impact the public’s rights under the California Public Records Act to inspect and copy records created or received when developing this compensation recommendation.

    Many local agencies currently approve LAE contracts and salaries during open session as individual agenda items, and those agencies will simply need to provide an oral summary of the compensation and fringe benefits recommended in those agenda items.

    If you have any questions regarding SB 1436, please contact the author of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Darren Kameya

    ©2016 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 ADA Regulations Confirm Congressional Intent to Give Broad Protection to Individuals with Disabilities

    August 2016
    Number 56

    The Department of Justice recently released revisions to the regulations implementing the Americans with Disabilities Act (ADA) Amendments of 2008, which went into effect on January 1, 2009. The 2008 amendments were passed by Congress in response to various Supreme Court cases which denied protection to individuals under the ADA based, in part, on a finding that the individuals failed to qualify as “disabled” under the law. The purpose of the newly released revisions to the ADA regulations is to confirm Congress’ original intent for the ADA to be construed in favor of broad coverage for persons with disabilities.

    Under the ADA, an individual with a physical or mental impairment is considered “disabled” if the impairment substantially limits the individual’s ability to perform a major life activity, as compared to members of the general population. Specifically, the revisions to the ADA do the following:

    • Clarify that the terms “disability” and “substantially limits” should be interpreted broadly and that the question of whether someone has an ADA-qualifying disability should not demand extensive analysis. Rather, the focus of an ADA inquiry should be on whether an employer has complied with its obligations under the law.
    • Expand the definition of “major life activities” to include “writing,” “operation of major bodily functions,” and a number of other activities included on a non-exhaustive list now provided in the regulation.
    • Clarify that an impairment which is episodic or in remission is a disability if it would substantially limit a major life activity when active.
    • Clarify that an impairment need only substantially limit one major life activity to be considered a disability.
    • Confirm that individuals who qualify for protection under the ADA because their employers regard them as having an impairment are not entitled to reasonable accommodation. However, these individuals may establish an employer’s violation of the ADA if they are subjected to a prohibited action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.
    • Add Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment.

    The revisions to the ADA regulations are intended to clarify existing law and create no new legal obligations for employers. Furthermore, California’s Fair Employment and Housing Act (FEHA) is generally more favorable than the ADA in protecting persons with disabilities, so much of the new federal regulatory language is already required under state law. In summary, employers should broadly construe the language and intent of the FEHA and the ADA when considering employees’ requests for accommodation.

    Finally, please note that these revisions are consistent with recent guidance regarding section 504 the Rehabilitation Act of 1973, under which public school staff must also broadly construe whether a student has a physical or mental impairment which substantially limits a major life activity.

    For questions regarding the revised regulations or an employer’s general obligations to individuals with disabilities under state and federal law, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

    Written by:

    Jennifer Ulbrich

    Associate

    Ryan Tung

    Associate

     

    ©2016 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.

    Ninth Circuit Ruling Regarding Overtime Payments and the Fair Labor Standards Act May Have a Significant Impact on Employers

    July 2016
    Number 47

    Striking a major blow to the practice of providing employees with cash payments in lieu of benefits (or “opt-out payments”), the Ninth Circuit Court of Appeals issued a ruling on June 2, 2016, holding that employers, including public agency employers, must include these cash payments in the regular rate of pay when calculating the overtime rate for employees under the Fair Labor Standards Act (FLSA). (Flores v. City of San Gabriel (9th Cir., June 2, 2016, No. 14-56421) __ F.3d __ [2016 U.S. App. LEXIS 10008].)

    This ruling, coupled with the Internal Revenue Service’s (IRS) recent treatment of these same arrangements in the context of the Affordable Care Act (ACA), shows a trend discouraging the use of cash-in-lieu payments related to health care coverage.

    In Flores, the city provided a flexible benefits plan to its employees under which each employee was furnished a designated monetary amount for the purchase of medical, vision and dental benefits. All employees were required to use a portion of the amount to purchase vision and dental benefits, but could opt out of purchasing medical benefits with proof of alternate coverage. If an employee opted out of medical benefits, the city paid the employee the unused portion of the benefits allotment as a cash payment added to the employee’s regular paycheck. For payroll purposes, the city has historically designated these cash-in-lieu payments as “benefits” and excluded them from its calculation of employees’ regular rate of pay. Non-exempt police officers sued the City of San Gabriel for underpayment of overtime compensation, challenging the city’s treatment of cash-in-lieu payments.

    Under the FLSA, employers must pay their employees premium overtime compensation of one and one half times the regular rate of pay. The “regular rate” of pay includes “all remuneration for employment paid to, or on behalf of, the employee,” subject to a number of exclusions set forth in § 207(e) of the FLSA.

    In Flores, the city argued that it properly excluded cash-in-lieu payments from employees’ regular rate of pay because the payments were not compensation for hours worked or otherwise tied to the amount of service provided by employees, citing statutory language that excludes payments made for such purposes as vacation, holidays, travel expenses and “other similar payments to an employee which are not made as compensation for his hours of employment.” The court rejected this argument, explaining that the question of whether a particular payment falls within the “other similar payments” clause turns on whether the payment is a form of compensation for performing work – not on whether the payment is tied to an hourly wage.

    The city also attempted to argue that the cash-in-lieu payments were properly excluded because the FLSA excludes contributions made by an employer to a trustee or third person pursuant to a “bona fide” benefits plan from the regular rate of pay. The court also rejected this argument, explaining that the city’s payments are not made to a trustee or third party and therefore do not meet the requirements of the benefits exclusion.

    Taking it one step further, the court also found that the city’s flexible benefits plan as a whole failed to meet the requirements of a “bona fide plan” because the city’s cash payments to its employees constituted more than 40% of the total plan contributions and thus were not incidental. As a result, even the city’s payments to trustees or third parties under its plan were not properly excluded under the benefits exclusion.

    An employer who violates the FLSA’s overtime provisions is liable for the amount of unpaid overtime compensation and an equal amount of liquidated damages which results in an employer having to pay double the amount of the underpayment. Employers that can show that they acted in good faith and had reasonable grounds to believe their actions did not violate the FLSA may avoid the otherwise mandatory award of liquidated damages.

    In an attempt to show the city’s good faith, an employee in the payroll department testified that the payroll and human resources departments work together to determine whether to include a particular type of payment in the regular rate of pay when the payment is first provided, conducting further review of the designation if new authority surfaces. The city also included other types of payments in the regular rate of pay and provided overtime payments that were more generous than what the FLSA requires.

    The court described the city’s evidence of its good faith as “paltry,” explaining that employers need to be able to show they have taken concrete steps to ensure compliance with the FLSA. Further, the city’s generosity in some areas failed to mitigate its inability to show how it properly determined to exclude the payment at issue. For similar reasons, the court also found that the city’s violation was “willful,” and therefore extended the statute of limitations from two years to three years, an action permitted under the FLSA for willful violations.

    This is the first time that the Ninth Circuit has considered the treatment of cash-in-lieu payments in the context of FLSA overtime. The Court of Appeals preceded its analysis with the requirement that the FLSA be construed liberally in favor of employees, explaining that it would not find an exemption applicable except in contexts “plainly and unmistakably” within the given exemption’s “terms and spirit.” While this case involved treatment of a very specific type of payment to employees, it serves as an important message to all employers that determinations related to the regular rate of pay for employees must be made carefully and with an understanding that, if ever challenged, the employer must show the concrete steps it took to confirm that its designation was in compliance with the FLSA.

    In light of this ruling, employers would be wise to immediately review their regular rate of pay for non-exempt employees and work with counsel to consider whether there are any issues with current designations and exclusions of compensation. Immediate action to add cash-in-lieu payments to the regular rate of pay for purposes of overtime may be necessary to mitigate damages in case of future challenge.

    We will update you if this case is appealed. For further information regarding calculation of the regular rate of pay for non-exempt employees or regarding the treatment of specific type of payments for purposes of the FLSA, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

     

    Written by:

    Dulcinea Grantham

    Partner

    Niki Nabavi Nouri

    Associate

    ©2016 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.

    California Supreme Court Upholds Superintendent’s Criminal Conviction for Misappropriating Funds

    July 2016
    Number 46

    The Supreme Court of California in People v. Hubbard (2016) 63 Cal. 4th 378 recently upheld the criminal conviction of the former superintendent of the Beverly Hills Unified School District for improperly paying a district employee without board approval.

    Jeffrey Hubbard served as superintendent of the Beverly Hills Unified School District from 2003 to 2006. During his tenure, he directed the district’s payroll department to increase the compensation of Karen Christiansen, the district’s director of planning and facilities, including increasing her auto allowance by $350 per month and issuing her a one-time stipend of $20,000. Hubbard testified this was compensation for additional work Christiansen performed for the district after the termination of its construction management team. Hubbard did not submit the auto allowance increase or the stipend to the district’s governing board for approval.

    Hubbard was convicted of violating Penal Code section 424, which states that “each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys” who appropriates money without authorization for the use of another may be punished with imprisonment. Hubbard appealed his conviction, arguing that he was not an “officer” under Penal Code section 424 because only the board had the authority to approve the payments to Christiansen. The Court of Appeal agreed and overturned the conviction.

    The Supreme Court of California reinstated Hubbard’s criminal conviction, holding that it did not matter whether Hubbard had exclusive control over the funds. As Hubbard had “some degree of material control over the funds’ disposition,” this was sufficient to establish criminal liability. The court found that as superintendent, Hubbard had a duty to safeguard school district funds and, as a public officer, he should face criminal liability for misappropriating those funds.

    This case is an important reminder of the role of a superintendent and other public officers responsible for safekeeping public funds. It also cautions public administrators to obtain the approval of the governing board, city council or other governing body for salary increases. Superintendents and other public officers of cities, counties, school and other districts entrusted to safeguard public funds could be held criminally or civilly liable if they knowingly misappropriate public funds that they are responsible for protecting.

    If you have any questions regarding the Hubbard decision or public officers’ responsibilities with respect to public funds, please contact the author of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written by:

    Dulcinea Grantham

    Partner

     

    ©2016 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.

    Increase in Minimum Salary for Employees to be Exempt from Overtime Pay

    June 2016
    Number 39

    On May 23, 2016, the United States Department of Labor published updated overtime regulations that increase the minimum salary amount necessary for employees to be exempt from overtime pay requirements. The updated regulations (Final Rule) will take effect on December 1, 2016.

    The federal Fair Labor Standards Act of 1983 (FLSA) requires an employer to pay an employee at an overtime rate if the employee works more than 40 hours in one week. Employees can be exempt from the FLSA overtime rules if:

    1. They are paid a fixed salary (salary basis test);
    2. The salary is at or above the government-set salary level (salary level test); and
    3. The employment is in an executive, administrative or professional capacity, as defined by the FLSA.

    The Final Rule makes the following changes:

    • Increases the salary and compensation levels for the salary level test from $455 per week, or $23,660 annually, to $913 per week, or $47,476 annually. The salary level test now allows use of non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level.
    • Increases the annual salary requirement for highly compensated employees (HCE) subject to a minimal duties test. The new salary requirement is $134,004 annually for a full-time employee. The expiring rule set the salary level at $100,000 annually for a full-time employee.
    • Creates a method for automatically updating the salary and compensation levels on a three-year cycle, beginning on January 1, 2020.

    While the FLSA overtime pay requirement affects classified school employees who work over 40 hours per week, school employers should note that it does not apply to certificated employees under a specific “teaching professional” exemption in the FLSA regulations. (29 C.F.R. § 541.303.) School employers should also be mindful that California law entitles classified school employees to an overtime pay rate after working eight hours in one day (unless a statutorily-allowed alternative schedule is approved).

    Before the final rule takes effect, public agencies should evaluate their employment rosters prior to determine whether currently exempt employees will continue to qualify for an exempt status under the higher salary levels contained in the new regulations. If currently exempt employees do not meet the new minimum salary level, the employer must either: 1) begin paying the employee for the overtime he or she works, or 2) increase the employee’s salary so that he or she will meet the new minimum salary level and continue to be exempt from overtime pay. Thus, the new regulations will likely result in increased costs for the employer.

    If you have questions about the new overtime regulations or any other employee compensation issues, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written by:

    Desiree Serrano
    Associate

     

    ©2016 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.

    Proposed Amendments to FEHA Regulations Regarding Transgender Identity and Expression

    June 2016
    Number 38

    California’s Fair Employment and Housing Council (Council) is set to consider amendments to the Fair Employment and Housing Act (FEHA or Act) that the Council says will more explicitly spell out existing protections for transgender workers and bring those protections in line with federal guidance and state law.

    The Council will discuss the proposed amendments at its June 27 meeting and is now accepting public comment. A date to consider approval of the proposed amendments – or some version of them – has not yet been announced.

    The Act, which is spelled out in Government Code sections 12900 et. seq. and implemented by the California Code of Regulations title 2, division 4.1, subchapter 2, article 5, already bars employers from discriminating against employees and applicants on the basis of gender identity or expression. In its initial statement of reasons for the proposed changes, the Council said its goals are to clarify an “often misunderstood and increasingly prominent facet of the law” and to better align FEHA with state law and federal guidance.

    The list of proposed changes includes:

    • Gender-neutral language. Overall, the Council proposes to use gender-neutral language and eliminate dichotomous references to gender in the Act, substituting “individual” for “male” or “female” and “opposite sex” with “different sex.” In addition, the term “transitioning” is proposed to be included within the definitions found in section 11030 as “the process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth,” which “may or may not include changes in name and pronoun, bathroom, facility usage, participation in activities like sports teams, hormone therapy, sex reassignment surgery, or other medical procedures.”
    • Working Conditions. The Council proposes to expand employees’ equal access to workplace facilities to include locker rooms, dressing rooms, dormitories and restrooms and to establish employers’ obligations to make such facilities available. The proposed amendments provide that employees must be permitted to use facilities that correspond to their gender identity or expression, regardless of the employee’s assigned sex at birth. If individual facilities are not available, employers are to provide alternatives to ensure privacy, such as locking toilet stalls and shower curtains. The proposed amendments also prohibit an employer from requiring an employee to use a particular facility and from requiring transitioning employees to undergo, or provide proof of, any particular medical treatment in order to use facilities designated for a particular gender. Employers with single-occupancy facilities under their control will have to use gender-neutral signage, such as “Restroom,” “Unisex,” “Gender Neutral,” or “All Gender Restroom.”
    • Physical Appearance, Grooming and Dress Standards. Clarifying employers’ existing obligations under FEHA, the proposed amendment would only permit employers to impose physical appearance, grooming or dress standards if they serve a legitimate business purpose and do not discriminate based on an individual’s sex, gender, gender identity or gender expression. The proposed amendment also adds that employers may not require individuals to “dress or groom themselves in a manner inconsistent with their gender identity or gender expression.”
    • Recording of Gender and Name. The Council proposes provisions that will make it unlawful to require an applicant or employee to disclose whether the individual is transgender, on a job application or otherwise. In situations where a job application requires an individual to identify as male or female, an employer cannot consider fraudulent or a misrepresentation, an applicant’s designation of a gender inconsistent with the applicant’s assigned sex at birth or presumed gender.

      Under the proposed amendments, employers will also be required to honor employees’ requests to be identified with a preferred gender, name and/or pronoun, except under limited circumstances. Acknowledging that the severe or pervasive misuse of an employee’s name could be sufficient to create a hostile or abusive work environment, the Council deemed this amendment necessary to prevent the occurrence of sexual harassment.

    • Additional Rights. Finally, the proposed amendments prohibit the denial of employment based wholly or in part on an individual’s gender identity or gender expression, as well as discrimination against an individual who is transitioning or has transitioned. If adopted, it will be unlawful for employers to inquire or request documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment, except under limited circumstances.

    If adopted as currently written, the amendments will require employers to review and potentially revise their existing policies and standards, and to make changes to facility access, signage and privacy considerations. FEHA defines an employer as “any person regularly employing five or more persons; any person acting as an agent of an employer, directly or indirectly; the state or any political subdivision thereof.”

    Prior to adopting its proposed amendments, the Council will consider comments submitted in writing or presented at the June 27 public hearing. Written comments may be submitted via e-mail to FEHCouncil@dfeh.ca.gov until 5 p.m. June 27.

    If you would like additional information about the proposed FEHA changes or your responsibilities with respect to transgender workers, please contact the authors of this Client News Brief or an attorney in one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written by:
    Darren Kameya
    Partner

    Joanne Kim
    Associate

    ©2016 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.

    Employer’s Mistaken Belief Is No Defense to an Employee’s First Amendment Challenge to Discipline for His Off-Duty Political Activity

    May 2016
    Number 32

    Last month, the U.S. Supreme Court held in Heffernan v. City of Paterson (April 26, 2016, No. 14-1280) 578 U.S. __ [2016 U.S. LEXIS 2924] that an employee may challenge an employer’s adverse action under the First Amendment even if the employer’s action was based on a mistaken perception that an employee engaged in political activity. The decision impacts government employers, including school districts, county offices of education, and local governments by giving greater protection to all government employees.

    Heffernan establishes that actual engagement in a protected activity is not an element that must be proven to prevail in First Amendment retaliation claims. Instead, retaliation claims must be evaluated based on the employer’s motive and whether that motive was constitutional, regardless of whether the motive was based on actual facts or mistaken perception.

    During the 2006 mayoral election in Paterson, New Jersey, Jeffery Heffernan worked in the office of Police Chief James Wittig. The candidates included the incumbent mayor who appointed Wittig and former Chief Lawrence Spagnola, Heffernan’s good friend. Before the election, Heffernan’s bedridden mother asked him for a “Spagnola” yard sign. Heffernan visited a Spagnola distribution spot where city police officers saw Heffernan talking to campaign workers and holding a Spagnola yard sign, and word of this sighting quickly spread throughout the department. The next day, Heffernan’s supervisors demoted him from detective to patrol officer as punishment for his “overt involvement” in a political campaign. Wittig later claimed this was against office policy even though Heffernan did not work on Spagnola’s campaign or otherwise show support for the candidate.

    In August 2006, Heffernan sued the city for retaliating against him for exercising his First Amendment rights. Heffernan claimed he was demoted because, in his supervisor’s mistaken view, he engaged in conduct that constituted protected speech under the First Amendment.

    The city claimed that the First Amendment protects an employee from retaliation for exercising a “right,” and that the First Amendment was not implicated here because – by his own admission – Heffernan was not involved in the Spagnola campaign and only picked up a lawn sign for his mother. Heffernan asserted he was still protected by the First Amendment, which required only that the city believed he was exercising his First Amendment right, not that he actually did so.

    The District Court and Court of Appeals both held that, for a retaliation claim, Heffernan needed to show that he actually exercised his free speech and association rights prior to the city’s adverse action. According to these courts, Heffernan was not deprived of any First Amendment right because he never engaged in a constitutionally protected political act.

    The Supreme Court heard Heffernan’s appeal and rejected the lower courts’ rationale, reasoning that “[w]hen an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action . . . even if, as here, the employer makes a factual mistake about the employee’s behavior.” Simply put by the Supreme Court, “the government’s reason for demoting Heffernan is what counts.”

    Public employers are reminded by this case to be wary when considering discipline against an employee for conduct that is related to involvement in political activities, and to consult with legal counsel to ensure that any adverse action taken does not violate a public employee’s First Amendment rights.

    For more information on the impact of this decision or employee retaliation claims in general, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written by:

     

    ©2016 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.

    Employers Subject to New FEHA Regulations on Anti-Harassment Policies, Training, and Notice

    May 2016
    Number 30

    Effective April 1, 2016, California employers are subject to new regulations under the California Fair Employment and Housing Act (FEHA), which prohibits workplace discrimination and harassment. The new regulations focus on changes in the following three areas: employer policies, training and dissemination of an employer’s harassment, discrimination and retaliation prevention policy.

    Employer Anti-Discrimination/Anti-Harassment/Anti-Retaliation Policies

    All employers subject to the FEHA must have written policies in place that include all of the following content:

    • The types of prohibited discrimination and harassment under the law.
    • A statement that employees are protected under the FEHA from unlawful conduct from their co-workers, managers, supervisors and third parties.
    • The complaint process, including language that explains that a complaint of discrimination or harassment will: (1) be confidential to the extent possible; (2) receive a timely response; (3) be investigated in a timely and impartial manner by qualified personnel; (4) be documented and tracked through the complaint process; and (5) be timely closed with options for remedial action and resolution, as appropriate.
    • Notification that employees may file a complaint with someone other than their immediate supervisor, such as a designated representative for the employer.
    • Notification that employees may not be retaliated against for making a discrimination or harassment complaint or for participating in any complaint investigation.

    Training Requirements

    Employers with 50 or more employees must provide their supervisors with training on prohibited harassment, discrimination, and abusive conduct. During this training, supervisors must be notified of their duty to report sexual harassment, discrimination, and retaliation. The training must also include instruction on appropriate measures to remediate harassing conduct.

    Supervisors must be provided with the definition of “abusive conduct” and informed that unless an act is particularly egregious, a single act will generally not constitute abusive conduct. The training should explain the negative impacts of abusive conduct in the workplace and must include examples of abusive conduct.

    Employers must keep written records of harassment training for two years. Records that must be retained during this period include sign-in sheets, copies of webinars, written questions and responses to questions associated with the training, and certificates of attendance or completion. Employers must still keep records of the names of supervisors trained, the date of the training, the type of training, and the name of the training provider.

    Policy Distribution/Dissemination

    Employers must ensure that employees are provided with their anti-discrimination/anti-harassment policies. The written policies must be translated into all languages spoken by at least 10% of the workforce. Only one of the following methods must be used to distribute the policies:

    • Provide employees with a printed copy of the policy with an acknowledgement form for the employee to sign and return;
    • E-mail the policy with an acknowledgement return form;
    • Post the policy on the internal company intranet with a tracking system to ensure that employees have read and acknowledged receipt of the policy; or
    • Discuss the policy upon an employee’s hiring and/or during an orientation session.

    In light of these new regulations, public agency employers should review their policies and process for disseminating the same to ensure compliance with the new law.

    For more information on the new FEHA requirements and the implications on your current anti-discrimination and anti-harassment policies, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written by:

    Dulcinea Grantham
    Partner

    Gabriela Flowers
    Associate

    ©2016 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.

    Digging Deeper Into Recent Affordable Care Act Topics: Guidance Employers Need To Know

    May 2016
    Number 28

    If you thought you were finally getting a handle on the Affordable Care Act (ACA), the influx of IRS guidance that came at the end of the 2015 calendar year probably reopened some old wounds. On December 29, 2015, we alerted you to IRS Notice 2015-87 (Notice), a compilation of Questions and Answers intended to provide guidance on a number of complex and highly technical topics related to group health plan market reform and employer shared responsibility requirements. The purpose of this Client News Brief is to dig a little deeper into the topics addressed by the IRS Notice that may be of particular interest to state, school, and other local public agency employers. In addition, we encourage you to watch our video on some common questions and issues that arise from the implementation of the Affordable Care Act.

    1. Affordability Calculations – Inflation Adjustments

    Under the ACA, coverage offered by applicable large employers to their full-time employees must be affordable in order for the employer to avoid liability. Coverage is affordable if the employee’s required contribution for self-only coverage does not exceed 9.5% percent of the taxpayer’s household income. Since employers are unlikely to know their employees’ household incomes, the ACA provides various safe harbors to assist employers in determining whether their offers of coverage are under the affordability threshold of 9.5%. The Notice states that the IRS intends to amend the regulations to clarify that this 9.5% threshold in the affordability safe harbors is subject to the same annual adjustments for inflation as contained elsewhere in the ACA. Specifically, this amount will be adjusted as follows: 9.56% for plan years beginning in 2015; and 9.66% for plan years beginning in 2016. The same adjustments apply to the 9.5% referenced in the ACA with respect to the Multiemployer Plans, as well as to the reporting of “Qualifying Offers.”

    2. Penalty Increases – Inflation Adjustments

    The Notice also clarifies the adjusted amounts relative to the $2,000 and $3,000 penalty amounts, or “assessable payments,” applicable to employers under the employer shared responsibility provisions of the ACA. Generally, section 4980H of the Internal Revenue Code provides that an applicable large employer may be subject to an assessable payment if certain conditions are met related to the failure to offer appropriate coverage to full-time employees. For 2015, the adjusted $2,000 assessable payment amount is $2,080, and the adjusted $3,000 assessable payment amount is $3,120. In 2016, these assessable payment amounts will go up to $2,160, and $3,240, respectively. The Treasury and IRS anticipate that they will post future adjustments on the IRS.gov website.

    3. Affordability & Transition Relief

    The Notice addresses how various types of common arrangements are treated, or will likely be treated, for purposes of determining an employee’s required contribution towards the cost of self-only employer-sponsored coverage. This category of guidance is particularly significant to employers because much of the IRS treatment described in the Notice will likely change how employers currently view employee and employer contributions to health care and impact whether coverage is affordable for purposes of the ACA. However, there is some transition relief for employers – described below in the relevant sections – if an arrangement was in place prior to or on December 16, 2015. For an arrangement to be in place prior to or on December 16, 2015, it must meet one the following conditions:

    1. The employer offered the arrangement (or a substantially similar arrangement) for a plan year including December 16, 2015; or
    2.  A board, committee, or similar body or an authorized officer of the employer specifically adopted the arrangement before December 16, 2015; or
    3.  The employer had provided written communications to employees on or before December 16, 2015 indicating that the opt-out arrangement would be offered to employees at some time in the future.

    Contributions to HRA
    Employer contributions to a plan-integrated health reimbursement arrangement (HRA) are counted toward the employee’s required contribution (meaning they reduce the dollar amount of that required contribution) only if: (1) an employee may use the contribution to pay premiums; and (2) the amount of the employer’s annual contribution is required under the terms of the arrangement or otherwise determinable within a reasonable time before the employee must decide whether to enroll in the eligible employer-sponsored plan. This is true even if the amount may be used for cost-sharing and/or for other health benefits not covered by that plan in addition to premiums.

    Flex Contributions
    Under a § 125 cafeteria plan, the employee’s enrollment in a group health plan generally is funded by salary reduction but may also be funded by employer flex contributions. If the employer flex contribution qualifies as a “health flex contribution,” it will count towards the employee required contribution, reducing the amount of the required contribution. To qualify as a health flex contribution, all of the following conditions must be met: (1) the employee may not opt to receive the amount as a taxable benefit (i.e., cash); (2) the employee may use the amount for minimum essential coverage; and (3) the employee may use the amount exclusively to pay for medical care. For instance, if an employee may use the flex contribution towards life insurance or dependent care through the cafeteria plan, the contribution is not a health flex contribution. Similarly, if the employee may opt to receive the contribution as cash instead of putting it towards health care, the contribution is not a health flex contribution. If the employer flex contribution is not a health flex contribution, it does not reduce an employee’s required contribution, which may negatively impact the affordability of coverage.

    As a form of transition relief, all employer flex contributions that are available to pay for health coverage, regardless of whether they qualify as health flex contributions, will count toward reducing the employee’s required contribution for plan years beginning before January 1, 2017 unless the flex contribution arrangement was adopted after December 16, 2015, or substantially increases the amount of the flex contribution after December 16, 2015.

    Employers that wish to offset the cost of the employee’s required contribution should review their plan structure to ensure that the flex contribution is only available for medical-related expenses.

    Opt-out Payments
    The Notice focuses on the IRS position regarding the treatment of unconditional opt-out arrangements. An unconditional opt-out arrangement is an arrangement that provides for a payment to an employee that is conditioned solely on an employee declining coverage and not on an employee satisfying any other meaningful requirement, such as proof of coverage elsewhere. For instance, consider an employer that offers employees group health coverage through a § 125 cafeteria plan, requiring employees who elect self-only coverage to contribute $200 per month toward the cost of that coverage but offering employees an additional $100 per month in taxable wages if they decline coverage, no questions asked. This is an unconditional opt-out arrangement.

    The IRS considers such an arrangement to be analogous to a “cash or coverage” arrangement – the employee must choose between receiving the $100 payment and enrolling in health care coverage. The IRS intends to issue proposed regulations that require employers to include the amount of the opt-out payment in the employee’s required contribution for purposes of the employer shared responsibility provisions. Referring back to our example, under this rule, the employer would report $300 as the monthly required employee contribution towards the cost of coverage, rather than $200 because the employee is foregoing $100 in order to enroll in health care coverage. The likely intent behind this rule is to deter employers from incentivizing employees to decline health care coverage, particularly in instances where coverage is not available to them elsewhere. The proposed regulations will also likely address and request comments on the treatment of opt-out payments that are conditioned on the satisfaction of additional conditions, such as proof of coverage. However, the Notice does not elaborate on what position the IRS is likely to take on these arrangements.

    The regulations will apply only for periods after the issuance of final regulations, but the IRS and Treasury anticipate that any unconditional opt-out arrangements adopted after December 16, 2015 will be subject to the rule. In other words, employers that are subject to the ACA should consider these anticipated regulations prior to approving a new opt-out or cash-in-lieu arrangement after December 16, 2015, because these opt-out payments may increase the employee required contribution to the cost of health care coverage.

    4. “Hour of Service”

    For purposes of determining full-time status of employees, the ACA defines the term “hour of service” as each hour for which an employee is paid, or entitled to payment, for the performance of duties for the employer; and each hour for which an employee is paid, or entitled to payment by the employer for a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence (as defined in 29 CFR 2530.200b-2(a)). The Notice provides clarification on certain limitations to this definition, particularly with regard to its reference to 29 CFR 2530.200b-2(a), which is an existing federal Department of Labor regulation. The Notice clarifies that an “hour of service” for purposes of the ACA does not include any of the following:

    1. Hours after the individual terminates employment with the employer.
    2.  An hour for which an employee is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are performed if such payment is made or due under a plan maintained solely for the purpose of complying with applicable workers’ compensation, or unemployment or disability laws.
    3.  An hour for a payment which solely reimburses an employee for medical or medically related expenses incurred by the employee.
    4.  Periods during which the employee is not performing services but is receiving payments in the form of workers’ compensation wage replacement benefits under a program provided by the state or local government.

    The Notice clarifies that the limitation contained in 29 CFR 2530.200b-2(a) regarding the maximum amount of hours that may be credited to an employee for a single continuous period during which the employee performs no duties does not apply in the ACA context (please note that there does exist a 501-hour limit on hours of service required to be credited to an employee of an educational organization during employment break periods, which continues to apply).

    The Notice further clarifies that periods during which an individual is not performing services but is receiving payments due to short-term disability or long-term disability do result in hours of service for any part of the period during which the recipient retains status as an employee for the employer, but only if payments are made from an arrangement to which the employer contributed to directly or indirectly. For example, disability payments made by or from a trust fund or insurer to which the employer contributes to or pays premiums for would be deemed to be made by the employer and therefore would count towards the employee’s hours of service as long as the employee remains employed. A disability arrangement for which the employee contributed to on an after-tax basis would be treated as an arrangement to which the employer did not contribute, meaning it would not be considered hours of service.

    5. Rehire/Break Rules for Staffing Agencies

    Under the ACA regulations, specific rules apply to educational organizations regarding the identification of full-time employees, including how to treat breaks in service. The Treasury and IRS anticipate amending these regulations to extend the same rules to employees of third-party staffing agencies or other employers that are not technically “educational organizations,” but that employ individuals that provide services for educational organizations. For instance, the rules would apply to an employer with respect to a bus driver who is primarily placed to provide bus driving services for an educational organization, regardless of whether the employer itself is an educational organization.

    6. Aggregation Rules (Government Entities)

    The ACA regulations include certain aggregation rules for purposes of determining whether an employer has 50 or more full-time and full-time equivalent employees, and therefore is an applicable large employer. Specifically, the following groups may in each case be treated as a single employer: (1) corporations that are part of a controlled group of corporations, (2) groups of other types of entities that are under common control, and (3) members of an affiliated service group. The aggregation rules do not expressly address the application of these standards to government entities, which are defined as the government of the United States, any State or political subdivision thereof, and any Indian tribal governments, and likely include local governmental agencies such as school districts. The Notice clarifies that government entities may apply a reasonable, good faith interpretation of the employer aggregation rules for purposes of determining whether a government entity is an applicable large employer, and therefore subject to the employer shared responsibility provisions and reporting requirements of the ACA.

    Please note that this news brief does not detail every element of the topics discussed above. We encourage you to review the Notice for a full review of the topics addressed by the Treasury and IRS.

    If you have any specific questions regarding the impact of this Notice on your organization, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written by:

    Karen Rezendes
    Partner

    Niki Nabavi Nouri
    Associate

    ©2016 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 Required Employer “Intent” Element in Disability Discrimination Claims Under FEHA

    April 2016
    Number 26

    To prove a claim for disability discrimination under the California Fair Employment and Housing Act (FEHA), an employee must establish intent on the part of the employer. Recently, the Court of Appeal for the Fifth District held that the “intent” requirement is satisfied if the employee proves (1) the employer knew the employee had a disability or the employer perceived the employee as disabled, and (2) the employee’s actual or perceived disability was a “substantial motivating reason” for the adverse employment action (e.g., termination, reassignment, demotion, unpaid leave etc.). (Wallace v. County of Stanislaus (Feb. 25, 2016, No. F068068) ___Cal.App.4th___ [2016 Cal. App. LEXIS 148].)

    In Wallace, the plaintiff, Sheriff’s Deputy Dennis Wallace, sued the County and the Sheriff’s Department for disability discrimination, failure to prevent discrimination, failure to accommodate, and failure to engage in the interactive process. While working as a Sheriff’s Deputy, Mr. Wallace suffered work related injuries and was assigned to a bailiff position to accommodate his work restrictions. Later that year, Mr. Wallace was seen by a doctor. The doctor’s report listed various different or additional work restrictions. On receiving the doctor’s report, the County removed Mr. Wallace from his bailiff position because they believed he could not perform the essential functions of that position with or without accommodation. The County told Mr. Wallace there were no positions that could accommodate Mr. Wallace’s work restrictions. They placed Mr. Wallace on unpaid leave.

    Mr. Wallace sued the County. The jury ruled in the County’s favor, finding that Mr. Wallace had not suffered disability discrimination. Mr. Wallace appealed, claiming the jury had not been properly instructed about the “intent” an employee needed to prove to support a disability discrimination claim against the employer.

    On appeal, the Court held that an employee could satisfy the “intent” requirement, without proving the employer acted with “ill will” or “animus.” The Court found the “intent” requirement was satisfied if the employee proved that his actual or perceived disability was a “substantial motivating” reason for an adverse employment action. In Wallace, the Court found that removing Mr. Wallace from his bailiff position following receipt of the new medical restrictions was improper.

    The Court focused on the fact that the County removed Mr. Wallace from his bailiff position without thoroughly evaluating whether he could be reassigned to other positions. The Court expressed that the employer should have consulted with Mr. Wallace’s supervisors to determine if he could indeed perform the functions of the bailiff position, instead of only relying solely on the doctor’s report. This case is a reminder to employers about the importance of engaging in the interactive process and thoroughly evaluating all available accommodation options.

    Should you have questions about the effect of this decision, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written by:

    Dulcinea Grantham
    Partner

    Meera Bhatt
    Associate

    ©2016 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 Public Private Partnership (P3) Project Delivery Method: What Is It and Is It an Option for Your Project?

    April 2016
    Number 23

    Local public agencies have several options when it comes to choosing a delivery method for a construction project. The public-private partnership method, or P3, is one option that is receiving increased attention. P3 involves a long term partnership between a public agency and private entity, where typically the private entity finances, designs, builds, operates, and/or maintains a fee-producing public project. In exchange, the private entity will be repaid over an extended period of time through the fees generated by the public project or as otherwise permitted by statute. This can involve the private entity’s lease or ownership of the project for an extended period of time during the repayment period.

    In order to utilize the P3 method for a public agency’s project, there must be authorizing legislation. The primary P3 law is the California Infrastructure Finance Act (Gov. Code §§ 5956 et seq.), which allows P3 for specific types of fee-producing local government projects through a “competitive negotiation” process. This Act applies to cities, counties, school districts, community college districts, county boards of education, public districts, joint powers authorities, transportation commissions or authorities, and any other public or municipal corporations. The Act covers specified types of projects: irrigation; drainage; energy or power production; water supply, treatment, and distribution; flood control; inland waterways; harbors; municipal improvements; commuter and light rail; highways or bridges; tunnels; airports and runways; purification of water; sewage treatment, disposal, and water recycling; refuse disposal; and structures or buildings, except structures or buildings to be primarily used for sporting or entertainment events.

    Other California statutes allow P3 but apply less generally to local public entities. For instance, Government Code section 70371.5 permits public-private partnerships whereby the private entity shares some of the risk of financing, design, construction, or operation of court facilities. Section 143 of the Streets and Highways Code permits CalTrans and regional transportation agencies to partner with private entities for transportation projects.

    One notable P3 project that has garnered attention recently is the new city hall, library, park, and port headquarters being built in the City of Long Beach. The City benefited from specific legislation that established its right to utilize the P3 method for these projects. (Gov. Code §§ 5975 et seq.) Since these projects were not fee-producing, existing legislation did not permit use of P3.

    A major benefit of the P3 method is the ability to obtain private financing. Additionally, risks and responsibilities of the project design and construction are shifted to the private entity. Of course, the public agency also gives up some control of the project design. Each project is unique and each public agency’s needs are different, so the use of P3 should be evaluated on a case-by-case basis. For additional information about other project delivery methods, read the following: Client News Brief No. 8, February 2015 and Client News Brief No. 71, November 2015.

    If you have any questions regarding P3 or other delivery methods for your project, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    David Wolfe
    Partner

    Arne Sandberg
    Senior Counsel


    Maryn Oyoung
    Associate

     

    ©2016 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.

    California Supreme Court Refuses to Review Court of Appeal Decision Barring Parcel Tax Challenge Filed after Expiration of Period for Reverse Validation Action

    April 2016
    Number 22

    The California Supreme Court recently denied a petition for review of the Court of Appeal’s decision in Golden Gate Development Company, Inc. v. County of Alameda, et al. (2015) 242 Cal.App.4th 760. As a result, the holdings in Golden Gate Development remain undisturbed, including that: (1) a reverse validation action is the proper procedure for challenging a parcel tax; and (2) such action must be brought within 60 days of passage of the parcel tax measure.

    In February 2014, real estate developer Golden Gate Development Company, Inc. (Golden Gate), filed suit seeking a refund of taxes paid under parcel tax measures of the Albany Unified School District (District) passed in 2009. Golden Gate’s complaint, which referenced the recent decision in Borikas v. Alameda Unified School District (2013) 214 Cal.App.4th 135, alleged that the tax rates Albany’s measures were improper because different rates were imposed on residential and nonresidential properties, as well as nonresidential properties of different sizes. In Borikas, the Court of Appeal held that a tiered-rate parcel tax exceeded the school district’s taxing authority and was invalid because the rate structure was not uniform for all taxpayers and parcels.

    The County and District demurred to Golden Gate’s complaint, contending that Golden Gate failed to present its claims in a reverse validation action within 60 days of passage of Albany’s measures pursuant to Code of Civil Procedure section 860 et seq. Generally, the validation statutes provide an expedited process by which certain public agency actions may be determined legally valid and not subject to subsequent legal challenge. The trial court sustained the demurrer without leave to amend. Golden Gate appealed the trial court’s decision.

    The Court of Appeal upheld the trial court’s ruling, finding that the exclusive procedure for challenging the validity of the parcel tax measures was a reverse validation action. In reaching its decision, the court reasoned that Golden Gate’s claim, while styled as a refund of taxes, was based on the alleged illegality of the tax scheme of the parcel tax measures, which can only be challenged under the validation statutes. Since Golden Gate did not timely bring a reverse validation action against the measures, it had missed its opportunity to challenge their legality.

    On February 17, the California Supreme Court refused to disturb the ruling, denying Golden Gate’s petition for review; therefore, this decision is now settled law.

    Lozano Smith prepared the amicus curiae brief of the California School Boards Association’s Educational Legal Alliance in support of the District before the Court of Appeal.

    If you have questions regarding this decision, or parcel taxes generally, or would like assistance preparing a parcel tax measure, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

     

    ©2016 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.

    Governor Brown Signs Landmark Minimum Wage Legislation

    April 2016
    Number 21

    On April 4, 2016, Governor Jerry Brown signed into law Senate Bill (SB) 3, which amends California Labor Code section 1182.12 to increase California’s minimum wage to $15 per hour by the year 2022. The legislation was approved by the State Assembly and Senate on party line votes. The bill ultimately gained the Governor’s support after a compromise was reached to gradually phase in increases to the minimum wage over a five year period. The new law explicitly includes public employers, such as school districts, county offices of education, cities, and other municipal bodies.

    Under SB 3, the minimum wage will first increase by $.50, to $10.50 per hour, on January 1, 2017. A second $.50 increase will occur on January 1, 2018, and subsequent increases of one dollar will occur on January 1 each year thereafter until the $15 target is reached in 2022. For employers with 25 or fewer employees, the first wage increase will occur on January 1, 2018, and the $15 target will be reached in 2023. However, until the $15 minimum wage is reached, the Governor may suspend the scheduled annual wage increases if certain findings showing poor economic conditions are made. Should that occur, the timetable for reaching the $15 minimum wage will be delayed by a year each time that the Governor suspends a planned wage increase. After the $15 minimum wage is reached, it will be annually increased for inflation by an amount not to exceed 3.5%.

    Given the scheduled annual increases, possibility of suspending the annual increases, and future adjustments for inflation, employers will need to adopt new levels of vigilance to ensure that they comply with the law. In addition, a variety of new considerations will arise for employers. For public employers operating under collective bargaining agreements, collaboration with bargaining units will be necessary to timely phase in the required wage increases for affected employees. Employers may also need to examine the impact that the planned wage increases will have on personnel budgeting for future years. Addressing these questions, and others that may arise, will require advance planning by an employer’s executives and budget officers, and collaboration with key stakeholders prior to the first planned wage increase on January 1, 2017.

    If you have any questions about California’s new minimum wage law and how it impacts public employers, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    Eric Barba
    Associate

     

    ©2016 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.

    Two Cases Demonstrate the Reach of Government Code Section 1090: Criminal and Civil Penalties Await the Unwary Government Official

    March 2016
    Number 15

    Two recent cases involving high profile public officials highlight the reach of Government Code section 1090. Government Code section 1090 prohibits conflicts of interest, self-dealing and corruption among public entity officials.

    Sweetwater Union School District v. Gilbane Building Company (February 24, 2016) 245 Cal.App.4th 19, sprang from one of the largest political corruption scandals in San Diego County history, in which construction vendors provided gifts to school district board members as incentives for the award of construction management contracts. Among other things, vendor representatives paid for expensive dinners with District officials, provided tickets to entertainment and sporting events, paid travel expenses, and made contributions to political campaigns and charities in an effort to influence the District’s award of construction management contracts. District board members and vendor representatives pled guilty to various crimes associated with this “pay to play” scheme.

    The District sought to void three construction management contracts under Government Code Section 1090, and demanded that the vendors awarded those contracts disgorge all monies paid under the void contracts. In response, the vendors filed an anti-SLAPP motion challenging the District’s Section 1090 claim. “SLAPP” refers to a “strategic lawsuit against public participation” — that is, a lawsuit brought primarily to “chill”, or prevent, the valid exercise of constitutional rights to challenge unlawful conduct. An “anti-SLAPP motion” refers to the procedural mechanism a defendant may use to challenge that “chilling” lawsuit as an alleged infringement of the defendant’s free speech rights. A court faced with an anti-SLAPP motion must engage in a two pronged analysis. First, the court decides whether the defendant made a threshold showing that plaintiff’s claim is one arising from protected activity. However, a defendant cannot meet this showing if its alleged protected activity is illegal as a matter of law. Second, if the defendant clears this initial hurdle, the court then analyzes whether the plaintiff has demonstrated a probability of prevailing. If the plaintiff meets that burden, the anti-SLAPP motion will be denied.

    The trial court held that the vendors’ anti-SLAPP motion could not meet the first element, finding that the conduct underlying the complaint was illegal as a matter of law.

    On appeal, however, the Sweetwater court disagreed with the trial court’s finding on the first element, concluding that the vendors could show that their claim arose from constitutionally protected activity, namely that making political contributions and lobbying government officials is a type of political speech. The appellate court also held that although the District introduced evidence that many of the individuals entered guilty or no contest pleas to certain criminal activity, none of the individuals pled guilty to Section 1090 violations. The Sweetwater court found that “while the evidence may establish that some of the conduct may have been illegal, the evidence does not establish that all of the conduct at issue was illegal as a matter of law.” (Emphasis in the original.)

    The Sweetwater court next turned to the second element of an anti-SLAPP motion, finding that the evidence the District proffered confirmed that the District had a probability of prevailing on the merits of its Section 1090 claims. While there was no allegation that any official stood to gain economically from the contract performance, it was clear they had a financial interest in the relevant contracts as a result of activities that occurred during the contracting process and in the making of the contracts. For example, testimony of those convicted and testimony of other individuals knowledgeable of the facts showed that the gifts and contributions were made for the purpose of swaying District officials’ votes in favor of awarding contracts to the vendors. Thus, one could reasonably infer from the chronology of campaign contributions and excessive gift giving, together with the award of the contracts, that the former District officials were influenced to award contracts to the vendors as a result of the gifts and contributions. Accordingly, because the District showed facts sufficiently demonstrating a probability of prevailing on its Section 1090 claims against the vendors, the District defeated the anti-SLAPP motion and the case continued.

    In another case involving Government Code section 1090, a former school district superintendent in San Diego County recently pled guilty to a felony charge for bonuses he received tied to the approval and authorization of charter schools. Steve Van Zant served as the Superintendent of the Mountain Empire School District (San Diego County) from 2008 through 2013. Beginning in 2010, Mr. Van Zant’s contract awarded him a stipend for each charter school that the District authorized. The stipend was equivalent to five percent of the revenue generated by the charter authorization. Once authorized, a handful of the charter schools subsequently hired Mr. Van Zant’s private consulting firm to provide administrative services.

    In January 2016, the San Diego District Attorney’s office filed a felony charge against Mr. Van Zant alleging that his actions violated Government Code section 1090’s conflict of interest provisions. While unwilling to provide specific details, the District Attorney noted that Mr. Van Zant violated section 1090 on or around May 12, 2010 (the date Mr. Van Zant’s stipend incentive was adopted). On February 26, 2016, Mr. Van Zant pled guilty to the felony charge. As part of his plea agreement, Mr. Van Zant agreed to return the stipends he received for authorizing the charters, 5 years’ probation, 300 hours of community service, and 30 days home confinement.

    These two cases illustrate that seriousness of Government Code Section 1090’s conflict of interest provisions, and demonstrate the very real potential of penalties for a violation. If you have any questions about these cases or Government Code section 1090, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    William Curley III
    Senior Counsel

    Matthew Hicks
    Senior Counsel

    Ryan Tung
    Associate

     

    ©2016 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.

    California Supreme Court Holds Attorney-Client Privilege Not Waived by Public Agency’s Accidental Disclosure of Privileged Communications in Response to a Public Records Act Request

    March 2016
    Number 14

    If a public agency accidentally discloses privileged attorney-client information when it responds to a Public Records Act request, does the agency waive the attorney-client privilege? The answer is no, according to a California Supreme Court ruling issued today, March 17, 2016. The decision significantly impacts how public agencies throughout the state handle Public Records Act requests.

    In Ardon v. City of Los Angeles, the California Supreme Court resolved conflicting rulings by courts of appeal on the proper interpretation of a provision of the Public Records Act, Government Code section 6254.5, which provides in relevant part:

    Notwithstanding any other provisions of law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Section 6254, 6254.7, or other similar provisions of law.

    The California Supreme Court reversed a decision by the Second District Court of Appeal, which had held that the City of Los Angeles waived the attorney-client privilege as to documents the City mistakenly disclosed to a taxpayer, who was also the plaintiff in a pending lawsuit against the City. In response to a Public Records Act request made by the plaintiff, the City handed over 53 pages of documents, three of which were privileged and previously withheld when the plaintiff requested them in litigation. The City requested return of the privileged documents two months after their production when the requesting party’s attorney notified the City that the documents were produced. The Ardon Court of Appeal concluded that because “the City has disclosed the documents to one member of the public,” that it “was prohibited as a matter of law from ‘selectively withholding’ that document from any other member of the public.” Furthermore, according to the Ardon Court of Appeal, the plain language of section 6254.5 dictated a waiver because the law contained nine explicit exceptions to waiver, but did not include documents handed over by mistake or inadvertence.

    Rejecting the decision of the Ardon Court of Appeal, the California Supreme Court followed the First District Court of Appeal in Newark Unified School District v. Superior Court (Newark). Lozano Smith successfully represented Newark Unified School District in this litigation, including before the Court of Appeal (See Client News Brief No. 42, August 2015). In contrast to the Ardon Court of Appeal, the Newark Court of Appeal held that a school district did not waive the attorney-client privilege when its employee accidentally gave privileged information to the requesting party. The California Supreme Court agreed, reasoning in Ardon that the Legislature could not have possibly contemplated that the mistaken release of privileged information would waive the attorney-client privileges, especially given the Public Records Act’s safeguards for private, sensitive information of citizens that are in the hands of the government. Rather, the law focused on preventing intentional and selective disclosures by a public agency. Citing to Newark‘s discussion of the law’s legislative history, the California Supreme Court stated: “When a release is inadvertent, no selection occurs because the agency has not exercised choice in making the release. It was an accident. Accordingly, an inadvertent release does not involve an attempt to assert the exemption as to some, but not all, members of the public, the problem section 6254.5 was intended to address.” Like the Newark Court of Appeal, the California Supreme Court further reasoned that Evidence Code section 912 and the importance of the attorney-client privileges repudiate “the ‘gotcha’ theory of waiver, in which an underling’s slip-up in a document production becomes the equivalent of actual consent.” Indeed, one further point made by the California Supreme Court is the impracticality of such a rule: “the logistical problems public entities can face in reviewing, in some cases, even thousands of pages of records responsive to a public records request . . . is daunting. It would be foolish to believe that human errors in the processing of public records requests will cease . . . .”

    It is important to emphasize that the California Supreme Court in Ardon, like Newark, presumed that a public agency’s mere assertion that a mistaken release of documents could be challenged and a trial court would examine all the relevant circumstances to determine waiver. “This holding applies to truly inadvertent disclosures and must not be abused to permit the type of selective disclosure section 6254.5 prohibits,” the California Supreme Court stated. Moreover, in some circumstances, it may not matter whether or not a public agency can show that it released documents by mistake. Public agencies must take note of the caveat in the Newark decision, that a member of the public could prove the distribution of privileged documents reached a point that would make a court order to return the documents hard to enforce. Newark specified that trial courts would have to make a determination on a case-by-case basis; in Newark, there was no evidence of such a wide and irretrievable distribution and the school district employee quickly put the requesting party on notice of the accidental disclosure of privileged documents and demanded their return. This “Newark notice” appears a prudent step by public agencies that would seek a court order to return privileged documents disclosed by mistake.

    In October 2015, the California Supreme Court granted review of the Newark decision, but effectively stayed its review pending the outcome of Ardon. Today, the California Supreme Court ordered the Newark decision published and noted that order in its Ardon decision, meaning that the case is good law to be relied upon by public agencies statewide.

    The school district’s litigation team in Newark included Lozano Smith Partners Jerome Behrens and Sloan Simmons, Senior Counsel Steve Ngo and Matthew Hicks, and Associate Frances Valdez.

    If your public agency has any questions regarding the Ardon or Newark opinion or the Public Records Act in general, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    Sloan Simmons
    Partner

    Steve Ngo
    Senior Counsel

     

    ©2016 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.

    April 1 Deadline for Filing Form 700’s

    March 2016
    Number 11

    April 1 is the deadline for those holding “designated positions” under their agency’s Conflict of Interest Code (Code filers), as well as so-called “Section 87200 filers,” to file the annual Statement of Economic Interests (Form 700). Section 87200 filers include mayors, city council members, city managers, city attorneys, city treasurers, members of planning commissions, members of the board of supervisors, district attorneys, county counsels, county treasurers, county chief administrative officers, other public officials who manage public investments, and candidates for any of these offices at any election. The Political Reform Act (Gov. Code, §§ 81000-91014) requires those public officials and employees to disclose on Form 700 certain investments, interests in businesses and real property, and sources of income, as well as certain gifts that were received in the previous 12-month period which exceed designated dollar amounts. School districts, cities, counties, and other public agencies are required to adopt a conflict of interest code which, at a minimum, includes the terms of Government Code section 87300, and the related regulations.

    If a Code filer or Section 87200 filer receives a gift or gifts totaling $50 or more from a single source in the previous calendar year, then the gift or gifts must be disclosed on the Form 700. (Gov. Code, § 87210) The filers may not receive gifts totaling more than $460 (for 2015-2016) in any calendar year from a single source if they would be required by their agency’s Code or Section 87200 to report income or gifts from that source on Form 700. (Gov. Code, § 89503; Cal. Code Regs., tit. 2, § 18940.2)

    The Political Reform Act includes a broad definition of a “gift”: anything of value that is received by a public official or employee for free or at a discount and which is not otherwise made available to members of the general public. This could include meals, tickets to concerts or sporting events and some forms of travel. There are some limited exceptions for gifts that are exchanged for holidays, birthdays and similar occasions, gifts received from relatives and informational materials that primarily convey information and are provided to assist the recipient in the performance of his or her official duties. (Cal. Code Regs., tit. 2, §§ 18942, 18942.1) Because the reporting of gifts and other conflict of interest issues have drawn particular scrutiny and media attention recently, including a few high-profile enforcement actions, particular care should be taken to comply with the rules.

    Under the Political Reform Act, required filings such as Form 700 must be open for public inspection and reproduction during a public agency’s regular business hours. Although these disclosure requirements are similar to the Public Records Act, there are separate rules that apply. (Gov. Code, § 81008)

    If you have any questions regarding the Political Reform Act’s rules on gifts, when reporting is required, or updating your agency’s conflict of interest code, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    Ruth Mendyk
    Partner

    David Wolfe
    Partner

    ©2016 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 Law Limits Government Searches of Cell Phones and Other Devices

    December 2015
    Number 82

    AUTHOR’S NOTE: Due to the significant legal changes caused by Senate Bill (SB) 178, we recommend that all government agencies, including school districts, contact legal counsel for guidance before searching any electronic devices in the possession of staff or students. Government agencies should further update any relevant policies and procedures, and provide training to all staff whose job functions may include searching the electronic devices of others. SB 178 becomes effective on January 1, 2016.

    According to its author, SB 178 was introduced to update existing laws to protect privacy and free speech in the digital age by “instituting a clear, uniform warrant rule for California law enforcement access to electronic information, including data from personal electronic devices, emails, digital documents, text messages, metadata, and location information.” SB 178 responds to an increase in warrantless government demands to cell phone providers and social media websites for the personal data of users. It also codifies two recent court decisions requiring law enforcement to obtain a warrant before obtaining GPS information for vehicle tracking, and before searching data contained on a cell phone seized during an arrest.

    Under SB 178, a government entity is prohibited from doing the following:

    1. Compelling production of information directly from a service provider (e.g., AT&T, Verizon);
    2. Compelling production from anyone other than the authorized possessor of the device; and
    3. Accessing information by means of physical interaction or electronic communication with the device (e.g., physically taking the device from the person
      and searching it or searching the device by electronic means), except when one of the following applies:
    • Pursuant to a warrant;
    • Pursuant to a wiretap order;
    • With the specific consent of the authorized possessor of the device;
    • With the specific consent of the owner of the device, only when the device has been reported as lost or stolen;
    • With a good faith belief that it is required in an emergency to prevent death or serious physical injury;
    • With a good faith belief that the device is lost, stolen, or abandoned, and only to identify, verify, or contact the device’s owner or authorized
      possessor; and
    • If the device is seized from a correctional inmate or is unclaimed in a correctional facility, except as otherwise prohibited by law.

    The new law defines “specific consent” to mean consent provided directly to the government entity seeking information, including when the communication was directed at an audience that included the government entity.

    If data is obtained in violation of SB 178, an individual may move to suppress the data in any trial, hearing, or proceeding in which it is introduced as evidence. Furthermore, the Attorney General may commence a civil action to compel a government entity to comply with the new law. Currently, a violation of SB 178 does not carry any criminal penalties.

    The full implications of this new law are uncertain for government entity employers as well as school and community college districts. Prior to searching any electronic devices possessed by employees or students, a government entity should contact legal counsel to evaluate how the new law impacts such actions. Government employers may wish to consider providing information or training to staff members who perform searches in the scope of their duties. Additionally, government employers may need to revise policies and procedures to incorporate specific consent as a term and condition of use of the electronic device. For more information, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    William P. Curley III
    Senior Counsel
    Los Angeles Office
    wcurley@lozanosmith.com

    Inna Volkova
    Associate
    Fresno Office
    ivolkova@lozanosmith.com

    ©2015 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.

    California Supreme Court Extends the Scope of Design Immunity

    December 2015
    Number 81

    In a unanimous decision, the California Supreme Court recently issued a ruling that extends the scope of design immunity for public agencies. Hampton v. County of San Diego (Dec. 10, 2015, S213132) 2015 Cal.Lexis 9854 (Hampton) clarifies that a public agency need not necessarily show that an employee approving a public works project followed, or was even aware of, applicable design standards to claim immunity. However, such an inquiry is still relevant in deciding whether or not the plan or design was reasonable.

    Government Code section 830.6 gives immunity to public agencies where defective designs in certain public projects result in injury to third parties. The most common example of such projects are traffic improvements, where an injured party asserts that the road or signage condition resulted in an accident and injury. To be eligible for immunity in such instances, the public agency must show the following: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. If a public agency is successful in proving these three elements then it will not be held liable for injuries caused by dangerous conditions of public property.

    In Hampton, the Supreme Court evaluated the second element and determined that a public agency is immune from civil liability even when an employee who approves the plan was not aware of the particular design standards. The plaintiffs in question were involved in a car accident while attempting to turn onto a two-lane thoroughfare from a rural side road. The plaintiffs alleged that the County had created a dangerous condition in planning the intersection by failing to account for a “high, raised embankment covered with shrubs.” They asserted that the failure to account for the embankment rendered visibility plainly inadequate under County standards. The County argued that it was immune under section 830.6, offering design plans for the intersection in question.

    The Supreme Court agreed with the County, determining that section 830.6 was applicable because the very purpose of the statute was “to avoid second-guessing the initial design decision adopted by an employee vested with authority to approve it….” The Court confirmed that a public agency is not required to show that the designated employee considered applicable standards when approving the plan or was authorized to deviate from any possibly relevant standards. What is essential is that the employee approving the plan or design had authority to do so.

    While this case helps expand one aspect of section 830.6 immunity, public agencies should be mindful of the remaining requirements. The Court cautioned that while an employee need not be aware of applicable standards when approving a plan to satisfy the second element, such circumstances could be relevant as to whether or not the plan was reasonable under the third element. As such, it remains important that public agencies remain vigilant in considering applicable standards as well as any other requirements when implementing new plans or designs.

    For more information on public agency immunity, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    Megan Macy
    Partner
    Sacramento Office
    mmacy@lozanosmith.com

    Shawn A. VanWagenen
    Associate
    Fresno Office
    svanwagenen@lozanosmith.com

    ©2015 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.

    Under the Public Records Act, Local Agencies Are Now Required to Create and Maintain a Catalog of Enterprise Systems

    December 2015
    Number 78

    On October 11, 2015, Governor Jerry Brown signed into law Senate Bill (SB) 272, which requires local agencies to create a catalog of “enterprise systems,” as defined, as part of implementing the California Public Records Act (PRA). This bill does not currently apply to local educational agencies.

    SB 272 becomes effective January 1, 2016. It adds section 6270.5 to the Government Code, which requires local agencies to create a catalog of “enterprise systems.” “Enterprise system” is defined under this section as “a software application or computer system that collects, stores, exchanges, and analyzes information the agency uses.” Enterprise systems are also limited to multidepartmental systems or systems that contain information collected about the public and systems of record, meaning they serve as an original source of data within the agency. Finally, enterprise systems do not include IT security systems or records collected and stored by IT, nor does it include physical control systems such as video monitoring, mechanical control systems such as street lights or water functions, or systems related to emergency services.

    The new law lists several items that must be included in the catalog of enterprise systems, such as the current vendor for the system, the current product, the system’s purpose, a description of the categories of data, the department that oversees the system, and how frequently data is collected and updated. The catalog system must be posted in a prominent place on the agency’s website, and made available upon request in the agency’s office. Local agencies must have these catalogs completed and posted by July 1, 2016, and then must update them annually.

    Government Code section 6270.5 explicitly states it is not intended to provide public access to records not otherwise available, or to change the way public records are requested. Also, if the agency determines under the Government Code section 6255 balancing test that the public interest weighs in favor of nondisclosure, the agency can instead provide just a name or identifier for the system. However, as with all PRA requests, nondisclosure under the balancing test should be well documented to support any potential push-back from the requester. Local agencies should carefully weigh the governmental interests against the public’s interest in disclosure, and when possible, do so with the advice and assistance of legal counsel.

    SB 272 introduces a new law and there may be impacts or implementation issues not yet addressed or contemplated by the Legislature. Moreover, while this new law does not currently apply to local educational agencies, this law may later be expanded to cover local educational agencies. Local agencies should watch for further updates in the coming year.

    For more information on SB 272, its implications for local agencies, and the complex nature of PRA requests, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    William P. Curley III
    Senior Counsel
    Los Angeles Office
    wcurley@lozanosmith.com

    Samantha Corner
    Associate
    Monterey Office
    scorner@lozanosmith.com

    ©2015 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.

    County Committees May Now Decrease the Governing Board of Small School Districts from Five to Three Members

    December 2015
    Number 77

    Small school districts sometimes have difficulty finding people to fill all seats on a five member board. To address this issue, the California legislature recently passed Assembly Bill (AB) 331, providing county committees on school district organization (County Committees) the authority to decrease school district governing boards from five members to three members in districts with an average daily attendance (ADA) of less than 300 during the preceding year. Specifically, AB 331 amends Education Code section 5019 and is effective January 1, 2016.

    While AB 331 provides County Committees with broader authority in adjusting the composition of school boards, it does not alter the process by which such changes are made. Under that process, a reduction from five to three members may be initiated in one of three ways: (1) a petition by the school district’s electorate; (2) a resolution adopted by the school district; or (3) a resolution adopted by the County Committee.

    If you have any questions regarding this legislation or school district reorganization in general, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

     

    Written By

    Trevin Sims
    Partner
    Los Angeles Office
    tsims@lozanosmith.com

    William P. Curley III
    Senior Counsel
    Los Angeles Office
    wcurley@lozanosmith.com

    Ryan P. Tung
    Associate
    Los Angeles Office
    rtung@lozanosmith.com

    Desiree Serrano
    Associate
    Los Angeles Office
    dserrano@lozanosmith.com

    ©2015 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 Upholds Union’s Right to Receive Information Despite Employees’ “Opt Out”

    October 2015
    Number 64

    The Public Employment Relations Board (PERB) recently held that a school district violated the Educational Employment Relations Act (EERA) by failing to fully respond to a union’s request for information despite the fact that some employees opted out of the release of their information and the union did not reassert its request when it did not receive all the information.

    In Los Angeles Unified School District (2015) PERB Decision 2438, the District reassigned teachers who were being investigated for serious misconduct to one of its six educational service centers (ESC). The teachers were expected to work at the ESCs and earned their full compensation. The union demanded to bargain over the hours and duties of teachers assigned to the ESCs and requested their names and work locations. The union stated it needed this information to communicate with the teachers to see if they needed help and to develop proposals to change the working conditions in the ESCs.

    The District asserted that teachers assigned to the ESCs had a privacy interest in that assignment and told the union that it would only comply with its request after it informed the teachers that they could “opt out” of having their information released. The District argued that providing names of teachers assigned to the ESCs would essentially disclose they were under a District or criminal investigation for serious misconduct. The union objected to the opt-out procedure emphasizing it was not seeking any discipline or investigation records from the District and the union also offered to enter into a confidentiality agreement requiring them to maintain the information as confidential. The District decided to inform all 276 teachers assigned to the ESCs of the union’s request and allow them the opportunity to opt out from the release of their assigned information. After 15 teachers opted out, the District provided the union the names and work locations of 261 teachers. The union did not restate its request for the names and work locations of the 15 teachers who opted out. Instead, the union filed an unfair practice charge.

    In considering a union request for information that implicates employees’ privacy interest, PERB applies a balancing test, placing the burden on the employer to demonstrate whether this interest outweighs the union’s need for information. In Los Angeles Unified School District, PERB found that the information the union requested was “necessary and relevant,” but also agreed with the District that employees’ had a privacy interest in their assignment to ESCs.

    PERB held the District did not demonstrate that its employees’ privacy interest outweighed the union’s need for information. PERB specifically considered all of the following: 1) the union did not seek discipline or investigation records from the District; 2) the union offered to enter into a confidentiality agreement which the District refused to consider without any explanation; 3) the teachers did not experience a significant invasion of privacy because if they did not want to communicate with the union they could inform the union that or ignore the communication; and 4) the District had not always treated the information the union requested confidentially since it disclosed the identity of a teacher assigned to an ESC to the media. PERB found that even if the District assured employees their assignment to an ESC would be confidential, such assurance would not necessarily override the union’s right to the information.

    PERB also held that the union did not have to reassert its request for information after the District refused to provide it information about the 15 employees who opted out. PERB found that the District knew that the union wanted the names and work locations of all the employees assigned to the ESCs and that the union objected to the opt-out process so partial compliance was not sufficient. In addition, PERB held that the District was not entitled to implement an opt-out process without negotiating that process with the union. PERB also found it significant that the union was willing to enter into a confidentiality agreement with the District

    This case demonstrates that the significant burden on employers in establishing that employees’ privacy concerns outweigh a union’s need for information, especially when a union is not seeking discipline or investigation records. Districts should be cautious when asserting employee privacy rights as basis for denying a request for information to ensure that such assertions will withstand PERB scrutiny. If the District elects to use an opt-out process, and employees opt-out, that opt-out alone may not provide the District a sufficient basis to withhold documents or information. Employers may also be liable for failing to provide a union requested information, even if the union does not reassert its request. Important to this case was that the union’s request for information was clear and it objected to the use of the opt-out process. Lastly, employers should also be cautious when providing employees an opportunity to opt-out before responding to a union’s request for information, without first negotiating such process with the union.

    For further information about this decision, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    Dulcinea Grantham
    Partner
    Walnut Creek Office
    dgrantham@lozanosmith.com

    Ameet K. Nagra
    Associate
    Fresno Office
    anagra@lozanosmith.comm

    ©2015 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 Rules that a Report Prepared By a Third-Party, Non-Governmental Entity Is a Public Record

    October 2015
    Number 63

    In Pasadena Police Officers Association v. Superior Court (PPOA), (2015) 240 Cal. App. 4th 268, the California Court of Appeal held that an investigative report commissioned by the City of Pasadena but drafted by third party is a public record subject to disclosure under the California Public Records Act (CPRA). Additionally, the appellate court closely scrutinized redactions to the report, which were based on a recognized exemption to the CPRA, and held that the trial court had overreached.

    The Legislature enacted the CPRA to promote transparency in government by determining that all records maintained by a public agency that pertain to the public’s business are open to inspection. The CPRA contains a limited list of document categories which are exempt from disclosure. Courts broadly construe the CPRA in favor of transparency and interpret its exemptions narrowly. Given this principle, if a public record contains both disclosable and privileged information, courts will generally require disclosure of the public record after the privileged portions have been redacted.

    At issue in PPOA is a CPRA exemption that prevents the disclosure of documents otherwise privileged by federal or state law. (Gov. Code § 6254(k).) Specifically, a series of California laws, known as the Pitchess statutes, protect certain police personnel records from disclosure.

    In PPOA, the City of Pasadena commissioned an independent third party to conduct a review of the Pasadena Police Department in the wake of an officer involved shooting. The third party report examined and discussed two internal investigations conducted by the Pasadena Police Department, a criminal investigation and an internal affairs investigation that contained personnel information. After the City was asked to release the independent report through a CPRA request, the Pasadena Police Officers Association argued that the entire investigative report was exempt from disclosure because it constituted confidential police personnel information under the Pitchess statutes. The trial court ordered the report to be released, but redacted several portions that it believed were derived from confidential police personnel records.

    The appellate court upheld the trial court’s determination that the independent report was a public record subject to disclosure, reasoning that the CPRA’s policy favoring transparency is heightened when the information sought involves the conduct of police officers. The appellate court clarified the principle that the Pitchess statutes protect disciplinary records and information derived from police personnel files from disclosure under the CPRA, even when that privileged information is contained in an otherwise public record. Given this finding, the appellate court closely scrutinized the portions of the report that the trial court had redacted and concluded that the trial court’s redactions were overbroad because they included information that was not explicitly exempted from disclosure. The appellate court remanded the case to the trial court, with instructions that it limit its redactions to content that specifically related to protected police personnel files as described in the Pitchess statutes.

    The court’s holding puts public agencies on notice that even reports created for a public entity by a third party may be considered disclosable public records. Public agencies should not rely upon blanket arguments that a document is exempt from disclosure. Instead, public
    agencies may wish to look critically at the content within a document and determine whether any CRPA exemptions apply. As PPOA demonstrates, courts are apt to carefully review documents and favor disclosure wherever possible.

    For further information about this case and the California Public Records Act’s requirements and exemptions, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

    Written By

    William P. Curley III
    Senior Counsel
    Los Angeles Office
    wcurley@lozanosmith.com

    Eric Barba
    Associate
    Walnut Creek Office
    ebarba@lozanosmith.com

    ©2015 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.