2012 Annual Conference

City Attorneys’ Department Track

San Diego Convention Center San Diego, California

September 5-7, 2012

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Mission Statement: To restore and protect local control for cities through education and advocacy to enhance the quality of life for all Californians.

This publication is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues and attorneys should perform an independent evaluation of the issues raised in these materials. The League of California Cities does not review these materials for content and has no view one way or another on the analysis contained in the materials.

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City Attorneys’ Department Track 2012 League of California Cities Annual Conference Program Materials Table of Contents Page

I. About MCLE Credit ...... iii

II. Program ...... iv

III. Program Materials a. Late Breaking Report from the Post-Redevelopment Working Group ...... 1 Gillian van Muyden, General Counsel – Community Development, Office of the City Attorney, Glendale

b. Late Breaking Report from the Medical Marijuana Committee ...... 5 Thomas B. Brown, City Attorney, St. Helena Mary T. Nuesca, Chief Deputy City Attorney, San Diego Ruthann G. Ziegler, City Attorney, Citrus Heights and Pittsburg

c. Social Media: Labor and Employment Legal Issues ...... 9 Christina L. Checel, Senior Deputy City Attorney, Long Beach Jeff Sloan, Renne Sloan Holtzman Sakai

d. Guide to Understanding Use of Force Lawsuits ...... 23 Susan E. Coleman, Burke, Williams & Sorensen Robert Fonzi, Undersheriff, San Bernardino County Gary Geuss, Chief Assistant City Attorney, Los Angeles

e. Land Use and CEQA Litigation Update ...... 47 Andrew W. Schwartz, Shute Mihaly & Weinberger

f. Pension Reform & The Ballot Box: Not As Simple As It Looks ...... 85 Steven M. Berliner, Liebert Cassidy Whitmore

g. Recent Amendments to the Americans with Disabilities Act: Public Access and Rights of Way ...... 95 Gregory F. Hurley, Greenberg Traurig Neil Okazaki, Deputy City Attorney, Riverside

League of California Cities 2012 League of California Cities Annual Conference i City Attorneys’ Track San Diego Convention Center, San Diego

II. Program Materials (continued)

h. Walking a Tighrope – Regulating Group Homes Without Running Afoul of Federal and State Laws ...... 143 Patrick “Kit” Bobko, Richards, Watson & Gershon T. Peter Pierce, Richards, Watson & Gershon

i. General Municipal Litigation Update ...... 167 Wynne S. Furth, Attorney at Law

j. Charter City Authority Over Prevailing Wage: State Building and Construction Trades Council v. City of Vista ...... 189 James P. Lough, City Attorney, Lemon Grove

k. The “Occupy” Movement: What Can Cities Do? ...... 203 Rocio V. Fierro, Police General Counsel/Supervising Deputy City Attorney, Public Safety, Oakland City Attorney’s Office Deborah J. Fox, Meyers Nave

l. FPPC Update ...... 227 Shawn M. Mason, City Attorney, San Mateo

m. Employment of CalPERS Annuitants ...... 235 Stacey N. Sheston, Best Best & Krieger

n. Municipal Tort and Civil Rights Litigation Update ...... 243 Eugene P. Gordon, Office of the City Attorney, San Diego

o. Labor and Employment Litigation Update ...... 269 Richard S. Whitmore, Liebert Cassidy Whitmore

p. MCLE Specialty Credit – ETHICS Ethical Implications of Representing Multiple Boards/Clients ...... 309 Michael D. Martello, Interim City Attorney, Sunnyvale Jannie L. Quinn, City Attorney, Mountain View

III. Speakers’ Biographies ...... 329

League of California Cities 2012 League of California Cities Annual Conference ii City Attorneys’ Track San Diego Convention Center, San Diego

MCLE Information

The League of California Cities is a State Bar-certified minimum continuing legal education (MCLE) provider. This activity is approved for 10.5 hours of MCLE credit which includes 1 hour of Ethics credit.

Registration Check-In

MCLE credit is being tracked through your registration for the conference and the receipt of your conference materials. At the time that you receive your conference materials, you will be required to verify your State Bar number and this will serve as proof of your attendance.

Certificate of Attendance

Certificates of attendance are available on the materials table at the back of the City Attorneys’ session room until the conclusion of the conference. Please make sure you pick up your attendance certificate. You only need one attendance certificate for all of the City Attorney sessions at this conference.

Evaluations

PLEASE TELL US WHAT YOU THINK! We value your feedback. Hard copy evaluation forms for the MCLE-approved sessions are available at the tables located in the back of the room. An electronic version of the evaluation is available at: http://cacities.org/caevaluations and will also be emailed after the conference. Please tell us what you liked, what you didn’t, and what we can do to improve this learning experience.

iii League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

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League of California Cities 2012 League of California Cities Annual Conference iv City Attorneys’ Track San Diego Convention Center, San Diego

2012 ANNUAL CONFERENCE Wednesday, September 5 - Friday, September 7 San Diego Convention Center

CITY ATTORNEYS’ DEPARTMENT PROGRAM

2011-2012 City Attorneys’ Department Officers: President: Jonathan P. Lowell, City Attorney, Pleasanton 1st Vice President: Brian M. Libow, City Attorney, San Pablo 2nd Vice President: Gregory P. Priamos, City Attorney, Riverside Director: Robert E. Shannon, City Attorney, Long Beach

Wednesday—September 5

9:00 a.m. – 6:30 p.m. Annual Conference – Registration Open

2:00 – 3:30 p.m. General Session Moderator: Gregory P. Priamos, City Attorney, Riverside

Late Breaking Report from the Post-Redevelopment Working Group Speaker: Gillian van Muyden, General Counsel - Community Development, Office of the City Attorney, Glendale

Late Breaking Report from the Medical Marijuana Committee Speakers: Thomas B. Brown, City Attorney, St. Helena Mary T. Nuesca, Chief Deputy City Attorney, San Diego Ruthann G. Ziegler, Citty Attorney, Citrus Heights and Pittsburg

Social Media: Labor and Employment Legal Issues Speakers: Christina L. Checel, Senior Deputy City Attorney, Long Beach Jeff Sloan, Renne Sloan Holtzman Sakai

4:00 – 6:00 p.m. Annual Conference – Opening General Session

6:00 – 8:00 p.m. Annual Conference – Host City Reception

Thursday—September 6

7:00 a.m. – 4:00 p.m. Annual Conference – Registration Open

8:00 – 9:30 a.m. Annual Conference Breakout Session for MCLE Credit

Guide to Understanding Use of Force Lawsuits Presiding: Robert E. Shannon, City Attorney, Long Beach Speakers: Susan E. Coleman, Burke, Williams & Sorensen Robert Fonzi, Undersheriff, San Bernardino County Gary Geuss, Chief Assistant City Attorney, Los Angeles

League of California Cities 2012 League of California Cities Annual Conference v City Attorneys’ Track San Diego Convention Center, San Diego

Thursday—September 6 (continued)

9:45 – 10:45 a.m. Annual Conference – General Session

11:00 a.m. – 1:00 p.m. Annual Conference Expo and Exclusive Luncheon

1:00 – 2:30 p.m. General Session Moderator: Jonathan P. Lowell, City Attorney, Pleasanton

Welcoming Remarks Speaker: Jan I. Goldsmith, City Attorney, San Diego

Department Business Meeting

Land Use and CEQA Litigation Update Speaker: Andrew W. Schwartz, Shute Mihaly & Weinberger

Pension Reform & The Ballot Box: Not As Simple As It Looks Speaker: Steven M. Berliner, Liebert Cassidy Whitmore

2:45 p.m. – 4:00 p.m. General Session Moderator: Gregory P. Priamos, City Attorney, Riverside

Recent Amendments to the Americans with Disabilities Act: Public Access and Rights of Way Speakers: Gregory F. Hurley, Greenberg Traurig Neil Okazaki, Deputy City Attorney, Riverside

Walking a Tightrope – Regulating Group Homes Without Running Afoul of Federal and State Laws Speaker: Patrick “Kit” Bobko, Richards, Watson & Gershon T. Peter Pierce, Richards, Watson & Gershon

4:15 – 5:30 p.m. General Session Moderator: Brian M. Libow, City Attorney, San Pablo

General Municipal Litigation Update Speaker: Wynne S. Furth, Attorney at Law

Charter City Authority Over Prevailing Wage: State Building and Construction Trades Council v. City of Vista Speaker: James P. Lough, City Attorney, Lemon Grove

League of California Cities 2012 League of California Cities Annual Conference vi City Attorneys’ Track San Diego Convention Center, San Diego

Friday—September 7

7:30 – 10:00 a.m. Annual Conference – Registration Open

8:00 – 8:45 a.m. General Session Moderator: Jonathan P. Lowell, City Attorney, Pleasanton

The “Occupy” Movement: What Can Cities Do? Speakers: Rocio V. Fierro, Police General Counsel/Supervising Deputy City Attorney, Public Safety, Oakland City Attorney’s Office Deborah J. Fox, Meyers Nave

9:00 – 10:15 a.m. General Session Moderator: Robert E. Shannon, City Attorney, Long Beach

FPPC Update Speaker: Shawn M. Mason, City Attorney, San Mateo

Employment of CalPERS Annuitants Speaker: Stacey N. Sheston, Best Best & Krieger

40 min. Municipal Tort and Civil Rights Litigation Update Speaker: Eugene P. Gordon, Office of the City Attorney, San Diego

10:30 a.m. – Noon General Session Moderator: Brian M. Libow, City Attorney, San Pablo

Labor and Employment Litigation Update Speaker: Richard S. Whitmore, Liebert Cassidy Whitmore

MCLE Specialty Credit – ETHICS Ethical Implications of Representing Multiple Boards/Clients Speaker: Michael D. Martello, Interim City Attorney, Sunnyvale Jannie L. Quinn, City Attorney, Mountain View

Noon – 2:00 p.m. Annual Conference – Closing Business Meeting and Voting Delegate Luncheon

MCLE Credit The League of California Cities is a State Bar of California minimum continuing legal education (MCLE) approved provider. The League certified that this activity has been approved for minimum continuing education credit by the State Bar of California in the amount of 10.5 hours, including 1 hour of Ethics credit.

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League of California Cities 2012 League of California Cities Annual Conference viii City Attorneys’ Track San Diego Convention Center, San Diego

Late Breaking Report from the Post- Redevelopment Working Group

Wednesday, September 5, 2012 General Session; 2:00 – 3:30 p.m.

Gillian van Muyden, General Counsel – Community Development, Office of the City Attorney, Glendale

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

League of California Cities 2012 League of California Cities Annual Conference 2 City Attorneys’ Track San Diego Convention Center, San Diego

Please visit www.cacities.org/cle for these materials.

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League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

Late Breaking Report from the Medical Marijuana Committee

Wednesday, September 5, 2012 General Session; 2:00 – 3:30 p.m.

Thomas B. Brown, City Attorney, St. Helena Mary T. Nuesca, Chief Deputy City Attorney, San Diego Ruthann G. Ziegler, City Attorney, Citrus Heights and Pittsburg

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

League of California Cities 2012 League of California Cities Annual Conference 6 City Attorneys’ Track San Diego Convention Center, San Diego

Please visit www.cacities.org/cle for these materials.

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League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

Social Media: Labor and Employment Legal Issues

Wednesday, September 5, 2012 General Session; 2:00 – 3:30 p.m.

Christina L. Checel, Senior Deputy City Attorney, Long Beach Jeff Sloan, Renne Sloan Holtzman Sakai

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

League of California Cities 2012 League of California Cities Annual Conference 10 City Attorneys’ Track San Diego Convention Center, San Diego

Social Media and the Public Workplace: How Facebook and Other Social Tools Are Affecting Public Employment

Prepared for the League of California Cities Annual Conference September 2012

By: Jeff Sloan Partner, Renne Sloan Holtzman Sakai LLP

Christina L. Checel Senior Deputy City Attorney, City of Long Beach

Albert Yang Associate, Renne Sloan Holtzman Sakai LLP

League of California Cities Annual Conference – September 2012

I. Introduction1 The use of social media as a communication tool has skyrocketed in the past decade, as has its impact in the workplace. Social media is any electronic medium where users may create, share, or view user-generated content which can include videos, photographs, speech or sound. Blogs, social networking sites, instant messages, podcasts, and video sharing have become mainstream forms of communication which can be transmitted and accessed via the internet on a computer, tablet, or mobile phone.

There are blogs for every topic under the sun, including those specifically designed as forums for individuals to post negative comments about their supervisors or the company that employs them. Social networking sites allow individuals to provide an unprecedented amount of access to their everyday lives; they provide a forum for comments on a plethora of topics, both personal and work related. Facebook is one such popular social networking site, which boasts over 900 million users with 526 million active daily users. Some of these users include public agencies that have their own official social media account. Employees and employers alike can post messages and images in social media sites, send “tweets,” post videos on YouTube, and send mass email communications to a wide audience. The avenues for disseminating information are easily accessible and wide reaching.

This paper is intended to provide an overview of the current laws and issues that may come into play when social media intersects with the workplace. Part II of this paper provides a general discussion of how social media has impacted the workplace. Part III discusses general legal principles including: (1) employees’ First Amendment rights; (2) employee privacy; (3) defamation; and (4) various statutory duties of employees and employers implicated by social media. Part IV will apply these legal principles in tangible contexts such as: (1) the use of social media in hiring practices; (2) the use of social media in disciplinary actions; (3) liability to the employer for its employees’ social media postings; and (4) the need for employers to have a social media policy.

II. How Social Media Impacts the Workplace Many agencies use social media sites to recruit new employees. Job postings on the agency’s website or an outside website are common recruitment tools. Social media is also commonly used as part of the screening process for applicants. This type of screening ranges from an agency conducting a Google search of the applicant’s name to requiring an applicant to provide his or her username and password to personal social media accounts. When agencies use this type of information as part of their background investigation or hiring process, they must be careful to avoid using information found on line against an applicant when it cannot otherwise be

1 This paper is authored in conjunction with a presentation at the League of California Cities 2012 Annual Conference. Additional materials, including draft social media policies will be available at the presentation.

League of California Cities Annual Conference – September 2012 used in a hiring decision, such as information about religion, race, marital status or sexual orientation, to name a few.

In May 2012, Maryland was the first state in the country to adopt legislation to prevent employers from taking action against applicants who refuse to disclose their username and password to personal social media sites that are exclusively used by the applicant. California is following suit with the introduction of Assembly Bill 1844 and Senate Bill 1349.2 If these bills are enacted in California, an employer will be prohibited from requiring prospective employees to disclose their username or password to their personal social media accounts as a condition of employment.

Aside from the use of social media in hiring practices, social media can be used to provide information and services to the public, to communicate with employees, and create efficiencies in the workplace. In cases where an agency has an official social media account such as Facebook or Twitter, it is not uncommon to see posts from members of the public or current employees relating to the topics on the agency’s site. Can the agency remove a derogatory or unproductive post made by its employees? What if the post involves information that the employee could only have learned of by virtue of his or her employment? What if the post is defamatory?

Other issues relating to social media in the workplace deal directly with employees who have personal social media accounts and access them while at work. It has become commonplace for employees to access their personal accounts on mobile phones or on their work computer. This raises issues of employee productivity. How much time are employees spending on social media during the workday instead of focusing on work? Are they accessing personal accounts while on a break? Are they accessing these accounts from a personal mobile device, and if so, can an employer order an employee not to use such a device during the workday?

It is clear that myriad legal issues surround social media in the workplace. Posts that are related to the work environment, co-workers, supervisors, management or policies could give rise to claims of hostile work environment, discrimination, defamation or improper disclosure of confidential information. Posts could form the basis for disciplinary action, or in the alternative, could be construed as protected free speech. Posts could be protected under labor law, as evidence of concerted union activity. What if employees’ posts pertain to their life outside of work? Are they private? Is there a nexus between the personal post and the person’s employment? Can employees’ posts on their own social media site create liability for their employer? What if an employer provides its employees with phones that have texting capacity? Can the employer regulate the content of the text messages or take action against an employee for the content of the message? These legal questions require answers, but the law evolves slowly in comparison to technology’s rapid and constantly changing strides.

III. Legal principles Although social media provides a new context in which labor and employment issues may arise, the basic legal principles and statutes governing employee-employer relations are

2 As of August 1, 2012, neither bill has been adopted.

League of California Cities Annual Conference – September 2012 largely familiar. The following section provides a brief overview of the constitutional, statutory, and common law applicable to employee or employer use of social media in the public sector.

A. Free Speech – First Amendment

Public employees do not relinquish “the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest,” simply by virtue of their employment.3 Nonetheless, it is well settled that “the government has legitimate interests in regulating the speech of its employees,” which may justify restrictions that could not be applied to the general public.4 Thus, where a public employee is speaking as a citizen on a matter of public interest, courts will balance the “interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”5

There are several relevant inquiries in determining whether a public employee may be disciplined for his or her speech.6 The first is whether the employee was speaking as a citizen. If not, then the employee is not entitled to any First Amendment protections.7 The Supreme Court has recently clarified that speech made pursuant to a public employee’s official duties is not made as a citizen and is therefore not protected.8

The second inquiry is whether the speech related to a matter of public concern. Courts look to “the content, form, and context” of speech in making this determination.9 For example, speech relating to a private matter, such as an individual grievance, is not intended to inform the public and cannot be fairly considered as relating to any matter of political, social, or other concern to the community.10

If, however, a public employee speaks as a citizen on a matter of public concern, courts will proceed to the third inquiry – whether the government’s interest in promoting the efficiency of public services outweighs the employee’s interest (and the public’s interest) in the speech. In general, a public employer may only impose “those speech restrictions that are necessary for [the agency] to operate efficiently and effectively.”11 Courts will consider “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise.”12

B. Privacy

3 Pickering v. Board of Education (1968) 391 U.S. 563, 568. 4 Connick v. Myers (1983) 461 U.S. 138, 156-157. 5 Id. at 157. 6 See Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1071-1072 ( 7 Garcetti v. Ceballos (2006) 547 U.S. 410, 418. 8 Id. at 421. The Supreme Court was careful to note that speech may still be made as a citizen even if it is made in the workplace and even if it concerns the subject matter of the public employee’s job. Id. at 420-421. 9 Connick, supra, 461 U.S. at 147. 10 Id. at 146-148; Thomas v. City of Beaverton (2004) 379 F.3d 802, 808. 11 Garcetti, supra, 547 U.S. at 419. 12 Rankin v. McPherson (1987) 483 U.S. 378, 388.

League of California Cities Annual Conference – September 2012

a. Fourth Amendment

The Fourth Amendment protects public employees against “unreasonable searches and seizures” by a government employer.13 The Supreme Court has not settled, however, on a single standard by which to judge when a search is unreasonable in the public employment context.

Under one approach, that of the plurality in O’Connor v. Ortega, courts first determine whether, in light of “the operational realities of the workplace,” a public employee has a reasonable expectation of privacy.14 If not, then the Fourth Amendment would not apply. If so, then courts determine if the search was performed for non-investigatory, work-related purposes or for the purpose of investigating work-related misconduct. If not, then an employer may be required to justify its conduct under the probable cause standard.15 If so, the intrusion is judged by a lesser “reasonableness under all the circumstances” standard.16 A search will be upheld if it is limited in scope and justified at its inception.17

Under the second approach, that of Justice Scalia in O’Connor, courts assume that the Fourth Amendment applies, but would excuse governmental invasions of privacy whenever they involve “searches of the sort that are regarded as reasonable and normal in the private-employer context.”18

Until the Supreme Court chooses to clarify the applicable law in this context, public employers should seek to satisfy both standards in conducting searches that potentially implicate an employee’s right to privacy.

b. Informational Privacy

The Ninth Circuit has held that the federal constitution protects an individual’s interest in “informational privacy” – i.e. the “interest in avoiding disclosure of personal matters.”19 This right is generally attributed to the Fourteenth Amendment’s guarantee of liberty rather than the Fourth Amendment’s prohibition of unreasonable searches.20 The right to informational privacy is not absolute; “rather, it is a conditional right which may be infringed upon a showing of proper governmental interest.”21 Relevant factors in this balance include: the information involved, the potential for harm in subsequent disclosure, the adequacy of safeguards to prevent unauthorized disclosure, the need for access and the extent to which public policy militates toward access.22

c. California Constitution

13 City of Ontario v. Quon (2010) 130 S.Ct. 2619, 2627. 14 Id. at 2628, citing O'Connor v. Ortega (1987) 480 U.S. 709, 717-718. 15 O’Connor, supra, 480 U.S. at 725. 16 Quon, supra, 130 S.Ct. at 2628. 17 Id.. at 2628, 2630, citing O'Connor 480 U.S. 725-726. A search need not be the “least intrusive” means of achieving a governmental goal to be reasonable. Id. at 2632. 18 Ibid., citing O’Connor, 480 U.S. at 731-732. 19 In re Crawford (1999) 194 F.3d 954, 958. The Supreme Court recently assumed, without deciding, that such a right exists. National Aeronautics and Space Admin. v. Nelson (2011) 131 S.Ct. 746, 752. 20 See Whalen v. Roe (1977) 429 U.S. 589, 598 fn. 23. 21 Crawford, supra, 194 F.3d at 959. 22 Ibid.

League of California Cities Annual Conference – September 2012

The California Constitution lists “privacy” among the “inalienable rights” guaranteed to all Californians.23 In order to prevail on a claim of invasion of privacy, a public employee must demonstrate “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by [the employer] constituting a serious invasion of privacy.”24 If the employee can meet these threshold requirements, a court will then proceed to balance “the justification for the conduct in question against the [severity of the] intrusion on privacy resulting from the conduct.”25

d. Employees vs. Job Applicants

The California Supreme Court has interpreted both the Fourth Amendment and the California Constitution to provide greater protection to current employees than to job applicants.26 Because an employer has many opportunities to observe and evaluate current employees, the employer generally may advance its interests in an efficient and effective workforce with resort to intrusive searches or inquiries. By contrast, an employer has no such opportunity with new applicants. Thus, not only are job applicants’ reasonable expectations of privacy diminished, but employers also have greater need for otherwise intrusive methods.27

e. Stored Communications Act

The federal Stored Communications Act (SCA), 18 U.S.C. §§ 2701-2711, generally prohibits the unauthorized and intentional access of stored electronic communications,28 including unauthorized access to a third-party email service29 and unauthorized viewing of a password-protected website.30 The SCA contains an exception, however, where access is authorized by the provider or by a user of the website.31 An employee’s use of an employer- provided computer, without more, does not represent consent or authorization under the SCA. On the other hand, in some circumstances, courts may find such authorization where the employer has a clear policy stating that personal business on government equipment is prohibited and that activity on work computers will be monitored.32

C. Fair Credit Reporting Act

The federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x, imposes notice and disclosure requirements on employers who seek “consumer reports” from third party agencies that assemble information on a person’s “credit worthiness, [. . .] character, general reputation, personal characteristics, or mode of living.”33 An employer using such a third party

23 Cal. Const. Art. I § 1. 24 Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40. 25 Loder v. City of Glendale (1997) 14 Cal.4th 846, 893. 26 Id. at 885-887, 897-898. 27 Ibid.; but cf. Lanier v. City of Woodburn (9th Cir. 2008) 518 F.3d 1147, 1148 (finding pre-employment drug test for library page position unconstitutional because City failed to demonstrate a special need for the test) 28 18 U.S.C. § 2701. 29 Pure Power Boot Camp v. Warrior Fitness Boot Camp (S.D.N.Y. 2008) 587 F.Supp.2d 548, 555. 30 Konop v. Hawaiian Airlines, Inc. (2002) 302 F.3d 868, 879. 31 18 U.S.C. § 2701, subd. (c); Konop, 302 F.3d at 880. 32 See Pure Power Boot Camp, supra, 587 F. Supp. 2d at 559-561. 33 15 U.S.C. § 1681a, subd. (d)(1).

League of California Cities Annual Conference – September 2012 service to evaluate applicants or employees must disclose to that it is seeking a report, must seek the applicant or employee’s authorization to seek the report. In the event the employer takes an adverse employment action based on the report, it must provide a copy of the report to the applicant upon request.34 Websites that aggregate personal information about individuals from public records and social media sources may fall within the scope of the FCRA.35

D. Workplace Harassment

Several state and federal statutes guarantee an employee’s right to work in an environment free from discrimination or harassment on the basis of a protected trait.36 Under California law, an employer is strictly liable for harassment by a supervisor.37 However, the damages recoverable may be reduced or eliminated if the employee unreasonably failed to utilize the employer’s anti-harassment policies.38 In contrast, under federal law liability may be avoided if: (1) the harassment does not result in a tangible employment action like hiring, promotion, demotion or reassignment; and (2) the employer exercised reasonable care to prevent and correct the harassment; and (3) the plaintiff unreasonably fails to take advantage of the employer’s preventive or corrective actions.39

Where the harassment is not committed by a supervisor, an employer is liable if it knows, or should have known, of the harassment and fails to take immediate corrective action.40 Whether conduct is sufficiently severe to create a hostile work environment is judged by the totality of the circumstances.41 Harassing conduct may be perpetrated by a supervisor, a co- worker, or non-employees.42

E. Defamation

The California Civil Code provides a statutory basis for a claim of defamation (libel or slander).43 The basic elements of a defamation claim are: “[1] the intentional [2] publication of [3] a statement of fact that is [4] false, [5] unprivileged, and [5] has a natural tendency to injure or which causes special damage.”44

Although an employer is generally liable for defamatory statements made by its employees within the scope of employment,45 the Government Code immunizes public

34 15 U.S.C. § 1681b, subd. (b). 35 See, e.g., Complaint for Civil Penalties, Injunction, and Other Relief, United States v. Spokeo (C.D. Cal. June 7, 2012), Case No. 2:12-CV-12-05001-MMM-SH. 36 See, e.g., Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and the California Fair Employment and Housing Act (Gov. Code § 12900 et seq.). Protected traits include: Race, Color, National Origin, Ancestry, Sex, Sexual Orientation, Gender Identity, Gender Expression, Age, Physical or Mental Disability, Medical Condition, Marital Status, Religious Creed. 37 State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040-1041. 38 Id. at 1049. 39 Faragher v. City of Boca Raton (1998) 524 U.S. 775, 807. 40 Gov. Code, §12940, subd. (j)(1). 41 Id. at 951. 42 Salazar v. Diversified Paratransit, Inc. (2004) 117 Cal.App.4th 318, 324. 43 Cal. Civ. Code §§ 44-46. 44 Scott v. Solano County Health and Social Services Dept. (E.D. Cal. 2006) 459 F.Supp.2d 959, 973. 45 See, e.g., Kelly v. General Tel. Co. (1982) 136 Cal.App.3d 278, 284.

League of California Cities Annual Conference – September 2012 employers from vicarious liability for defamation. “A public entity enjoys immunity for injuries caused by the misrepresentations of its employees, whether or not such misrepresentations are negligent or intentional.”46 Courts have acknowledged a limited exception to this immunity where the alleged misrepresentation leads to physical harm.47

IV. Employment Actions in the Context of Social Media The following section will apply the legal principles identified above to a number of hypothetical scenarios involving social media.

Hypothetical #1: An anonymous individual starts a public blog to post disparaging comments about various city officials and supervisors. For example, one post attacked the City Manager’s integrity and suggested that he had mismanaged city funds. Another post alleged that the Police Chief was an autocratic and controlling micro-manager. Based on the detailed nature and timing of the comments, Alice, the Personnel Director at the city, suspects that the blogger is a city employee who is posting during on-duty hours. May Alice initiate an investigation into the identity of the blogger? If Alice discovers that the blogger is Bob, a disgruntled police officer, may the city instruct Bob to stop blogging or subject him to discipline?

First, Alice’s investigation into the identity of the blogger runs the risk of violating the Fourth Amendment. Only “searches” that are for non-investigatory work-related purposes (e.g., a general inquiry into whether a city policy is functioning correctly), or those investigating work- related misconduct, are entitled to the less stringent “reasonableness under all the circumstances” standard.48 Other “searches” may be held to a more exacting standard like probable cause. Because this situation involves an investigation, there is a preliminary issue of whether the blogger would be engaging in actionable misconduct if he or she were a city employee. Here, even if the blogger were posting during work hours, Alice should carefully consider whether this person was being singled out for investigation based on the content of his or her speech.

In addition, Alice may not be justified in conducting a wide-reaching review of employees’ internet usage. Even under the less stringent “reasonableness” standard, any investigation must still be “reasonably related in scope to the circumstances which justified the interference in the first place.”49 Thus, an inquiry should focus on specific times of day, and redact irrelevant information.50

Second, Bob’s comments likely fall within the scope of the First Amendment. Depending on the specific content and context of Bob’s comments, however, the city may still be justified in limiting his speech or taking disciplinary action.

46 Cal. Gov. Code § 818.8; Tokeshi v. State of California (1991) 217 Cal.App.3d 999, 1004. 47 Adkins v. State of Calif. (1996) 50 Cal.App.4th 1802, 1818-1819, disapproved on other grounds in City of Moorpark v. Sup.Ct. (Dillon) (1998) 18 Cal.4th 1143. 48 O'Connor v. Ortega (1987) 480 U.S. 709, 723-725. 49 Id. at 726. This assumes that Bob had an expectation of privacy with respect to his internet use. Depending on the city’s policies, Bob’s expectation of privacy may be diminished or eliminated which would allow a search of his internet usage. (See, e.g., City of Ontario v. Quon (2010) 130 S.Ct. 2619, 2626-2629. 50 Id. at 2626.

League of California Cities Annual Conference – September 2012

Because Bob is posting as an anonymous blogger, he necessarily is speaking not pursuant to his official duties, but rather as a citizen. Thus, the relevant issues become whether Bob’s posts relate to an issue of public concern, and whether the city’s interests in minimizing workplace disruption and advancing its mission outweigh Bob’s and the public’s interests in his speech.

This depends largely on the content of Bob’s posts. Workplace grievances – e.g. complaints about a supervisor’s personality – are not always issues of public concern.51 However, criticisms relating to wastefulness and mismanagement generally are.52 Thus, the content of Bob’s complaint about the City Manager suggests that it should be entitled to First Amendment protection, while complaint about the Police Chief is a closer question. Regardless of the content, the form of Bob’s speech suggests that it is matter of public concern: the fact that Bob has posted on a public website indicates that he was motivated by a desire to inform a wide audience.53

The balance of the city’s interests and Bob’s interests also depends on the content of Bob’s posts. For example, the city has a much stronger interest in regulating false statements or statements made in reckless disregard for the truth.54 The city’s interest would be diminished, however, to the extent Bob’s comments could be characterized whistleblowing.55 Again, the context also matters. If Bob is posting entirely during his off-duty hours, his interests are entitled to greater weight.56 On the other hand, because Bob is a police officer, the city has a greater interest in maintaining discipline, loyalty and trust, and in minimizing destructive criticism.57 Nonetheless, the city would be well advised to tread carefully and under-react rather than over- react.

Hypothetical # 2: Charlie, the IT Director at the city, wants to use internet sources to supplement his usual background checks on applicants for an entry-level IT analyst position. Charlie comes across Spokeo, a company that aggregates information on individuals from social media websites and public records, and pays for information on a number of applicants. Charlie also knows that David, a current employee, is friends on Facebook with an applicant named Eve. Charlie asks David to sign into his Facebook account so that Charlie may view Eve’s profile. David agrees to do so. Has Charlie violated any statutory or constitutional rights?

Because Spokeo is a company that regularly assembles background information about individuals for the purpose of providing reports to third parties, it is a “consumer reporting agency” under the Fair Credit Reporting Act. Therefore, Charlie has a duty to seek authorization to use Spokeo’s services from applicants for the IT analyst job. The same requirement would not apply, however, to a simple Google search, as Google does not assemble “consumer reports” for the purpose of furnishing them to third parties.

51 Desrochers v. City of San Bernardino (9th Cir. 2009) 572 F.3d 703, 712-713. 52 Roth v. Veteran’s Admin. (9th Cir. 1988) 856 F.2d 1401, 1406. 53 See Gilbrook v. City of Westminster (9th Cir. 1999) 177 F.3d 839, 866. 54 Moran v. Washington (9th Cir. 1998) 147 F.3d 839, 849. 55 Rivero v. City & County of San Francisco (9th Cir. 2002) 316 F.3d 857, 866. 56 See, e.g., Berger v. Battaglia (4th Cir. 1985) 779 F.2d 992, 999. 57 Gray v. County of Tulare (1995) 32 Cal.App.4th 1079, 1092; Norton v. City of Santa Ana (1971) 15 Cal.App.3d 419.

League of California Cities Annual Conference – September 2012

Charlie’s use of David’s Facebook account to access Eve’s profile may violate Eve’s right to privacy under the California Constitution. The key issue is whether Eve has a reasonable expectation to privacy in the content of her profile. Because Facebook users can set privacy settings to limit access to certain individuals, Eve may have an expectation that only her Facebook friends would have access to personal information in her profile. On the other hand, a court may find that Eve loses any reasonable expectation of privacy once she publishes information in a manner that is visible to a third party. For example, at least one court has found that an email sender loses any expectation of privacy to the content of an email once it is sent, analogizing to a letter-writer, whose expectation of privacy ordinarily terminates upon delivery of a letter.”58

Reasonable expectations of privacy are founded upon broadly based and widely accepted community norms.59 Thus, the extent to which employers ask to view Facebook profiles of applicants would affect Eve’s reasonable expectation of privacy. In addition, legislation prohibiting employers from requiring the disclosure of Facebook usernames and passwords would greatly bolster Eve’s expectation of privacy against Charlie’s conduct.

Finally, it is unlikely that Charlie’s conduct violates the Stored Communications Act. The SCA permits an individual to view the contents of a password-protected website only when authorized to do so by a user of that service or the service provider.60 Here, David is a user of Facebook and of Eve’s Facebook profile, and he authorized Charlie to use his account.

Hypothetical #3: Fiona is a public relations employee in the city’s Parks department. Fiona, who often speaks in public about the Parks department’s initiatives, is assigned new duties as the department’s social media coordinator. Fiona is responsible for blogging about upcoming events and tweeting about new developments affecting city parks. Several members of the public who are upset with the Parks department begin to leave racially derogatory comments on the blog attacking Fiona, who is African-American. Fiona reports this to her supervisor, George, and tells him that it has dissuaded her from blogging more often. What are George’s duties under the law?

Where they are severe and pervasive, comments by members of the public may create a hostile work environment. The fact that the comments have interfered with Fiona’s ability to carry out her blogging duties suggest that they are in fact severe and pervasive. Moreover, because the comments were made in response to Fiona’s performance of her job duties, the city has a duty to take remedial action. In this case, that may mean moderating or disabling comments on the Park’s department blog.61

Hypothetical #4: Hank, a Deputy District Attorney, has serious doubts about the propriety of the police and prosecutorial conduct in a case that was recently assigned to him. Hank expresses these doubts in a memo to his superiors, which results in his being reassigned to a different case. Hank then makes a Public Records Act request for the memo, and the District

58 Guest v. Leis (6th Cir. 2001) 255 F.3d 325, 334. 59 Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 36-37. 60 Konop v. Hawaiian Airlines, Inc. (2002) 302 F.3d 868, 880. 61 Disabling or moderating comments would raise a First Amendment issue over whether the City had created a designated public forum in its blog. That question is beyond the scope of this paper.

League of California Cities Annual Conference – September 2012

Attorney acquiesces. James posts the memo to his personal blog. Can Hank be disciplined for his conduct?

When Hank first wrote this memo, he was acting pursuant to his official duties and was therefore not entitled to any First Amendment protection.62 When Hank made a Public Records Act request and posted the memo to his blog, however, he was speaking as a citizen.63 The ethical conduct of the police department and the prosecutor’s office are undoubtedly matters of public concern. The question, therefore, comes down to a balancing test, as described in hypothetical #1.

Hypothetical #5: Ian, a civilian employee in the county Sheriff’s department, is a supporter of the incumbent sheriff, James, in a recent election. Ian “likes” James’ Facebook page and posts several messages on Facebook encouraging others to vote for James. Ian does not, however, engage in any other activities supporting James’ campaign. After another candidate, Karen wins the election, she learns that Ian had supported James on Facebook, she wishes to fire him. Are Ian’s Facebook postings protected speech?

Although one court has found that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” the court distinguished cases where there was evidence of actual statements.64 Here, because Ian posted messages in addition to “liking” James’ page, his comments are likely protected. A court would therefore proceed to analyze whether Ian was speaking as a citizen on a matter of public concern, as outlined above.

In addition, because Ian was engaged in political speech, any disciplinary action taken against him would implicate his freedom of association.65 “The First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved.”66

V. Conclusion and Recommendations Many cities have adopted social media policies governing the official use of social media by various city departments. Cities should be careful that such policies do not intrude unnecessarily into employees’ privacy or First Amendment rights. In addition, as illustrated above, social media creates new contexts for familiar employment issues. Cities should review and update other policies, for example, sexual harassment or computer use policies, to reflect the potential impact of social media in the workplace.

We will discuss more examples and provide additional materials at the presentation at the City Attorneys’ Department Track of the League of California Cities 2012 Annual Conference.

62 Garcetti v. Ceballos (2006) 547 U.S. 410, 421. 63 See generally Ranck v. Rundle (SD Fla. June 16, 2009) No. 08–22235–CIV, 2009 WL 1684645. 64 Bland v. Roberts (E.D. Va. April 24, 2012) --- F.Supp.2d ----, 2012 WL 1428198 at *3. 65 See Elrod v. Burns (1976) 427 U.S. 347, 358–59. 66 Rutan v. Republican Party of Ill. (1990) 497 U.S. 62, 64–65.

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League of California Cities 2012 League of California Cities Annual Conference 22 City Attorneys’ Track San Diego Convention Center, San Diego

Guide to Understanding Use of Force Lawsuits

Thursday, September 6, 2012 Annual Conference Breakout Session; 8:00 – 9:30 a.m.

Susan E. Coleman, Burke, Williams & Sorensen Robert Fonzi, Undersheriff, San Bernardino County Gary Geuss, Chief Assistant City Attorney, Los Angeles

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

League of California Cities 2012 League of California Cities Annual Conference 24 City Attorneys’ Track San Diego Convention Center, San Diego

GUIDE TO UNDERSTANDING USE OF FORCE LAWSUITS

League of California Cities Fall Conference San Diego, CA September 5, 2012

Delivered by:

Susan E. Coleman Partner Burke, Williams & Sorensen, LLP

Gary Geuss Chief Assistant City Attorney City of Los Angeles

Robert Fonzi Undersheriff County of San Bernardino

I. WHY DO PEOPLE FILE USE OF FORCE LAWSUITS?

A. The Best Defense is a Good Offense

Sometimes the best defense against a criminal accusation is a claim that use of force was not warranted, unnecessary, unreasonable, or excessive. Many excessive force claims arise from incidents where the plaintiff is actually at fault, due to poor choices such as answering the door with a gun, fleeing from the police, or ignoring commands, and then tries to shift the blame to authorities.

B. To Obtain a Money Judgment

Many types of damages are available to a prevailing party – compensatory damages (for medical bills, wage losses, pain & suffering, etc.) and punitive damages (to punish a party for reprehensible conduct and discourage future similar conduct).

C. Sometimes Merit

Large state and local law enforcement agencies with 59 percent of the nation's sworn officers received 26,556 citizen complaints about police use of force during 2002. The rate was 6.6 complaints per 100 full-time sworn officers. About eight percent of the complaints were officially sustained, that is, there was sufficient evidence to justify disciplinary action against the officer or officers.1 Conversely, many claims against law enforcement lack merit entirely or are exaggerated. The key is knowing how to tell the difference.

II. SERVICE ISSUES WITH USE OF FORCE LAWSUITS

A. Generally

If an action against the State of California, service must be made on the Attorney General.2 In suits against any other public agency, service is made by delivering copies of the summons and complaint to the “clerk, secretary, president, presiding officer, or other head of the governing body.”3 Typically lawsuits against a City or County are delivered to the clerk, where they are stamped received and then routed to risk management.

1 Bureau of Justice Statistics - Citizens Complaints About Police Use of Force: Matthew Hickman, June 25, 2006. 2 Cal. Govt. Code § 955.4. 3 Cal. Code Civ. Proc. § 416.50(a).

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B. Personal Service

This is the simplest method of service. It puts more pressure on the Defendant to timely respond, as well as allowing for a plaintiff to begin discovery sooner, as the time period to file a responsive pleading is shorter than by mail service. With peace officer defendants, however, it is best to take measures to avoid this method of service if possible (such as agreeing to accept service on their behalf) in order to avoid disclosure of the defendant’s confidential home address.

C. Service by Mail and Acknowledgement of Receipt

Service by mail is allowable if a copy of the summons and complaint is sent to the defendant, with a request to acknowledge receipt. If the defendant signs the acknowledgment, it waives further service of process (and begins the clock on response times (see below), as well as commencement of discovery). If the defendant refuses to sign acknowledgment of receipt, service has not yet been accomplished, and it will have to be done in another manner. In addition, if the defendant authorizes its attorney as agent to accept service on its behalf, service and acknowledgment of receipt signed by that attorney commences the response time and discovery clock.

D. Service-Related Issues

Issues for law enforcement agencies and defendants being served include:

 Individuals or defendants inadvertently signing and returning the acknowledgment of receipt of service, and failing to advise risk management or counsel of the returned acknowledgment;

 Individual defendant being personally served, assuming that the agency is concurrently served and already aware of the lawsuit, without advising risk management or counsel of the service; and

 Confidentiality of home address and personal information.

E. Timing of Response

Unless extended by stipulation, court order, or by other means, an answer or other responsive pleading must be filed within 30 days after service of the complaint.4 If served by the U.S. Marshal’s office by mail with acknowledgment of receipt, the

4 Cal. Code Civ. Proc. § 412.20(a)(3).

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responsive pleading deadline is typically 60 days from the date of service, as noted on the form. See section V-A for additional information regarding the timing of response.

III. PROCEDURAL REQUIREMENTS

A. Tort Claim

A plaintiff seeking recovery against the State of California, or any “local public agency” (including a county, city, district, public authority or other public agency) must first submit a timely claim in compliance with the California Government Claims Act.5 According to the Government Claims Act, a plaintiff must present a claim for relief within six (6) months of accrual of the cause of action, in order to be timely.6 After the claim is filed, the government has 45 days to respond. If the government agency denies the claim during the 45 day time period, the plaintiff has six (6) additional months to file a lawsuit in court from the date the denial was mailed or personally delivered.

Absent a court order granting relief upon a showing of good cause, any plaintiff who fails to timely file a claim in compliance with the Government Claims Act is barred from pursuing a tort against the governmental entity.

B. Statute of Limitations

Generally speaking, an action for a personal injury claim (including claims for assault and battery) must be filed within two (2) years from the date of the wrongful act.7 A “section 1983” claim does not have its own statute of limitations, and is therefore obligated to follow the personal injury statute of limitations of the forum state.8

Under Civil Code section 52.1 (Bane Act), which prohibits persons acting under color of authority in California from interfering with the rights of another, the statute of limitations is three (3) years from the date of the occurrence of the injury or interference.9

Notwithstanding the limitations above, however, the statute of limitations will be tolled for up to two years if the plaintiff is in prison or jail, a minor, legally insane, or if there has been a stay of proceedings.10

5 Cal. Govt. Code §§ 900 et. seq. 6 Cal. Govt. Code § 911.2. 7 Cal. Code Civ. Proc. § 335.1. 8 Wilson v. Garcia (1985) 471 U.S. 261. 9 Cal. Code Civ. Proc. § 338. 10 Cal. Code Civ. Proc. §§ 352(a), 352.1(a).

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C. Other Procedural Requirements- Exhaustion of Administrative Remedies

Generally speaking, there are no requirements for exhaustion of administrative remedies when filing a lawsuit alleging unlawful use of force. There are exceptions, however, as outlined below.

1. Tort Claim

If a plaintiff files a lawsuit alleging unlawful use of force under state law (i.e., assault, battery, or the Bane Act)11, he must first file a tort claim against the public entity, receive a denial letter, and then file suit within 6 months of the denial of the claim. No such requirements apply to federal causes of action.

2. Prisoner Exhaustion Issues

If the plaintiff who has filed a complaint for use of force is a prisoner both at the time the incident occurred and when the lawsuit is filed, he or she must first exhaust the formal administrative complaint process available at the prison or jail, before he or she may file a tort complaint.12

IV. INVESTIGATION OF ALLEGATIONS

A. Public Safety Officers Procedural Bill of Rights Act Issues

The Public Safety Officers Procedural Bill of Rights Act (“POBRA”) is an act that specifies the procedural rights of public safety officers who are subject to investigation or discipline.13 There are several important POBRA issues to consider in the context of use of force lawsuits.

1. The Lybarger Admonition

An officer interrogated in an administrative investigation shall be informed of his or her rights if the potential for criminal charges appears likely. “If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional right.”14 The peace officer must be told that although he has the right to remain silent

11 Cal. Civ. Code § 52.1. 12 See Cal. Code of Regs, tit. 15, §§ 3084.1 et seq. 13 Cal. Govt. Code §§ 3300 et. seq. 14 Cal. Govt. Code § 3303(h).

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and not incriminate himself, his silence can be deemed insubordination, leading to administrative discipline, and that any statements made under the compulsion of threat of discipline can not be used against the officer in a subsequent criminal proceeding.15 This admonition is typically given to police officers suspected of misconduct before internal affairs interviews. Note a compelled statement may also be in writing and is not necessarily verbal.

This protection notwithstanding, however, a district attorney does have a statutory right to receive a copy of the police officer’s statement from the administrative investigation.16 In addition, a federal subpoenaing authority such as a grand jury also has the right to obtain the statement.17 Furthermore, while POBRA prohibits the use of coerced statements in “any subsequent civil proceeding”18 , this prohibition does not apply to federal court civil proceedings.19

Thus, in the context of a use of force lawsuit filed in federal court, the statements of the officer obtained during his or her administrative interview can be obtained (through the discovery and motion to compel process) and subsequently used by the plaintiff to prove his or her case. While the officer is not under oath during an internal affairs interview, the statements are admissible as admissions of a party.20 Therefore, employees should be cautious regarding their answers in use of force investigations, as their answers can have a detrimental impact on both the employer and its employee during a subsequent civil lawsuit.

2. Audio Recording

POBRA provides “The complete interrogation of a public safety officer may be tape recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time.”21 Thus, in a federal court lawsuit alleging use of force, a plaintiff may also potentially obtain these recordings for proof in his or her suit.

15 Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822. 16 People v. Gwillim (1990) 223 Cal.App.3d 1254. 17 In re Grand Jury Subpoena (9th Cir. 1996) 75 F.3d 446. 18 See Cal. Govt. Code § 3303(f). 19 Welsh v. City and County of San Francisco (N.D. Cal. 1995) 887 F.Supp. 1293. 20 Cal. Evid. Code § 1220. 21 Cal. Govt. Code § 3303(g).

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3. Union Representation

An employee subject to an administrative investigation has the right under POBRA to representation. “Upon the filing of a formal written statement of charges, or whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have the right to be represented by a representative of his or her choice who may be present at all times during the interrogation…The representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation for noncriminal matters.”22 However, this non-attorney representative is not entitled to assert the attorney-client confidentiality protections of the Evidence Code.23 As such, communications between the employee and non- attorney representative may be discoverable, depending on the circumstances of when they occurred (i.e., discussions after the administrative investigation had concluded).

Typically union representatives only ensure that POBRA and due process rights of the employee are protected, such as being noticed of the interview sufficiently in advance, limiting the interview to the noticed scope of the subject of the interview, and allowing no more than 2 persons to question the witness. Due to the lack of attorney- client privilege, and general limitations in having a union representative present, however, it is often prudent for the officer to obtain an attorney representative.

4. Witness Interviews

POBRA rights generally apply to employees subject to administrative interviews by their employer as a potential suspect of misconduct. “When any public safety officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action, the interrogation shall be conducted under the following conditions.)24 On the contrary, witnesses interviewed by the Department who are not under investigation are not subject to the protections of POBRA. As such, no protection appears to exist for limiting production of these statements, in the context of a use of force lawsuit.

While the POBRA rights do not apply to a witness who is interviewed, the witness may still be able to assert a right to privacy of their statements under the California or U.S. Constitution, or under appropriate circumstances be able to assert the official

22 Cal. Govt. Code § 3303(i); Alhambra Police Officers Association v. City of Alhambra Police Department (2003) 113 Cal.App.4th 1413, 1422. 23 Cal. Evid. Code §§ 950 – 955. 24 Cal. Govt. Code § 3303, emphasis added.

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information privilege. Official information is generally defined as: “…information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”25 A public entity may refuse to disclose official information when “disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice…”26

B. Pitchess Motions

The so-called “Pitchess motion” works to prevent disclosure of confidential peace officer records, absent a showing of good cause by a moving party.27 Generally speaking, peace officer personnel records are confidential and shall not be disclosed unless a moving party has established a specific factual scenario of officer misconduct that has a plausible factual foundation.28 These protections also apply to civil actions.29

Upon a showing of a specific factual scenario of officer misconduct that has a plausible factual foundation, a confidential, in camera review is then conducted to determine if any records in the peace officer file are responsive to the information sought.30 These records will only be released pursuant to a protective order, in order to maintain their confidential status. However, a judge will generally preclude from disclosure information that is more than 5 years old, or which is “so remote as to make disclosure of little or no practical benefit.”31 Further, initial production of information is limited to the names and addresses of complaining parties in prior investigations.32

However, in lawsuits venued in federal court, where the court is adjudicating federal rights, the state law Pitchess privileges that apply to peace officer personnel records are not recognized. “State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts.”33 Questions of evidentiary privilege that arise in the course of adjudicating federal rights are governed by principles of

25 Cal. Evid. Code § 1040(a). 26 Cal. Evid. Code § 1040(b)(2). 27 Pitchess v. Superior Court (1974) 11 Cal.3d 531; Cal. Evid. Code §§ 1043, 1045; and Cal. Pen. Code §§ 832.7, 832.8. 28 City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74. 29 Cal. Pen. Code § 832.7. 30 Cal. Evid. Code § 1045; People v. Mooc (2001) 26 Cal.4th 1216. 31 Id. 32 Mooc, supra, 26 Cal.4th 1216; Warrick v. Superior Court (2005) 35 Cal.4th 1011. 33 Kelly v. City of San Jose (N.D. Cal. 1987) 114 F.R.D. 653, 655-56; Howard v. County of San Diego (S.D. Cal., 2011) 2011 WL 2182441, *1.

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federal common law.34 The agency holding the personnel records may assert privileges to protect the records such as the law enforcement privilege (during a pending investigation),35 official information privilege (protecting investigations and other internal inquiries),36 or the deliberative process privilege (revealing internal decision- making process).37 If an agency invokes the official information privilege, it must be supported with a declaration or affidavit with specific threshold information, including the reasons for confidentiality.38 If the threshold showing is made, the court weighs the benefits of disclosure against the potential disadvantages, usually by reviewing the documents at issue in camera.39

Therefore, confidential peace officer records maintained by a government agency may be subject to production and/or examination in camera, absent a federal common law restriction limiting such production.

C. File Contents

With the obvious limitations provided in asserting a Pitchess protection or other privileges against disclosure of private records, public entities are advised to ensure the contents of their peace officer’s personnel files are routinely examined and purged in accordance with legal and administrative guidelines. This includes removal of administrative investigation materials after 5 years from the date of the incident, and removal of written reprimands within one year.40

D. Confidentiality of Home Address

While subject to the limitations of the court order protecting confidentiality, an employing agency should always exercise significant caution prior to releasing the home address of any of its employees. Typically measures can be taken by counsel to avoid this, such as agreeing to accept service on the officer’s behalf, and agreeing to produce the officer at trial.

34 United States v. Zolin (1989) 491 U.S. 554; Fed. R. Evid., Rule 501. 35 See United States v. Winner (10th Cir. 1981) 641 F.2d 825, 831. 36 See generally, 4 J. Moore, FEDERAL PRACTICE ¶ 26.61[1]-[6.1], [7] (2d ed. 1975); see also, Kelly v. City of San Jose (N.D. Cal. 1987) 114 F.R.D. 653. 37 See, e.g., NLRB v. Sears, Roebuck & Co. (1971) 421 U.S. 132; Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena (D.D.C. 1966) 40 F.R.D. 318. 38 Kelly, supra, 114 F.R.D. at 670. 39 See id.; Bryant v. Armstrong (S.D. Cal. 2012) 2012 WL 2190774, *6-7, citing Soto v. City of Concord (N.D. Cal. 1995) 162 F.R.D. 603, 613. 40 Cal. Evid. Code § 1045.

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E. Warning Systems

1. Spotting a Problem

An officer with a significant number of similar allegations of misconduct should be subject to greater scrutiny to determine if the pattern indicates a problem. The employing agency should consider implementing internal processes to monitor the repetitive filing of complaints against an officer, and address the allegations accordingly. This type of system will help to address employee issues with further training, or disciplinary action if needed, and thereby avoid or minimize exposure to lawsuits alleging failure to train, supervise, and discipline employees.

For example, some agencies may set a numeric amount, triggering additional review after an officer receives a certain number of complaints of misconduct. In some cases, such as a patrol officer who has significant interaction with the public in a rough area, there may be numerous complaints against an officer without any indicia of actual misconduct. That officer may be doing everything right, but need additional training on interaction with the public; or perhaps no action is needed. On the other hand, the complaints may signal a more serious problem that needs to be addressed. In either case, agencies need to examine officers with numerous complaints to evaluate the situation and whether any measures are needed.

2. Bandwagon Effect v. Rogue Officer

The employing agency should evaluate whether citizens are filing complaints against an officer due to word of mouth, or whether the complaints are occurring because the officer is behaving inappropriately.

F. Collecting documents

The public employer should have a policy in place to assemble and collect documents related to the incident underlying the lawsuit. Criminal evidence collection protocols vary, both in the items collected and the time for retention, from evidentiary procedures for civil lawsuits. Particularly for cases in which the underlying incident did not involve a crime and therefore did not trigger evidence collection protocols, gathering evidence for a civil lawsuit is critical.

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V. LIFE OF A CIVIL LAWSUIT

A. Service/Initial Response

Service of the summons and complaint starts the clock in a civil lawsuit. In state court, a defendant must generally respond to a complaint within 30 days after being served.41 In federal court, a defendant must generally respond to a complaint within 21 days after being served (if service is not waived) or 60 days after the request for waiver of service was sent (if service is waived).42

A defendant can respond to the complaint by filing either an answer or a motion. An answer will usually include a denial of the material allegations in the complaint and affirmative defenses.43 On the other hand, a motion can be filed in lieu of an answer. In most instances, a demurrer (state court) or Rule 12(b)(6) motion to dismiss (federal court), can be filed on the grounds that the facts as alleged in the complaint fail to state a claim upon which relief can be granted as a matter of law.44 However, even if successful, such motions are often granted with leave to amend the complaint. Leave to amend will not be granted only where the face of the complaint shows that the defect cannot be cured even with an amendment.

B. Discovery

1. General Overview

The period of discovery is the longest portion of a case. This is an important time where all of the parties are given the opportunity to investigate their claims and defenses against each other. The definition of what is discoverable is broad under both state and federal rules: discovery can be sought on any matter, not privileged, which is relevant to the case or “reasonably calculated” to lead to the discovery of admissible evidence.45 Discovery can be sought from anyone, typically parties to the lawsuit, but also including third parties through the use of subpoenas.

Discovery also comes in a variety of forms. There is written discovery, which includes interrogatories, requests for admission, requests for production of documents, and request for itemization of damages. There are also depositions, which may be taken orally or by written questions. Finally, in certain cases, the parties may also retain and utilize experts to provide an opinion on specific issues, such as the reasonableness

41 Cal. Code of Civ. Proc. § 430.40(a). 42 Fed. Rule Civ. Proc., Rules 4(d)(3), 12(a)(1)(A). 43 Cal. Code of Civ. Proc. § 431.30; Fed. R. Civ. Proc., Rule 8(b). 44 Cal. Code of Civ. Proc. § 430.10(e); Fed. R. Civ. Proc., Rule 12(b)(6). 45 Cal. Civ. Proc. § 2017.010; Fed. R. Civ. Proc., Rule 26(b)(1).

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of force used, compliance with policies/procedures, or the extent of damages.

2. Assisting in Discovery Responses

The discovery phase of a case necessarily entails a thorough investigation of the underlying facts to each parties’ claims and defenses. Because of this, clients are often called upon to assist their attorneys in responding to another party’s discovery requests.

 Individuals with knowledge of some aspect of the case may be interviewed and/or prepared by attorneys before they are deposed, or to assist in the preparation of written discovery requests and responses.

 Potential witnesses must be prepared by attorneys before they are presented for deposition, if represented by counsel and/or employees of the agency

 Clients and agency employees may be asked to help gather documents to produce to the opposing party.

 Clients may be asked to review and verify written discovery responses when required by law.

C. Dispositive Motions

A dispositive motion is one that would dispose of all or part of a case before trial, such as a motion for summary judgment or summary adjudication. The moving party must prove that there is no genuine issue of material fact for trial, and thus, the court may dispose of one or all of the issues as a matter of law.46 From the defendant’s perspective, such a motion can be made on the grounds that the plaintiff’s case cannot be fully proven, or that defendant has an affirmative defense.

A motion for summary judgment is the parties’ last opportunity before trial to dispose of all or part of a case. Such motions are often labor intensive, and the culmination of all of a party’s discovery and research efforts. They can also help facilitate settlements, typically while the summary judgment motion is pending.

46 Fed. R. Civ. Proc., Rule 56; Cal. Code of Civ. Proc. § 437c(c).

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D. Settlement?

Settlement can occur at any stage of litigation, but it typically occurs either early in the case or just before trial. Settlements can be accomplished with or without the aid of a third party, such as a private mediator or judicial officer. Some factors to consider in determining whether to settle and for how much include, but are not limited to: (1) the relative strength of plaintiff’s versus defendant’s case, (2) witness credibility, (3) the alleged amount and seriousness of plaintiff’s damages, (4) the likelihood of defense verdict, and (5) the cost of taking the case to trial.

E. Trial

If a case is not completely disposed of by way of a dispositive motion or by settlement, it will proceed to trial. Issues of law are always decided by the judge; however, issues of fact can be decided by the judge or jury. Plaintiffs almost always choose a jury trial in order to attempt to obtain a verdict by inciting jury sympathy. However, if defense witnesses are credible and/or the plaintiff lacks credibility, a jury trial can be favorable. In either case, preparation is key.

Trials in state versus federal court may involve different cost issues. For example, the parties must share the cost of a court reporter and jury fees in state court.

VI. EVALUATING LIABILITY EXPOSURE

A. Use of Force Legal Standards

Different standards are used by the courts to evaluate the appropriateness of the force, depending whether the person is on the street (Fourth Amendment), in custody pending trial (Fourteenth Amendment), or incarcerated after conviction of a crime (Eighth Amendment). The specific standards for each are explained in more detail below.

1. Fourth Amendment’s “Objective Reasonableness” Standard

Under the Fourth Amendment, the standard that is used by courts to evaluate whether the use of force was constitutionally reasonable or unconstitutionally excessive is called the “objective reasonableness” standard. This standard requires courts to engage in a “careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.”47 Thus, “[n]ot every push or shove, even if it may later seem

47 Graham v. Connor (1989) 490 U.S. 386, 396.

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unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.”48

What does all this mean? Given that the objective reasonableness standard is “not capable of precise mechanical definition or mechanical application,”49 the United States Supreme Court has provided several key principles upon which every case must be decided. First, what is “reasonable” is adjudged from the standpoint of “a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”50 Second, because the test is an objective one, the reasonableness of an officer’s actions are assessed “without regard to their underlying intent or motivation.”51 This cuts both ways because an officer’s good intentions will not remedy an unconstitutional use of force; likewise, an officer’s bad intentions will not turn a reasonable use of force into an unlawful one.

Finally, in addition to the above principles, the Supreme Court provided several factors, known as the Graham factors, which should be considered in any given case:

 The severity of the crime at issue;

 Whether the suspect posed an immediate threat to the safety of the officers or others; and

 Whether the suspect was actively resisting arrest or attempting to evade arrest by flight.

Other factors considered by the Ninth Circuit52 include the following:

 Whether a warrant was used;

 Whether the plaintiff resisted or was armed;

 Whether more than one arrestee or officer was involved;

 Whether the plaintiff was sober;

48 Graham, supra, 490 U.S. at 396-397. 49 Id. at 396. 50 Id. (emphasis added). 51 Id. at 397 (emphasis added). 52 Chew v. Gates (9th Cir. 1994) 27 F.3d 1432, 1440 n.5.

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 Whether other dangerous or exigent circumstances existed at the time of the arrest; and

 The nature of the arrest charges.

2. Fourteenth Amendment & Pretrial Detainees

When a person is in custody before trial, and is not yet convicted, he is considered a pretrial detainee and the use of force against him is judged under the due process clause of the Fourteenth Amendment. “[T]he Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.”53 This is because pretrial detainees have not yet been convicted and are therefore not subject to punishment, or the cruel and unusual punishment clause of the U.S. Constitution.

The Supreme Court, however, has not addressed whether pre- versus post- arraignment detainees have different rights. The Ninth Circuit differentiates between pre- and post-arrangement detainees. In cases involving the use of force against a post-arrest, pre-arraignment detainee, the Ninth Circuit will look to the Fourth Amendment’s “objective reasonableness” standard.54 These protections end, however, at “the time such arrestee is released or found to be legally in custody based upon probable cause for arrest.”55 In the latter situation, the Fourteenth Amendment applies.

Thus, in cases involving the use of force against a post-arraignment, pre-trial detainee, courts will look to the following factors in analyzing the force used: (1) the need for application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; (4) the extent of threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of facts known to them; and (5) any efforts made to temper the severity of a forceful response.56

3. Eighth Amendment and Convicted Prisoners

For post-convicted incarcerated persons, the Eighth Amendment applies to evaluate whether a use of force is excessive. The Eighth Amendment prevents the use of cruel and unusual punishment against prisoners. To prevail on an Eighth Amendment claim of excessive force, an inmate must prove that prison officials subjected him to “unnecessary and wanton infliction of pain.”57 The issue is “whether

53 Graham v. Connor (1989) 490 U.S. 386, 395 n.10. 54 Pierce v. Multnomah County (9th Cir. 1996) 76 F.3d 1032, 1043. 55 Id. at 1043. 56 White v. Roper (9th Cir. 1990) 901 F.2d 1501, 1507. 57 Whitley v. Albers (1986) 475 U.S. 312, 319.

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force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”58

Courts may consider the following factors to evaluate whether the applied force at issue was appropriate: (1) the need for application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; (4) the extent of threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of facts known to them; and (5) any efforts made to temper the severity of a forceful response.59

In applying this standard, the Supreme Court has also said that prison officials are entitled to deference regarding the execution of policies and practices adopted by the prison to maintain institutional security.60 Additionally, an Eighth Amendment excessive force claim “necessarily involves a more culpable mental state” than required under the Fourth Amendment.61 “For this reason, under the Eighth Amendment, we look for malicious and sadistic force, not merely objectively unreasonable force.”62

4. Related State Law Claims

In addition to the various federal claims that may be alleged based on a law enforcement officer’s use of force, plaintiffs may also supplement their case with various state law tort claims. The most common torts include assault, battery, and false imprisonment. Civil Code section 52.1 (Bane Act) is also used, which prohibits the use of threats, coercion, or force to interfere with a constitutionally protected act (such as demonstrating), and it allows for the collection of attorneys’ fees by the plaintiff if he or she prevails. In contrast, torts such as assault and battery do not have a provision for recovery of attorneys’ fees.

As long as federal claims are asserted, the inclusion of state law claims should not effect either party’s decision to choose a federal venue. A federal court can assert pendent subject matter jurisdiction over such claims. Conversely, federal claims may be asserted in state court so long as there are also state law claims alleged.

B. Extent of Injuries

The extent of a plaintiff’s injuries can greatly affect the evaluation of liability. In that respect, certain types of evidence can be critical:

58 Id. at 320-21. 59 Id. at 321. 60 Id. at 321-22. 61 Clement v. Gomez (9th Cir. 2002) 298 F. 3d 898, 903. 62 Id.

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 Audio-recorded statements about the incident;

 Photos and videos of the incident;

 Photos of the injuries (or lack thereof);

 Medical records, showing physical and emotional/psychological damage (or lack thereof); and

 Expert evidence to support or rebut the extent of damage.

The bottom line, however, is that all of the evidence can impact the compensatory and punitive damages at stake, and the potential trial or settlement value.

C. Jury Sympathy Factor

Often, plaintiffs hope to exploit the jury’s bias against law enforcement to win their case. This may stem from a juror’s background, including incidents with the police experienced by the juror, or negative media publicity such as from incidents spanning from Rodney King to the more recent Kelly Thomas incident in Fullerton.

Plaintiffs also hope to elicit jury sympathy for their situation and/or their damages. If jurors can imagine themselves in the plaintiff’s position, or feel that the plaintiff was treated unfairly, they will have additional sympathy when the plaintiff testifies about his pain, suffering, difficulty in recovering physically or emotional, or similar items.

These biases and sympathies are difficult to counter, although they can be mitigated in a variety of ways. For example, defendants can show that they have enacted reasonable and sound departmental policies. Defendants can offer credible testimony at trial by officers, and objective evidence such as audio, photographic and video evidence. Defense counsel should also gather impeachment evidence against plaintiffs, when available, in order to help the jury to find the plaintiff less credible than the officer.

D. Report Preparation

It is important for peace officers to draft their reports separately, without any appearance of having coordinated details of what occurred before preparing their reports. Individual agencies may have different policies on whether a video of the incident may be reviewed before the report is prepared. If the agency policy permits review of the video, it should be encouraged. Officers may have “tunnel vision” during an incident, have their recall clouded by adrenalin or fatigue, and/or focus on only their

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small role in the events which transpired, so watching a video encourages accuracy. It should not, however, be substituted for an officer’s memory of events, but only used to assist in refreshing the officer’s recollection of the entire incident.

Variance in individual accounts (both written and verbal) is normal and to be expected. In fact, having overly similar accounts of the incident may create a greater inference of collusion than disparity in the reports.

E. Compliance with Department Policy

Compliance with policies can also help to show that an officer acted reasonably under the circumstances. To do so, defendants may look to and reference statutory guidelines, case law, and departmental policies and procedures.63 Indeed, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”64

In Saucier v. Katz,65 the Supreme Court set forth a two-pronged test to determine whether qualified immunity exists. First, the court asks: “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”66 If no constitutional right was violated if the facts were as alleged, the inquiry ends and the defendant prevails.67 If, however, “a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established . . . . The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”68 Courts now have the discretion to decide which prong of the analysis to address first, in light of the particular circumstances of each case.69

In contrast, evidence that an officer violated departmental policy or regulations will be used as Exhibit A by a plaintiff’s counsel. While violation of regulations is not

63 See Grossman v. City of Portland (9th Cir. 1994) 33 F.3d 1200, 1209 (“where a police officer has probable cause to arrest someone under a statute that a reasonable officer could believe is constitutional, the officer will be immune from liability even if the statute is later held to be unconstitutional.”). 64 Malley v. Briggs (1986) 475 U.S. 335, 341. 65 Saucier v. Katz (2001) 533 U.S. 194. 66 Id. at 201. 67 Id. 68 Id. at 201-02 (quoting Anderson v. Creighton (1987) 483 U.S. 635, 640). 69 See Pearson v. Callahan (2009) 553 U.S. 223, 236.

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equivalent to a constitutional violation70, it can nevertheless be damaging evidence against an officer and his agency. Violation of a regulation, procedure, policy, or training protocol may also prevent the officer from successfully claiming qualified immunity as a defense to suit.

F. Governmental Liability/Immunity

1. Federal Law Claims – Monell Liability

“A municipality may be held liable under a claim brought under [42 U.S.C. § 1983] only when the municipality inflicts an injury, and it may not be held liable under a respondeat superior theory.”71 Thus, a local governmental entity may be subject to direct liability under federal law for equitable relief and compensatory damages if the alleged violation, such as an unlawful use of force, can be attributed to a municipal custom or policy. This Monell liability applies to municipalities and not to the State.

In a suit for compensatory damages, governmental liability is assessed independently from the officers involved. A local government is not entitled to a qualified immunity based upon the good faith of their officials.72 A local government can be liable for a constitutional violation caused by an official policy or custom even where the officials responsible for that policy or custom are entitled to qualified immunity.

Local governments are, however, absolutely immune from punitive damages in section 1983 actions.73 A local government may nonetheless choose to pay the punitive damages awarded against one of its officials.74 However, if a City pays punitive damages associated with a finding of misconduct or unconstitutional conduct of its officers or officials, this may be used as evidence against the City in a Monell liability claim, on grounds that the City ratified or otherwise sanctioned the misconduct.

2. State Law Claims

Generally, a local governmental entity is only liable as “provided by statute.”75 Government Code section 815.2 permits local governmental entities to be sued “for injury proximately caused by an act or omission of an employee of the public entity

70 See Cousins v. Lockyer (9th Cir. 2009) 568 F.3d 1063, 1070 (violation of Cal. Code of Regs., title 15 fails to show liability under 42 U.S.C. § 1983). 71 Gibson v. County of Washoe (9th Cir. 2002) 290 F.3d 1175, 1185 (citing Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 694). 72 Owen v. City of Independence (1980) 445 U.S. 622, 650. 73 City of Newport v. Fact Concerts (1981) 453 U.S. 247, 271-72. 74 Cornwell v. City of Riverside (9th Cir. 1990) 896 F.2d 398, 399; see Cal. Govt. Code § 825(b). 75 Cal. Govt. Code § 815.

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within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”76 However, the entity would also be entitled to the same immunities as its employees in such a case.77 The net result is that a City is liable for assault and battery if the officer is found liable, and if the officer is exonerated, the City is too.

G. When Not to Provide a Defense or Indemnity to an Officer

There may be certain instances where a public entity chooses not to provide a legal defense or indemnity to one of its employees being sued, such as the following circumstances:

 Officer acted in bad faith

 Officer acted outside the scope of his or her employment78

o Note, however, that if an officer uses his authority as law enforcement to carry out a tortious act upon another, the employer may be found vicariously liable under the factual circumstances.79

 Officer has a history of acting in bad faith or outside the scope of his or her employment (i.e., Pitchess issues)

 Officer is not cooperating in his defense

 Officer violated a statute

Typically a legal defense will be provided even when indemnification may be denied. This may occur in situations when the officer was terminated for his conduct, which was on duty and in-uniform. When an officer is also prosecuted, the agency often declines to provide either a legal defense or indemnification.

76 Id., § 815.2(a). 77 Id., § 815.2(b). 78 See Cal. Govt. Code § 825(a). 79 Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202 (holding that a city may be held liable on theory of respondeat superior when an on-duty police officer misused his authority by raping a woman whom he had detained while on duty).

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VII. WAYS TO SAVE COSTS IN LITIGATION

Defending lawsuits can be expensive. There are some way to save costs of litigation before lawsuits arise. For example, public entities can invest in additional employee training to avoid mishaps, and community outreach programs to help shape public perception about the goals and challenges of law enforcement. However, these measures won’t prevent accidents from occurring or frivolous lawsuits from being filed.

Of course, using a reliable law firm that is efficient and specialized in the area of defense will also help to keep attorneys’ fees and costs in check. Some agencies also use a third party administrator to review billing entries and trim any duplicate or excess charges.

Entities can and should formulate plans and strategies for dealing with vexatious litigants who file multiple suits. For example, having a policy against nuisance settlement may discourage people who have to actually litigate the entire case in order to obtain a judgment, if any. Public entities can also pursue costs against plaintiffs after prevailing on a dispositive motion or at trial, in both state and federal lawsuits, which may help to discourage repeat customers.

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League of California Cities 2012 League of California Cities Annual Conference 46 City Attorneys’ Track San Diego Convention Center, San Diego

Land Use and CEQA Litigation Update

Thursday, September 6, 2012 General Session; 1:00 – 2:30 p.m.

Andrew W. Schwartz, Shute Mihaly & Weinberger

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

League of California Cities 2012 League of California Cities Annual Conference 48 City Attorneys’ Track San Diego Convention Center, San Diego

League of California Cities 2012 Fall Conference September 6, 2012 San Diego, California

LAND USE AND CEQA LITIGATION UPDATE

(April 2012 to Present)

Andrew W. Schwartz Shute, Mihaly & Weinberger LLP 396 Hayes Street San Francisco, CA 94102 Email: [email protected] Phone: (415) 552-7272

TABLE OF CONTENTS

LAND USE ...... 1

Federal Preemption of State Building Codes ...... 1

Building Industry Ass’n of Washington v. Washington State Building Code Council (Jun. 25, 2012) 683 F. 3d 1144 ...... 1

Substantive and Procedural Due Process Challenge to Building Moratorium ...... 2

Samson v. City of Bainbridge Island (Jun. 15, 2012) 683 F. 3d 1051 ...... 2

Streamlined Island Annexation Process ...... 3

Attorney General Opinion (Kamala Harris and Marc Nolan, Jun. 1, 2012, No. 10-902) ...... 3

County Ban on Medical Marijuana Dispensaries Preempted ...... 5

County of Los Angeles v. Alternative Medicinal Cannabis Collective (Jul. 2, 2012) 207 Cal. App. 4th 601 ...... 5

City Regulation of Medical Marijuana Collectives and Prohibiting Establishment of New Collectives Upheld ...... 6

420 Caregivers, LLC v. City of Los Angeles (Jul. 3, 2012) 207 Cal. App. 4th 703 ...... 6

Rialto Citizens for Responsible Growth v. City of Rialto (July 31, 2012) ---Cal. App. 4th ---, 2012 WL 3089826 ...... 8

CEQA ...... 10

Procedural Issues Documents Included in Administrative Record ...... 10

Consolidated Irrigation District v. Superior Ct. of Fresno County (Apr. 26, 2012, modified May 23, 2012) 205 Cal. App. 4th 697 ...... 10

Right to Appeal; Preparation of Subsequent EIRs ...... 11

Abatti v. Imperial Irrigation District (Apr. 24, 2012 ) 205 Cal. App. 4th 650 ...... 11

Proper Evidence to Support a Demurrer ...... 13

Jamulians Against the Casino v. Randell Iwasaki (Apr. 26, 2012) C067138 ...... 13

Retriggering 180-day Limitation Period for CEQA Challenges ...... 14

Van De Kamps Coalition v. Board of Trustees of Los Angeles Community College District (Jun. 5, 2012) --- Cal.App.4th ---, B234955 ...... 14

Exhaustion of Administrative Remedies Exhaustion Applies to Categorical Exemptions ...... 16

Tomlinson v. County of Alameda (Jun. 14, 2012) 54 Cal. 4th 281 ...... 16

Validity of Tolling Agreements ...... 17

Salmon Protection and Watershed Network v. County of Marin (Apr. 20, 2012) 205 Cal. App. 4th 195 ...... 17

Deliberative Process Privilege: Adequacy of EIRs and Res Judicata...... 19

Citizens for Open Government v. City of Lodi (Apr. 24, 2012) 205 Cal. App. 4th 296 ...... 19

Is Environmental Review Required and How Much? Ministerial Acts Exempt from Environmental Review ...... 21

Sierra Club v. Napa County Board of Supervisors (Apr. 20, 2012) 205 Cal. App. 4th 162 ...... 21

Adequacy of Environmental Document Baselines for Environmental Impacts ...... 23

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (Apr. 17, 2012) 205 Cal. App. 4th 552 ...... 23

Substantial Evidence Test for Certification of EIR ...... 25

City of Hayward v. Board of Trustees of the California State University (May 30, 2012) 207 Cal. App. 4th 446 ...... 25

Attorneys’ Fees-Award of Private Attorney General Fees to Attorney who is Member of Suing Group ...... 27

Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg (June 4, 2012) 206 Cal. App. 4th 988 ...... 27

Award of Attorneys’ Fees in Enforcement Action Between Public Entities ...... 28

City of Maywood v. Los Angeles Unified School District (July 18, 2012) 207 Cal. App. 4th 1075 ...... 28

CEQA Guidelines Update ...... 29

Proposed CEQA Guideline Section 15183.3: Streamlining for Infill Projects ...... 29

EMINENT DOMAIN ...... 31

Severance Damages ...... 31

City of Livermore v. Baca (May 16, 2012) 205 Cal. App. 4th 1460 ...... 31

iii

LAND USE

Federal Preemption of State Building Codes

Building Industry Ass’n of Washington v. Washington State Building Code Council (Jun. 25, 2012) 683 F. 3d 1144

HOLDING

Washington State’s building code, which required new buildings to meet heightened energy conservation goals, was not preempted by the federal Energy Policy and Conservation Act.

SUMMARY

The Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. section 6295 et seq., establishes nationwide energy efficiency standards for certain residential home appliances, and expressly preempts state standards requiring greater efficiency than the federal standards. However, the EPCA exempts from preemption state building codes promoting energy efficiency, so long as those codes meet seven statutory conditions. (§ 6297 (f)(3).) Washington’s Building Industry Association challenged Washington State’s building code (WSBC), alleging that the code failed to meet two of those conditions, subsections 6297(f)(3)(B) and (C).

Subsection (B) states that a state building code cannot require energy consuming fixtures such as water heaters and refrigerators to be more efficient than the standards established by the US Department of Energy. The WSBC requires builders to reduce a building’s energy use by a certain amount and provides several options to satisfy that requirement, including installing appliances that exceed federal energy efficiency standards. The Building Association argued that because installing these appliances was the least expensive option, the WSBC “required” builders to use products exceeding federal standards. The Ninth Circuit disagreed, holding that creating an economic incentive to install energy efficient products was not the same as requiring it. Section 6297(f)(3)(B) is violated only when a code requires a builder, as a matter of law, to select a particular product or option.

Subsection (C) states that local building codes must grant credits on the basis of how much each option reduces energy use or cost, without favoring particular products or methods. It requires that the credits be allowed on the basis of “one-for-one equivalent energy use or equivalent cost.” The Building Association argued that the credits were not granted on a precise one-for-one equivalent energy use basis. The Ninth Circuit rejected the argument, finding that even where there is not an exact match, some approximation is necessarily included in the concept of equivalence when comparing methods that use different products to obtain an energy conservation goal.

1 53

DISCUSSION

1. A state building code can promote more efficient energy standards through use of appliances that surpass federal energy efficiency standards, so long as it does not require builders to select a particular product.

2. Some approximation is allowed in meeting the one-for-one equivalent energy use credits of the EPCA.

Substantive and Procedural Due Process Challenge to Building Moratorium

Samson v. City of Bainbridge Island (Jun. 15, 2012) 683 F. 3d 1051

HOLDING

City ordinances establishing and extending a development moratorium were not arbitrary and unreasonable and thus did not violate federal substantive and procedural due process rights, even where they violated the state constitution.

SUMMARY

To facilitate an update of its comprehensive Shoreline Master Program, the City of Bainbridge Island imposed a moratorium on all shoreline and over-water development in Blakely harbor. The City passed the moratorium ordinance on an emergency basis, before holding a public hearing. The City extended the moratorium three more times, holding a public hearing before each extension.

Property owners Samson et al. (Samson) challenged the moratorium in state court. The court found in Samson’s favor, holding that the “rolling moratoria” violated the Washington State constitution. The City appealed and won a stay of judgment pending appeal. While the stay was pending, the City enacted an ordinance again extending the moratorium, and then permanently amended the Shoreline Master Program to prohibit development in Blakely Harbor. The Court of Appeals ruled for the City. The Washington Supreme Court held that the rolling moratoria violated the state constitution, but in a separate case, two years later, the Court of Appeals upheld the permanent ban on development imposed in the Shoreline Master Program and the Supreme Court denied review.

Samson brought suit in federal district court under 42 U.S.C. section 1983, alleging that the moratoria denied federal substantive and procedural due process. The District Court granted summary judgment for the City and Samson appealed.

The Ninth Circuit affirmed. The court held that the rational basis test, rather than heightened scrutiny, applied to Samson’s substantive due process claim because Samson’s

2 54

interest in developing their property was strictly economic, and therefore not a “fundamental right.” The court determined that the City’s justifications for adopting and extending the moratorium—protecting salmon habitat, preserving Blakely Harbor as the last undeveloped harbor in Puget Sound, and preventing a flurry of permit applications before the Shoreline Master Program was updated—were not clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Accordingly, the City’s action satisfied the rational basis test. The court refused to incorporate Washington State constitutional provisions in federal substantive due process doctrine.

The court also rejected Samson’s procedural due process claim because the City adhered to its ordinary protocols for passing ordinances when it passed the moratoria. The ordinances were legislative in nature because they applied generally to all owners of shoreline property on Bainbridge Island. For legislative acts, federal due process is satisfied when the legislative body performs its responsibilities in a manner according to law.

DISCUSSION

1. The rational basis test applies to substantive due process challenges to development moratoria. Although the rational basis test does not require it, in adopting land use regulations, agencies should identify the purpose of the regulation and how the regulation will achieve the purpose in the preamble to the ordinance.

2. Violations of state constitutional law are not per se infringements of federal constitutional rights. Section 1983 does not provide redress in federal court for violations of state law.

3. An emergency, temporary moratorium on development does not violate federal procedural due process where a property owner is given notice of the moratorium and provided an opportunity to be heard within a reasonable time before or after the moratorium is imposed. Wherever possible, however, agencies should endeavor to give notice and a hearing before the moratorium is imposed to minimize procedural due process challenges.

Streamlined Island Annexation Process

Attorney General Opinion (Kamala Harris and Marc Nolan, Jun. 1, 2012, No. 10-902)

HOLDING

Government Code section 56375.3 allows a city to streamline the annexation of an unincorporated island of territory that is entirely or partially surrounded by the city. A Local Agency Formation Commission (LAFCO), however, may not split up an unincorporated island of more than 150 acres into smaller segments of 150 acres or less to

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use the streamlined procedures and thereby avoid the landowner/voter protest proceedings that would otherwise be required.

SUMMARY

The County LAFCO is responsible for approving annexation of unincorporated territory by a city. While annexation typically occurs through a process that includes a petition, an initial public hearing, and a post-approval public hearing to record protests from landowners, a LAFCO may use streamlined procedures to approve a proposed annexation and waive the protest proceeding if a city initiates an annexation proposal between January 1, 2000 and January 1, 2014, and the LAFCO determines that the area to be annexed is an “island” of territory that is 150 acres or less.

The term “island” is not defined in the Government Code. In her Opinion, the Attorney General considers a territory to be an “island” even if it is not completely surrounded by a city. The Opinion defines an “island” as an area of unincorporated territory that is (1) completely surrounded, or substantially surrounded—to a large degree, or in the main—either by the city to which annexation is proposed or by the city and a county boundary, or the Pacific Ocean, or (2) completely surrounded by the city to which annexation is proposed and adjacent cities. The Opinion further concludes that an “island” may not be part of another island that is surrounded or substantially surrounded in this manner.

The Opinion does not propose a mathematical definition of “substantially surrounded.” It notes, however, that courts have found territories that are as little as 68% surrounded to be substantially surrounded. The Opinion also notes that a territory that is contiguous to another unincorporated territory could still be an island, so long as it is “substantially surrounded.”

To qualify for the streamlined annexation procedures, the annexed territory must be 150 acres or less and may not be part of a larger island that is itself surrounded. For example, if a particular area was substantially surrounded by a city, but was part of a larger island that was also substantially surrounded and the combined acreage of the two exceeded 150 acres, the smaller portion could not be split off and annexed under the streamlined procedures. The purpose of this distinction is to preserve citizen participation in the annexation process for larger parcels and to avoid circumvention of those protections by segmenting unincorporated territory into smaller parts.

DISCUSSION

A city may not break an island of unincorporated territory into smaller pieces to allow for a streamlined annexation process of the smaller pieces.

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County Ban on Medical Marijuana Dispensaries Preempted

County of Los Angeles v. Alternative Medicinal Cannabis Collective (Jul. 2, 2012) 207 Cal. App. 4th 601

HOLDING

The Court of Appeal construed state medical marijuana laws broadly to find that a County’s complete ban on all medical marijuana dispensaries, including collectives and cooperatives authorized under Health and Safety Code section 11362.775, conflicts with and is preempted by California law.

SUMMARY

Los Angeles County banned medical marijuana dispensaries in all unincorporated areas of the County. The County then filed a nuisance suit under the new ban, enjoining Alternative Medical Cannabis Collective from operating a medical marijuana dispensary, and alleging that the Collective was operating a dispensary not protected by state law. The County also sought declaratory relief that the Collective violated the County’s zoning ordinance by operating a dispensary. The trial court agreed with the County and the Collective appealed.

California’s Compassionate Use Act and Medical Marijuana Program (Program) provides that qualified patients and caregivers will not be subject to criminal sanctions or nuisance actions on the sole grounds that they associate collectively or cooperatively to cultivate medical marijuana. (H & S Code § 11362.775.) Even though the Program does not provide express protections for dispensaries, the Court of Appeal found that the County’s regulations were preempted by state law. The court determined that dispensaries are included in the protections against nuisance actions because other provisions of the Program indicate that the Legislature contemplated that collective or cooperative cultivation projects would likely be dispensing medical marijuana.

The court rejected the County’s argument that state law only grants immunity from criminal prosecution to dispensaries and collectives and does not proscribe civil nuisance actions. Section 11570 of the Program, which is incorporated by reference into section 11362.775, confers immunity from civil nuisance abatement actions. The Court of Appeal also relied on Civil Code section 3482, which provides that nothing expressly authorized by state statute can be deemed a nuisance.

The court further held that the County’s total ban on dispensaries could not be validly based on the Program’s preservation of local agencies’ authority to restrict or regulate the location of dispensaries and collectives granted under Health and Safety Code sections 11362.768 and 11362.83. An outright ban goes well beyond the right to regulate or restrict. Next, the court denied the County’s claim that section 11362.5(b)(2) of the Program, which protects from preemption legislation prohibiting persons from endangering others or diverting medical marijuana for non-medical purposes, gave the County the right to ban medical marijuana dispensaries engaged in medical uses. Finally,

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the court found that the County’s ban on dispensaries could not escape preemption merely because it was codified in a zoning law.

DISCUSSION

1. Outright bans on medical marijuana dispensaries are preempted by state law.

2. Local agencies can regulate the location of medical marijuana dispensaries and may regulate the dispensation of marijuana for non-medical use. They are prohibited from most other restrictions on dispensing medical marijuana.

City Regulation of Medical Marijuana Collectives and Prohibiting Establishment of New Collectives Upheld

420 Caregivers, LLC v. City of Los Angeles (Jul. 3, 2012) 207 Cal. App. 4th 703

HOLDING

In a decision potentially conflicting with Los Angeles County v. Alternative Medicinal Cannabis Collective summarized above, the court interpreted state medical marijuana laws narrowly to hold that a city ordinance that prohibited creation of new medical marijuana collectives and required existing collectives to meet new regulatory requirements, including collection of information on their users, did not violate equal protection, privacy, or due process rights, and was not preempted by state law.

SUMMARY

The City of Los Angeles enacted an Interim Control Ordinance (ICO) prohibiting the establishment of or operation of a medical marijuana dispensary within City limits. However, it created an exception for dispensaries established before 2007 that filled out certain paperwork within 60 days of the ICO’s adoption. The City then passed a permanent ordinance capping the total number of medical marijuana collectives in city limits and requiring collectives to register with the city. Only collectives that started operation before a certain date, met listed requirements, and had submitted paperwork in compliance with the ICO were eligible to register. Other collectives were required to cease operation but could enter a lottery for a future spot. The permanent ordinance also contained a sunset clause stating that it would expire in two years, at which point, if the ordinance was not extended, all collectives must cease operation. Various collectives sought to enjoin the ordinance on equal protection, due process, right to privacy, and state law preemption grounds. The trial court granted a preliminary injunction preventing enforcement of ordinance. The City appealed.

The Court of Appeal found the equal protection challenge to be meritless. The ordinance fit squarely under the umbrella of an economic regulation creating a classification that bore a rational relationship to state interest. The ordinance grandfathered

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in collectives that had demonstrated a willingness to engage in lawful activity by registering with the City. The court found the registration requirement to be based on a legitimate state interest in reducing crime and unlawful behavior that, according to testimony from police officers, was associated with collectives.

The court also rejected the collectives’ procedural due process claim finding that the collectives had no statutory right or entitlement to collectively cultivate medical marijuana, which was a prerequisite to asserting a procedural due process right. The City was not required to provide an administrative appeal process in the ordinance. The right to defend against civil abatement actions or criminal prosecution provided the collectives with adequate due process. That the City sent letters to collectives that had not provided the required registration information to the City, alerting them that the City Attorney believed that they were now in violation of the ordinance, did not violate due process rights because the City would still be required to file a lawsuit against an alleged violator, where the collectives would enjoy full procedural protections.

Nor did the City violate the California Constitutional privacy rights of the collectives or their individual members by requiring the collectives to collect, maintain, and provide to police upon request, documentation of names, addresses, and phone numbers of patients, patients’ government issued medical marijuana cards, and doctor recommendations for cards. The collectives are closely regulated businesses, the court found, with lowered expectations of privacy, and information sought from collectives was the same as that required from traditional pharmacies. The information the City sought from individuals was limited and non-intimate in nature and was already subject to disclosure to traditional health care providers.

The California Compassionate Use Act and the Medical Marijuana Program Act (Program), did not preempt the City’s ordinance through express or implied occupation of an entire area of law. The court construed the Program narrowly to grant limited criminal immunity and noted that the Program expressly acknowledges the potential validity of other legislation regulating medical marijuana’s use, growth, and distribution.

The court found that the provisions of the City’s ordinance governing the location and operation of collectives and a “sunset provision” that would ban all collectives of four or more members, were not preempted because the Program expressly allows criminal enforcement of local ordinances regulating the location, operation, or establishment of collectives. (H & S Code § 11362.83(a), (b).) The ability to regulate establishment of collectives, the court found, included the power to regulate creation of collectives, including the number and location of collectives allowed. Moreover, the court upheld the sunset clause because the Program did not create any affirmative right to operate collectives; it merely afforded specific affirmative defenses to criminal sanctions. Therefore, it did not mandate any local agency to allow or authorize collectives. The court noted that the sunset provision would not result in a ban of all collectives because it would only prevent the formation of new collectives of four or more people, and would not apply to collectives of three or fewer members.

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DISCUSSION

1. State law providing affirmative defenses to criminal sanctions for operating medical marijuana collectives does not create a right to operate a medical marijuana collective.

2. Local agencies may continue to regulate the location, operation, or establishment of medical marijuana collectives by imposing criminal sanctions for violation of local requirements.

3. Local agencies may limit the number and location of medical marijuana collectives within their jurisdiction.

4. Medical marijuana collectives are “closely regulated businesses” and therefore the collectives and their members have diminished privacy expectations. Under its police power, local ordinances can require members of collectives to provide the same information required by traditional health care providers and pharmacies.

Rialto Citizens for Responsible Growth v. City of Rialto (July 31, 2012) ---Cal. App. 4th ---, 2012 WL 3089826

*Certified for partial publication.

HOLDING

Rialto Citizens for Responsible Growth had public interest standing to challenge a commercial retail project. The trial court erroneously invalidated the City of Rialto’s plan amendments and ordinance approving the development agreement. Even though the City had violated the Planning and Zoning Law, its errors and omissions did not result in prejudice and substantial injury and a different result was not probable in their absence.

SUMMARY

The City of Rialto approved a commercial development project that included a Wal-Mart Supercenter. Rialto Citizens for Responsible Growth petitioned the trial court for a writ of administrative mandate invalidating several project approvals, including the City’s certification of the project’s final EIR, several resolutions amending the City’s general plan and the specific plan governing the project site, and an ordinance approving a development agreement for the project. The trial court ruled in favor of Rialto Citizens and issued a preemptory writ invalidating the challenged resolutions and ordinance. Wal-Mart and the City appealed.

On appeal, Wal-Mart argued that Rialto Citizens lacked both “beneficially interested” and “public interest” standing to challenge the project approvals. The Court of Appeal chose not to address whether Rialto Citizens had beneficial interest standing because it found that the group had public interest standing. Public interest standing is an

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exception to the general rule that party must be beneficially interested in the issuance of a writ in order to petition for the writ. The public interest exception applies where the question is one of right, and the object of the action is to enforce a public duty. To meet the public interest exception the plaintiff must be interested as a citizen in having the laws executed and the public duty enforced.

Wal-Mart argued that Rialto Citizens had not met the four-part test, set forth in Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal. App. 4th 734, for whether a corporate entity has public interest standing. The Court of Appeal recognized that Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th 155 had disproved Waste Management to the extent that it held corporate parties to heightened scrutiny when they assert public interest standing. Absent compelling policy reasons to the contrary, corporate entities are as free as natural persons to litigate in the public interest, so long as their business or competitive interests are not an impediment.

The Court of Appeals held that because Rialto Citizens was a non-profit corporation devoted to promoting social welfare and because the City’s actions would have long-term environmental effects, the City had a public duty to comply with the Planning and Zoning Law. Rialto Citizens had public interest standing to challenge its actions, even though none of its members had a direct or substantial beneficial interest in the issuance of the writ.

However, even though the City’s notice of the public hearing before the city council was defective, there was no showing that the defective notice was prejudicial. Thus, the Court of Appeal held, the trial court incorrectly invalidated the City’s amendments and development agreements. As the party seeking to set aside the City’s actions, Rialto Citizens bore the burden of demonstrating prejudice, substantial injury, and the probability of a different result, but failed to do so.

Likewise, even though the City erroneously approved the development agreement without finding that its provisions were consistent with the general plan and the specific plan governing the project, Rialto Citizens again failed to demonstrate that the finding was prejudicial or caused substantial injury, or that absent the City’s omission the result in the case would have been different.

DISCUSSION

Business and non-profit corporations may have standing in an action if they are acting as “citizens interested in having the laws executed and the public duty enforced.” By doing so they may fall into the “public interest exception” to the classic beneficial interest requirement to standing, so long as there are no compelling policy reasons, such as business or competitive interests, to the contrary.

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CEQA

Procedural Issues Documents Included in Administrative Record

Consolidated Irrigation District v. Superior Ct. of Fresno County (Apr. 26, 2012, modified May 23, 2012) 205 Cal. App. 4th 697

HOLDING

Under Public Resources Code section 21167.6 (e), an agency responding to a CEQA challenge should include in the administrative record documents referenced in a comment letter and either previously submitted to the agency or identified by web page address in the letter, as well as tape recordings of public agency hearings, where written transcripts are not available. The agency is not required to include subconsultants’ files that are not in the agency’s possession.

SUMMARY

The Consolidated Irrigation District (“CID”) challenged the City of Selma’s EIR for a commercial project. CID sought to augment the administrative record on the grounds that the City had omitted documents required by Public Resources Code section 21167.6(e).

The Court of Appeal held that for the purposes of section 21167.6(e)(10), tape recordings of public agency hearings qualify as “other written materials” and should be included in the record where no written transcript exists. The court further held that if both written minutes and a transcript exist, then both should be included in the record.

Under Public Resources Code sections 21167.6(e)(6) and (e)(7), the agency must include in the record of the administrative proceeding “written comments received” and “written evidence submitted.” “Written comments received” include letters sent to the agency. Documents cited in those letters were not written comments. They may, however, constitute “written evidence submitted” that must be included in the record. Accordingly, the court held that the following documents must be included in the record: (a) documents referenced in a comment letter along with a specific website address identifying the document, and (b) documents that previously had been provided to the agency, so long as the comment letter named the document, requested that it be included, and offered to provide it in hard copy.

CID also sought to include subconsultants’ files under section 21167.6(e)(10) on the grounds that of the agency relied on them in preparing the EIR. Section 21167.6(e)(10) states that the record of proceeding shall include copies of studies or other documents relied upon in any EIR prepared for the project and either made available to the public during the public review period or included in the public agency files on the project. The court found that the agency must include the subconsultants files only if the agency controls or actually possesses the files.

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In the absence of actual possession, the court looked to the contract between the City and the primary consultant to determine if the City had constructive possession because it controlled the records—either directly or through another person. The Court held that the mere possibility of control over the subconsultants’ work was not sufficient to establish constructive possession. Accordingly, the subconsultants’ files did not fall under section 21167.6 (e)(10).

DISCUSSION

1. The “written materials” that must be included in the administrative record for a CEQA challenge is interpreted broadly. In addition to including audio recordings of public meetings where no written transcript exists, the agency should include power point presentations, video recordings and other less traditional documents. If a transcript and minutes exist for a given meeting, include both in the record.

2. If an agency does not want files of its consultants to be considered public records, it should word its contract so that it is clear the agency lacks actual and constructive possession of the consultant’s files. Absent a clear indication of actual or constructive possession, the fact that the consultant would probably provide the files upon request is not sufficient to establish possession by the agency.

3. If an agency is provided with a reference to a specific website, then the document available at that web address is “submitted written evidence” and should be included in the record. Links to a general website, such as the home page of an organization that wrote a report, do not render that report “submitted.”

Right to Appeal; Preparation of Subsequent EIRs

Abatti v. Imperial Irrigation District (Apr. 24, 2012 ) 205 Cal. App. 4th 650

HOLDING

A judgment rendered on a CEQA claim is a final judgment that may be appealed, even where the petitioner dismisses other non-CEQA claims with or without prejudice, unless the parties have entered into an agreement permitting litigation of the dismissed claims in the future. Once an agency approves an EIR or negative declaration, a subsequent EIR is not required unless certain statutorily proscribed conditions occur, such as substantial changes to the project.

SUMMARY

In 2006, the Imperial Irrigation District prepared an EIR for a regulation pertaining to its Equitable Distribution Plan (EDP), which directed the distribution of water in the event of a water shortage. Concurrently, the District adopted a negative declaration in

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which it concluded that the EDP would not have a significant effect on the environment. In 2007, the District adopted regulations to implement the EDP. In 2008, the District adopted new regulations which revised the 2007 regulations. The District determined that the 2008 regulations did not require additional environmental review.

Appellants sued maintaining that the District failed to comply with CEQA by failing to prepare a supplemental EIR when it adopted the 2008 regulations. The trial court determined that there was substantial evidence to support the District’s decision not to conduct additional environmental review. Appellants dismissed their remaining non- CEQA claims without prejudice and the court entered a judgment on the CEQA claim for the District.

The Court of Appeal held that the judgment was appealable despite the dismissal of certain claims as long as the parties had not agreed to preserve the option of litigating the dismissed claims in the future. The court distinguished Don Jose’s Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115 and its progeny, which held that a cause of action that is dismissed without prejudice remains pending and is not appealable, on the grounds that in those cases, the parties had entered stipulations which left open the possibility that the parties may litigate those dismissed claims in the future. Here, the parties did not so stipulate.

The Court of Appeal also rejected appellants’ claim that the District was required to prepare a supplemental EIR under CEQA section 21166. That section sets forth criteria for requiring supplemental environmental review for changes to a project that was originally analyzed in an EIR. The District, however, based its decision that supplemental review was not required on CEQA Guidelines section 15162, which provides criteria for requiring an agency to prepare a subsequent environmental review after it has certified an EIR or a negative declaration. Appellants argued that the Guidelines overstepped their authority by extending CEQA section 21166 to situations where a negative declaration was initially issued, whereas section 21166 only specifies when supplemental environmental review is required after an EIR is certified. Because the District initially issued a negative declaration for the project, and not an EIR, appellants asserted that the District was required to conduct a subsequent environmental review.

The court disagreed in reliance on Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, where the court held that Guidelines section 15162 does not exceed its statutory authority and is consistent with and furthers the purposes of section 21166 and CEQA. Accordingly, an agency is not required to prepare a subsequent environmental review for a project for which it has previously issued a negative declaration, unless certain circumstances are present, such as a substantial change to a project. The court also found that the District’s decision that its approval of a water supply contract with the owner of a new power plant was not a substantial change was supported by substantial evidence, and therefore did not require subsequent environmental review.

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DISCUSSION

1. Dismissed claims are not “pending” and a party can appeal a judgment as to non-dismissed claims, provided that the parties have not agreed to litigate the dismissed claims in the future.

2. After an agency has certified an EIR or a negative declaration, an agency is only required to prepare a supplemental environmental impact report if the statutorily prescribed circumstances of CEQA section 21166 or CEQA Guidelines section 15162 occur.

3. The court reviews an agency’s decision to prepare additional environmental review under a deferential standard, in contrast to the de novo standard applied to an agency’s decision to prepare an EIR in the first instance. Unless there is substantial evidence demonstrating that the new action significantly changes the previous action, Guidelines section 15162 does not mandate a supplemental environmental review.

Proper Evidence to Support a Demurrer

Jamulians Against the Casino v. Randell Iwasaki (Apr. 26, 2012) C067138 *Ordered not to be officially published Aug. 8, 2012.

HOLDING

A trial court cannot sustain a demurrer based on the existence or contents of a document not included in the pleadings unless it has taken proper judicial notice of the document.

SUMMARY

Petitioners challenged a settlement agreement between Caltrans and the Jamul Indian Village (Tribe) granting a permit for the Tribe’s proposed highway interchange on the grounds that Caltrans failed to conduct environmental review of the agreement. Caltrans demurred to the petition on the grounds that the Tribe was an indispensible party and petitioners failed to name the Tribe as a real party in interest.

In support of its demurrer, Caltrans requested that the court take judicial notice of the agreement. However, Caltrans cited no authority that the court could take judicial notice of the truth of the agreement’s contents. The trial court, citing to the contents of the agreement, sustained the demurrer and dismissed the action.

The Court of Appeal reversed. Although the court did not discuss the criteria for judicial notice, it held that the trial court could not consider documents extrinsic to the pleadings. The court reasoned that it cannot use judicial notice as a means of converting a demurrer into a summary judgment proceeding.

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DISCUSSION

In ruling on a demurrer, a trial court cannot consider evidence outside of the pleadings unless the evidence is appropriate for judicial notice.

Retriggering 180-day Limitation Period for CEQA Challenges

Van De Kamps Coalition v. Board of Trustees of Los Angeles Community College District (Jun. 5, 2012) --- Cal.App.4th ---, B234955

HOLDING

A CEQA action was time-barred because the challenged decision merely implemented a project that had been reviewed under CEQA and approved more than 180 days before suit was filed.

SUMMARY

A “project” under CEQA may include multiple discretionary approvals by government agencies. “Approval” means the decision that commits the lead agency to a definite course of action in regard to a project. The date of approval occurs when the agency first exercises its discretion to approve a permit application, execute a contract, or grant financial assistance, not when the last such discretionary decision is made. Where an agency approves a project and files a notice of determination (NOD), the statute of limitations for actions challenging CEQA review of the project is 30 days; where the agency does not file an NOD, the statute of limitations is 180 days.

The Los Angeles Community College District (District) prepared an EIR for a proposed satellite campus and approved the project. In 2008, the District realized that it would not be able to operate the facility as a satellite campus due to a budgetary shortfall, but recognized that the site could still be used for educational purposes. In 2009, the District postponed the project and authorized the lease of the property to another entity for an educational use if the District Board of Directors gave its approval. The District also purchased adjoining property that had potential use for the project, but stated that it had no current plans to develop the land (the decision to lease the property and purchase adjoining property, collectively, the “2009 decisions”). The District did not prepare a new EIR before the 2009 decisions because the leased site would have the same educational use analyzed in the original EIR for the satellite campus.

In 2010, less than 180 days after the 2009 decisions, petitioner challenged the adequacy of environmental review for the project. After petitioner filed suit, the District formally approved a lease of the property and amended its purchase agreement for the adjoining property (the “2010 decisions”). More than 180 days after the 2009 decisions, petitioner filed a second petition contending that the District failed to conduct environmental review of the 2010 decisions.

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While the first suit was timely and not addressed by the Court of Appeal here, the court refused to allow petitioners to amend their first petition to include the claims based on the 2010 decisions. The court found that the 180-day limitations period started running with the 2009 decisions, not when the District executed the lease, and hence petitioner’s action was time-barred. The Court held that the District’s decision to approve and sign a specific lease was not a new and separate project, but was merely a discretionary act in furtherance of the project, which was to lease the property to some other party. Similarly, the District’s approval of changes to the purchase agreement for the new parcel was not a separate project; it was a step in furtherance of the project to lease the property and did not substantially change the overall project.

The court rejected petitioner’s contention that a new limitations period was triggered at the signing of the lease because it was only at that point that previously identified traffic impacts would be understood. The court found that the traffic impacts of the project had already been identified in the EIR before the District approved the project and were not a substantial change that would restart the 180-day statute of limitations.

Finally, the court rejected petitioner’s claim that the District’s approval of expenditures to change slightly the design of the property to accommodate new tenants— enclosure of a balcony and addition of a driveway—substantially changed the project such that additional environmental review would be required. The second action was therefore time barred. (The opinion did not address the merits of the first action.)

DISCUSSION

1. After initial project approval, subsequent approvals or decisions regarding a project, such as minor changes to design and execution of a lease that has already been nominally approved, are not new or separate projects requiring CEQA analysis and do not retrigger a limitations period for challenge under CEQA. CEQA analysis must be completed before the first decision-making step, not the last.

2. If a project is substantially changed after environmental review is completed, a new limitations period starts. Impacts that had already been considered in the environmental document for the initial discretionary decision for the project do not qualify as substantial changes.

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Exhaustion of Administrative Remedies Exhaustion Applies to Categorical Exemptions

Tomlinson v. County of Alameda (Jun. 14, 2012) 54 Cal. 4th 281

HOLDING

Where a petitioner fails to challenge an agency’s decision that a project is categorically exempt from CEQA review during the public comment period or before the close of the public hearing on the project application, it fails to exhaust its administrative remedies and is barred from later challenging the decision in court.

SUMMARY

A developer applied to the county planning department for approval to build a housing subdivision. The county deemed the subdivision to be infill development and accordingly exempt from CEQA review under CEQA Guidelines section 15332. The definition of infill development includes projects that are within city limits.

The developer gave written notice of the proposed project to neighbors and parties of interest, stating that the county had determined that the project was infill development and thus categorically exempt from CEQA, and that, “if you challenge the decision of the Commission in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Planning Commission at or prior to the public hearing.”

Public Resources Code section 21177(a) provides that a public agency’s environmental review for a proposed project can be challenged in court only on grounds that were raised (a) during the public comment period for CEQA review, or (b) prior to the close of the public hearing on the project before the issuance of a notice of determination. At the public hearing on the development application for the project, residents expressed concerns about adverse impacts of the project but did not object to the categorical exemption. At the hearing the county determined that the project was categorically exempt from CEQA review and approved the application.

Petitioners sued, contending that the in-fill categorical exemption did not apply because the project was in an unincorporated part of the county and therefore not “within city limits.” The Superior Court found against petitioners, holding that they had not exhausted their administrative remedies. The Court of Appeal reversed. The California Supreme Court granted review.

The Supreme Court held that section 21177(a)’s first exhaustion requirement, that a project can only be challenged in court on grounds raised during the “public comment period,” only applies if the public comment period was “provided by” CEQA. Because CEQA does not provide for a public comment period preceding an agency’s determination

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that a project is categorically exempt, the first exhaustion requirement of section 21177(a) was inapplicable. (§ 21092.)

However, the court found that section 21177(a)’s second exhaustion requirement, that the objection to the finding of a categorical exemption must be raised before the close of the public hearing and before issuance of a notice of determination, did apply, even though the county did not issue a notice of determination. The court reasoned that an opportunity for comment at a public hearing is sufficient to require citizens to exhaust their administrative remedies. The court rejected petitioners’ contention that they were not required to raise their objection to the categorical exemption at the public hearing on the development application because the County did not file a notice of determination. The court ruled that the filing of a notice of determination after the hearing is irrelevant to exhaustion and did not mislead petitioners. Where a claimant has an opportunity to raise an objection to a development project at a public hearing, but fails to raise the claim at the hearing, it is barred from suit on the claim.

DISCUSSION

1. A public agency’s determination that a project is categorically exempt from CEQA compliance cannot be challenged in court if challengers do not exhaust their administrative remedies by objecting to the CEQA exemption during a public hearing on the project application.

2. Where an agency issues a categorical exemption for a development project, the agency should provide a public hearing on the project application to allow citizens the opportunity to object to the decision. If a citizen fails to object to the categorical exemption at the hearing, the agency’s decision to grant the categorical exemption will be insulated from judicial review.

Validity of Tolling Agreements

Salmon Protection and Watershed Network v. County of Marin (Apr. 20, 2012) 205 Cal. App. 4th 195

HOLDING

A public agency and a party disputing the adequacy of an EIR prepared in connection with the adoption of a general plan amendment may agree to toll the limitations period for filing a petition challenging the adequacy of the EIR.

SUMMARY

In 2007, Marin County certified an EIR for the Marin Countywide General Plan Update and filed a notice of determination in compliance with section 21152(a) of the Public Resources Code and section 15094 of the CEQA Guidelines. In an effort to settle a

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dispute as to the adequacy of the EIR, the Salmon Protection and Watershed Network (SPAWN) and the County entered into a series of tolling agreements, extending the 30-day limitation period in section 21167 for the filing of a petition challenging the sufficiency of the EIR. In 2010, however, following a series of unsuccessful settlement attempts, SPAWN filed a petition for a writ of mandate against the County alleging that the EIR failed to comply with CEQA.

A group of property owners who supported the Update and whose property value was allegedly diminished by the uncertainty of the Update were granted leave to intervene. The interveners alleged that SPAWN’s petition was untimely because the agreement tolling the statute of limitations was invalid. They argued that the 30-day statute of limitations in section 21167 was mandatory and that the tolling agreements were therefore ineffective.

The Court of Appeal acknowledged that the 30-day statute of limitations for CEQA challenges implemented a public policy favoring prompt disposition of CEQA challenges. But the court also cited the equally strong public policy promoting settlement of controversies and thus avoiding litigation and concluded that the tolling agreements were valid.

The court also rejected the interveners’ contention that the tolling agreements were invalid because interveners were not a party to the agreements. The court determined that interveners were not real parties in interest in the lawsuit because their properties were only indirectly affected by the tolling agreements. While interveners’ interests may have been sufficient to justify permissive intervention, interveners were not “necessary” parties within the meaning of Code of Civil Procedure section 389.

The Court discussed but ultimately did not rule on interveners’ novel argument that even if the tolling agreement was effective to preserve a CEQA challenge, the tolling agreement was barred by Government Code section 65009(c)(1)(A), which imposes a 90- day limitation period for suits challenging adoption of a general plan. Interveners argued that the statute is intended to provide certainty to property owners and local governments. They asserted that allowing certain property owners to toll the statute of limitations for challenges to the plan would deny other property owners affected by the plan the repose afforded by the statute of limitations. The court, however, elected not to decide whether section 65009(c)(1)(A) would apply to an action based solely on CEQA claims.

DISCUSSION

To facilitate settlement, parties to a potential CEQA suit may agree to postpone the CEQA litigation and toll the statute of limitations. Tolling agreements can be essential to enabling settlement of CEQA disputes before the agency incurs substantial costs of litigation.

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Deliberative Process Privilege: Adequacy of EIRs and Res Judicata

Citizens for Open Government v. City of Lodi (Apr. 24, 2012) 205 Cal. App. 4th 296 *Partially certified for publication.

HOLDING

The City failed to establish the requisite conditions to invoke the deliberative process privilege, which provides government officials protection for materials used in the process of formulating government decisions. In preparing an EIR, there is no ironclad rule governing alternatives, the decision to use a particular baseline must be supported by substantial evidence, and cumulative impact analyses do not require technical perfection.

SUMMARY

In 2002, developers applied to the City of Lodi for a use permit to develop a shopping center project. In 2004 the City certified an EIR for the project, which was then challenged in court by Lodi First and Citizens for Open Government (Citizens). Citizens’ claim was dismissed, but Lodi First successfully obtained a writ of mandate holding that the 2004 EIR was inadequate. Instead of appealing the court’s ruling, in 2006 the City decertified the 2004 EIR and in 2008 published a final EIR that had been revised in five areas. In 2009, the City certified the final revised EIR and conditionally approved the project. The City then filed a petition to discharge Lodi First’s writ and lodged the administrative record at issue in this case as evidence that it had executed the writ by decertifying and revising the EIR. In 2009, Citizens and Lodi First both filed suits challenging the 2008 EIR. Those suits were consolidated with the City’s petition to discharge the writ. Lodi First and Citizens alleged that administrative record was incomplete and sought to include 27 emails. The trial court ruled that 22 of the emails were protected by the deliberative process privilege, discharged the 2005 writ against the City, and denied Citizens’ and Lodi First’s petitions. Citizens and Lodi First appealed.

Appellants contended that the trial court erred in applying the deliberative process privilege to exclude 22 city emails from the administrative record, by not considering documents attached to emails, and by holding that nine emails between the City and Wal- Mart’s attorneys were privileged. The deliberative process privilege provides government officials a qualified, limited privilege not to disclose the mental processes or the substance of conversations, discussions, deliberations, and like materials used to formulate government decisions. To claim the privilege, an agency must demonstrate that the public interest in non-disclosure outweighs the litigant’s interest in disclosure. The theory underlying the privilege is that the public will, in certain conditions, benefit if public officials are permitted to engage in a full and candid discussion of issues, allowing them to explore the pro’s and con’s before acting. Without a guarantee of confidentiality, however, these deliberations could be chilled. The result could be inferior quality decisions that could harm the public interest.

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On the other hand, the public has an interest in transparency in government decisions. The agency asserting the privilege carries the burden to show that the balance of the two conflicting public interests weighs in favor of non-disclosure.

The Court of Appeal found that the deliberative process privilege did not apply because the City failed to demonstrate how the public interest in nondisclosure clearly outweighed the public interest in disclosure. Accordingly, the court held the trial court erred in excluding the 22 emails from the administrative record. Notwithstanding the trial court’s error in excluding the emails, the Court of Appeal held that reversal was not required because Lodi First failed to meet its burden to demonstrate that the trial court’s error was prejudicial.

Citizens and Lodi First also challenged the adequacy of the revised EIR. Relying on CEQA Guidelines section 15126.6, which provides that there is “no ironclad rule governing the nature or scope of the alternatives,” the court found that the EIR contained a reasonable range of alternatives even though it did not include an alternative that feasibly met the project’s objectives while avoiding or significantly decreasing the project impacts to less-than-significant levels. Moreover, the court held that the City did not abuse its discretion in maintaining an economic baseline from previous years. The court held that the City did not have to accept Citizen’s heightened mitigation ratio for an impact that could not be mitigated. Because it was not possible to mitigate the effects on farmland, a statement of overriding considerations, and not heightened mitigation measures, was appropriate. In addition, the court held that the City’s EIR adequately discussed urban decay as required under CEQA, and that CEQA does not require a discussion of blight. In the context of redevelopment, blight had a specific meaning different from urban decay and was not necessarily related to the retail environment. The court further upheld the City’s cumulative impact analysis because when reviewing such analyses, courts do not look for technical perfection, but rather adequacy, completeness, and a good faith effort at full disclosure.

Finally, the court held that Lodi First’s claim that the EIR failed adequately to analyze the impacts of the project on water supply was barred by res judicata where Lodi First had previously litigated the question to a final judgment in an earlier action.

DISCUSSION

1. To invoke the deliberative process privilege, an agency must establish that the public interest in non-disclosure outweighs the public interest in disclosure. To make this showing, the agency should:

a. cite evidence of the sensitive nature of the decision;

b. cite evidence that the public officials involved in the deliberations intended that their discussions remain confidential and the privilege was not waived by disclosure of the deliberations to any person outside the group engaged in the deliberations or their counsel;

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c. argue that the decision itself is at issue, rather than the deliberations; and

d. argue that the thought processes and subjective impressions of the officials involved in the deliberations preceding the decision are irrelevant to the legal validity of the decision, which should be an objective determination by the court applying the law to the decision.

2. There is no ironclad rule governing the nature or scope of the alternatives that must be discussed in an EIR.

3. Courts review cumulative impact analyses in an EIR for adequacy, completeness, and a demonstration of a good faith effort at full disclosure, rather than technical perfection.

Is Environmental Review Required and How Much? Ministerial Acts Exempt from Environmental Review

Sierra Club v. Napa County Board of Supervisors (Apr. 20, 2012) 205 Cal. App. 4th 162

HOLDING

A county ordinance allowing sequential lot line adjustments is consistent with the Subdivision Map Act’s exclusion of lot line adjustments from the requirements of the Act and are exempt from CEQA review as ministerial acts.

SUMMARY

Under the “general rule” of CEQA regarding exemptions from environmental review, a project is exempt from CEQA if it is certain that there is no possibility that the project may have a significant effect on the environment. (14 CCR § 15061(b)(3).) The CEQA Guidelines also provide for Class 5 exemptions for minor alterations in land use regulations in areas with an average slope of less than 20%, which do not result in any changes in land use or density, and allow minor lot line adjustments. (14 CCR § 15305.)

In 2002, Napa County revised its local subdivision ordinance to reflect changes made to the California Subdivision Map Act that exempted lot line adjustments between four or fewer adjacent parcels, so long as the adjustment was approved by the local agency. In 2009, the County adopted a new ordinance which continued the County’s practice of ministerial approval of lot line adjustments affecting four or fewer parcels to readjust lots included in a prior subdivision application, known as “sequential lot line adjustments,” provided that the prior adjustment had been completed and recorded. (Ministerial projects are exempt from CEQA review; discretionary projects require CEQA review.)

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The County approved a sequential lot line adjustment application, finding that the project was exempt from CEQA based on a Class 5 categorical exemption and the general rule. The Sierra Club argued that the ordinance violated CEQA by classifying all lot line adjustment approvals as ministerial, the ordinance violated CEQA’s prohibition on piecemealing environmental review of a single project, and the lot line adjustment approval did not qualify for any CEQA exemption.

The Court of Appeal found that approval of sequential lot line adjustments is ministerial and not discretionary. Discretionary projects, according to the court, require the exercise of judgment or deliberation. A government act is discretionary where the approval process allows the agency to shape the project to respond to concerns identified in an EIR. Ministerial projects, in contrast, require a mere determination whether the project conforms with applicable statutes, ordinances, or regulations. The court further held that the agency making a particular decision is best equipped to determine whether an act is ministerial for CEQA purposes, based on its analysis of its own laws.

Lot line adjustments in the County were ministerial, the court held, because the County’s subdivision code listed lot line adjustments as ministerial acts, unless they required a variance or were processed concurrent with a related application for a use permit or other discretionary approval. Moreover, the ordinance listed twelve conditions that, if met in the lot line adjustment application, guaranteed the County’s approval. The County’s subdivision approval process for lot line adjustments was limited to a determination whether the application conformed to applicable ordinances and regulations. The official had no ability to exercise discretion to mitigate environmental impacts or change the County’s existing general plan, or building and zoning ordinances.

DISCUSSION

1. Courts defer to local agency judgments as to whether a subdivision approval process, such as a lot line adjustment, is ministerial and therefore exempt from CEQA review.

2. Approvals of lot line adjustments are ministerial and exempt from CEQA review where the approval process (a) does not permit the government to modify the project to respond to concerns identified in an EIR or to change the agency’s general plan, building codes, or zoning ordinances, and (b) is limited to a determination whether the application conforms to applicable ordinances and regulations.

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Adequacy of Environmental Document Baselines for Environmental Impacts

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (Apr. 17, 2012) 205 Cal. App. 4th 552 *Certified for Partial Publication. **Review Granted and Opinion Superseded 8/8/2012

HOLDING

For long term and phased development projects, CEQA does not preclude the use of projected traffic, air quality, and greenhouse gas emissions conditions as a baseline in an EIR.

SUMMARY

This is the latest decision to address the proper traffic baseline for CEQA review. Is the baseline against which the project’s impacts are measured the condition existing at the time of the environmental review or at the time the project comes on line? For any project that has multiple phases or will take many years to complete, the traffic conditions existing before the project starts construction will have changed by the time the project is finished. It has therefore been common practice to project baseline traffic conditions to the time the project will be completed.

The tension in these cases stems from language in the CEQA Guidelines requiring that the agency should “normally” analyze the impacts of the project at the time the project undergoes environmental review. The rationale for this rule is obvious—existing traffic conditions can be measured accurately, whereas projections of future conditions are subjective and not as reliable, and there could be a temptation to manipulate the baseline to create a more or less favorable picture of the project’s impacts. For projects that take many years to complete, existing conditions are not very relevant; it’s the impacts at the time the project is completed that matter.

Exposition Metro follows on the Sunnyvale West and Pfeiffer decisions we reported on in our CEQA Update for the League at the Fall 2011 and Spring 2012 conferences. Sunnyvale West disapproved the use of projected traffic conditions for baseline comparisons; Pfeiffer allowed the use of future conditions for a baseline. In Exposition Metro, the court sided with the Pfeiffer court.

In Exposition Metro, petitioners challenged the use in a 2010 EIR of a 2030 baseline for traffic, air quality, and GHG emissions for the construction of a light rail line from Downtown Los Angeles to Santa Monica. The agency did not compare the project to existing traffic and emissions because the project’s effects would not be felt until at least 2015, and the project would be built out in phases ending in 2030.

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The court agreed with the agency that existing traffic conditions were illusory. Population increases in Los Angeles would inevitably produce increased traffic congestion and emissions. In analyzing the no-build alternative, the agency compared the project’s impacts to conditions that would exist at the time the project was completed.

Petitioners argued that because conditions at intersections and emissions would be much worse in 2030, the impacts of the project would not appear as severe by comparison. The court rejected this reasoning, instructing that traffic, air quality, and emissions typically evolve with population growth and new development. In cases of larger, long- term projects, the court opined that it would be a “false hypotheses” to use the existing conditions as a baseline.

The court construed the CEQA Guidelines to permit the use of baselines other than those at the time of publication of the notice of preparation or when the environmental analysis begins. The court found that the Guidelines requirement that the baseline should “normally” be conditions at the time of preparation of the EIR did not foreclose the agency’s discretion to select a reasonable baseline where it is supported by substantial evidence. The court drew a distinction between a baseline of “hypothetical” or “illusory” future conditions, which would be prohibited by the California Supreme Court’s decision in Communities for a Better Environment, from the permitted use of a baseline of projected conditions supported by substantial evidence. In this case, the court found that the inevitable increase in Los Angeles’ population, resulting in increased air pollution and traffic congestion, was realistic and rational, not hypothetical or illusory.

DISCUSSION

1. Pfeiffer and Exposition Metro seem to be correct. Requiring that CEQA review of a multi-phased project that will take years to complete should only compare the project to existing conditions is unrealistic and of little practical use. Projections are not always easy to make, nor are they perfect, but in most cases they provide a more accurate baseline and a truer picture of environmental impacts than the assumption that environmental conditions will not change over time.

2. After Pfeiffer and Exposition Metro, agencies have more flexibility when identifying baselines against which to assess the project’s impacts. If an agency can show that future environmental conditions affected by the project are likely to change before the project begins or that such future conditions could vary, it will have discretion in choosing an appropriate baseline for evaluating environmental impacts—provided that the choice is supported by substantial evidence.

3. Challengers to an EIR that uses only a projection of future traffic and GHG conditions might argue that the circumstances are not appropriate for a baseline of projected conditions or that the methodology used to project conditions is erroneous or unreliable. Therefore, the safest course, albeit a more expensive option, is to measure a project’s traffic impacts against both existing and future conditions, as the agency did in Pfeiffer.

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4. Exposition Metro and Pfeiffer created a split of authority with Sunnyvale West and other cases. Because the baseline issue is so controversial and significant, it is not surprising that the California Supreme Court granted review in Exposition Metro. So stay tuned.

Substantial Evidence Test for Certification of EIR

City of Hayward v. Board of Trustees of the California State University (May 30, 2012) 207 Cal. App. 4th 446

HOLDING

An EIR prepared for an expansion of California State University East Bay’s campus adequately analyzed impacts on fire protection, public safety, traffic and parking, and air quality, but did not support its analysis of impacts to parkland. CEQA did not require trustees to mitigate need for new fire protection services.

SUMMARY

The University, located in the City of Hayward, developed a master plan to expand its campus. It prepared an EIR that addressed the master plan as a whole as well as two project-specific evaluations of student housing and parking. The EIR concluded that the master plan would result in significant impacts to air quality and traffic, despite mitigation measures. The EIR found that the housing project would have no significant impacts. Finally, the EIR concluded that the parking structure would have significant traffic impacts. The University certified the EIR, concluding that all feasible mitigation measures would be implemented and that significant impacts were outweighed by overriding benefits. The City challenged the certification of the EIR and approval of the master plan. The Court of Appeal held that the EIR adequately analyzed all impacts with the exception of impacts on parkland.

First, the court rejected the City’s argument that the University failed to fully analyze the potential impact of the master plan on the provision of fire and emergency response services. The EIR sufficiently analyzed emergency response times and their impact on public safety and determined that they would be offset by the construction of one additional fire station. The court held that the University’s conclusion that construction of the new station would have no significant environmental impacts was supported by substantial evidence because the new station would be constructed as infill on a small lot.

The court further rejected the City’s related contention that the University was required to mitigate the need for additional fire protection and emergency services due to the project by providing more than one fire station and other emergency services. The court observed that demand for fire protection and emergency services from new development is not an environmental impact; CEQA does not shift financial responsibility

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for provision of fire and emergency services to the proponent of a project. Instead, the court held, the City has the obligation under state law to provide fire and emergency services to the new development. The University, the court held, adequately analyzed the physical environmental impacts of the new fire station; nothing more was required under CEQA.

Second, the court rejected the City’s claim that the University failed to properly analyze traffic impacts for potential faculty housing. The court found that the University had not yet selected the site for the faculty housing from three alternatives proposed in the EIR and that further studies would be required when a specific site had been chosen. The court held that the EIR was a programmatic EIR, and that further environmental review for specific facilities could be tiered off the programmatic EIR when those facilities are identified in the future.

Third, the court held that the EIR sufficiently considered increased parking and traffic impacts of the master plan, given that it incorporated mitigation measures in the form of traffic studies and public transit improvements. The court noted that some impacts were unavoidable and accepted the University’s statement of overriding considerations.

Fourth, the court upheld the University’s finding that the master plan would cause significant off-campus traffic impacts, but that such impacts were outweighed by overriding considerations. The City argued that University should be obligated to fund traffic mitigation itself if the Legislature would not. The court, however, found that because the City had not raised this claim during the administrative challenge, the City failed to exhaust its administrative remedies on this issue.

Fifth, the court upheld the University’s statement of overriding considerations with respect to unmitigated significant and unavoidable air quality impacts. The court determined that that the University’s implementation of mitigation measures would reduce some emissions to a less than significant level and the City did not suggest further mitigation measures. Accordingly, the court found no grounds to disturb the City’s statement of overriding considerations.

Finally, the court held that the EIR did not sufficiently analyze impacts to parkland from the student housing project because it only analyzed impacts to the regional park district, rather than impacts to two neighboring parks. The University provided no factual basis to support the “long-standing use patterns” of parks by students on which it relied. The court agreed with the City that the EIR should have considered data showing actual current use of neighboring parks by students and extrapolated how that would increase with more students living in the housing project.

DISCUSSION

1. A city, not the project proponent, bears the legal responsibility to ensure that adequate emergency facilities exist for its residents. A project proponent need only analyze the environmental impacts of providing increased emergency services to comply with

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CEQA. The project proponent is not required to provide funding to mitigate the increased need of emergency services as a result of its project, unless the mitigation is for environmental impacts.

2. When analyzing impacts to parkland, a project proponent should consider the location of the parks relative to the proposed projects and should rely on data outlining current park use. Assessing impacts to an entire regional park district is not appropriate where the location of the project in relation to specific parklands suggests that more serious impacts will be felt at individual parks.

Attorneys’ Fees Award of Private Attorney General Fees to Attorney who is Member of Suing Group

Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg (June 4, 2012) 206 Cal. App. 4th 988 * Partially certified for publication.

HOLDING

In a CEQA enforcement action, the trial court properly awarded attorneys’ fees under Code of Civil Procedure 1021.5 to an attorney who represented a public interest group of which she was a member.

SUMMARY

Healdsburg Citizens for Sustainable Solutions successfully challenged the certification of an EIR for a resort development. The trial court awarded attorneys’ fees to the group and to Grattan, an attorney who was both a member of the citizen group and represented the group on a contingent fee basis. The court found that petitioners were entitled to attorneys’ fees under Code of Civil Procedure section 1021.5 because the action had enforced an important right affecting the public, it had conferred benefits on a large group, and the necessity of the action and the financial burden made the award appropriate.

On appeal, defendants argued that Grattan was not entitled to attorneys’ fees because she was a party to the action. Defendants contended that under Code of Civil Procedure section 1717, an attorney who chooses to litigate in “propria persona” cannot recover attorneys’ fees for the time and effort she expends on her own behalf, or for the professional business opportunities she forgoes as a result of her decision.

In finding that attorneys’ fees were properly awarded, the Court of Appeal acknowledged the restrictions of section 1717, but noted that Grattan sought recovery under 1021.5 to enforce an important public right. The court determined that she had enforced such a right while taking a risk. The record showed that Grattan had expertise in CEQA litigation, had agreed to take on the fact-intensive and complicated case on a contingent fee basis along with another partner at her firm, and that the citizen group had more than 100 members. Based on this evidence, the Court of Appeal found that a genuine

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attorney-client relationship existed between Grattan and her co-petitioners, despite her membership, and that her own interests were not interchangeable with or legally indistinct from the group’s.

DISCUSSION

An attorney for a petitioner public interest organization seeking section 1021.5 attorneys’ fees, where the attorney is also a member of the organization, should be required to show that (a) the litigation, including the outcome she achieved, meets the requirements of section 1021.5, (b) a genuine attorney-client relationship exists between the attorney and the organization, (c) the organization has a large membership, such that the organization is not the alter ego of the attorney, and (d) the attorney’s compensation is a contingent fee or some other form of monetary compensation that demonstrates that the attorneys’ economic interest is not identical to the organization’s economic interest.

Award of Attorneys’ Fees in Enforcement Action Between Public Entities

City of Maywood v. Los Angeles Unified School District (July 18, 2012) 207 Cal. App. 4th 1075 * Partially certified for publication.

HOLDING

Where one public entity seeks an award of private attorney general fees in an enforcement action against another public entity, the court should not consider the claimant’s nonpecuniary interests when determining whether the entity meets the “financial burden” criteria of Code of Civil Procedure section 1021.5.

SUMMARY

The City of Maywood successfully challenged the Los Angeles School District’s certification of a final EIR, analyzing the environmental consequences of constructing a high school. The Los Angeles Unified School District appealed the trial court’s award to the City of Maywood of private attorney general fees under Code of Civil Procedure section 1021.5. The Court of Appeal reversed and remanded for a redetermination of the fee award.

The Court of Appeal provided instructions to the trial court in applying section 1021.5’s “necessity and financial burden” criteria where one public entity seeks attorneys’ fees against another public entity. Section 1021.5 provides that a court may award attorneys’ fees in an action enforcing an important right affecting the public interest if the award is appropriate given the necessity and financial burden of private enforcement or enforcement by one public entity against another public entity. The District contended that Maywood could not satisfy the “necessity and financial burden” criteria because the City had a personal interest in the litigation—to preserve its tax base and avoid environmental impacts—that transcended the burdens of enforcement. Maywood argued that its

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nonfinancial interests in pursuing the litigation were irrelevant to determining whether it satisfied section 1021.5.

The Court of Appeal ruled that a prior case, Conservatorship of Whitley (2010) 50 Cal. 4th 1214, controlled the interpretation of “necessity and financial burden,” and that Whitley applied not only to private but also public entity enforcement actions against other public entities. Prior to Whitley, courts held that the “necessity and financial burden” element was satisfied when “the cost of the claimant’s legal victory transcended his personal interest.” Whitley clarified that a court may only consider pecuniary interests as “personal interests.” In the instant case, the Court of Appeal extended Whitley to public enforcement actions, agreeing with Maywood that its nonfinancial interests in pursuing the litigation were irrelevant to determining whether it met the financial burden required by section 1021.5.

The Court of Appeal, however, agreed with the District that when applying the financial burden criterion of section 1021.5 to political subdivisions, a court should consider whether the burden of the litigation transcends the pecuniary interests of both the political entity and the collective interests of the individuals that the entity represents.

DISCUSSION

1. When a public entity pursues an enforcement action against another public entity, it may be entitled to attorneys’ fees if it can prove that its pecuniary interests and the pecuniary interests of its citizens are outweighed by the costs of the action. To convincingly meet this burden a public entity should also argue that the enforcement action benefits the public at large, beyond its own constituents.

2. The non-financial benefits that a public entity or political subdivision gains from an enforcement action, such as environmental protection, may not be considered by the court to determine if attorneys’ fees should be awarded under Code of Civil Procedure section 1021.5.

CEQA Guidelines Update

Proposed CEQA Guideline Section 15183.3: Streamlining for Infill Projects (Draft Guideline submitted by Office of Planning and Research on June 25, 2012. The Natural Resources Agency will now begin the formal rulemaking process to finalize these guidelines.)

The authority for this proposed guideline comes from the recent legislation, SB 226, discussed in the Spring 2012 Land Use Law update. The proposed guidelines flesh out SB 226’s new streamlined infill project environmental review process. The new section 15183.3 would streamline environmental review for eligible infill projects by limiting the need for project level review where the effects of infill developments have already been generally addressed in a planning level decision or by uniformly applicable development policies.

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Eligibility: To be eligible for streamlining procedures, an infill project must meet certain requirements. First, it must be located in an urban area, on a site that has either been previously developed or that is adjacent to at least seventy-five percent urban uses. Second it must conform with the performance standards provided in the newly created Appendix M. Third, it must be consistent with the general use designation, density, building intensity, and applicable policies of the project area in either a sustainable communities strategy or an alternative planning strategy.

The proposed guidelines carve out two exceptions to this last requirement. If an infill project is proposed within the boundaries of a metropolitan planning entity which has not implemented a sustainable communities strategy or an alternative planning strategy, then a residential infill project must have at least 20 units per acre, and a commercial project must have a floor area ratio of at least .75. If the infill project is proposed outside of the boundaries of a metropolitan planning entity then it must meet the definition of a “small walkable community project” which the guidelines define in detail at section 15183.3(f)(6).

Streamlined Review: Under the proposed streamlined review process, certain infill projects could conduct a range of lessened environmental reviews, from a complete exemption to preparation of a narrowed, project-specific environmental document. CEQA will not apply to eligible infill projects under two circumstances. First, if the prior EIR addressed an effect as a significant effect, then an individual infill project will not need to reanalyze that effect, even if the new project cannot reduce the effect to a less than significant level. Second, even if an effect was not analyzed in a prior EIR or is now more significant than previously analyzed, an infill project does not need to analyze the effect if uniformly applicable development policies or standards apply to the project and would substantially mitigate it.

Procedure: After preliminary review of an infill project, the lead agency must determine if the infill project will cause any effects that would require additional CEQA review. The lead agency must prepare a detailed checklist to determine if the project is eligible for streamlining. This checklist should specifically analyze whether the infill project meets the requirements of Appendix M, provide detailed citations as to whether a prior EIR analyzed the effects of the project, indicate whether the infill project incorporates all applicable mitigation measures from the prior EIR, and explain whether the project will cause “new specific effects,” or whether adverse environmental effects are “more significant” than identified in the prior EIR. If the infill project will cause “new specific” or “more significant” effects, then the checklist should indicate whether uniformly applicable development policies or standards will “substantially mitigate” those effects.

Finally, the lead agency must determine what type of environmental document should be prepared for the infill project, choosing from No Further Review, Negative Declaration, Mitigated Negative Declaration, Sustainable Communities Environmental Assessment, or Infill EIR. No Further Review is appropriate when the infill project would not cause any new specific effects or more significant effects, or if uniformly applicable

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development policies or standards would substantially mitigate such effects. A Negative Declaration, is appropriate if a new specific effect is less than significant. A Mitigated Negative Declaration is proper if new specific effects or more significant effects can be mitigated to a less than significant level through project changes. A lead agency must prepare an Infill EIR when the written checklist shows that effects of the infill project that are subject to CEQA would be potentially significant. Special procedures apply to infill transit priority projects.

Infill EIR: An Infill EIR only needs to address those significant effects that uniformly applicable development policies or standards do not substantially mitigate, and that are either new specific effects or are more significant than a prior EIR analyzed. The written checklist will cover all other effects. The written checklist should be circulated in tandem with the EIR. An Infill EIR is less thorough than a regular EIR and does not need to address alternate locations, densities, building intensities, or growth inducing impacts.

EMINENT DOMAIN

Severance Damages

City of Livermore v. Baca (May 16, 2012) 205 Cal. App. 4th 1460

HOLDING

In an eminent domain action, the trial court’s exclusion of the property owner’s evidence of severance damages through an in limine motion amounted to the improper granting of a nonsuit in favor of the condemning agency. The trial court also erred in defining the project to include work by the State of California, which was not a party to the condemnation action.

SUMMARY

The City of Livermore brought an eminent domain action to acquire portions of the frontage of Baca’s commercial property for a road construction project. Baca did not oppose the taking, but sought permanent and temporary severance damages. Severance damages are damages to the owner’s remaining property following the acquisition of a part of the property for a public project. At the trial, the court granted the City’s in limine motion to exclude Baca’s evidence of severance damages, on the grounds that Baca’s severance damages claims could not go to a jury unless Baca could make a threshold showing of “substantial impairment” to the use of the remainder.

Rather than applying the normal abuse of discretion standard to review evidentiary rulings, the Court of Appeal treated the trial court’s grant of the in limine motion as a nonsuit and accordingly applied a de novo standard of appellate review. The court cautioned that the use of in limine motions as a nonsuit has no statutory basis and potentially denies parties their constitutional right to a jury trial in an eminent domain case.

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The Court of Appeal determined that the trial court improperly held Baca to an elevated standard of evidence when it required a preliminary finding of “substantial impairment” to Baca’s remaining property before it would permit evidence of severance damages to go to the jury. Such a finding is only necessary, the court held, when the alleged severance damage consists of interference with access to the property from a public road. Because Baca’s claims for permanent severance damages and most of his claims for temporary severance damages were based on an alleged decrease in value to his property from loss of view, adverse effects on drainage, changes in the depth of utility lines, increased traffic hazards, and removal of landscaping and driveway access, the lower court misapplied the standard for admissibility of evidence of severance damages.

The Court of Appeal noted, however, that a preliminary finding of substantial impairment would have been appropriate for Baca’s severance damages claim based on the requirement that Baca access his property by a 1.4 mile detour during construction of the project. The appellate court found that substantial impairment existed.

Under the Eminent Domain Law, severance damages can be offset by benefits to the remainder conferred by the project. In ruling on the admissibility of evidence of project benefits, the trial court improperly defined the Project to include three separate contracts for different portions of the roadway project. The court found that the City’s acquisition of Baca’s property was for the purpose of completing work for the first contract only, covering a specific area adjacent to Baca’s property. The court held that work under the second contract was not in an area affecting Baca’s property, and work under the third contract was completed by the State, which was not a party to the action. The court held that only the first contract should have been considered for the purposes of determining whether benefits from the project offset severance damages from the project.

DISCUSSION

1. Avoid using in limine motions to dispose of severance damages claims, unless the claim depends on impairment of access to the remainder. In the latter case, an in limine motion may be appropriate. To overcome the motion, the property owner must make a threshold showing of a substantial impairment of access from the project.

2. When calculating project benefits to offset severance damages, only benefits from the condemning agency’s project that directly affect the property in question can be considered. If the project is part of a larger project involving other government agencies, the agency should consider joining the other agencies in the eminent domain action to enlarge the scope of benefits that may offset severance damages.

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Pension Reform & The Ballot Box: Not As Simple As It Looks

Thursday, September 6, 2012 General Session; 1:00 – 2:30 p.m.

Steven M. Berliner, Liebert Cassidy Whitmore

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

League of California Cities 2012 League of California Cities Annual Conference 86 City Attorneys’ Track San Diego Convention Center, San Diego

6033 WEST CENTURY BOULEVARD, SUITE 500 153 TOWNSEND STREET, SUITE 520 5701 N. WEST AVENUE 550 WEST "C" STREET, SUITE 620 LOS ANGELES, CALIFORNIA 90045 SAN FRANCISCO, CALIFORNIA 94107 FRESNO, CALIFORNIA 93711 SAN DIEGO, CA 92101 T: (310) 981-2000 F: (310) 337-0837 T: (415) 512-3000 F: (415) 856-0306 T: (559) 256-7800 F: (559) 449-4535 T: (619) 481-5900 F: (619) 446-0015

LLEAGUE OF CCALIFORNIA CCITIES 22001122 AANNUAL CCONFERENCE

Pension Reform & The Ballot Box: Not As Simple As It Looks

SEPTEMBER 6, 2012

PRESENTED BY: Steve Berliner, Partner Liebert Cassidy Whitmore

WWW.LCWLEGAL.COM 87 Pension Reform & The Ballot Box: Not As Simple As It Looks

In June of this year, pension reform ballot measures were overwhelmingly passed by voters in both San Diego and San Jose. Now, other cities, counties and districts in California that participate in CalPERS or STRS, or maintain a '37 Act system are asking, "Can we do the same thing?" The short answer is, "No," at least not at the local level. The following is an abbreviated look at why the San Diego and San Jose measures will not directly impact other California public employers, but how other public employers may see some pension reform in the future at the State level.

The Difference Between San Diego/San Jose and Many Other Public Employers in California

Some employers have their own pension investment fund or system, some contribute to a much larger fund or system maintained by a larger entity and in which other employers participate, and/or some pool their funds with other employers called "risk pools." The City of San Diego1 and the City of San Jose2, for example, are employers that have their own pension system established and governed by city charter, as well as city ordinances. Other entities have elected to be a part of those pension systems, as well. For example, the San Diego Unified Port District, while a separate entity from the City, participates in the City's pension system, but it is the City's Charter that governs the system.

Many cities, counties and special districts in California have entered into contracts with the California Public Employees' Retirement System3 ("CalPERS"). CalPERS is the largest public pension system in the country. Originally established by the State to provide for pensions of State employees, other public employers in the State may also enter into a contract with CalPERS for it to handle contributions, investments, and retirement allowances for their employees. However, it is the State, not the individual public employers, that decides who will be CalPERS members, how contributions will be made, how investments will be handled, and the terms and conditions for retirement benefits. This leaves public employers who have entered into contracts with CalPERS with little control.

The State Teachers' Retirement System4 ("STRS") is the second largest defined benefit pension system in the country and is a mandatory pension system for, among others, all eligible public K-12 and community college certificated or academic employees in the

1 https://www.sdcers.org/about/Pages/default.aspx 2 http://www.sjretirement.com/ 3 http://www.calpers.ca.gov/ 4 http://www.calstrs.ca.gov/

88 State. There are also several other defined benefit pension systems in the State including for superior court judges, State legislators, and employees of the University of California.

Just over half of all counties in the State have their own pension system, but the law that governs that system is established by State legislation known as the County Employees Retirement Law of 19375 (" '37 Act"). While each '37 Act county maintains its own system, the administration of that system is governed by State law. Cities and special districts that are situated within these '37 Act counties may opt to contract with the county's retirement system, as well.

There are very few public employers in the State that do not have defined benefit pensions. This has to do with an evolution of laws both at the state and federal level. Thus, there may be a few public entities that only offer 401(k) type plans. In addition, federal law does not require public employers to participate in Social Security unless the public employer chooses to opt-in, or previously opted-in and did not withdraw before 1983.

Because the cities of San Diego and San Jose maintain their own pension systems governed by their own charters, ballot measures like Measure B6 and Proposition B7 passed in June 2012 do not apply to CalPERS, STRS, and '37 Act employers, at least not at the local level. CalPERS employers are heavily restricted to the changes that can be made to save on pension costs by State law, see, for example, Government Code sections 20474 and 20475. Because CalPERS is governed by the California Constitution and ensuing State legislation, any change to the governing law must be made only through State legislation implemented by State legislators. STRS employers have even less flexibility and any change in the governing system must be made at the State level. Similarly, '37 Act systems are also governed by State law and substantial changes to any individual '37 Act system require legislation at the State level.

However, Governor Jerry Brown unveiled his 12-Point Pension Reform Plan8 last October which will apply to, among other systems, CalPERS, '37 Act, and STRS. Some commentators believe that the ballot measures passed in San Diego and San Jose will act to hasten and embolden the Governor's 12-Point Pension Reform Plan, but this remains to be seen. So far, they have not had that effect. The Governor’s plan will not go to the electorate, at least not this year. The California State Senate failed to approve putting it on the ballot. As of early August 2012, there has been no further action by the State Legislature to pass state-wide public employee pension reform.

5 http://www.ocers.org/about_ocers/37act.htm 6 http://www.sanjoseca.gov/mayor/goals/budget/RetirementReform.asp#BallotMeasure 7 http://www.sdcounty.ca.gov/voters/Eng/proptext/B.pdf 8 http://gov.ca.gov/news.php?id=17296

89 A Side-By-Side Comparison of San Diego, San Jose, and the Governor's Plans

The San Diego and San Jose ballot measures passed by the voters proposed to amend each of those cities' Charters. Those Charter amendments are intricate and lengthy. Similarly, the Governor's 12-Point Plan while appearing simple in theory, if implemented, would require substantial legislative changes. Here, we provide you with a simplified and abbreviated, though not all inclusive, comparison of each plan.

Proposed Changes San Diego's Prop. B San Jose's Governor's Measure B 12-Point Plan Limiting pensionable X X X compensation to only base pay and exclude specialty pays from (prospective service (for future (for future computation of retirement for existing employees) employees) allowance employees) Salary freezes for the next five X years

Establishment of new defined X contribution retirement plan which will be the only plan for all future (except for sworn employees police officers) Establishment of a "hybrid" plan X X incorporating a defined benefit and defined contribution plan and/or Social Security as the only plan for all future employees Voluntary option for current X X employees to opt into new retirement plan for prospective (see below) service Establishment of a new voluntary X defined benefit retirement plan for current employees providing lesser (one-time voluntary benefits for prospective service enrollment) Make employer and all employee X X X contributions to retirement plan substantially equal for the costs of (except for City (for future a normal retirement allowance liabilities for past employees; service) incremental increase for existing employees)

90 Prohibit employers from "picking- X X X up" employee contributions to retirement plan (City's cost for new Tier 2 defined benefit plan shall not exceed 50% of total cost) Loss of retirement allowance for X X any officer or employee convicted of a felony relating to their employment duties Online posting of retirement X (Considered allowance paid to each retiree public record identified by classification last held already)

Limits on maximum amount of X X defined benefit retirement allowance for future employees (for sworn police: (2% per year of 80% of comp at age service not to 55 decreasing by 3% exceed 65% of for each year prior to comp) age 55) Increase in minimum retirement X X age for full defined retirement benefit for future employees (age 60 for safety; 65 for general) Retirement allowance for any X X X defined benefit plan will be based only on average of highest three (for sworn police) consecutive years of service for future employees

Require voter approval for any X increase in pension and/or retiree healthcare benefits

Redefining eligibility criteria for X disability retirement Suspension of cost-of-living X adjustments for retirees upon declaration of fiscal and service level emergency

91 Requiring that new and existing X employees contribute a minimum of 50% of the cost for future retiree healthcare Specific provisions which provide X that no retirement plan or retiree healthcare plan shall create a vested right Further limits on post-retirement X employment with public employers

Prohibit employers from X suspending employer and/or employee contributions necessary to fund annual pension costs Prohibit purchase of service credit X for time not actually worked

San Diego and San Jose Ballot Measures Face Legal Challenges

The San Diego and San Jose ballot measures, while approved by voters, are not without their opponents, particularly labor unions. Prior to the June 5th vote, the Public Employment Relations Board ("PERB"), on behalf of one City labor organization, filed suit against the City of San Diego alleging the City failed to meet and confer with labor unions before placing the matter on the ballot. The superior court rejected attempts to prevent the measure from being placed on the ballot, but allowed the parties to litigate the issue after voter approval. On July 10, 2012, PERB applied for, and was granted, a temporary restraining order preventing the City from implementing Proposition B. However, because the City and its employee organizations were engaged in negotiations, and a hearing was held before PERB on an unfair labor practice charge by the San Diego Municipal Employees Association, the court on July 31, 2012 denied PERB’s request for a preliminary injunction. Consequently, implementation of Proposition B is moving forward. Four of San Diego’s public employee labor organizations and PERB are challenging Proposition B in court. The court has not agreed to consolidate the lawsuits.

In San Jose, the labor organizations representing police and firefighters filed separate lawsuits challenging Measure B in state court. The City filed a federal court lawsuit in an effort to get a quick decision on the legality of Measure B. These lawsuits are currently working their way through the two court systems.

92 Thus, while these pension reform measures are designed to control the spiraling pension costs and unfunded liabilities, the measures may be held hostage in costly litigation for a long time. The fate of these measures has yet to be seen.

In sum, public employers will anxiously watch as the San Diego and San Jose pension reform measures unfold. In the meantime, California has a long road ahead to effectively reform public pensions for all local and State employers.

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League of California Cities 2012 League of California Cities Annual Conference 94 City Attorneys’ Track San Diego Convention Center, San Diego

Recent Amendments to the Americans with Disabilities Act: Public Access and Rights of Way

Thursday, September 6, 2012 General Session; 2:45 – 4:00 p.m.

Gregory F. Hurley, Greenberg Traurig Neil Okazaki, Deputy City Attorney, Riverside

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

League of California Cities 2012 League of California Cities Annual Conference 96 City Attorneys’ Track San Diego Convention Center, San Diego 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142

Walking a Tightrope – Regulating Group Homes Without Running Afoul of Federal and State Laws

Thursday, September 6, 2012 General Session; 2:45 – 4:00 p.m.

Patrick “Kit” Bobko, Richards, Watson & Gershon T. Peter Pierce, Richards, Watson & Gershon

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

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League of California Cities 2012 League of California Cities Annual Conference 144 City Attorneys’ Track San Diego Convention Center, San Diego

Walking A Tightrope – Regulating Group Homes Without Running Afoul Of Federal And State Laws

T. Peter Pierce and Patrick “Kit” Bobko

The authors gratefully acknowledge the research and editorial assistance provided by their colleagues Shiri Klima, Diana Varat, Molly McLucas and Aaron O’Dell.

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I. OVERVIEW

This paper focuses on the limits imposed by federal and California law upon the authority of local governments to regulate housing for disabled persons and other protected groups. Federal and California law recognize many types of disability and other protected classes and it is beyond the scope of this paper to discuss the particular statutes and cases addressing each one. The discussion below instead assumes that local regulation in some way affects a person with some type of disability, or who enjoys protected status, as defined in either federal or California law.

For purposes of brevity and analytical efficiency, this paper also will not focus on the subtle and nuanced differences between federal anti-discrimination laws and California anti-discrimination laws protecting disabled persons. The legal analysis of discrimination claims is substantively identical under the federal Fair Housing Act (including provisions of the Fair Housing Amendments Act), the Americans with Disabilitites Act, and California’s Fair Employment and Housing Act. See generally Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008); Auburn Woods I Homeowners Assn. v. Fair Employment and Hous. Comm’n, 121 Cal.App.4th 1578, 1591 (2004) (Auburn Woods). Accordingly, the principles and analysis set forth below apply to cases brought under both federal and California anti-discrimination laws.

The discussion is organized by the prevalent legal theories advanced in anti-discrimination lawsuits – (1) discriminatory treatment (also known as disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation. The cases featured are federal cases interpreting federal law and establishing limits on local regulation of housing for disabled persons. California law would, at a minimum, recognize the same limits and, in certain cases, recognize more stringent limits not discussed here. See Auburn Woods, 121 Cal.App.4th at p. 1591 (California’s FEHA may be interpreted to confer rights greater than those conferred by the federal Fair Housing Act). Both federal and California law recognize the limits on local authority identified below.

Practical tips for local government officials, staff and attorneys follow parts of the discussion where appropriate.

II. DISCUSSION

A. Standing To Sue

Standing to sue under the FHA and ADA is broadly construed in a manner consistent with the constitutional limits of Article III. See Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 47 (2nd Cir. 1997); see also Jeffrey O v. City of Boca Raton, 511 F.Supp.2d 1339, 1347 (S.D.Fla. 2007) (Jeffrey O).

In Jeffrey O, the District court held that current residents of a group home for persons recovering from substance abuse, and persons who testify that they would return to a group home if they relapsed, both have standing to sue under the FHA. Id. at 1347-48. The court also recognized that the FHA allows for the providers of housing for the disabled to sue on behalf of residents. Id at 1348. See also Community House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007).

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Courts have also recognized that organizations that promote or advocate for fair housing may bring suit under the FHA if the challenged action or policy causes the organization to divert resources to combat the alleged discrimination. See Nevada Fair Housing Center, Inc. v. Clark Co., 2007 U.S. Dist.LEXIS 12800, * 6 (D.Nev. 2007).

B. Analytical Framework of Anti-Discrimination Claims

A plaintiff may establish an FHA discrimination claim under three different theories: (1) discriminatory treatment; (2) disparate impact; and (3) failure to make a reasonable accommodation. Gamble v. City of Escondido, 104 F.3d 300, 304-05 (9th Cir. 1997) (Gamble). The same theories are available to vindicate a violation of California’s FEHA. See Auburn Woods, 121 Cal.App.4th at p. 1591.

The three theories are discussed in order.

1. Discriminatory Treatment

a. Facial Challenge

In Community House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) (Community House), the Ninth Circuit explained the standard for establishing a prima facie case of facial discrimination under the FHA. “[A] plaintiff makes out a prima facie case of intentional discrimination under the [Fair Housing Act] merely by showing that a protected group has been subjected to explicitly differential – i.e., discriminatory – treatment.” Id. at 1050 (internal citation and quotation omitted). A defendant whose zoning rules are facially discriminatory “must show either: (1) that the restriction benefits the protected class or (2) that it responds to the legitimate safety concerns raised by the individuals affected, rather than based on stereotypes.” Id. at 1050 (internal citation omitted).

A non-profit corporation in Community House had formerly managed a city-owned homeless shelter. The corporation sued the City under the FHA after a religious organization to which the City had later leased the shelter instituted a male-only policy. The complaint asserted that the male-only policy facially discriminated on the basis of gender and familial status, and sought a preliminary injunction. The Ninth Circuit held that plaintiff could likely establish a prima facie case of discrimination under the FHA. As justifications for the male-only policy, the City asserted general safety concerns and the need to house homeless men so that a second facility could be made available for women and children. Community House, 490 F.3d at 1051. The court held that the City might be able at a later stage of litigation to prove that safety concerns warranted a male-only policy, but that the plaintiff had raised questions that were serious enough to warrant the issuance of an injunction. Id. at 1052.

Community House was followed by the District Court in Nevada Fair Housing Center, Inc. v. Clark Co., 2007 U.S.Dist.LEXIS 12800 (D.Nev. 2007) (Nevada Fair Housing). In that case, the County’s group home ordinance prohibited group homes for the disabled that housed more than six persons. Id. at *18. The ordinance also required a special use permit for homes housing six or fewer persons to locate within 1500 feet of a similar home. Id. at *18. A non- profit corporation that advocated against housing discrimination filed suit under the FHA, claiming that the ordinance facially discriminated against the disabled. Id. at *1-*2. On a

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motion for summary judgment brought by the plaintiff, the District court held that the County’s ordinance was facially discriminatory and failed the test adopted by the Ninth Circuit in Community House. The County argued that the spacing requirement was necessary to comply with state law and to prevent the clustering of group homes in certain areas. Id. at *26. The court refrained from addressing whether the relevant state law violated the FHA; noting instead that the County’s Ordinance “did not track the language of [the statute].”) Id. at *27. The court also found that the County failed to provide any evidence that its Ordinance promoted deinstitutionalization. Id.

In Jeffrey O, persons recovering from alcoholism and substance abuse, and the operators of group homes for those persons, challenged a requirement that substance abuse treatment facilities operate only in a medical district or a motel/business district upon issuance of a conditional use permit. 511 F.Supp.2d at 1342-43. The District Court first held that the City had facially discriminated against disabled persons and that facial discrimination could be justified only by legitimate public safety concerns or by benefits conveyed to the protected class. Id. at 1350. The City argued that its zoning rules were necessary to keep group homes near other compatible uses, such as medical centers. Id at 1352. The court in general recognized preservation of a neighborhood’s residential character as an additional justification for disparate treatment. Id. at 1357. The court noted, however, that the only distinguishing feature separating substance abuse treatment facilities from residential apartments was that the providers of treatment required tenants to undergo drug testing to ensure they remained clean and sober. Id. at 1354. The court found that this was insufficient grounds to segregate disabled residents. Id.

Local government may not defeat a facial challenge simply by implementing an approval procedure for group homes (e.g., reasonable accommodation program). In Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 725 (9th Cir. 1999), operators of a methadone clinic announced their plans to open in the City, which enacted a moratorium against substance abuse clinics in response to the proposal. Id. at 727-28. The basis for the moratorium was the City’s finding that the clinic would attract drug dealers and lead to an increase in crime in the surrounding area. Id at 729. The clinic filed suit under the ADA and the Rehabilitation act, and asked for a preliminary injunction. The District Court denied the request for an injunction and the Ninth Circuit reversed and remanded the matter. The Ninth Circuit first held that the ADA and the Rehabilitation Act apply to local zoning controls. Id. at 730. The ADA in particular was intended to broadly prohibit discrimination by public entities, and zoning is a normal function of local government. Id. at 730-31. Because the clinic had alleged that the moratorium was facially discriminatory, the District Court had erred by requiring the clinic to show that the City had failed to provide a reasonable accommodation. Id. at 733-734. Facially discriminatory ordinances are not subject to a reasonable accommodation analysis, and the availability of a reasonable accommodation procedure cannot rescue a facially discriminatory ordinance.

A separate strand of facial challenge involves a facially valid regulation where the government uses a proxy (i.e. service dogs) as a substitute for identifying the protected class (handicapped). In Children’s Alliance v. City of Bellevue, 950 F.Supp. 1491 (W.D.Wash. 1997) (Children’s Alliance), an ordinance required group homes to be separated by 1000 feet and limited to six or fewer residents. The defining difference between a “family” and a group home under the ordinance was the addition of staff operating at the latter. Id. at 1493-94. The District

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Court held “that this use of ‘staff’ was a proxy for a classification based on the presence of individuals under eighteen and the handicapped as both groups require supervision and assistance.” Id. at 1496. Thus, the ordinance was facially discriminatory. The dispersal did not sufficiently benefit the handicapped by preventing the development of mini-institutional ghettos because the City then had no group homes. The court also remarked that any alleged benefit would be closely scrutinized and found sufficient only if the benefits of the regulation clearly outweighed its burdens. Id. at 1499 (internal citations omitted). The District Court also held that the City’s repeated statements that it would be willing to reasonably accommodate the plaintiff’s group home was insufficient to rebut a finding of facial discrimination. Id. at 1500.

Proxy cases are common. See, e.g., McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992) (gray hair may be a proxy for age); Erie County Retirees Ass’n v. County of Erie, 220 F.3d 193, 211 (3rd Cir. 2000) (“Medicare status is a direct proxy for age.”); Cmty. Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 179 (3d Cir. 2005) (service dogs or wheelchairs are a proxy for handicapped status).

PRACTICAL ADVICE:

 To survive a facial challenge under federal and California anti-discrimination laws, government must make a concrete evidentiary showing that the plaintiffs themselves pose a legitimate threat to public safety. It is not sufficient to rely upon stereotypes of unidentified people who share the same disability as plaintiffs.

 A generalized concern about retaining neighborhood character is likely insufficient to make the required showing of a legitimate threat to public safety.

 Any regulation which treats a protected class differently than others, no matter how seemingly innocuous, or even well-intentioned, is ill-advised. For example, persons in recovery are being harassed by residents who did not know that a sober living home was opening in the community. In response, the municipality adopts a neighbor notification law with the intent of diffusing the situation. That law is invalid because it treats sober living homes for persons who are legally disabled differently than it treats other residential uses.

 Rigid distancing requirements are facially invalid, but an unsettled question is whether distancing requirements may be considered with other factors when clustering of housing serving the disabled has occurred in one area.

b. As-Applied Challenge

At least as reflected in the published case law, as-applied discriminatory treatment challenges are far more common than facial discriminatory treatment challenges. As-applied challenges arise from the discriminatory application of a facially neutral regulation.

A plaintiff may establish a prima facie case of discriminatory application in one of two ways. A plaintiff may (1) satisfy the elements of the test set forth in McDonnell Douglas Corp.

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v. Green, 411 U.S. 792 (1981) (McDonnell Douglas); or (2) produce evidence of discriminatory intent. Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008) (Budnick).

Plaintiff establishes a prima facie case of discriminatory treatment under McDonnell Douglas by showing: (1) plaintiff is a member of a protected group, (2) plaintiff sought use and enjoyment of a particular dwelling (or type of dwelling, or housing in a particular zone) and was qualified to use and enjoy such dwelling; (3) plaintiff was denied the opportunity to use and enjoy such dwelling (or zoning) despite being qualified; and (4) defendant permitted use and enjoyment of such a dwelling (or zoning) by a similarly situated party during a period relatively near the time plaintiff was being denied use and enjoyment. See Gamble, 104 F.3d at 305. Gamble articulated this framework in the housing context, but it would apply in other contexts where a plaintiff brings an anti-discrimination claim.

Instead of satisfying the McDonnell Douglas factors, a plaintiff may establish a prima facie case of discriminatory treatment by simply producing “‘direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated’ the challenged decision.” Budnick, 518 F.3d at 1114; see also Lowe v. City of Monrovia, 775 F.2d 998, 1006 (9th Cir. 1985), amended on other grounds by 784 F.2d 1407 (9th Cir. 1986) (“a plaintiff can establish a prima facie case of disparate treatment without satisfying the McDonnell Douglas test.”). “[I]t is not particularly significant whether [a plaintiff] relies on the McDonnell Douglas [factors] or, whether he relies on direct or circumstantial evidence of discriminatory intent” to establish a prima facie case of discriminatory treatment. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1123 (9th Cir. 2004).

Once plaintiff establishes a prima facie case of discriminatory treatment, “the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action.” Gamble, 104 F.3d at 305.

If the defendant articulates a legitimate, nondiscriminatory reason for its action, “the burden shifts to [plaintiff] to present evidence that [the] reason [asserted by defendant] is pretextual….” Gamble, 104 F.3d at 306. In other words, the factfinder must decide whether the defendant’s action was taken for discriminatory reasons. Whether proceeding under the McDonnell Douglas framework, or the alternative of showing that discriminatory intent more likely than not motivated the challenged action, the plaintiff must respond to defendant’s articulated reason by producing “some evidence suggesting that the challenged action ‘was due in part or whole to discriminatory intent.’ [Citation.]” Budnick, 518 F.3d at 1114.

A survey of the case law reveals that the zoning related decisions of local governments are more vulnerable to successful challenge under the “direct or circumstantial evidence of discriminatory intent” framework (hereafter “direct evidence test”) than they are under the McDonnell Douglas factors. This appears to arise from differences between the two approaches with respect to the degree of focus on the reasons or motivations behind the challenged regulation or decision. At the stage of establishing a prima facie case, the “direct evidence test” focuses more on those reasons or motivations than does the McDonnell Douglas test, which focuses more on the mechanics of the challenged decision. One key and specific difference between the two approaches is that the McDonnell Douglas test requires a showing that the government treated the plaintiff less favorably than a similarly situated third party. The “direct

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evidence test” does not require comparator evidence, and this may explain why plaintiffs in the case law have invoked this test alone, or at least as an alternative to the McDonnell Douglas framework. There are many hundreds of published decisions evaluating local regulations under one or both approaches, and this paper cannot possibly discuss or even identify a substantial number of them. Instead, this paper presents a number of those cases from which the reader may distill some general principles which local officials and staff should bear in mind when making decisions affecting persons whom the law recognizes to be disabled.

(i) Establishing a prima facie case under the direct evidence test.

The somewhat malleable factors comprising the direct evidence test flow from the seminal decision in Village of Arlington Heights, et al. v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (Arlington Heights). “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 266. Thus, the Supreme Court articulated several nonexclusive criteria which courts should evaluate in deciding whether the challenged action was motivated by discriminatory intent. “The historical background of the decision is one evidentiary source” to examine. Id. at 267. “The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes.” Id. at 267. “Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant[.]” Id. at 267. “The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Id. at 268. Arlington Heights involved race-based discrimination, but its list of criteria has guided courts in evaluating claims brought by disabled persons, as set forth below.

Courts have applied the Arlington Heights criteria in various formulations. Some courts have invalidated regulations based on fewer than all of the criteria. In many cases, plaintiffs rely only upon one or two of the criteria, with mixed results. There is no bright-line rule articulating the number of Arlington Heights factors that must be satisfied to establish a prima facie case of discriminatory intent under the direct evidence test. Nor is there a rule establishing which particular factors must be satisfied. Courts enjoy considerable discretion in employing and weighing the factors in each case.

In Budnick, the Ninth Circuit looked to the legislative record and concluded that comments made by neighbors did not evince a discriminatory motive on the part of the town. The court explained:

“[P]ermitting town councils, planning commissions, and the like to hear the views of concerned citizens and other interested parties about proposed projects is the essence of all zoning hearings. There is no evidence in the record to suggest that the cited comments or similar ones, which were a small part of the total comments, motivated the commissioners or Town Council members to vote against the [Special Use Permit], and we decline

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to make such an inference based solely on the fact that the comments were made.” Budnick, 518 F.3d at 1117-18.

In other circumstances, courts have attributed the discriminatory comments of members of the community, or their concerns, to the governing board of the local agency, and have found discrimination based in part on those comments or concerns. In Stewart B. McKinney Foundation, Inc v. Town Plan and Zoning Com., 790 F.Supp. 1197 (D.Conn. 1992), the plaintiff, a nonprofit organization, sought to operate a group home for HIV-infected persons. The plaintiff intended only to house disabled persons at the residence and did not intend to provide any treatment or services. Upon learning of the plaintiff’s intentions, the town sent a letter asking the plaintiff thirteen questions about the operational details of the house and the medical needs of its intended occupants. Id. at 1204-1205. The town zoning commission subsequently held a meeting at which it determined the plaintiff needed to obtain a “special exception” to its zoning requirements in order to operate the home in a residential neighborhood. But the plaintiff had not applied for a special exception. Id. at 1205-1206. The plaintiff nonetheless asked the commission to reverse its decision, arguing that its proposed group home complied with the town’s definition of “family” for purposes of the zoning code. Id. at 1206. The Commission refused on the grounds that special exceptions are required for both “charitable uses” and “nursing homes.” Id.

The plaintiff sued the zoning commission and sought a preliminary injunction to enjoin the special exception requirement. Id. at 1207. The District Court issued the injunction and found that plaintiff was likely to prevail on its discriminatory treatment claim under the FHA based on circumstantial evidence. The court relied heavily on the comments of persons in the community who opposed the plaintiff’s plans. The court held that the comments were evidence that the commission acted with discriminatory intent. Id. at 1212-1213. The court also rejected as patently unreasonable the commission’s interpretation of the definition of “family” in the town’s regulations. The regulations defined “family” as including a group of five unrelated persons who live together as a single housekeeping unit, and the court found that plaintiff’s proposed residents clearly would constitute a family. Id. at 1213. The commission’s attempt to classify the plaintiff as a charitable use or nursing home was unreasonable and arbitrary because the plaintiff did not propose to provide any medical care or any other kinds of services. Id. at 1214. The court also found that the commission had discriminated because it had departed from its normal procedures by (1) requiring a special exception for a group that qualified as a “family,” (2) requesting that the plaintiff answer the thirteen questions before any use was formally proposed; and (3) conducting a hearing in the absence of any application by the plaintiff. Id. at 1213.

In Potomac Group Home Corp. v. Montgomery County, 823 F.Supp. 1285 (D. Md. 1993), the District Court reviewed several aspects of a county’s licensing program for group homes for the elderly. The County allowed such homes by right in all residential zones, but (1) required the operators of the group homes to send letters to each neighboring property owner setting forth their plans to operate, (2) subjected each proposed home to a program review board hearing; and (3) excluded from group homes persons who were emotionally, mentally, or socially incapable of taking action for self-preservation under emergency conditions, or who were insufficiently mobile to exit a building in an emergency. Id. at 1289-91. The District Court held that all three of these provisions violated the FHA. Id. at 1302. The neighbor notification

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requirement was declared facially invalid because it applied to no other groups and was unsupported by any rational basis. Id. at 1296. The notification rule instead caused a great deal of harm by provoking a negative reaction from the community and stigmatizing the disabled. Id. Likewise, the program review board hearing was declared invalid because the County only selectively applied it to projects that had provoked community opposition. Id. Moreover, the review boards included neighborhood representatives, but no one from the group home community. Id. at 1297. Thus, the County had given undue weight to community concerns and prejudices. Id. at 1298. The court dismissed the County’s argument that it was required to hold public meetings by state law. Id. at 1299. “To the extent that the state Open Meetings Act ‘stands as an obstacle to the accomplishment of the full purposes and objectives’ of the FHAA, it may not be enforced.” Id. Finally, the exclusion from group homes of persons incapable of exiting a building during an emergency was declared invalid because it irrationally excluded disabled persons from group homes. Id. at 1300. Fire code regulations already addressed the emergency needs of disabled persons to such an extent that the exclusion lacked any rational basis. Id.

In Support Ministries for Persons with AIDS, Inc. v. Village of Waterford, 808 F. Supp. 120, 122 (N.D.N.Y. 1992), a non-profit corporation brought suit against the village, alleging discrimination against the disabled by refusing to allow a residence for HIV-infected homeless persons. Among other actions, the village had drafted Local Law No. 2 of 1990, which amended the zoning ordinance’s definition of the term “boarding house” to exclude the relevant facility. Id. at 125. The ordinance was passed quickly during the time that the organization completed its purchase of the property, and there was no other indication that amending this definition was otherwise needed. Id. Moreover, plenty of other evidence, including comments of Village board members, indicated discriminatory animus. See id. at 123-28. The court found that plaintiffs established both discriminatory intent and disparate impact, stating, “[i]t is crystal clear that Local Law No. 2 of 1990 was enacted by the board members to prevent Support Ministries from establishing its adult home for homeless [individuals with AIDS] in Waterford.” Id. at 133. The court held, “the HIV-positive status of the future residents of the Sixth Street house was at least one factor, and probably the primary factor, for the enactment and application of the new zoning law.” Id. at 134. Furthermore, the court explained, “[d]efendants’ actions were blatantly based on the community’s unfounded fear of AIDS, their misperceptions of AIDS, and their prejudices against [persons with AIDS], and not on a legitimate zoning interest.” Id. at 136. When defendants asserted that the facility would result in a potential risk of infection of the village residents, the court stated, “[d]efendants’ argument merely repeats the uneducated, discriminatory beliefs that brought this case to the court. Their argument is totally unsupported by the medical evidence.” Id. at 137. The court did not invalidate the ordinance, however. Id. at 139-40. The ordinance applied only to this facility, and the court enjoined the village from interfering with the facility, thereby effectively enjoining the ordinance as it then applied. Id. at 139.

In Tsombanidis v. City of West Haven, 129 F. Supp. 2d 136, 139-40, 147 (D. Conn. 2001), the owner and residents of an Oxford House (a provider of housing for persons in recovery from alcohol or substance abuse) brought suit against a city and its fire district, alleging violations of FHA amendments and the ADA. The court granted the fire district’s motion for summary judgment regarding intentional discrimination but denied its motion regarding disparate impact, and the court denied the city’s motions for summary judgment regarding

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intentional discrimination and disparate impact. Id. at 162. Prompted by neighbors’ complaints, the city inspected the property and found various violations of the property maintenance code. Id. at 141. Plaintiffs claimed this was a departure from normal procedures. Id. at 152. A group of concerned neighbors also met with the mayor, circulated a petition, and attended a city council meeting, asserting pressure on the city. Id. at 143-44. A fire inspector was sent to the property and later issued an abatement notice to correct violations. Id. at 145.

Regarding discriminatory intent, the court stated, “even where individual members of government are found not to be biased themselves, liability may still be imposed where discriminatory governmental actions are in response to significant community bias.” Id. at 152. The court quoted Innovative Health Systems, Inc. v. City of White Plains, 117 F. 3d 37, 49 (2d Cir. 1997): “a decision made in the context of strong, discriminatory opposition becomes tainted with discriminatory intent even if the decisionmakers personally have no strong views on the matter.” Tsombanidis, 129 F. Supp. at 152. Upon the city’s declaration that “representative government requires that even arguably intolerant citizens have the right to have their complaints investigated,” the court agreed but explained that the city’s actions in response to these complaints must be examined and thus cannot be decided by a summary judgment motion. Id. at 153. As to the fire district, there was no evidence that community opposition played any role in its enforcement efforts, or even that the fire officials were aware of such opposition, thus the court granted summary judgment in favor of the fire district regarding intentional discrimination. Id. at 154-55.

The Second Circuit Court of Appeals affirmed in part and reversed in part in Tsombanidis v. West Haven Fire Department, 352 F. 3d 565, 581-82 (2d Cir. 2003). The court found as a matter of law that plaintiffs failed to establish a prima facie claim of disparate impact, questioning the district court’s methodology in reaching this conclusion. Id. at 575-77. However, regarding discriminatory intent, the court reiterated that plaintiffs offered valid evidence that the city rarely took enforcement action against boarding houses in residential neighborhoods, the city ignored Oxford Houses’ explanatory letters, and one of the property maintenance code officials was dissatisfied with Oxford House. Id. at 580. The appellate court affirmed the district court’s holding on this claim because evidence supported the court’s finding that the history of neighborhood hostility and pressure on city officials motivated the city in initiating and continuing its enforcement efforts. Id.

In Steinhauser v. City of St. Paul, 595 F. Supp. 2d 987, 991-92, 999, 1006 (D. Minn. 2008), private owners of residential properties brought suit against a city, alleging illegal enforcement of the city’s minimum residential property maintenance standards for violations on properties leased to low-income households. The court rejected a FHA discriminatory treatment claim. The city enforced its housing code by conducting proactive sweeps requested by city officials and responding to citizen complaints, but due to limited resources, housing inspectors had discretion in their application of the rules. Id. at 993. Plaintiffs alleged that neighboring properties also had code violations but did not receive enforcement orders, and they also claimed that the public housing agency received preferential treatment. Id. at 995. A legislative aide received a call from a resident who was concerned that her neighbors were submitting complaints about her due to her race. Id. at 1000. The aide relayed this call in an email, stating that there was a “very real possibility that people of color are unfairly targeted by the city’s complaint[-]based system,” and sought to set up a meeting with the neighbors to address this

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concern. Id. The court held that the email chain demonstrates that the resident was concerned about the neighbors rather than the city targeting her and that the city took these concerns seriously and sought to resolve the matter. Id. Thus, the email chain was not evidence of discriminatory animus. Id. Furthermore, although there was testimony of the neighbors making false allegations to the police, the court held, “discriminatory animus on the part of the neighbors is not evidence of discriminatory animus on the part of [the city].” Id. at 1004. The Court of Appeals affirmed the District Court’s decision. Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010).

The comments of local officials have also led to adverse results in court. In LeBlanc- Sternberg v. Fletcher, 67 F.3d 412, 419 (2d Cir. 1995), the federal government and private plaintiffs brought two suits against a village and its officers, alleging the village had been incorporated to exclude the Orthodox Jewish community through zoning restrictions on places of worship. The jury in the private plaintiffs’ suit found the village had violated the FHA, but two days later, the district court found against the federal government. Id. at 422. The court then corrected what it considered two inconsistent judgments by concluding that the village was entitled to judgment as a matter of law. Id. at 423. On appeal, the Second Circuit held the village was liable. Id. at 435. First, the court noted “the plethora of statements in the record attributed to . . . leaders who became Village officials, expressing anti-Orthodox Jewish sentiments.” Id. at 430. One official said, “the only reason we formed this village is to keep those Jews from Williamsburg out of here.” Id. The mayor called the Orthodox Jews “foreigners and interlopers,” “ignorant and uneducated,” and “an insult to the people who lived there previously.” Id. at 420. Another official said that the village did not have to pursue particular proceedings with respect to a home synagogue because “there are other ways we can harass them.” Id. Second, the events cited by the officials as evidencing a need to incorporate as a village, along with the subsequent actions, demonstrated an animosity toward Orthodox Jews. Id. at 431. The pre-incorporation zoning was seen as leading to the “grim picture of a Hasidic belt.” Id. The officials cited traffic and noise problems but only paid attention to those created by the Orthodox Jews. Id. The officials opposed slight variances for a synagogue’s construction but unanimously allowed a Catholic mausoleum variance. Id.

In Yeshiva Chofetz Chaim Radin, Inc. v. Village of New Hempstead, 98 F. Supp. 2d 347, 349 (S.D.N.Y. 2000), a non-profit Orthodox Jewish organization and two ultra-Orthodox Jewish residents brought suit against the village and its officials, alleging religious discrimination in zoning ordinances and their enforcement. In addition to specifically restricting the plaintiff’s use and occupancy of its property, the village zoning laws included a prohibition of multi-family housing and a requirement of a special permit to have two kitchens in one house, which plaintiffs claimed was discriminatory. Id. at 351. Affidavits were presented demonstrating allegedly discriminatory comments by the mayor in his recounting of a past history of intentional discrimination by the village. Id. at 355. The court denied defendants’ summary judgment motion. Id. at 349. Regarding the FHA claims, the court stated that the plaintiffs had raised a triable issue of fact as to motivation. Id.

In United States v. City of Parma, 661 F.2d 562, 564-65 (6th Cir. 1981), the U.S. Attorney General brought suit seeking to enjoin the city from violating the FHA with a number of acts which had the purpose and effect of maintaining racial segregation. Among other actions, the city refused to enact a fair housing resolution welcoming “all persons of goodwill,” passed

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four land use ordinances imposing height, parking and voter approval limitations on housing developments, did not apply for federal funds, and rejected proposals for public or low-income housing. Id. at 566-67. The district court found for the federal government, holding that at least some of the city’s actions “were motivated by a racially discriminatory and exclusionary intent” in order to “maintain the segregated ‘character’ of the City,” and the Sixth Circuit Court of Appeals affirmed in relevant part. Id. at 568, 579. There was evidence of elected officials’ public statements that were either overtly racist or found to have racist meanings, open hostility of both the residents and officials regarding low-income housing, and departures from normal practices by city employees in handling a subsidized housing project proposal, including unusually strict adherence to the planning and zoning code, and not accommodating the developer through informal negotiations. Id. at 566, 568, 575. There was also “ample testimony that Parma already had a reputation among black residents of the Cleveland area of hostility to racial minorities.” Id. at 574.

In Oxford House-C v. City of St. Louis, 843 F. Supp. 1556, 1572 (E.D. Mo. 1994), recovering alcoholics and drug abusers filed an action against a city, alleging FHA violations in the city’s zoning and building code enforcement. The district court found the city liable for both discriminatory intent and disparate impact, and the court held that plaintiffs were entitled to a declaratory judgment and a permanent injunction enjoining the city from enforcing its zoning code to prohibit a recovery facility from operating with over eight persons. Id. at 1584. The city received a complaint about the facility, and thus sent its city inspector to investigate, which led to subsequent inspections and citations, including for at least one non-existent violation. Id. at 1565-66, 1576. According to a city employee, “the neighbors did not have complaints about specific problems, but ‘concern for the idea that a drug rehab house was in their neighborhood.’” Id. at 1566. The decision to cite the facility for a violation of the zoning code was made by the city’s zoning administrator, who testified in a deposition that he “‘wouldn’t want them living next door.’” Id. at 1566-67. Regarding a FHA discriminatory intent claim, the court explained, “[i]ntentional discrimination can include actions motivated by stereotypes, unfounded fears, misperceptions, and ‘archaic attitudes’, as well as simple prejudice about people with disabilities.” Id. at 1575-76. The court further stated that demonstrating intentional discrimination does not require proof of a malicious desire to discriminate, but rather “[i]t is enough that the actions were motivated by or based on consideration of the protected status itself.” Id. at 1576. In this instance, the court held:

The evidence here showed that city officials responded to the presence of the Oxford Houses based on stereotypical fears of recovering addicts and alcoholics, and carried out their enforcement efforts in response to neighborhood and community fears and concerns about “some sort of drug rehab” house being in the two neighborhoods. In short, the evidence clearly showed that defendant’s actions were motivated by consideration of plaintiffs’ handicapped status.

Id. at 1576. The court explained that the city made no attempt to assuage the fears of its residents by explaining the benefits of the Oxford House program or the relevant non- discrimination laws and quoted Association of Relatives and Friends of AIDS Patients v. Regulations & Permits Admin., 740 F. Supp. 95, 104 (D. P.R. 1990): “a decisionmaker has a

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duty not to allow illegal prejudices of the majority to influence the decision making process.” Id. Plaintiffs presented evidence that the city had not prosecuted various religious orders that violated the ordinance. Id. at 1578. The city asserted that no one ever complained about the religious orders, but the court explained that this “supports the argument that defendant enforced the ordinance only against politically unpopular groups like the handicapped plaintiffs here,” finding discriminatory impact. Id. at 1578 & n.17.

The Eighth Circuit Court of Appeals reversed in Oxford House-C v. City of St. Louis, 77 F. 3d 249, 250-51 (8th Cir. 1996), holding the city acted lawfully. The court explained, “[r]ather than discriminating against Oxford House residents, the City’s zoning code favors them on its face. The zoning code allows only three unrelated, nonhandicapped people to reside together in a single family zone, but allows group homes to have up to eight handicapped residents.” Id. at 251-52. Despite challenges that the eight-person limit would destroy the financial viability of many Oxford Houses and that the city had not asserted a specific reason for choosing eight as the limit, the court concluded that the rule was rational. Id. at 252. Regarding the finding that the city singled out the Oxford Houses for zoning inspections and enforcement, the appellate court found this clearly erroneous “because Oxford House did not show the City ignored zoning violations by nonhandicapped people.” Id. The court noted that the city never received complaints about the other groups Oxford House alleged were violating the zoning code. Id. As to the city officials’ opinions, the court stated, “we believe the City’s enforcement actions were lawful regardless of whether some City officials harbor prejudice or unfounded fears about recovering addicts.” Id. These “isolated comments” do not reveal a discriminatory application of the zoning code, especially when the Oxford Houses were “plainly in violation of a valid zoning rule and City officials have a duty to ensure compliance.” Id. As to the officials’ awareness of community opposition, the court held that these inspectors did not hold policymaking positions, and thus their commentary and actions did not impute to the city as evidence of discriminatory intent. Id.

PRACTICAL ADVICE:

 Local officials should refrain from affirming or agreeing with discriminatory comments made by members of the public.

--- Discriminatory comments from the public, which are shown to influence a local agency’s decision adverse to a protected group, could form the basis for a successful challenge in court. Comments by members of the public alone, without agreement of the governing body, are unlikely to form the basis of a successful anti-discrimination lawsuit. Nevertheless, discriminatory comments on the record make for bad atmospherics and could taint an otherwise strong defense.

 Local officials should remind members of the public who make discriminatory comments that it is not permissible for government to discriminate based on a person’s disabled or otherwise protected status.

--- This might not always be possible given that multiple concerns are often in play. If local officials feel they are not in a position to issue admonitions in an emotionally

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charged environment, they should at the very least listen respectfully to everyone without expressly agreeing with anyone.

--- In a heated setting, it might be advisable for the Mayor or Chair to read a prepared statement at the outset of a public hearing, and before reconvening after each break, remind everyone of the governing law, and that disrespectful comments are inappropriate. This may help avoid one or more particular speakers feeling targeted if the Mayor or Chair reads a statement immediately after a speaker’s comments.

 Local officials should refrain from making comments that could be perceived as discriminatory by others.

--- Discriminatory comments by local officials, depending on their frequency and severity, may lead to liability in an anti-discrimination lawsuit.

--- On some occasions, attorneys from the U.S. Department of Justice attend City Council or Planning Commission meetings unbeknownst to anyone else present, and City officials do not learn of this until much later. Comments by local officials during those meetings could trigger further investigation by the Department of Justice culminating in a lawsuit brought by the United States.

 Local officials should state the reasons for their decision in non-discriminatory terms.

--- Language matters. Depending upon context, terms such as “those people” or “you people” or “them” do not read well in a transcript. Avoid demeaning terms such as “addicts” or “drunks” and the like. Courts develop a feel for the backstory based on the terms used. The more neutral and professional the language and tone, the better. Where the evidence is such that the case is a close call, courts might be willing to give the benefit of the doubt to the government when the record reflects good behavior.

 Local officials and government staff members should not align themselves with a group, no matter how well-intentioned that group may be, that opposes housing for disabled persons.

--- Officials and staff should not attend private meetings of an opposition group.

--- If officials and staff conduct workshops or seminars in an effort to resolve community differences, they should invite people from all groups to participate instead of inviting only some of the interested parties.

 If any interested party circulates inaccurate information that appears to be fueling public opposition to a protected group, particularly where the inaccurate information involves the action or inaction of local officials and staff members, the local agency should attempt immediately to provide accurate information.

 If a particular project, or the implementation of a regulation, requires input or action from multiple departments within the local agency, ensure that all departments communicate with each other so that none takes action inconsistent with the others.

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 Conform as much as possible to past practice. For example, if applications for use permits in a particular zone usually involve Planning Commission or City Council hearings over a period of a few hours on a single date, but an application involving a protected group involves hearings over multiple days where the same residents opposing a project speak more than once, or where the comments of a large number of residents opposing the project are repetitive, this could be considered evidence of discriminatory intent. Also, if the protected group is required to obtain a discretionary approval, ensure that the application process for that approval is not significantly more onerous than the process for any discretionary approval to which other groups may be eligible for the same purpose.

(ii) Articulating a legitimate nondiscriminatory reason for the regulation.

Courts view subjective explanations of regulations with skepticism. Objective evidence of asserted reasons leads to better results for the defendant agency. “In examining the defendant's reason, we view skeptically subjective rationales concerning why he denied housing to members of protected groups. Our reasoning, in part, is that ‘clever men may easily conceal their motivations,’ United States v. City of Black Jack, 508 F.2d 1179, 1185 (8th Cir. 1974). There is less reason to be wary of subjective explanations, though, where a defendant provides objective evidence indicating that truth lies behind his assertions of nondiscriminatory conduct.” Soules v. U.S. Dep’t of Housing & Urban Dev., 967 F.2d 817, 822 (2d Cir. 1992).

Concern for the residential character of the neighborhood is a legitimate and nondiscriminatory goal. Gamble v. City of Escondido, 104 F.3d 300, 306 (9th Cir. 1997). “Though [Plaintiff] made an effort to ensure that [the use] would aesthetically blend in with its surrounding neighborhood, [the use] nevertheless required a [use permit] because certain aspects of the [the use] did not meet all of the requirements of the residential zones in which it would have been located.” Budnick, 518 F.3d at 1116. See also Gamble, 104 F.3d at 305 (“[W]e … conclude the reason the City advances for its decision, concern for the character of the neighborhood, is legitimate and nondiscriminatory.”). Nonetheless, if a municipality has shown little regard for the character of the neighborhood by previously allowing other uses inconsistent with that asserted character, the court most likely will reject preservation of neighborhood character as a legitimate nondiscriminatory reason.

(iii) Showing the asserted reason for the regulation is a pretext for discrimination.

In direct evidence cases, courts decide the issue of pretext by examining the same factors that inform whether plaintiff has established at the outset a prima facie case of discriminatory treatment. In several of the cases discussed above, it was the gravity of plaintiff’s evidence, or lack thereof, regarding legislative history, sequence of events, or departure from customary practice, that was outcome determinative on the issue of pretext.

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In Keys Youth Services, Inc. v. City of Olathe, 248 F.3d 1267, 1269 (10th Cir. 2001), a youth group homes operator brought suit against the city, alleging in relevant part that the denial of a special use permit (SUP) was a violation of the FHA. The district court ruled for Olathe on this claim. Id. at 1269-70. On appeal, Keys alleged that Olathe denied the SUP because of the children’s disabilities, but Olathe responded that “it denied the permit because the troubled juveniles would pose a legitimate threat to neighborhood safety.” Id. at 1273. The Tenth Circuit called this a legitimate nondiscriminatory basis for the decision. Id. Thus, “the sole issue for trial focused on whether Olathe’s safety concerns were mere pretext for handicap discrimination.” Id. The district court found this reason was not mere pretext, and the appellate court stated this inquiry was a factual issue. Id. at 1273-74. The home was for youths ages 12 to 17 who were abused, neglected, or abandoned, and whose scores were high on a rating scale of juvenile behavioral problems, meaning they were typically antisocial, aggressive, and engaged in violent crimes. Id. at 1274. Keys operated another such home that had a break-out in the past, and the juveniles went on a crime spree. Id. Although Keys showed that additional nighttime staff was hired after the break-out, which had prevented further break-outs, and the majority of police calls did not affect the neighbors, the court stated, “Olathe’s fears are not groundless. . . . It is not unreasonable to think that [these juveniles] are capable of causing similar problems in the future.” Id. at 1274-75. It then affirmed the district court’s holding that this reason was not mere pretext. Id. at 1275.

2. Disparate Impact

NOTE: Many published federal decisions analyze whether a challenged regulation is invalid under the FHA and other anti-discrimination laws on the theory that the regulation has an adverse disparate impact on a protected group. Recently, however, the very existence of the disparate impact theory under federal law has been challenged. The question of whether a disparate impact claim even is cognizable under the FHA is presented in a Petition for a Writ of Certiorari pending before the U.S. Supreme Court in Mount Holly v. Mount Holly Gardens Citizens in Action, Inc. (Docket No. 11-1507). The Supreme Court is expected to consider the petition at its opening conference on September 24, 2012. The high court is very likely to take the case because it granted certiorari last term in a case that presented the same question. Magner v. Gallagher (Docket No. 10-1032). The Magner case was not decided, however, because one week before the scheduled oral argument the parties stipulated to dismissal of the writ of certiorari, and the Court subsequently dismissed the case.

“To establish a prima facie case of disparate impact under the FHA, ‘a plaintiff must show at least that the defendant’s actions had a discriminatory effect.’” Budnick, 518 F.3d at 1118. “‘Discriminatory effect’ describes conduct that actually or predictably resulted in discrimination.” Pfaff v. U.S. Dept. of Housing and Urban Development, 88 F.3d 739, 745 (9th Cir. 1996) (Pfaff). “[P]laintiff must establish ‘(1) the occurrence of certain outwardly neutral … practices, and (2) a significantly adverse or disproportionate impact on persons of a particular [type] produced by the [defendant’s] facially neutral acts or practices.’” Budnick, 518 F.3d at 1118 (citing Pfaff, 88 F.3d at 745) (alterations in original) (citations omitted). “[A]n inference of discriminatory impact is not sufficient.” Budnick, 518 F.3d at 1118; Pfaff, 88 F.3d at 745 (“To establish a prima facie case of discrimination without intent, the charging party must ‘prove the discriminatory impact at issue; raising an inference of discriminatory impact is insufficient.’”).

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“We have previously recognized the necessity of statistical evidence in disparate impact cases.” Budnick, 518 F.3d at 1118-19 citing Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003) (“Summary judgment is appropriate when statistics do not support a disparate impact analysis” (citation omitted)). “The farther removed from local statistics the plaintiffs venture, the weaker their evidence becomes.” Budnick, 518 F.3d at 1119 citing Mountain Side Mobile Estates P’ship v. Sec. of Hous. and Urban Dev., 56 F.3d 1243, 1253 (10th Cir. 1995). “[T]he focus in a disparate impact case is usually ‘on statistical disparities, rather than specific incidents, and on competing explanations for those disparities.’” Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990) (Rose) quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 108 S.Ct. 2777, 2784-85, 101 L.Ed.2d 827 (1988).

In Rose, the Ninth Circuit explained, “the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the [disparate impact]. The statistical disparities must be sufficiently substantial that they raise such an inference of causation.” 902 F.2d at 1424. “A defendant may rebut a plaintiff’s proof of disparate impact by ‘supply[ing] a legally sufficient, nondiscriminatory reason.’” Budnick, 518 F.3d at 1118 (quoting Affordable Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1194 (9th Cir. 2006). After the defendant articulates a legitimate nondiscriminatory reason, plaintiff may rebut that reason by showing that it is a pretext for discrimination.

3. Reasonable Accommodation

“A municipality commits discrimination under section 3604(f)(3(B) of the FHA if it refuses ‘to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [the physically disabled] equal opportunity to use and enjoy a dwelling.’” Gamble, 104 F.3d at 307. “To prove that an accommodation is necessary, plaintiffs must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice. Put another way, without a causal link between defendants' policy and the plaintiff's injury, there can be no obligation on the part of defendants to make a reasonable accommodation.” Giebeler v. M & B Associates, 343 F.3d 1143, 1155 (9th Cir. 2003) (Giebeler) (internal quotations and citations omitted).

Under federal anti-discrimination laws, an accommodation is not reasonable if it imposes an undue financial or administrative hardship on the agency or fundamentally changes an agency’s regulatory program. Giebeler, 343 F.3d at 1157. Thus, in the zoning context, a necessary accommodation is reasonable unless it requires a fundamental alteration in zoning regulations or imposes an undue financial or administrative burden. The answers to these questions “will vary depending on the facts of a given case.” City of Edmonds v. Washington State Bldg. Code Council,18 F.3d 802, 806 (9th Cir.1994). “The requirement of reasonable accommodation does not entail an obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well.” Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.1995).

A reasonable accommodation claim is not ripe unless the unsuccessful applicant has exhausted its administrative remedies in seeking the accommodation. In U.S. v. Village of Palatine, 37 F.3d 1230 (7th Cir. 1994) (Village of Palatine), the court analyzed a FHA housing discrimination claim on behalf of persons in recovery. 37 F.3d at 1233-34. The claim alleged

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that the Village failed to make a reasonable accommodation that would allow a group home to continue operating in its then-current location. Id. at 1233. It appeared that the Village’s zoning ordinance would have allowed the sober living home to continue in its then-current location as a special use. Id. However, the special use process involved public notice and hearing, and because of this plaintiff refused to invoke it. Id. “On appeal the Village argue[d], among other things, that it [could not] be found to have failed in its obligation to make a reasonable accommodation necessary to afford the [group home residents] an equal opportunity to use and enjoy their dwelling because the [sober living home] never invoked the procedures that would allow the Village to make such an accommodation.” Id. at 1233. The Seventh Circuit agreed. Id. The Village could not have authorized the use sought by plaintiff until plaintiff requested authorization. Id. The court found, to the extent that the sober living home’s claim was based on the Village’s failure to make a reasonable accommodation, the issue was not ripe. Id. “The zoning process, including the hearings on applications for conditional use permits, serves the purpose of enabling a city to make a reasonable accommodation in its rules, policies, and practices. The city must be afforded the opportunity to make such an accommodation.” Id. (internal quotations and citations omitted).

Other cases are in agreement. See Oxford House-A v. City of University City, 87 F.3d 1022, 1024-25 (8th Cir. 1996) (citing Oxford House-C v. City of St. Louis, 77 F.3d 249, 253 (8th Cir. 1996) (“The Oxford Houses must give the City a chance to accommodate them through the City's established procedures for adjusting the zoning code.”); Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 602 (4th Cir. 1997) (“Under the Fair Housing Act, however, a violation occurs when the disabled resident is first denied a reasonable accommodation….”); Enriching, Inc. v. City of Fountain Valley, 151 Fed.Appx. 523, 525 (9th Cir. 2005) [unpublished] (citing Village of Palatine’s holding that a city “must be afforded an opportunity to make such an accommodation pursuant to its own lawful procedures.”) Village of Palatine identified two exceptions where the claim would be ripe even if the plaintiff had not exhausted administrative remedies: (1) if the claim were a challenge to the application procedure itself; and (2) if the application process was demonstrably futile. Id. at 1234. The court also limited the ripeness rule to reasonable accommodation claims and noted that “if plaintiff's claim were of discriminatory intent, rather than failure to make a reasonable accommodation, th[e] claim might well be presently ripe even though [the plaintiff] has not sought a special use approval.” Id. at 1233, fn.3. The Eighth Circuit has followed the Seventh Circuit's ripeness rule for FHA reasonable accommodations claims. See Oxford House-A v. City of Univ. City, 87 F.3d 1022, 1024-25 (8th Cir.1996).

Following is a brief discussion, divided into two groups, of federal cases evaluating reasonable accommodation claims. The government lost each case presented in the first group, and won each case presented in the second group.

Cases The Government Lost

In McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004), a man with AIDS was cited by the City for maintaining a nuisance for failure to maintain his yard free of garbage and debris. Id. at 1260. After receiving an order to clean the property, the man asked for additional time due to his health (he had AIDS-related meningitis). Id. The City ignored the request, hired a contractor to clean the property, and sent the man a bill for the cost. Id. The Ninth Circuit held

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that the man had stated a reasonable accommodation claim under the FHA and the ADA. Id. at 1264, 1268. The City argued that it had not denied the man the use and enjoyment of his home because it had neither excluded him from his home nor created less of an opportunity for him to live in the neighborhood of his choice. Id. at 1262. The court disagreed, holding that the imposition of a financial burden can sufficiently interfere with the use and enjoyment of a disabled person’s home so as to require a reasonable accommodation. Id. at 1262-1263. The court did not pass on whether the proposed accommodation was reasonable, but remanded the matter back to the district court. Id. at 1264, 1270. In doing so, it stated that “what constitutes a reasonable accommodation … requires a fact-specific, individualized analysis of the disabled individual’s circumstances and the accommodations that might allow him to meet the program’s standards.” Id. at 1270 (internal quotation and citation omitted).

In U.S. v. City of Chicago Heights, 161 F.Supp.2d 819 (N.D.Ill. 2001), the federal government alleged under the FHA that the City failed to provide mentally disabled persons a reasonable accommodation from the City’s requirement that group homes be separated from each other by 1000 feet. Id. at 821. The District Court held that the proposed accommodations had to be both necessary and reasonable. Id. at 833-834. Moreover, the court held that the FHA requires only a showing that the requested accommodation is one way of ameliorating the plaintiff’s disability. Id. at 836. Thus, the court rejected the City’s argument that the government had failed to show that a particular location was necessary. Id. With respect to the reasonableness requirement, the court held that a necessary accommodation is reasonable unless it requires a fundamental alteration in the nature of the zoning scheme, or imposes undue financial or administrative burdens. Id. The City argued that exempting the group home in question would fundamentally alter its spacing requirement which was intended to prevent clustering and facilitate normalization for disabled residents. Id. at 837. The court rejected this argument, expressing great skepticism regarding anti-clustering justifications. Id. at 838. The court nonetheless left open the possibility that under different facts, a waiver of a spacing requirement could be unreasonable. Id. at 840. In this case, however, the court determined that granting a special use permit despite the spacing requirement would not result in clustering that would prevent the integration of disabled persons or change the residential character of a neighborhood. Id. Thus, it would not result in a fundamental alteration of the zoning scheme. Id.

In Sharpvisions, Inc. v. Borough of Plum, 475 F.Supp.2d 514 (W.D.Pa. 2007) the Borough allowed single family homes as a matter of right in an residential zone but required group homes to obtain a CUP. Id. at 518. The Borough cited a group home for the disabled for operating without the necessary CUP, and the operator appealed the enforcement notice to the Borough Zoning Hearing Board. Id. at 519. The operator argued that its residents should be treated as a “family” for purposes of the zoning code and thus did not require a CUP. Id. The Borough denied the appeal and the operator sued under the FHA, asserting a failure to provide a reasonable accommodation. Id. at 520. The District Court held that the Borough had failed to provide a reasonable accommodation. Id. at 526. The operator sufficiently demonstrated that classifying the residents as a family was necessary to provide them an equal opportunity to enjoy the housing of their choice. Id. At the same time, the Borough failed to meet its burden to show that the requested accommodation was unreasonable. Id.

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In Community Services, Inc. v. Heidelberg Township, 439 F.Supp.2d 380 (M.D.Pa. 2006), a healthcare company sought a variance to operate a group home for the mentally disabled, and sought a variance to classify the residents as a “family” for purposes of the Town’s zoning code. Id. at 384. The variance would have allowed the group home to operate as a single-family residence as a matter of right in an agricultural zone. Id. The town denied the variance request and the operator sued on behalf of the patients under the FHA and sought a preliminary injunction against the Town. Id. at 391. The District Court held that the operator had a substantial likelihood of success on its reasonable accommodation claim. Id. at 398. The record showed that the plaintiffs required around-the-clock care to help them with their everyday living and that assisted living facilities were not allowed anywhere in the Town as a matter of right. Id. at 398-399. Thus, the operator was likely to meet its initial burden of showing that the variance was necessary to allow the residents an equal opportunity to live in the Town. Id. at 399. At the same time, there was nothing in the record to suggest that the requested variance was unreasonable. Id.

In Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3rd Cir. 1996) a town failed to reasonably accommodate a nursing home by denying it a variance to operate in a rural residential district. Id. at 1103. Granting the variance would not have imposed undue financial or administrative burdens because the residents would have become new taxpayers and would not impose any special burdens on municipal services. Id. at 1105. At the same time, granting the variance would not have fundamentally undermined the Town’s zoning scheme because residential retirement communities were allowed in the same zone and are similar in nature to a nursing home. Id.

In Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996), operators of a residential home for the elderly and disabled sought to rezone its property to enable its expansion from 6 to 9 residents. Id. at 788. The Sixth Circuit held that the City failed to provide a reasonable accommodation when it denied the request. Id. at 795. The expanded facility was necessary because (1) disabled seniors cannot live in residential areas without assistance; and (2) there was an insufficient supply of assisted living facilities in the area. Id. at 796. The accommodation was reasonable because the additional residents would not significantly increase traffic and parking problems. Id.

Cases The Government Won

In Gamble v. City of Escondido, 104 F.3d 300 (9th Cir. 1997), the plaintiff sought a conditional permit to construct a residential facility for the elderly and disabled, which would also contain a health care facility that would be open to the general public. Id. at 303-304. The Ninth Circuit held that the City’s affirmative duty under the FHA to provide a reasonable accommodation did not require it to allow a health care facility in a residential area. Id. at 307. This case is perhaps best read as being consistent with the requirement that the requested accommodation not fundamentally alter the jurisdiction’s zoning scheme.

In Howard v. City of Beavercreek, 108 F.Supp.2d 866 (S.D.Ohio 2000), a man who suffered from post traumatic stress disorder requested a variance to erect a fence which exceeded the City’s height limit so as to block his neighbor’s view onto his property. Id. at 869. (The man believed that the neighbors were spying on him, which contributed to his stress and heart

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condition.) Id. The City denied the variance and the man sued claiming the City failed to reasonably accommodate his disability. Id. The District Court held that the height variance for the fence was not a necessary accommodation because the plaintiff had lived in his home for 15 years without the fence and only stated that he might be forced to move from his home if he could not build the fence. Id. at 873. The court also held in the alternative that the denial of the requested variance was justified under the public safety exemption found in 42 U.S.C. § 3604(f)(9), which states: “Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” The court found that the fence would pose a direct threat to pedestrians and vehicular traffic by blocking sight lines at an intersection. Id. at 875.

In Means v. City of Dayton, 111 F.Supp. 2d 969 (S.D. Ohio 2000), a residential care facility for the mentally disabled was granted a CUP to operate in a residential area subject to provision of additional off-street parking that was not required of other residential uses. Id. at 974. The operator claimed that these conditions caused her to incur additional expenses and should have been eliminated as a reasonable accommodation. Id. The District Court disagreed, holding that the Fair Housing Act does not override local zoning controls merely because they might make housing more expensive for the disabled, absent a showing that the expense actually prevents the disabled from living in a residence. Id. at 978-979.

In Hemisphere Building Co., Inc. v. Village of Richton Park, 171 F.3d 437 (7th Cir. 1999), a developer proposed two 4-unit buildings, where the units on the first floor would be built to meet the needs of wheelchair bound persons. Id. at 438. The Village offered to rezone the property to allow a total of 3 units, but the developer rejected this offer because it would result in more expensive units that would be harder to sell. Id. at 439. The Seventh Circuit held that the Village had not failed to make a reasonable accommodation. Id. The only burden placed on the disability was added expense, and this is a burden that all bear regardless of disability. Id. at 440.

In Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997), a group home for elderly and infirm requested a variance from the County to expand from 8 to 15 disabled and elderly residents. Id. at 599. The County denied the variance and the operator sued, claiming intentional discrimination and failure to make a reasonable accommodation. Id. The Fourth Circuit held that the plaintiff did not carry its burden to show that the requested accommodation was necessary to provide the disabled with an equal opportunity to use and enjoy a dwelling. Id. at 606. The County’s zoning code already allowed group homes, and 30 other facilities were already operating in the County. Id. at 605. The plaintiff failed to present any evidence that the requested expansion was necessary to make the home economically viable or that the expansion would be therapeutically meaningful. Id. The case is also notable because the Fourth Circuit expressly held that the plaintiff’s failure to exhaust its administrative remedies gave preclusive effect to the County Planning Board’s factual findings. Id. at 601.

In Erdman v. City of Fort Atkinson, 84 F.3d 960 (7th Cir. 1996), the operator of a proposed group home for persons who were elderly and disabled requested a CUP to operate in a residential zone. Id. at 962. The City denied the request on grounds that the application failed to show development plans for the entire 9-acre parcel and showed a cul-de-sac that was

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inconsistent with the City’s master zoning plan. Id. The Seventh Circuit held that the City did not fail to make a reasonable accommodation because requiring complete plans that are consistent with the master zoning plan was not necessary to provide the disabled with an equal opportunity to enjoy a dwelling. Id. at 963.

In U.S. v. Village of Palatine, 37 F.3d 1230 (7th Cir. 1994), the Seventh Circuit held that the Village did not fail to provide a reasonable accommodation when it subjected a group home for persons recovering from substance abuse to a special use permit requirement. Id. at 1232. The residents had argued that the SUP process would subject them to public hearings, vocal opposition, and unfair scrutiny based on their disability. Id. at 1233. The Seventh Circuit refuted this argument: “Public input is an important aspect of municipal decision making; we cannot impose a blanket requirement that cities waive their public notice and hearing requirements in all cases involving the handicapped.” Id. at 1234.

In Thornton v. City of Allegan, 863 F.Supp. 504 (W.D.Mich. 1993), operators of a proposed adult foster care facility sought a CUP to operate in the City’s central business district. Id. at 506. The city denied the request based on inconsistent land uses and the operators sued, claiming failure to make a reasonable accommodation. Id. at 507. The District Court held that the City had made a reasonable accommodation by offering to assist the plaintiff in finding an alternate location. Id. at 510. The city held meetings with realtors and rezoned the alternate site to allow for the proposed use with a CUP. Id. Moreover, the court held in the alternative, the City did not fail to reasonably accommodate even without its efforts to find an alternate site because the CUP denial was neither unduly burdensome nor otherwise discriminatory. Id. at 510-511.

PRINCIPLES DISTILLED FROM REASONABLE ACCOMMODATION CASES:

 In evaluating a reasonable accommodation request, local governments bear the burden of demonstrating that the request, if granted, would result in a fundamental alteration of a regulatory program, or in an undue financial or administrative burden on the local agency.

 If a zoning regulation is itself invalid, courts will reject a municipality’s argument that a reasonable accommodation will generate a fundamental alteration of that regulation.

 In the uncommon and extreme case where a protected use is altogether banned by a municipality, courts will reject the position that allowing the use will result in a fundamental alteration of the municipality’s regulations.

 An accommodation that would otherwise be reasonable may become unreasonable if a municipality attaches invalid conditions to the accommodation.

 Local agencies may show that a reasonable accommodation would result in a fundamental alteration of its regulatory program if admissible evidence shows that the accommodation would pose a concrete threat to public safety.

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General Municipal Litigation Update

Thursday, September 6, 2012 General Session; 4:15 – 5:30 p.m.

Wynne S. Furth, Attorney at Law

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

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League of California Cities 2012 League of California Cities Annual Conference 168 City Attorneys’ Track San Diego Convention Center, San Diego City Attorney's Department, Annual Conference League of California Cities September 2012 Wynne Furth

GENERAL MUNICIPAL LITIGATION UPDATE

For Cases Reported Between May 1, 2012 and July 31, 2012

169 Table of Cases

Alpha Delta Chi-Delta Chapter v. Reed 684 F. 3d 790, petition for cert. denied………………………………………………………. .1

American Coatings Association v. South Coast Air Quality District 54 Cal. 4th 446……………………………………………………………………………….. 12

American Trucking Associations, Inc. v. City of Los Angeles 660 F. 3d 384…………………………………….…………………………………………… 1

Armour v. City of Indianapolis, Indiana 132 S. Ct. 2073…………………………………………………….…………………………. 7

Assessor of County of Santa Barbara v. Assessment Appeals Board No. 1 (Rancho Goleta Lakeside Mobileers, Inc.) Petition for rehearing granted…………………………………………………………………6

Association of Irritated Residents v. California Air Resources Board 206 Cal. App. 4th 1487……………………………………………………………………….13

City of Chula Vista v. Gutierrez 207 Cal. App. 4th 681……………………………………………………………………...…12

City of Colton v. Singletary 206 Cal. App. 4th 751………………………………………………………………………...15

City of Maywood v. Los Angeles Unified School District 207 Cal. App. 4th 1075...... 15

City of Palmdale v. State Board of Equalization 206 Cal. App. 4th 329………………………………………………………………………...14

Consolidated Irrigation District v. Superior Court (City of Selma) 205 Cal. App. 4th 697…………………..…………...…………………………...…………….4

Goldstone v. County of Santa Cruz 207 Cal. App. 4th 1038…………………………………………………………………...…..12

Griffith v. City of Santa Cruz 207 Cal. App. 4th 1318...... 12

Haynes v. City and County of San Francisco ___ F. 3d ___...... 15

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Housing Partners, Inc. I v. Duncan 206 Cal. App. 4th 1335…………………………………………………………………………9

Long Beach Police Officers Association v. City of Long Beach 203 Cal. App. 4th 292, petition for review granted………………...………………….………5

Kaahumanu v. State of Hawaii 682 F. 3d 789…………………………………………………………………………………10

Marsh v. County of San Diego 680 F. 3d 1148………………………………………………………………….…………….. 5

Michael Leslie Productions, Inc. v. City of Los Angeles 207 Cal. App. 4th 10...... 9

National Federation of Independent Business v. Sebelius 132 S. Ct. 2566……………………………………………………………………………...…1

Nordyke v. King 681 F.3d 1041…………………………………………………………………………….…..11

Patel v. City of Los Angeles ___ F.3d __...... 6

The Press Democrat v. Sonoma County Herald Recorder 207 Cal. App. 4th 578…………………………………………………………………………..2

Ralphs Grocery Company v. Missionary Church of Disciples of Christ Petition for review granted……...... 12

State Building and Construction Trades Council of California, AFL-CIO v. City of Vista 54 Cal. 4th 547…………………………………………………………………………………6

Opinions of the California Attorney General

No. 10-902 (McLeod)………………………………………………………………………….1

No. 11-401 (Gaines)……………………………………………………………………...……2

No. 12-301 (de Leon)…………………………………………………….…………………….1

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General Municipal Law Litigation Update (excluding land use, eminent domain, personnel, medical marijuana, red-light camera, civil rights and tort cases)

CHAPTER 1. NATURE OF MUNICIPAL CORPORATIONS

I. D. CONSTITUTIONAL LIMITS ON MUNICIPAL AUTHORITY §1.33 Federal Preemption Doctrine

UPDATE: American Trucking Associations, Inc. v. City of Los Angeles 660 F.3d 384 (9th Cir. 2011) - Petition for writ of certiorari filed December 22, 2011. [Harbor air-pollution regulations.]

§1.36 Preemption Due to Conflict with State General Law Police department may establish guidelines allowing impound of vehicle seized under “community caretaking” procedures for less than thirty days.

Opinion of Kamala D. Harris, Attorney General (No. 12-301 – de Leon) May 3, 2012

Vehicle Code 22651(p) and 124602.6(a)(1) both authorize impounding of vehicles when the driver cannot legally remove the vehicle from the street. One specifies a minimum thirty-day impoundment for unlicensed drivers, while the other sets no minimum. Los Angeles adopted a policy permitting early release for “minor” problems upon showing proof of license, current registration, et cetera. The Attorney General concludes this is lawful. Both statutes grant discretionary authority to local police; one is not a special statute governing a more general one. The Legislative Counsel reached an inconsistent conclusion on February 11, 2012 in its (unpublished) opinion No. 1200017.

§1.64 Free Exercise Clause UPDATE: Alpha Delta Chi-Delta Chapter v. Reed 648 F. 3d 790 (9th Cir. 2011) Cert. denied, March 19, 2012 [Public university may deny official recognition to student .clubs that limit participation based on religion.]

I. F. INTERGOVERNMENTAL RELATIONS §1.89 Power Reserved for States under Tenth Amendment Federal government may not require States to expand existing Medicaid program in order to keep federal funding.

National Federation of Independent Business v. Sebelius United States Supreme Court, June 28, 2012 132 S. Ct. 2566

172 The Patient Protection and Affordable Care Act of 2010 was intended to reduce the number of United State’s residents without medical insurance. It requires most Americans to obtain “minimum essential” health insurance coverage and it requires insurers to sell policies to almost everyone (“guaranteed issuance”). In 2014, those who do not have this minimal coverage will be required to make a “shared responsibility payment” to the Internal Revenue when filing their tax returns. Numerous organizations sued to challenge this “individual mandate.” They lost.

Medicaid offers federal funds to the states to assist in providing medical care for the needy. All 50 states participate in the program. The Affordable Care Act requires that states enlarge the pool of those eligible to participate or face reductions in the federal subventions. This expansion is an integral part of the financing plan for the Affordable Care Act. Twenty-six states challenged the constitutionality of this “Medicaid expansion.” They won.

A divided Supreme Court held:

The majority: a. (Roberts, Breyer, Kagan) Congress has the power to tax and spend money for the general Welfare. One way to do this is to make grants to the States. Conditioning these grants greatly expands federal power and can be a threat to federalism. Furthermore, when States carry out federal programs it is harder for citizens to hold the proper elected officials accountable. A federal program may appear to be a State program. Conditions on grants must be unambiguous; they must relate to the program being funded; they may not induce States to engage in unconstitutional activities. Most importantly, conditions must be inducements, not compulsions. An example of a permissible inducement was the federal law reducing highway funds by 5% to States that refused to raise the minimum drinking age to 21. [South Dakota v. Dole, 438 U. S. 203 (1987).]

Congress, by expanding the Medicaid program from one covering certain classes of poor people (the elderly, disabled, children, or and those carrying for their children) to the coverage of poor people generally, created a new program. A second ground for striking down the provision is that Medicaid subventions are so big that refusal is not a realistic option. (Medicaid subventions are typically one-fifth of each state’s budget.) However, the provision is severable. b. (Scalia, Kennedy, Thomas, Alito) The provision is not severable and the entire Act should be struck down. It is central to the funding of the Act.

The dissent: (Ginsburg, Sotomayor) Congress has the right to spend federal funds for the general Welfare, and each Congress has the right to modify existing programs. Medicaid grants have always been explicit on this point. The Affordable Care Act did not create a new health care program. Medicaid always provided health care for the poor and it still would, since people making $14,856 a year (133% of the poverty level—the new eligibility standard) are definitely poor. The required changes in services to be provided have been a local option for years and the reimbursement rates have only gone up. States have four years to adjust to the change. The Roberts’ test of practical ability to turn the grant down is unworkable.

173 II. MUNICIPAL ORGANIZATION AND REORGANIZATION II. C. ANNEXATION AND DETACHMENT §1.149 Annexation and Detachment LAFCO cannot split large “island” into smaller chunks to streamline annexation proceedings.

Opinion of Kamala D. Harris, Attorney General (No. 10-902 - McLeod) June 1, 201

To facilitate annexation of “pockets of unincorporated territory,” California adopted “island annexation procedures” which, under certain circumstances, eliminate the protest rights of those being annexed. One requirement is that the island “not exceed 150 acres in area, and that the area constitutes the entire island.” (Government Code section 56375.3.) The Attorney General continues to be of the opinion that LAFCO may not carve an “island” into islets of less than 150 acres in order to allow streamlined annexation.

III. B. CITY COUNCIL §1.222 Term Limitations in Cities.

Term served before effective date of term-limit initiative cannot be counted towards limits; terms that commenced ten days before the effective date are to be counted towards the limit.

Opinion of Kamala D. Harris, Attorney General (No. 11-401 – Gaines ) July 12, 2012

Government Code section 36502 authorizes local voters to set city council term limits prospectively. The voters of Loomis, a general law city, passed a measure that provided “any [council] member who has served two terms prior to August 1, 2010 must sit out eight years.” At the same time, they re-elected two council members who had served more than two terms before August 1, 2010. The Attorney General’s opinion is that the “sit out” requirement is void because it retroactively alters the consequences of past service.

There is a ten-day delay after the certification of the election results before the new ordinance is in effect. Therefore, three councilmembers were sworn in, and commenced their new terms ten days before the term limits came into effect. The Attorney General concludes these new “partial terms” are to be counted (as full terms) towards the two term limit.

§1.239 Publication of Ordinance

Newspaper loses its status as a paper of general circulation when it is no longer printed in county and cannot prove it qualifies under exception for pre-1923 papers.

The Press Democrat v Sonoma County Herald Recorder (June 9, 2012) C.A. 1st 207 Cal. App. 4th 578

174 The Herald Recorder, then known as the Sonoma County Herald, was adjudicated a newspaper of general circulation in 1953. In 2010, The Press Democrat sued to vacate this determination on the grounds that the paper was no longer printed in the county and did not qualify for an exemption from the printing requirement for pre-1923 papers. The Press also argued that the Herald Recorder no longer had a bona fide list of paying subscribers in the county. Reversing the trial court, the appeals court found that the defendant had failed to meet its burden to show that it was [the successor to] a paper of general circulation before 1923 and should lose its status as a paper of general circulation. (The New York Times owns The Press Democrat; the Daily Journal owns the Herald Recorder. At stake was the right to publish notices of trustee’s sales, a big business in recent years.)

CHAPTER 2. OPEN GOVERNMENT AND ETHICS

IV. CALIFORNIA PUBLIC RECORDS ACT| §2.215 Records Subject to Inspection Under California Public Records Act 1. Reference to document by general website insufficient to make it part of administrative record. 2. Subconsultant’s files were not public records

Consolidated Irrigation District v Superior Court (City of Selma) C. A. 5th April 26, 2012 – petition for review filed July 2, 2012 205 Cal. App. 4th 697

The City of Selma certified an EIR on a new commercial development; the irrigation district sued, arguing that the City has failed to adequately consider damage to the local aquifer. A dispute arose about (1) what documents the district could obtain under a public records request and (2) what should be included in the administrative record required by CEQA. CEQA requires that the record include written comments received and written evidence submitted, as well as “documents referenced and relied upon in the EIR.” Held: 1. A document is submitted and becomes part of the record when: a. A physical copy is delivered by the commenter, b. The commenter advises the Lead Agency that it already possesses a copy of the document and offers to provide another if needed, c. The commenter provides the specific URL of the document on the World Wide Web and requests that the document be part of the record. 2. A document is not made part of the record by reference to a “general web page” rather than a document-specific URL. 3. Under both CEQA and the Public Records Act, the city’s “files on the project” included the environmental consultant’s files. Under typical contract language the city has ownership of those documents. However, under that same language, the city had no right to subconsultant’s documents and never had copies of them. The court noted that sub-consultant documents may become part of the record under other CEQA provisions. 4. The (CEQA) administrative record includes audio recordings of public hearings (as well as minutes) if no verbatim transcript exists.

175 IV. D. EXEMPTION FROM DISCLOSURE § 2.229 Overview of Exemptions U.S. Constitution Gives Family Control of Public Dissemination of Death Images

Marsh v. County of San Diego 680 F. 3d 1148 9th Circuit May 29, 2012

Marsh’s child died of traumatic injuries; her companion was convicted of murder. Twenty years later, the conviction was set aside. A retired county prosecutor, who had retained a copy of a picture of the dead child, wrote a memorandum asking What Really Happened to Phillip Buell? He gave this material and the picture to a newspaper and television station. Marsh sued the County and the retired prosecutor for violation of her 14th Amendment Due Process Rights. Expanding on earlier cases finding a privacy right against distribution of death images where “publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern,” the court ruled that Marsh had a right not to have the image distributed in this fashion.

The Court based its decision in part on Code of Civil Procedure section 129, which severely limits copying and distribution of autopsy photos. CCP section 129 establishes a privacy right which cannot be ended without due process. While the right exists, the §1983 action fails. The prosecutor’s post-retirement actions were not government conduct. For his pre-retirement misappropriation of the picture, he is entitled to qualified immunity because there was no clear federal constitutional right involved at the time.

§ 2.236 Law Enforcement Records UPDATE: Long Beach Police Officers Association v. City of Long Beach Petition for review granted by California Supreme Court April 18, 2012. [Names of officers involved in shootings are not statutorily exempt from disclosure under the Brown Act.]

CHAPTER 3. ELECTIONS See Opinion of Attorney General Kamala D. Harris (Gaines) above.

CHAPTER 4. PERSONNEL - See, generally, Labor Law Update

176 CHAPTER 5. FINANCE AND ECONOMIC DEVELOPMENT II. B. TAXES §5.20 Property Taxes After 1978 Passage of Proposition 13

Assessor of County of Santa Barbara v. Assessment Appeals Board No. 1 (Rancho Goleta Lakeside Mobileers, Inc.) C.A. 2nd, May 16, 2012. Rehearing granted June 16, 2012

[Board of Equalization-supported reassessment formula for sales of individual sites in tenant- owned mobile home park, used by County Assessor, was inconsistent with statute; valuation approach also unsupported. Problems with equity a matter for legislature.]

§5.52 Transient Occupancy Taxes City may require hotels to provide registry information without search warrant.

Patel v. City of Los Angeles 9th Circ. July 17, 2012 ___ F. 3d ___

The City of Los Angeles requires hotels to make available, upon request of the police department, the following registry information: Names and addresses of guests and total number of guests Make, type and license number of guest’s car if parked on hotel property Room number, rate charge and collected, and payment method Name of employee handling check-in. Records must be maintained for at least 90 days. Plaintiff brought a facial challenge under the Fourth Amendment’s guarantee of a right to be free from unreasonable searches and seizures and the right to privacy. A divided appellate court ruled for the City.

Held: 1. Guests have no expectation of privacy in registry information once provided. 2. The use of registry information for other business purposes does not create an expectation of privacy on the part of the hotel operator. 3. An ‘as-applied” challenge might establish a privacy expectation in some cases. 4. There is no trespass since the records may be provided in the publically accessible lobby.

The dissent is of the opinion that the ordinance authorizes a warrantless search that is not justified, as it must be, by a specifically established and well-delineated exception.

177 II. D. BENEFIT ASSESSMENTS AND ASSESSMENT DISTRICTS §5.124 Annual Versus Installment (Bonded) Assessments No denial of equal protection when installment payments are cancelled but those who paid in full do not receive refund of sewer assessment.

Armour v. City of Indianapolis, Indiana (U.S. Supreme Court, June 4, 2012) 132 S. Ct. 2073

Indianapolis financed the extension of sewer assessments to neighborhoods using septic tanks by assessing the cost on a per lot basis; property owners had the option of paying in full up front or using a ten, twenty, or thirty year payment plan. In 2005 the City shifted to a new system of lower flat rates, with part of the cost paid through utility bonds. It believed that this new system would speed the replacement of septic systems. As part of the transition, it cancelled future installment payments of outstanding assessments, but it did not offer a refund to those who paid in full. The unfortunate plaintiffs, who had paid about $8,000 each just a few months before the conversion, sued when denied a refund. (Some of their neighbors had paid less than $500.) The majority ruled for the City:

…this case falls directly within the scope of our precedents holding such a law constitutionally valid if "there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational."… And it falls within the scope of our precedents holding that there is such a plausible reason if "there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

The court noted that many thousands of payments would have to be tracked---some as little as $25---over many decades if the City did not forgive the installments.

The three dissenters (Roberts, Scalia, and Alito) argued that Alleghany Pittsburgh Coal, which invalidated a “welcome stranger” real property tax system based only on purchase price, should invalidate Indianapolis’s approach. The majority characterized Alleghany as involving a burden on interstate commerce and the right to travel; the minority argued that there was not even a minimal justification for refusing to grant refunds.

Practice Tip: This is a useful case for defending past conduct, but read the case in full before considering it as a basis for future policy decisions. The City’s position is defensible but not attractive.

CHAPTER 6. MUNICIPAL SERVICES AND UTILITIES

178 CHAPTER 7. PUBLIC CONTRACTING

I. PUBLIC WORKS CONTRACTS I. G. PREVAILING WAGES § 7.84 Applicability to Charter Cities Wages paid for a locally funded public work are not a matter of statewide concern.

State Building and Construction Trades Council of California, AFL-CIO v. City of Vista California Supreme Court, July 2, 2012 54 Cal. 4th 547

The voters of the general law city of Vista converted their city to a charter city to avoid the statutory requirement of paying prevailing wages on public works projects. Vista then built two fire stations without requiring prevailing wages. The building trades sued, arguing that wages on public works projects within a city affected regional wages in their industry. Vista countered that its action was within the right of a charter city to govern its own municipal affairs (Cal. Const., art XI, §5).

The unions presented economic data in support of their contention that Vista’s actions would depress regional wages. The divided appellate court, treating the question before it as one of fact, said that the union failed to show such a regional effect. The Supreme Court majority said this was the wrong approach: whether a matter is a municipal affair and not subject to state regulation is a question of law. However, the answer may very depending upon shifting “social and economic realities.” The fact that the Supreme Court found the prevailing wages inapplicable to charter cities in the 1930s did not mean that the same answer would necessarily be given in 2012.

As a narrowly focused law and one that dictates how a city spends its money, the State’s prevailing wage law was doubly suspect: No one would doubt that the state could use its own resources to support wages and vocational training in the state’s construction industry, but can the state achieve these ends by interfering in the fiscal policies of charter cities? Autonomy with regard to the expenditure of public funds lies at the heart of what it means to be an independent governmental entity. . . . Therefore, the Union here cannot justify state regulation of the spending practices of charter cities merely by identifying some indirect effect on the regional and state economies. The court noted a line of its own decisions finding compensation of public employees to be a local affair; it also noted it was more willing to let the state impose procedural requirements (such as labor negotiation rules) on charter cities than substantive requirements.

179 I. G. PREVAILING WAGES § 7.87(c) “Paid for in Whole or in Part Out of Public Funds.” Different funding-source exemptions from prevailing wage requirements cannot be combined in a single project.

Housing Partners, Inc. I v. Duncan C.A. 4th June 15, 2012 206 Cal. App. 4th 1335

Housing Partners is a tax-exempt non-profit. It financed a senior housing project with a HOME loan, city redevelopment funds, and a housing authority loan. Several sections of the prevailing wage statutes exempt projects financed with these sources of funds individually. The Director of the Department of Industrial Relations found the project subject to prevailing wage laws because the various exemptions under Labor Code section 1720 cannot be combined. Housing Partners argued that this was an absurd result that violated public policy. Declining to address issues of public policy better left to the legislature, the court upheld the director’s decision.

II. CONTRACTING FOR GOODS AND SERVICES II. A. Authority to Contract § 7.174 In General City’s decision to reject all bids and provide golf cart service with its own staff is not reviewable by court.

Michael Leslie Productions, Inc. v. City of Los Angeles C.A. 2d, June 21, 2012 207 Cal.App. 4th 1011

The Los Angeles City Charter requires that contracts for a term of more than three years be approved by the City Council. J.H. Kishi Company’s contract to provide golf carts expired in 2003. It then provided services on a month-to-month basis during the RFP process. That process took seven years. The Board of Parks and Recreation Commissioners, which had the power to select the successful bidder, unanimously recommended an award of a three-year contract to Plaintiff. The alternative of using City staff was also analyzed and rejected as more expensive. However, the length of the contract meant it required City Council approval. When the matter finally came before the Council, it was advised that Kishi was being audited for underreporting concession payments.

The City Council voted to disapprove the contract with Plaintiff. It also asked the Parks and Recreation Board to award the contract to Kishi and restudy self-operation by the City. The audit confirmed that Kishi was short-changing the City. Staff reanalyzed the economics of self- operation and recommended that option. (It also recommended terminating the contract with Kishi.) The Board accepted the recommendation and all bids were rejected. Plaintiff brought a writ of mandate action to compel the Council to vote on its contract or to compel the City to execute the contract. The City’s demurrer was sustained without leave to amend:

No matter how distasteful we may find the appearance of bias in favor of Kishi, the courts have no authority to substitute judicial discretion for the

180 City’s discretionary decision to self-operate the golf-cart concession.

The court listed a number of other scenarios in which mandate might lie, such as award of a contract to Kishi, or a violation by the City of its own procedural requirements.

Held: 1. The award of a contract is legislative in character, and traditional mandate (CCP §1085) is the appropriate procedure to review a legislative act. Its scope is very limited. 2. While it is reasonable to infer that losing bidder improperly interfered with the contracting process, the losing bidder did not get a contract. All bids were rejected. 3. Courts are not empowered to review the City’s exercise of its discretion to self-operate.

CHAPTER 8. PUBLIC PROPERTY

CHAPTER 9. REGULATING BUSINESSES AND PERSONAL CONDUCT (Cases involving medical marijuana regulation are reported elsewhere.)

II. REGULATING BUSINESSES AND OCCUPATIONS II. A. Business Licenses and Regulations § 9.5 First Amendment State may regulate commercial weddings on state beaches but cannot have discretion to revoke or modify permits “as necessary and appropriate.”

Kaahumanu v. State of Hawaii 9th Circuit, June 6, 2012 682 F. 3d 789

Hawai’i regulates all commercial activity on state beaches through an on-line, instant-issue permit system. A fee, an insurance certificate, and a limited indemnity agreement are required. Placing of furniture or other objects on beaches is limited, as is the use of amplified music. Commercial wedding planners sued, arguing that the regulations violated the First Amendment and denied equal protection. The court found that marriage ceremonies are protected speech, but the regulations were not unduly burdensome and were content neutral. The rules are valid even if the court were to determine the beaches are a traditional public forum. (It made no determination because it applied the most rigorous test to the regulations.) However, the unfettered discretion of a government official to revoke or modify a permit, though never exercised, was unconstitutional.

II. C. Rent Control § 9.54 Permissible Rent Control Regulation Inspection program for rental units and associated fees are lawful.

Griffith v. City of Santa Cruz C.A. 6th July 16, 2012 207 Cal. App. 4th 1318

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Santa Cruz, a charter city, adopted a rental unit inspection program in 2010. Inspections may result in notices of violation, which in turn may lead to other, unspecified, enforcement action. The trial and appellate courts rejected plaintiff’s argument that the ordinance was pre-empted by state housing law, denied equal protection (in comparison to owner-occupied dwellings), or violated Proposition 218 (as a tax on real property) or Proposition 26 (as a tax rather than a regulatory fee.) City demonstrated that the revenues merely covered the reasonable costs of administration of a legitimate regulation of the residential rental business.

Practice Tip: Santa Cruz drafted its ordinance very thoughtfully; other ordinances might not do as well.

C. 4. Special Considerations for Mobile Home Rent Control

County may base denial of mobile home park subdivision map on tenant opposition.

Goldstone v. County of Santa Cruz C.A. 6th July 17, 2002 207 Cal. App. 1038

The Subdivision Map Act has special, but somewhat murky, rule on the approval of the subdivision of a mobile home park. A survey of residents to determine their views on the proposed change is to be “considered” (Government Code section 66427.5). However, the scope of the review is also “limited to the issue of compliance with [the section.]” Concluding that the requirement to consider the survey must mean something, the court upholds the County’s denial of approval based on tenant opposition. It also says clearer legislation would be nice.

III. REGULATION OF PERSONAL CONDSUCT III. H. GUNS AND WEAPONS §9.101 Second Amendment Requirement that guns at gun show be “secured” does not violate Second Amendment

Nordyke v. King 9th Circuit en banc, June 1, 2012 681 F. 3d 1041

It is a misdemeanor to possess a firearm at the Alameda County Fairgrounds with certain exceptions. One exception is for possession of a firearm as an authorized participant in a “motion picture, television, …or theatrical production or event…provided that when such firearm is no in the actual possession of the authorized participant, it is secured to prevent unauthorized use.” When this litigation began in 1999, Alameda interpreted its ordinance to ban gun shows (sales events) from the County fairground. The United States Supreme Court subsequently recognized an individual right to guns under the Second Amendment in 2008 and held in 2010 that the right is fundamental and incorporated against states and cities under the Fourteenth Amendment. (McDonald v. City of Chicago, 130 S. Ct. 3020.) At oral argument, the County took the position that a gun show is an “event” and can proceed under the ordinance. The court found that the rules

182 requiring that guns be secured did not unnecessarily burden plaintiff’s Second Amendment rights and affirmed the three-judge panel’s dismissal of plaintiff’s Second Amendment claims.

III. L. Speech §9.128 Charitable Fund-Raising No right to enter parking lot of free-standing store and solicit charitable contributions and preach.

Ralphs Grocery Company v. Missionary Church of Disciples of Christ C.A. 2d April 26, 2012 Petition for review granted by California Supreme Court. [Question presented: should respondents be permanently enjoined from soliciting activity outside one of petitioner’s grocery store? (They made no claim under Pruneyard.)]

CHAPTER 10. LAND USE (see CEQA/Land Use Update Paper)

CHAPTER 11. PROTECTING THE ENVIRONMENT (excluding CEQA/NEPA cases)

V. AIR QUALITY V. A. Basic Regulatory Scheme §11.198 Regional Air Quality Regulations SCAQMD could issue pollution retrofit regulations based on “reasonably anticipated” technologies.

American Coatings Association v. South Coast Air Quality District Cal. Sup. Ct. June 25, 2012 54 Cal. 4th 446

Air Quality Management Districts regulate non-vehicular air pollution emissions. In 2002 the South Coast Air Quality Management District amended its rule on paints and coatings. The trade association sued. It argued that the rules exceeded the District’s regulatory authority under statutes requiring the use of “best available retrofit control technology” (BARCT) because the District did not show that the technology was available. The Association won at the appellate level but lost before the California Supreme Court.

The Association argued that the District had failed to show that paints and coatings existed that met the proposed standards. The District argued that the statute, which references ‘achievable’ emissions reductions, authorizes retrofit standards that are ‘technology-forcing.’ The appellate court ruled for the trade association, finding that technology had to be commercially available or capable of being readily assembled when the 2002 amendments were promulgated. The Supreme Court disagreed:

In assessing the validity of a quasi-legislative regulation in an action for mandamus under Code of Civil Procedure section 1085, “ [o]ur inquiry necessarily is confined to the question whether the classification is “arbitrary, capricious, or [without] reasonable or rational basis.”

183 Furthermore, “[u]nless otherwise provided by law . . . the petitioner always bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085. . . .It is worth noting that “the question whether agency action is “entirely lacking in evidentiary support” is not the same as a substantial evidence test…[however] the proper interpretation of a statute is ultimately the court’s responsibility.

After a close reading of the statute and implementing regulations, and the philosophy and implementation of the federal Clean Air Act, the court concludes that the BARCT standard is designed to compel the development of new technologies to meet public health goals. Because air pollution is a cost-free industry externality, industry has no incentive to reduce it absent regulation. Rejecting the trade association’s suggestion that the court apply a “fair argument standard” to regulations, invalidating them whenever the challenger can make such an argument the court said:

such a rule might be plausible if the primary purpose of BARCT were to rein in overzealous air pollution control districts, but as discussed above section 40406 had the contrary purpose of requiring districts to pursue more aggressive regulation.

V. G. Global Warming § 11.238 The Climate Change Scoping Plan adopted by CARB meets requirements of the Global Warming Solutions Act.

Association of Irritated Residents v. California Air Resources Board C.A. 1st June 20, 2012 206 Cal. App. 4th 1487

Plaintiff is an environmental justice group. A first step in reducing California’s greenhouse gas emissions through regulation is the adoption, by CARB, of a scoping plan. AIR argued in court that the adopted plan was not adequate for achieving the maximum technologically feasible and cost-effective reduction in greenhouse gas emissions by 2020 as required by the Global Warming Solutions Act. AIR said that no serious consideration had been given to a carbon tax, that agriculture and much of industry were unregulated without any rational basis for their exclusion, and that the damage “cap and trade” does to air quality around facilities that elect to buy pollution rights was ignored.

The trial court rejected most of AIR’s challenges under CEQA. It did agree with AIR that the CARB failed to adequately analyze alternatives to the cap-and-trade program and provided no meaningful information or discussion about the carbon fee (or carbon tax) alternative. CARB then wrote an appendix and readopted its earlier conclusions, and the court discharged its writ. The appellate court was then left to review AIR’s claims that the Scoping Plan violated the Global Warming Solution Act. The court noted its limited power in reviewing a quasi-legislative act:

184 1. Does the rule lie within the lawmaking authority delegated by the Legislature? 2. Is it reasonably necessary to implement the purpose of the statute , i.e. did CARB exercise its discretion arbitrarily and capriciously, without substantial evidentiary support? The court noted the broad discretion granted CARB, the enormity of its task, and the extensive work that went into the plan and found the Scoping Plan to be a lawful exercise of CARB’s power.

CHAPTER 12. CODE ENFORCEMENT IV. ADMINISTRATIVE ENFORCEMENT. IV. C. CIVIL REMEDIES § 12.71 Administrative Abatement Procedures for Substandard Residential Buildings Receiver appointed at request of city to abate substandard building may not recover costs from foreclosing lender for work done before foreclosure at request of City.

City of Chula Vista v Gutierrez C.A. 4th, July 3, 2012 207 Cal. App. 4th 681

World Savings/Wachovia made a $400,000 loan on a four-unit building in 2006; it recorded a notice of default in 2008. Two months later, the City notified the landlord of multiple violations. On learning she was a prisoner in another state, the City petitioned to have a receiver appointed under Health and Safety Code section 17980.7 to correct the problems and operate the building. The court order was issued but specifically stated that it did not apply to Wachovia. The receiver promptly boarded up the building and relocated the families living there. He notified the court in early 2009 that Wachovia would foreclose and be responsible for rehabilitation. The court authorized the receiver to file a lien superior to the deed of trust; he apparently did not.

In 2010 Wachovia foreclosed on its note and resold the property. The receiver then filed a report requesting a receiver’s lien for about $40,000. On learning the property had already been sold, he instead requested an order for direct payment from Wachovia. The court only allowed charges for the three months when Wachovia actually held title. The receiver appealed, arguing that Wachovia would be unjustly enriched if it did not have to pay his costs. The court disagreed: Wachovia did not request the receiver – the City did. Wachovia received no discernible benefit. The court “expressed no opinion regarding whether Adams could have recovered from the City through principles of unjust enrichment or otherwise.” However, the court also notes the receiver might have avoided the problem with better diligence earlier.

Practice Tip: The obligation to pay a receiver is often assumed by a secured lender through “receivership certificates.” Alternatively, the party requesting the receiver typically has the payment obligation. A city requesting the appointment of a receiver should address this issue at the outset.

185 CHAPTER 13. LIABILITY AND LITIGATION

13.163 Private Attorney General Doctrine /CCP §1021.5 City’s non-pecuniary interest in outcome of CEQA lawsuit does not prevent award of attorney’s fees.

City of Maywood v. Los Angeles Unified School District C.A. 2d July 18, 2012 207 Cal. App. 4th 1075

The City of Maywood successfully challenged the certification and was awarded $650,000 in attorney’s fees. On appeal, only one of its objections to the EIR was sustained: inadequacy of analysis of danger to pedestrians in a campus divided by a public road. LAUSD argued that Maywood was not eligible for a private attorney general’s fee award because the lawsuit was brought solely to benefit Maywood and its residents “whether for financial or other reasons.” While it is true that the pecuniary interests of both a city and its residents must be considered in deciding whether it qualifies for a private attorney general’s fee award, its non-pecuniary interests are irrelevant. In reaching this conclusion, the court applied the reasoning in Conservatorship of Whitley (2010) 50 Cal. 4th 1214 to actions bought by a public agency. Cases to the contrary that pre-date Whitley are no longer dispositive. Case remanded to trial court to reconsider attorney’s fees award if motion is renewed.

§13.169 Motions for Sanctions Court has discretion to reduce statutory sanctions against lawyer for frivolous litigation in bad faith on basis of inability to pay.

Haynes v. City and County of San Francisco C. A. 9th July 23, 2012 ___ F. 3d. ____

Haynes pursued frivolous causes of action in bad faith against the City and County of San Francisco and numerous other agencies and public officials. He was sanctioned under 28 U.S.C. § 1927; he pled poverty but the trial court believed it had no discretion to reduce the amount. The 9th circuit reversed.

§13.173 Municipality as Plaintiff

1. City’s cause of action to enjoin property developer convicted of bribery from “profiting further” by his crimes vulnerable to anti-SLAPP motion; public interest exceptions do not apply.

City of Colton v. Singletary C.A. 4th May 30, 2012 206 Cal. App. 4th 751

186 James Singletary admitted, as part of a federal plea bargain, that he bribed a Colton councilman. The bribed councilman provided the third vote on the substitution of a development agreement for a subdivision agreement, which shifted millions of dollars of property-owner improvement obligations to the City of Colton. Singletary and various public officials went to jail. The City nevertheless constructed millions of dollars worth of improvements; Singletary sued to have them construct even more. During the course of discovery, the City found the original subdivision improvement agreement and counter-sued for (1) restitution for the cost of improvements made by the City; (2) specific performance of the subdivision improvement agreement; and (3) an injunction against “further attempts to profit” from his wrongdoing. (The guilty plea was admissible as evidence that Singletary was guilty of bribery; it is not collateral estoppel in a civil action.)

Singletary brought an anti-SLAPP motion, arguing that the City was trying to silence his protected speech, i.e., his lawsuit. The trial court ruled for Singletary and awarded attorney’s fees. A divided appellate court also ruled for Singletary, after analyzing the various causes of action and striking some and upholding the others. It rejected the City’s arguments that either the prosecutorial or public interest exceptions to the anti-SLAPP remedies were applicable. It declined to view the interest of a public agency in recovering millions of dollars in expenses incurred because of the conduct of Singletary and a corrupt public official as “in the public interest.”

2. Judgment finding illegal conduct by Board of Equalization will not be vacated at stipulation of parties because it is against public interest to do so.

City of Palmdale v. State Board of Equalization C. A. 2nd May 23, 2012 206 Cal. App. 4th 329, motion to vacate denied.

At the request of the City of Pomona, the Board of Equalization reallocated sales tax revenue from a business from county-wide pool to Pomona alone. The Board did this by applying a “warehouse as point of sale rule” retroactively for eight years. It ignored the advice of its legal counsel and failed to explain the reasons behind its ruling. Other Los Angeles County public agencies tried to appeal this decision at the Board and then sued. The trial court, after wading though a complex record, set aside the Board’s decision. The case was appealed and the record lodged with the appellate court. Before briefs were due, the parties requested a vacation of the trial court decision, having entered into a settlement agreement that reallocated some revenue from Pomona to the plaintiff agencies. The appellate court, in a sharply worded decision, denied the motion to vacate the judgment.

The court explained that Code of Civil Procedure section 128 requires that before vacating a judgment upon stipulation of the parties, the court must find:

(A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal, and (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of

187 stipulated reversal will reduce the incentive for pretrial settlement.

The appellate court was unable to make these findings and went on to say:

The trial court‘s judgment is tantamount to a public reproval and is an embarrassment to an agency charged with functions vital to the financial stability of California and its subdivisions and the finances of state taxpayers. The judgment provides a strong practical incentive for the Board to consider, in the future, the laws that govern the way it operates in deciding any tax appeal. We reject the parties’ contention that this case is merely a dispute over money.

It then ordered publication of the case.

188

Charter City Authority Over Prevailing Wage: State Building and Construction Trades Council v. City of Vista

Thursday, September 6, 2012 General Session; 4:15 – 5:30 p.m.

James P. Lough, City Attorney, Lemon Grove

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

189

League of California Cities 2012 League of California Cities Annual Conference 190 City Attorneys’ Track San Diego Convention Center, San Diego LOUNSBERY FERGUSON ALTONA & PEAK, LLP Presented by: James P. Lough

CALIFORNIA HOME RULE AND STATE ECONOMIC REGULATION (STATE BUILDING & TRADES COUNCIL OF CALIFORNIA V. CITY OF VISTA)

INTRODUCTION

The City of Vista approved its Charter in 2007. One of the main reasons for the adoption of a Charter was the large-scale public works program that began after the voters approved a sales tax override to pay for needed public infrastructure. The Charter proposal allowed the City to forego the paying of state mandated prevailing wages for public works paid for with local funds. A state trade union association filed a writ of mandate in San Diego Superior Court to require Vista to follow the Labor Code prevailing wage and apprenticeship laws.

The Writ was denied by the Trial Court. The Fourth District Court of Appeals, Division One, affirmed the denial of the writ on a 2-1 vote. The Supreme Court granted the trade union association’s petition for review on the question whether prevailing wage law is a matter of statewide concern requiring charter cities to pay prevailing wages in public works contracts. The Supreme Court affirmed the denial of the writ and held that public works contracting, under the spending power, is a “municipal affair” subject to local control by Charter Cities.1

Since 1932, Charter Cities have been exempt from state prevailing wage laws, including apprentice programs, because the contracting for construction of local improvements with local funds is considered a “municipal affair.”2 In 2004, the California Supreme Court considered the same issue in a case involving the City of Long Beach.3 However, it reached a decision on other grounds. In their opinion, the Court stated that it should revisit the 1932 precedent in a future case to see if circumstances had changed to warrant a change in the law. The Supreme Court decided to take up the Vista case to revisit the issue of whether state prevailing wage laws are applicable to charter cities when contracting for public works using local funds.

On July 2, 2012, the Supreme Court, by a 5-2 vote, upheld the right of charter cities to determine whether they should pay prevailing wages and enter into apprenticeship programs when contracting for public works projects paid for with local funds. Essentially, the Court made a legal determination that the constitutional protections afforded to charter cities were still viable and that local projects built with local funds are not subject to prevailing wage and apprenticeship mandates. Whether a charter city pays prevailing wage with local funds is up to each city and not the Legislature.

1 State Building and Construction Trades Council of California, AFL-CIO v. City of Vista (filed July 2, 2012) Cal. Supreme Court No. S173586, Slip Op. (Vista). 2 City of Pasadena v. Charleville (1932) 215 Cal. 384, 392 (disapproved on other grounds, city hiring of aliens) in Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 585. 3 City of Long Beach v. Dept. of Industrial Relations (2004) 34 Cal.4th 942.

191 LOUNSBERY FERGUSON ALTONA & PEAK, LLP Presented by: James P. Lough

The purpose of this paper is to review some of the background surrounding the constitutional protections of charter cities. It will also discuss what the holding of the case means for charter cities, especially when the spending authority of charter cities is implicated.

CALIFORNIA’S STRONG TRADITION OF HOME RULE

Originally, California made cities “subordinate subdivisions of the State Government under the 1849 Constitution.” (San Francisco v. Canavan (1872) 42 Cal. 541, 557.) The 1879 Constitution still required all cities to comply with general state laws. (People v. Hoge (1880) 55 Cal. 612, 618; see also Comment, Municipal Home Rule: Municipal Market as a Public Purpose (1923) 11 Cal.L.Rev. 446.)

In 1896, the Constitution was amended to strengthen the authority of Home Rule (“Charter”) cities. Former Article XI, § 6 exempted all charter cities from laws that interfered with local “municipal affairs.” (Fragley v. Phelan (1899) 126 Cal. 383; Ex Parte F.W. Braun (1903) 141 Cal. 204, 207-213 (“Braun”).) Braun upheld one of the most fundamental elements of “municipal affairs,” the power to tax. Subsequent case law reinforced this “fiscal affair” component of Home Rule at issue in the Vista case by also recognizing that one of the core values of managing “fiscal affairs” is the power over expenditure of funds. (Rothschild v. Bantel (1907) 152 Cal. 5 (custody of municipal funds); Los Angeles Gas & Elec. Corp . v. City of Los Angeles (1922) 188 Cal. 307, 317- 318 (constitutional credit prohibitions do not bind charter cities); Mullins v. Henderson (1946) 75 Cal.App.2d 117, 129-130 (charter cities may pay private employees to operate a street railway); In re: Work Uniform Compensation Cases (2005) 133 Cal.App.4th 328 (expenditures on public employee wages).)

The Home Rule section was amended again in 1914, with the final change coming on June 2, 1970. (Cal. Const. Art. XI, Sec. 5.) California is still the state with the strongest Home Rule tradition.4 This constitutional provision states under subsection (a), in part, that charter city authority “with respect to municipal affairs shall supersede all laws inconsistent therewith.” Applying the “municipal affairs” rule has been difficult at best since the 1914 amendment. Courts have reviewed “municipal affairs” issues on an ad hoc basis. This led to confusion over whether there is a unifying standard for determining what a “municipal affair” is. One justice referred to the definition of “municipal affairs” as “loose, indefinable, wild words." (Braun (1903) 141 Cal. 204, 214.) This ad hoc process is contrary to usual methods of statutory construction. ( See e.g., Estate of Horman (1971) 5 Cal.3d 62; Maples v. Kern County Assessment Appeals Bd. (2002) 103 Cal.App.4th 172,) To determine whether local rules govern a “municipal affair,” courts will look at the wisdom of the measure over the passage of time as established by the evidentiary record. (Bishop v. City of San Jose (1969) 1 Cal.3d 56 (“Bishop”).) In Bishop, the Supreme Court held that the Legislature’s intent in adopting general laws

4 Sato, "Municipal Affairs" in California, 60 Cal.L.Rev. 1055 (1972); see also, Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn. L. Rev. 643 (1964).

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could lead courts to the conclusion that the matter is of statewide rather than local concern. However, a Legislative declaration, standing alone, is not determinative of the state/local authority issue. (County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 286.)

In the Bishop dissent, Justice Peters argued the “inquiry ends once the statewide concern is found, and there is no need to weigh the state and municipal concerns or to determine which should predominate.” (Bishop at p.66.) Justice Peters’ approach is more like the “preemption” test that governs general law cities rather than one that reflects the true constitutional grant of authority given to charter cities. (See, e.g., Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 708.) Under preemption, the Court looks solely at whether the Legislature has occupied the field of regulation.

The Bishop decision is still a great influence on subsequent decisions in the area of “municipal affairs." (California Federal Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 16 (“Cal Fed”).) This doctrine does not designate any particular area of regulation as being solely a “municipal affair” or a “statewide concern." However, the method of analysis is key. Since the case law is made on an ad hoc basis, general rules are hard to establish. Typically, courts have looked at the external effects of municipal regulation, the scope of statewide interests and the effects on the internal procedures of a charter city. The Supreme Court follows Bishop to this day and still makes an independent determination using the record before it.

BISHOP, CAL FED & BRADLEY TEST FOR DETERMINING A “STATEWIDE CONCERN”

Since Bishop, the Supreme Court has further refined these standards, primarily in two cases. (See, Johnson v. Bradley (1992) 4 Cal.4th 389 (“Bradley”); California Federal Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1.) Cal Fed rejected a city tax and Bradley upheld public campaign finance using the same analysis.

First the Court must find if the charter city’s interest is a “municipal affair”. Second, the Court must look to whether there is an actual conflict between the state statute and the charter city’s measure. (Bradley (1992) 4 Cal.4th at p. 400; Cal Fed (1991) 54 Cal.3d at p. 16.) Next, the inquiry is whether the statute in question qualifies as a “statewide concern.” (Bradley at p. 404; Cal Fed at p. 17.)

In Cal Fed, the Court found a statewide concern. Cal Fed cited tax uniformity laws and the significant trial court record documenting statewide concerns. Among factors that weighed in favor of finding a statewide concern was a constitutional provision requiring taxation uniform with other states. Article XIII, § 27 limits taxation of banks to a state tax based on “net income” and is “in lieu of all other taxes and license fees.”

While taxation is a significant local concern, this Court cautioned against “compartmentalizing” any specific area of regulation on either side of the equation. (Cal

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Fed at pp. 15-18.) Hence, if the “statewide concern” is both (1) related to the resolution of the concern and (2) narrowly tailored, state law will prevail. (Bradley at p. 404, Cal Fed at p.17.) In Cal Fed, the Legislature regulated the entire banking industry. The legislative and trial court record established the need for uniformity with other states. The Legislature had tailored the legislation to meet those interests. A strong factual record, specific Constitutional authority, and a comprehensive regulatory scheme justified supersession of a core municipal affair. It gave the Cal Fed Court the ability to make a legal determination that changes in the law and the circumstances the law addressed, on state and nationwide basis, required that the state interest should prevail over a strong local interest in taxation.

In Bradley, the Court found a conflict and saw a statewide concern in electoral regulation, but eventually found that Elections Code § 85300 was not reasonably related to the statewide concern of “enhancing the integrity of the electoral process” or preventing conflicts of interest. (Bradley at pp. 410-411.) Therefore, it was not necessary to determine whether the statute was narrowly tailored. The Court looked at the broad purposes of the Elections Code rather than trying to parse a narrower “goal”. (Bradley at pp. 406-408.) Since the broad purposes of the Elections Code did not support the narrow scope of the statute prohibiting local public financing of local elections, the City of Los Angeles did not have to follow the state prohibition in the conduct of its elections.

To see whether a law is narrowly tailored, the Court must look at the level of intrusion into the “municipal affairs” of a charter city. In Vista, mandatory higher costs were imposed on locally funded construction. Prevailing wage laws were not merely a law designed to establish uniform procedural standards. Even assuming a “statewide concern,” cases involving economic regulation must show only a minimal intrusion into the fiscal affairs of charter cities. (i.e., County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 287-289.)

Since these three cases (Bishop, Cal Fed, and Bradley) were decided, courts have relied upon this analysis to determine Section 5(a)5 and similar questions involving the same constitutional protections for the University of California. (i.e., Regents of University of California v. Aubry (1996) 42 Cal.App.4th 579, 586-592). Courts have also relied upon strong trial court records, as found in Cal Fed, to show the reasons behind the need for uniform statewide control.

SBTCC V. CITY OF VISTA: SUPREME COURT OPINION

The majority opinion was written by Justice Joyce Kennard. Two separate dissents were written by Justices Werdegar and Liu. Justice Kennard found that contracting for public works construction using local funds was a “municipal affair.” She also found that the prevailing wage laws were sufficiently important to be of “statewide interest.” Because of the conflict between the two interests, the Court weighed the competing interests and found that the state interest was not comprehensive enough to overcome the municipal

5 California Constitution Article XI, Section 5(a).

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interest. Therefore, the prevailing wage law was not of sufficient scope to be considered a matter of “statewide concern”. The Court did not have to reach the issues of whether PWL was “reasonably related” to a statewide concern or if it was “narrowly tailored” to minimize state intrusion into “municipal affairs.”

A QUESTION OF LAW OR FACT

Justice Kennard first addressed the issue of legal standards. Is the analysis fact or legally- based? At the Court of Appeal, Justice Benke’s opinion was mostly a fact-based analysis. The appellate court looked at the legislative and trial court records and found no factual justification to find a “statewide” interest. At the trial court, the trade unions submitted one declaration that talked about the regional nature of the construction industry and how construction workers drive great distances to find work. The trade unions also argued that the scope of PWL had changed in scope over the years and had become a matter of “statewide concern.”

Kennard rejected this approach. She considered the analysis as a purely legal determination. The majority opinion stated as follows:

The Court of Appeal’s approach raises the question whether the determination of a statewide concern presents predominantly a legal or a factual question. Fundamentally, the question is one of constitutional interpretation; the controlling inquiry is how the state Constitution allocates governmental authority between charter cities and the state. The answer to that constitutional question does not necessarily depend on whether the municipal activity in question has some regional or statewide effect. For example, we have said that the salaries of charter city employees are a municipal affair and not a statewide concern regardless of any possible economic effect those salaries might have beyond the borders of the city. (Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 316-317 (Sonoma County).) (Vista @ p. 9.)

This approach places more authority on the judiciary and less on the type of “record” developed by either the Legislature or a trial court. However, the Court will look at the impact the legislation has on charter cities to come to its “legal” determination. Just how the Courts will factor in the trial court record and “facts’ developed in each case is still difficult to determine and must be looked at on a case-by-case basis. While the Vista Court discounted the factual record developed in the trial court, the Cal Fed Court used the strong trial court record to justify state control. Since the Courts will look at how the impact of state legislation changes over time, it is not the type of legal analysis you would find in a typical statutory construction case and determining what “facts” a court will consider in the future when making its “legal” determination will continue to be elusive.

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The analysis will not necessarily rely upon legislative reliance on regional or statewide impacts. The Court compared the regional impacts of private construction worker wages with public employee wages. Both can have regional or statewide impacts. In the past, the Supreme Court has drawn very strict limits on state power when it comes to the setting of municipal or county wages, or the wages of employees of the University of California.6 (County of Riverside v. Superior Court (2003) 30 Cal.4th 278; San Francisco Labor Council v. Regents of University of California (1980) 26 Cal.3d 785; Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296; Bishop v. City of San Jose (1969) 1 Cal.3d 56.)

Placing private construction worker wages in this class of cases helps charter cities fight off arguments that regional or statewide impacts should shift power to the state for state economic regulatory purposes. This analogy is important since it places the wages of private construction workers on the same plane as public employee wages. In both instances, the charter city must pay them, directly or indirectly, out of the city treasury. The Court correctly stated that both public and private wages are part of a regional and statewide market. The mere fact that what a city does has regional impacts cannot be the sole basis of state regulatory dominance. If any regional impacts could lead to state control of local resources, charter cities would be subject to virtually all state regulations. Being a charter city would have virtually no meaning. When the Legislature attempts to make findings that statewide regulation is necessary to address statewide or regional impacts, more justification will be needed to justify state intrusion into local affairs than merely citing regional impacts, as the trade unions did in Vista.

The analogy to wages of city workers is also interesting in that charter cities have greater protection from state regulation when “compensation” is the subject matter at issue. The control of “compensation” is regulated by Article XI, Section 5(b) instead of 5(a) which was the focus of the Vista case. The Constitution grants plenary authority to charter cities when they regulate public employee compensation. (Cal. Const. Art XI § 5(b) ; City of Downey v. Board of Administration (1975) 47 Cal.App.3d 621, 629.) When a charter city’s enactment falls within one of these core areas governed by 5(b), including compensation, it supersedes any conflicting state statute. (Cobb v. O’Connell (2005) 134 Cal.App.4th 91; in re Work Uniform Cases (2005) 133 Cal.App.4th 328, 335.) The Court did not differentiate between these two subsections when coupling private sector compensation with public sector wages for the purposes of the Court’s analysis.

This linkage was one of the more interesting portions of the Opinion. While the State has an interest in keeping construction wages stable, the Court recognized the right of charter cities to determine for themselves how to spend their own money in the face of a regional or statewide interest. It made no distinction of how those employees were being paid. The Court has reaffirmed that fiscal control is the most critical element of municipal sovereignty regardless of who cashes the paycheck. The Court has granted a greater degree of protection for municipal fiscal sovereignty to charter cities under Vista.

6 The University of California has the same type of constitutional protections as charter cities. (California Constitution Article IX, Section 9.)

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The Court also went on to state that factual findings of the Legislature are not controlling. (Vista at p. 10.) This determination was of particular importance in the Vista case. In 2003, the Legislature adopted a Joint Resolution that stated that all local governments must pay prevailing wages in their covered public works projects, including charter cities. (Senate Concurrent Resolution No. 49, filed Secy. of State September 18, 2003.) The Resolution was introduced on August 27, 2003 and passed both houses, without hearings, within 15 days.

Needless to say, the Legislature did little to develop any factual record. It states that the PWL “generally” applies to public projects and “reaffirms” that it should apply to all public projects “including the projects of charter cities.” The timing of this Resolution was six days after the Supreme Court had accepted review in the Long Beach case. (City of Long Beach v. Dept. of Industrial Relations (2004) 34 Cal.4th 942.)

In the Vista decision, the Court retained the Bishop-Bradley-Cal Fed analysis while making clarifications in many of the factors it considers important. In doing so, it reaffirmed the role of the Courts to determine whether the constitutional powers of charter cities are sufficient to ward off state intrusion into municipal affairs. It also indicated a willingness to place greater restrictions on state power when it interferes with core municipal fiscal values. Regional or statewide impacts alone will not be enough to justify state intrusion. Also, factual findings of the Legislature will not bind the Courts. The Court made clear that it will interpret the constitutional authority of charter cities in a manner different from a typical statutory construction case or a preemption analysis.7

Retention Of The Bishop, Bradley, Cal Fed Test

In its opinion, the Court made it clear that the test developed in Bishop and refined in the Bradley and Cal Fed decisions is still good law. The test, discussed above, requires a comparison between the relative merits of the charter city and state interests in the subject matter.

First, the Court looked at the charter city interest at sake to determine if it is a “municipal affair’ under Article XI, Section 5(a).

It is apparent from our analysis in Charleville, supra, 215 Cal. at page 389, that the construction of a city-operated facility for the benefit of a city’s inhabitants is quintessentially a municipal affair, as is the control over the expenditure of a city’s own funds. Here, the two fire stations in the City of Vista, like the municipal water system in Charleville, supra, 215 Cal. 384, are facilities operated by the city for the benefit of the city’s

7 In Bishop, Justice Peters, writing for the three justice minority, advocated that the analysis should stop when a state interest is found. The Vista opinion is another step away from this approach. (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 66.)

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inhabitants, and they are financed from the city’s own funds. We conclude therefore that the matter at issue here involves a “municipal affair.” (Vista at p. 12.)

The Court framed the “municipal affair” issue from the city perspective. In Vista’s case, the public works contracts were paid through locally generated tax revenues. The projects implicated the spending power of the City. Therefore, the Court, still relying on Charleville, quickly found a “municipal affair.”

The Court found that there was a conflict between the “municipal affair” and the state prevailing wage laws. Under the definition of a “public work,” prevailing wage laws are applicable to all cities, including charter cities. (Labor Code § 1720.) Since there was no exemption for charter cities, the Court found a conflict between the state and municipal interests. The conflict required the Court to go to the next part of the test. Is the State’s interest of “statewide concern?”

The Court examined the reasons behind the state interest as shown through the trial court record and the scope of the prevailing wage laws. The Court found that the prevailing wage law was of state interest, but did not find it was broad-based enough to be considered a “statewide concern.” The standard the Court used was taken from the Cal Fed decision as follows:

When, as here, state law and the ordinances of a charter city actually conflict and we must decide which controls, “the hinge of the decision is the identification of a convincing basis for legislative action originating in extramunicipal concerns, one justifying legislative supersession based on sensible, pragmatic considerations.” (California Fed. Savings, supra, 54 Cal.3d at p. 18.) In other words, for state law to control there must be something more than an abstract state interest, as it is always possible to articulate some state interest in even the most local of matters. Rather, there must be “a convincing basis” for the state’s action — a basis that “justif[ies]” the state’s interference in what would otherwise be a merely local affair. (Ibid.) Here, that convincing justification is not present. (Vista at p. 13.) (emphasis added.)

The Court looked at the State’s interest in the prevailing wage and apprenticeship laws from 1932, Charleville, onward. In its analysis, it reviewed the trade union argument of a regional labor market requiring state control versus the right of charter cities to control their own expenditures.

Certainly regional labor standards and the proper training of construction workers are statewide concerns when considered in the abstract. But the question presented here is not whether the

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state government has an abstract interest in labor conditions and vocational training. Rather, the question presented is whether the state can require a charter city to exercise its purchasing power in the construction market in a way that supports regional wages and subsidizes vocational training, while increasing the charter city’s costs. No one would doubt that the state could use its own resources to support wages and vocational training in the state’s construction industry, but can the state achieve these ends by interfering in the fiscal policies of charter cities? Autonomy with regard to the expenditure of public funds lies at the heart of what it means to be an independent governmental entity. “ ‘[W]e can think of nothing that is of greater municipal concern than how a city’s tax dollars will be spent; nor anything which could be of less interest to taxpayers of other jurisdictions.’ ” (Johnson v. Bradley, supra, 4 Cal.4th at p. 407.) Therefore, the Union here cannot justify state regulation of the spending practices of charter cities merely by identifying some indirect effect on the regional and state economies. (See County of Riverside, supra, 30 Cal.4th at p. 296 [“No doubt almost anything a county does . . . can have consequences beyond its borders. But this circumstance does not mean this court may eviscerate clear constitutional provisions, or the Legislature may do what the Constitution expressly prohibits it from doing.”].) (Vista at p. 15-16.) (emphasis added)

One of the most significant portions of the Court’s Opinion was the deference to charter city fiscal authority. While the State has an interest in keeping construction wages high and stable, the Court recognized that a charter city’s right to determine how it spends its own money is the most important power it has. Changes in the overall economy, the need for state uniformity and other state interests are secondary when it comes to spending locally generated funds. The Court put it this way:

Similarly, if, as the Union asserts, the state’s economic integration during the 80 years since our 1932 decision in Charleville, supra, 215 Cal. 384, has made the wages of workers constructing local public works a matter of statewide concern, then that would be true for both public employees and private employees. (Vista at p. 19.)

The linkage between regional impacts and the need for state regulation will not be made if the State attempts to further its goals by expending local funds. However, this Opinion does not wall off all intrusions. State procedural restrictions that do not unduly impact the finances of a charter city will be allowed. (Vista at p. 20.)

Justice Kennard cited with approval previous Supreme Court decisions that imposed procedural rules on charter cities in the area of labor relations. (People ex rel. Seal Beach

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Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591; Baggett v. Gates (1982) 32 Cal.3d 128; Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276.) These cases allowed the Legislature to regulate the way charter cities conduct labor relations. After Vista, the question will often be how far the Legislature can go in regulating charter cities through “procedural” rules that have financial impacts on local governance. (i.e. County of Riverside v. Superior Court (2003) 30 Cal.4th 278.) Finally, the Court looked at the non-universal nature of prevailing wage law. It does not apply to the private sector or the University of California, and has exceptions that further other state legislative interests, such as the low-income housing exception in the former redevelopment law.

Here, the state law at issue is not a minimum wage law of broad general application; rather, the law at issue here has a far narrower application, as it pertains only to the public works projects of public agencies. In addition, it imposes substantive obligations on charter cities, not merely generally applicable procedural standards. (Vista at p. 20.)

Minimum wage laws apply to the public and private sector equally. Prevailing wage law only applies to most public works projects. It imposes a cost on charter cities with no specific benefit to the city itself. While a charter city may decide on its own to follow PWL to benefit the regional workforce, the Court left that decision to the legislative body that spends the funds.8 This is different from the Supreme Court’s review of broadly applicable procedural rules where the relative cost of the state rule is not considered significant.

CONCLUSION

Overall, the Vista decision is indicative of the Court’s reluctance to force state economic policy on charter cities when they are using local funds. It prevents the State from using a “regional or statewide impact” analysis as the sole basis for extending power. The State can still put conditions in grants that include state funding requiring the charter city comply with state general laws such as prevailing wage law. However, when only the spending of local funds are at issue, the Vista case reaffirms that the courts will decide when factors are present that necessitate a change in the division of power between the State and charter cities. Legislative pronouncements will not suffice. Economic

8 This procedural vs. substantive breakdown, along with other long-term distinctions, are discussed in a 1972 University of California Law Review article by the late professor Sho Sato. (See: Sato, “Municipal Affairs” in California, 60 Cal.L.Rev. 1055 (1972); See also: Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn. L. Rev. 643 (1964) .) While Professor Sato did not accurately predict the extension of procedural rules, particularly governing labor relations, his article is a good guide to the history of Home Rule in California and helps categorize the cases into an understandable and logical format. It is excellent reading for municipal law nerds.

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regulation must have a broad based application, probably including application to the private sector, to be applicable to charter city local fiscal interests.

It is likely that the Legislature will not give up on its continued efforts to impose regulatory authority on charter cites. As more cities choose the charter city path, it is likely that more legislative challenges will take place in the future to attempt to exert more control. However, it is likely that those attacks will now come under the guise of “procedural” rules where the Legislature has had the most success in regulating charter city conduct. Vista will help charter cities prevent future economic regulation from intruding into core municipal values.

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League of California Cities 2012 League of California Cities Annual Conference 202 City Attorneys’ Track San Diego Convention Center, San Diego

The “Occupy” Movement: What Can Cities Do?

Friday, September 7, 2012 General Session; 8:00 – 8:45 a.m.

Rocio V. Fierro, Police General Counsel/Supervising Deputy City Attorney, Public Safety, Oakland City Attorney’s Office Deborah J. Fox, Meyers Nave

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

203

League of California Cities 2012 League of California Cities Annual Conference 204 City Attorneys’ Track San Diego Convention Center, San Diego

The “Occupy” Movement and What Cities Can Do to Regulate or Avoid the Impacts of Such Events

League of California Cities 2012 City Attorneys’ Department Fall Conference San Diego, California

Meyers Nave 633 West Fifth Street, Suite 1700 Los Angeles, CA 90071 (213) 626-2906

Deborah J. Fox, Principal [email protected]

David S. Warner, Of Counsel [email protected]

205 The “Occupy” Movement and What Cities Can Do to Regulate or Avoid the Impacts of Such Events

The Occupy Movement blew through California cities last year challenging the capacity of city officials to find the right balance between the city’s police powers and the Occupy Movement’s First Amendment rights. The clash was more than just theoretical, as arrests were numerous in every major California city and several smaller jurisdictions as well. By the end of the year, the Occupy Movement had cost taxpayers millions of dollars and left public officials more uncertain than ever about their rights and obligations under the First Amendment.

California city attorneys played a central role during the protests whether it was advising councilmembers on their dual roles as elected officials and private citizens, evaluating the constitutionality of permitting programs and public space ordinances, or authoring memoranda on the nuanced aspects of the Supreme Court’s First Amendment jurisprudence. The “directionless” nature of the Occupy Movement and the demand for immediate legal counsel made it difficult for city attorneys to anticipate what issues they would be asked to address next or how much time they would have to evaluate, articulate and implement constitutional strategies. Due to the nature of their work, in which a new “crisis” is usually brewing right around the corner, many city attorneys never had the time to step back and analyze what, if any, assistance they could have provided in advance of the protests to make everyone’s jobs a little easier.1

This paper reviews the brief history of the Occupy Movement and summarizes its impacts on California and the different ways in which cities responded to Movement protests. It also contains a summary of the Supreme Court jurisprudence governing expressive conduct and recent federal and state court decisions involving the Occupy Movement. Finally, the paper will suggest ways in which city attorneys can help their cities be ready the next time protestors show up at municipal doorsteps.

I. The Occupy Movement in California

“Mobilized by social media and inspired by the Arab Spring, the movement has confused reporters, frustrated politicians and garnered support from notable groups.”2

In a blog post dated July 13, 2011, a Vancouver-based anti-consumerist magazine entitled Adbusters proposed a protest be undertaken against Wall Street similar to the

1 A list of topical resources for city attorneys is attached as Appendix A. 2 Occupy Wall Street Timeline, Los Angeles Times (Oct. 2, 2011), only online at http://timelines.latimes.com/occupy-wall-street-movement/ (“Occupy Timeline”).

206 protests being carried out that year in Egypt and Spain .3 Much like a wildfire, the Occupy Movement sprang to life from a small spark and within two months the first protestors were gathering in Wall Street. Various reasons have been given for the Occupy Movement’s quick growth, but the swiftness with which social media could be used to organize and publicize events is one recurring theme.4

It did not take long for the seeds of Occupy to find their way to the West Coast, first in San Francisco and soon elsewhere. The same day an encampment was set up in Manhattan’s Zuccotti Park a small band of roughly ten people camped outside the Bank of America building on California Street in a show of support and, within two weeks, San Francisco’s first Occupy camp was set-up outside the Federal Reserve Bank on Market Street.5 In Los Angeles, about 100 protesters marched toward City Hall from Pershing Square on the morning of October 1, 2011 in the first organized effort of Occupy LA. The group was accompanied by Los Angeles police officers who briefly stopped traffic at intersections for the marchers. A group of volunteers helped coordinate the event by getting permits and working with the Los Angeles Police Department and several participants told the press that they intended to camp out at City Hall indefinitely.6 In Oakland, the first march of Occupy Oakland consisted of “teachers, nurses, families and the unemployed, among others, …carrying signs in front of an empty City Hall.”7

Similar Occupy events began occurring in other cities across the state and, with few exceptions, the marches, rallies and camps were initially well-received by local officials.8 A

3 Martin Kaste, “Exploring Occupy Wall Street’s ‘Adbuster’ Origins,” National Public Radio (October 20, 2011) at http://www.npr.org/2011/10/20/141526467/exploring-occupy-wall-streets- adbuster-origins. 4 Gloria Goodale, “Social media drive Occupy Wall Street. Do they also divulge its secrets?,” The Christian Science Monitor (October 12, 2011) at http://www.csmonitor.com/USA/Politics/2011/1012/Social-media-drive-Occupy-Wall-Street.- Do-they-also-divulge-its-secrets. The Los Angeles Times reports that most participants in Occupy LA say they heard about the protest via Twitter and on social media sites such as Tumblr and Reddit. Occupy Timeline (Oct. 2, 2011). 5 Dan Schreiber, “Occupy SF movement takes root on Market Street,” San Francisco Examiner (Oct. 5, 2011) at http://www.sfexaminer.com/local/2011/10/occupy-sf-movement-takes-root- market-street and Vivian Ho, “City dismantles protesters’ camp,” San Francisco Chronicle, Oct. 7, 2011, p. C2. 6 Jason P. Song, “Economic Protestors Take to the Streets,” Los Angeles Times (Oct. 2, 2011), p. A32. 7 San Francisco Chronicle, (Oct. 11, 2011), p. C3. 8 Eric Carpenter, “Protesters March on Bank,” The Orange County Register (Oct. 11, 2011), p. B1 and Jessica Davis, “‘Occupy Coachella Valley’ Gains Momentum,” Palm Desert, CA Patch (Oct. 10, 2011) only online at http://palmdesert.patch.com/articles/occupy-coachella-valley-gains- momentum.

207 spokesperson for Oakland Mayor Jean Quan said “there were no plans to dismantle the camp and that officials were ‘keeping it cool.’ We understand the frustration, it’s our frustration, too.”9 In Los Angeles, the city council passed a resolution in support of the demonstration, provided portable toilets and chose not to enforce the city’s ban on sleeping overnight in city parks.10 At the same time, a Reuters poll found more people in support of the Occupy Movement than against.11

During this era of good feeling, numerous Occupy Movement “camps” were taking hold in public parks and plazas, often outside city halls, in contravention of local ordinances and policies governing public spaces. Other cities soon discovered they did not have local laws governing protests in the nature of an “occupation” or a permitting process that contemplated protests lasting weeks or months. Soon cities were drafting emergency ordinances to implement a permitting process and bring the camps into compliance with local laws.12 Only as health and safety issues began to accumulate did many cities discover that forestalling enforcement of their ordinances carried First Amendment implications as well as political ramifications. Occupy protestors grew emboldened and it became clear that force would likely be necessary in many cities to move or relocate protestors.13 Eventually most cities set deadlines for the removal of the camps and by the end of November public

9 Michael Cabanatuan, Jill Tucker and Vivian Ho, “Activists leave before raids on local hotels,” San Francisco Chronicle, Oct. 12, 2011, p. C2. 10 Occupy Timeline (Week of Oct 3, 2011). Council President Eric Garcetti invited protesters to “stay as long as you need to.” 11 “Most Americans aware of Wall Street protests: Reuters/Ipsos” (Oct. 12, 2011) at http://www.reuters.com/article/2011/10/12/us-usa-wallstreet-protests-poll- idUSTRE79B6V120111012. Eighty-two percent of Americans said they had heard of the protest movement, 38 percent felt favorably toward it, 35 percent were undecided, and 24 percent were against. 12 In Santa Rosa, for example, the city council established 15-day camping permits for the city hall lawn on which protestors had gathered throughout October. The city manager eventually suspended issuance of the permits after health and sanitation problems persisted on the site and Occupy Santa Rosa protesters boycotted the process. Kevin McCallum, “Occupy Santa Rosa camp permits expiring; protesters vow ‘reoccupation’,” Santa Rosa Press Democrat, (Nov. 28, 2011), B1. 13 On October 6, 2011 in Los Angeles, police in riot gear confronted 500 protestors who had taken over the intersection of 7th and Figueroa and a week later San Francisco police arrested 11 Occupy San Francisco protestors who were blocking the entrance to Wells Fargo’s corporate headquarters. Conflicts increased in intensity and further arrests of Occupy members were made in cities such as San Diego, Long Beach, and Sacramento before the much-publicized pre-dawn raid occurred in Oakland on the morning of October 25, 2011. Occupy Timeline.

208 safety officers in concert with other city employees vacated most camps and cleaned out tents, sleeping bags and other residue from the two-month long protests.14

The costs associated with the first two months of the Occupy protests were staggering. An Associated Press survey of 18 cities reported costs associated with the Occupy Movement through November 15, 2011 of at least $13 million in police overtime and other municipal services.15 Eventually Los Angeles would estimate it spent more than $4.7 million in police, clean-up and repair costs with Oakland next at $3.7 million.16 Even San Diego, with far fewer protestors but several high-profile run-ins reported $2.4 million in police department expenses alone.17

II. The Occupy Movement and the Law of Public Protest

The Occupy Movement demanded more from city attorneys than a basic understanding of United States Supreme Court decisions on time, place and manner restrictions. The broader state constitutional protections afforded public speech were also implicated as were a multiplicity of decisions involving the interplay between speech and conduct. Some cities were governed by settlement agreements concerning the use of public property for public protests or camping by the homeless and, of course, each city had its own unique set of ordinances concerning parades, demonstrations, rallies, camping and the use of city parks. Varying interpretations of the California Penal Code and local misdemeanor statutes also made it difficult for police officers to know when and how to make arrests.

An examination of the long tortured path the Supreme Court followed to establish the framework for interpreting the First Amendment’s speech protections is beyond the scope of this article but the threshold question many city attorneys initially had to face was whether merely occupying public property was a form of speech. The Supreme Court long- ago decided that certain forms of nonverbal activities should be treated as “speech” but not

14 Zuccotti Park in New York was cleaned out in a surprise midnight raid on November 15, 2011 and after failing to agree with protestors on an alternative location, the City of Los Angeles cleared out the City Hall lawn on the morning of November 30, 2011. Occupy Timeline 15 “Occupy protests cost nation’s cities at least $13M,” Wall Street Journal (Nov. 23, 2011) at http://online.wsj.com/article/AP6e57b7540ed6422f8e9255077a0dfef2.html. 16 David Zahniser, “Council aims to thwart new Occupy protest at L.A. City Hall,” Los Angeles Times ( Jun. 7, 2012) at http://articles.latimes.com/2012/jun/07/local/la-me-0607-occupy- tent-ban-20120607 and Jennifer Inez Ward, “City releases latest Occupy Oakland costs: $3.7 million,” Oakland Local (Mar. 10, 2012) at http://oaklandlocal.com/article/city-releases-latest- occupy-oakland-costs. 17 “Occupy San Diego has cost Police Department $2.4 million,” Los Angeles Times (Nov. 22, 2011) at http://latimesblogs.latimes.com/lanow/2011/11/occupy-san-diego.html.

209 an “apparently limitless variety of conduct.”18 If the conduct is intended to convey a particularized message, and there is a substantial likelihood that the message will be understood by those receiving it, the Court will consider it a form of protected communication.19

Making things more difficult was the apparent “leaderless” nature of the Occupy Movement and the claim by many participants that the movement stood for what it stood for.20 Even more confusing was the fact the Supreme Court had been down this road before and refused to determine whether camping overnight in a public space was a form of expressive conduct deserving of First Amendment protection. On November 26-27, 1981, in an effort to bring publicity to the plight of the homeless, 20 people pitched tents and slept overnight across the street from the White House in Washington D.C.’s Lafayette Park in violation of National Park Service regulations prohibiting camping in the Park. At dawn, the United States Park Police advised the protestors to leave and a half-hour later peacefully arrested the six activists who remained. A few days later, the activists applied for and received a permit from the Park Service to erect nine tents in the Park during the winter of 1981-82 on the condition they not sleep in them overnight. Another permit was issued by the Park Service with the same conditions for the winter of 1982-83 while the activists pursued their right to sleep overnight in the tents all the way to the Supreme Court.21

In a 7-2 decision authored by Justice Byron White, the Supreme Court refused to decide the question of whether camping was a form of “expressive conduct” and therefore subject to protection as speech under the First Amendment.22 Instead, the Court held that even if camping was a form of expressive conduct, the Park Service’s regulations met the four-factor standard for validating the regulation of such conduct as developed in United States v. O’Brien. The Court found the Park Service’s prohibition against overnight camping achieved the substantial government interest of limiting the wear and tear on park properties

18 U.S. v. O’Brien, 391 U.S. 367, 376 (1968). 19 Spence v. Washington, 418 U.S. 405, 409-12 (1974). 20 Heather Gautney, “What is Occupy Wall Street? The history of leaderless movements,” Washington Post (Oct. 11, 2010) at http://www.washingtonpost.com/national/on-leadership/what-is- occupy-wall-street-the-history-of-leaderless-movements/2011/10/10/gIQAwkFjaL_story_1.html. (“On these issues, the movement has been clear: This is a leaderless movement without an official set of demands. There are no projected outcomes, no bottom lines and no talking heads. In the Occupy Movement, We are all leaders.”) The failure to define a particularized message also made it more difficult for the Occupy Movement to declare that its occupancy of public property was a form of direct civil obedience that could permit a defense of necessity to attempts to enforce anti- overnight camping ordinances. See e.g., U.S. v. Schoon, 971 F.2d 193 (9th Cir. 1992). 21 New York Times, Nov. 27, 1981, p. B14; Nov. 28, 1981, p. B8; Dec. 1, 1981, p. A25; Dec. 2, 1981, p. B8; and Jun. 30, 1984, p. B7. 22 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

210 and that such an interest was unrelated to the suppression of any specific type of expression.23 Only Chief Justice Warren Burger, in a separate opinion, found that camping was purely conduct and not speech. In dissent, Justices Thurgood Marshall and William Brennan found that not only was the camping a form of speech, but that the Park Service’s regulations were unreasonable because there was no proof that they would accomplish the asserted goal of keeping the parks in a condition enjoyable for all.24

Not surprisingly, California federal district courts faced with interpreting challenges to city ordinances regulating the Occupy Movement also chose to avoid the question of whether occupancy was or was not speech.25 The first such case to deal with this issue in California was a challenge to a City of Sacramento ordinance prohibiting remaining or loitering in parks overnight.26 In denying a motion for a temporary restraining order, U.S. District Court Judge Morrison England for the Eastern District held that the plaintiffs were unlikely to succeed on the merits because the ordinance satisfied the O’Brien test. According to Judge England, the ordinance prohibited everyone from using the parks, regardless of their message, and Occupy protestors were still able to conduct “their expressive activities twenty-four hours a day on adjoining sidewalks or in other public spaces if they so choose.”27 Judge England also determined that the City’s interests in closing the parks were substantial and narrowly-tailored and similar to the interests the Supreme Court found constitutionally sufficient in Clark.28 Finally, the fact that the Parks Director had discretion to grant exceptions to the ordinance did not prove fatal since the standards that governed such discretion were sufficiently precise and offered an opportunity for review by the City Manager.29

23 Id. at 299. 24 Id. at 308-310. 25 As did the Supreme Court of the State of New York for New York County in declaring that the owners of the public/private Zuccotti Park had a right to adopt regulations prohibiting camping and lying down in the Park whether or not the actions of the Occupy Wall Street demonstrators were protected by the First Amendment. Matter of Waller v. City of New York, Index No. 112957/11 (Nov. 15, 2011). 26 Occupy Sacramento v. City of Sacramento, 2011 U.S. Dist. LEXIS 128218 (E.D. Cal. 2011). 27 Id. at 20. 28 The City’s Parks Director asserted the following government interests for the ordinance: (1) the general public’s enjoyment of park facilities; (2) the viability and maintenance of those facilities; (3) the public’s health, safety and welfare; and (4) the protection of the City’s parks and public property from overuse and unsanitary conditions.” Id. at 21. 29 The ordinance granted the Director discretionary authority, with the concurrence of the Chief of Police, to extend park hours, subject to three conditions: (1) such extension of hours is consistent with sound use of park resources, (2) the extension will enhance recreational activities in the city, and (3) the extension will not be detrimental to the public safety or welfare. Id. at 3.

211 Eight months later, Judge England essentially made similar findings in denying Occupy Sacramento’s request for a permanent injunction.30 In both cases, it is important to note the Court made a point of emphasizing Sacramento’s ordinance had been in place since 1981 thereby defeating any argument the ordinance was intended to specifically target the Occupy Movement or its message.31 The Court also noted the Director’s assertions of the government’s interest, although made after the protests began, were sufficiently similar to the justifications provided in the staff report that accompanied the 1981 ordinance.

The second series of cases relating to a local agency’s park ordinances arose in Fresno where Occupy Fresno secured a preliminary injunction against the County of Fresno on the grounds the group was likely to succeed on two constitutional arguments.32 The first argument was a challenge to a County ordinance that defined a “public meeting” as “the assemblage of ten or more persons by prearrangement, common design or as a result of advertising, solicitation or other promotion.” Under the ordinance, no person was allowed to participate in a public meeting without first securing a permit. The plaintiffs challenged the County’s assertion that a permit was necessary to resolve issues associated with competing uses in its parks. After reviewing numerical standards in other jurisdictions, Judge Charles Breyer of the Eastern District concluded the County had not demonstrated why a group of ten people posed the type of problem necessitating a permit, at least with respect to a park the size of Courthouse Park in Fresno where the protestors were encamped.33

The second argument posed by Occupy Fresno challenged the authority granted to the County’s administrative officer to prohibit the distribution of handbills or circulars upon County-owned property. After the court first noted that ordinances forbidding all distribution of literature are highly suspect, it determined that the County’s failure to offer any justification for the ban made it clear that it did not promote a “substantial government interest.”34 The court did, however, uphold the County’s prohibition against the overnight use of Courthouse Park for the same reasons a similar ban in Sacramento was upheld, namely, that the sidewalks and streets remained open to protestors who wanted to convey a message during the period of time the Park was closed.35 It is also noteworthy that the court

30 Occupy Sacramento v. City of Sacramento, 2012 U.S. Dist. LEXIS 95517 (E.D. Cal. 2012). 31 The Court cited temporary restraining orders granted to Occupy groups in Nashville, TN and Trenton, NJ where cities attempted to enforce prohibitions or limitations after the protests had begun. Id. at 22. Also see, Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir 2006) and Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009). 32 Occupy Fresno v. County of Fresno, 835 F.Supp.2d 849 (E.D. Cal. 2011). 33 Id. at 861. Courthouse Park is a 13-acre park with buildings and “large expanses of grass. The Court noted that most school classes consist of more than 10 persons and it was “absurd” that a teacher would need to obtain a permit to use a park. Id. 34 Id. at 868. 35 Id. at 862-67.

212 made mention of the fact that the Fresno ordinances had been in place long before the Occupy protests began.36 The result of the court’s ruling eventually led to a settlement agreement between the County and Occupy Fresno in which the County agreed to remove restrictive ordinances limiting the circulation of flyers, carrying of signs, and holding small gatherings in Courthouse Park.

Efforts in Los Angeles to address the constitutional issues associated with the growing presence of Occupy protestors in public places faced additional challenges due to the settlement agreement the City is under to address housing deficiencies for its homeless population. In 2006, a Ninth Circuit decision found the City’s enforcement of its ban against sitting, lying or sleeping on public streets and sidewalks violated the Eighth Amendment rights of homeless individuals against cruel and unusual punishment.37 The ban runs daily from 9:00 p.m. to 6:00 a.m. and it meant that any effort to move the Occupy Movement protestors off of City Hall Park would be compromised by the right for protestors to merely relocate themselves to surrounding sidewalks and streets. However, given the decisions in Sacramento and Fresno, in which the anti-camping ordinances were constitutional precisely because protestors had access to streets and sidewalks as alternative means for expression, the conditions of the settlement agreement may be moot when determining whether sleeping on a sidewalk is a constitutionally-protected form of expressive conduct in Los Angeles.

Los Angeles also discovered its local ordinances governing the overnight use of City parks were inadequate for addressing a protest designed to occupy parks on a full-time basis. More than 400 City parks were not subject to the City’s ban on camping when the Occupy Movement protests began and the City recently had to shore up its ordinance in June 2012.38 The amendment also added definitions of “camp,” “camp facility,” “tent,” and “umbrella or sun shade” to further clarify prohibited activities.39 Los Angeles was merely one of many California cities that sought to strengthen anti-camping ordinances in the wake of the Occupy Movement.40

36 While the California Constitution’s Liberty of Speech clause is broader and more protective than the free speech clause of the First Amendment, neither case addressed whether it afforded greater protection to the plaintiffs. 37 Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) vacated, remanded and dismissed by Jones v. City of Los Angeles, 505 F.3d 1006 (9th Cir. 2007). The court noted that there were almost 50,000 more homeless people than available beds in the city. 38 See City of Los Angeles Ordinance No. 182153, passed by the City Council on June 6, 2012 and approved by the Mayor on June 7, 2012. See Appendix B for a copy of the Ordinance. 39 Id. 40 See e.g., Ordinances adopted by the City Councils of Claremont on January 24, 2012; Modesto on June 12, 2012; and Colton on December 6, 2011.

213 Yet another impact of the Occupy Movement was the challenge it presented city attorneys and public safety officers to define the offenses under which arrests would be made. In the City of Oakland, for example, the Police Department consulted with the City Attorney’s office prior to enforcing the removal of camps on October 25, 2011 and the decision was made to charge most arrestees with disorderly conduct under Penal Code § 647(e). Section 647(e) makes it a misdemeanor to “lodge” in any “building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it.”41 However, an independent investigation conducted by the Frazier Group, LLC (“Frazier Study”) of the City’s response to the Occupy protests questioned whether Section 647(e) was appropriate for conducting group arrests.42 The Frazier Study found that at the time protestors were arrested for failing to vacate Frank Ogawa Plaza, many were not inside structures indicative of “lodging.” In addition, the report questioned the definitional “interplay” between sleeping, camping and lodging suggesting Section 647(e) may not adequately address time, place and manner considerations.43

The California Commission on Peace Officer Standards and Training recently published the “POST Guidelines” on crowd management, intervention and control which included procedures for declaring unlawful assemblies and issuing dispersal orders.44 The POST Guidelines recommend law enforcement agencies understand the law as it pertains to unlawful assemblies with specific reference to the provisions of Penal Code Sections 407 and 409.45 Generally, an unlawful assembly exists whenever two or people assemble for the purpose of committing an (i) unlawful act or (ii) a lawful act in a “violent, boisterous, or

41 Cal. Penal Code § 647(e). 42 Independent Investigation Occupy Oakland Response, October 25, 2011, Frazier Group, LLC. 43 Id. at p. 51. 44 Crowd Management, Intervention and Control, California Commission on Peace Officer Standards and Training (March 2012), 33-34. 45 Cal. Penal Code § 407: Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.

Cal. Penal Code § 409:

Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in attempting to disperse the same, is guilty of a misdemeanor.

214 tumultuous manner.”46 With regard to the latter provision, the California Supreme Court has held that the First Amendment right to peaceably assemble limits the definition of “violent, boisterous, or tumultuous” to only conduct posing “a clear and present danger of imminent violence.”47

The Occupy Movement also generated city council proposals aimed at addressing some of the Occupy Movement’s concerns. For example, in San Francisco the Board of Supervisors is considering a “Foreclosure Fairness Ordinance” for the November ballot that would eliminate a provision in the city’s tax code that exempts lenders foreclosing on a home from paying the real estate transfer tax normally required when a property changes hands.48 Likewise, the Los Angeles City Council adopted a “Responsible Banking” ordinance in May of 2012 that requires require banks doing business with the city to disclose detailed data on loans and foreclosure activity by community.49

III. Improvements for the Future (and What City Attorneys Can Do to Help)

Protests are an inevitable, and at times enviable, part of the American democratic process and it is important to remember that cities have an obligation to protect a protestor’s First Amendment rights as well as the health and safety of its citizens and the condition and use of its public spaces. Likewise, every elected official owes a duty to his or her city to ensure that the city’s laws are carried out in a fair and equitable manner. At the same time, this does not mean an elected official forsakes his or her own First Amendment rights to participate in the political process as a private citizen. Many elected officials that supported the Occupy Movement also represented cities that had ordinances prohibiting overnight camping or requiring a permit for the use of public property.50 At times this created a

46 Cal. Penal Code § 407 47 In re Robert F. Brown et al., 9 Cal. 3d 612, 623 (1973) (Otherwise lawful protest did not constitute an unlawful assembly merely because “thunderous” chanting and shouting forced suspension of university classes). See also, In re David Nathaniel Bacon, 240 Cal. App. 2d 34 (1st Dist., 1966) (Remaining at site of unlawful assembly after being told to disperse constituted a violation of Section 409 even though appellants may not have participated in the assembly). 48 Aaron Sankin, “Foreclosure Fairness Ordinance: San Francisco Lawmakers Take Aim At Tax Break,” Huffington Post, (Jun. 5, 2012) online only at http://www.huffingtonpost.com/2012/06/05/foreclosure-fairness-ordinance-san- francisco_n_1572238.html. 49 Catherine Saillant, “Los Angeles adopts 'responsible banking' ordinance,” Los Angeles Times, (May 16, 2012) online at http://articles.latimes.com/2012/may/16/local/la-me-0516- banking-ordinance-20120516 50 As police officers were clearing an Occupy camp on October 6, 2011 for being in violation of city laws banning open flames on a street or sidewalk, creating a public nuisance, disorderly conduct in lodging, and serving food without a permit, Supervisor John Avalos said “With our unemployment rate nearing 10 percent, we have a responsibility to be a sanctuary for the 99 percent. (footnote continued)

215 potential conflict for an official speaking out in favor of the Movement, or participating in Movement events, since he or she was also a member of a body elected to represent the city. The distinction was made more difficult by press coverage that often did not discern between the official’s two roles.

City attorneys have a duty to keep their clients informed about the implications of the First Amendment which can often be challenging given the complexity of the Supreme Court’s jurisprudence and the delicate balancing of interests involved. The suddenness with which public protests can arise makes it important for cities to be as prepared as possible ahead of time and city attorneys can and should play a role in that preparation. Conflict and misunderstanding over the Occupy Movement were not limited to the largest California cities in 2011 and the upcoming national election cycle only raises the likelihood that more protests are on the horizon.

1. Public Safety Departments.

In a time of declining budgets, city attorneys should not assume that public safety officers have access to all of the latest First Amendment jurisprudence or time to regularly update their crowd control policies. One of the findings of the Frazier Study was that Oakland’s crowd control tactics were outdated, dangerous and ineffective and it was recommended that formalized First Amendment training be provided.51 To its credit, the City had already begun that process prior to issuance of the Study by offering training sessions in “Introduction to 21st Century Crowd Management, Intervention and Control Strategies and Shadow Team operations,” “Critical Incident Command for OPD leadership and command personnel,” and “crowd control tactics, use of force, chemical agents and specialty impact munitions.”52

While a city attorney is not in a position to make decisions regarding what is appropriate training for members of a city’s police department, it is not out of place for the city attorney to offer the police chief assistance with any training on First Amendment matters. City attorneys might also want to review the police department’s crowd control policies to ensure that they meet constitutional requirements. To gain more familiarity with how law enforcement agencies respond to crowd management, city attorneys should familiarize themselves with the POST Guidelines which not only describe crowd management strategies but also techniques for planning and preparation, information management, and the handling the media. The Guidelines also include helpful citations to

Instead, last night we witnessed that 99 percent being detained, arrested and intimidated with force.” Vivian Ho, “City dismantles protesters’ camp,” San Francisco Chronicle, Oct. 7, 2011, p. C2. 51 See supra, note 41, 77-78. 52 Id. at 78.

216 applicable Penal Code provisions and relevant case law regarding such issues as use of force, unlawful assembly, First Amendment, and obstruction of public places.53

A city attorney should also be familiar with the city’s protocols for emergency response so that he or she knows who to work through in the event of an unannounced or unplanned protest. Most cities have at least an informal coordinated response team consisting of one or more of the mayor, city manager, and fire and police chiefs. City attorneys should make themselves available to be a part of this team, if they are not already, to ensure that the city is kept apprised of constitutional issues associated with its response to a protest. Some city officials may not recognize that they owe an obligation to protect the First Amendment rights of protestors and their own employees. Advising the city on the degree to which it may infringe on those rights is a role only the city attorney should play in order to ensure legal advice is consistent and applicable attorney-client privileges are preserved.

2. Local Permits and Use of Public Property.

The permitting process allows cities to pre-plan for events and determine what demands will be placed on public resources. Most protests requiring permits are applied for and processed without any issue whatsoever, but the city attorney will often be called upon to resolve questions about the contents of a permit application and whether it complies with city ordinances governing the use of public ways. This is always an uncomfortable time to find out that a city’s ordinances are potentially unconstitutional for whatever reason and it is therefore good practice for any city attorney to review and suggest changes to the city’s permitting processes and laws governing the use of public spaces.

Of course, the fundamental First Amendment question a city attorney should always ask is whether a permit requirement discriminates against speakers on the basis of the content of their message. Rarely will this be expressly laid out in the ordinance, but there are ways in which seemingly innocuous conditions can rise to the level of content-based discrimination.54 Ordinances that are unreasonably burdensome or overbroad are also suspect. Permit fees that can be set at the discretion of the city should raise a red flag and elicit a closer look at how subjective the standards are for setting the fee. If the fee, for example, is higher if an event will be controversial (perhaps for the legitimate reason that more city resources will need to be

53 See supra, note 44. For a national perspective, see the Recommendations for First Amendment- Protected Events for State and Local Law Enforcement Agencies, Global Justice Information Sharing Initiative (December 2011). Another source of information for case law and guidance on public protest issues from the point of view of the American Civil Liberties Union is Know Your Rights: Free Speech, Protests & Demonstrations in California, ACLU (January 2010). 54 A good examination of how the Supreme Court evaluates ordinances regulating the content of speech can be found in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (bias- motivated crime ordinance declared unconstitutional on its face because it prohibited otherwise permitted speech solely on the basis of the subjects the speech addressed).

217 dedicated to crowd control) the permit scheme is likely unconstitutional because it requires an official to examine the content of the message to determine how likely it is to cause disruption.55 The standards in the ordinance for denying a permit should also be precise and specific and should be communicated to the applicant.56

The Occupy protests also revealed inconsistencies between the terms of city ordinances governing the use of public property and how such ordinances were being enforced. On the one hand many cities had local laws expressly prohibiting the overnight use of city parks only to find, upon closer examination, that the city did not regularly enforce such ordinances. Many cities had good reasons for not doing so (compassion for the homeless population, lack of city resources, etc.) but such policies also made it difficult for cities to defeat arguments that they were singling-out the Occupy Movement by forbidding its members to use the parks overnight. The lesson to take away from this is that city attorneys need to both review local ordinances for facial constitutionality and investigate how such ordinances are being enforced in practice by the city. Only with both pieces of information can a city attorney provide comprehensive advice on an ordinance’s constitutionality.

3. Planning.

In addition to reviewing the city’s crowd control policies and permitting ordinances ahead of time, a city attorney should be included in any pre-planning undertaken by city officials prior to a specific proposed demonstration or in preparation for future protests. As discussed above, some cities have already amended inadequate ordinances and otherwise addressed how public safety officers will respond to protests in the future but others may still have work to do. City attorneys can assist this effort by calling attention to constitutionally-infirm ordinances, policies and procedures and suggesting amendments before an emergency makes it appear that changes are being undertaken purely because a city disagrees with the current protest. Most cities will have a “crisis” team of specific officials already designated in the event of emergencies but the scope of the team should be expanded to involve potential responses to public demonstrations. City attorneys should make every effort to insert themselves into these crisis teams in order to provide guidance and, more importantly, protect the interests of their clients.

55 The Supreme Court jurisprudence on the subject of permitting is broad but Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992) is a good examination of permits in the context of public protest. See also Alfredo Kuba v. 1-A Agricultural Association, 387 F.3d 850 (9th Cir. 2003) for a discussion of the California Constitution’s Liberty of Speech clause and designated free speech zones, and NAACP v. City of Richmond, 743 F.2d 1346 (9th Cir. 1984) for a discussion of the constitutionality of permit processing times. 56 City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988).

218 IV. Conclusion.

The Occupy Movement (and recently the Tea Party movement as well) arose quickly and spread across the country in a matter of weeks thanks to the advent of social media, national news coverage, and the force of the messages being advocated. The upcoming election cycle may spur new protests later this year and it appears that mass demonstrations will continue to be a part of the American fabric for years to come. In a state with an established history of protest movements of all kinds, it will be difficult in the future for city officials to claim they were unprepared for a given protest or that they had no inclination there was a need to pre-plan. City attorneys alone have the knowledge and training to understand the constitutional issues involved when a city permits, and responds to, public demonstrations and should therefore consider what opportunities they have to improve the process before the next protest takes place.

219 Appendix A

List of Resources

Crowd Management, Intervention and Control, California Commission on Peace Officer Standards and Training (March 2012) at http://lib.post.ca.gov/Publications/CrowdMgtGuidelines.pdf.

Handbook of Free Speech Issues, Office of General Counsel, The California State University (May 2009) at http://www.calstate.edu/gc/ogc_manuals_on_legal_issues.shtml.

Independent Investigation: Occupy Oakland Response October 25, 2011, Frazier Group, LLC (Jun. 14, 2012) at http://www.scribd.com/doc/97147612/Frazier-report-on-OPD-response-to- Occupy-Oakland-Oct-25-2011.

Know Your Rights: Free Speech, Protests & Demonstrations in California, American Civil Liberties Union (January 2010) at https://www.aclunc.org/issues/index.shtml.

Recommendations for First Amendment-Protected Events for State and Local Law Enforcement Agencies, Global Justice Information Sharing Initiative (December 2011) at http://www.it.ojp.gov/default.aspx?area=home&page=1224.

220 Appendix B

Los Angeles City Ordinance 182,153, Eff. 7/18/12

[Attach Copy of Ordinance] 1950269.1

221 ORDINANCE NO. lS2153 _

An ordinance amending Paragraph (c) of Subdivision 14 of Subsection B of Section 63.44 of Chapter VI of the Los Angeles Municipal Code to prohibit persons from entering, remaining, staying or loitering within designated City parks with special operating hours, when those parks are closed, consistent with the restrictions already promulgated in Paragraphs (a) and (b) of Subdivision 14 of Subsection B of Section 63.44 of the Los Angeles Municipal Code; and amending Subdivision 4 of Subsection D of Section 63.44 of Chapter VI of the Los Angeles Municipal Code to further define and prohibit camping and lodging within a City park except in locations designated for such purposes, and to restrict the use of tents within all City parks.

WHEREAS, the City of Los Angeles (City) wishes to create uniform rules regarding entering, remaining, staying, loitering, camping and the use of tents in City parks consistent with other City regulations regarding park hours and the use of tents and camping; and

WHEREAS, the City wishes to further define the already established restrictions regarding camping and lodging within City parks; and

WHEREAS, the City wishes to restrict the use of tents or other camping facilities within City Parks; and

WHEREAS, unregulated camping, lodging and tents cause visual clutter and blight in City parks; and

WHEREAS, unregulated camping, lodging and tents in City parks creates unnecessary, excessive and blighted activity, which is detrimental to the public health, welfare and safety and contrary to public interest, harms nearby residents, and diminishes the public's enjoyment and use of City parks for recreational purposes.

NOW, THEREFORE,

THE PEOPLE OF THE CITY OF LOS ANGELES DO ORDAIN AS FOLLOWS:

Section 1. The introductory passage of Paragraph (c) of Subdivision 14 of Subsection B of Section 63.44 of the Los Angeles Municipal Code is amended to read as follows:

(c) No person shall enter, remain, stay or loiter in any of the following parks or facilities between the closing hour and the opening hour of the following day. The closing and opening hours for each of the following parks or facilities shall be as follows:

1 222 Sec 2. Subdivision 4 of Subsection D of Section 63.44 of the Los Angeles Municipal Code is amended to read as follows:

4. Camp in a City park, except in locations designated for such purposes, or erect, maintain, use or occupy any Tent, excluding Umbrellas or Sun Shades.

(a) Definitions: For purposes of this Subdivision, the following words or phrases shall mean:

(i) "Camp" means to erect, maintain or occupy a Camp Facility for any purpose, including lodging or living accommodation.

(ii) "Camp Facility" means one or more of the following: a Tent, hut, other temporary physical shelter, cot, bed, sleeping bag, hammock or bedroll, erected, maintained or used for lodging or living accommodation. The recreational use of a sleeping bag or bedroll that is removed from the park upon closing and not used to Camp is not considered a camp facility.

(iii) "Tent" means shelter or structure that is not entirely open and which lacks an unobstructed view into the Tent, shelter or structure from the outside.

(iv) "Umbrella or Sun Shade" means any canopy or cover that is open on all sides, consists of pliable tent-like material such as canvas, nylon or other synthetic fabric, and that is held aloft by one or more supporting metal, plastic, or wooden poles. No Umbrella or Sun Shade shall exceed eight feet in height and ten feet in diameter or width. All Umbrellas or Sun Shades shall be dismantled and removed from the park before the park is closed.

2 223 Sec. 3. The City Clerk shall certify to the passage of this ordinance and have it published in accordance with Council policy, either in a daily newspaper circulated in the City of Los Angeles or by posting for ten days in three public places in the City of Los Angeles: one copy on the bulletin board located at the Main Street entrance to the Los Angeles City Hall; one copy on the bulletin board located at the Main Street entrance to the Los Angeles City Hall East; and one copy on the bulletin board located at the Temple Street entrance to the Los Angeles County Hall of Records.

I hereby certify that this ordinance was passed by the Council of the City of Los Angeles, at its meeting of .NN 6 m

JUNE LAGMAY, City Clerk

Approved !J_V_N_O_7_L_Ol_l _

Mayor

Approved as to Form and Legality:

CAR~~~. ~~IA ...~ICH, City Attorney /'. ) ~--'.

By A'TH~Y~ Deputy City Attorney

Date (p! & /1 c9-"" 7 I

M:\GENERAL COUNSEL D1VIS!ON\VALER!E FLORES\ORDINANCES\ORDINANCE - LAM.C. 63,44A and B and 63.44 (1 j.ccc

224 3 DECLARATION OF POSTING ORDINANCE

I, MARIA VIZCARRA, state as follows: I am, and was at all times hereinafter mentioned, a resident of the State of California, over the age of eighteen years, and a Deputy City Clerk of the City of Los Angeles, California.

Ordinance No. 182153 - Amending Los Angeles Municipal Code Section 63.44 to prohibit persons from entering, remaining, staying, or loitering within designated City parks and to further define and restrict camping and lodging within a City park and prohibit the use of tents within all City parks - a copy of which is hereto attached, was finally adopted by the Los Angeles

City Council on June 6, 2012, and under the direction of said City Council and the City Clerk, pursuant to Section 251 of the Charter of the City of Los Angeles and Ordinance No. 172959, on

June 8, 2012 I posted a true copy of said ordinance at each of the three public places located in the

City of Los Angeles, California, as follows: 1) one copy on the bulletin board located at the Main

Street entrance to the Los Angeles City Hall; 2) one copy on the bulletin board located at the Main

Street entrance to the Los Angeles City Hall East; 3) one copy on the bulletin board located at the

Temple Street entrance to the Los Angeles County Hall of Records.

Copies of said ordinance were posted conspicuously beginning on June 8, 2012 and will be continuously posted for ten or more days.

I declare under penalty of perjury that the foregoing is true and correct.

Signed this 8th day of June 2012 at Los Angeles, California.

Maria Vizcarra, Deput City Clerk

Ordinance Effective Date: July 18, 2012 Council File No. 12-0605

Rev. (2121106)

225

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League of California Cities 2012 League of California Cities Annual Conference 226 City Attorneys’ Track San Diego Convention Center, San Diego

FPPC Update

Friday, September 7, 2012 General Session; 9:00 – 10:15 a.m.

Shawn M. Mason, City Attorney, San Mateo

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

227

League of California Cities 2012 League of California Cities Annual Conference 228 City Attorneys’ Track San Diego Convention Center, San Diego FPPC UPDATE- NEW REGULATIONS AND ADVICE LETTERS

Presented by

Shawn M. Mason City Attorney City of San Mateo

INTRODUCTION

This paper provides an update on significant developments concerning the Political Reform Act of 1974 (California Government Code sections 81000 et seq.) and the activities of the Fair Political Practices Commission (“FPPC”) in interpreting and applying the Act. The update addresses actions taken by the FPPC from April 2012 through July 2012. The paper covers (1) amendments to the Act and the regulations implementing it1, (2) significant advice letters issued by the FPPC, and (3) other important developments.

I. AMENDMENTS TO THE ACT AND THE FPPC REGULATIONS

A. Amendments to the Political Reform Act.

The Legislature made no notable amendments to the Act during the period covered by this paper.

B. Amendments to the FPPC Regulations.

The Commission adopted no noteworthy amendments to the regulations during the period covered by this paper.

II. IMPORTANT FPPC ADVICE LETTERS

Whitnell Letter I-12-060; Successor Agencies, Oversight Boards and Local Conflict of Interest Codes

Any person may seek written advice from the FPPC with respect to their duties under the Act. (See Govt. Code 83114(b)). The FPPC publishes written advice letters in which they apply the

1 The FPPC regulations may be found at Title 2, Division 6, sections 18109 et seq. of the California Code of Regulations.

229 provisions of the Act and the implementing regulations to facts presented by those requesting advice.

In June 2011, the Legislature adopted ABx1 26. This statute ended redevelopment in California, and established a process for wrapping up the affairs of the hundreds of redevelopment agencies operating within the state. The statute replaced the previously existing redevelopment agencies with “successor agencies” that would be responsible for the activities necessary to pay off outstanding obligations of the former agency and to dispose of agency assets. The important decisions to be made in performing these duties are subject to the review and approval of “oversight boards” also created by the statute.

As cities began to implement the provisions of ABx1 26, confusion arose about the application of the provisions of the Political Reform Act and FPPC regulations relating to the disclosure of economic interests by successor agency staff and the members of oversight boards. Acting on behalf of the hundreds of cities faced with these issues, League General Counsel Patrick Whitnell sent the FPPC a letter requesting guidance from the FPPC. On April 25, 2012, FPPC staff issued an informal advice letter providing guidance on these questions. A copy of this letter is attached as attachment A.

III. MISCELLANEOUS

A. The Regulation Clarification Project- What does “reasonably foreseeable” mean?

FPPC staff is continuing work on the effort announced by Chair Ravel to comprehensively review and simplify the regulations promulgated by the Commission. This year staff is focusing its efforts on the conflict of interest regulations found in regulations 18700 through 18709.

The conflict of interest provisions of the FPPC regulations are organized around the “8 Step” analysis for determining whether a public official has a disqualifying conflict of interest in a particular governmental decision. The sixth step in this process is determining whether a material financial effect on one or more of the official’s economic interests is “reasonably foreseeable” as a result of the decision. In June and July, FPPC staff conducted interested persons meetings to solicit input and feedback on proposals to revise the regulation that defines what is meant by “reasonably foreseeable.” The current regulation defines “reasonably foreseeable” as “substantially likely” to occur. FPPC staff propose to revise this regulation to provide that a material effect on an official’s economic interest could be “reasonably foreseeable,” even if it is only a potential outcome that is not even likely to occur. If adopted, this proposal will substantially impact conflict of interest analysis, and may require even more conservative advice on these questions.

230

B. Form 806- Reporting Positions Providing Additional Compensation to Officials.

City councils frequently make appointments from their members to positions on the governing boards of external entities like JPAs or special purpose districts. At times these positions provide additional compensation to the appointed member. In many cities, councils also choose from among their members appointees to the positions of mayor and vice mayor. In some cases, cities provide extra compensation to the council members who serve in these positions.

Until recently, FPPC regulation prohibited a council member from participating in a decision to appoint themselves to an external board position, or mayoral office if the appointment would affect the personal finances of the appointee in the amount of $250 or more within any 12 month period. In March, the FPPC amended regulation 18705.5 to allow a council member to participate in a decision appointing themselves to such a position under certain conditions. One of those conditions is that:

The body making the appointment . . . adopts and posts on its website, on a form provided by the commission, a list that sets forth each appointed position for which compensation is paid, the salary or stipend for each appointed position, the name of the public official who has been appointed to the position, and the name of the public official, if any, who has been appointed as an alternate, and the term of the position.

In May, the FPPC adopted the form (Form 806) referenced in the amended regulation. In adopting this regulation FPPC staff explained the process a city must follow to enable a council member to participate in a decision to appoint themselves to a compensated position. In order to qualify for this exception, the City must first have adopted and posted the Form 806 containing all of the information described above. Once a new appointment is made, the form is amended to reflect the new appointment. As explained by FPPC staff, there is only ever one Form 806 that is filled out and updated as needed to reflect current appointments. The important takeaway is that unless and until a city adopts and posts a Form 806, a council member may not participate in a decision to appoint themselves to a compensated position on the council or with another board.

C. Gift Rules-7 Step Process.

The Powerpoint slideshow presented at the Spring conference included a 7 step process developed to work through questions on the newly revised gift regulations. Since that time I have refined the 7 steps into a stand-alone document. The revised 7 Step guide is attached to this paper as attachment B.

231 THE GIFT RULES- REPORTING, LIMITS, AND DISQUALIFICATION

7 STEP PROCESS FOR ANALYZING GIFT ISSUES

Step 1: Is the recipient of the benefit an “official”?

-Review definition in Reg. 18940.1(b)

Step 2: Is the benefit considered a “gift”?

-Review definition in Govt. Code 82028(a)

-Review gift exceptions in Reg. 18942(a)

-Review Reg. 18944 and 18944.1 to determine if gift deemed a gift to official’s agency

Step 3: Are benefits given to others considered gifts to official?

-Review Reg. 18943 to determine if benefit given to official’s family member is considered gift to official

-Review Reg. 18944.2 to determine if prize won in agency raffle is considered gift to official who won the prize

Step 4: When was gift “received”?

-Review Reg. 18941(a) and 18941(b) to determine when gift is considered to have been “received”

-Review Reg. 18941(c) to determine if the receipt of the gift may be avoided by return, donation, or reimbursement by the official

Step 5: What is the value of the gift?

-Review Reg. 18946 for general rule

-Review Reg. 18946.1 through Reg. 18946.5 to determine if special valuation rule applies

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Step 6: Who is the source of the gift?

-Review Reg. 18745 for general rule

-Review Reg.18745.1 to determine if gift from two or more sources will be considered a gift from one source

-Review Reg. 18745.2 to determine source of gift given by a group

Step 7: How are gifts from this source treated for purposes of reporting, gift limit, and disqualification rules?

-Reporting: the official must report gifts from a source if the cumulative value of gifts from that source equal or exceed $50 during the calendar year, and

-the official is a form 700 filer, or

-the official is a “designated employee” and the employee is required to report gifts from the source under the agency’s conflict of interest code

-Limit: official may not receive gifts from a source if the cumulative value of gifts from that source exceed $420 during the calendar year, and

-the official is a form 700 filer, or

-the official is a “designated employee” and the employee is required to report gifts from the source under the agency’s conflict of interest code, unless

-the gifts are not subject to the gift limit under Reg. 18942(b)

-Disqualification: the official must disqualify themselves from decisions, if:

-the cumulative value of gifts received from a source within the 12 months before the decision exceeds $420, and

-it is reasonably foreseeable that the decision will have a material financial effect on the source of the gifts that is distinguishable from the effect on the public generally, unless

-the gift is returned, donated, or reimbursed in the manner provided in Reg. 18941(d)

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League of California Cities 2012 League of California Cities Annual Conference 234 City Attorneys’ Track San Diego Convention Center, San Diego

Employment of CalPERS Annuitants

Friday, September 7, 2012 General Session; 9:00 – 10:15 a.m.

Stacey N. Sheston, Best Best & Krieger

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

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League of California Cities 2012 League of California Cities Annual Conference 236 City Attorneys’ Track San Diego Convention Center, San Diego

Indian Wells Riverside (760) 568-2611 (951) 686-1450 Irvine San Diego (949) 263-2600 (619) 525-1300 Los Angeles Walnut Creek (213) 617-8100 (925) 977-3300 Ontario 500 Capitol Mall, Suite 1700, Sacramento, CA 95814 Washington, DC (909) 989-8584 Phone: (916) 325-4000 | Fax: (916) 325-4010 | www.bbklaw.com (202) 785-0600

1 EMPLOYMENT OF CALPERS ANNUITANTS

INTRODUCTION

As they struggle to provide effective services in increasingly-challenging economic times, California cities have often turned to employing retired public agency workers who bring a wealth of experience with them. Some of these retirees draw pensions from the California Public Employees’ Retirement System (“PERS”), which refers to them as “retired annuitants.” Cities that are contracting agencies with PERS can hire retired annuitants subject to various restrictions that allow the annuitants to work without being reinstated as active employees. See Government Code Sections 21221(h) and 21224.2 There have been two rounds of amendments to Sections 21221(h) and 21224 in recent months which have clarified (and in some ways changed) the rules relating to PERS retired annuitants. This paper and the related presentation are intended to provide an update regarding these changes and some suggestions for compliance with them. Because this paper discusses two sets of legislative changes, which are helpful to review together for context, it is imperative to read the entire paper and to rely on the current statutes for accuracy and completeness.3

BACKGROUND

Section 21220(a) provides, in relevant part, that “a person who has been retired under this system . . . may not be employed in any capacity thereafter by . . . a contracting agency, . . . unless the employment, without reinstatement, is authorized by this article.” A retiree whose employment without reinstatement is authorized by the Public Employees’ Retirement Law (“PERL”) will acquire no service credit or retirement rights under PERS with respect to that employment. However, the advantage of being employed without reinstatement is that the retiree may continue collecting his or her pension while employed.

Section 21221 identifies several types of employment that a retired annuitant may hold with a PERS contracting agency without reinstatement from retirement or loss or interruption of

 Tremendous contributions to this paper were provided by Alison Alpert ([email protected]; (619) 525- 1304), Laura Fowler ([email protected]; (916) 551-2085), Isabel C. Safie (Isabel.Cesanto- [email protected]; (951) 826-8309), and John Wahlin ([email protected]; (951) 826-8313). Any or all of them are great contacts for future questions, concerns, or just generalized commiseration about the headaches generated when applying these rules.

1 DISCLAIMER: Nothing in this paper is intended to be, nor should it be construed as, legal advice from BB&K or the authors. Specific facts and future developments may change the subjects and conclusions stated. Consult your legal counsel. Also, brush your teeth before bedtime every night. Eat all your vegetables. Play nice. Share. 2 All statutory references are to the California Government Code. 3 Duh.

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retirement benefits, such as: (1) member of a board, commission or advisory committee; (2) school crossing guard; (3) juror or elections official; and (4) a position with a contracting agency that is temporarily vacant (up to a year) because of a leave of absence and involving specialized skill. Section 21221(h) relates to appointments made by a local agency governing body during an emergency or to provide specialized work of limited duration, subject to strict limitations. Section 21224 provides a separate authority pursuant to which a retiree may be employed for specialized work of limited duration. Both 21221(h) and 21224 appointments are subject to a maximum individual working hours cap of 960-hours per fiscal year for all PERS- contracting employers combined.

AB 1028

The Legislature’s first foray in many years into the statutory scheme relating to employing retired annuitants was AB 1028 in 2011. Described as a “housekeeping bill” designed to “clean up” various provisions of the Public Employees’ Retirement Law (PERL), AB 1028 came from PERS itself via the Committee on Public Employees, Retirement and Social Security. The bill made a number of changes to the PERL relating to issues such as campaign filings for PERS (and STERS) Board candidates, clarifying various definitions, addressing furloughs in calculating retirement allowances for trial court employees, and paying death benefits. Tucked amidst these technical changes were provisions “strengthening and clarifying rules regarding post-retirement employment” that were “identified by staff as necessary for the maintenance and good governance of CalPERS.” Cal. Assembly Comm. on Appropriations, Hearing Report at p.1 (April 13, 2011). The bill summary presented at the first Senate hearing for AB 1028 stated that the requirements for employing annuitants “are not consistently spelled out in the statutes, creating potential for misinterpreting or abusing the requirements of the program,” and thus “this bill aligns various provisions governing retired workers to ensure that the program requirements are consistently applied.” Cal. Senate Comm. on Pub. Emp. & Ret., Bill Analysis at p.2 (June 27, 2011). As the bill wound its way through the committee process, the bill digest said the bill “makes technical and non-controversial changes” to various section of the PERL. Cal. Senate Rules Comm., Third Reading Digest at p.1 (August 15, 2011). PERS has taken the position that these changes are clarifications only and therefore declarative of existing law.

Among the most significant changes to Section 21221(h) were the following:

. This section is intended for an interim appointment to a vacant position while the City is actively recruiting for a permanent appointment.

. The appointment is one made by the governing body of the contracting agency. [Note: Some argue that appointments under Section 21221(h) are restricted to high level employees, such as the city manager, fire chief or police chief, but the language was not expressly so limited. Some may also argue that this suggests that positions that are typically appointed by the city council cannot be filled pursuant to Section 21224, but, once again, the language was not expressly so limited.]

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. The position is deemed by the governing body to require specialized skills for the work to be performed, or the appointment is during an emergency and necessary to prevent stoppage of public business.

. The appointment is a one-time appointment and cannot last longer than 12 months (no extensions beyond a year).

. The pay received by the retiree cannot exceed the maximum published pay schedule for the vacant position.

As for Section 21224, only two words were added by AB 1028 (underlined below):

A retired person may serve without reinstatement from retirement or loss or interruption of benefits provided by this system upon temporary appointment by the appointing power of a state agency or public agency employer either during an emergency to prevent stoppage of public business or because the retired employee has specialized skills needed in performing work of limited duration. These appointments shall not exceed a total for all employers of 960 hours in any fiscal year, and the rate of pay for the employment shall not be less than the minimum, nor exceed that paid by the employer to other employees performing comparable duties.

These limited additions seem to say “no big deal” to an unwary reader. The major problem is that there was no guidance provided as to what “temporary” might mean.

Some claimed the AB 1028 changes to 21221 and 21224 were simply codifying existing, implicit rules that PERS expected agencies had already been following. The reality was that many agencies were employing annuitants for extended periods of years, in a variety of positions including permanent positions, with only the general 960-hours-per-year limitation. When AB 1028 took effect, much wailing and gnashing of teeth ensued. Many agencies were left confused as to whether their arrangements were inconsistent with the law, potentially exposing them and their employees to uncertain penalties. The ambiguity of several key terms, together with the potential penalties for both the agency and the annuitant,4 generated additional amendments that were quietly dropped into the annual colossal budget bill in June 2012. More wailing and gnashing of teeth followed.

4 Retirees who run afoul of the post-retirement employment rules will be reinstated from retirement and (1) will be compelled to return any retirement allowance received during the period of unlawful employment, (2) will have to pay an amount equal to the employee contributions that should have been made during that time (plus interest), and (3) may have to pay PERS’ administrative expenses incurred in response to the retiree’s unlawful employment. Parallel penalties apply to the contracting agency that hired the annuitant, requiring payment of employer contributions that should have been made during the offending period and potentially requiring payment of PERS’ administrative expenses incurred as a result. Call me a cynic, but I’m thinking PERS would come after the contracting agencies every day and twice on Sunday before they would come after individual employees for administrative cost recovery, but that’s unsupported gut feeling.

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SB 1021 – Section 21221(h)

SB 1021, an urgency measure that took effect immediately, made some substantial changes to Section 21221(h). It now appears clearer that 21221(h) applies to permanent positions which are vacant during recruitment for a permanent appointment. The overall 960-hour limitation remains unchanged, and agencies that appoint a retiree pursuant to Section 21221(h) no longer have the option of requesting an extension to the 960-hour limitation. However, and more significantly, SB 1021 eliminated the 12-month restriction. Thus, it appears that a retiree appointed pursuant to Section 21221(h) may serve for more than a year until a permanent appointment is made, but the retiree can only be appointed once pursuant to Section 21221(h).

Additional changes to 21221(h) relate to compensation for the retiree. First, his or her compensation must be reflected as an hourly rate which is no higher than the maximum monthly base salary paid to employees performing similar duties, as listed on a publicly available pay schedule, divided by 173.333. Second, retirees may not receive any benefits or compensation in lieu of benefits.

SB 1021 – Section 21224

One of the most controversial changes made by AB 1028 was the addition of the word “temporary” in reference to appointments made pursuant to Sections 21224, the provision most often used by public agencies to employ retirees for temporary part-time work. It was unclear what “temporary” might mean in terms of an overall limitation to the length of employment under that section. According to various contacts with CalPERS staff, the word “temporary” was actually added to distinguish between permanent (i.e., positions listed on a publicly available pay schedule) and non-permanent positions. CalPERS apparently takes the position that Section 21224 cannot be used to temporarily fill vacant, permanent positions, but should be used only for “extra help” and special projects.

SB 1021 removed the word “temporary,” but we are still left with ambiguity as to how long appointments under Section 21224 may last without requiring reinstatement from retirement or incurring penalties. Keep in mind that the statute already contemplated non-permanent employment even before AB 1028, as reflected in the words “limited duration” in the prior version of Section 21224. These words remain in the statute after passage of SB 1021. The unofficial word from CalPERS is that a contracting agency may employ a 21224 retiree in a non- permanent position, subject to the 960-hour-per-fiscal-year limitation, for as long as the agency deems it necessary to employ the retiree.5 However, the appointment cannot be unlimited or indefinite.6 CalPERS is currently working on FAQs that we hope will provide further guidance, but those FAQs had not yet been released as of the time this paper was prepared. Current best estimates from unnamed insiders are that the FAQs will come out sometime in August or September.

5 Whew! 6 ???!!! Isn’t that helpful?

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PRACTICE TIPS

If they haven’t already done so, cities would be well served to inventory their ranks to identify all the retired annuitants on the payroll, the positions in which they are serving, and the provision under which they were appointed. We recommend that each annuitant’s employment arrangement be reduced to writing (either in the form of a formal contract or signed memo) that identifies things like:

 Which section is being used for the appointment. If the position is an interim appointment to a regular, permanent position, the safest course is to assume Section 21221(h). If the position is truly “extra help,” use 21224;

 What the emergency is or what specialized skills are needed for the appointment;

 If the appointment is under 21224, identify the appointment as temporary/limited duration and describe the duration of the appointment in terms as definitive as possible. Sometimes it is helpful to describe the appointment in “project” terms (e.g. “Annuitant Annie is going to work on Project X [further described in Exhibit 1], which will begin on September 1, 2012 and is expected to be completed by February 15, 2013.”). If the assignment doesn’t lend itself to a “project” type of description, consider a contract term for the employment (e.g. Fiscal Year 2012-13). If a successive contract term is necessary, make sure that a new contract with a new finite term is executed;

 A description of the hourly compensation to be paid;

 A statement that the city has compared the retiree’s hourly compensation to the base salary (in hourly terms) paid to other employees performing comparable duties as listed on a publicly available pay schedule, and the retiree’s compensation does not exceed such other employees’ compensation;7

 A statement that no other benefit, incentive, compensation in lieu of benefits, or other forms of compensation in addition to the hourly pay rate are being provided; and

 A statement of the absolute 960-hour cap (for all PERS employers) for the fiscal year and how it will be monitored.

The new “My CalPERS” system will eventually make it much easier for PERS to track and audit the employment arrangements of its retired annuitants. Cleaning up these employment arrangements now should minimize potential audit headaches in the future.

7 It’s even more helpful if this analysis has actually been performed and the numbers actually work.

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League of California Cities 2012 League of California Cities Annual Conference 242 City Attorneys’ Track San Diego Convention Center, San Diego

Municipal Tort and Civil Rights Litigation Update

Friday, September 7, 2012 General Session; 9:00 – 10:15 a.m.

Eugene P. Gordon, Office of the City Attorney, San Diego

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

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League of California Cities 2012 League of California Cities Annual Conference 244 City Attorneys’ Track San Diego Convention Center, San Diego League of California Cities City Attorneys’ Department Annual Conference September 2012

MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE

Eugene P. Gordon Office of City Attorney 1200 Third Avenue, Ste. 1100 San Diego, CA 92101 Phone: (619) 533-5821 Fax: (619) 533-5856 [email protected]

245 MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE

TABLE OF CONTENTS

PAGE

1. Mixon v. State of California, 207 Cal. App. 4th 124 (2012). A CROSSWALK WITHOUT STREETLIGHTS OR A TRAFFIC SIGNAL IS NOT A DANGEROUS CONDITION BECAUSE A PUBLIC ENTITY HAS NO DUTY TO PROVIDE SUCH FEATURES ...... 1

2. Mendoza v. City of West Covina, 206 Cal. App. 4th 702 (2012). A POLICE OFFICER WHO TASERED AND PUNCHED AN IN-CUSTODY SUSPECT WAS NOT ENTITLED TO QUALIFIED IMMUNITY UNDER § 1983 WHEN THE SUSPECT DIED OF ASPHYXIATION AFTER BEING PINNED BY MULTIPLE OFFICERS ...... 3

3. Reichle v. Howards, -- U.S. --, 132 S. Ct. 2088 (2012). TWO SECRET SERVICE AGENTS WERE ENTITLED TO QUALIFIED IMMUNITY BECAUSE THE LAW WAS NOT CLEARLY ESTABLISHED THAT AN ARREST SUPPORTED BY PROBABLE CAUSE COULD VIOLATE THE FIRST AMENDMENT ...... 6

4. Rehberg v. Paulk, -- U.S. --, 132 S. Ct. 1497 (2012). WITNESSES, INCLUDING POLICE OFFICER WITNESSES, IN GRAND JURY PROCEEDINGS ARE ABSOLUTELY IMMUNE FROM SUIT UNDER § 1983 BASED ON THE WITNESS’ TESTIMONY ...... 8

5. Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012). THE DISCHARGE OF PEPPERBALLS INTO A CROWD OF PARTYGOERS WHO DID NOT POSE A THREAT TO POLICE OFFICERS OR OTHERS VIOLATED THE FOURTH AMENDMENT RIGHTS OF AN INDIVIDUAL WHO WAS HIT IN THE EYE BY A PROJECTILE ...... 9

246 6. Coito v. Superior Court (State of California), 54 Cal. 4th 480 (2012). A WITNESS STATEMENT OBTAINED THROUGH AN ATTORNEY-DIRECTED INTERVIEW IS ENTITLED TO AT LEAST QUALIFIED WORK PRODUCT PROTECTION ...... 14

7. Allgoewer v. City of Tracy, 207 Cal. App. 4th 755 (2012). EXPERT TESTIMONY IS NOT NECESSARILY REQUIRED IN POLICE EXCESSIVE FORCE CASES ...... 17

8. Filarsky v. Delia, -- U.S. --, 132 S. Ct. 1657 (2012). A PRIVATE ATTORNEY TEMPORARILY RETAINED BY A CITY TO CARRY OUT ITS WORK IS ENTITLED TO SEEK QUALIFIED IMMUNITY UNDER SECTION 1983 ...... 19

UPDATE ...... 21

247 A CROSSWALK WITHOUT STREETLIGHTS OR A TRAFFIC SIGNAL IS NOT A DANGEROUS CONDITION BECAUSE A PUBLIC ENTITY HAS NO DUTY TO PROVIDE SUCH FEATURES 1. Mixon v. State of California, 207 Cal. App. 4th 124 (2012). FACTS AND PROCEDURAL BACKGROUND On February 14, 2006, around 7:40 p.m., a father and his three children were walking across a street in a marked crosswalk when a motorist failed to yield to the pedestrians and struck one of the children. The particular intersection had a marked crosswalk but no signal lights and no street lights directly overhead. The father told the police that the family stopped at the southeast corner of the intersection and waited for north and southbound traffic to stop before entering the crosswalk. A northbound car stopped and the father and his children entered the intersection together in front of the stopped car. The family started to cross the street from east to west. One southbound car passed as they started to cross the street and another southbound vehicle, a pickup truck, approached the crosswalk as the family was walking across the street. The truck failed to stop and struck one of the children, a four-year old boy. The boy sustained major personal injuries. The injured boy and his siblings sued the motorist and others for personal injury and emotional distress. Plaintiffs also sued the State, alleging that the intersection was in a dangerous condition due to a faulty lighting configuration, lack of traffic control signals and signs, placement of signs, the type of crosswalk marking, and the grade of the intersection. The trial court granted summary judgment in favor of the State. The court found that the intersection was not in a dangerous condition and that there was no duty to provide lighting at the intersection with overhead street lights. Plaintiffs filed a timely notice of appeal. CALIFORNIA COURT OF APPEAL DECISION The Court of Appeal affirmed the judgment of the trial court which granted summary judgment to the State. Plaintiffs identified five factors that allegedly made the intersection dangerous, but the Court of Appeal concluded that the intersection was not in a dangerous condition whether the factors are considered alone or in combination. A. Lighting Plaintiffs contended that the lighting at the site of the accident was inadequate and made especially dangerous because the poorly lit intersection contrasted sharply with better lit areas surrounding it. Nearby areas were more brightly lit than the intersection, and, according to Plaintiffs’ electrical engineer and lighting expert, this contrast in lighting made it harder for southbound motorists to perceive pedestrians at the intersection. 1

248 It is well settled that a public entity has no general duty to light its streets, and that the absence of street lighting is itself not a dangerous condition. City of San Diego v. Superior Court, 137 Cal. App. 4th 21, 23 (2006); Plattner v. City of Riverside, 69 Cal. App 4th 1441, 1443 (1999); and Antenor v. City of Los Angeles, 174 Cal. App. 3d 477, 483 (1985). However, Plaintiffs argued that even if the State had no duty to provide lighting, it may be held liable because it undertook to provide lighting and did so negligently by lighting the surrounding areas more brightly than the intersection. The court rejected Plaintiffs’ argument, stating that the argument “is no more than a variant of the long-rejected claim that a public entity is negligent for failing to provide street lights.” According to the court, “[a] public entity, which has no general duty to light its streets, cannot be held liable for failing to provide a consistent level of lighting between one street and the next.” B. Traffic Control Signal Plaintiffs contended that the lack of a traffic control signal made the intersection dangerous. However, California Government Code section 830.4 provides that a condition is not a dangerous condition merely because of the failure to install a described traffic control device. Here, according to the court, there were no additional features of the property to combine with the lack of a traffic control signal to make the intersection dangerous. Therefore, the lack of a traffic signal at the intersection does not constitute proof of a dangerous condition. C. Warning Signs Plaintiffs contended that the intersection was in a dangerous condition due to the lack of a pedestrian crossing sign. However, California Government Code section 830.8 provides that a public entity is not liable for injury caused by the failure to provide such a sign, unless a sign was necessary to warn of a concealed dangerous condition. The absence of a warning sign itself is not a dangerous condition. Here, according to the court, the absence of a pedestrian crossing sign at the intersection does not prove a dangerous condition. Plaintiffs also contended that the presence of a signal ahead sign and roadway marking pertaining to the next intersection beyond the subject intersection diverted drivers’ attention to the next intersection and thus distracted them from focusing on the subject intersection. However, the court concluded that the sign and marking failed to prove a dangerous condition as they were accurate in warning drivers of a signal light at the next intersection. The court explained that “[a]n accurate, reasonably placed warning sign does not create a dangerous condition just because it focuses a driver’s attention on one roadway feature among many. It remains the driver’s duty to attend to the roadway as a whole.”

249 D. Crosswalk Marking The subject crosswalk was marked with white parallel lines. Plaintiffs argued that the State used a “minimalist approach to delineating the crosswalk” that was less visible than alternate forms such as the “zebra stripe,” “piano key,” or “ladder” paint patterns. However, according to the court, “[a] public entity is not required to go beyond the elimination of danger and maximize every safety precaution.” Here, there was no evidence that the crosswalk pattern used, although perhaps not the safest possible, created a dangerous condition. Accordingly, the court concluded that the fact a crosswalk is painted with parallel lines rather than with a zebra stripe, piano key, or ladder pattern does not create a dangerous condition. E. Road Grade The roadway has a 5 percent downgrade for southbound traffic approaching the subject intersection. Just north of the intersection there is a 1.88 percent upgrade as the road passes through the intersection. Plaintiffs claimed that this change in elevation created “a dip or hollow” at the intersection that impaired the visibility of the crosswalk. However, the court noted that the less than two percent grade change at the location of the accident was slight, and that the intersection’s crosswalk markings are visible to motorists approaching the intersection from the north. CONCLUSION The court held that the evidence presented here failed to raise a triable issue of fact that the intersection was in a dangerous condition. Therefore, the trial court properly granted summary judgment to the State.

A POLICE OFFICER WHO TASERED AND PUNCHED AN IN-CUSTODY SUSPECT WAS NOT ENTITLED TO QUALIFIED IMMUNITY UNDER § 1983 WHEN THE SUSPECT DIED OF ASPHYXIATION AFTER BEING PINNED BY MULTIPLE OFFICERS 2. Mendoza v. City of West Covina, 206 Cal. App. 4th 702 (2012). FACTS AND PROCEDURAL BACKGROUND David Mendoza, 42, died of asphyxiation on March 17, 2007, while in police custody in the emergency room of a hospital. In the days leading up to his death, Mendoza went to the hospital three times because of alcohol withdrawal sickness. The last two hospital visits took place the night before and the night of his death. On those two occasions, an intravenous needle was used. On the second occasion, at around 3:30 a.m., on March 17, Mendoza pulled the needle from his arm and walked out of the hospital. A few hours later, Mendoza walked into the backyard of a nearby home, tried to open a window and asked to use a telephone. The homeowner called the police, 3

250 who found Mendoza seated on a curb not far away. Mendoza told one of the officers, Officer Enrique Macias, that he went to the house to ask if he could use the phone to call his family. Mendoza asked Macias to help him, but Macias arrested Mendoza on suspicion of burglary and took him to a holding cell. Mendoza complained that he had stomach pains and was hearing voices, and told Macias that he also had diabetes and high blood pressure. Macias took Mendoza to the hospital so Mendoza could be medically cleared for booking. Once at the hospital, Mendoza submitted to a physical examination and gave a urine sample. His right arm was then handcuffed to the arm of a chair which was designed as a seat for drawing blood samples for testing blood alcohol content. A nurse applied a tourniquet to Mendoza’s arm in order to draw a blood sample, but although Mendoza had been cooperative, nonthreatening, and noncombative, he said he did not want a needle in his arm. At this point, the events leading to Mendoza’s death were very much in dispute at trial. OFFICER MACIAS’S ACCOUNT According to Officer Macias, Mendoza became increasingly agitated and struggled to get out of the chair. Mendoza refused to remain seated and stood up several times. Officer Macias asked a sheriff’s deputy to help watch Mendoza while Macias called his watch commander. Mendoza then moved toward the deputy who pushed Mendoza against the wall. According to the deputy, Mendoza resisted and kept pushing against her. Officer Macias went back to help the deputy, and tried to get Mendoza to sit back down. Mendoza continued to resist, and because Officer Macias believed Mendoza might use the chair as a weapon, Macias decided to use his taser on Mendoza. Macias warned Mendoza for about 30 seconds that he would tase Mendoza unless he sat back down, and pressed the taser against Mendoza’s torso. When Mendoza did not comply, Macias activated the taser in the drive-stun mode. Mendoza came toward Officer Macias, and they both fell to the ground. A prolonged struggle followed, during which, according to Macias, Mendoza swung the chair that was handcuffed to his wrist and flipped it from side to side. Officer Macias applied the taser to Mendoza three or four more times in an attempt to subdue him. Mendoza was yelling and screaming and kept grabbing Macias. Officer Macias punched Mendoza in the face five or six times. In response to Officer Macias’ radio call for help, three more police officers arrived and helped Macias subdue Mendoza. The four officers rolled Mendoza over on to his stomach, held him down, and handcuffed him. At that point, Mendoza was not breathing. Efforts to revive him were futile, and Mendoza died. PLAINTIFFS’ ACCOUNT Officer Macias conceded that between the time when he pressed the taser against Mendoza’s body and the first time he deployed it, Mendoza did not try to hit Macias or the sheriff’s deputy. A nurse who had tried to draw blood from Mendoza, testified that Mendoza was seated when Macias first tasered him.

251 Another witness testified that she heard Officer Macias tell Mendoza to calm down and that he would be fine. She then heard the sound of a chair moving around, followed by the snapping sounds of a taser. She saw Mendoza lying face down on his stomach with his right hand still cuffed to the chair. Mendoza was screaming in pain and repeatedly cried out for help. The witness stated that she never saw Mendoza touch or resist anyone or lift or swing the chair. One officer had a foot near Mendoza’s head, and another had a foot on his back. Mendoza’s brother-in-law arrived at the hospital and heard a commotion in the emergency room. He testified that he saw Mendoza lying down on the floor. The sheriff’s deputy had an arm around Mendoza’s neck and Officer Macias was on top of Mendoza’s right hip. Macias had a stun gun in his left hand and was alternately punching and tasering Mendoza. The brother-in-law stated he did not count how many times Officer Macias punched Mendoza but Macias “did not stop from the time that I was there.” According to the brother-in-law, Macias used the taser on Mendoza five or six times, sometimes for as long as seven seconds. Mendoza was lying on the floor during this time and did not lift up the chair to which he was handcuffed. The brother-in-law testified that Mendoza never hit anyone and did not try to take Macias’s taser. Mendoza made no movements except for flinching in response to pain from the beating. According to the brother-in-law, by the time the three additional officers arrived, Mendoza was weak and “completely subdued,” but the three officers together with Macias all got on top of Mendoza. A forensic pathologist testified for Plaintiffs that Mendoza died due to ‘”restraint asphyxiation” from the force of being pinned by Officer Macias and the three other officers. He explained that the stress of being beaten and stunned, combined with Mendoza’s obesity and hypertension, made Mendoza more susceptible to the restraint force used on him. A police use of force expert testified that Officer Macias’s initial use of the taser was unnecessary and excessive because Mendoza had merely expressed his refusal to submit to the intravenous blood draw and was not making any threatening moves. The expert testified that the taser was not used properly by Macias and that excessive force was used, as the computerized log from the taser showed it was discharged 14 times, with one discharge lasting upwards of 30 seconds. Furthermore, according to the expert, Macias was in charge of the incident and thus had an obligation to direct the other officers to make sure Mendoza’s airway was kept open so he could breathe. According to the expert, there was no evidence that Macias took such steps. Mendoza’s two sons sued the City and Officer Macias for wrongful death, alleging that Macias used excessive force in violation of their father’s constitutional rights. A jury found that Officer Macias caused the death of David Mendoza through the unconstitutional use of excessive force. The jury awarded each son $750,000 for the wrongful death of their father, but determined that Mendoza was 30 percent 5

252 at fault. The jury found that Officer Macias had acted with “malice, oppression and/or fraud,” and in a bifurcated proceeding before the trial court, the court assessed punitive damage against Macias in the amount of $4,500. The trial court denied Officer Macias’s motion for nonsuit based on qualified immunity for his conduct. CALIFORNIA COURT OF APPEAL DECISION The Court of Appeal affirmed the judgment of the trial court denying Officer Macias’s motion for nonsuit based on qualified immunity. According to the court, viewing the evidence in the light most favorable to Plaintiffs, substantial evidence supported the jury’s verdict that Officer Macias’s use of force was excessive. The court also concluded that at the time of the constitutional violation in March 2007, the law was sufficiently clear that every reasonable official would have known that Officer Macias’s use of force violated Mendoza’s constitutional rights. According to the court, numerous federal court decisions made it clear before 2007 that using various types of force, including tasers, on a non-resistant, non- threatening individual constituted excessive force. Thus, Officer Macias was not entitled to qualified immunity for his actions.

TWO SECRET SERVICE AGENTS WERE ENTITLED TO QUALIFIED IMMUNITY BECAUSE THE LAW WAS NOT CLEARLY ESTABLISHED THAT AN ARREST SUPPORTED BY PROBABLE CAUSE COULD VIOLATE THE FIRST AMENDMENT 3. Reichle v. Howards, -- U.S. --, 132 S. Ct. 2088 (2012). FACTS AND PROCEDURAL BACKGROUND Defendants were members of a Secret Service detail protecting Vice President Richard Cheney while he visited a shopping mall. Plaintiff was also at the mall. He was engaged in a cell phone conversation when he noticed the Vice President greeting members of the public. One of the agents overheard Plaintiff say, during this conversation, “I’m going to ask [the Vice President] how many kids he’s killed today.” When Plaintiff approached the Vice President, he told him that his “policies in Iraq are disgusting.” The Vice President simply thanked Plaintiff and moved along, but the agents saw Plaintiff touch the Vice President’s shoulder as the Vice President was leaving. Plaintiff then walked away. One of the agents approached Plaintiff, displayed his badge, identified himself, and asked to speak with him. Plaintiff refused and attempted to walk away. The agent stepped in front of Plaintiff and asked if he had assaulted the Vice President. Plaintiff denied assaulting or even touching the Vice President. After completing his interview of Plaintiff, the agent arrested Plaintiff, who was charged with harassment in violation of state law. The charge was eventually dismissed. Plaintiff brought a Bivens action in federal district court against two of the agents. Plaintiff alleged that he was arrested and searched without probable cause in 6

253 violation of the Fourth Amendment. He also alleged that the arrest violated the First Amendment because it was made in retaliation for Plaintiff’s criticism of the Vice President. The agents moved for summary judgment on the ground that they were entitled to qualified immunity, but the district court denied the motion. On appeal, the Tenth Circuit reversed the immunity ruling with respect to the Fourth Amendment claim because the court concluded that the agents had probable cause to arrest Plaintiff for making a material false statement to a federal official when Plaintiff falsely denied touching the Vice President. Thus, the court concluded that neither Plaintiff’s arrest nor search incident to the arrest violated the Fourth Amendment. However, the Tenth Circuit denied the agents qualified immunity from Plaintiff’s First Amendment claim. According to the court, the law was clearly established that a retaliatory arrest violates the First Amendment even if supported by probable cause, and therefore, the agents were not entitled to qualified immunity. The U.S. Supreme Court granted certiorari on two questions: whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Plaintiff’s arrest so held.

U.S. SUPREME COURT DECISION The Supreme Court reversed the judgment of the Tenth Circuit denying the agents qualified immunity. The Court held that the Secret Service agents were entitled to qualified immunity because, at the time of Plaintiff’s arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. The Court did not address the first question raised by the Court when it granted certiorari--whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest. Instead, the Court skipped to the second prong of a qualified immunity analysis, namely, assuming a violation of a purported constitutional right occurred, was that right “clearly established” at the time of the violation. Courts may grant qualified immunity to government officials on the ground that a purported right was not “clearly established” by prior case law. Pearson v. Callahan, 555 U.S. 223, 236 (2009). To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. --, 131 S. Ct. 2074, 2078 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Here, according to the Supreme Court, the “clearly established” standard was not satisfied. The Court has never recognized a First Amendment right to be free from a retaliatory arrest that was supported by probable cause. Appellate courts are divided on the issue of whether an arrest supported by probable cause could give rise to a First Amendment violation. As the Supreme Court previously observed, “[i]f judges thus disagree on a constitutional question, it is unfair to 7

254 subject police to money damages for picking the losing side of the controversy.” Wilson v. Layne, 526 U.S. 603, 618 (1999). Accordingly, the agents were entitled to qualified immunity.

WITNESSES, INCLUDING POLICE OFFICER WITNESSES, IN GRAND JURY PROCEEDINGS ARE ABSOLUTELY IMMUNE FROM SUIT UNDER § 1983 BASED ON THE WITNESS’ TESTIMONY 4. Rehberg v. Paulk, -- U.S. --, 132 S. Ct. 1497 (2012). FACTS AND PROCEDURAL BACKGROUND Plaintiff, a certified public accountant, sent anonymous faxes to several recipients, including the management of a hospital in Albany, Georgia, criticizing the hospital’s management and activities. In response, the local district attorney’s office, with the assistance of its chief investigator, Defendant James Paulk, initiated a criminal investigation of Plaintiff, allegedly as a favor to the hospital. The investigator testified before a grand jury, and Plaintiff was then indicted for aggravated assault, burglary, and six counts of making harassing telephone calls. The indictment charged that Plaintiff had assaulted a hospital physician after unlawfully entering the doctor’s home. Plaintiff challenged the sufficiency of the indictment, and it was dismissed. A few months later, the investigator returned to the grand jury, and Plaintiff was indicted again, this time for assaulting the same doctor, and for making harassing phone calls. On this occasion, both the doctor and the investigator testified. Again, the indictment was dismissed. While the second indictment was still pending, the investigator appeared before the grand jury for a third time, and yet another indictment was returned. Plaintiff was charged with assault and making harassing phone calls. This final indictment was ultimately dismissed as well. Plaintiff then brought a § 1983 action against the investigator. Plaintiff alleged that the investigator conspired to present and did present false testimony to the grand jury. The investigator moved to dismiss, arguing, among other things, that he was entitled to absolute immunity for his grand jury testimony. The district court denied the investigator’s motion to dismiss, but the Court of Appeals for the Eleventh Circuit reversed, holding that the investigator was absolutely immune from a § 1983 claim based on his grand jury testimony. The Court of Appeals noted that the investigator was the sole “complaining witness” before the grand jury, but the court declined to recognize a “complaining witness” exception to grand jury witness immunity. The U.S. Supreme Court granted certiorari to resolve a Circuit conflict regarding the immunity of a “complaining witness” in a grand jury proceeding. 8

255 U.S. SUPREME COURT DECISION The Supreme Court affirmed the judgment of the Court of Appeals, holding that a grand jury witness is entitled to the same immunity as a trial witness. According to the Court, “[t]he factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses.” In both contexts, without absolute immunity, witnesses might be reluctant to testify, and even a witness who took the stand might not be candid and totally truthful for fear of being sued. The Supreme Court did not see a reason to distinguish law enforcement witnesses from lay witnesses in § 1983 actions. The Court explained that police officers appearing as witnesses before a grand jury may reasonably be viewed like any other witness sworn to tell the truth. Plaintiff’s main argument was that certain grand jury witnesses - namely, those who qualify as “complaining witnesses” - are not entitled to absolute immunity. However, the Supreme Court observed that at common law at the time § 1983 was enacted, the term “complaining witness” was used to refer to a party who applied for an arrest warrant and initiated a criminal prosecution. A “complaining witness” might or might not testify, either before a grand jury or at trial, but testifying was not a necessary characteristic of a “complaining witness” at common law. Thus, according to the Court, a law enforcement officer who testifies before a grand jury is not at all comparable to a “complaining witness.” The officer, unlike a complaining witness at common law, does not make the decision to press criminal charges, rather, it is the prosecutor who is actually responsible for the decision to prosecute. A “complaining witness” cannot be held liable for perjurious trial testimony. Briscoe v. LaHue, 460 U.S. 325, 326 (1983). And, according to the Court, “there is no more reason why a complaining witness should be subject to liability for testimony before a grand jury.” Accordingly, the Supreme Court concluded that grand jury witnesses, including police officer witnesses, are entitled to the same immunity as trial witnesses.

THE DISCHARGE OF PEPPERBALLS INTO A CROWD OF PARTYGOERS WHO DID NOT POSE A THREAT TO POLICE OFFICERS OR OTHERS VIOLATED THE FOURTH AMENDMENT RIGHTS OF AN INDIVIDUAL WHO WAS HIT IN THE EYE BY A PROJECTILE 5. Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012). FACTS AND PROCEDURAL BACKGROUND On April 16, 2004, approximately 1,000 people congregated at an apartment complex in Davis, California for what was termed by one participant as “the biggest party in history,” for the annual Picnic Day festivities at U.C. Davis. Plaintiff, a U.C. Davis student, was among the attendees. Due to the size of the party, the street in front of the apartment complex became gridlocked and 9

256 partygoers began to park illegally. The police issued parking tickets to vehicles illegally parked and cited students for underage drinking. Officers saw individuals rocking a car and heard the sound of bottles breaking. The owner of the apartment complex requested that Sgt. John Wilson order non-residents to leave the complex. Officers informed individuals around the fringes of the crowd that they were trespassing and that it was necessary for them to leave. This method to disperse the nearly 1,000 partygoers proved to be ineffective. Bringing a police vehicle to the scene which Sgt. Wilson hoped would have the effect of motivating partygoers to depart of their own volition also proved unsuccessful. The vehicle was soon overwhelmed by the crowd, including some individuals who threw bottles at the vehicle. The officers cleared a path for the police car by foot so that they could leave the complex and return to the police station to regroup. Officers from other law enforcement agencies responded to a request for assistance from the City of Davis Police Department and 30 to 40 officers assembled in riot gear at a location near the apartment complex in preparation to disperse the crowd. Three of the Defendants, U.C. Davis police officers, were among those officers and were armed with pepperball guns. The court explained that pepperball guns are, in essence, paintball guns that fire rounds containing oleoresin capsicum (“OC”) powder, also known as pepper spray. These rounds are fired at a velocity of 350 to 380 feet per second, with the capacity to fire seven rounds per second. They break open on impact and release OC powder into the air, which has an effect similar to mace or pepper spray. Upon entering the complex, the officers issued unamplified verbal orders to disperse. The officers formed a skirmish line and moved through the crowd giving dispersal orders, but the majority of the crowd neither heard the orders nor dispersed. The officers formed a second skirmish line, and prepared again to disperse the crowd. This time, the officers armed with pepperball guns assembled under Sgt. Wilson’s command in front of the other officers Their purpose was to use their weapons in order to “disperse” the remaining students and make way for the advancing “skirmish line.” The officers gathered in front of a breezeway in the apartment complex that was described as a “very narrow and confined space.” A group of 15-20 individuals had gathered in this breezeway on the ground floor, including Plaintiff and his friends. The students were attempting to leave the party but according to the students, the police blocked their means of egress and did not provide any instructions for leaving the complex. The students testified in their depositions that they stood in the breezeway waiting for instructions from the police. At various times they called out to the police, asking the officers to inform them what they wanted the students to do. Scattered bottles were thrown throughout the complex, but the officers testified that no one from Plaintiff’s group threw bottles at the police. The officers testified that they gave an audible warning to the students to disperse, but the students claimed that they did not hear any commands until after shots had already been fired. When the partygoers failed 10

257 to disperse, Sgt. Wilson ordered his team to “disperse them,” at which point the three defendant officers shot pepperballs towards Plaintiff’s group from a distance estimated by various parties to have been 45-150 feet away. A pepperball fired from one of the officers’ guns struck Plaintiff in the eye. As a result of his injury, Plaintiff suffered temporary blindness and a permanent loss of visual acuity. He endured multiple surgeries to repair the damage to his eye. Plaintiff filed a § 1983 action, alleging, among other things, a violation of his Fourth Amendment right to be free from unreasonable seizure. The City of Davis, two police chiefs, Sgt. Wilson, and the three officers who fired pepperballs were named as defendants. Neither the students nor the officers identified which of the officers shot the projectile which struck Plaintiff. The district court denied summary judgment to the officers, concluding that, under Plaintiff’s version of the events, an unreasonable seizure under the Fourth Amendment had occurred. The court also held that the officers were not entitled to qualified immunity. The officers filed a timely appeal.

NINTH CIRCUIT DECISION The Ninth Circuit affirmed the order of the district court denying summary judgment to the officers. The court held that Plaintiff alleged facts which, if true, would support a finding that the officers’ conduct constituted a violation of clearly established law. A. Plaintiff was Intentionally Seized by the Police Under the Fourth Amendment “A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer by means of physical force or show of authority terminates or restrains his freedom of movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007). The court in this case stated that “[t]o constitute a seizure, the governmental conduct must be purposeful, and cannot be an unintentional act which merely has the effect of restraining the liberty of the plaintiff. “ Here, the officers contended that Plaintiff was not “seized” under the Fourth Amendment, because he was not individually targeted by officers; therefore, his shooting was unintentional and incapable of causing a Fourth Amendment violation. The court disagreed, noting that the officers took aim and intentionally fired in the direction of a group of people of which Plaintiff was a member. Plaintiff was hit in the eye by a projectile and, after being struck, was rendered immobile until he was removed by an unknown individual. According to the court, such willful conduct should be contrasted with the unknowing and unintentional act of the accidental pinning of a fleeing felon to a wall by a police car when the brakes of the unoccupied police car failed. Here, Plaintiff “was both an object of intentional governmental force and his freedom of movement was 11

258 limited as a result.” Thus, the actions of the officers amounted to an unconstitutional seizure of Plaintiff. According to the court, Plaintiff was “seized” even though he may have been struck in the eye with a pepperball that was intended to impact some other part of his body, or was physically hit by the projectile when the officers sought only to spray him with its contents. “The precise manner in which the officers’ intentional use of force was ultimately experienced by [Plaintiff] does not affect the determination that a seizure has occurred.” The court also concluded that the actions of the officers constituted a seizure of Plaintiff even though the intent of the officers was to disperse the crowd. The Supreme Court has repeatedly held that the Fourth Amendment analysis is not a subjective one. See, e.g., Ashcroft v. al-Kidd, -- U.S. --, 131 S. Ct. 2074, 2080 (2011). Here, according to the court, whether the officers intended to encourage the partygoers to disperse has no bearing on whether a seizure occurred. B. The Officers’ Use of Force Against Plaintiff Was Unreasonable The court undertook an analysis under Graham v. Connor, 490 U.S. 386 (1989), to determine whether the seizure of Plaintiff was reasonable. Here, the court concluded that pepperballs are capable of causing serious bodily injury and “must be justified by substantial government interests.” In the evaluation of the need, if any, for the officers’ use of force against Plaintiff, the court considered a number of factors, including the severity of the crime at issue, whether Plaintiff posed an immediate threat to the safety of the officers or others, and whether Plaintiff actively resisted arrest or attempted to evade arrest by flight. The court believed that the first factor, the severity of the crime at issue, weighed heavily in favor of Plaintiff and against the use of the force employed by the officers. Plaintiff had not committed a crime (with the possible exception of the minor offense of trespassing), and there was no need to quickly clear the apartment complex. Thus, the lack of serious criminal behavior by Plaintiff, and the absence of exigency involved in the officers’ desire to clear the apartment complex “provid[ed] only minimal, if any, justification for the use of force under Graham.” With respect to the threat analysis, the court concluded that the undisputed facts established that the officers did not reasonably believe Plaintiff or any of his companions posed a threat. None of the officers saw Plaintiff or any of the other students gathered in the breezeway throw bottles or other debris at the officers, or engage in any other threatening or dangerous behavior. There was no indication that Plaintiff and his friends who were taking cover in the breezeway represented a threat to anyone’s safety. According to the court, under these circumstances, “the general disorder of the complex cannot be used to legitimize the use of pepperball projectiles against non-threatening individuals.”

259 According to the court, the third factor considered in the Graham analysis, whether Plaintiff actively resisted arrest or attempted to evade arrest by flight, also weighed in favor of Plaintiff. The officers never attempted to place Plaintiff or any of his friends under arrest. Thus, the degree of force employed may only be justified by a failure to comply with orders given by the officers. However, according to Plaintiff and his associates, the police did not give orders to the group until after the discharge of the pepperballs had already occurred. Accordingly, there was no justification for the use of force under the third Graham factor. Additionally, according to the court, the officers failed to give sufficient warnings that force would be used against the students unless they dispersed. The students testified that they did not hear any orders given until Plaintiff had already been shot, and the group was not told prior to the shooting how they should comply with the dispersal orders. Thus, the failure to give sufficient warnings also weighs against the government’s decision to use force against Plaintiff and his associates. The court noted that POST guidelines relating to the deployment of pepperball guns were not followed. Those guidelines specified that officers should avoid the head, face and groin due to the risk of causing serious injury. Officers were warned that pepperball projectiles could not be accurately targeted beyond 30 feet, and they were advised not to shoot pepperballs indiscriminately or at individuals that were not posing a threat. In the final analysis, according to the court, the only governmental interest involved in the application of force to Plaintiff and his friends was the officers’ desire to clear the complex of the party-going individuals. There was no exigency motivating the officers’ actions. Accordingly, the court concluded that the use of force that might lead to serious injury against non-threatening individuals who had committed no serious crime was unreasonable. C. The Officers Were Not Entitled To Qualified Immunity The court also concluded that at the time of the incident in 2004, the law was sufficiently established that a reasonable officer would have been on notice that the deployment of pepperball projectiles directed toward Plaintiff and his friends, given the minimal governmental interests at stake, was unreasonable under the circumstances. According to the court, while there was no binding precedent that had specifically addressed the use of pepperball projectiles, Circuit cases were consistent in holding that the use of force which is capable of causing serious bodily injury on individuals suspected of, at most, minor crimes, who posed no threat to the officers or others, and who engaged in only passive resistance, was unreasonable. Accordingly, the court held that the officers were not entitled to qualified immunity for their actions.

260 A WITNESS STATEMENT OBTAINED THROUGH AN ATTORNEY-DIRECTED INTERVIEW IS ENTITLED TO AT LEAST QUALIFIED WORK PRODUCT PROTECTION 6. Coito v. Superior Court (State of California), 54 Cal. 4th 480 (2012). FACTS AND PROCEDURAL BACKGROUND A 13-year-old boy drowned in the Tuolumne River in Modesto, California. His mother filed a complaint for wrongful death naming several defendants, including the State of California. Six other juveniles witnessed what happened. There were allegations that all of the juveniles, including the decedent, were engaged in criminal conduct immediately before the drowning. After co-defendant City of Modesto had noticed the depositions of five of the six juvenile witnesses, counsel for the State sent two investigators, both special agents from the Bureau of Investigations of the Department of Justice, to interview four of the juveniles. The State’s counsel provided the investigators with questions he wanted asked. Each interview was audio-recorded and saved on a separate compact disc. The City of Modesto took the deposition of one of the four interviewed witnesses. The State’s counsel used the content of the witness’s recorded interview in questioning the witness at the deposition. Plaintiff then served the State with supplemental interrogatories and document demands. The interrogatories included Judicial Council Form Interrogatory No. 12.3, which sought the names, addresses, and telephone numbers of individuals from whom written or recorded statements had been obtained. The document demands sought production of the audio recordings of the four witness interviews. The State objected to the requested discovery based on the work product privilege. Plaintiff filed a motion to compel an answer to Form Interrogatory No. 12.3 and the production of the recorded interviews. The trial court denied Plaintiff’s motion except as to the recording used by the State to examine the witness at the earlier deposition. As to that recording, the court reasoned that the State had waived the work product privilege by using the interview to examine the witness during the deposition. Plaintiff petitioned for a writ of mandate that the Court of Appeal granted. A divided court reversed, concluding that work product protection did not apply to any of the disputed items. The Court of Appeal issued a writ of mandate directing the trial court to grant the motion to compel discovery. The California Supreme Court granted review.

261 CALIFORNIA SUPREME COURT DECISION The Supreme Court reversed the judgment of the Court of Appeal. The Court held that: (1) The recordings of witness interviews conducted by investigators employed by Defendant’s counsel are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if Defendant can show that disclosure would reveal its “attorney’s impressions, conclusions, opinions, or legal research or theories.” Cal. Civ. Proc. Code § 2018.030, subd. (a). If not, then the items may be subject to discovery if Plaintiff can show that “denial of discovery will unfairly prejudice [her] in preparing her claim . . . or will result in an injustice.” Id. at subd. (b). (2) The identity of witnesses from whom Defendant’s counsel has obtained statements is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, Defendant must persuade the trial court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege), or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege). In California, an attorney’s work product is protected by statute. Cal. Civ. Proc. Code § 2018.010 et. seq. Absolute protection is afforded to writings that reflect “an attorney’s impressions, conclusions, opinions, or legal research or theories.” Cal. Civil Proc. Code § 2018.030, subd. (a). Such writings “[are] not discoverable under any circumstances.” Id. All other work product receives qualified protection; such material “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” Id. at subd. (b). The Legislature has not defined or described “work product,” leaving it to the courts to resolve whether particular materials constitute work product on a case- by-case basis. City of Long Beach v. Superior Court, 64 Cal. App. 3d 65, 71 (1976). WITNESS STATEMENTS A. Absolute Privilege In the instant case, the Supreme Court concluded that “witness statements obtained as a result of an interview conducted by an attorney, or by an attorney’s agent at the attorney’s behest, constitute work product protected by section 2018.030.” However, according to the Court, witness statements procured by an attorney are not automatically entitled as a matter of law to absolute work product protection. Instead, the applicability of absolute protection must be determined case by case. Thus, an attorney resisting discovery of a witness statement based on absolute privilege must make a foundational showing that disclosure would reveal the “impressions, conclusions, opinions, or legal research or theories” of the attorney. Upon an adequate showing, the trial court should then 15

262 determine, by conducting an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material. B. Qualified Privilege Although witness statements obtained through an attorney-directed interview may or may not reveal the attorney’s thought process, the Supreme Court concluded that such statements are nevertheless, as a matter of law, entitled to at least qualified work product protection under section 2018.030, subdivision (b). The Court believed that when an attorney obtains through discovery a witness statement obtained by opposing counsel through his or her own initiative, such discovery undermines the Legislature’s policy to “[p]revent attorneys from taking undue advantage of their adversary’s industry and efforts.” Cal. Civ. Proc. Code § 2018.020, subd, (b). Further, according to the Court, a rule authorizing the discovery of witness statements procured by an attorney would likely result in fewer statements being recorded and potentially unfavorable matters not being thoroughly investigated. Accordingly, a party seeking disclosure of a witness statement obtained by an attorney has the burden of establishing that denial of discovery will unfairly prejudice the party in preparing its case or defense or will result in an injustice. IDENTITY OF WITNESSES In the instant case, in Form Interrogatory No. 12.3, Plaintiff sought the disclosure of the identity of the witnesses from whom the State’s attorney had obtained recorded statements. According to the Court, the disclosure of a list of such witnesses may, in some instances, reveal the attorney’s impressions of the case. Such information may be entitled to absolute privilege under section 2018.030, subdivision (a). If absolute privilege is not applicable, such a list may still be entitled to qualified privilege under section 2018.030, subdivision (b) to the extent it reflects the attorney’ s industry and effort in selecting which witnesses to ask for a recorded statement. CONCLUSION The Court concluded that information responsive to Form Interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. “Instead, the interrogatory must usually be answered.” However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking advantage of the attorney’s industry or efforts. Upon such a showing, the trial court should then determine, by conducting an in camera hearing if necessary, whether absolute or qualified work product protection applies to the material in dispute. The Supreme Court reversed the judgment of the Court of Appeal and remanded the matter for further proceedings to determine whether the disputed materials should be produced. 16

263 EXPERT TESTIMONY IS NOT NECESSARILY REQUIRED IN POLICE EXCESSIVE FORCE CASES 7. Allgoewer v. City of Tracy, 207 Cal. App. 4th 755 (2012). FACTS AND PROCEDURAL BACKGROUND Plaintiff’s ex-wife complained to a police officer that Plaintiff had violated a child custody order by failing to return the parties’ child to the ex-wife the day before. The officer and a second officer contacted Plaintiff at his home where Plaintiff was gardening in the yard. Plaintiff advised the officers that he had submitted a letter through his lawyer for a 30-day vacation period with the child but was unable to provide the officers with a copy of the letter from a folder of documents he had brought from the house. Eventually, the first officer went to talk with the ex-wife, who was parked about a block away, about whether she had received the letter. She told the officer she had no knowledge of the letter, and a man on the telephone whom she claimed was her lawyer told the officer the same thing. The officer went back to Plaintiff and relayed the information to him, and Plaintiff began to get upset. The officer told him that he was in violation of the custody order and was going to have to give the child to the ex-wife. Plaintiff started raising his voice and eventually squatted down to pick up the documents he had brought from the house, along with a hand rake he had been using to garden. The officer told Plaintiff to put the rake down because it was making him nervous, but Plaintiff did not comply. He told the officers he was not going to hurt them and invited them into the house. When Plaintiff started walking toward the backyard gate, the second officer told him not to go into the backyard. The second officer also told Plaintiff to put the rake down or the officer would “tase” him. Then, without either officer telling Plaintiff he was under arrest, the second officer moved toward Plaintiff, grabbed his right arm, and attempted to kick the hand rake out of his hand. The officer then drove Plaintiff to the ground with a leg sweep. The first officer rushed in to assist. The second officer got on Plaintiff’s back, applying pressure on the side of Plaintiff’s face with the back of his tricep in an effort to get Plaintiff’s arm out from under him. Plaintiff told the officers that he had an injured shoulder and some crushed vertebrae, and he yelled in pain, but refused to comply with the officer’s command to put his arms behind his back. Meanwhile, the first officer who was yelling at Plaintiff to give the other officer his hand, reached down and tried to pull Plaintiff’s hand back. When that did not work, the officer deployed his taser on Plaintiff twice. After the second deployment, the second officer was able to get Plaintiff’s left hand behind his back, and Plaintiff then put his right hand behind his back as well. The officers arrested Plaintiff for violating a court order, brandishing a weapon, and resisting arrest.

264 Plaintiff claimed that as a result of the incident, he suffered a broken wrist, torn rotator cuff muscles, and a torn bicep. Plaintiff filed a § 1983 action and an action under state law against the officers, alleging, among other things, that the officers used excessive force in arresting him. The case proceeded to trial. The officers filed a motion for nonsuit on the ground that expert testimony was necessary to establish an objective reasonableness standard for the officers’ actions, and the failure of Plaintiff to provide such testimony would make it impossible for the jury “to assess what actions are characteristic of a reasonable police officer.” The trial court agreed. The court explained that Plaintiff could not prevail without offering expert testimony on “what force a reasonable law enforcement officer would have used under the same or similar circumstances,” as the jury would have no evidence to determine what force a reasonable officer would have used. The court found that it would be necessary to have that kind of testimony, and accordingly, the court granted the officers’ motion for nonsuit. Plaintiff filed a timely appeal. CALIFORNIA COURT OF APPEAL DECISION The Court of Appeal reversed the judgment of dismissal by the trial court. The court concluded that the trial court prejudicially erred in concluding that expert testimony on the issue of reasonable force was required in this case. “Generally, the opinion of an expert is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ’.” PM Group, Inc. v. Stewart, 154 Cal. App. 4th 55, 63 (2007)(quoting Cal. Evid. Code section 801, subd. (a)). “If the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert opinion evidence in order to establish a prima facie case.” Miller v. Los Angeles County Flood Control Dist., 8 Cal. 3d 689, 702 (1973). The need for expert testimony is usually the case in medical malpractice actions, as the standard of care in such actions is generally a matter peculiarly within the knowledge of experts. Johnson v. Superior Court, 143 Cal. App. 4th 297, 305 (2006). Here, “[the officers] took the position—and the trial court agreed—that the ‘standard of conduct’ in an excessive force case is like the standard of care in a medical malpractice case in that, in all but the most egregious cases, the degree of force a reasonable officer would use under a particular set of circumstances is peculiarly within the knowledge of experts.” There is no California authority directly on point, however, several out-of-state authorities were found by the court to be persuasive, although they did not support the officers’ position. Under Graham v. Connor, 490 U.S. 386 (1989), the question in police excessive force cases is whether the amount of force the officers used in making the arrest was objectively unreasonable under the particular circumstances. The 18

265 “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene.” Kofp v. Skyrm, 993 F.2d 374 (4th Cir. 1993), stands for the proposition that expert testimony can be admissible on the issue of reasonable force under Graham. Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006), stands for the proposition that it is not always admissible. Both of these cases indirectly support the proposition that expert testimony is not required in an excessive force case. In Robinson v. City of West Allis, 239 Wis. 2d 595 [619 N.W. 2d 692] (2000), the Wisconsin Supreme Court observed that determinations of excessive force generally are not beyond the realm of ordinary experience and lay comprehension. Id. at pp. 695, 699. The facts of each case will determine whether expert testimony would assist the jury. Here, the court concluded that there was no need for expert testimony. According to the court, there was nothing about the particular use of force in this case “that was so far removed from the comprehension of a lay jury as to necessitate expert opinion on the applicable standard of conduct or on what amount of force was reasonable under the circumstances that confronted the officers who arrested [Plaintiff].” The fact that the average lay person does not have training or experience in police practices and procedures does not mean that expert testimony is required for a jury to determine whether a particular amount of force was unreasonable under the circumstances. Thus, the trial court erred in concluding otherwise.

A PRIVATE ATTORNEY TEMPORARILY RETAINED BY A CITY TO CARRY OUT ITS WORK IS ENTITLED TO SEEK QUALIFIED IMMUNITY UNDER SECTION 1983 8. Filarsky v. Delia, -- U.S. --, 132 S. Ct. 1657 (2012). FACTS AND PROCEDURAL BACKGROUND Plaintiff, a firefighter employed by the City of Rialto, California, was suspected by the City of feigning an illness. The City hired a private investigation firm to conduct surveillance on him. The investigators observed Plaintiff purchasing building supplies from a home improvement store and surmised that Plaintiff was missing work to do construction on his home rather than because of illness. The City initiated a formal internal affairs investigation of Plaintiff, and he was ordered to appear for an administrative investigation interview. The City hired Defendant to conduct the interview. Defendant was an experienced employment attorney who had previously represented the City in several investigations. At the interview, Plaintiff acknowledged buying the supplies, but denied having done any work on his home. To verify Plaintiff’s claim, Defendant asked Plaintiff to allow a fire department official to enter his home and view the unused materials. On the advice of counsel, Plaintiff refused. Defendant then asked Plaintiff if he would be willing to bring the materials out onto his lawn so that the official could

266 observe them without entering Plaintiff’s home. Plaintiff again refused to consent. Defendant then ordered Plaintiff to produce the materials for inspection. Plaintiff’s counsel objected to the order, asserting that it would violate the Fourth Amendment. The attorney threatened to sue the City and Defendant for a violation of civil rights. Nonetheless, after the interview concluded, officials followed Plaintiff to his home, where he brought out the unused materials. Plaintiff brought a § 1983 action against the City, the Fire Department, the City’s attorney (Defendant) and other individuals, alleging that the order to produce the building materials violated his rights under the Fourth and Fourteenth Amendments. The District Court granted summary judgment to all the individual defendants on the basis of qualified immunity. The Ninth Circuit affirmed with respect to all individual defendants except the City’s attorney, concluding that he was not entitled to seek qualified immunity because he was a private individual, and not a public employee. The U.S. Supreme Court granted a petition for certiorari. U.S. SUPREME COURT DECISION The Supreme Court in a unanimous decision reversed the judgment of the Ninth Circuit denying qualified immunity to Defendant. The Court concluded that immunity under § 1983 should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis. The Court noted that the common law as it existed in 1871, when Congress enacted § 1983, did not draw a distinction between full-time public servants and private individuals engaged in public service in according protection from suit to individuals carrying out government responsibilties. According to the Court, there is no reason for not carrying forward the common law rule. First, the government interest in avoiding “unwarranted timidity” on the part of those engaged in the public’s business is the same regardless of whether the individual sued as a state actor works for the government full-time or on some other basis. Second, affording immunity to those acting on the government’s behalf will ensure that talented individuals are not deterred by the threat of damages suits from entering public service. Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is the same whether those duties are discharged by private individuals or permanent government employees. Fourth, distinguishing among those who carry out the public’s business based on the nature of their particular relationship with the government “creates significant line-drawing problems” and can deprive state actors of the ability to reasonably anticipate when their conduct may give rise to liability for damages. The common law did not draw a distinction for liability purposes between work performed by permanent, full-time employees of a city and government work 20

267 performed by private individuals. The Supreme Court did not see a justification for doing so under § 1983. Accordingly, the Court held that private individuals performing work for a city, like formal employees of the city, are entitled to seek the protection of qualified immunity.

UPDATE In Mattos v. Agarano and Brooks v. City of Seattle, 661 F.3d 433 (9th Cir. 2011), the Ninth Circuit en banc consolidated for purposes of appeal, two § 1983 cases involving the use of tasers. The court held in both cases that (1) the use of the tasers under the circumstances constituted excessive force, but (2) at the time of the incidents (Brooks—2004; Mattos—2006), the law was not clearly established that tasing Brooks and Mattos constituted excessive force. Thus, the officers were entitled to qualified immunity. In Brooks, a woman who was seven months pregnant was stopped for driving 12 miles-per-hour over the speed limit. Brooks denied that she had been speeding and refused to sign the traffic citation. After several attempts to talk her out of the car failed, an officer displayed his taser and warned her that he would use it. The officers tried to pull Brooks out of her car, but she resisted by stiffening her body and grabbing the steering wheel. An officer then tasered her three times over the course of less than one minute in drive-stun mode. In Mattos, officers were called to a home in Maui in response to a domestic dispute call. The officers eventually ended up inside the family home. One officer informed the husband that he was under arrest, but the wife was standing between the officer and her husband at that point. When the officer moved in to take the husband into custody, the wife put out her arm to prevent the officer from pressing up against her. Without warning, the officer deployed his taser at the wife in dart-mode. On May 29, 2012, the U.S. Supreme Court denied certiorari.

268

Labor and Employment Litigation Update

Friday, September 7, 2012 General Session; 10:30 a.m. – Noon

Richard S. Whitmore, Liebert Cassidy Whitmore

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

269

League of California Cities 2012 League of California Cities Annual Conference 270 City Attorneys’ Track San Diego Convention Center, San Diego

Public Sector Employment Law Update

271 ALL ABOUT THE AUTHORS

With offices in Los Angeles, San Francisco, Fresno and San Diego, the law firm of Liebert Cassidy Whitmore represents public agency management in all aspects of labor and employment law, labor relations, and education law. The Firm's representation of cities, counties, special districts, transit authorities, school districts, and colleges throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights. The Firm regularly handles a wide variety of labor and employment litigation, from the inception of complaints through trial and appeal, in state and federal courts.

The Firm places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than thirty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the National League of Cities, National Association of Counties, International Personnel Management Association, United States Government Finance Officers Association, National Employment Law Institute, National Public Employer Labor Relations Association, California Public Employer Labor Relations Association, County Counsels’ Association of California, League of California Cities, California State Association of Counties, Public Agency Risk Management Authority, the Association of California School Administrators, the California School Boards Association, and the California Association of Independent Schools.

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 2012 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

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TABLE OF CONTENTS 8-12

DISCIPLINE...... 1

RETALIATION...... 2

DISCIPLINE/FIRST AMENDMENT...... 4

LABOR RELATIONS...... 5

HIRING...... 11

GOVERNMENTAL IMMUNITY ...... 13

PUBLIC RECORDS ACT ...... 14

RETIREMENT ...... 15

SEX DISCRIMINATION/RETIREMENT...... 19

DISCRIMINATION/HARASSMENT CLAIMS...... 20

FAIR LABOR STANDARDS ACT ...... 20

HEALTH CARE ACT ...... 21

DISCIPLINE

County Could Terminate State Licensed Commissioner And Sealer For Failing To Adequately Perform Her Job Duties. Cathy Neville was the head of the County of Sonoma’s Department of Agriculture (the Commissioner) and as the County Sealer of Weights and measures (the Sealer). County commissioners/sealers perform some duties under the direction and supervision of the California Department of Food and Agriculture (State) and some duties under the direction and supervision of the County Board of Supervisors (Board). In December 2008, the Board appointed Neville to a four-year term as the Commissioner and Sealer.

In 2010, after conducting a lengthy investigation, the Board terminated Neville’s employment based on her use of derogatory terms, poor interactions with coworkers, and supervision problems.

Neville filed a petition for writ of mandate challenging the Board’s authority to terminate her employment. She did not argue the merits of her dismissal, but rather argued that only the state, and not the County, had the authority to terminate her employment. The superior court denied her petition and the California Court of Appeal affirmed.

The “home rule” doctrine under the California Constitution provides that counties have the authority to provide for the number, compensation, tenure, appointment and conditions of employment of county employees. Neville argued that this doctrine did not apply to her because she was an officer and not an employee.

After reviewing the portions of the Food and Agricultural Code applicable to the licensing and appointment of a commissioner/ sealer, the Court held that the State has sole jurisdiction over licensing and revoking a license of the commissioner / sealer, but the County has the right to terminate the commissioner/sealer's employment when that person’s performance of local tasks is unsatisfactory. Neville’s termination had no effect on her license, thus there was no conflict.

Neville v. County of Sonoma (2012) 206 Cal.App.4th 61 [141 Cal.Rptr.3d 570].

Terminated Peace Officer Had No Right Under The POBRA To Production Of His Personnel And Internal Affairs Files. The California Department of Corrections and Rehabilitation (CDCR) terminated Patrick Barber, a parole agent with the Division of Juvenile Justice (DJJ), and Barber filed an appeal of his termination with the State Personnel Board (SPB). While Barber’s appeal was pending, the California Attorney General filed a Pitchess motion for production of Barber’s personnel records in a pending criminal case. The trial court granted the Pitchess motion, which resulted in Barber’s personnel records for 1999 to 2004 being disclosed.

After the Pitchess motion was granted, and more than six months after his termination, Barber requested copies of his personnel records from 2005 to 2009 from CDCR. Barber specifically requested copies of all internal affairs investigations, adverse actions, requests for adverse actions, citizen complaints, and records containing requested records from four specific Office of Internal Investigations from 2005 and 2009. The CDCR denied Barber’s records request.

Barber filed a writ petition, and asserted that he was entitled to the requested records pursuant to Government Code section 3306.5. Government Code section 3306.5 states: “(a) Every employer shall, at reasonable times and at reasonable intervals, upon the request of a public safety officer, during usual business hours, with no loss of compensation to the officer, permit that officer to inspect personnel files that are used or have been used to determine that officer’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action. (b) Each employer shall keep each public safety officer’s personnel file or a true and correct copy thereof, and shall make the file or copy thereof available within a reasonable period of time after a request therefore by the officer.”

At the trial on the writ petition, Barber admitted that the writ petition was prompted by the ruling on the Pitchess motion, and not his termination. Barber asserted that based on the documents disclosed in response to the Pitchess motion, he believed CDCR was deliberately withholding documents that were relevant to the pending appeal of his termination before SPB. Barber further argued that the documents disclosed pursuant to the Pitchess motion should have been produced to him in 2004 as part of his challenge to two prior terminations, in which he was ultimately reinstated in both instances. Barber further asserted that the CDCR had a history of concealing and destroying his records.

The trial court denied Barber’s writ petition, and concluded that Barber was not entitled to Public Safety Officers Procedural Bill of Rights Act (POBRA) protection or rights after termination of his employment. In an issue of first impression, the Court of Appeal affirmed. The Court held that Barber had no employment relationship with CDCR at the time he requested his personnel records, and as such he had no rights under POBRA to make a broad request for his personnel and internal affairs records. Reviewing the legislative intent of Government Code section 3306.5, and case law interpreting the statute, the Court held that the purpose of the statute was to facilitate an officer’s ability to respond to adverse comments potentially affecting the officer’s employment status, and to correct any misstatements discovered in his or her records in the event erroneous, derogatory information might result in adverse impact on the officer’ employment. The Court also held that the statutory language only pertains to currently employed officers. The Court concluded that up until the effective date of termination, an officer has the right pursuant to section 3306.5 to review his or her employment records, but this right ends after the effective date of termination.

Barber v. California Department of Corrections and Rehabilitation (2012) 203 Cal.App.4th 638 [137 Cal.Rptr.3d 727], review den.

RETALIATION

An Employee Can Be Disciplined For Filing A False Harassment Complaint. Richard Joaquin is a City of Los Angeles Police Department officer. In 2005, he complained that Sergeant James Sands sexually harassed him. The Department investigated and found Joaquin’s complaint to be unfounded. Sands then filed a complaint against Joaquin for filing a false complaint. Internal Affairs investigated Sands’s complaint, agreed with Sands, and recommended that the matter be adjudicated by the Board of Rights. The Board of Rights found Joaquin had fabricated the charge and recommended termination. The Department terminated his employment in 2006. Joaquin sued and won a lawsuit to overturn the termination, and the Department reinstated him.

Joaquin sued again, this time alleging that his termination was in retaliation for filing a sexual harassment complaint in violation of the Fair Employment and Housing Act (FEHA). The jury agreed with Joaquin.

But the California Court of Appeal reversed because Joaquin did not present substantial evidence that the department terminated him in order to retaliate for his 2005 complaints.

If an employee shows that all of the prima facie elements of a retaliation claim have been met, the employer must then show a legitimate, nondiscriminatory reason for its actions. If the employer articulates such a reason, the presumption of retaliation is erased and the employee must prove intentional retaliation.

The court found an employee who fabricates a sexual harassment claim may be disciplined. Filing a complaint is protected, but filing an untruthful complaint is not. To find otherwise would allow employees to file false charges, lie to an investigator, and defame co-workers.

In this case, the court found a retaliatory time sequence because the Department did terminate Joaquin after he filed a complaint of harassment. But, Joaquin could not show that the Department had any retaliatory intent because of the falsity of the complaint. Joaquin argued that Sands had retaliatory intent, but there was no evidence that Sands had any influence on the investigation or the Board of Rights hearing. Moreover, the Board of Rights proceeding operated independently of either the Department or Sands. The Board of Rights consists of two sworn commanding officers and a civilian who adjudicate charges of police officer misconduct. The Board decides solely on the evidence presented to it, and not on the prior internal investigation. Joaquin did not show that the Board members harbored any retaliatory animus either.

Note: An employer always runs the risk of a retaliation claim whenever the employer disciplines an employee for making a false complaint because the discipline follows the protected activity of complaining. Employers are best advised to pursue discipline only when there is unequivocal evidence that the complaint was false.

Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207 [136 Cal.Rptr.3d 472], review den.

A Partner Can Sue the Partnership for Retaliation Under the FEHA. Mary Fitzsimons was an emergency doctor and partner in California Emergency Physicians Medical Group, a general partnership with approximately 700 partners working in hospital emergency rooms throughout California. In 2004, the Partnership terminated Fitzsimons’s appointment as a regional director, although she continued to work as an emergency physician.

Fitzsimons sued the partnership for retaliation in violation of the Fair Employment and Housing Act (FEHA) on the grounds that the Partnership removed her from a regional director position and created a hostile working environment because she had reported that certain Partnership officers had sexually harassed other female employees. Prior to trial, the superior court ruled that if Fitzsimons was a bona fide partner in the Partnership she did not have standing to sue the Partnership for retaliation under FEHA. The jury found that Fitzsimons was a partner, and the court entered judgment in favor of the Partnership. On appeal, the California Court of Appeal reversed.

California case law holds that an individual cannot be personally liable for retaliation under FEHA. The reason for this holding is that supervisors cannot avoid making personnel decisions which may form the basis of a retaliation claim, nor should they feel the threat of litigation for every personnel decision. The Court found that, while the Partnership was not the actual employer over Fitzsimons, it was the employer

of those persons who were the victims of the alleged harassment that Fitzsimons reported which resulted in the alleged retaliation. FEHA makes it unlawful for the Partnership to retaliate against any person for opposing harassment of employees. The Court noted that a partner would not have a valid claim for harassment or discrimination against himself or herself by the partnership, but FEHA does protect a partner who is retaliated against for opposing the partnership-employer’s harassment of employees.

Note: This case is further proof of how broadly the courts interpret the FEHA.

Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423; 141 Cal.Rptr.3d 265.

DISCIPLINE/FIRST AMENDMENT

Employee’s Subpoenaed Testimony Was Protected Speech. Martha Karl worked as the confidential administrative assistant to a City’s Chief of Police. Her job duties were primarily clerical, and included processing time cards, taking minutes at meetings, and answering the phone. In 2008, Karl was subpoenaed to give deposition testimony in a First Amendment retaliation lawsuit that former Police Department employee Sergeant Jonathan Wender filed against the City.

During her deposition, Karl testified that Wender was outspoken about his views on the need for drug policy reform; that the Chief of Police Scott Smith and the Assistant Chief Charles Caw disapproved of his comments; and that Caw urged Smith to terminate Wender because other local police agencies were watching to see whether Smith would take a strong stance on drug law enforcement. Karl also testified that Wender had a reputation for honesty, while Smith had a reputation for being dishonest, and Caw had a reputation as a “smooth talker.” After Karl’s deposition, Caw was overheard commenting that Karl’s testimony “really hurt” the City, that she could not be trusted anymore, and that the Police Department would have to find a way to “get rid of her.”

In late 2008, Greg Wilson replaced Smith as Chief of Police. Caw told Wilson that he had concerns about Karl’s work performance. Shortly thereafter, Karl was involuntarily transferred to a part-time records position where she was subject to a probationary period and was placed under Caw’s direct supervision. Karl allegedly received unreasonable discipline and criticism. Caw and Wilson recommended that Karl be terminated; the City Manager did so.

Karl sued the City and Caw for First Amendment retaliation under 42 U.S.C. Section 1983. The district court denied Defendants’ motion for summary judgment and Caw’s claim to qualified immunity. The Ninth Circuit Court of Appeals affirmed.

A public official is entitled to qualified immunity unless: (1) the facts alleged show that the official’s conduct violated a constitutional right; and (2) the right at issue was clearly established at the time of the alleged conduct. To establish a First Amendment retaliation claim, a plaintiff must show, among other things, that the plaintiff: (1) spoke on a matter of public concern, (2) spoke as a private citizen and not within the scope of her official duties as a public employee, and (3) received an adverse employment action, for which the protected speech was a substantial or motivating factor.

The Court found that Karl’s deposition testimony was protected speech because it addressed a matter of public concern. The testimony was offered in the course of a Section 1983 lawsuit alleging that the City and Chief of Police violated an employee’s constitutional rights. Although Karl’s testimony was not made in a public forum, it was part of a case involving a matter of public concern and had the potential to bring to light potential wrongdoing by the City and/or public officials.

The Court held that Karl’s testimony was protected speech and not made as a public employee. Although she was paid for her time, her testimony was the product of a subpoena and not commissioned or created by the City.

Finally, Caw was not entitled to qualified immunity because a reasonably competent official would have known that a public employee’s subpoenaed deposition testimony addresses a matter of public concern when it is given in connection with a judicial or administrative proceeding involving allegations of significant government misconduct.

Note: Although the employee’s speech in this case was based on information acquired during the scope of employment, the court found that she was speaking as a private citizen, and not as part of her job duties, because her job involved clerical duties only. Had the employee’s speech been part of her job duties, it would not have qualified for First Amendment protection.

Karl v. City of Mountlake Terrace (9th Cir. 2012) 678 F.3d 1062.

LABOR RELATIONS

Non-Employee Union Representatives Had The Right To Access Public And Non-Public Areas In Order To Visit Union Bulletin Boards And Non-Work Areas Where Employees Congregate. The County of Riverside’s Employer-Employee Relations Resolution (ERR) stated that union representatives may be allowed access to work locations if the representative provided advance notice to a supervisor. The County’s memorandum of understanding with the Union gave the Union space on some of the County’s bulletin boards. The Union was required to maintain the bulletin board materials in a timely fashion. In order to access the bulletin boards, Union representatives had to traverse non-work areas as well as work areas.

The County prevented non-employee Union agents from traversing some work areas and some patient care areas in order to post and update materials on Union bulletin boards.

The Union filed an unfair practice charge with PERB alleging that the County unilaterally changed the Union’s access rights without notice or an opportunity to meet and confer. The administrative law judge (ALJ) found in favor of the Union, and the Board agreed.

Union agents have a presumptive right of access to public facilities, subject to reasonable regulation that is: (1) necessary to the efficient operation of the employer’s business and/or the safety of its employees and others; and (2) narrowly drawn. This right of access applies both to employee and non-employee representatives of employee organizations.

The Board found that, although a public hospital may establish reasonable restrictions that limit access by the public to immediate patient care areas, it may not deny non-employee Union representatives access to designated organizational bulletin boards. Such representatives may traverse passageways also used for patient care if necessary to access organizational bulletin boards and to access non-work areas to confer with employees.

The County argued that the entire hospital was patient care and work areas because patients pass through the hallways, lobbies, waiting rooms, etc. Therefore, the ERR required that the Union representatives made advance arrangements before accessing the hospital. But the Board found that the County’s characterization of the entire hospital as a work area to be unreasonable and not narrowly drawn.

Note: PERB presumes union representatives have access rights unless the employer’s regulation is necessary for operations and narrow in scope. Making an entire facility off limits will rarely if ever meet the necessary and narrow test.

SEIU, Local 721 v. County of Riverside (2012) PERB Dec. No. 2233-M [35 PERC ¶__].

A Local Agency May Not Enforce A Rule That Prohibits Both Non-Safety And Safety Employees From Being In The Same Bargaining Unit. The County of Calaveras’s employer-employee relations ordinance provides that peace officers must be represented in separate units composed solely of such peace officers. Notwithstanding this rule, the County has long recognized a bargaining unit which included both non-safety and safety employees. SEIU filed an unfair practice charge alleging that the County violated the Meyers-Milias-Brown Act (MMBA) by approving a mixed unit of non-safety and safety employees as requested in a severance petition filed by the Calaveras County Public Safety Employees Association (CCPSEA). In a case handled by Arlin Kachalia of our San Francisco office, the administrative law judge dismissed the charge and the PERB Board adopted the dismissal.

The MMBA authorizes a local agency to adopt reasonable rules and regulations for the administration of employer-employee relations as long as the rules and regulations do not frustrate the policies and purposes of the MMBA. If an agency’s local rule conflicts with the MMBA, PERB will not enforce the rule.

The MMBA also states that an agency may not prohibit peace officers from joining or participating in employee organizations which are composed solely of those peace officers.

Here PERB noted that, while the MMBA grants peace officers the affirmative right to join in peace officer-only units, the MMBA does not require peace officers to exercise this right nor prohibit them from being in mixed units if they so choose. Because the County’s local rule conflicted with the MMBA, PERB refused to enforce the local rule that would have precluded the mixed unit requested by CCPSEA.

Note: A local agency’s MMBA right to create its own employee relations rules is unique in California public sector collective bargaining law and very valuable. (Gov. Code § 3507.) This case is a good reminder that PERB will interpret the MMBA to provide employees the most freedom of choice.

SEIU, Local 1021 v. County of Calaveras (2012) PERB Dec. No. 2252M [35 PERC ¶ __].

City’s Hard Bargaining Was Consistent With Its MMBA Duty To Meet And Confer In Good Faith. The Glendale Employees Association filed an unfair practice charge that alleged that the City of Glendale violated its duty under the Meyers-Milias-Brown Act (MMBA) to meet and confer in good faith. Specifically, the Association alleged that the City: 1) was guilty of surface bargaining as to a successor memorandum of understanding; and 2) impermissibly negotiated to impasse on a permissive subject of bargaining. The PERB Board adopted the warning and dismissal letters of the Board’s agent, and dismissed the charge as the decision of the Board. Adrianna Guzman of our Los Angeles office handled this case.

The Association alleged that the City was guilty of surface bargaining because of the City’s “take-it-or- leave-it” attitude on a cost sharing provision. PERB reviews whether a local agency violated the duty to bargain in good faith based on a review of the totality of the circumstances. The duty to bargain in good faith does not require either party to make concessions. Insistence on a firm position is not necessarily evidence of bad faith because the law merely requires the parties to maintain a sincere interest in reaching an agreement, even if the reasons for a particular position are questionable. The duty to bargain in good faith requires the parties to explain the reasons for their positions with sufficient detail to allow for mutual understanding. In this case, there was no evidence of surface bargaining because the parties did agree to two of the three major issues and the City fully explained the need for its proposals. The City also explored the alternatives that the Association offered.

PERB also found that the Association failed to state a prima facie case of violation of the duty to meet and confer by bargaining to impasse on a permissive subject of bargaining. Although the parties are free to negotiate over non-mandatory subjects of bargaining, a local agency employer may not insist on negotiating non-mandatory subjects if the union clearly and expressly refuses to do so. In this case, PERB did not decide whether the cost-sharing provision was a non-mandatory subject of bargaining. Instead, PERB decided that regardless, there were no facts to show that the Association raised any objection to the City’s request to modify the cost-sharing provision. Moreover, because the cost-sharing agreement was contained in the prior MOU, the Association was bound by the provision until it expires or is modified. Therefore the City could seek to negotiate modifications to the cost-sharing provision.

Note: This case illustrates the boundaries of lawful hard bargaining. A critical element of lawful hard bargaining is to fully explain the need for a proposal and to listen to and fully consider the other party’s proposals.

Glendale City Employees Assn. v. City of Glendale (2012) PERB Decision 2251-M [35 PERC ¶__].

Imposing Last, Best, and Final Offer After Parties Could Not Agree on Factfinding Timing and Protocols Violated the Meyers-Milias-Brown Act. The City of Davis declared impasse in December 2009, after eight months of negotiations for a successor agreement to the memorandum of understanding that expired on June 30, 2009. The City’s employer- employee relations resolution (EERR) contained impasse procedures which required the parties to submit the dispute to mediation and, if unsuccessful, to fact-finding. The fact-finder would provide recommendations to the parties and, if the dispute was still not resolved, to the City Council.

After mediation was unsuccessful, in February 2010, the City suggested the parties bypass the fact- finding process and submit the matter directly to the Council. The Union declined and demanded fact-

finding. The Union provided a list of proposed arbitrators. On March 24, 2010, the City notified the Union that Joe Henderson, one of the proposed arbitrators, was available three days in late April 2010, and asked if those dates were acceptable to the Union. The Union agreed to use Henderson but objected to the proposed dates. The Union wanted to first obtain the arbitrator’s availability before committing to dates, while the City wanted to obtain the first available dates from the arbitrator. The Union also believed that the fact-finding required more time and formality than the City believed to be appropriate.

On May 10, the City advised the Union that the arbitrator and the City were available on five specific dates in June and July. The City believed that one day of hearing was sufficient, but that it would be willing to schedule two days. On May 13, the Union responded that the dates of July 19 and 20 were acceptable, but that the Union believed additional days of fact-finding would be required, along with a court reporter. On May 14, the City objected to the Union’s proposed level of formality, accused the Union of delaying the process, and asserted that the Union had effectively rejected fact-finding. The City unilaterally decided to take the matter directly to the Council. On May 25, the Council adopted a resolution imposing the City’s last, best and final offer (LBFO) which included 12 furlough days.

The Union filed an unfair practice charge with PERB alleging that the City’s failure to exhaust the impasse procedures violated the Meyers-Milias-Brown Act (MMBA). The administrative law judge (ALJ) agreed with the Union. On appeal, the PERB Board adopted the ALJ’s decision.

The MMBA requires parties to follow any reasonable impasse procedures in an agency’s local rules. The parties must exhaust impasse procedures before the agency can implement its LBFO. Here PERB found that the City failed to exhaust the impasse procedures, specifically the fact-finding process. PERB concluded that the City had two options other than canceling the fact-finding. The City could have deferred to the arbitrator as to how the fact-finding was to be conducted, or the City could have insisted that the fact-finding be conducted in an informal manner in a two-day hearing. If the City had insisted on an informal process and the Union had failed to appear, then the fact-finding procedure would arguably be exhausted by the Union’s non-appearance. The City’s chosen “self-help” remedy of canceling the agreed upon fact-finding dates was inappropriate.

The City asserted that it had a business necessity for passing its resolution implementing the LBFO because of the City’s projected budget shortfall. The Board found, however, that the City had reserves sufficient to face its projected shortfall with the Union and the City’s financial situation did not constitute a fiscal emergency.

The Board ordered the City to rescind its resolution implementing the LBFO and to reinstate the terms and conditions of employment that existed prior to the unilateral implementation, with interest.

Note: This case is not about AB 646, the 2012 state law regarding fact-finding for MMBA agencies. This case arose from the factfinding process in the City's own EERR. Note that although the PERB Board indicated that the City could have insisted that the fact-finding be a two-day informal process, the Board expressly declined to decide whether that hypothetical option would have violated the City’s own EERR fact-finding process.

Davis City Employees Ass’n. v. City of Davis (2012) PERB Dec. No. 2271-M [___ PERC ¶ ____].

Employer’s Subsequent Willingness to Meet and Confer Did Not Cure Unlawful Unilateral Change in Policy. A Union filed an unfair practice charge against the Stanislaus Consolidated Fire Protection District asserting nine different alleged MMBA violations. The PERB General Counsel dismissed some of the claims for failure to state a prima facie case. The Union filed an appeal seeking to reverse the dismissal of two of the allegations: (1) the District’s unilateral elimination of a contract provision relating to union access rights, and (2) the retaliatory elimination of union access rights and the “union time bank”.

The PERB Board reversed the General Counsel’s dismissal of the two charges. As to the unilateral change allegation, the Board found a per se violation of the duty to meet and confer in good faith. As to the retaliation allegation, the Board held that the District discriminated/retaliated and interfered in violation of the MMBA. The District requested reconsideration of the Board’s decision, and the Board denied the request.

The Board will only reconsider a prior decision if the decision contains prejudicial errors of fact, or the party requesting reconsideration has discovered new evidence not previously available. The District argued that the existence of a final and binding arbitration award to sustain the Union’s grievances concerning the union time bank compelled the Board to dismiss the charges. Although the arbitration award was not available until after the Union filed its appeal to the PERB Board, the arbitration had concluded before the PERB hearing. The Board found that the subsequent arbitration award was not newly discovered evidence because the District should have raised the deferral to arbitration affirmative defense at the hearing.

The District also argued that its participation in a mediation to resolve the Union’s outstanding grievance regarding the removal of the union access rights from the MOU and willingness to meet and confer over that topic demonstrates that there was no unilateral change. The Board disagreed, however, and held that the later reversal or rescission of a unilateral action or subsequent negotiation on the subject of a unilateral action does not excuse a violation. The District’s subsequent offers to meet and confer cannot cure the alleged unlawful unilateral change.

Note: Deferring an issue to binding arbitration is an affirmative defense to an unfair practice charge if the employer agrees to waive procedural defenses in the arbitration and allow the issue to be arbitrated on the merits. The District’s failure to raise this affirmative defense in a timely manner waived its right to raise the defense on appeal to the Board.

Stanislaus Consolidated Firefighters, Local 3399 v. Stanislaus Consolidated Fire Protection District (2012) PERB Dec No. 2231-M [ ___ PERC ¶ ____].

Manager Did Not Interfere with Employee’s Union Rights When He Counseled an Employee. The County of Santa Clara hired Melvin Jones as a Laundry Worker II in the Probation Department. Shortly after starting his employment, Jones filed two informal grievances with his supervisor, Jerry Stodulka. Unsatisfied with Stodulka’s responses, Jones contacted the County’s human resources operations manager who referred him to the Probation Department’s human relations section.

Subsequently, Jones’s manager, Kevin Cooper, approached Jones to talk. Jones provided the following account of their discussion: Jones asked Cooper for his union representative, but Cooper refused. Cooper allegedly said that Jones was making trouble for the department and he should have come to Cooper first if he was unsatisfied with his supervisor’s response to his complaints. He told Jones to just shut up and do his job. Jones asked if Cooper was telling him he could not file a grievance. Cooper responded, “Put it like this, who do you work for…You work for the Probation Department. And so if you’re going to be a team player then you be a team player. But if you’re going to go off and file a grievance left and right, well, I’m telling you, go through the proper chain of command.” Cooper also talked to Jones about not degrading supervisors and co-workers to his colleagues. Cooper’s version of the discussion was radically different. Both parties agreed that Cooper then provided Jones with an already completed form entitled “Employee Counseling.”

Jones later complained about nosebleeds. On April 9, Jones submitted a doctor’s note verifying that Jones was ill and unable to work through April 10, and was cleared for return on April 11 without restrictions. Jones was subsequently absent several additional days without a physician’s verification as required by the County’s rules. The County consequently released him from his probationary employment.

Jones filed an unfair practice charge alleging retaliation, denial of his Weingarten right to representation, and interference with his right to engage in protected activity. The ALJ found in favor of the County, and the PERB Board adopted the ALJ’s decision.

To establish an interference claim, an employee must show that the employer took action which tends to interfere with, restrain or coerce employees in the exercise of protected activities, and the employer’s conduct was not justified by legitimate business reasons. The Board found that Cooper testified credibly and that Jones did not. The Board believed that Cooper did not object to Jones’s filing of grievances, but rather that he counseled Jones to go through the chain of command and not make behind-the-back criticisms of coworkers. Cooper’s statements did not rise to the level of an unlawful threat when considered in that context. It was appropriate for Cooper to discourage Jones from gossiping and disparaging co-workers. Moreover, Cooper’s concern that Jones had not provided supervisory staff an opportunity to mediate the concerns was legitimate.

Close proximity in time between protected activity and an adverse action must be combined with other evidence of animus to support a retaliation claim. Here there was insufficient evidence of retaliation. Jones testified that his supervisor gave him a look of disapproval when he was talking with a union steward, but the Board found that this testimony was insufficient to evidence anti-union animus.

Jones v. County of Santa Clara (2012) PERB Dec No. 2267-M [ ___ PERC ¶ ____].

PERB Has Initial Jurisdiction Over Union’s Claim That City Failed to Meet and Confer Before Placing Pension Reform Initiative on the Ballot. In April 2011, three citizens notified the City of San Diego that they intended to circulate a petition to have a pension reform initiative placed on the ballot. The City gathered adequate signatures and placed the initiative on the June 5, 2012 voter ballot. The Union filed an unfair practice charge with PERB alleging that the City had violated the MMBA by not meeting and conferring with the Union before placing the initiative on the ballot. The Union also requested injunctive relief.

PERB both issued a complaint against the City, and requested the superior court to stop the City from presenting the initiative on the ballot. The trial court rejected PERB’s motion to enjoin, and the PERB

administrative hearing on the charge was scheduled for early April, 2012. The City filed a motion in the trial court to stay the administrative hearing. The trial court granted the City’s motion, and the Union appealed the trial court’s decision. The California Court of Appeal found in favor of the Union and ordered the trial court to reverse its order staying the administrative hearing.

PERB has exclusive initial jurisdiction over MMBA claims unless any of the following exceptions is present: 1) futility, 2) PERB’s lack of jurisdiction, and 3) the PERB’s administrative remedy is inadequate. The Court held none of these exceptions applied.

The City argued that it would be futile to go through PERB’s administrative process because, by requesting injunctive relief, PERB had already decided the case. The Court disagreed and recognized PERB’s authority to seek temporary injunctive relief to preserve the status quo while PERB addresses the merits of the dispute.

The City also argued that PERB lacked the authority to hear the claim because the citizens had the constitutional right to place the initiative on the ballot. The Union countered that the City used strawmen to get the initiative on the ballot in order to circumvent the City’s meet and confer obligations. The Court held that, because the unfair practice charge alleged that the City acted in violation of the MMBA, PERB had exclusive initial jurisdiction. In addition, judicial intervention would deny the court of the benefit of PERB’s administrative expertise and opinion on the matter.

Finally, the City contended that PERB’s administrative remedy would be inadequate because the procedures are too slow and delaying the implementation of the initiative would reduce its effectiveness. The Court rejected this argument because there was no evidence that PERB’s administrative procedures would be any slower than the trial court’s procedures.

San Diego Municipal Employees Association v. Superior Court of San Diego County (2012) ___ Cal.App.4th ____ [2012 WL 2308142].

HIRING

U.S. EEOC Issues Guidance On The Use Of Arrest And Conviction Records In Hiring. When was the last time your agency reviewed its policy regarding the use of arrest and conviction records in hiring? If the answer to this question does not readily come to mind, it may be a good time to audit your hiring policy and job application.

Earlier this year Pepsi agreed to pay a $3.13 million settlement to resolve a race discrimination charge filed by the U.S. Equal Employment Opportunity Commission (“EEOC”). According to the EEOC, Pepsi’s criminal background check policy barred applicants from being hired into permanent positions if they had been arrested. These applicants were screened out even if they had never been prosecuted or convicted of any offense. The EEOC determined that Pepsi’s policy disproportionately excluded African- American applicants from permanent employment with the company and was, therefore, in violation of Title VII of the Civil Rights Act of 1964. The EEOC estimated that approximately 300 African- American applicants were adversely affected by Pepsi’s policy. The EEOC also worked with Pepsi to adopt a new criminal background check policy.

Under California Law, employers may not ask a job applicant to disclose information concerning an arrest or detention that did not result in a conviction (Labor Code section 432.7). California employers are also prohibited from making hiring decisions based on an arrest that did not result in a conviction. It is permissible for employers to ask employees if they have ever been convicted and, if so, they may ask about the offense. However, conviction records cannot be an absolute bar to employment because it disproportionately excludes certain racial groups. According to the EEOC, the reasoning behind this is that “Blacks and Hispanics are convicted in numbers which are disproportionate to Whites and that barring people from employment based on their conviction records will therefore disproportionately exclude those groups.” Therefore, such records should not be used to immediately screen an applicant out unless there is a business need for it.

In order to determine if there is a legitimate business reason for screening out an applicant based solely on a criminal conviction, the following three factors are among those that should be considered: (1) the nature of the job, (2) the nature and seriousness of the offense, and (3) the length of time since the conviction. Employers should also consider the relationship between the nature of the conviction and the duties of the position. These factors focus on the applicant’s conduct, as opposed to the conviction itself, in determining whether an applicant is fit to perform the job.

Employers also may not ask a job applicant to disclose marijuana convictions that are over two years told. Clear language must be included in the job application that notifies the applicant that the employer is not seeking the disclosure of such information. The language must also be placed in a location that will attract the reader’s attention.

Finally, it is important to note that these rules do not apply to peace officer applicants. When recruiting peace officers, every peace officer, other than reserve peace officers, employed by a department must be selected in conformance with the following requirements: • Employment of convicted felons is prohibited. • Fingerprinting and search of local, state, and national files to reveal any criminal records is required prior to employment. • Peace officers must be determined to be of moral character as determined by a thorough background investigation.

Please contact our Los Angeles, San Francisco, Fresno, or San Diego office for any assistance in reviewing hiring policies or job applications. In addition, LCW’s workbook Personnel Issues: Hiring, Reference Checks and Personnel Records and Files also contains hiring guidelines and sample job applications.

This article first appeared on the firm's California Public Agency Labor and Employment Blog. To view other blog posts, please visit www.calpublicagencylaboremploymentblog.com.

GOVERNMENTAL IMMUNITY

A Private Individual Temporarily Retained By The Government to Carry Out Its Work Is Entitled To Seek Qualified Immunity From Suit. Nicholas Delia, a firefighter employed by the City of Rialto, missed work after becoming ill on the job. Suspicious of Delia's extended absence, the City hired a private investigation firm to conduct surveillance on him. After Delia was seen buying fiberglass insulation and other building supplies, the City initiated an internal affairs investigation and hired Filarsky, a private attorney, to interview Delia. At the interview attended by Delia's attorney, Delia acknowledged buying the supplies, but denied having done any work on his home. To verify this claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials. When Delia refused, Filarsky ordered Delia to bring the materials outside his home for the official to see. Officials then followed Delia to his home, where he produced the materials.

Delia brought an action in federal court against the City, the Fire Department, Filarsky, and others, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to the individual defendants on the basis of qualified immunity. The Ninth Circuit Court of Appeals affirmed with respect to all individual defendants except Filarsky, concluding that he was not entitled to seek qualified immunity because he was a private attorney, not a City employee.

The Supreme Court reversed the Ninth Circuit's decision with respect to Filarsky. The Court held that common law principles of immunity were incorporated into 42 U.S.C. §1983 and should not be abrogated in the absence of clear legislative intent. As a result, it concluded: "Immunity under Section 1983 therefore should not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis."

The Court identified four primary reasons for its decision to recognize immunity under §1983 as it is recognized under common law: • First, immunity "protect[s] government's ability to perform its traditional functions." It does so by helping to avoid "unwarranted timidity" in performance of public duties. • Second, affording immunity not only to public employees but also to others acting on behalf of the government serves to "ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service." The government's need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals. Because those individuals are free to choose other work that would not expose them to liability for government actions, the most talented candidates might decline public engagements if they did not receive the same immunity enjoyed by their public employee counterparts. • Third, the public interest in ensuring performance of government duties free from the distractions that can accompany lawsuits is implicated whether those duties are discharged by private individuals or permanent government employees.

• Finally, distinguishing among those who carry out the public's business based on their particular relationship with the government creates significant line-drawing problems and can deprive state actors of the ability to "reasonably anticipate when their conduct may give rise to liability for damages." The Court reasoned that, "[a]n uncertain immunity is little better than no immunity at all."

Note: The Filarsky decision is an important one because it extends qualified immunity protections to individuals, such as private investigators hired by public entities pursuant to a contract for services, who are not actual employees of a government entity. Qualified immunity is an important protection public employees assert when sued for alleged civil rights violations under 42 U.S.C. §1983. However, it is important to keep in mind that qualified immunity is “qualified” and not absolute. It will immunize an individual from suit unless it can be shown that the individual violated a “clearly established” constitutional right. In the Filarsky case, the trial court will still have to consider whether Filarsky’s conduct of requiring Delia to go into his house and pull out the building materials violated “clearly established” constitutional law, such as the prohibition against warrantless searches.

Accordingly, while the Filarsky decision allows a private investigator to use the defense of qualified immunity, it does not guarantee that the defense will be appropriate if the investigator violated “clearly established” constitutional law.

Filarsky v. Delia (2012) 132 S.Ct. 1657, on remand to (9th Cir.. 2012) ___ F.3d ___ [2012 WL 2308619].

PUBLIC RECORDS ACT

Names of Police Officers Involved in Shooting Are Public Records. In December 2010, Long Beach police officers were involved in a shooting which resulted in a citizen’s death. The Los Angeles Times made a Public Records Act (PRA) request for the names of the involved officers, along with the names of officers who were involved in shootings over the preceding five years. The police officers association sued to stop the City from complying with the request. The trial court denied the request for an injunction because the officers’ names were not subject to any PRA exemption and consequently had to be disclosed. The California Court of Appeal affirmed.

The PRA gives the public the right to inspect public records upon request. One category of records that is exempt from the right of inspection, however, is personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. The Court decided that an officer’s name is not covered by this exemption category because the California Supreme Court has previously held that officer names, employing departments, and employment dates are public records under the PRA.

Another PRA exemption category applies to records that the law makes private. Penal Code sections 832.7 and 832.8 make peace officer personnel records and the information in those records confidential. This information includes “personal data,” such as the officer’s marital status, family members, and home addresses. The Court here held that the term “personal” referred to something not generally known to the public. Peace officer names do not meet that definition because peace officers wear badges with their names on them, and identify themselves by name to the public. Moreover, although the Penal Code

makes complaints or investigations of complaints confidential, the newspaper’s request here was not for complaints against officers.

The PRA also has a catch-all exemption that applies only if the public interest served by keeping the record confidential clearly outweighs the public interest served by disclosing the record. The Court found that the public interest in peace officer conduct is substantial and outweighs an officer’s privacy interest in maintaining the confidentiality of his or her name, unless there is evidence that disclosing a particular officer’s identity would jeopardize that officer’s safety or efficacy.

The Court upheld the trial court’s ruling that the City would have to disclose the officers’ names absent evidence that any particular officer would be subjected to harm as a result.

Note: This case demonstrates that unless a public entity can show that a record comes squarely within an exception, the agency must generally disclose the record. This is another in a line of recent cases that narrow the scope of the exceptions to the Public Records Act.

Long Beach Police Officers Assn. v. City of Long Beach (2012) 136 Cal.Rptr.3d 868, review granted and opinion superseded by 140 Cal.Rptr.3d 112.

RETIREMENT

Employee With Psychiatric Condition Could Not Establish That His Job Duty To Interact With Angry Clients Substantially Caused His Disability. Joe Valero worked as an office assistant for the County of Tulare Health and Human Services Agency. In that position, he interacted with the public, sometimes in stressful situations. In 2007, he submitted a disability retirement application to the Board of the County Employees’ Retirement Association (Board). He explained that he had a disabling psychiatric condition – a panic disorder – which was caused by his interaction with angry clients at work in December 2004.

The Board denied Valero’s application on the basis that his disability was not service-related. During an informal hearing, four medical opinions were reviewed. The hearing officer found that Valero failed to meet his burden to show that his County employment was a “substantial factor” in bringing about his psychiatric disability. The Board voted to deny Valero’s application for a service-connected disability retirement. Valero filed a writ petition challenging the Board’s decision. The trial court upheld the decision and the California Court of Appeal affirmed.

Under the County Employees Retirement Law, a member may be eligible for service-connected disability retirement if the member’s employment contributed substantially to, or was a real and measurable part of, the employee’s permanent disability.

The Court of Appeal found that the trial court properly disregarded or discounted the four doctors’ reports because they were based upon Valero’s undocumented and uncorroborated self-reporting about the cause of his panic attacks, and because Valero’s self-reports were not credible. Although Valero made more than 30 visits to the emergency room for his panic attacks, only five of the visits occurred on or before his last day on the job in January 2005. At least two of these five occurred on days when Valero did not work at all. The remaining visits took place after he stopped working.

Moreover, Valero’s medical records from his December 2004 and January 2005 doctor and emergency room visits did not contain any mention of any attack by any angry client. In 2004, Valero even noted that the disability was not caused by his job. Finally, Valero also testified that during his five years of working with the County he regularly dealt with clients and he had been yelled at before.

Note: This case shows how important it is to review medical reports that are provided in support of a disability retirement application.

Valero v. Board of Retirement of Tulare County Employees’ Retirement Assn. (2012) 205 Cal.App.4th 960 [141 Cal.Rptr.3d 103].

City’s Retroactive Repeal Of Program To Calculate Retirement Benefits In A Certain Manner Was Not A Breach Of Contract. The firefighters and their union sued the City of San Diego and San Diego City Employees’ Retirement System (“SDCERS”) after SDCERS and the City retroactively repealed certain benefits programs. SDCERS and the City retroactively repealed these programs after the IRS issued a Compliance Statement in December of 2007 under its Voluntary Correction Program identifying these programs as noncompliant with section 401(a) of the Internal Revenue Code.

The incumbent president program, which was adopted by resolution, provided that the retirement benefit formula for the incumbent presidents of unions would be based on each of those individuals’ highest one- year combined salaries from their City employment and their Union employment, not to exceed the annual base salary of the City’s labor relations manager. The IRS Compliance Statement stated that the incumbent union president program was not permitted by Internal Revenue section 401(a), since retirement benefits in a qualified plan are generally based on service with and compensation paid only by the employer. The IRS Compliance Statement directed the City to retroactively remove any provisions related to the incumbent president program, and the City complied with the IRS’ directive.

The annual leave conversion program was negotiated as part of the July 2002 MOU between the Union and the City. The program provided that employees would be permitted to convert annual leave cash equivalents to retirement service credit on a pre-tax basis, and that employees would not be permitted to cash out annual leave accrued from July 1, 2001, prospectively. Once the MOU was executed, the City Council adopted the amendment to SDCERS by ordinance. The IRS Compliance Statement issued in December of 2007 held that the annual leave conversion program was an impermissible cash or deferred arrangement in violation of Internal Revenue Code section 401(a). The IRS Compliance Statement directed the City to retroactively remove any provisions relating to the annual leave conversion program.

The Union and firefighters asserted in their lawsuit that the retroactive repeal of these programs was a breach of contract, unconstitutional impairment of contract, constituted negligence, and a breach of fiduciary duty. The trial court dismissed the case without leave to amend, and the California Court of Appeal affirmed.

The Court held that the claims depended on the existence of a valid contract which, in this case, did not exist. The Court held that the City’s adoption of the incumbent president program by resolution instead of by ordinance was void because the City charter required that SDCERS provisions be adopted by ordinance and that the SDCERS members must vote to approve provisions – neither of which occurred.

With respect to the annual leave conversion program, the Court held that the 2002 MOU provision was not enforceable because it conflicted with Internal Revenue Code section 401(a), as determined by the IRS. In its holding, the Court relied on a “Savings Clause” in the MOU that indicated all provisions in the MOU were subject to “all current and future” applicable federal, state, and local laws, regulations, and the City’s charter. The Savings Clause specifically held that to the extent a part or provision of the MOU was determined to be unenforceable, the provisions would be suspended and superseded by such applicable law or regulations. Moreover, the Court held that the Savings Clause precluded a claim for promissory estoppel because the City did not promise never to amend the incentive program, and expressly provided that provisions would be suspended or superseded if found to be unlawful. Furthermore, the Court held that the City had governmental immunity from a negligence claim because it could not be held liable for an injury caused by adopting or failing to adopt an enactment.

Finally, the Court held that the SDCERS could not be held liable for breach of fiduciary duty in its failure to comply with the Internal Revenue Code because its duty is merely to administer those retirement benefits established by the City.

Note: This case demonstrates how the validity of a public entity’s agreements can depend upon the process the public entity uses to adopt the agreement. Moreover, a savings provision in a MOU can allow a public entity to void benefits that conflict with state or federal laws.

San Diego City Firefighters, Local 145, AFL-CIO v. Board of Administration of the San Diego City Employees' Retirement System (2012) 140 Cal.Rptr.3d 860.

Employer Could Not Reduce Contributions Toward Retiree Health Premiums In Violation Of Collective Bargaining Agreements. Since 1972, Raytheon and its predecessor paid insurance premiums for healthcare coverage for qualifying early retirees until age 65 under a series of collective bargaining agreements (CBAs) with the union. In 2003, the Company negotiated a new CBA that allowed the Company to pay for only a portion of the entire retiree health premium. The Company applied this provision retroactively and started lowering its monthly payments for retiree healthcare coverage in 2004.

The retirees sued the Company under the Labor Management Relations Act for violating the CBAs. The federal district court granted summary judgment for the retirees, and the Ninth Circuit Court of Appeals affirmed.

Generally, contractual obligations will cease upon termination of the bargaining agreements. But rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. Most of the provisions in the CBA were limited to “the life of the agreement.” The retiree medical provision, however, was the only group coverage with a specified duration – “until the retiree attains age 65.” Therefore, the Court found that the retiree health care provision survived the expiration of the CBAs. The Company could establish the specific benefits of medical insurance coverage in the plans, but it could not terminate its agreement to pay the health premiums it had obligated itself to pay.

Note: An employer may negotiate a second tier so new hires will have lesser benefits upon retirement than previously hired employees or current retirees, but an employer cannot negotiate to retroactively

change retiree benefits to adversely affect vested retirees. This case also highlights the impact of identifying the duration of a benefit in a MOU provision.

Alday v. Raytheon Co. (9th Cir. 2012) ___ F.3d ____ [2012 WL 1815674].

Retirees May Sue County For Restructuring Their Medical Benefit Plan. Up until 2008, the County of Orange subsidized health insurance premiums for retired employees by pooling active and retired employees into one collective group of health plan participants. Pooling the two groups had the effect of lowering retiree premiums and thereby subsidized the retired employees. Up until 2008, retirees also received a monthly grant to further subsidize the cost of their health insurance coverage. The terms of the grant were described in collective bargaining agreements, and included an annual inflation increase.

In 2006, the County negotiated with the Union to restructure employee health benefits effective January 2008. The negotiated agreement provided that: (1) the County would separate retired and active employees into different pools to set health premiums; (2) the maximum increase for the monthly health insurance grant was reduced; and (3) once a retiree became eligible for Medicare, the grant would be reduced by 50%. In order to obtain the Union’s agreement, the County agreed to pay active employees higher wages, but the retirees received nothing. The negotiated agreement resulted in increased insurance premiums for the retirees.

In 2009, the Retired Employees Association of Orange County (REAOC), an organization representing County retirees, sued the County for no longer pooling the active and retired employees’ health plans. The district court granted summary judgment in favor of the County, but the Ninth Circuit Court of Appeals evaluated that ruling in light of the California Supreme Court’s decision that a vested right to health benefits for retired county employees can be implied, under certain circumstances, from a county ordinance or resolution. The Ninth Circuit remanded the case back to the district court for further proceedings consistent with the California Supreme Court’s decision and is awaiting further action. Retired Employees Association of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171.

Meanwhile, in January 2009, a class of County retirees sued the County alleging that the County’s reform of retiree health benefits constituted age discrimination in violation of FEHA and a breach of implied contract. One of the class representatives, James McConnell, had filed a timely administrative complaint of age discrimination with the California Department of Fair Employment and Housing. He alleged that the County removed retired employees from plans with active employees for the express purpose of eliminating older, less healthy participants from the plans.

The district court dismissed the January 2009 case without giving the retirees leave to amend on the ground that the claims were barred by the REAOC lawsuit. The court also found that the retirees' grant claims should be dismissed because there was no obligation for the County to provide the health benefit grant indefinitely. Finally, the district court found that the retirees failed to exhaust their administrative remedies before filing a lawsuit, as required by FEHA, because McConnell did not file his administrative age discrimination complaint on behalf of other class members. The Ninth Circuit reversed the ruling.

The Ninth Circuit found that the retirees’ claim was not barred by the district court’s ruling in the REAOC lawsuit because individuals can seek monetary damages whereas associations, like REAOC, can only seek injunctive or declaratory relief. The Court also remanded the retirees’ grant claim in light of the California Supreme Court’s ruling in the REAOC case regarding implicit vested rights.

Finally, the Court held that the rule requiring the retirees to exhaust all administrative remedies is satisfied when an individual member of the class files a complaint with the administrative agency even if the individual member does not explicitly assert that the complaint is “on behalf of” other employees, or part of a class action. As long as one plaintiff files a timely administrative complaint, a class of similarly situated plaintiffs may “piggyback” on that complaint.

Harris v. County of Orange (9th Cir. 2012) ___ F.3d ____ [2012 WL 2060666].

SEX DISCRIMINATION/RETIREMENT

Facially Neutral Pension Plan Did Not Support A Sex Discrimination Claim Despite A Potential Disparate Impact. City of San Diego employees contribute a percentage of their salary to fund survivor benefits and their pensions. The retirement system allows a retiring employee to choose among several options for allocating the employee’s pension benefit and the survivor benefit. If a City employee is married (or has a registered domestic partner) at the time of retirement and chooses the surviving spouse benefit, the employee will receive her full monthly pension benefit until her death. At that time, if the employee’s spouse or registered domestic partner survives her, the spouse or partner will receive a monthly allowance equal to half of the employee’s monthly pension benefit. If a City employee is single at the time of retirement and has chosen the surviving spouse benefit, the City either refunds the employee her contributions to the survivor benefit (plus interest) as a lump sum, or treats the employee’s survivor contributions as voluntary additional contributions made to provide a larger monthly pension benefit.

Janet Wood was single when she retired and had chosen the surviving spouse benefit. She elected to have her survivor contributions treated as additional voluntary contributions, adding to her monthly benefit.

Wood filed a class action lawsuit against the City alleging that the surviving spouse benefit violates Title VII and the Fair Employment and Housing Act. Wood’s theory was that the City pays a larger amount of money to the married retirees who select the surviving spouse benefits than it does to single retirees who do the same, and because male retirees are more likely to be married, the surviving spouse benefit is lower for female retirees. It was undisputed that, in the aggregate, it costs more to fund surviving spouse benefits for married retirees than it does to refund the survivor contributions made by single retirees. The district court dismissed Wood’s case. The Ninth Circuit Court of Appeals affirmed.

Disparate treatment occurs where an employer has treated a particular person less favorably than others because of a protected trait. In order to successfully challenge a facially neutral policy on a disparate treatment theory, the plaintiff must prove that the employer had a discriminatory intent. The Court found that Wood could not allege that the City had any discriminatory animus.

In addition, the U.S. Supreme Court previously held that a facially neutral pension plan will inevitably have a disparate impact on some protected groups. These claims are not actionable under Title VII because the difference in benefits is based on the potential life spans of men and women and is not based upon their sex. Consequently, here, the Court upheld the dismissal without leave to amend.

Note: The U.S. Equal Pay Act, upon which the disparate impact part of this case relies, authorizes pay differentials based on any factor other than sex. The fact that pension benefits are based on the different life spans of men and women was the “factor other than sex” in this case.

Wood v. City of San Diego (9th Cir. 2012) 678 F.3d 1075.

DISCRIMINATION/HARASSMENT CLAIMS

Attorney’s Electronic Filing of Administrative Charge of Discrimination Was Sufficient to Exhaust Administrative Remedies. George Rickards worked as a package driver for the United Parcel Service, Inc. UPS terminated Rickards for misconduct. His attorney filed a Fair Employment and Housing Act (FEHA) complaint on Rickards’ behalf through the Department of Fair Employment and Housing (DFEH)’s automated online system. The system requires that information submitted be verified under penalty of perjury but does not require an actual signature. The attorney clicked the “CONTINUE” prompt on a screen containing a declaration under penalty of perjury about the truth of the complaint he was submitting. He also requested an immediate right-to-sue letter.

Rickards then sued UPS for various FEHA discrimination causes of action. The superior court granted summary judgment for UPS based on Rickards’s failure to file a verified DFEH complaint. The California Court of Appeal reversed, finding that the attorney’s electronic submission was sufficient.

Before suing under FEHA, an employee must exhaust his or her administrative remedies by filing a verified complaint with the DFEH and obtain a right-to-sue letter. An attorney may verify a DFEH complaint for a client so long as the attorney signs the complaint with his or her own name, rather than the client’s name.

The instructions on the DFEH’s automated system make clear that requests for an immediate right-to-sue letter are accepted from those who have decided to go directly to court without a DFEH investigation, and that such a decision is advisable only if the employee has an attorney. The right-to-sue letter that can be immediately printed is accompanied by a notice to employee’s attorney. The Court found that because the system is essentially intended for employees who have counsel, an attorney verification of the online DEFH complaint exhausts the administrative filing requirements.

Rickards v. United Parcel Services, Inc. (2012) ___ Cal.App.4th ____ [2012 WL 2308206].

FAIR LABOR STANDARDS ACT

Firefighters Not Entitled to Pay For Travel For the Firefighters’ Convenience Only. A group of firefighters who worked at the Menlo Park Fire Protection District’s seven fire stations sued the District alleging that the Fair Labor Standards Act (FLSA) entitled them to pay for the time they spent traveling from one fire station to another in order to pick up or drop off their “turnout gear,” before or after working a shift. Turnout gear is the protective safety clothing worn when fighting fires. The

District does not require firefighters to store their turnout gear at a particular station and provides firefighters with two sets of turnout gear.

The firefighters also alleged that the District improperly excluded the cash out amount of their annual leave banks from the FLSA regular rate of pay overtime calculation.

In a case handled by Suzanne Solomon of our San Francisco office, the U.S. District Court for the Northern District of California granted summary judgment in favor of the Menlo Park Fire Protection District.

The evidence showed that firefighters who traveled between fire stations to pick up or drop off gear did so solely as a result of their own choice to not bring the gear home with them the last time they worked a shift. For that reason, the Court ruled the firefighters failed to establish that their traveling between fire stations served the District. Therefore, the time did not constitute compensable work.

As for the regular rate of pay issue, the firefighters claimed that the unused annual leave was akin to unused sick leave, which must be included in the regular rate. The Court found that based on the characteristics of the District’s annual leave plan, the unused leave was not akin to sick leave and did not have to be included in the regular rate used to calculate over-time.

Note: Although the Ninth Circuit has not yet addressed the issue, the majority of courts have held that sick leave cash outs should be included in the regular rate of pay. Vacation cash outs, on the other hand, do not have to be included in the regular rate of pay. Cash outs of annual leave or other personal time off employees can use with little or no restriction generally do not need to be included in the regular rate of pay.

Balestrieri, et al v. Menlo Park Fire Protection District (N.D. 2010) CV-10-3102 SBA.

HEALTH CARE ACT

The Supreme Court Upholds The Individual Mandate Under The Patient Protection And Affordable Care Act In a long-awaited decision, the United States Supreme Court issued its decision in National Federation of Independent Business v. Sebelius addressing the Patient Protection and Affordable Care Act (“ACA”).1 The Court upheld, in a 5 to 4 ruling, the constitutionality of the individual mandate under the ACA. Chief Justice John Roberts wrote the majority opinion for the Court addressing the ACA’s individual mandate and the Medicaid provisions.2

The Individual Mandate

The individual mandate requires that all persons obtain minimum essential health insurance coverage or face a penalty (shared responsibility payment) to be collected by the Internal Revenue Service beginning

1 The decision can be found at: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf. 2 The Court found that ACA’s Medicaid expansion violates the Constitution to the extent it threatens States with the loss of their existing Medicaid funding if they decline to comply.

in 2014. Likewise, large employers that do not offer coverage or provide “adequate” health insurance will face a shared responsibility payment called an assessable payment.

In upholding the individual mandate as constitutional, the Court addressed two issues: (1) whether Congress has the power to enact the individual mandate pursuant to the Commerce Clause, and (2) whether the individual mandate constitutes a valid exercise of Congress’ power to tax.

With regard to the first issue, the Government argued that the individual mandate is within Congress’ power under the Commerce Clause because the failure to purchase insurance has a substantial and deleterious effect on interstate commerce by creating a cost-shifting problem. The Court rejected this argument finding that although the Commerce Clause authorizes Congress to regulate interstate commerce, that power does not extend to ordering individuals to engage in commerce. It reasoned that “construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”

Although the Court did not uphold the individual mandate under the Commerce Clause, it upheld the law as a valid exercise of Congress’ power to tax. It explained the distinction it made with the Anti- Injunction Act, where it held the shared responsibility was not a tax. The fact that the ACA labels the payment as a penalty is fatal to the Anti-Injunction Act, but this was not determinative as to whether the payment could be reasonably construed as an exercise of Congress’ taxing power.

The Court followed a functional approach in finding that the individual mandate was a tax rather than a penalty that seeks to impose punishment for unlawful conduct. The Court reasoned that the ACA does not attach negative legal consequences to an individual for failing to buy health insurance beyond requiring that the individual make a payment to the IRS – “if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.”

Requirements for Employers

The Supreme Court decision upholds a complex statute that imposes multiple requirements on employers, including municipalities. The dates for complying with these requirements vary and occur over several years. Some of the more significant provisions affecting employers include the following: 1. Ensuring that participants receive a Summary of Benefits and Coverage (beginning September 23, 2012); 2. Reporting aggregate cost of employer-provided health care coverage on Form 3. W-2’s (beginning in 2012 unless employer qualifies for transitional relief); 4. Reporting to the IRS the health care coverage being offered; 5. Submitting payment to the IRS by any large employer (more than 50 FTE’s) who 6. fails to provide “minimum essential coverage” or who provides “unaffordable” coverage (beginning January 1, 2014); 7. Ensuring that participants can appeal adverse benefit determinations through an internal review process which includes specific requirements (effective now); 8. Providing written notice of insurance exchanges to participants (beginning March 1, 2013).

This is a very brief summary of some of the requirements that a lengthy statute imposes on employers. Now that the ACA has been upheld by the Supreme Court, we recommend that employers review the actual wording of statute’s provisions to determine precisely what they must do to comply with the new law.

National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al., 567 U.S. ___ (2012).

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League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track297 San Diego Convention Center, San Diego

LLEAGUE OF CCALIFORNIA CCITIES 22001122 AANNUAL CCONFERENCE

Public Sector Employment Law Update

SEPTEMBER 7, 2012

PRESENTED BY: Richard Whitmore, Partner Liebert Cassidy Whitmore

WWW.LCWLEGAL.COM 298 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Public Sector Employment Law Update League of CA Cities Annual Conference September 7, 2012

Presented By: Richard Whitmore

Discipline

• County Could Terminate State Licensed Commissioner And Sealer For Failing To Adequately Perform Her Job Duties. – Neville v. County of Sonoma (2012) 206 Cal.App.4th 61 [141 Cal.Rptr.3d 570].

Discipline

• Terminated Peace Officer Had No Right Under The POBRA To Production Of His Personnel And Internal Affairs Files. – Barber v. California Department of Corrections and Rehabilitation (2012) 203 Cal.App.4th 638 [137 Cal.Rptr.3d 727], review den.

299 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Retaliation

• An Employee Can Be Disciplined For Filing A False Harassment Complaint. – Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207 [136 Cal.Rptr.3d 472], review den.

Retaliation

• A Partner Can Sue the Partnership for Retaliation Under the FEHA. – Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423; 141 Cal.Rptr.3d 265.

Discipline/First Amendment

• Employee’s Subpoenaed Testimony Was Protected Speech. – Karl v. City of Mountlake Terrace (9th Cir. 2012) 678 F.3d 1062.

300 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Labor Relations

• Non-Employee Union Representatives Had The Right To Access Public And Non-Public Areas In Order To Visit Union Bulletin Boards And Non-Work Areas Where Employees Congregate. – SEIU, Local 721 v. County of Riverside (2012) PERB Dec. No. 2233-M [35 PERC ¶____].

Labor Relations

• A Local Agency May Not Enforce A Rule That Prohibits Both Non-Safety And Safety Employees From Being In The Same Bargaining Unit. – SEIU Local 1021 v. County of Calaveras (2012) PERB Dec. No. 2252M [35 PERC ¶ ____].

Labor Relations

• City’s Hard Bargaining Was Consistent With Its MMBA Duty To Meet And Confer In Good Faith. – Glendale City Employees Assn. v. City of Glendale (2012) PERB Decision 2251-M [35 PERC ¶__].

301 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Labor Relations

• Imposing Last, Best, and Final Offer After Parties Could Not Agree on Factfinding Timing and Protocols Violated the Meyers-Milias-Brown Act. – Davis City Employees Ass’n. v. City of Davis (2012) PERB Dec. No. 2271-M [___ PERC ¶ ____].

Labor Relations

• Employer’s Subsequent Willingness to Meet and Confer Did Not Cure Unlawful Unilateral Change in Policy. – Stanislaus Consolidated Firefighters, Local 3399 v. Stanislaus Consolidated Fire Protection District (2012) PERB Dec No. 2231-M [ ___ PERC ¶ ____].

Labor Relations

• Manager Did Not Interfere with Employee’s Union Rights When He Counseled an Employee. – Jones v. County of Santa Clara (2012) PERB Dec No. 2267-M [ ___ PERC ¶ ____].

302 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Labor Relations

• PERB Has Initial Jurisdiction Over Union’s Claim That City Failed to Meet and Confer Before Placing Pension Reform Initiative on the Ballot. – San Diego Municipal Employees Association v. Superior Court of San Diego County (2012) ___ Cal.App.4th ____ [2012 WL 2308142].

Hiring

• U.S. EEOC Issues Guidance On The Use Of Arrest And Conviction Records in Hiring.

Governmental Immunity

• A Private Individual Temporarily Retained By The Government to Carry Out Its Work Is Entitled To Seek Qualified Immunity From Suit. – Filarsky v. Delia (2012) 132 S.Ct. 1657, on remand to (9th Cir.. 2012) ___ F.3d ___ [2012 WL 2308619].

303 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Public Records Act

• Names of Police Officers Involved in Shooting Are Public Records. – Long Beach Police Officers Ass’n v. City of Long Beach (2012) 136 Cal.Rptr.3d 868, review granted and opinion superseded by 140 Cal.Rptr.3d 112.

Retirement

• Employee With Psychiatric Condition Could Not Establish That His Job Duty To Interact With Angry Clients Substantially Caused His Disability. – Valero v. Board of Retirement of Tulare County Employees’ Retirement Ass’n (2012) 205 Cal.App.4th 960 [141 Cal.Rptr.3d 103].

Retirement

• City’s Retroactive Repeal Of Program To Calculate Retirement Benefits In A Certain Manner Was Not A Breach Of Contract. – San Diego City Firefighters, Local 145, AFL- CIO v. Board of Administration of the San Diego City Employees' Retirement System (2012) 140 Cal.Rptr.3d 860.

304 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Retirement

• Employer Could Not Reduce Contributions Toward Retiree Health Premiums In Violation Of Collective Bargaining Agreements. – Alday v. Raytheon Co. (9th Cir. 2012) ___ F.3d ____ [2012 WL 1815674].

Retirement

• Retirees May Sue County For Restructuring Their Medical Benefit Plan. – Harris v. County of Orange (9th Cir. 2012) ___ F.3d ____ [2012 WL 2060666].

Sex Discrimination/Retirement

• Facially Neutral Pension Plan Did Not Support A Sex Discrimination Claim Despite A Potential Disparate Impact. – Wood v. City of San Diego (9th Cir. 2012) 678 F.3d 1075.

305 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Discrimination/Harassment Claims

• Attorney’s Electronic Filing of Administrative Charge of Discrimination Was Sufficient to Exhaust Administrative Remedies. – Rickards v. United Parcel Services, Inc. (2012) ___ Cal.App.4th ____ [2012 WL 2308206].

Fair Labor Standards Act

• Firefighters Not Entitled to Pay For Travel For the Firefighters’ Convenience Only. – Balestrieri, et al v. Menlo Park Fire Protection District (N.D. 2010) CV-10-3102 SBA.

Health Care Act

• The Supreme Court Upholds The Individual Mandate Under The Patient Protection And Affordable Care Act – National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al., 567 U.S. ___ (2012).

306 Public Sector Employment Law Update League of CA Cities Annual Conference | September 7, 2012 Presented by: Richard Whitmore

Thank You

Questions?

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League of California Cities 2012 League of California Cities Annual Conference 308 City Attorneys’ Track San Diego Convention Center, San Diego

MCLE Specialty Credit – Ethics Ethical Implications of Representing Multiple Boards/Clients

Friday, September 7, 2012 General Session; 10:30 a.m. – Noon

Michael D. Martello, Interim City Attorney, Sunnyvale Jannie L. Quinn, City Attorney, Mountain View

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

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League of California Cities 2012 League of California Cities Annual Conference 310 City Attorneys’ Track San Diego Convention Center, San Diego

Ethics for Public Lawyers

Selected Topics One Hour General Ethics Credit

League of California Cities Annual Conference September 5-7, 2012 Marriot Marquis Hotel, San Diego, California

Michael D. Martello Jannie L. Quinn Interim City Attorney City Attorney City of Sunnyvale City of Mountain View [email protected] Special Counsel Ethics Project Institute for Local Government

Senior Counsel: Thomas Whitelaw Irvine, San Francisco [email protected]

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INTRODUCTION

This paper will provide background for the important topic: Ethics for Public Lawyers. It will be the aim of the verbal presentation to provide participants with a well-rounded one (1) hour MCLE presentation complete with questions, discussion and some answers.

With regard to the special nature of ethics of municipal and other public lawyers, it is a challenge to compete with the significant work offered by the League Handbook on this topic; Practicing Ethics: A Handbook for Municipal Lawyers, published by the City Attorneys Department in July 2004. Kudos to Wynne Furth, chair of the Adhoc Committee of Legal Ethics and Practice Management and her committee members as well as then City Attorneys Division President Michael Colantuono who helped spearhead the effort. This forty eight (48) page monograph is required reading for all municipal lawyers. Also, of assistance is the paper entitled Ethical Principles for City Attorneys, adopted October 6, 2005 at the City Attorneys Department Business Session. Both of these resources are available on the League website under the City Attorneys Department. Now on to selected topics.

ETHICAL DUTIES

In addition to the attorney-client privilege codified in Evidence Code § 954, two ethical duties in any attorney-client relationship include:

1. The attorney’s duty of confidentiality, which fosters full and open communication between client and counsel, based on the client’s understanding that the attorney is statutorily obligated to maintain the client’s confidences (California Business & Professions Code § 6068).

2. The attorney’s undivided duty of loyalty to the client1.

1 City and County of San Francisco v. Cobra Solutions (2006) 38 Cal. 4th 839.

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In 1939, the California legislature enacted Business & Professions Code § 6068 and imposed among other duties, a duty that an attorney “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client.” All members of the State Bar, including attorneys who represent governmental entities, are also governed by the California Rules of Professional Conduct. 2 The ethical duties of confidentiality and loyalty are mandated by the California Rules of Professional Conduct, specifically Rule 3-310 (C) and (E) Avoiding the Representation of Adverse Interests. Rule 3-310 governs attorneys and provides in pertinent part:

“(C) A member shall not, without the informed written consent of each client:

(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or

(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or

(3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter.

*** (E) A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.”

According to the discussion following the rules, “(C) (1) and (C) (2) are intended to apply to all types of legal employment, including the concurrent representation

2 Santa Clara County Counsel Attorneys Association v. Woodside (1994) 7 Cal. 4th 525.

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of multiple parties in litigation or in a single transaction or in some other common enterprise or legal relationship. The discussion of this rule acknowledges the “parties may well prefer to employ a single counsel for sake of convenience or economy but must disclose the potential adverse aspects of such multiple representation (e.g., Evidence Code § 962) and must obtain the written consent of the clients to jointly represent the parties pursuant to subparagraph (C)(1). If the interests of the clients should actually conflict, counsel must obtain further written consent. (3-310 (C) (2)). This Rule is not intended to prohibit an attorney from representing parties having antagonistic positions on the same legal question that has arisen in different cases, unless the representation of either client would be adversely affected.”

“Both disclosure and consent are required if paragraph (E) applies. Other rules and laws may preclude making adequate disclosure under this rule (e.g. duty of confidentiality). If such disclosure is precluded, informed written consent is likewise precluded. (See, e.g., Bus. & Prof. Code § 6068, subdivision (e).)”

The courts have acknowledged special considerations apply to evaluate claims of conflict of interest in the public sector because the rules developed in the private sector do not squarely fit the realities of a public attorney’s practice. In re Lee G. (1991) 1 Cal. App. 4th 17, 34. Although attorneys in the public sector are governed by the same Rules of Professional Responsibility as attorneys in the private sector, the application of the rules must take into account the factual peculiarities in the governmental sector. Ward v. Superior Court (1977) 70 Cal. App. 3d 23. For example, the basis for the attorney-client relationship in the case of public attorneys is often mandated by the city charter or statute as opposed to a contract. In addition, an attorney for a governmental entity usually has only one client – the entity, and the entity acts through its constituent subentities and officials. No conflict for the governmental attorney is created by a disagreement between a governmental entity and its constituents, or between constituents of an entity, unless the constituent or official has an independent right of action that might require an attorney. Civil Service Commission v. Superior Court (1984) 163 Cal. App. 3d 70.

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REPRESENTING SUCCESSIVE CLIENTS

Analyzing whether a potential conflict of interest permits the representation of multiple clients or requires avoidance of the representation or disqualification turns upon an examination of the two ethical duties entwined in any attorney-client relationship, as well as the application of two tests based on the California Rules of Professional Conduct.

A handful of court cases, a Formal Opinion of the State Bar of California Standing Committee on Professional Responsibility and Conduct, and an Attorney General’s Opinion provide some guidance on how the rules might apply to a city attorney’s representation of multiple or successive clients. The conflict analysis begins with the identification of the client, and turns on whether an attorney-client relationship exists and whether confidential information has been acquired by the attorney that could be used against another client.

Court Cases: In Ward, supra, 70 Cal. App. 2d 23, it was determined the county counsel could represent county officers and employees in a lawsuit filed by the county assessor, even though the county counsel also served as the legal representative for the county assessor. In reaching this decision, the court noted no attorney-client relationship existed between the county counsel and the county assessor within the meaning of the conflict of interest rules because the county counsel was obligated by the county charter to represent the county assessor. Moreover, any communications between the county assessor and county counsel in the discharge of their respective duties could not be considered a “secret confidential communication” because the assessor is an agent of the county and owes a duty of full disclosure to the county. The assessor could not claim privilege as to communications between the assessor and the county board of supervisors, who were charged by law with supervising the conduct of the assessor’s office.

Just a few years later, an appellate court in a different district reached the opposite conclusion. In Civil Service Commission of San Diego County v. Superior Court of

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San Diego County (1984) 163 Cal. App. 3d 70, the court held the county counsel could not represent the county in an action filed by the county to overturn the reinstatement of two county employees by the county civil service commission. The court concluded the civil service commission was “quasi-independent” from the county. On this basis, the commission could become a separate client of the county counsel because it possessed independent authority and therefore a separate attorney-client relationship was created when the county advised the commission on personnel matters.

Once it was established that a separate attorney-client relationship was created, the court applied “the substantial relationship test” to determine whether a conflict of interest prevented the county counsel from representing the county in its litigation against the commission. The threshold question is: Is the subject of the pending litigation or transaction substantially related to the matter where the attorney previously represented the former client? In this instance, county counsel advised the commission about the matter that became the subject of the lawsuit. A substantial relationship was clearly present. The court presumed confidences were disclosed to the attorney by the previous client bearing on the subject matter of the present representation. Accordingly, the attorney could be called upon to use confidential information obtained in the course of the former representation in the subsequent representation.

The court did not reach the issue of whether the commission was appropriately informed and could validly waive the conflict during the time the county advised the commission.

The court further noted the county’s ongoing professional relationship with the commission constituted an entirely separate basis to disqualify county counsel. The court questioned how the county counsel could provide independent legal advice to the commission as the structure skewed the advice in favor of the county and against the county employees. Likewise, rendering advice in favor of an employee placed county counsel in an adverse position to the county.

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In terms of analyzing whether a conflict exists, the attorney must determine if a “substantial relationship” existed. The substantial relationship analysis is founded on the need to protect against the improper use of client’s secrets. To determine whether there is a substantial relationship between the successive representations, the court decides whether the attorney had a direct professional relationship with the former client to whom the attorney personally provided legal advice and services on a legal issue that is closely related to the legal issue in the present representation. Jessen v. Hartford (2003) 111 Cal. App. 4th 698, 710-711.

If a direct professional relationship is shown, and the subject of the prior representation put the attorney in a position in which confidences material to the current representation would normally have been imparted to counsel, then the attorney is presumed to possess actual confidential information. City and County of San Francisco v. Cobra Solutions (2006) 38 Cal. 4th 839, 846.

If a direct professional relationship is not shown, the court examines both the attorney’s representation of the prior client and the relationship between the prior and current representation. If the subject of the prior representation “make it likely the attorney acquired confidential information that is relevant and material to the current representation, the two representations are substantially related.”

If a substantial relationship exists, the attorney is automatically disqualified from representing the second client. Flatt v. Superior Court of Sonoma County (1994) 9 Cal. 4th 275, 283.3 The rights and interests of the former client prevail.

State Bar In Formal Opinion 2001-156, the State Bar of California Standing Committee on Professional Responsibility and Conduct considered whether constituent subentities or officials of a city could seek legal advice from the city attorney on the same matter if their positions on the matter were antagonistic to one another.

3 This paper does not address the issue of vicarious disqualification, whether the personal conduct of the attorney is imputed to the law firm as a whole.

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In consideration of the conflict of interest question, the Committee employed a two-part test to determine whether a city attorney faces a potential conflict of interest under by Rule 3-310- (C)(1). 4

1. Do the subentities or officials have a right to act independently of the governing body of the entity under the city charter or other governing law so that a dispute over the matter may result in litigation between the agency and the overall entity?

2. Do the subentities or officials have contrary positions in the matter?

If the answer to both questions is “yes”, a potential conflict of interest under Rule 3-310 (C)(1) may arise. Even when both elements are present, it is not always predictable whether disqualification will result. In this regard, the Committee offered that the city attorney must not mislead constituent subentities or officials who have no right to act independently of the governing body and who are seeking advice in their individual capacity into believing they may communicate confidential information to the city attorney in such a way that it won’t be used in the city’s interest if that interest becomes adverse to the constituent or official.

Attorney General Finally, the Attorney General has opined that a county counsel may give legal advice to a retirement board that managed the county’s retirement system for its employees even though the county could benefit from an action taken pursuant to such advice. However, both the board and the county were required to provide informed written consent with respect to any matter constituting a potential or actual conflict of interest between them. 80 Ops. Cal. Atty. Gen. 36 (1997). 5

4 Opinions of the State Bar of California Standing Committee on Professional Responsibility and Conduct are advisory only and are not binding upon the courts.

5 "Informed written consent” means the client's or former client's written agreement to the representation following written disclosure 3-310 (A)(2).

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SIMULTANEOUS OR DUAL REPRESENTATION

In instances of potential dual representation, such as providing legal advice to both the newly created successor agencies and oversight boards in the redevelopment law context or joint powers authorities composed of city members, the interest implicated is an attorney’s duty and a client’s legitimate expectation of loyalty. The test is more stringent than that of demonstrating a substantial relationship between the subject matter of successive representations since the representations may have nothing in common. Even when there is no risk that confidences to which counsel is a party in the one case have any relation to the other matter, disqualification may still be required. The rule is well-settled that you cannot serve two masters. The court in Flatt thought it was so self-evident that there are few appellate decisions elaborating on subject: it is per se disqualification. A client is likely to doubt the loyalty of a lawyer who undertakes to oppose him on an unrelated matter. Decisions condemn acceptance of employment adverse to a client even though the employment is unrelated to the existing representation, citing obligations of loyalty and fiduciary duty. In all but a few cases, the rule of disqualification in simultaneous representation cases is a per se or automatic one. Cinema 5, Ltd. v. Cinerama, Inc. (1974) 528 F. 2d 1384, 1387; Truck Ins. Exchange v. Fireman’s Fund (1992) 6 Cal. App. 4th 1050, 1056-59.

There are of course, some exceptions to the per se rule. Most courts permit an attorney to continue the simultaneous representation of clients whose interests are adverse as to unrelated matters provided full disclosure is made and both agree in writing to waive the conflict. Elliott v. McFarland Unified School District (1985) 165 Cal. App. 3d 562. In Elliott, two school districts entered into a JPA for shared legal services. The County Superintendent of Schools Office served as the administrative agency under the JPA and employed attorneys to provide legal services to participating school districts. A conflict arose over payments owed to an employee for vacation when the employee moved from one school district to another. The court acknowledged that an attorney cannot represent conflicting interests, except with the written consent of all parties concerned and highlighted that the parties had entered into an agreement to preserve the benefits of

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representation while anticipating a conflict of interest. The parties agreed to obtain their own legal counsel at their own expense if they were unable to resolve a legal issue between them.

HOT POTATO RULE

An attorney cannot cure dual representation conflicts by dropping the relationship with a pre-existing client. Truck Ins. Exchange v. Fireman’s Fund Ins. Co (1992) 6 Cal. pp. 1050.

PRINCIPLE OF LOYALTY

An attorney tried to represent parent plaintiffs in a wrongful death case on behalf of their son’s estate and the insurance company representing the son’s employer in worker’s compensation proceedings. What the court said in its option still holds true today:

One of the principal obligations which bind an attorney is that of fidelity, the maintaining inviolate the confidence reposed in him by those who employ him, and at very peril to himself to preserve the secrets of his client (citations). This obligation is a very high and stringent one. It is also an attorney’s duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter’s free and intelligent consent given after full knowledge of all the facts and circumstances [citation]. By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests. Nor does it matter that the intentions and motives of the attorney are honest. The rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between

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conflicting duties, or be led to attempt to reconcile conflicting interests, rather to enforce to their full extent the rights of the interest which he alone should represent. Anderson v. Eaton (1930) 211 Cal. 113,116.

ATTORNEYS AS WORK PLACE INVESTIGATORS

Under California law, only licensed attorneys and licensed private investigators are permitted to conduct workplace investigations as independent contractors (in- house staff, such as human resource professionals can perform these services for their own agencies). California’s Private Investigator Act Bus. & Prof. Code §§ 7512, 7522.

Sometimes an investigator is asked to conduct a limited inquiry or a “facts only” investigation. If the investigator is an attorney, he or she may be required to alert the client to reasonably foreseeable legal issues that become apparent during the investigation, even if these issues fall outside the scope of the agreed-upon representation.

Attorneys conducting workplace investigations for clients under the attorney exemption still owe certain fiduciary duties to their clients that would not necessarily apply in the case of a non-lawyer investigator. These duties include the duty to perform legal services with competence; the duty of loyalty, including the duty to avoid conflicts of interest; the duty to keep clients reasonably informed of significant developments and to promptly comply with requests for information; as well as the duty to protect the client’s confidential information. Attorneys representing clients also have certain obligations in communicating with third parties that may not apply to non-attorney investigators, including the duty not to communicate with parties known to be represented by counsel in the matter without their lawyer’s consent, and the duty not to mislead employees or other constituents of the company regarding such matters as the lawyer’s role and the identity of the lawyer's client

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Whether an investigation is covered by the attorney-client privilege is an issue distinct from whether the investigation constitutes legal services for purpose of the exemption. Generally speaking, to fall within the privilege, the dominant purpose of the investigation must be to further the rendering of legal advice or legal services. When an attorney conducts a factual investigation that is not connected to the rendering of legal advice or other legal services by the investigating attorney or by other counsel, the results of the investigation may not be privileged or protected as work product.

Retaining a licensed attorney to conduct a workplace investigation rather than a private investigator may allow employers the option and flexibility to provisionally treat investigations as being subject to the attorney-client privilege and the attorney work product privileges.

The attorney-client privilege protects communications between a lawyer and the client when the purpose of the communication is to obtain legal advice. The four elements of the privilege are as follows:

1. Communication; 2. Communication is made between privileged persons; 3. The communication is made in confidence; and 4. The communication is for the purpose of obtaining or providing legal assistance.

Some courts have held that if the purpose of retaining a lawyer was not to provide legal advice but to comply with the city’s anti-discrimination policy, that fact may compromise the agency’s ability to protect communications based on this privilege.

A common mistake in conducting independent workplace investigations is for attorneys to structure their engagements in a way that makes it clear they are not “acting as attorneys.” Investigations must be conducted pursuant to an attorney- client relationship to come within the privilege. In addition, for the privilege to

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apply, the services performed must have some connection to the attorney’s practice of law such that the attorney is performing the services usually performed by an attorney in the practice of law. Thus, the application of the privilege depends on the “character of the services rendered” and not on the investigator’s status as an attorney.

The attorney work product privilege by contrast protects from disclosure the mental impressions, conclusions and legal theories of a party’s attorney. In order to be protected, the attorney’s work product must be:

1. In anticipation of litigation; 2. Easier to protect if at the direction of counsel; and 3. The remote possibility of litigation may not be enough to trigger the work product doctrine.

The California Supreme Court has noted "[t]here is no statutory or other provision that allows for ... an inspection of documents allegedly protected by the attorney- client privilege." Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal. 3d 31, 45, n. 19. This means that unless the party holding the privilege allows it, there can be no in camera inspection of documents to determine whether the privilege exists. Lipton v. Superior Court (1996) 48 Cal. App. 4th 1599, 1619. However, in camera inspection is the proper procedure to evaluate the applicability of the work product doctrine to specific documents, and categorize whether each document should be given qualified or absolute protection. BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal. App. 3d 1240, 1261; Fellows v. Superior Court (1980) 108 Cal. App. 3d 55, 68-70.

In analyzing whether to provisionally attach the attorney work product privilege, the attorney should advise the client to consider whether litigation is reasonably likely and, if using an outside investigator, consider including a letter of engagement that identifies the purpose of the investigation. If the employer raises the adequacy of the investigation as an affirmative defense, a court may find that the attorney-client privilege and the attorney work product doctrine have been

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waived with respect to the factual results of the investigation and the attorney who conducted the investigation may be a witness. Wellpoint Health Networks Inc. v. Superior Court, (1997) 59 Cal. App. 4th 110, 128.

CITY ATTORNEY’S DUTY TO PRESERVE THEIR ABILITY TO REPRESENT THE AGENCY

The city attorney owes a general obligation to maintain his or her ability to represent the agency employing them to avoid conflicts that would compromise the ability to so represent. The problems typically present themselves in two (2) distinct areas. First, the attorney or a staff member is consulting or counseling an official where either the official believes they have an attorney-client relationship and/or the official starts divulging confidential information to the attorney. The second context where this occurs is during the representation the agency and an employee, and it becomes apparent that the representation of the employee is in direct conflict with the attorney’s representation of the agency.

Many agencies have written rules providing that the City Attorney never represents an individual and only represents the agency as a whole. Nevertheless, conduct in contravention of that rule by the attorney could compromise expectations of confidentiality.

The Handbook for Municipal Lawyers on practicing ethics provides a practice tip as follows:

Do not promise confidentiality to an individual councilmember. Make it clear in periodic communications, in writing, that any advice given to an individual councilmember cannot be withheld from the rest of the council.

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AVOIDING THE REPRESENTATION OF ADVERSE INTERESTS

Rule 3-310 of the Rules of Professional Conduct provides circumstances and discussion of the attorney’s obligation to avoid representing adverse interests. Some of these situations require a member to disclose the potential for adverse interests and others require disclosure and informed written consent.

Pursuant to Rule 3-310 (B), a member shall not accept or continue representation of a client without providing written disclosure to the client where:

(1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter;

(2) The member knows or reasonably should know that;

(a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and

(b) the previous relationship would substantially affect the members representation; or

(3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution by the matter; or

(4) The member has or had a legal, business, financial or professional interest in the subject matter of the representation.

This discussion of the rule clarifies that Rule 3-310(B) is not intended to apply to the relationship of a member to another party’s lawyer as such relationships are governed by Rule 3-320 which provides that a member shall not represent a client in a matter in which another party’s lawyer is a spouse, parent, child or sibling of

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the member, lives with the member, is a client of the member, or has had an intimate personal relationship with the member, unless the member informs the client in writing of the relationship. Rule 3-320 is not intended to apply to circumstances in which a member fails to advise the client of a relationship with another lawyer who is merely a partner or associate in the same firm as the adverse party’s counsel, and who has no direct involvement in the matter. (Amended by Order of Supreme Court, operative September 14, 1992.)

Rule 3-310(B) is also not intended to require either the disclosure of the new engagement to a former client or the consent of the former client to the new engagement. However, both disclosure and written consent are required if subsection (E) of Rule 3-310 applies.

Subsection (E) provides as follows:

“A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.”

The discussion in the rule points out that while paragraph (B) addresses issues of adequate disclosure to present clients, paragraph (E) is intended to protect the confidences of another present or former client. These two paragraphs are to apply as complimentary provisions.

Paragraph (B) is intended to apply only to a member’s own relationships or interests, unless the member knows that a partner or associate in that members firm has or had a relationship with another party or witness or has or had interest in the subject matter of the representation.

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DUTIES TO FORMER CLIENTS

After termination of a lawyer-client relationship, the lawyer owes two duties to the former client. The lawyer may not (i) do anything that creates a substantial risk that it will injuriously affect his or her former client in any matter in which the lawyer represented the former client, or (ii) at any time use against his or her former client knowledge or information acquired by virtue of the previous relationship. Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564. These duties exist to preserve a client’s trust in the lawyer and to encourage the client’s candor in communications with the lawyer by assuring that the client can entrust the client’s matter to the lawyer and can confide to the lawyer information protected by Rule 1.6 and Bus. & Prof. Code § 6068(e) without fear that any such information later will be used against the client. Current and former government lawyers must comply with this rule to the extent required by Rule 1.11.

In addition, the lawyer must maintain client confidentiality as to any information they received while acting as an attorney for the client. The challenges for a former city attorney can arise in some interesting contexts. Much of what the former city attorney knows may be public record; however in a normal attorney client relationship the attorney does not even have the liberty to discuss the representation of that client without the client’s permission. The attorney would be well advised to be sure that anything he or she discusses or discloses is information clearly within the public domain.

If the attorney is asked to represent a client against their former entity, and if he or she has obtained confidential information material to the representation, the attorney must first request the informed written consent of the former client. Rule 3-310(E).

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ABA MODEL RULES OF PROFESSIONAL RESPONSIBILITY

Rule 1.11: Special Conflicts Of Interest for Former and Current Government Officers and Employees

It is difficult to explain why California is the only state in the nation which has not adopted the ABA model rules of professional responsibility. Forty-nine states, the District of Columbia and the Virgin Islands have already done so.

California’s Commission on Professional Responsibility and Conduct has endorsed Rule 1.11 as a proposed rule on special conflicts for current and former government officers and employees (See Model Rule 1.11, copy attached). To some extent, the model rule acts as a revolving door rule similar to the FPPC rules that apply to state employees, but not to local agency attorneys. Also included in the Model Rules proposed for adoption in California is Rule 1.9: Duties to Former Clients.

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Speaker Biographies

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track San Diego Convention Center, San Diego

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League of California Cities 2012 League of California Cities Annual Conference 330 City Attorneys’ Track San Diego Convention Center, San Diego

Steve M. Berliner Partner

Los Angeles

[email protected] Tel: 310.981.2000 Fax: 310.337.0837

Steve joined the Los Angeles office in 1997 and has developed an extensive negotiation and litigation practice. Steve has expertise in advising and defending public agencies regarding the laws and regulations of public employee retirement plans, such as PERS, as well as on retiree health insurance issues. This includes advising and representing clients in administrative hearings and court as well as negotiating changes to retiree benefits.

Steve has expertise in the area of STRS, PERS, the County 1937 Retirement Act, and related retirement issues. He assists clients who have been audited by PERS in responding to the audit. He reviews the audit report and advises the client on the best course of action. This could include an appeal of PERS' findings.

Steve has developed an expertise in employee industrial disability retirement procedures. He represents clients in the administrative hearing and in court when employees challenge a denial of their industrial disability retirement application. Steve also advises clients with regard to their obligations and rights when dealing with injured and disabled employees.

Steve acts as chief negotiator for our clients in their labor negotiations with their employee associations. He advises clients on contract interpretation issues and represents clients in grievance matters.

Steve defends our clients in a wide range of lawsuits, including writs, breach of contract, the Fair Labor Standards Act, discrimination and harassment. In addition, Steve represents our clients in employee disciplinary hearings.

Education JD, University of California, Los Angeles School of Law BA, State University of New York at Binghamton

Legal Expertise Employment Law Labor Relations and Negotiation Services Retirement Wage and Hour

331 Steve M. Berliner

Representative Matters

Litigation:

Brotherhood of Locomotive Engineers and Trainmen, a Division of the Rail Conference, International Brotherhood of Teamsters; Glenn William Steele v. Southern California Regional Rail Authority, d/b/a Metrolink (2011) - In a case handled by Steve Berliner and James Oldendorph of Liebert Cassidy Whitmore's Los Angeles office, the Los Angeles County Superior Court ruled that Metrolink's installation and operation of an audio and video monitoring system in the cabs of Metrolink locomotives did not violate the locomotive engineers' privacy rights, due process rights, and that the actions were not preempted by state law. The union for the engineers that operate the locomotives, and one individual engineer, had sued Metrolink seeking declaratory and injunctive relief, arguing that the engineers had a reasonable expectation of privacy in the cabs of the locomotives, and that Metrolink's monitoring system violated their procedural and substantive due process rights. They also claimed that the installation of the cameras and the policy adopted to govern their use were preempted by state law. The Court granted Metrolink's motion for summary judgment on all of Plaintiffs' causes of action, finding that there were no issues of material fact warranting trial. This ruling resulted in a victory for Metrolink on all claims.

Publications

Post-Retirement Work Restrictions For CalPERS Retirees, California Special Districts Alliance (CSDA) Magazine Volume 7, Issue 3, June 2012

Strategic Early Retirement Incentive, ACHRO/EEO Newsletter, October 2010, with Frances Rogers

Strategic Early Retirement Incentives, Law360.com, March 2010, with Frances Rogers

H1N1 in the Workplace: ‘Go Home', CPER Journal, February 2010

Furloughs: The Devil's In The Details, CPER Journal, August 2009, with Alison Neufeld

Working for a PERS Agency Post-Retirement Poses Traps for the Unwary, November 2004

School Daze: Imposition of Discipline Over Parents' Objections, May 1998

Presentations

Mandated Fact Finding under the Meyers Milias Brown Act (AB646) - East Inland Empire - Fontana - November 8, 2012

Mr. Incredible Talks Retirement - Public Employer Labor Relations Association of California (PELRA) - Marina del Rey - October 11, 2012

Academy I: The Foundation of Labor Relations - National Public Employer Labor Relations Association and PELRAC - Tustin - May 23, 2012

Advanced Retirement Issues for California's Public Employers - East Inland Empire ERC - Fontana -

332 Steve M. Berliner

April 5, 2012

AB 1028 and Post Retirement Work Restrictions: What Do You Do Now? - Liebert Cassidy Whitmore - Webinar - March 15, 2012

AB 1028 and Post Retirement Work Restrictions: What Do You Do Now? - Liebert Cassidy Whitmore - Webinar - March 8, 2012

AB 646 - Required Fact-finding - Orange County Human Resources Consortium - March 7, 2012

PERS Retirees and Independent Contractors Employment Issues - Southern California Pulbic Labor Relations Council Meeting - Cerritos - January 19, 2012

333 T 213.626.8484 F 213.626.0078 E

Patrick "Kit" Bobko is a Shareholder in the Litigation Department and the Appellate Law Practice Group at Richards, Watson & Gershon. He specializes in the representation of municipalities and public entities in both state and federal courts, at the trial and appellate court levels. He has been involved in handling election contests, property tax litigation, land use disputes, cases arising under the California Environmental Quality Act, and federal constitutional and civil rights cases. Mr. Bobko has served as a City Prosecutor for a number of cities, and also has experience representing private clients and small businesses.

Mr. Bobko obtained his law degree from The George Washington University Law School where he was a Notes Editor of the American Intellectual Property Law Quarterly Journal and a member of the Moot Court Board.

Mr. Bobko serves his community as a member of the Hermosa Beach City Council, and recently completed serving his first term as Mayor. Mr. Bobko was elected to the Council in June 2006 and was re-elected to another four-year term in November 2009. Prior to his legal career, Mr. Bobko was a Captain in the United States Air Force.

Education B.S., United States Air Force Academy, 1991 M.A., Philosophy, University of South Carolina, 1997 J.D., The George Washington University Law School, 2000

Practice Areas Appellate Law Litigation Public Agency and Municipal Law Litigation Writs

334 Thomas B. Brown

Partner — Oakland

1901 Harrison Street, Suite 900 Oakland, CA 94612 510.903.8840 d 510.273.8780 t 510.839.9104 f [email protected]

Mr. Brown is a partner of the firm and served for 12 years as the City Attorney for the City of Napa. Prior to his tenure at the City of Napa, he served as Senior Deputy City Attorney for the City of Berkeley.

Mr. Brown represents both public agency and private clients. His practice focuses on all aspects of municipal law. He has extensive experience advising clients and litigating in land use, zoning and planning, the California Environmental Quality Act ("CEQA"), real property entitlements, police power, charter cities, municipal taxation, Brown Act, Public Records Act, code enforcement, intergovernmental relations, grand juries, elections, initiatives, and referenda.

Mr. Brown was a visiting professor at Sonoma State University where he taught, "California Land Use Law," (Spring Semester 2002).

Representative Matters Black Property Owners Ass'n v. City of Berkeley Building Industry Association v. County of Stanislaus City of Berkeley v. Cukierman County of Sonoma v. Superior Court Disney v. City of Concord Fisher v. County of Alameda Haro v. City of Solano Beach Hernandez v. City of Hanford Home Builders Association v. City of Napa Saad v. City of Berkeley Smith v. City of Napa Trinity Park, L.P. v. City of Sunnyvale Urban Habitat v. City of Pleasanton

335 Presentations Mammoth Lakes Land Acquisition LLC v. Town of Mammoth Lakes. The $40 Million Hit Could Have Been Avoided!!, Contra Costa County City Attorneys Association, July 2011 Housing Element Law Update and Use by Right Zoning: HCD Is At It Again, County Counsels Association, July 2011 Challenges to Housing Element from Urban Habitat Program v. City of Pleasanton to Haro v. City of Solana Beach, City Attorneys Association of San Diego County, May 2011 How to Litigate a Writ of Madate Case, League of California Cities 2011 City Attorneys Spring Conference, May 2011 How to Litigate a Writ of Mandate Case, League of California Cities, City Attorneys' Department Spring Conference, May 2011 Civil Grand Juries, County Counsels Association, July 2010 Recent Developments in Housing Element Law and Inclusionary Zoning, County Counsels Association, May 2010 Recent Developments in Medical Marijuana Regulation, County Counsels Association, April 2010 Recent Developments in Medical Marijuana Regulation, Contra Costa County City Attorneys Association, February 2010 2009 Significant Developments in California Real Property Law, Marin County Bar Association, February 2010 How to Litigate a CEQA Case; Recent Developments in Agricultural Mitigation Litigation, County Counsels Association, December 2009 Recent Devlopments in Medical Marijuana Regulation, Bay City Attorneys, November 2009 Home Sweet Home? Legal Challenges to Inclusionary Ordinances and Housing Elements, League of California Cities Annual Conference, September 2009 Morongo Band of Indians: Due process in Administrative Hearings, County Counsels Association, September 2009 Supreme Court Update: Morongo Band of Mission Indians v. SWRCB; Vargas v. City of Salinas, League of California Cities 2009 City Attorneys Spring Conference, May 2009 Land Use Law Update, League of California Cities Planners Institute, March 2009 Land Use and CEQA Update, League of California Cities City Attorneys Department Conferences, 2003, 2007, 2008 Current Issues in Elections, Public Records, and the Brown Act, City Clerks Association of California Annual Conference, April 2007, 2008 Current Issues Under the Public Records Act, League of California Cities Annual Conference, September 2005 Inclusionary Housing: The Napa Experience, California Planning Association Annual Conference, Fall 2002

Publications

336 Medical Marijuana: Local Land Use Authority Versus State and Federal Law, April 11, 2012 Daily Journal Court Rules that City Properly Denied Card Room Permit, 10.01.2010 October 2010 Public Law Update Feduniak v. California Coastal Commission: The Coastal Commission Gets a Mulligan on its Longstanding Failure to Enforce Violations of Permit Conditions, July 2007 The Marin Lawyer Note, The Reliance/Privity Requirement in Lawsuits Against Developers for Fraud and Concealment, Summer 1985 California Real Property Journal, Vol. 3, No. 3

PRACTICE GROUPS Litigation Public Law Real Estate and Business Law

EDUCATION University of California, Hastings College of the Law J.D., 1982 University of California, Santa Barbara B.A., 1978

ADMISSIONS State Bar of California Supreme Court of the United States United States Court of Appeals for the Ninth Circuit United States District Court for the Eastern District of California United States District Court for the Northern District of California

MEMBERSHIPS & ASSOCIATIONS League of California Cities

337 CHRISTINA L. CHECEL

Practice Areas

Labor and Employment Law; Public Pension Fund Law

Background and Experience

Ms. Checel primarily practices in the area of labor and employment law and advises the various City departments on issues relating to employee discipline, discrimination, harassment, wage and hour law, family and medical leave law, disability law, labor law, and safety laws under OSHA. Ms. Checel also regularly advises the Long Beach Civil Service Commission during its hearings on employee discipline, and later handles any writs and appeals that are filed. Finally, she provides legal advice regarding the City's public pension fund with CalPERS, and represents the City in cases where employee deferred compensation funds are at issue in dissolution proceedings.

Prior to joining the City Attorney's office, Ms. Checel was an associate at the law firm of Morrison & Foerster. There, she defended private companies in lawsuits ranging from wage and hour class actions to contract disputes to wrongful termination.

Professional Affiliations

Ms. Checel is a member of the State Bar of California and the Long Beach Bar Association. She is admitted to practice in California and before the Central United States District Court.

Education

Ms. Checel graduated from U.S.C. School of Law. She received her B.A. in Spanish and Linguistics, magna cum laude from U.C.L.A.

g:\train\annual conference\2012\city attorneys track\papers\social media_labor and employment legal issues\checel bio.doc 338 Susan E. Coleman

Partner — Los Angeles

444 South Flower Street, Suite 2400 Los Angeles, CA 90071-2953 213.236.0600 t 213.236.2700 f [email protected]

Susan E. Coleman is a partner at Burke, Williams & Sorensen LLP with over 17 years litigation experience. Ms. Coleman worked for the Department of Justice, Office of the Attorney General, for over 13 years. For the last three years, Ms. Coleman has represented various public entities such as the cities of Alhambra, Inglewood, Los Angeles, Colton, Beaumont; the counties of San Bernardino and Los Angeles; agencies of the State of California; and the Regents of the University of California, and those entities’ individual employees. Because of this history defending governmental entities and their employees, she has a strong background in tort litigation, constitutional law/civil rights litigation, and premises liability.

Ms. Coleman has defended officials and individuals in over 20 civil jury trials in federal and state courts throughout California, with very successful results. These trials include claims of wrongful death, negligence, excessive force, retaliation, failure to summon medical care, and various other tort and constitutional issues. Ms. Coleman is an associate of the American Board of Trial Advocates (ABOTA).

Ms. Coleman also has extensive experience with class action litigation, including several class actions on behalf of the California Department of Corrections. Ms. Coleman has defeated class certification motions in three separate matters in the last two years. She also represented the Board of Parole Hearings in a lengthy bench trial involving the Americans with Disabilities Act (Armstrong v. Davis).

During law school, Ms. Coleman served as Articles Editor for the Santa Clara Law Review. In addition, she held a clerkship for the California Court of Appeal, Fourth District in San Francisco for Justice Jerome Smith. After obtaining her Juris Doctorate and while working as an attorney, Ms. Coleman attended San Francisco State University’s Master’s in Tax program from 1994 through 1996.

Presentations State Court Practitioners' Playbook for Mastering Federal Court, The State Bar of California 85th Annual Meeting, October 13, 2012 Guide to Understanding Use of Force Lawsuits, League of California Cities Annual Conference, September 5, 2012

Publications July 2012 Prison Break - Correctional Liability Update, July 2012 June 2012 Prison Break - Correctional Liability Update, June 2012 May 2012 Prison Break - Correctional Liability Update, May 2012 April 2012 Prison Break - Correctional Liability Update, April 2012 March 2012 Prison Break - Correctional Liability Update, 03.01.2012 Negotiating Prison Hunger Strike? Just Say No, Winter 2012 Public Law Journal February 2012 Prison Break - Correctional Liability Update, 02.01.2012 January 2012 Prison Break - Correctional Liability Update, 01.01.2012 THE PREMISES LINE RULE: Expanding the Workers’ Compensation Exclusive Remedy Bar Beyond the Time An Employee Is “On The Clock", 04.01.2011 April 2011 Public Law Update Protecting Landlord Control of Transfers: The Status of Sole Discretion Clauses in California Commercial Leases, Spring 1995 Santa Clara University Law Review, Vol. 35, No. 3 Stormy Seas?: New Oil Pollution Laws of the West Coast States, Spring 1994 Santa Clara University Law Review, Vol. 34, No. 3

Recognition Outstanding Achievement in Client Representation Award, Attorney General Jerry Brown - 2006

PRACTICE GROUPS Labor and Employment Law Litigation Public Law

EDUCATION Santa Clara University J.D., 1994 Whitman College B.A., 1991

ADMISSIONS State Bar of California Supreme Court of the United States United States Court of Appeals for the Ninth Circuit

© 2012 Burke, Williams & Sorensen, LLP. All rights reserved. 340 United States Court of Appeals for the Ninth Circuit United States District Court for the Central District of California United States District Court for the Eastern District of California United States District Court for the Northern District of California United States District Court for the Southern District of California

MEMBERSHIPS & ASSOCIATIONS American Board of Trial Advocates California State Bar, Litigation Section

A native of California and a resident of San Bernardino County since 1961, Undersheriff Fonzi attended Pacific High School in San Bernardino and community college in San Bernardino and Yucaipa. His formal education includes an Associate in Arts degree in Criminal Justice and a soon to be completed Bachelors Degree program in Vocational Education, Training, and Curriculum Design. He is a graduate of the National FBI Academy and California POST Command College.

Undersheriff Fonzi began his career with the San Bernardino County Sheriff’s Department over three decades ago in 1981. As the Undersheriff, he directs the preparation of the annual budget, recommends and reviews proposed changes with the Sheriff and determines staffing needs and priorities. He reviews the objectives and effectiveness of all organizational divisions within the Department and maintains a liaison between other law enforcement agencies, judges, District Attorney and defense attorneys to assure optimal success in crime prevention and enforcement.

Previously as Assistant Sheriff, he was responsible for all support operations within the organization. His administrative duties included; directing, planning, coordinating, and managing all functions within a major area of assigned responsibility for the Sheriffs Department.

Prior to his appointment to Assistant Sheriff, Fonzi held the position of Deputy Chief with responsibilities over the Sheriff’s Department’s largest bureau, the Detentions and Corrections Bureau, providing oversight to four large jail facilities. As a Deputy Chief, Fonzi also had the assignment responsible for the Bureau of Administrative Services. This bureau provided oversight to three divisions, which included the Training Center, Emergency Operations, and Employee Resources.

Fonzi held the position of Captain and commanded three separate divisions; Sheriff’s Employee Resources Division, West Valley Detention Center, and served as the Chief of Police for the City of Yucaipa. He served in a variety of positions in the ranks of Deputy Sheriff, Sergeant and Lieutenant.

Undersheriff Fonzi is most recognized in the area of training with over twenty five years of experience and having trained approximately 10,000 law enforcement officers from all over the country with his extensive expertise in use of force, police procedures, jail operations and management. Undersheriff Fonzi has qualified as an expert witness and has testified in more than a hundred civil, criminal, and civil service trials in both State and Federal court.

As an active citizen in the county that he lives and serves, Undersheriff Fonzi is a member of Kiwanis, San Bernardino County Arrowhead United Way, International Footprinters Association, California Peace Officers Association to name a few.

Undersheriff Fonzi, his wife Jill, daughter Krystyna, and son Nickalus reside in Yucaipa, California.

342

DEBORAH J. FOX

Deborah Fox is one of California’s foremost experts on First Amendment issues affecting the public sector. Her practice includes trial and appellate work in both state and federal courts on First Amendment cases as well as cases that frequently involve civil rights claims for violation of substantive and procedural due process, equal protection, environmental claims and inverse condemnation.

Deborah was successful in obtaining an award of attorneys’ fees for both Culver City and Palmdale. She defended Culver City in a challenge to its sign ordinance, obtaining a motion to dismiss with prejudice. In an unusual ruling, the

Ninth Circuit affirmed an attorneys’ fees award to Culver Deborah J. Fox City totaling $140,000 for a frivolous case. And, in a state Principal court civil rights/takings challenge based on a failed

633 West Fifth Street, Suite 1700 apartment project, Deborah obtained a judgment in the Los Angeles, CA 90071 City’s favor by way of demurrer and motion for summary judgment. This culminated in the City obtaining an award in T: 213.626.2906 excess of $100,000 against the developer. F: 213.626.0215 [email protected] She is a member of the State Bar of California, the American Practice Groups Bar Association, the Los Angeles County Bar Association Eminent Domain and Inverse and the League of California Cities Adult Use Task Force, Condemnation where she participated in the preparation of the League's Environmental Law Model Ordinance. She serves as a settlement officer for the Land Use North Central District Division of the Los Angeles Superior Litigation Court and is admitted to practice in the courts of the State of California, United States Supreme Court, Ninth Circuit Municipal and Special District Law Court of Appeals and several U.S. District Courts.

California Bar Number 110929 Deborah has lectured and written extensively on the First Amendment including publications in the Urban Lawyer. Education She is a Fellow of the Litigation Counsel of America and is University of San Diego, JD, 1983 AV rated by Martindale-Hubbell for reaching the height of University of Michigan, BA Political Science professional excellence and recognized for the highest levels and Cultural Anthropology, 1980 of skill and integrity. She is listed in Martindale-Hubbell’s Practicing Since: 1983 2004, 2005 and 2006 Register of Preeminent Lawyers and in Martindale-Hubbell's Bar Register of Preeminent Women Lawyers, 2011 Inaugural Edition. She was named one of California’s “Top Women Litigators” by the Daily Journal in

343 2007 and 2009 for her career achievements and overall contributions to the profession. She was also named one of L.A.’s “Top 100 Lawyers” by the Los Angeles Business Journal in 2009.

Published Decisions

• Building a Better Redondo v. City of Redondo Beach (February 22, 2012) 2012 DJDAR 2327 [initiative] • Hillside Memorial Park v. Golden State Water; Water Replenishment District (2011) 199 Cal.App.4th 658 [water law/CEQA] • Rickley v. County of Los Angeles, 2011 U.S. App. LEXIS 20186 (Oct. 4 2011). [Section 1983 attorneys fees] • Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289. [regulation of ham radio antennae and federal preemption] • PR/JSM Rivara v. Community Redevelopment Agency of Los Angeles (2009) 180 Cal.App.4th 1475. [redevelopment; density bonus; and CEQA] • International Church of Foursquare Gospel v. City of San Leandro, 632 F.Supp.2d 925 (N.D. Cal. 2008), rev’d. 634 F.3d 1037 (9th Cir. 2011); amended and rehearing denied, 2011 U.S. App. LEXIS 8505 (9th Cir. April 22, 2010); cert. denied 2011 U.S. LEXIS 5458 (Oct. 3. 2011). [RLUIPA] • Gammoh v. City of La Habra (9th Cir. 2005) 395 F.3d 1114, amended 402 F.3d 875, cert. denied 126 S.Ct. 374. [adult use] • Lim v. City of Long Beach (9th Cir. 2000) 217 F.3d 1050, cert. denied (2001) 121 S.Ct. 1189. [adult uses] • Tily B. v. City of Newport Beach (1999) 69 Cal.App.4th 1. [adult uses] • City of South El Monte v. Southern California Joint Powers Insurance Authority (1995) 38 Cal.App.4th 1629, modified 38 Cal.App.4th 1810b. [joint powers authority (jpa)] • Santa Fe Realty Corp. v. City of Westminster (C.D. Cal. 1995) 906 F.Supp. 1341. [adult uses] • 3570 East Foothill Boulevard v. City of Pasadena (C.D. Cal. 1995) 912 F.Supp. 1257, aff'd. (9th Cir. 1996) 99 F.3d 1147. [adult uses] • Eldorado Drive v. City of Mesquite (D. Nev. 1994) 863 F.Supp. 1252. [immunity to city council] • Rogers v. Superior Court (City of Burbank) (1993) 19 Cal.App.4th 469. [Public Records Act] • City of Glendale v. Superior Court (Giovanetto Enterprises) (1993) 18 Cal.App.4th 1768. [condemnation] • Building Industry Association v. Superior Court (City of Oceanside) (1989) 211 Cal.App.3d 277. [managed growth initiative]

344 Wynne Furth is a lawyer whose practice included municipal., college and university, and estate planning law, as well as an interlude as an ERISA lawyer in the mid 1970s. As a trailing academic spouse she first practiced at Allard, Shelton & O'Connor in Pomona, then Best Best & Krieger, then the City of Palo Alto, then McDonough Holland & Allen, and then Burke Williams & Sorenson. It was her very good fortune to work as the City Attorney of her own town, Claremont, for two decades. She and her husband live in Palo Alto.

345 Gary Geuss

Gary Geuss has worked for the Los Angeles City Attorney's office since 1989, and is currently the Chief Assistant City Attorney, in charge of the Civil Branch, supervising approximately 100 lawyers in handling the City's civil litigation and serving as General Counsel for the Los Angeles Police and Fire Departments. Gary helps to developed litigation strategies for LAPD and also provides them with non-litigation advice, and he serves on the standing committee monitoring outside defense counsel. Gary is an associate of the American Board of Trial Advocates, and has had over 50 jury trials.

346 BIOGRAPHICAL SKETCH

Eugene P. Gordon

Eugene P. Gordon is a Deputy City Attorney in the San Diego City Attorney’s Office. Since February 2008 when he retired from the City, he has been working on a part-time basis in the City Attorney’s Office. From 1971 to 1978, Mr. Gordon was Legal Advisor to the San Diego Police Department, and from 1978 to the present, he has specialized in the defense of personal injury and federal civil rights actions brought against the City and City employees. These cases include actions brought against police officers under the Federal Civil Rights Act (§ 1983) for alleged violations of constitutional rights, such as false arrest, excessive force (including deadly force), misuse of police K-9s, and injuries resulting from police vehicular pursuits. Mr. Gordon also handles the defense of personal injury actions brought against the City under state law, such as trip-and-fall and highway design cases alleging a dangerous condition of public property. He has taught extensively at the San Diego Regional Public Safety Training Institute at Miramar College in San Diego on the subjects of civil and criminal liability of law enforcement officers, constitutional law, and use of force to police recruits, advanced officers and Field Training Officers.

347 Gregory F. Hurley Download vCard Full Biography Shareholder

[email protected] Direct: 949.732.6614 Direct Fax: 949.732.6501 Orange County 3161 Michelson Drive Back to People Search Suite 1000 Irvine, CA 92612 T 949.732.6500 F 949.732.6501

Experience Profile | Publications & Presentations | News & Events

Co-Chair, ADA, Accessibility, Gregory Hurley manages the firm’s Orange County Litigation Group. He is a member Building and Life Safety Codes of the Attorney Settlement Officer Panel for the United States District Court for the Central District of California, having first been appointed to the Panel in 2003. He Litigation holds a masters certificate from the National Institute of Trial Advocacy, and has tried Environmental numerous cases in California federal and state courts over the course of his career, including several national class actions alleging discrimination and violations of the Hospitality Fair Housing Act and the Americans With Disabilities Act. He has advised the California Supreme Court (through the Administrative Office of the Courts), Covenant Care, Real Estate Home Depot, Intrawest, Pacific Life, Starbucks, the Four Seasons Hotel, Tarsadia Real Estate Operations Hotels, the Denver Broncos, the San Diego Padres, the U.S. District Court for Eastern District of California, the City of San Diego, the Superior Court for the Counties of Sports Facilities and Entertainment Riverside, Los Angeles, and Alameda on these claims. He has represented the Los Venues Angeles Superior Court System, YUM Brands: Taco Bell, KFC, Pizza Hut and A&W, Home Depot, The Irvine Company, Irvine Apartment Communities, Sears Holding Education Company, Ralphs Grocery Company, AMC Theaters, the National Association of

J.D., University of Colorado Law Theater Owners, Marriott International, and the City of Riverside with respect to School, 1986 access discrimination claims. A.B., University of California at Berkeley, 1981 Greg’s trial experience includes trying a statewide class action, one of the largest ever filed in the Ninth Circuit, against 2000 miles of Caltrans pedestrian routes; a class Admitted to Practice action brought by the ACLU against the Los Angeles Superior Court System; a national action brought by the United States Department of Justice against AMC Theaters; a California national class action against 80 golf courses owned and operated by Marriott; statewide class actions against Starbucks, In-N-Out Burger, Ralphs Grocery Stores; Colorado and a class action against more than 200 Taco Bell stores. District of Columbia Greg’s experience also includes substantial appellate work. He argued the Ninth Circuit case of Lonberg v. Sanborn Theaters and was asked to author United States Supreme Court briefs and Ninth Circuit Appellate briefs for the National Association of Theater Owners, The California and National Restaurant Associations, the California and National League of Cities, and more than 200 California cities.

Greg is a nationally recognized attorney on disability law, and the author of the Wiley Law Publications text, Defending Disabled Access Claims, a comprehensive survey of state and federal laws relating to the rights of individuals with disabilities. He is a frequent speaker on disability rights and employment issues and is the moderator for

348 Federal Publication’s and Lorman Publications’ national seminars on Litigating ADA Claims. Greg sits on a committee advising the California State Legislature on revisions to California’s discrimination laws and is publishing a book on ADA claims for the California Chamber of Commerce. In July of 2008, he was the featured speaker for an all-member California Chamber of Commerce conference call regarding the Department of Justice's new ADA regulations.

Areas of Concentration

Consumer class action defense

Civil rights law

Environmental law

Public and construction law

Real estate law

Employment law

Administrative and regulatory law

Commercial litigation

Awards & Recognition

Listed, The Best Lawyers in America, Mass Tort Litigation/Class Actions - Defendants, 2008-2012

Listed, Super Lawyers magazine, Southern California Super Lawyers, 2009, 2011- 2012

Team Member, Law360 "Real Estate Practice Group of the Year," 2011

Member, Winning Team, Chambers USA Award for Excellence in Real Estate, 2010

Recipient, Certificate of Appreciation, California State Legislature (for overseeing environmental clean up), 2001

Recipient, Certificate of Appreciation, United States Marine Corps (for work on the environmental cleanup of MCAS El Toro)

*Greenberg Traurig’s London office is operated by Greenberg Traurig Maher LLP, an affiliate of Greenberg Traurig, P.A. and Greenberg Traurig, LLP. Greenberg Traurig Maher is a limited liability partnership registered in England and Wales under number OC 346053 and is a multinational practice of Solicitors and Registered Foreign Lawyers authorised and regulated by the Solicitors Regulation Authority (SRA). Click here for the SRA Code of

349

LOUNSBERY FERGUSON

ALTONA & PEAK LLP ATTORNEYS AT LAW

960 Canterbury Place, Suite 300 OF COUNSEL: Escondido, California 92025-3870 JAMES P. LOUGH Telephone (760) 743-1201 Facsimile (760) 743-9926 www.LFAP.com SPECIAL COUNSEL: JOHN W. WITT

JAMES P. LOUGH

Mr. Lough has specialized in municipal law since 1980. Beginning in 1985, he served as City Attorney for the City of Hermosa Beach. Mr. Lough later served as the City Attorney for the City of Fresno. As Fresno City Attorney, he assisted in the development of the Strong Mayor Charter Reform package. He continues to represent charter cities on issues of governance.

From 1989 to 1992, he served as the County Counsel for the County of Humboldt. Throughout his career, he has represented special districts, counties, joint powers authorities, campaign committees and cities as special counsel on election matters and intergovernmental issues.

He joined Lounsbery, Ferguson, Altona & Peak in February, 2010 as Of Counsel. Currently, Mr. Lough represents the City of Lemon Grove as City Attorney, He has recently served as Special Counsel for a variety of entities including Chula Vista, San Marcos, Carlsbad, Vista, Oceanside and the County of Imperial..

Mr. Lough attended California State University, Fullerton where he earned a degree in Political Science. In 1979, he earned his Juris Doctor degree from Southwestern University School of Law in Los Angeles where he was a Member of the Law Review and the Phillip Jessup International Law Moot Court team. In 1980, he received his LL.M in Urban Studies from Washington University School of Law in St. Louis, Missouri.

He lives in rural San Diego County with his wife of thirty-six years, Martha. They have two grown children. His daughter Holly is a fourth year medical student. His son Alex is in private business in Dallas, Texas.

350

MICHAEL D. MARTELLO Senior counsel

Michael Martello, Senior Counsel at Thomas Whitelaw, is a seasoned litigator and strategic litigation manager with substantial business, regulatory and government experience. Prior to joining the firm, Mr. Martello served as the City Attorney of Mountain View, Los Gatos and Concord, California and as Assistant City Attorney of Thousand Oaks, California. Mr. Martello is regularly called upon to testify before state agencies and the California Legislature.

Mr. Martello has deep experience in high-profile litigation, including numerous matters involving complex financial accounting and auditing. He has obtained numerous seven figure settlements for his clients in publicly-prominent matters. Among his diverse experiences, Mr. Martello served on the seven-member creditor's committee in the Orange County Bankruptcy, and was one of the attorneys in the lawsuit which ultimately produced California's SLAPP legislation.

Mr. Martello is the principal author of Providing Conflict of Interest Advice, a 167-page practice manual for government attorneys. He has written and lectured extensively for thirty years on ethics and the law, including not only conflicts of interest, but also land use and planning, zoning, construction and other diverse areas of real estate law.

Mr. Martello received his BS magna cum laude from Arizona State and his JD from Pepperdine University School of Law.

351 Shawn M. Mason

Shawn Mason has served as the City Attorney for the City of San Mateo since January 2003. Shawn previously served as the City Attorney for the City of Rancho Mirage and the City of Benicia, and as the Deputy and Assistant City Attorney for the City of Thousand Oaks. Shawn presently serves on the Legal Advocacy Committee and as Chair of the FPPC Committee. He has previously served on the Municipal Law Handbook Committee. In his spare time, Shawn enjoys running, playing softball and reading. He is also an enthusiastic fantasy baseball team owner and enjoys annually competing with fellow city attorneys, Fred Soley and John Pomidor.

352

Mary T. Nuesca Chief Deputy City Attorney San Diego City Attorney’s Office

Mary Nuesca is currently the Chief Deputy City Attorney over the Public Safety and Labor and Employment Sections of the Civil Division of the Office of the City Attorney. She is also in charge of the Office’s training and intern programs. Ms. Nuesca supervises eleven attorneys.

Mary joined the San Diego City Attorney’s Office in 1988 as a prosecutor in the Criminal Division before she transferred to the Civil Division in 1992 to become a legal advisor to the San Diego Police Department. In 2009, Mary promoted to Chief Deputy. Her current work assignments include First Amendment issues, issues related to the homeless, and medical marijuana issues. Mary serves as legal advisor to both the Public Safety and Neighborhood Services Committee and the Commission on Gang Prevention and Intervention. She sits in for the City Attorney at City Council sessions.

Mary graduated from the University of San Diego School of Law and is a member of the Filipino American Lawyers Association of San Diego.

353 Neil Okazaki has been a deputy city attorney for the Riverside City Attorney’s Office. As a member of the Litigation Services Section, his practice areas include municipal tort litigation, employment law, ADA law, and general risk management issues. He joined the Riverside City Attorney’s Office in 2006 immediately after having worked in the general liability litigation practice group at California’s sixth largest law firm. He came to the City having completed fifteen jury trials and eight binding arbitrations as sole trial counsel.

Neil received his Juris Doctorate from Loyola Law School, where he was a partial scholarship recipient and Note & Comment Editor of the Loyola of Angeles Law Review. His published law review article has been cited in published decisions by the California Court of Appeal and the Texas Court of Appeals. He received his undergraduate degree in Political Science from the University of California, Riverside, where he was awarded the yearly Chancellor’s Award for Campus Leadership at the Honors Convocation. Neil is admitted to practice in all California State Courts, the United States Court of Appeals for the Ninth Circuit, and the United States District Court for the Central District of California. He is a member of the Riverside County Bar Association and has been a member of the Leo A. Deegan American Inn of Court for six years. Neil is also on the Attorney Settlement Officer Panel for the United States District Court for the Central District of California.

354 T 213.626.8484 F 213.626.0078 E

T. Peter Pierce is a shareholder in the Litigation Department at Richards, Watson & Gershon. Mr. Pierce is certified as a specialist in appellate law by the State Bar of California Board of Legal Specialization. Mr. Pierce has represented public agencies and other clients before the United States Supreme Court, the California Supreme Court, the United States Ninth Circuit Court of Appeals, the California Court of Appeal, and various trial courts at the federal and state levels. The cases Mr. Pierce has managed from inception through the appellate process have involved land use and zoning issues, CEQA, constitutional law, telecommunications law, inverse condemnation issues, and elections law. Reported decisions in Mr. Pierce's cases include:

z Nordyke v. King, 644 F.3d 776 (9th Cir. 2011) z Joffe v. City of Huntington Park, 201 Cal.App.4th 492 (2011) z Nordyke v. King, 563 F.3d 439 (9th Cir. 2009) z Kay v. City of Rancho Palos Verdes, 504 F.3d 803 (9th Cir. 2007) z City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) z Abrams v. City of Rancho Palos Verdes, 354 F.3d 1094 (9th Cir. 2004) z City of West Hollywood v. 1112 Investment Co., 105 Cal.App.4th 1134 (2003) z Nordyke v. King (Alameda County), 27 Cal.4th 875 (2002) z Echevarrieta v. City of Rancho Palos Verdes, 86 Cal.App.4th 472 (1998) z California Rifle & Pistol Assn. v. City of West Hollywood, 66 Cal.App.4th 1302 (1998) z Private Industry Council v. State of California, 57 Cal.App.4th 1190 (1997) z Friedman v. City of Beverly Hills, 47 Cal.App.4th 436 (1996)

Mr. Pierce has also authored or supervised a number of amicus briefs on behalf of the League of California Cities in several reported cases.

Mr. Pierce is currently serving a three-year term on the

355 California State Bar Appellate Law Advisory Commission. Mr. Pierce is a past Chair of the California State Bar Standing Committee on Appellate Courts, and served on that committee from 2006-2010. He also serves on the Los Angeles County Bar Association’s Committee on Appellate Courts. Mr. Pierce is a contributing author of the following CEB treatises: California Civil Appellate Practice (3d ed.); California Civil Writ Practice (4th ed.); and California Administrative Mandamus (3d ed.). Mr. Pierce served from 2006 to 2009 as an adjunct professor at the University of Southern California Law School, where he taught a civil litigation course.

Outside of his law practice, Mr. Pierce is an Advisory Trustee to the ALS Association, Greater Los Angeles Chapter, a non-profit organization assisting those afflicted with Lou Gehrig's Disease. Mr. Pierce served as a Trustee of the chapter from 2002-2005 and regularly represents the chapter in meetings with members of Congress.

Immediately following law school, Mr. Pierce served as a law clerk to the Honorable Marcel Livaudais, Jr. on the United States District Court in New Orleans. Before attending law school, Mr. Pierce was a broadcast journalist.

Education A.B., Cornell University, 1986 M.S., Syracuse University, 1987 J.D., Tulane Law School, 1992

Practice Areas Appellate Law Public Agency and Municipal Law Litigation Writs

356 Jannie L. Quinn is the City Attorney for the City of Mountain View, and has served in that capacity since May of 2011. She has worked for the City of Mountain View for 17 years.

Ms. Quinn graduated in 1985 from the University of California at San Diego with a Bachelor of Arts in Psychology and received her J.D. in 1988 from the University of San Diego. She first represented public entities while an Associate at Robinson and Wood, Inc. in San Jose. Ms. Quinn served as a deputy city attorney for the City of San Jose prior to joining the City Attorney’s Office in the City of Mountain View.

357 ANDREW W. SCHWARTZ

Andrew W. Schwartz joined Shute, Mihaly & Weinberger, LLP in 2005 after 22 years in the San Francisco City Attorney’s Office, where he was head of land use and environmental litigation. Mr. Schwartz is a partner with the firm. His practice areas are regulatory takings, eminent domain, real estate transactions, redevelopment, rent control and land use and real estate litigation.

photo by Liza Heider

Mr. Schwartz has been a frequent participant in takings cases as counsel for parties and as amicus curiae. In June 2010, Mr. Schwartz presented the oral argument before an en banc panel of the Ninth Circuit in Guggenheim v. City of Goleta, where the City won an important victory for public agencies compelled to defend mobilehome rent control ordinances and other health, safety, and environmental legislation against takings challenges. He was a member of the firm’s winning litigation team in San Remo Hotel v. City and County of San Francisco, in which the United States Supreme Court unanimously held that unsuccessful state-court takings claimaints are not entitled to relitigate their claims in federal court. Mr. Schwartz authored an amicus curiae brief on behalf of the League of California Cities in the Supreme Court regulatory takings case, Lingle v. Chevron, and contributed to amicus briefing in the eminent domain case Kelo v. City of New London. Mr. Schwartz also co- authored an amicus brief on the merits in the Supreme Court takings case Brown v. Legal Foundation of Washington, involving a challenge to funding legal services for the poor through Interest On Lawyer Trust Accounts (IOLTA). He has argued more than 40 appeals in the state and federal courts and was the lead attorney in more than 20 cases that have resulted in published decisions.

In 1998, Mr. Schwartz co-founded the Community Land Use Project of California, a special project of California's Institute for Local Self Government. The Project assisted local government agencies in preserving an appropriate balance between individual property rights and community interests. Mr. Schwartz regularly consults with the California League of Cities and California State Association of Counties on amicus participation in regulatory takings and eminent domain appellate litigation.

Mr. Schwartz has written numerous articles and books and spoken widely on eminent domain, regulatory takings, and development impact fees. He is a regular presenter on regulatory takings at the annual conference sponsored by Vermont Law School and the civil law conferences of the National College of District Attorneys. From 2000-2005, Mr. Schwartz was an adjunct professor of law at Golden Gate University Law School where he taught a course on Regulatory Takings and Environmental Law. Mr. Schwartz has lectured at Stanford, U.C. Berkeley, UCLA, and Hastings Law Schools. His publications include:

358 • Commentary on Mobilehome Park Owners Failed to State Facial Takings Claim Based on Adoption of Rent Control Ordinance, Guggenheim v. City of Goleta, 2 CAL. ENV. L. RPTR. 106 (2011)

• California CEB, Land Use Practice, with Kenneth Bley, Exactions, Chapter 18

• San Remo Hotel v. City and County of San Francisco: Victory for Local Control of Land Use, 10 CAL. ENV. L. RPTR. 421 (2005) and 12 ENV. LAW IN N.Y. 247 (2005)

• Andrew W. Schwartz, Reciprocity of Advantage: The Antidote to the Antidemocratic Trend in Regulatory Takings, 22 UCLA J. of Envt'l Law & Policy 1 (2004)

• California Municipal Law Handbook, Contributing Editor, 2003 update

• Douglas Kendall, Timothy Dowling, Andrew Schwartz, Takings Litigation Handbook, Defending Takings Challenges to Land Use Regulation (2000); excerpts from the Takings Litigation Handbook have been reprinted in the September 2000 Zoning and Planning Law Report published by West Group (Vol. 23, No. 8) and the Urban Law Journal

• Andrew Schwartz, William Higgins, Institute for Local Self Government of California, The Basics of Takings Law (1999)

• Andrew W. Schwartz, Overripe Takings Claims Produce Rotten Fruit for Regulatory Agencies, Policy Awareness Quarterly, Center for Government & Public Policy Analysis (Winter 1999)

Mr. Schwartz received the County Counsels’ Association of California Litigation Program Award for 2003, the American Bar Association Pro Bono Service Award 2003, and the Daily Journal California Lawyer of the Year Award (CLAY) for 2006. He has been recognized as a Northern California Super Lawyer for 2007-2011, a designation awarded to only the top 5% of Northern California lawyers. He is a member of the Golden Gate Chapter of the Lambda Alpha International Honorary Land Economics Society. Mr. Schwartz received his J.D. from UCLA in 1979, where he was on the Law Review, and his B.A. from Stanford in 1976.

Mr. Schwartz is a member of the Bar of the State of California, the United States Supreme Court, and several other federal courts.

359

Stacey N. Sheston Partner

Stacey N. Sheston is a partner and co-practice group leader of the Labor & Sacramento Employment group at Best Best & Krieger LLP. Prior to joining BB&K in 2010, she was a shareholder, practice group leader, and chief talent officer on the management committee of McDonough Holland & Allen in Sacramento. Sacramento, CA 95814

Ms. Sheston’s practice includes day-to-day employment advice such as dealing P: (916) 551-2099 with problem employees (including discipline and terminations), handling F: (916) 325-4010 [email protected] harassment complaints and investigations, responding to requests for disability accommodations, addressing wage and hour and leave of absence questions, responding to grievances and unfair practice charges, and drafting employment Education agreements, handbooks and policies. On the litigation side, Ms. Sheston represents employers in mediations, arbitrations, administrative hearings and University of California, Davis, J.D. court proceedings (including jury and non-jury trials) arising out of employment (1996) matters including wrongful termination, breach of contract, unpaid wages, harassment, discrimination, and retaliation. Drake University, B.A., cum laude (1990) Ms. Sheston is a member of the State Bar of California, the Employee Relations Policy Committee of the League of California Cities, the Sacramento County Bar Association Labor & Employment Section, Women Lawyers of Sacramento, and the California Public Employers Labor Relations Association. She is also a former editorial chair of, and contributor to, the Personnel Chapter of the Municipal Law Handbook (CEB 2010).

In 2012, Ms. Sheston was named by her peers as a Northern California Super Lawyer for employment and labor law.

Presentations Presenter, “Employment Law Update,” League of California Cities Attorney Division, September 2009, May 2009, September 2008, May 2008 360

Presenter, “Absence Makes the Heart Grow Fonder. . . Update on New FMLA Regulations,” Northern California Employment Law & HR Forum, September 2009 Presenter, “Coping with the Firefighters Bill of Rights,” April 2008 Presenter, “Wage & Hour Issues,” Council on Education & Management, Sacramento, 2005 Presenter, “Workplace Harassment & Internal Investigations,” Council on Education & Management, Sacramento, 2005 Presenter, “AB 1825 / Harassment Prevention Training,” (frequent) Presenter, “How to be a Better Supervisor,” (frequent) Presenter, “Local Agency Labor Negotiations 101” (frequent)

361 Public Law Group Renne Sloan Holtzman Sakai LLP http://www.publiclawgroup.com

Jeff Sloan

Partner

t: 415.678.3806 f: 415.678.3838 [email protected] Experience

Mr. Sloan is a labor lawyer with almost 30 years of experience in labor law litigation and labor relations projects for a broad range of California local agencies. His work spans writ and appellate litigation, collective bargaining negotiations, interest arbitration, "rights" arbitration, investigations, training, strike planning and strike injunctions, disciplinary matters, consideration of closure of public operations, strategic change initiatives regarding health benefits programs and retirement benefits, and EEOC and DFEH complaints. Practice Areas Advising elected officials and labor relations/personnel professionals on this Employment Law & Litigation broad range of issues is a regular component of his work. Mr. Sloan has Labor Relations & Labor Law been a strong contributor to the development of California public sector law Training Workplace throughout the course of his career. He is responsible for over 25 published Investigations decisions from the California Court of Appeal and Supreme Court covering a wide variety of innovative labor and employment law developments. Mr. Education Sloan's commitment on behalf of public agencies is further reflected by his pro bono work. Along with managing partner Charles Sakai, he represented University of California, Hastings the League of California Cities and the California State Association of College of the Law, J.D. San Counties before the Public Employment Relations Board when it Jose State University, B.A. promulgated regulations implementing SB 739 (conferring PERB jurisdiction on cities, counties, and special districts for labor disputes arising under the Bar Admissions Meyers Milias Brown Act). He recently represented the League of California Cities as amicus counsel before the California Court of Appeal, Fifth District, California in Sacramento Police Officers Association v. City of Sacramento. Related Experience

Mr. Sloan previously served as the General Counsel to the California Public Employment Relations Board ("PERB"). He was appointed to the position by the governor, after having served as Assistant General Counsel to PERB for four years. While with PERB he supervised the Board's investigative and litigation divisions, and handled complex litigation and injunctions in state trial and appellate courts. He has represented public sector management since leaving PERB in 1987. Selected Presentations and Publications

Conducting Effective Personnel Investigations: An In-Depth Manual for California Public Sector Employers, Author California Public Sector Labor Relations, Co-Author (Mathew Bender)

362

Powered by TCPDF (www.tcpdf.org) Ms. van Muyden is the General Counsel for the Community Development Department of the City of Glendale, California, which includes the City’s Planning, Housing, Building & Safety, and Economic Development Divisions. She also advises Glendale’s new Successor Agency to the former Redevelopment Agency, for which she previously served as the General Council. Ms. van Muyden currently serves as an advisor to the State Bar Real Property Law Section Executive Committee and currently chairs the League of California Cities City Attorney’s Department Post-Redevelopment Working Group. She was the Chair of the Executive Committee of the Real Property Section of the California State Bar (2010-2011) and Vice-Chair (2009-2010). From 2006-2008 she was the Managing Editor of the California Real Property Journal, a quarterly publication of the Real Property Law Section of the State Bar of California. Ms. van Muyden has been an invited speaker for the Independent Cities Association, the California Redevelopment Association, the Crocker Business and Legal Issues Symposium, the Glendale Bar Association and for the State Bar of California on redevelopment, land use planning, CEQA and municipal law issues. She received her B.A. in Geography from U.C. Berkeley, an M.P.A. (with distinction), from California State University, Northridge, and J.D. from Pepperdine University School of Law. She is also a graduate of the Josephson Institute program on Ethics in Public Service.

363 Richard S. Whitmore Partner

San Francisco

[email protected] Tel: 415.512.3000 Fax: 415.856.0306

Richard (Dick) Whitmore began representing management in public sector employment matters in 1970 as Assistant City Attorney for the City of Sunnyvale. He was the founding partner of Whitmore, Kay & Stevens (1976) and Whitmore, Johnson & Bolanos (1991). Following the merger of Whitmore, Johnson & Bolanos with Liebert Cassidy, Dick became a name partner in Liebert Cassidy Whitmore.

Although partially retired, Dick continues to advise and consult with public agencies on negotiations, factfinding, arbitration, mediation and related labor relations matters. He is providing training for public agencies like the League of California Cities and CALPELRA. He is also serving as a mediator, factfinder, and arbitrator, both as a neutral and as a management representative on tripartite panels.

Education JD, Stanford University School of Law BA, Stanford University

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Publications

Public Employees and Free Speech, California Lawyer Magazine, October 2010, with David Urban

Further Storm Warnings in the Territory of Retiree Health Care Benefits, CPER Journal, August 2007

What is the Duty to Accommodate the Disability of Public Safety Applicants and Employees?, The Recorder / Cal Law, May 2007

Employee Religious Rights and Sexual Harassment: Competing Policies, CPER Journal, April 2007

9th Circuit Protects Employees From Harassment by Religious Co-Workers, LADJ, April 2006

When Is Offensive Workplace Language, Conduct Part of Job?, Los Angeles Daily Journal & San Francisco Daily Journal, November 2004

Presentations

Employment Law Update - Placer County Police Chiefs - Roseville - September 12, 2012

Labor and Employment Legislation Update - League of California Cities Annual Conference - San Diego - September 7, 2012

Public Sector Employment Law Update - League of California Cities Annual Conference - San Diego - September 6, 2012

The Road Ahead: Impasse Process from Declaration Through Post-Factfinding - CA Public Employers Labor Relations Assoc. Labor Relations Academy 9 - Pleasanton - August 10, 2012

The Factfinding Law - AB 646 - California Public Employer Labor Relations Association - Pleasanton - January 31, 2012

The Factfinding Law - AB 646 - California Public Employer Labor Relations Association - Rocklin - December 9, 2011

The Factfinding Law: AB 646 - California Public Employer Labor Relations Association Academy - Monterey - November 28, 2011

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RUTHANN G. ZIEGLER

Ruthann Ziegler is a founding Principal of the firm’s Sacramento office and has over 25 years of experience in public law, representing municipalities and special districts.

In addition to her leadership role in the firm, Ruthann maintains an active legal practice. She represents clients in all matters affecting local governance and decision-making, from day-to-day operations to long-term policy issues. She regularly advises clients on issues such as rate setting, public contracts and bidding, land use, the Subdivision Map Act and environmental issues.

Ruthann G. Ziegler Currently, Ruthann serves as city attorney and general Principal counsel for several cities and special districts in Northern

555 Capitol Mall, Suite 1200 California. She has served as City Attorney of Citrus Heights Sacramento, CA 95814 since its incorporation in 1997 and has worked with several municipal incorporation committees. Her other clients have T: 916.556.1531 F: 916.556.1516 included public utility districts, power agencies, community [email protected] services districts, fire districts, water districts and joint powers agencies. Practice Groups Education Law Ruthann is frequently invited to speak before attorneys, Municipal and Special District Law associations of special districts, municipal law organizations Public Contracts and Construction and others. Topics on which she speaks often include the Brown Act, AB 1234, the California Public Records Act and Public Power and Telecommunications land use issues. California Bar Number 88854 The Daily Journal named Ruthann as one of the “Top 25

Education Corporate and Transactional Women Lawyers” in California University of California at Davis, JD for 2011. Also in 2011, the League of California Cities Yale University, BA selected Ruthann among a number of applicants to serve on the City Attorney’s Department new Ad Hoc Medical Practicing Since: 1979 Marijuana Committee to inform public agency representatives in this new area of law. And finally, Ruthann was selected by the Daily Journal as one of the “Top 25 Municipal Lawyers in California” for 2011.

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Published Decisions

• Placer County Local Agency Formation Commission v. Nevada County Local Agency Formation Commission, et al., 135 Cal.App.4th 793, 37 Cal.Rptr.3d 729 (2006) • County of San Bernardino v. City of San Bernardino et al., 15 Cal.4th 909, 64 Cal.Rptr.2d 814 (1997)

Representative Matters and Experience

Cortese‐Knox‐Hertzberg Act

Ruthann has represented dozens of citizens’ groups, special districts and cities in proceedings involving LAFCOs in various counties throughout California. Issues have concerned revenue neutrality, tax sharing agreements, incorporations, annexations, reorganizations, consolidations and mergers.

Construction Disputes and Resolution

When the developer walked away from a multi-million dollar redevelopment project, Ruthann negotiated with the competing interests of the bank, which held a promissory note on the underlying real property, and the construction contractor and its many subcontractors. The end result was the Redevelopment Agency owning the project free and clear from the bank, with the project scheduled for completion during 2010.

Rate Setting and Financing Alternatives

California laws have become increasingly complex as to rate setting, noticing, Proposition 218 voting requirements, fees, assessments and taxes. Ruthann helps clients analyze the various options available and implement financial options in a legally defensible and practical manner. Most recently, she has worked with Joint Powers agencies to secure funding for and implementation of regional transportation improvement projects.

Development Agreements, Environmental Analyses, Power and Land Use Issues

Ruthann has worked with a variety of clients on a broad spectrum of land use issues, including negotiating development agreements, analyzing land use entitlements, and coordinating the securing of adequate financing to offset the impacts from new development. She recently helped coordinate the environmental review and permitting of the TransBay Cable project, a project designed to deliver power from the City of Pittsburg to the City and County of San Francisco by a 53-mile-long transmission cable under the San Francisco Bay.

City Attorney

Ruthann was retained by the then-newly incorporated City of Citrus Heights as its first City Attorney, and continues to represent Citrus Heights today. Upon incorporation, she worked with the new council members, staff and consultants on the multitude of issues facing newly

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incorporated cities, including revenue neutrality and implementing service agreements to assure the City’s residents of high quality, economical services.

First Amendment Issues

One of the first challenges faced by the newly incorporated City of Citrus Heights was litigation filed by owners of existing and proposed adult businesses within the City. Ruthann and the City successfully negotiated settlement, resulting in those non-compliant businesses no longer operating within the City.

Emergency Medical Services

Ruthann successfully defended the City of Sacramento, emergency ambulance service providers, and the 911 Sacramento area regional communications center in federal court litigation challenging the right of those defendants to provide emergency ambulance transport. The lawsuit also resulted in plaintiffs paying damages to the City of Sacramento in the amount of $850,000.

Professional Affiliations

• Member, The State Bar of California • Member, Ad Hoc Medical Marijuana Committee, City Attorney’s Department, League of California Cities • Past President, Women Lawyers of Sacramento • Past Chair, Environmental Law Section, Sacramento County Bar Association • AV rated attorney, as recognized by the Martindale-Hubbell Law Directory • Past Editorial Board Chair, past Editor, and past Chapter Author, California Municipal Law Handbook, League of California Cities

Publications and Presentations

Ruthann gives several presentations and training seminars each year on various topics. Groups to which she has presented include the League of California Cities, California Special Districts Association, California Association of Sanitation Agencies, California Mining Association and California Joint Powers Association, Lorman, NBI, and clients. Topics include the following:

• Brown Act (Open Meeting Law) • LAFCO • California Public Records Act • Land use issues • Conflicts of interest • CEQA compliance • AB 1234 training • Fees, assessments and Proposition 218

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September 2012 League of California Cities Annual Conference City Attorneys’ Track Item No.: 1929 Price: $55.00