Best Best & Krieger News Feed

Eminent Domain Litigation Paralegal - Riverside Office

22 May 2013 00:00:00 -0800

The Eminent Domain Group has an immediate opening for an experienced litigation paralegal with strong trial preparation skills. Duties will include preparation of pleadings, motions, notices, and subpoenas; organization of case files, including discovery and trial notebooks; deposition preparation; communications with opposing counsel, clients, expert witnesses, and court personnel; and all phases of trial preparation. Must be detail oriented and comfortable working in a fast-paced environment as part of a team. Eminent Domain experience preferred, but not required. Candidate will be based in the Riverside office.

Jennifer Maguire
Paralegal Manager
Best Best & Krieger LLP
500 Capitol Mall, Suite 1700
Sacramento, CA 95814
Jennifer.Maguire@bbklaw.com
Fax: (916) 325-4010

Former Military Attorney Joins BB&K’s Municipal Law Practice

22 May 2013 00:00:00 -0800

For Immediate Release: May 22, 2013
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

IRVINE, Calif. _ Jake Vollebregt, a captain in the U.S. Marine Corps where he served as a military attorney, has joined Best Best & Krieger LLP as an associate attorney in its municipal law practice.

Vollebregt was stationed at Camp Pendleton in northern San Diego County during his four years on active duty. He served one of those years in Afghanistan where as a military attorney he oversaw the contracting for government procurement of goods, services and real estate for U.S. and coalition forces operating in Helmand and Nimroz Provinces.

In addition, he advised on contracts, military construction and environmental regulatory compliance for private land leases and bases closures and transfers. As a deployed judge advocate, he also adjudicated claims against the United States under the Foreign Claims Act.

“We are honored to have someone with Jake’s legal and military background join our firm,” said Scott Smith, a BB&K partner who serves as city attorney to Aliso Viejo and Lake Forest.

At BB&K, Vollebregt will assist municipal clients in Orange County, with a focus on development and land use projects.

“I was drawn to BB&K because of its commitment to public service and the opportunity to leverage the resources of a national firm for the benefit of Southern California communities,” Vollebregt said. “Many of the firm’s clients are local governments and agencies working for the common good, and I see my role in helping those clients as an extension of my military service to the country.”

Vollebregt, 30, of San Clemente, received his law degree from Chapman University School of Law in 2008. He is a graduate of the Naval Justice School in Newport, R.I. and completed several courses at the U.S. Army JAG Law Center & School in Charlottesville, Va., the U.S. Air Force JAG School in Montgomery, Ala., and the U.S. Marine Corps Expeditionary Warfare School in Quantico, Va.

Vollebregt concluded his active service but remains a member of the Marine Corps Forces Reserve.

U.S. Supreme Court Allows FCC to Determine its Own Authority

21 May 2013 00:00:00 -0800

The United States Supreme Court issued its decision in City of Arlington v. FCC, ruling that if an agency has general rulemaking or adjudicative power under a statute, courts must defer to all of the agency’s reasonable interpretations under the statute, including those about the scope of the agency’s own authority. The case involved the Federal Communications Commission (FCC), but the principle would apply to many federal agencies whose rules affect local governments.

The decision leaves in place the Fifth Circuit’s opinion upholding the FCC’s rules, which both forbid local governments from rejecting a cell tower application due to the presence of another carrier and require local governments to act on applications within defined “shot clocks.” The decision’s most immediate effect related to communications issues is to make it more important for local governments to participate at the federal level to protect their interests. Notably, we expect the FCC to issue new cell tower siting rulemakings soon.

The decision settles a long-standing administrative law issue. Under the “Chevron” doctrine, a court reviewing an agency action first asks whether the law is clear; if not, the court defers to the agency’s reading and upholds its reasonable implementing regulations. Petitioners argued that this general “deference” rule could not constitutionally apply where the issue is whether the agency has authority to act at all. Otherwise, agencies could define their own powers. However, the Supreme Court (with Justice Scalia writing for the majority) ruled that Chevron does apply to jurisdictional questions.But in something of a concession to petitioners’ concerns, the court also explained that this does not give an agency a free pass to regulate as it pleases. Instead, courts applying Chevron must do so by “taking seriously, and applying rigorously, in all cases, statutory limits on agencies' authority.”

Chief Justice Roberts wrote a powerful dissent, joined by Justices Alito and Kennedy. Calling his disagreement with the majority “fundamental,” the chief justice cites James Madison, Marbury v. Madison, and Chevron itself to defend the jurisdictional test that the local government petitioners had proposed.

The decision is a disappointment, because it gives federal agencies significant additional latitude in defining their own authority. But it is also critical to recognize that this does not mean that the FCC, or any other agency, will have carte blanche to regulate as it pleases. Courts will still "rigorously" review agency claims; they will just do so within the Chevron two-step. The opinion underscores the need for local governments to participate actively before federal agencies, especially at early points, before an agency adopts rules adverse to local government interests. The FCC, for example, had already announced it is considering new rules affecting local zoning authority. While localities will want to participate in the rulemaking, they may also be able to affect the FCC’s direction by meeting with the agency now.

For more information about this decision or its impact on your city, county or special district, please contact Matthew Schettenhelm in Best Best & Krieger’s telecommunications group or your BB&K attorney.

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

Settlement Reached in Riverside County Solar Power Plant Policy Lawsuit

20 May 2013 00:00:00 -0800

Riverside County and the solar developers who challenged the county’s solar power plant ordinance in court came to a tentative settlement agreement, approved by a Riverside judge last week. Before the solar developers drop their lawsuit, the Riverside County Board of Supervisors must accept the agreement’s proposed modifications to the county’s solar power plant policy, including changes in fees, taxes and approval processes. The Board of Supervisors will consider the agreement and the proposed policy modifications on May 21st.

The proposed solar plant policy only applies to plants with a rated production capacity of more than 20 megawatts and where more than 50 percent of the electricity generated will be used at locations other than the site of the solar power plant. The proposed policy modifications include lowering the annual per acre fee charged to solar power plant owners from $450 to $150, with two percent annual increases starting in 2014. It also requires each solar plant to ensure the maximum allowable sales and use taxes generated by plant construction go to the county, through the inclusion of certain contract provisions and requirements mandated by the policy. In addition, the policy will require that the county establish a program to expedite review and approval of any county agreements and permits needed for siting, developing and operating solar power plants.

Under the proposed policy, solar power plant owners may request an exception from the policy’s requirements, granted upon a finding by the Board of Supervisors of “special circumstances.” These may include a determination that the plant will provide a substantial benefit to the county beyond the payment of taxes or the implementation of mitigation measures, but cannot include financial or economic hardship.

For further information on how the settlement agreement may affect your organization, please contact Renewable Energy attorneys Sophie Akins or Robert Hargreaves, or your BB&K attorney.

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

Deed of Trust Security Prevents Merger of Estates

20 May 2013 00:00:00 -0800

A California Appellate Court recently determined that a lender taking a security interest in both California real property and an easement benefiting such real property by recording a deed of trust does not lose its security interest in the easement because of the borrower’s subsequent acquisition of fee title to the property burdened by the easement. In other words, on foreclosure of the deed of trust security, the purchaser at the foreclosure sale will acquire both the real property security and the benefiting easement right.

The Appellate Court in Hamilton Court, LLC v. East Olympic, L. P. determined that in Californiathe union of a lesser and greater estate in real property does not result in a merger of such estates where the result would be an injustice, injury or prejudice to a third person. The Appellate Court further stated that whether or not there has been a merger of real property estates depends on the actual or presumed intention of the parties. An agreement between the parties that there will not be a merger will usually be respected and enforced.

Lenders taking deed of trust security interests in California real property should make clear in the deed of trust and other loan documents the intent of the lender and borrower that any easement or other right benefiting the real property security will not be extinguished by the borrower subsequently acquiring title to the burdened property.

In Hamilton Court, a seller of real property took back a note for the purchase price that was secured by a deed of trust against the property and an easement benefiting the property. Subsequently, the purchaser of the property also acquired title to the property burdened by the easement. After the seller reacquired title to the property through foreclosure, the purchaser sued to quiet title to the property burdened by the easement that was still owned by the purchaser. In the note and deed of trust, the seller and purchaser had agreed, essentially, that the purchaser’s subsequent acquisition of the property burdened by the easement would be subject to the seller’s deed of trust and would not affect the priority of the deed of trust. The Appellate Court reasoned that, in the absence of a merger of the fee estate and easement in the purchaser’s ownership, the seller would have had a first priority security interest in the easement, but with such a merger the seller would have no interest in the easement, which would be inconsistent with the intent of the agreement between the seller and purchaser.

For further information on this decision or any other real estate matters, please contact Delmar Williams, another attorney in our Real Estate group, or your BB&K attorney.

Developers in California Should Be Aware of Changes in the Regulatory Landscape

20 May 2013 00:00:00 -0800

By Seth Merewitz

Land developers in California are a recovering species and are no longer on the endangered list. However, while the economic environment is improving, the regulatory landscape is becoming increasingly complex.

California’s real estate market is not (yet) hot, but it is no longer frozen solid. Signs of this thawing include efforts to revive projects started in the boom times that have sat half-built for many years. Other projects, approved years ago but placed on hold waiting for better economic times, are now moving forward. We are even working on new entitlements.

While projects are being examined to respond to changing preferences in the marketplace and to new financing realities, developers also have new legal requirements. Many of these new laws and regulations emerged over the past few years when little development was taking place.

Click here to read the entire article on The Press-Enterprise website.

AB 1825 Sexual Harassment Avoidance Training

16 May 2013 00:00:00 -0800

California's Fair Employment and Housing Act, pursuant to AB 1825, requires that employers with fifty or more employees in California provide at least two hours of Sexual Harassment Avoidance Training every two years to any employee that has a supervisory role in operations. This presentation is designed to satisfy those requirements.

Joseph Ortiz will be presenting the training from the Riverside office. All other BB&K offices will participate in the training via state-of-the-art video conferencing. The video conference is interactive, allowing attendees to ask questions and participate in other ways.

What will be covered:

What constitutes sexual harassment or discrimination in the workplace
How to recognize and avoid it
What procedures to follow if you witness harassment or are harassed yourself
The potential consequences - including personal liability - of sexual harassment

Who should attend:

Supervisors
Human Resources Professionals
Public Officials
Managers & Private Business Professionals with 50 or More Employees

When:
Thursday, May 16
3:00pm - 5:00pm

Registration:
CLICK HERE TO REGISTER

The training will be also be held via video conference at the following BB&K Offices throughout CA. When you register you will select which office you will select where you plan to participate in the training.

Indian Wells
Irvine
Los Angeles
Ontario
Riverside – Joseph Ortiz will be presenting from the Riverside office
Sacramento
San Diego
Walnut Creek

Cost is $75 per person. *Payment by check must be received before or on the day of the session.

BB&K Presenter:
Joseph Ortiz, Partner, Labor & Employment Practice Group in Riverside office

QUESTIONS:
Contact Katey Lamke if you have any questions about this event and/or about BB&K upcoming seminars/events.

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Employers Must Notify Employees of the Availability of Health Insurance Exchanges

15 May 2013 00:00:00 -0800

The Patient Protection and Affordable Care Act added Section 18B to the Fair Labor Standards Act (FLSA), requiring employers to give notice to employees of the coverage options available through state insurance exchanges. Employers must distribute these notices to all current employees no later than October 1, 2013, and to new employees hired on or after October 1, 2013 at the time of hire. The Department of Labor (DOL) recently released model notices that employers may use to provide the required notice.

All employers subject to the FLSA must provide notice of coverage options available through the state health insurance exchanges (e.g. Covered California in California). Section 18B of the FLSA (Section 18B) sets forth specific information that must be included in the notice. It must describe the services provided by the state health insurance exchange and its contact information. The notice must also describe the circumstances under which the employee may be eligible for a premium tax credit and cost-sharing reduction if the employee purchases insurance through the exchange. Additionally, the notice must inform the employee that if he or she purchases insurance through the exchange, he or she may lose any employer contribution for group health coverage offered by the employer which, if used by the employee, may be excludable from income for federal income tax purposes.

The DOL has issued two different model notices, one that may be used by employers who offer health coverage to employees and the other that may be used for those who do not offer coverage. Though the model notices do not contain the level of specificity that Section 18B appears to require, the DOL has indicated that these notices may be used until further guidance and/or regulations are issued. An employer may opt to distribute a customized notice, but it must meet the specific requirements outlined in Section 18B. Notices may be provided by first class mail, or, if certain conditions are met, electronically.

For questions about these notice requirements or the implementation of the Patient Protection and Affordable Care Act, please contact John Wahlin, Isabel Safie or Allison De Tal in the firm’s Employee Benefits practice group, or your BB&K attorney.

Little-Used State Laws in California Can Help Keep Weapons Off the Street

14 May 2013 00:00:00 -0800

By Laura L. Crane and Paul A. Cappitelli

Gun violence is rampant in the news. The Columbine High School massacre in Colorado that left 12 students and one teacher dead, set the scene for school shootings in 1999, and we have seen them continue through the Newtown, Connecticut tragedy last December. With the theater shooting in Aurora, Colorado that left 12 people dead and 58 injured by a gunman armed with multiple firearms and the shooting of U.S. Rep. Gabrielle Giffords and others at an Arizona strip mall, some citizens no longer feel safe to go about their daily lives.Calls for revised gun control laws have stalled in Congress. What people are failing to notice, however, is that there are already laws available, at least in California, that can help in preventing such tragedies.

News reports regarding the perpetrators of these mass shootings undoubtedly include storied tales of prior mental illness. Such was the case with Patrick Purdy, a mentally ill drifter who killed five schoolchildren and wounded 31 others at a Stockton elementary school in 1989. And with the Virginia Tech shooter, Seung-Hui Cho, who was detained overnight at a hospital prior to committing the nation’s deadliest school shooting that left 32 people dead in 2007. Cho was hospitalized after his roommate became concerned when Cho threatened to take his own life, which he ended up doing after his killing spree.

In California, local entities can use Welfare and Institutions Code section 8102 to protect their residents from those whose mental condition presents a danger to themselves or others. Most jurisdictions are familiar with that code, which is used to remove deadly weapons from persons whom law enforcement, using Welfare and Institutions Code section 5150, has determined present a danger to themselves or others. Most jurisdictions, however, are not using Section 8102 to its most beneficial use. Instead of using the provisions found in Section 8102 to obtain the permanent forfeiture of deadly weapons, many agencies simply return weapons seized during a 5150 detention.

Welfare and Institutions Code section 8102 allows law enforcement to seize weapons from persons found to be a danger to themselves or others. Its greatest secret, however, is that it also allows law enforcement agencies to seek a judicial determination that those weapons never be returned. If such a determination is made, the deadly weapons seized under Section 8102 are forfeited to the law enforcement agency to be destroyed and therefore removed from the streets forever. Even seasoned law enforcement officers may be unaware of this remedy, thinking that all they can do is hold their breath and hope that no one is harmed when a known violent person retains their weapons.

To take full advantage of Section 8102, law enforcement agencies need to initiate a petition with the appropriate Superior Court within 30 days of the detainee’s release from a mental institution. The detainee then has 30 days to request a hearing from the Superior Court.

If the detainee fails to request a hearing, then the law enforcement agency can obtain a default order forfeiting the weapons to the department to be destroyed. If the detainee requests a hearing, then a hearing must be set within 30 days of the request.

A hearing under Section 8102 is generally a simple matter. Typically, the officer who concluded that the detainee presented a danger to themselves or others will testify as to the events leading to this determination. The detainee’s medical records are usually presented to the court, and the detainee will generally offer the reasons why the weapons should be returned to them.

Regardless of the outcome, a hearing under Section 8102 is a win for the initiating law enforcement agency. If the court determines that returning the deadly weapons is likely to present a danger to the detained person or others, then the weapons are forfeited to the law enforcement agency for destruction – an obvious victory. On the other hand, if the court determines that returning the deadly weapons to the detained person is not likely to result in danger to that person or others, the law enforcement agency can indicate that it did everything it could to protect the public should an event occur following the court’s determination that the weapons should be returned.

A similar statutory scheme exists under the California Penal Code to obtain the permanent seizure of weapons taken from the scene of a domestic violence incident. Domestic violence incidents can turn deadly and often involve harm to the responding law enforcement officers. However, law enforcement agencies do not always use the tools available to their greatest benefit in these situations.

Similar to Welfare and Institutions Code section 8102, the majority of law enforcement agencies are seizing deadly weapons discovered when responding to a domestic violence incident involving a threat to human life or physical assault. However, many of these agencies may not be seeking the permanent forfeiture of these weapons as provided for under the Penal Code. Instead, they are returning the weapons to the streets presenting a potential source of harm to all involved, including law enforcement, in the future.

Penal Code section 18400 allows law enforcement agencies to seek a judicial determination of whether the deadly weapon(s) seized in a domestic violence incident should be returned. Unfortunately, this statutory scheme has a few differences from Welfare and Institutions Code section 8102 that make it somewhat less useful.

First, a petition can only be initiated under Penal Code section 18400 when “a law enforcement agency has reasonable cause to believe that the return of a firearm or other deadly weapon seized … would be likely to result in endangering the victim or the person who reported the assault or threat …” Thus, unlike with Section 8102, the law enforcement agency cannot simply make a policy decision to seek a judicial determination in every situation.

Second, Penal Code section 18410 requires that the court order the law enforcement agency to pay the other side’s attorneys’ fees should the law enforcement agency fail to show by a preponderance of the evidence that the return of the deadly weapon(s) would result in endangering the domestic violence victim or the person reporting the assault or threat. This requires a careful analysis of the evidence prior to putting the matter before the court.

These two under-utilized statutory schemes provide law enforcement agencies valuable tools to assist them in protecting citizens across California. Without using them to their full effect, law enforcement agencies and the public entities funding them, risk not being able to assure their citizens that they truly are doing everything they can to keep them safe from gun violence.

Laura L Crane is a trial lawyer in the Ontario office of Best Best & Krieger LLP, where she is a member of the law firm’s public safety and municipal law practice groups. Crane is the firm’s expert in weapon confiscations, having handled or supervised hundreds of weapon confiscation petitions. She can be reached at laura.crane@bbklaw.com

Paul A. Cappitelli is a law enforcement specialist at Best Best & Krieger LLP. Retired as a San Bernardino County sheriff’s captain after 29 years with the department, he served as executive director of the California Commission on Peace Officer Standards and Training, known as POST, from 2007 through 2012. He can be reached at paul.cappitelli@bbklaw.com.

* This article was republished with permission from PublicCEO, May 14, 2013.

Power Plant Project Suspended After California Public Utilities Commission Ruling

10 May 2013 00:00:00 -0800

In a ruling that highlights how California Public Utilities Commission (CPUC) decisions can have broad impacts on proposed power projects, the CPUC recently denied San Diego Gas & Electric Company (SDG&E) the authority to enter into a power purchase tolling agreement for the Quail Brush Energy Project proposed near Santee in San Diego County. As a result, Quail Brush Genco, LLC, suspended its California Energy Commission (CEC) application for a license to operate the plant pending its evaluation of opportunities to move forward with its project.

The Quail Brush Energy Project was proposed as a new 100 MW gas-fired peaking power plant located in the City of San Diego next to the City of Santee. Quail Brush Genco, LLC sought authorization of the project from the CPUC for a power purchase tolling agreement, and a license from the CEC to operate the plant.

On March 28, 2013, the CPUC issued its ruling, Decision 13-03-029, denying SDG&E’s request for a power purchase tolling agreement. The CPUC found it was not reasonable to authorize the purchase of local capacity because the need for incremental local capacity would not exist until 2018—four years into the 20-year power purchase tolling agreement. However, SDG&E was given the opportunity to return and request future authorization, if it could demonstrate that there was a need for the energy at that time.

In the same decision, the CPUC authorized SDG&E to enter into a power purchase tolling agreement related to the Escondido Energy Center—a project that had a “small size, high viability and environmental benefits from its repower” within an existing facility. The CPUC cited its history of encouraging increased efficiency and repowering existing facilities, which would result in less environmental impacts and savings to the ratepayers.

Upon finding that the CPUC denied SDG&E’s Quail Brush application, the California Energy Commission requested that Quail Brush Genco, LLC explain whether the project could be revised to maintain its viability for review and approval. On April 8, 2013, Quail Brush Genco, LLC instead requested a 12-month suspension to assess opportunities for the project to move forward in light of the CPUC’s decision. These decisions not only show how separate commission decisions are interrelated and can impact proposed power projects, but they highlight certain project aspects that should be considered when seeking CPUC or CEC approval.

If you have any questions about the Quail Brush Energy Project or CPUC or CEC proceedings, more generally, please contact Sophie Akins in the firm’s California Public Utilities Commission group or your Best Best & Krieger LLP attorney.

BB&K Police Chief Bulletin: Pitchess Motions

10 May 2013 00:00:00 -0800

Overview: A California appellate court recently ruled that, during the in camera review of peace officer personnel files following a Pitchess motion, the reviewing court must examine the actual records brought by the custodian of records and not rely simply on the custodian’s opinion or representation of whether any discoverable information exists. The court also ruled that the defendant had shown good cause for discovery of past complaints of dishonesty and false reporting, but not excessive force under the facts of the case.

Training Points: This is a significant case in the development of Pitchess authority because it impacts what custodians of records can expect during the in camera review following a good cause determination on a Pitchess motion. Now the trial court must actually review the documents brought by the custodian. Prior to this case, some courts simply asked the custodian whether anything within the scope of review was present in the file of the named officer and then relied upon that representation without conducting a detailed review of all documents brought. That process is no longer acceptable and may have an impact on the criminal proceedings if the defendant appeals. With this ruling, the decision of what to bring to the court becomes more important. Custodians have discretion as to the types of documents that they may bring but they must be able to explain to the court why any documents were not brought for inspection. On the one hand, agencies want to be forthcoming in providing documents for review by the court in camera that may be responsive to the areas of inquiry in a Pitchess motion. On the other hand, Pitchess motions are usually “kitchen sink” motions that ask for every possible type of misconduct, even though most have no relevancy to the specific case. Agencies should consult with their counsel to develop best practices for identifying the portions of a personnel file that may contain Pitchess information, and to develop proper explanations for why the remaining portions of a personnel file were not brought for inspection, upon inquiry by the reviewing court.

Summary Analysis: In Sisson v. Superior Court, Sisson was charged with a provocative act of murder and assaulting police after nine officers cornered his car and shot his front seat passenger. Sisson filed Pitchess motions seeking discovery of the officers’ personnel files for complaints of excessive force, dishonesty and fabrication of charges. The trial court conducted an in camera review of three records and found discoverable information in two. The appellate court reversed in part, directing the trial court to review the records of eight officers and eventually found that past acts of dishonesty were relevant, but prior instances of excessive force were immaterial. Finally, the trial court was required to examine the actual documents presented, not rely simply upon the custodian’s representations.

Harrisburg Charged With Securities Fraud

09 May 2013 00:00:00 -0800

The inclusion of the public statements of an elected official in allegations of securities fraud could change the traditional relationship between the politicians and their constituency versus issuers and the bond market. Monday, Harrisburg, Pa. made history as the first municipality charged with securities fraud for misleading statements made outside of its securities disclosure. Pennsylvania’s capital, a distressed municipality currently in receivership, failed to provide continuing disclosure, including audited financial statements or material event notifications from 2009 to 2011. Harrisburg is also charged with making misleading statements about its downgraded credit rating and outstanding debt payments. The SEC claims that Harrisburg created an “information vacuum” forcing investors to rely on other public statements, including the Mayor’s State of the City address, which misrepresented the city’s finances.

The charges set a precedent for all municipalities required to disclose material market data, including yearly budgets and comprehensive financial reports, on the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access system. Under the Securities and Exchange Act of 1934, municipal issuers have an ongoing duty to provide accurate and timely public disclosures that inform the trading decisions of market investors. Any information “reasonably expected” to reach the securities market cannot be misleading, even if the statements are not “explicitly intended” for investors. Harrisburg’s adopted budget, posted on the city’s website and the former mayor’s 2009 State of the City address, allegedly fell under these criteria and drove investors to make decisions based on “inaccurate and stale” information. In the corporate sector, public statements by CEOs are often vetted by lawyers and accountants.

Rule 15c2-12 sets forth disclosure obligations relating to municipal issuers and is designed to provide accurate information to investors after bonds have been issued and to prevent fraudulent, deceptive or manipulative practices. The SEC’s investigation of Harrisburg focused on its failure to comply with its continuing disclosure requirement, misstatements regarding payment of $455 million in debt which it had guaranteed, and reference to this “additional challenge” as one that could be “resolved.” Harrisburg has not admitted or denied the SEC findings, but has agreed to desist from future violations and is cooperating with the Commission in taking steps to strengthen transparency. Issuers of public debt should be on notice that non-compliance with continuing disclosure requirements could create an environment in which the investment community relies on public statements.

For more information on this case or its implications for your agency, please contact Public Finance attorney Kim Byrens or your Best Best & Krieger attorney.

BB&K Attorney Jeffrey Dunn Interviewed on KQED about California Supreme Court Ruling on Medical Marijuana Dispensaries

08 May 2013 00:00:00 -0800

BB&K attorney Jeffrey Dunn was interviewed by KQED Forum host Michael Krazny for a program examining the California Supreme Court's ruling that local governments have the power to ban medical marijuana dispensaries. The decision upholds bans in about 200 California cities and counties. Dunn argued the case before the justices on behalf of the city of Riverside.

Click below to listen to the interview on KQED Forum.

BB&K Police Chief Bulletin: Discarded Evidence

08 May 2013 00:00:00 -0800

Overview: The Ninth Circuit Court of Appeals recently upheld a conviction for felony firearm possession in a case where the handgun owner discarded the weapon before being seized. The court found that, although an illegal search of the defendant’s backpack ultimately led to the discovery of the gun, the defendant’s failure to submit to arrest was an intervening act that removed any taint from the search and subsequent seizure. Because the defendant discarded the gun before being tackled by police officers, the recovered evidence was not the fruit of an illegal seizure. Finding that these acts distanced the gun from the time of the initial illegal search and the defendant’s legal seizure, the court concluded that the evidence did not require suppression.

Training Points: This case illustrates the importance of establishing sufficient cause for search and seizure throughout an encounter. Here, the suspect attempted to claim that an unlawful seizure occurred when police recovered the handgun that he had thrown away as he fled detention. Even though the initial search was improper—there was no probable cause and no consent—the court still found the seizure of the discarded handgun proper because of its place late in the chain of events and because it followed the lawful arrest. If the suspect had submitted to detention, then it is likely that the gun would have been suppressed. Because suppression or admission can turn on facts not in the mind of an officer under the stress of the event, it is sound practice to fall back to the basics of having sufficient cause for any search or seizure throughout the entire encounter.

Summary Analysis: In U.S. v. McClendon, police responded to a call reporting an unknown car in the caller’s driveway. A nervous woman emerged from the driver’s seat and said that Eddie Ray McClendon had gone to get gas. A search of the car revealed McClendon’s backpack behind the passenger’s seat. Without McClendon’s consent, an officer searched the backpack, finding a sawed-off shotgun, ammunition and drugs. Officers later found McClendon, told him he was under arrest and ordered him to show his hands. McClendon turned and made a flinging motion while walking away. Police tackled him and placed him under arrest. They found a loaded handgun a few feet away. McClendon argued that the gun should have been suppressed as the product of an illegal search and seizure. The court disagreed, finding no seizure until police had tackled McClendon. By failing to submit to arrest, McClendon had lost his right to challenge the gun’s admissibility as the fruit of an illegal seizure. Further, because officers would have looked for McClendon regardless of the backpack, the discovery of the handgun was too remote from the search to be the fruit of an illegal search. Even if the search were illegal, McClendon’s own act of walking away purged any taint from the prior improper search.

Follow-Up Contact: For questions regarding this case or its implications for your agency and public safety department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, public safety attorney, or your BB&K attorney.

California Supreme Court Recognizes Local Authority in Medical Marijuana Case

07 May 2013 00:00:00 -0800

In an unanimous opinion, the California Supreme Court has upheld local laws that regulate or prohibit medical marijuana dispensaries.

California appellate courts have struggled with this issue for several years, handing down differing opinions on the complex interaction of federal, state and local laws in this area. However, yesterday’s decision by the state’s highest court found no state preemption or limitation on traditional municipal zoning authority to regulate marijuana dispensaries under the police power.

The ruling in City of Riverside v. Inland Empire Patients Health and Wellness Center is likely to have far-reaching benefits for California cities and counties as they seek to control the public safety aspects of marijuana distribution. The Supreme Court’s decision is not only a very narrow interpretation of state law regarding marijuana distribution, which it characterized as “narrow and modest,” but also a sweeping ratification of local zoning authority generally. The court’s thorough analysis of the preemption issue leaves much leeway for local agencies to enact local safety and zoning ordinances in a broad range of areas. The widely reported decision could also impact other states as they attempt to resolve sometimes conflicting layers of federal, state and local laws involving medical marijuana.

Best Best & Krieger LLP has provided legal advice and representation to many California cities and counties on the interrelationship of federal, state and municipal regulation of marijuana facilities. BB&K partner Jeffrey V. Dunn successfully argued the state Supreme Court case on behalf of the City of Riverside.

For any questions about how this ruling affects your city or county, please contact Jeffrey V. Dunn in BB&K’s Municipal Law practice group, or your BB&K attorney.

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

California Supreme Court Says Local Governments Have Authority to Ban Medical Marijuana Shops

06 May 2013 00:00:00 -0800

SAN FRANCISCO — The California Supreme Court ruled Monday that cities and counties can ban medical marijuana dispensaries, a decision likely to further diminish the network of storefront pot shops and fuel efforts to have the state regulate the industry.

In a unanimous opinion, the court held that California’s medical marijuana laws — the nation’s first and most liberal — neither prevent local governments from using their land-use powers to zone dispensaries out of existence nor grant authorized users convenient access to the drug.

“While some counties and cities might consider themselves well-suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens,” Justice Marvin Baxter wrote for the seven-member court.

The ruling came in a legal challenge to a ban enacted by the city of Riverside in 2010, but another 200 jurisdictions have similar prohibitions on retail pot sales, the advocacy group Americans for Safe Access estimates. Many were enacted in the past five years as the number of dispensaries swelled and amid concerns that the drug had become too easy to get. A number of counties and cities were awaiting the Supreme Court ruling before moving forward with bans of their own.

Of the 18 states that allow the medical use of marijuana, California is the only one where residents can obtain a doctor’s recommendation to consume it for any ailment the physician sees fit as opposed to for only conditions such as AIDS and glaucoma. The state also is alone in not having a system for regulating growers and sellers.

“The irony in California is that we regulate everything that consumers purchase and consume, and somehow this has been allowed to be a complete free-for-all,” said Jeffrey Dunn, the lawyer who represented Riverside in the successful defense of its ban. “Cities and counties looked at this and said, ‘Wait a minute. We can’t expose the public to these kind of risks,’ and the court recognized that when it comes to public safety, we have independent authority.”

Click here to read the entire Associated Press article on the Washington Post website.

California Supreme Court OKs City Bans on Medical Marijuana Dispensaries

06 May 2013 00:00:00 -0800

For Immediate Release: May 6, 2013
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

SAN FRANCISCO, Calif. _ The California Supreme Court ruled today that cities in the state can ban medical marijuana dispensaries through zoning ordinances.

In the closely watched case of City of Riverside v. Inland Empire Patients Health and Wellness Center, the court said that state law does not preempt local governments from regulating the use of its land. Some 200 local governments across California have bans against medical marijuana dispensaries.

“This ruling assures local governments throughout California that they have the constitutional right to impose bans and to make local land use decisions that suit them best,” said Jeffrey Dunn, a Best Best & Krieger attorney who argued the case on Feb. 5 before the state Supreme Court on behalf of Riverside.

The case centered around the voter-approved 1996 Compassionate Use Act (CUA) and the 2003 Medical Marijuana Program (MMP), which was passed by the California Legislature. Under the CUA, certain individuals may use marijuana for specified medicinal purposes under certain conditions without violating state criminal laws. The Medical Marijuana Program tried to provide guidelines for medical marijuana use and distribution.

“The issue in this case is whether California’s medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana. We conclude they do not,” the court wrote in its decision.

The court went on to say the state laws were meant to protect users from arrest not to limit the authority of local governments.

“Nothing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.”

The court did say future efforts by the Legislature could change the law but for now Riverside’s ordinance is not preempted by state law.

The decision by the state Supreme Court affirmed the earlier ruling by the Court of Appeal, which was also argued successfully by Dunn. The Inland Empire Patients Health and Wellness Center opened its medical marijuana distribution facility in Riverside in 2009.

CPUC Seeks to Revisit Controversial Decision on CEQA Process for Telecommunications Projects

06 May 2013 00:00:00 -0800

After a pause of more than a year, the CPUC has revived its effort to determine whether and how it will conduct environmental review of certain telecommunications projects under the California Environmental Quality Act (CEQA), and whether and how it will share authority over CEQA reviews of those projects with local jurisdictions. The upcoming CPUC rulemaking proceeding will affect whether localities may continue to regulate the placement of wireless facilities (including Distributed Antenna Systems or DAS) in the rights of way. Local agencies need to respond quickly to counter what will surely be a strong push by industry for rules that preempt local authority. Opening comments are due on May 31, and reply comments on June 14.

In a joint ruling released last week to re-launch the rulemaking, CPUC Commissioner Sandoval and Administrative Law Judge Hymes reiterated the CPUC’s position taken in late 2011 that it has authority to preempt the discretionary review and permitting powers of all local land use jurisdictions. The rules ultimately adopted in this rulemaking proceeding to regulate the CEQA process for these telecommunications projects will preempt such local authority.

Among other questions to be addressed in the rulemaking, the CPUC seeks comments on the viability and legality of three alternative approaches to CEQA review of certain telecommunications projects:

Centralized Approach – this is the approach the CPUC initially adopted in this proceeding, in General Order 170, and then later vacated after strong opposition from local interests. General Order 170 included a controversial exemption of Distributed Antenna Systems from CEQA review.

For more background on the decision vacating General Order 170, see: CPUC Rulemaking Could Limit Local Land Use Authority and CEQA Mitigation for Telecommunications Projects

Decentralized Approach – this approach is modeled on the CPUC’s General Order 159-A, adopted in 1996, which generally deferred to local jurisdictions concerning land use and CEQA review of wireless installations such as cell towers.
Two Stage or Hybrid Approach – this approach would give primary authority to local jurisdictions, subject to CPUC standards or guidelines and CPUC review of disputes. These guidelines could have the effect of exempting a wide range of projects, particularly if they are modeled on recent state and federal efforts to limit local authority over the collocation of wireless facilities. These efforts include Federal Communications Commission guidance implementing 47 USC §1455, California Bill AB 162 (action deferred to next year after receiving significant local agency opposition), and environmental legislation awaiting signature in Washington state.

For background on these preemption efforts, see:

For questions about the upcoming CPUC rulemaking proceeding or to find out how to participate, please contact Environmental attorney Charity B. Schiller, Telecommunications attorney Gail A. Karish, or your BB&K attorney.

BB&K Police Chief Bulletin: “Two-Step” Interrogation

03 May 2013 00:00:00 -0800

Overview: The Ninth Circuit Court of Appeals recently reversed a drug conviction in a case where FBI agents deliberately delayed Miranda warnings to induce the defendant’s confession. The court found that the agents had engaged in a custodial interrogation, intentionally delaying Miranda warnings to induce the defendant’s cooperation in the investigation. Using a “two-step” tactic, the agent purposely gave “mid-stream” warnings after the defendant incriminated himself. The court concluded that the line of inquiry inevitably led to a harmful admission that was central to the conviction and should have been suppressed because of the lack of Miranda warnings.

Training Points: This case illustrates the importance of prompt issuance of Miranda warnings prior to conducting a custodial interrogation. Despite several rulings over the years with various interpretations of Miranda, one element has remained consistent: the interrogation environment. The location and setting where an interrogation takes place has a significant impact on whether a reasonable person in the same situation would believe that he/she is free to leave, and, therefore, whether they are in custody for purposes of Miranda. Since courts can take into consideration a number of factors to make a custodial interrogation determination, it usually is best to give the Miranda warnings at the start of questioning to protect the integrity of any information provided by the suspect without concern for whether that information may be used later. The use of false pretenses is risky as the information obtained may be subject to suppression down the road if the court determines that Miranda warnings should have been given.

Summary Analysis: In U.S. v. Barnes, FBI agents were investigating an alleged drug trafficker. In a recorded phone call, an informant arranged to obtain illegal drugs from Michael D. Barnes. The FBI agents did not witness the deal, but the informant gave them a package allegedly received from Barnes and Barnes was indicted on drug charges. A few months later, the agents had Barnes’ parole officer schedule a meeting at which Barnes was required to appear. Rather than the routine check in the lobby, Barnes was searched and escorted through a locked door into the building. There, the agents questioned Barnes for two hours. Before reading his Miranda rights, the agents played the recorded phone call with the informant and said they knew of his role in a larger drug distribution chain. The court found that this closed-door meeting with three officers created a custodial interrogation in which a reasonable person would not have felt free to leave. Further, the agents deliberately waited to give Barnes warnings so that he would “continue talking” about his role in the trafficking. The court said that Miranda warnings were required before, not after, Barnes admitted guilt. The “two steps” yielded evidence necessary to charge another suspect, but should not have been used against Barnes at trial.

Follow-Up Contact: For questions regarding this case or its implications for your agency and public safety department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, public safety attorney, or your BB&K attorney.

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

New Law Provides Resources to Identify Persons Prohibited from Having Firearms

03 May 2013 00:00:00 -0800

Wednesday, Governor Jerry Brown signed into law a bill that provides $24 million to fund the Armed Prohibited Persons System (APPS), the only state database to cross-reference all handgun and assault-weapon owners against criminal records to identify individuals prohibited from possessing a firearm. The bill stems from an estimated backlog of more than 20,000 prohibited owners in possession of over 40,000 firearms in California. Until now, neither the Department of Justice nor local law enforcement had sufficient resources to confiscate the enormous backlog of prohibited weapons.

Senate Bill 140, which takes effect immediately, appropriates funds from a special account of fees paid by gun owners at the time of sale. The $24 million allows the Department of Justice to hire 36 additional agents for APPS, increasing enforcement operations in Los Angeles, San Francisco, Sacramento, Fresno, and Riverside counties. These counties can soon expect more agents, law enforcement and support staff to take back firearms from prohibited owners and better track them through APPS’s automated system. In the APPS database, people who previously purchased one or more guns may later become prohibited if they are convicted of a felony or violent misdemeanor, are under a domestic violence restraining order, or found mentally unstable.

Unique to California, the APPS system may be used as the model for a national grant program allowing other states to start their own automated database.

This new law does not affect cities’ ability to seize weapons from those who are found to be a danger to themselves or others (under Health and Safety Code section 8102), or are involved in a domestic violence incident meeting the criteria of Penal Code section 18250. It also does not affect cities’ ability to seek the forfeiture of these weapons regardless of the persons’ ability to own or possess firearms.

For more information on the new law or how it will affect your agency, please contact Municipal attorney Laura Crane, Public Safety attorney Ross Trindle or law enforcement specialist Paul Cappitelli, or your BB&K attorney.

Pending California Legislative Proposals to Enhance School Safety

03 May 2013 00:00:00 -0800

The California Legislature has introduced a variety of bills under the heading of “safe schools.” It is, of course, difficult to predict which bills will be adopted, especially this early in the legislative cycle. However, it is important to be aware of the range of proposals. Following the Assembly and Senate Education Committees’ hearings on May 1, the status of the bills are as follows:

AB 514 (Bonta), The Safe Schools For Safe Learning Act of 2013, passed Education Committee as amended, referred to Appropriations Committee for further consideration. AB 514 would require the Superintendent of Public Instruction (SPI) to include on his Internet Web site a list of statewide resources for youth who have been affected by gangs, gun violence and psychological trauma.
AB 549 (Jones-Sawyer), Comprehensive School Safety Plans: Adult Role On Campus Guidelines, passed Education Committee as amended, referred to Appropriations Committee for further consideration. AB 549 would require the comprehensive school safety plan to establish guidelines for the roles and responsibilities of mental health and intervention professionals, police and school resource officers on campus.
AB 699 (Donnelly) School Safety: Safe School Guarantee, reconsideration granted. AB 699 would express legislative findings and declarations of the Legislature with respect to school safety, and would allow a parent or guardian of a public elementary or secondary school pupil to remove his or her child from an “unsafe” school and enroll his or her child in another school within the same school district or a school in another district if no safe school exists in the district. Currently, the bill is drafted in a way that defines an “unsafe” school as one in which a pupil has been suspended or expelled for any of nine specified offenses, or one in which an employee has committed certain acts.
SB 49 (Lieu) School Safety Plans, read second time and amended, re-referred to the Committee on Appropriations for further consideration. SB 49 adds procedures related to individuals with guns on school campuses and at school-related functions as a requirement in the school safety plan, requires charter schools to develop a school safety plan.
SB 316 (Block) School Safety: Door Locks, passed Education Committee, referred to Appropriations Committee for further consideration. SB 316 requires all modernization projects submitted to the Division of the State Architect under the State School Facility Program to include locks that allow classrooms and rooms with an occupancy of five persons or more to be locked from the inside as a condition for receipt of state bond funds beginning January 1, 2016, and requires that all districts and county offices equip every classroom and rooms with an occupancy of five or more with locks that meet this same requirement by January 1, 2017.
SB 552 (Calderon) Pupil Instruction: Social Sciences: Violence Awareness, passed Education Committee. SB 552 provides that instruction in the area of social sciences may also include instruction on violence awareness, which may include a component drawn from personal testimony in the form of oral or video histories of individuals who were involved in violence awareness efforts that exemplify the economic and cultural effects of violence prevention efforts within a city, the state and the country.
SB 634 (Price) School Safety Plans: Safety Drills, read second time and amended, re-referred to the Committee on Appropriations for further consideration. SB 634 requires a comprehensive school safety plan to establish minimum requirements and standards for schools to follow when conducting school safety drills and reviewing school emergency and crisis response plans, requires all school districts and county offices of education to incorporate specified safety drills into their school safety plan, and requires each school to conduct two school evacuation drills and one law enforcement school lockdown drill during each school year.

BB&K actively tracks these and other bills as they proceed through the legislative process and we are ready to advise our education clients on implementing new laws once they are enacted. In addition, BB&K’s own law enforcement specialist, Paul A. Cappitelli, a career law enforcement professional with 35 years of experience, stands ready to consult on your school safety concerns.

For further information on these pending bills and the impact on your district or organization should they be enacted, please contact your BB&K attorney, Education Law attorney Dina Harris, Municipal Law attorney Lee Ann Meyer or law enforcement specialist Paul Cappitelli.

California Supreme Court Allows Class Actions for Local Tax Refunds

02 May 2013 00:00:00 -0800

The California Supreme Court recently ruled that local tax refund claims may be pursued as class actions, even where a city has an existing ordinance prohibiting such claims. The ruling is broad enough to expose local governments to class action refund claims for many other types of local taxes, as well as for assessments, charges and fees. Without legislative amendments from Sacramento, local budgets could be seriously impacted by similar refund claims in the coming years. Local governments are advised to review their taxes, assessments and other revenue sources to ensure that they comply with applicable law, including Propositions 218 and 26.

In McWillams v. City of Long Beach, a class of plaintiffs sought a refund of the city’s local Telephone Users Tax (TUT) on grounds that from 2006 to 2008, the city’s TUT ordinance contained an exemption for telephone service that was also exempt from payment of Federal Excise Tax (FET). The FET exemption is outdated “landline-era” language resulting in a 21st Century loophole that has sparked class action refund litigation in several California cities. Cities with older TUT ordinances (which likely include the outdated FET exemption) should consider voter-approved updates to eliminate potential exposure to TUT refund claims.

In July, 2011, the California Supreme Court ruled on nearly the same issue in Ardon v. City of Los Angeles, where it also held that plaintiffs may bring a class action for a local TUT refund. As in McWilliams, plaintiffs were claiming a TUT refund based upon the outdated FET exemption in Los Angeles’ ordinance. The Ardon court held that class action refund claims are allowed under the California Government Claims Act (Act) absent a specific refund procedure set forth in any applicable governing claims “statute.” Because Los Angeles did not have a local ordinance prohibiting class action refund claims, the Court did not decide whether an ordinance may serve as a “statute” that can prohibit a class action. (Note that, in response to Ardon, Best Best & Krieger advised its clients at the time to adopt similar ordinances out of an abundance of caution.)

Because Long Beach had a local ordinance prohibiting class actions, the Court directly addressed this issue in McWilliams. Based upon the plain reading of the Act, the Court held that a “statute” governing claims must be a federal or state law, not a local ordinance. The Court further held that Long Beach’s status as a charter city did not alter this result. Therefore, a local ordinance prohibiting class actions (even for charter cities) is no longer effective. Absent a specific federal or state law governing the refund process, the Act applies and a class action for a refund is allowed.

Many forms of local taxes, assessments, fees and charges do not have a specific refund procedure under federal or state law. Therefore, McWilliams allowsthese revenue sources to be challenged by class action litigation. While each individual refund claim may only amount to a few dollars, the “economies of scale” of class actions may encourage more refund litigation.

If you have any questions regarding this case or its implications for your city or local government, please contact your BB&K attorney, Kelly Salt, Michael Mullins or William J. Priest.

CalPERS Releases Estimates on New Actuarial Policies’ Impact on Employer Contribution Rates

01 May 2013 00:00:00 -0800

This past Friday, the California Public Employees’ Retirement System (CalPERS) released Circular Letter 200-019-13 which estimates the increase to employer contribution rates for fiscal years 2015/2016 – 2019/2020 based on new actuarial policies approved earlier this month. The rate of employer contributions may rise dramatically, but the Circular Letter suggests that the increase employers will experience may not be as significant as originally estimated. The overall impact of the increase will depend on the employer’s current contribution rates and asset volatility ratio (AVR).

The estimated increases are determined on the basis of each employer’s AVR – which is calculated by dividing an employer’s assets by their annual payroll, or for pooled plans, by dividing the pool’s assets by the pool’s annual payroll. To estimate your agency’s employer contribution rates for fiscal years 2015/2016 – 2019/2020, locate your AVR in the actuarial report provided by CalPERS. Then, using the AVR column in the Circular Letter that is closest to your agency’s AVR, add the percentages in the column to your agency’s current employer contribution to get the projected rate for each year.

The Circular Letter provides an example of how the estimated increases will affect an employer’s contribution rate. Predictably, it is estimated that employers with a lower AVR will experience a lower increase in rates than those with a higher AVR. For example, CalPERS estimates that an employer with an AVR of 4 will experience a total increase over a five-year period of 5.5% while an employer with an AVR of 8 will experience a total increase over a five-year period of 11%.

It is important for employers to keep in mind that these figures are merely estimates, and that they are subject to change. For example, the estimates were determined based on the assumption that CalPERS will have a 7.50% final return on investments after the 2011/2012 fiscal year, but CalPERS does not yet have this information.

If you would like more information about how the new actuarial policies will impact your agency’s contributions, or to explore potential strategies to mitigate the financial impact, please contact John Wahlin, Isabel Safie or Allison De Tal in the firm’s Employee Benefits practice group, or your BB&K attorney.

FPPC Continues Regulation Revision Project

01 May 2013 00:00:00 -0800

The Fair Political Practices Commission last week amended California Code of Regulations section 18700. This amendment restructured the conflict of interest analysis by providing definitions and consolidating the analysis down to four core questions rather than the common eight-step process. It is the FPPC's goal to make the regulations more easily understood by the regulated community and the public. As with some previous amendments, the FPPC is delaying the publishing of Regulation 18700 until other regulations are amended, which will also delay the effective date of the amendment until 30 days after being published.

Below is a complete list of regulations the FPPC has recently adopted but delayed as it continues with its project to revise the conflict of interest regulations.

18700 Basic Rule; Application - Definitions; Guide to Conflict of Interest Regulations (amended); adopted on April 25, 2013.
18706 Determining Whether a Financial Effect is Reasonably Foreseeable (amended); adopted in September 2012.
18706.1 Real Estate or Professional License (adopted); adopted in September 2012.

In addition, this year the FPPC intends to focus on:

developing new materiality standards for business interests, sources of income and personal financial effect;
reexamining the rules for what is “distinguishable from the public generally” while attempting to simplify this calculation, especially with respect to real property;
determining an appropriate interpretation of when someone is “participating in” a governmental decision;
providing usable and workable definitions, including the definition of “consultant” and “otherwise related business entities;” and
providing a regulation that will serve as a guide to determine when an organization is acting as a government agency.

For more information on this FPPC project and how it may affect your agency, please contact Dianna Valdez or Grover Trask in BB&K’s Public Policy & Ethics Group, or your BB&K attorney.

School Districts Cannot Spend Bond Money on Projects Not Disclosed to Voters

01 May 2013 00:00:00 -0800

The Fourth District Court of Appeal recently upheld a challenge to a school district’s spending voter-approved bond proceeds for field lighting at a high school stadium because the ballot proposition did not specifically list or otherwise include field lighting as a project to be funded by the bonds for that high school. As a result, the school district is prohibited from using the bond proceeds to fund the lighting improvements. Taxpayers for Accountable School Bond Spending v. San Diego Unified School District emphasizes the importance of ensuring that the project list included in a bond measure sufficiently identifies the improvements to be constructed with the bond proceeds.

In 2008 the San Diego Unified School District (SDUSD) submitted a school bond measure (Proposition S) to the voters. Proposition S contained a bond project list comprised of two parts. Part one allocated a specific amount of the bond proceeds to each school to be spent on qualified, permitted projects. Specific projects to be financed at all school sites included improvements “to support student health, safety, and security.” School site security improvements, “including increased lighting,” were identified as examples of these types of improvements. Part two identified specific projects to be completed at all school sites and at particular schools. Included in the specific list of projects for Hoover High School was the renovation and replacement of the school’s stadium bleachers and press box, and the upgrade of “fields, track, and courts for accessibility compliance.” Proposition S also authorized bond proceeds to be used for construction and other costs incidental to and necessary for completion of the listed projects. Other incidental costs necessary to complete the projects listed in the measure included athletic playing fields and “field lighting.”

SDUSD authorized the installation of new lighting for the Hoover High School stadium to be funded from a portion of the Proposition S bond proceeds. The use of the bond proceeds to fund the lighting improvements was challenged by the plaintiff, for among other reasons, that the stadium lighting improvements were not identified in the Proposition S project list for Hoover High School.

The Court of Appeal noted that the state constitution requires that a school bond that has a 55 percent vote threshold, such as Proposition S, must contain “a list of the specific school facilities projects to be funded.” School districts can seek bonds without such a list, but the bond measures face a higher vote threshold – at least two-thirds. The court held the Proposition S bond proceeds could not be used for the Hoover High School stadium field lighting because: (1) project list included the renovation of the stadium’s seating and press box, but did not expressly include lighting for the field; (2) the upgrade of the field was limited to improvements for accessibility compliance and lighting was not required for this purpose; and (3) field lighting was not incidental to or necessary for the completion of the renovation or replacement of the stadium bleachers or the press box.

For more information about this case or the impact that it may have on your school district, please contact your Best Best & Krieger attorney, Kelly J. Salt or an attorney in the firm’s Public Finance practice group.

Health-Care Reform: The Eight-Month Countdown at Cal State University in San Bernardino

25 Apr 2013 00:00:00 -0800

BB&K attorneys John Wahlin and Isabel Safie will be part of a health care reform panel session at Cal State San Bernardino's Santos Manuel Student Union.

Employers, large and small, still have many questions regarding the Patient Protection and Affordable Care Act. This complex legislation has made sweeping changes to the nation's healthcare system. In addition to many provisions that have already taken effect since the passage of this landmark act, there are many new provisions that could impact employers including the employer and individual mandates, reporting obligations, limitations on contributions to medical flexible spending accounts and the establishment of health insurance exchanges. As these provisions go into effect, it is essential that employers be aware of what is required, and when, in order to comply with the Act and avoid penalties.

When:
April 25, 2013
8:00 a.m. - 11:00 a.m.

BB&K Speakers:
John Wahlin, Moderator
Isabel Safie, Panelist

For more information about the event, including registration, please visit the CBPA Business Alliance website.

Role as a Board Member at California Association of Sanitation Agencies’ 2013 Spring Conference

25 Apr 2013 00:00:00 -0800

BB&K special districts attorney John Brown will be leading a roundtable discussion on the roles and responsibilities of an effective board member, which include the legal responsibilities of the governing board at the 2013 CASA Spring Conference.

When:
April 25, 2013

BB&K Speaker:
John Brown, Partner

For more information about the event, please visit the California Association of Sanitation Agencies website.

PG&E Files Rate Application to Allocate a Requested $5.3 Billion in Increased Revenues

25 Apr 2013 00:00:00 -0800

Last week, the Pacific Gas & Electric Company filed its General Rate Case Phase 2 Application with the California Public Utilities Commission (CPUC). The application requests that the CPUC approve new electric rates for PG&E’s customers for 2014 through 2016. The proposed rates will allocate costs among the utility’s different classes of customers. Rate changes to some customer classes are likely to be substantial as PG&E has requested a cumulative $5.3 billion in increased revenue in a related Phase 1 proceeding. Protests to the application are due by May 17. Public agencies wishing to protect their interests in this proceeding, as either individual customers of electricity or on behalf of their residents, should act soon.

As a CPUC-regulated utility, PG&E must receive CPUC approval before increasing or otherwise modifying its rates. Generally, utilities update their rates every three years through a “general rate case.” These cases are conducted in phases. Importantly, the first phase requests the total amount of the requested revenue increase. The second phase then determines how to allocate these increased revenues among the utility’s various customer classes.

Here, PG&E filed Phase 1 of its 2014-2016 General Rate Case in late 2012. The Phase 1 proceeding seeks approximately $5.33 billion in new revenues over the three-year rate cycle, an approximate 33 percent increase, with individual annual increases of $1.28 billion for 2014, an additional $492 million for 2015 and another $504 million for 2016. The Phase 1 proceeding is on-going.

On April 18, 2013, PG&E filed Phase 2 of the rate case. This phase is in many ways more important for different classes of customers because if a customer class is not adequately represented in the proceeding, it may disproportionately bear the weight of the increases.

The deadline to protest the Phase 2 application is May 17, 2013. If you wish to participate in the proceeding, BB&K is able to assist your agency. For example, BB&K is currently representing a coalition of water and school districts in a San Diego Gas & Electric rate proceeding. In that proceeding, SDG&E has proposed rate structures that disproportionately affect public agency customers with solar generation projects. We believe that the coalition’s participation in the SDG&E proceeding will protect the agencies’ investment in these projects.

For more details regarding the PG&E proceeding, or if you wish to participate individually or through a coalition of BB&K clients, please contact Jason Ackerman, Joshua Nelson or your BB&K attorney.

U.S. District Court Says BLM Must Address Environmental Impacts of Fracking

24 Apr 2013 00:00:00 -0800

In an order addressing hydraulic fracturing (fracking) on federal lands, the U.S. District Court for the Northern District of California ruled that the Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) by improperly issuing four oil and gas leases in Monterey and Fresno counties without addressing the environmental impacts of this controversial extraction technique.

BLM manages federal onshore oil and gas resources, which includes the Monterey Shale Formation. This is a sedimentary rock formation that is estimated to contain more than 15 billion barrels of oil -- 64 percent of the nation’s total shale oil -- most of which is only accessible through fracking extraction. In September 2011, after conducting an environmental assessment of the impacts of the lease or sale of land within the Monterey Shale Formation, BLM executed four leases for approximately 2,700 acres. Subsequently, environmental groups brought suit to enjoin the leases on the grounds that they were executed in violation of NEPA (among other statutes).

In Center for Biological Diversity v. Bureau of Land Management, the court found that BLM unreasonably relied on a single-well development scenario in its environmental assessment of the four oil and gas leases. The court determined that the single-well scenario did not contain an adequate analysis of the development impacts associated with the combination of horizontal drilling and fracking. Accordingly, the court ruled that BLM’s finding of no significant impact and decision not to prepare an environmental impact statement were incorrect as a matter of law.

Significantly, in arriving at its decision the court rejected the argument that BLM did not have jurisdiction over fracking issues and therefore was excused from looking at them, and instead found that NEPA required BLM to analyze such impacts. This is notable because fracking operations have frequently been exempted from the nation’s environmental laws, including, for example, the Clean Water Act. This decision, if followed by other courts, confirms that fracking operations are still subject to the analysis, disclosure and mitigation requirements of NEPA at a minimum, and may provide a significant means for fracking opponents to challenge such projects on federal lands.

For further information on the effects of this order, please contact Environmental Law & Natural Resources attorneys Fernando Avila, Lucas Quass or your BB&K attorney.

COPS Hiring Program Grant Applications Due May 22

23 Apr 2013 00:00:00 -0800

Applications for the 2013 COPS Hiring Program (CHP) must be completed and submitted by 7:59 PM EDT on May 22. CHP is a competitive grant program that provides funding directly to state, local and tribal law enforcement agencies for the hiring or re-hiring of additional officers to impact their community policing capacity and crime prevention efforts.

CHP awardees may receive up to 75 percent of the approved entry-level officer salary and fringe benefit costs, with a minimum 25 percent local cash match requirement and a maximum federal share of $125,000 per officer position over a three-year grant period. Grant funds may be used to hire new, full-time sworn officer positions, to re-hire officers who have been laid off, or to re-hire officers who are scheduled to be laid off on a specific future date as a result of local budget cuts. CHP requires that each position awarded be retained with local funds for a minimum of 12 months at the conclusion of grant funded 36 months. Priority consideration will be given to agencies that use the funding to hire school resource officers or military veterans and those targeting to reduce homicide.

For more information on the 2013 COPS Hiring Program, click here. For questions about the CHP application, contact the COPS Office External Affairs Division at 202-514-9079 or Shannon R. Long, USDOJ-COPS Office, at 202-514-2064.

For questions regarding applying for grants, contact BB&K Washington, DC attorney Gerard Lederer. For questions regarding BB&K’s public safety services, contact Paul Cappitelli, law enforcement specialist, Ross Trindle, public safety attorney, or your BB&K attorney.

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

The Risks of Sustainable Construction

23 Apr 2013 00:00:00 -0800

By Scott W. Ditfurth

Sustainability and “green” building are becoming commonplace in the construction industry. And why not? Aside from an obvious benefit to the environment, sustainable building provides for potential financial benefits, higher property values and preferential marketability.

While the Leadership in Energy and Environmental Design, commonly referred to as LEED, certification guidelines are not currently required for new construction, it is not uncommon for certain LEED standards to be incorporated into local codes and state regulations such as CALGreen. Despite the prominence of green building, there remains undefined risks in constructing these kinds of structures, insuring their performance and assigning liability to the parties for any failures.

While the benefits of sustainable construction are well documented, the risks associated with it remain somewhat undefined. Generally speaking, the risks include defects in green materials used on a project, the ability to attain LEED certification or comply with local building codes, and whether or not the buildings will qualify for various financial incentive programs.

Thus, developers and insurance companies face potential exposure regarding how the building was constructed and how it will perform long after construction.

Click here to read the complete article on The Press-Enterprise website.

BB&K Police Chief Bulletin: Custodial Arrest Based on Infraction

22 Apr 2013 00:00:00 -0800

Overview: The Ninth Circuit Court of Appeals recently ruled that police could not take into custody a person cited for an infraction unless the arrestee has no satisfactory identification, refuses to provide a fingerprint, or refuses to sign a written promise to appear in court. California Penal Code section 853.5 is the exclusive grounds for custodial arrest for an infraction. Therefore, a custodial arrest for an infraction was authorized only under the three narrow exceptions specified in the statute. Because police had failed to show that any of the exceptions applied to the custodial arrest in this case, judgment in favor of law enforcement was reversed on the false arrest claim.

Training Points: The ruling in this case is straight forward. Absent the presence of special conditions outlined above, officers cannot take custody of a person suspected of an infraction per Penal Code section 853.5(a). The issuance of the citation and all other portions of the investigation must take place at the scene of the original detention. Any deviation from this process likely would result in liability exposure to the officer and the agency, and may have an impact on the criminal prosecution.

Summary Analysis: In Edgerly v. San Francisco, police officers arrested Erris Edgerly for standing in a housing project playground fenced with “No Trespassing” signs. The officers conducted a pat-down search, took Edgerly to the station and searched him again, finding no contraband. He was cited for trespass and released. Edgerly was not prosecuted for any offense. He filed suit against San Francisco and its police department, claiming that the officers violated his Fourth Amendment rights. He also asserted state tort claims for false arrest and illegal search. The district court entered judgment in favor of law enforcement, finding the arrest proper and Edgerly appealed. The Ninth Circuit overturned the lower court’s ruling and held that probable cause only existed for a possible violation of Penal Code section 602.8(a), and not Penal Code section 602(l) (now Penal Code section 602(m)). But, because a first violation of Penal Code section 602.8(a) could only be charged as an infraction, Penal Code section 853.5(a) exclusively governs an arrest for a suspected infraction and provides for custodial arrest in only three circumstances, none of which were present in this case. The court ruled that Penal Code section 853.5 set forth the exclusive grounds for a custodial arrest for an infraction.

Follow-Up Contact: For questions regarding this case or its implications for your agency or public safety department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, public safety attorney, or your BB&K attorney.

BB&K Police Chief Bulletin: DUI Blood Test

19 Apr 2013 00:00:00 -0800

Overview: The U.S. Supreme Court recently ruled that the natural dissipation of alcohol in the bloodstream did not necessarily create an exigent circumstance justifying a warrantless blood test in all DUI cases. Missouri police forced a driver to take a blood test following a suspected DUI stop. The driver moved to suppress the blood test results, claiming that the warrantless physical intrusion violated his Fourth Amendment rights to be free from unreasonable searches. The Supreme Court agreed, finding that declining blood alcohol levels alone did not create exigent circumstances “so compelling” as to make a warrantless blood draw reasonable in this case. The Court declined to adopt a blanket rule of exigency that would have permitted warrantless blood draws in all DUI cases, regardless of the circumstances. Instead, the Court stated that in DUI investigations, if officers could reasonably obtain a warrant before taking a blood sample, they were required to do so.

Training Points: This ruling will likely require a shift in the collection of blood evidence during DUI investigations. In most situations, officers will need to obtain a search warrant prior to obtaining a blood sample if the suspect does not give consent. The previous argument of exigency due to the natural absorption and elimination of alcohol in the blood is not sufficient by itself. Additional “special facts” must be articulated to show that obtaining a warrant is impractical under the circumstances.

For California agencies, a potential issue exists in the form of Penal Code section 1524, which does not provide for the issuance of a search warrant for misdemeanor DUI investigations. A legislative fix for this potential issue will be necessary.

In the meantime, agencies should consider developing a streamlined protocol for search warrant applications to secure blood evidence in DUI cases. Such a protocol should consider coordination with the local prosecutor and development of template warrant applications that can be quickly revised with specific facts from an investigation. It may not be practical to obtain a search warrant for all refusal cases, but for routine DUI stops, using template warrant applications can save time. Agencies should also consider other driving offenses that do not require a blood draw, and the utility of breath tests. Of course, it remains critically important to document probable cause in detail, setting forth the objective symptoms of intoxication and other elements of all suspected crimes. In order to assist in securing convictions, agencies should consider discussing the impact of this decision with the local prosecutors, and agencies should consult with legal counsel prior to implementing revised policies, procedures and practices.

Summary Analysis: In Missouri v. McNeely, a Missouri police officer stopped a seemingly intoxicated Tyler McNeely for speeding and crossing the centerline. He failed a field sobriety test and refused to take a breath test. The officer took him to the hospital and ordered a lab technician to draw a blood sample without McNeely’s consent or a search warrant. McNeely’s BAC tested above the legal limit. McNeely moved to suppress the results, claiming that taking his blood without a warrant violated his rights. Missouri contended that the “inherently evanescent” nature of BAC evidence in all drunk-driving cases created exigent circumstances, making the warrantless search reasonable. The Supreme Court disagreed, finding that, unlike other cases involving the destruction of evidence, the gradual and “predictable” loss of BAC evidence was “inevitable” between the time of the arrest and blood test, even if police had a warrant. Based on these facts, the Court concluded that the dissipation of alcohol alone was not sufficient to create an exigency justifying the physical intrusion without a warrant.

Follow-Up Contact: For questions regarding this case or its implications for your agency and public safety department, please contact Paul Cappitelli, law enforcement specialist, G. Ross Trindle, III, public safety attorney, or your BB&K attorney.

CalPERS Adopts Actuarial Policies That Will Increase Employer Contributions

18 Apr 2013 00:00:00 -0800

On Wednesday, the Board of Administration of the California Public Employees' Retirement System (CalPERS) approved new actuarial policies that will have a significant impact on participating employers. The policies are designed to return CalPERS to fully funded status over the next 30 years, but will increase costs for participating employers. Some estimates indicate that employer contributions will rise by almost 50% over a five-year period beginning with the 2015/2016 fiscal year. Employee contributions, however, will not be impacted by this change.

Currently, the majority of CalPERS plans are underfunded by 20% to 35% on average, and the prospects only look worse with liabilities increasing faster than assets accrue. As a result, changes to the 15-year rolling asset smoothing period (adopted in 2004 to address volatile employer contribution rates) and the rolling 30-year amortization period were recommended in order to accelerate progress towards the goal of attaining fully funded status. The new policies adopt a five-year asset smoothing period and a fixed 30-year amortization period.

CalPERS indicates that the new policies will prevent dramatic increases in employer contribution rates during years of extreme fluctuations in investment returns, such as the 2008/2009 fiscal year, and will keep changes in rates to a reasonable level during other years. The new 30-year fixed amortization period will begin with a five-year ramp up of employer rates, which will then stabilize for 20 years and then ramp down for five years. Implementation of the new policies has been delayed until the 2015/2016 fiscal year.

If you have any questions about how these new policies will impact your agency, or to explore potential strategies to mitigate the financial impact on your agency, please contact John Wahlin, Isabel Safie or Allison De Tal in the firm’s Employee Benefits practice group, or your BB&K attorney.

Local Government Revenues in a Broadband World: Taxation of Telecommunications; Taxation of E-Commerce at 2013 IMLA Mid-Year Seminar

15 Apr 2013 00:00:00 -0800

BB&K attorney Gerry Lederer will be presenting at the 2013 International Municipal Lawyers Association (IMLA) Mid-Year Seminar. In this session Gerry will identify and discuss the leading legislative proposals that seek to address local taxes in the on-line era and on wireless communications. He will also address the threat to municipal bonds posed by congressional efforts to partially or fully tax the interest on municipal borrowing.

When:
April 15, 2014

BB&K Speaker:
Gerard Lederer, Of Counsel

Download the presentation:
Local Government Revenues in a Broadband World: Taxation of Telecommunications; Taxation of E-Commerce

For more information about the event, please visit the IMLA website.

Local Government Revenues in a Broadband World: Rights-of-Way Compensation at 2013 IMLA Mid-Year Seminar

15 Apr 2013 00:00:00 -0800

BB&K telecommunications attorney Joe Van Eaton will be presenting at the 2013 International Municipal Lawyers Association (IMLA) Mid-Year Seminar.

When:
April 15, 2014

BB&K Speaker:
Joseph Van Eaton, Partner

Download the presentation:
Local Government Revenues in a Broadband World: Rights-of-Way Compensation

For more information about the event, please visit the IMLA website.

FirstNet: Recent Developments and Current Uncertainties for Local Governments at 2013 IMLA Mid-Year Seminar

14 Apr 2013 00:00:00 -0800

BB&K telecommunications attorney Nick Miller will be presenting at the 2013 International Municipal Lawyers Association (IMLA) Mid-Year Seminar. Nick will review the recent activities affecting deployment of FirstNet--the proposed nationwide, interoperable public safety broadband wireless network. This will include a summary of FirstNet Board actions, spectrum lease negotiations, and funding issues.

When:
April 14, 2014

BB&K Speaker:
Nicholas Miller, Partner

Download the presentation:
FirstNet: Recent Developments and Current Uncertainties for Local Governments

For more information about the event, please visit the IMLA website.

Wireless Siting: The Issue that Won't Go Away and Grows in Complexity at 2013 IMLA Mid-Year Seminar

14 Apr 2013 00:00:00 -0800

BB&K telecommunications attorney Joe Van Eaton will be presenting at the 2013 International Municipal Lawyers Association (IMLA) Mid-Year Seminar. Joe will provide an update on federal statues and regulations affecting local zoning.

When:
April 14, 2014

BB&K Speaker:
Joe Van Eaton, Partner

Download the presentation:
Wireless Siting: The Issue that Won't Go Away and Grows in Complexity

For more information about the event, please visit the IMLA website.

RF Radiation: Smart Meters and Other Developing Problems at 2013 IMLA Mid-Year Seminar

14 Apr 2013 00:00:00 -0800

BB&K telecommunications attorney Jim Hobson will be presenting at the 2013 International Municipal Lawyers Association (IMLA) Mid-Year Seminar. Jim will discuss the FCC's recently-released notices of rulemaking and inquiry on changes to regulations safeguarding humans from the effects of non-ionizing RF radiation, as well as citizen pushback on emissions from Smart Meters that track energy consumption.

When:
April 14, 2014

BB&K Speaker:
James Hobson, Of Counsel

Download the presentation:
RF Radiation: Smart Meters and Other Developing Problems

For more information about the event, please visit the IMLA website.

BB&K Webinar: New FCC Guidance Impacts Local Control of Wireless Facilities

11 Apr 2013 00:00:00 -0800

The FCC has issued non-binding guidance that has important implications for local zoning of wireless facilities such as cell phone towers.

In a free webinar, BB&K telecommunications attorneys will provide an overview of the challenges and opportunities facing local governments as they attempt to protect local interests while complying with federal requirements governing zoning of wireless facilities.

REGISTRATION:
Click here to register for this webinar.

When:
April 11, 2013
9:30 a.m. – 10:30 a.m. PT
12:30 p.m. – 1:30 p.m. ET

The webinar will cover:

The FCC's recent efforts to preempt and limit local governments' zoning authority, including the "shot clock" order;
The FCC's guidance about local authority over collocations, including one interpretation that could greatly expand what facilities the telecommunications industry may add to existing towers, poles and other platforms without any local oversight;
What the guidance does not say about governments' and special districts' ownership of wireless communications facilities and their concerns for public safety and security;
The FCC rulemaking, expected to launch this spring, which could transform this guidance into binding rules, fashion new "shot clock" requirements and develop national model siting rules; and
How local governments can positively influence and shape the rulemaking proceeding.

Who should attend:

Municipal attorneys responsible for zoning matters or right of way
Directors of planning/public works
Members of zoning boards/elected officials
Department heads responsible for leasing public property

Related Legal Alert:
New Bill Introduced in Sacramento Seeks to Curtail Local Authority Over Wireless Siting

QUESTIONS:
Contact Katey Lamke if you have any questions about this event and/or about BB&K upcoming seminars/events.

If you are not currently receiving our Legal Alerts and would like to be added to our email distribution list, please visit our subscription page.

Solar Project Performance May Be Threatened By Satcon Bankruptcy

10 Apr 2013 00:00:00 -0800

If your solar project uses Satcon-brand inverters to convert the direct current generated by your solar panels into alternating current, you may have recently received notice from Satcon or your installation contractor that Satcon has filed for bankruptcy. While Satcon initially claimed that it would uphold the 10-year manufacturer warranties that it was required to provide under the California Solar Initiative, the recent liquidation step in the bankruptcy proceedings indicates that such warranties will likely not be upheld.

The Satcon bankruptcy highlights the need for all solar projects to conduct at least semi-annual performance audits following project completion to ensure that the project performs as projected and to quickly address performance issues, calling on the installation contractor and/or manufacturer warranties as needed. For solar projects using Satcon inverters, options for protecting your solar project investment range from third-party obtained warranties, third-party maintenance contracts and/or substitute and/or umbrella warranty and maintenance agreements with the installation contractor. Potential remedies also include a performance bond surety, depending on whether a bond was obtained and the language in the bond.

For more details or questions about the Satcon bankruptcy, auditing your solar project’s performance or other renewable energy projects, please contact Sophie Akins or an attorney in the firm’s Renewable Energy practice group.

Counties in California Can Learn a Few Lessons from State on Inmate Health Care

09 Apr 2013 00:00:00 -0800

By Jared A. Goldman

Inmates in the Riverside County jails served a federal class-action lawsuit last month, claiming the county is subjecting them to cruel and unusual punishment by depriving them of basic medical and mental health care. A similar lawsuit was filed against Fresno County in 2011, and a lawsuit alleging inadequate jail facilities and services for the disabled was filed against Alameda County late last year. More lawsuits are expected to be filed against other California counties as they adjust to the growing challenges stemming from the state’s public safety realignment legislation, known as AB 109.

Signed into law in 2011, realignment sought to relieve overcrowding in state prisons by shifting responsibility for those convicted of nonviolent, non-serious and non-sex crimes to county custody. However, increasing jail populations associated with the realignment may strain staffing resources and facility capabilities. In addition, increased sentences may require the implementation of more sophisticated health care programs addressing chronic diseases and other long-term health care problems.

The impact of overcrowding on the delivery of health care is familiar territory in California. In 2011 the U.S. Supreme Court affirmed a District Court order directing the state to limit its prison population. Overcrowding, according to the Supreme Court, had “overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve.” Specific examples included suicidal inmates being held for pro-longed periods in cages the size of telephone booths due to shortages in treatment beds. Other mentally ill inmates awaiting care were held for months in “administrative segregation,” where they endured harsh and isolated conditions, and received only limited mental health services. Prisons failed to implement necessary suicide-prevention procedures due, in large part, to severe understaffing. Inmates with physical illnesses waited, in some cases, more than a year for needed specialty referrals outside the prison, and less fortunate inmates died waiting to see their specialists.

The Prison Law Office, together with other law firms, successfully challenged unconstitutional deprivations of health care in California’s prison system, related to the overcrowded conditions. The same lawyers represent inmates in the Riverside and Fresno county cases. These lawyers haven’t singled out overcrowding as the cause of the alleged deficiencies in Riverside County’s jails but they said, in comments to The Press-Enterprise, that they believe the alleged problems have been exacerbated by longer sentences. In the Fresno County case, it is alleged that, in addition to suffering from inadequate health care, inmates are frequently harmed in fights or assaults arising from low staff-to-inmate ratios and poor visibility in the prisons—conditions that may worsen when inmate populations soar.

Common legal concerns cut across the state and county correctional health care cases. In particular, allegations consistently focus on: the quality of the professionals employed, staffing levels, intake screening, access to physicians, timeliness of care, medication management and health records administration. County officials may wish to renew their attention on these areas of their jail health care programs before lawsuits come calling.

Fortunately, counties don’t have to reinvent the wheel to assess and improve their jail health programs. After decades of litigation and process improvement, the state can be a valuable source of information. Although some critical work remains outstanding in the prisons, U.S. District Court Judge Thelton E. Henderson, who is presiding over the state prison medical care case, recently found “significant progress” in the resolution of the prisons’ constitutional deficiencies. Similarly, U.S. District Court Judge Lawrence K. Karlton, who is presiding over the prison mental health care case, recently acknowledged the tremendous improvements achieved by the state. Inmate advocates and the state disagree on whether the state has completely satisfied the requirements of the law. There is no question, though, that a pathway out of the woods has emerged, which may provide guidance to those in charge of county jails.

Among other improvements, the state has developed a “Health Care Services Dashboard,” which measures performance in dozens of areas including chronic disease management, access to providers, staffing, provider workload, per inmate costs and prescription practices. Performance is measured statewide and on a prison-by-prison basis. Scores are posted publicly at www.cphcs.ca.gov and updated on a monthly basis, fostering transparency and a bit of healthy competition between the institutions. While the information is rolled up on the public view of the dashboard, prison managers can drill down into the dashboard to view, for example, the prescribing practices of individual providers or the chronic disease burden in the various yard clinics of a prison.

Technical assistance and jail health standards are also available from a number of reputable sources, like the National Commission on Correctional Healthcare. It is likely that county jail administrators already know exactly where to look for help. But some degree of additional political will and financial resources may be necessary to implement process improvements. County officials, of course, have competing priorities to consider. However, when weighing the costs and benefits of an increased focus on jail health, counties may want to look again to the state. In addition to the tragic human costs of poor jail health care programs, the legal cost of neglecting such programs can be crippling. According to The Associated Press, the state has spent more than $83 million in legal fees related to the two lawsuits that resulted in the cap of the state’s prison population. The old adage recommending an ounce of prevention may be good medical advice for the jails.

Jared A. Goldman is a health care attorney at Best Best & Krieger LLP in Sacramento. Since 2006, he has served as chief counsel for the receiver of the court-supervised turnaround of the California prison medical system. In addition to his receivership work, Goldman’s practice focuses on providing general counsel services and specialized advice to health care providers on operations, compliance, government and commercial contracts, and government audits and investigations. He can be reached at jared.goldman@bbklaw.com.

* This article was republished with permission from PublicCEO.com, April 9, 2013.

BB&K Police Chief Bulletin: Distracted Driving

08 Apr 2013 00:00:00 -0800

Overview: The Appellate Division of the Fresno County Superior Court recently held that using a cell phone solely for its map function violated the Vehicle Code. Section 23123(a) prohibits driving while “using” a cell phone except for hands-free listening and talking. A Fresno County driver was cited for violating this section by looking at a map on his phone while driving. He challenged the citation, claiming that this use of a cell phone did not violate the law. The appellate division looked at the history and “plain meaning” of the statute and found that the purpose of the statute was reducing traffic collisions by preventing the physical distraction of holding a phone instead of keeping both hands on the wheel. Distracted driving included the use of a hand-held device to talk, text, email or find directions. The plain language of the statute specifically prohibited any “use” of a wireless telephone while driving unless the device was used in a hands-free manner. Based on these facts, the court concluded that the driver’s conduct violated the Vehicle Code.

Training Points: Although this ruling only applies in Fresno County, it does provide some guidance as to the legislative intent of Vehicle Code § 23123 (a) and how courts may interpret “use” in finding a violation. The court interpreted the term “use” broadly, to include any use of the phone for any purpose, and not just talking. Public concern over distracted driving remains high despite awareness and enforcement programs across the different levels of government. Law enforcement agencies may want to consider whether application of the court’s reasoning on “use” could support distracted driving enforcement and deterrence in their communities.

Summary Analysis: In People v. Spriggs, a California Highway Patrol officer cited Steven R. Spriggs for driving a motor vehicle while using a cell phone. Spriggs had been holding his phone to look at a map and he was not talking on the phone at the time. The Fresno County Superior Court upheld the citation. Spriggs appealed the decision, arguing that the statute prohibited hands-on use of a wireless telephone for conversation only, not when using a map application. He contended that another statute was later enacted to cover uses other than talking and listening on any electronic device. The appellate division disagreed, finding that the Legislature could have limited application of the statute to conversing, listening or talking, but did not. Instead, the statute focused on the physical distraction caused by any hands-on “use” of a phone while driving. The later bill was merely designed to cover other electronic devices. Spriggs did not dispute that he was holding a wireless telephone in his hand while driving, and that the phone was in use at the time. As such, he was properly cited for the violation.

Follow-Up Contact: For questions regarding this case or its implications for your city and police department, please contact Paul Cappitelli, BB&K’s law enforcement and public integrity specialist, G. Ross Trindle, III, police attorney, or your BB&K attorney.

BB&K Police Chief Bulletin: Public Records

05 Apr 2013 00:00:00 -0800

Overview: A Santa Clara County Superior Court judge recently ruled that the California Public Records Act (PRA) required government agencies to disclose communications relayed through the privately-owned personal devices of public officials because the messages were public records under the PRA. The court reasoned that the content—not the location—of the correspondence determined whether it was a public or private record. While the ruling is confined in application to the public entity at issue in the case, it does raise the question of whether the reasoning could be extended to law enforcement agencies, thus forcing officers to turn over work-related emails, voice and text messages transmitted through personal phones and email accounts.

Training Points: Police officers ostensibly are functioning as "public officials" when they use their personal devices for work. The stored exchanges between officers, therefore, may be subject to disclosure as public records. Law enforcement officers often conduct business using personal communications devices with the assumption that they have an expectation of privacy. This ruling calls that premise into question. Although this ruling only applies to the parties involved (City of San Jose), it does suggest that courts can interpret the PRA to cover work-related communications stored on the personal devices of police officers. Simply stated: nothing is private at work. Agencies will want to monitor this case and this issue as both continue to evolve.

Summary Analysis: In Smith v. City of San Jose, the city refused to disclose private emails, voice and text messages stored in the personal devices of city officials. Smith claimed that this hindered transparency, allowing government agents to hide official business communications by channeling them through private lines. Public agencies argued that disclosure was impractical because they had no control over messages sent and received by officials using their personal accounts. The court disagreed, finding that the PRA required disclosure of any information related to the conduct of the public’s business owned or “retained” by the agency, regardless of form. Because individual officials acted as public agents, any work-related data stored on their personal devices belonged to the agency, making the emails and text messages “public record.”

Follow-Up Contact: For questions regarding this case or its implications for your city and police department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, police attorney, or your BB&K attorney.

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

Court Upholds CEQA Exemption for Residential Development

04 Apr 2013 00:00:00 -0800

In a recent case involving the California Environmental Quality Act, a state appellate court upheld a city’s decision to exempt from environmental review a residential development because it was consistent with a broader specific plan that already had a certified environmental impact report (EIR).

The court, in upholding the City of Dublin’s use of the exemption under Government Code section 65457, took a reasonable and flexible approach to its interpretation of the law in Concerned Dublin Citizens v. City of Dublin. The court’s opinion was published this week.

Plaintiffs challenged the city’s use of the exemption for a residential-only development within the Eastern Dublin Specific Plan. That plan called for a mixed-use transit center under a previously certified EIR. Plaintiffs alleged that replacing retail uses with residential ones created a specific plan inconsistency that made the CEQA exemption unavailable.

The appellate court disagreed, first holding that while the specific plan envisioned a mixed-use center, not every site within that center was required to be mixed use on its own; a residential-only development could still be consistent with a mixed-use specific plan. The court also held that, because the project added 100 units to a particular portion of the specific plan but also removed 100 units from another portion, the overall project did not result in a substantial change to the specific plan. Accordingly, the court found that the CEQA exemption was appropriate.

Plaintiffs also alleged that greenhouse gas significance thresholds recently adopted by the region’s air quality regulating agency constituted new information requiring supplemental review. The court again disagreed. Because the original EIR considered air quality impacts and because the potential effects of greenhouse gases were known at the time of the EIR’s certification, the new thresholds were not new information requiring a supplemental EIR.

For more information on this case and how it may affect your city, county or agency, please contact Sarah Owsowitz or Charity Schiller in the Environmental and Natural Resources practice group or your BB&K attorney.

Ninth Circuit Upholds Opening Prayers at City Council Meetings

01 Apr 2013 00:00:00 -0800

Overview: The Ninth Circuit recently upheld as constitutional a city council’s practice of opening its sessions with prayer. The court upheld the city’s policy concerning such prayers, which extended the invitation to lead the invocation to private citizens. The policy required the city to invite every religious congregation in the city to give an invocation at city council meetings. The city then scheduled responding persons on a random or first-come-first-serve basis. No person could appear at consecutive city council meetings or more than three meetings a year. While the city did not review any prayer’s content, it requested that no one proselytize or disparage other faiths. The court also found that referring to religious figures, such as Jesus, in their opening prayers was not per se unconstitutional. Please note, however, that the issue of whether city council meetings may be opened with prayer and, if so, the content of the prayer, remains a very unsettled area of law.

Practical Points: Any city contemplating adopting a policy concerning prayer at city council meetings should be aware that its policy may be subject to challenge and litigation. The plaintiffs in this Ninth Circuit case have stated that they will seek to have the full Ninth Circuit overturn this decision. This issue may even be ripe for Supreme Court review -- the Federal Circuit Courts around the country are split on whether sectarian references can be made. In addition, in 2002 a California Court of Appeal decision (Rubin v. City of Burbank) held, contrary to the Ninth Circuit decision, that a prayer at a city council meeting referring to Jesus was an unconstitutional sectarian prayer and that advising the invocators to refrain from such sectarian references was not unconstitutional censorship or viewpoint discrimination.

Summary Analysis: In Rubin v. City of Lancaster, the Ninth Circuit upheld the city’s policy concerning prayer at city council meetings because it was compatible with the 1983 U.S. Supreme Court decision in Marsh v. Chambers, which upheld prayer (even sectarian prayer) at meetings of legislative bodies under long-standing American history and tradition. The city’s policy did not favor one faith over another, did not entangle the city in the prayers’ content, did not affiliate the city with any particular faith, and required individuals not to proselytize or disparage other faiths. The fact that some people mentioned religious figures, such as Jesus, in their prayers did not render those prayers unconstitutional. Marsh v. Chambers recognized that mentioning such religious figures was part of the acceptable history and tradition of prayers in legislative bodies. Mentioning such religious figures did not in itself constitute proselytizing or disparaging other faiths. By contrast, the city’s barring the mention of such religious figures or sectarian references would improperly put the city in the position of co-authoring the prayers. Moreover, so long as the city’s policy remains neutral, it is irrelevant that most individuals offering prayers have been Christian, giving Christian prayers. That result was not caused by the city’s policy but by local demographics and the identity of the individuals who have responded to the city’s invitation to offer prayers.

Follow-up contact: If you have any questions about this decision or its effect on your organization, please contact Municipal Law attorneys Michael Mullins, Scott Smith or Matthew Schettenhelm, or your BB&K attorney.

BB&K Attorney Named Head of Business Services Practice Group

01 Apr 2013 00:00:00 -0800

For Immediate Release: April 1, 2013
Media Contact: Jennifer Bowles • 951.826.8480 • jennifer.bowles@BBKlaw.com

RIVERSIDE, Calif. _ Best Best & Krieger LLP has named partner Howard Golds as head of the law firm’s business services practice group, which provides counsel on transactions, real estate, mergers and acquisitions, bankruptcy and all other business-related legal issues for private-sector clients.

Golds, a former chair of the Greater Riverside Chambers of Commerce, is primarily a business litigator specializing in labor issues who represents businesses and public agencies. As head of the business services practice, Golds oversees some 40 lawyers across the firm’s nine offices in California and Washington D.C., who focus on private-sector clients.

“Howard is an excellent choice to take on this role right now because he is an experienced leader within the firm and he understands the needs of the business community, from his years as a trusted legal advisor and his time as chair of the Inland region’s largest chamber of commerce,” said Eric Garner, BB&K’s managing partner.

Attorneys in BB&K’s business services practice group work with start-ups to internationally recognized companies that focus on steel and automotive manufacturing, distribution, construction, banking, health care services, movie production studio facilities, citrus processing, among other industries.

The firm’s business attorneys also work on public-private partnerships, entity formation, corporate governance, business succession planning, health care transactions, intellectual property rights, taxes, and securities and finance.

“It is a pleasure to be chosen to lead a group of such seasoned attorneys who are great at what they do, and the diversity in their services gives business clients a one-stop shop for all of their needs,” Golds said.

Golds said he wants to expand the already well-established practice in Riverside, Ontario, San Diego, Sacramento and Indian Wells to more of the firm’s offices.

Besides labor issues, Golds’ private-sector practice focuses on real estate, construction and contracts. Among his clients in Riverside are Riverside Medical Clinic and FATA Hunter, a recognized world leader in the supply of coating machines and coil coating lines for steel and aluminum manufacturers.

Golds joined BB&K in 1985 and received his law degree from the University of Southern California.

BB&K Police Chief Bulletin: K-9 Searches

29 Mar 2013 00:00:00 -0800

Overview: In a 5-4 decision,the U.S. Supreme Court this week ruled that a Florida police dog’s sniffing for drugs in front of a man’s home constituted an illegal search. Based on an unverified tip, police physically entered the property without the owner’s consent, but followed the customary pathways available to the public to arrive at the owner’s door. The drug dog “Franky” alerted and traced an odor to the front door of the residence and positively indicated for narcotics. The total time spent by the officers on the property was two minutes or less. Using Franky’s alert, officers obtained a warrant to search the residence and found marijuana plants, resulting in a conviction. The high court’s majority opinion found that the Fourth Amendment protected the home and its surrounding areas (“curtilage”) from this type of warrantless physical intrusion, based upon principles of trespass. The two uninvited officers and Franky violated these rights by “investigating” the constitutionally protected areas with the intent of discovering incriminating evidence. Therefore, the high court ruled, the marijuana discovered in the search had been properly suppressed by the lower court.

Training Points: This decision changes the framework for the use of narcotics-detection canines. Although the full impact of this case remains unknown, it is clear that the use of drug canines in the curtilage of a home constitutes a search under the Constitution. Canines remain an effective tool for detection, but where in an investigation they can be used has changed. With warrantless dog sniff searches of suspected residences now prohibited, a “knock and talk” approach may be more viable as a basis for further investigation, ultimately providing sufficient cause for a subsequent canine search.

Summary Analysis: In Florida v. Jardines, police received an unverified tip that Jardines was growing marijuana in his home. The officers approached the residence with a drug-sniffing dog that gave a positive alert for narcotics. Based on this information, officers obtained a warrant to search the home and found marijuana plants. Jardines was charged with trafficking in cannabis. Jardines argued that the marijuana should have been suppressed because the canine investigation was an unreasonable search. The Supreme Court agreed, finding that the police obtained information by physically intruding upon the curtilage of the home, a constitutionally protected area surrounding the home. The court stated that the “very core” of the Fourth Amendment protected the freedom from unreasonable governmental intrusion in the home, including the front porch. Police clearly violated these rights by entering these protected areas uninvited and conducting a canine search without a warrant.

California's High-Speed Rail Authority Sues Everybody

28 Mar 2013 00:00:00 -0800

SACRAMENTO -- If you're reading this, consider yourself served.

The state of California has filed a civil case against everyone -- literally, the whole world -- seeking to validate $8.6 billion in voter-approved bonds for its $69 billion high-speed rail project.

The lawsuit, titled "High-Speed Rail Authority v. All Persons Interested," is meant as a pre-emptive strike so the state can confirm that it's definitely legal to issue some of the bonds needed to begin bullet train construction this summer. By citing a somewhat obscure California civil code, the state can use the "sue now or forever hold your peace" strategy to prevent a string of future lawsuits and, instead, deal with the legal issues in one fell swoop.

Anyone interested in trying to block the project can sign up with the court, put their endless hours of "Law & Order" watching to use, wear their best suit and show up at a hearing to argue their case. They would join lawyers who are already suing the rail authority in other cases and go toe-to-toe with the state Attorney General's Office, which is representing the rail authority.

The state's biggest-ever project is also one of its most controversial, which has led the rail authority to swat away lawsuit after lawsuit since California voters approved the bullet train in November 2008.

. . .

Lawyers say this "validation" process, while not well known, isn't necessarily uncommon among public agencies that want to create a legal shield against future lawsuits to calm investors interested in their bonds.

The city of San Jose did it in 2009, for example, before issuing bonds to expand its convention center. Even then, that case ended up being tied up for a year because a gadfly signed up to challenge it, before the city won, said City Attorney Rick Doyle.

"You never know what you're going to get," he said. "You could get a crazy person filing something."

Riverside attorney Danielle Sakai, who has represented clients in several similar cases for the law firm Best Best & Krieger, said, "It could take years to work its way through the courts, but once that's done, it's done, and it can't be challenged."

Click here to read the entire article on the San Jose Mercury News website.

California's Human Right to Water Law Will Frame Future Policy Debates

28 Mar 2013 00:00:00 -0800

By Eric L. Garner and Lucas I. Quass

California last year adopted legislation recognizing a basic human right to water, joining a handful of other states to do so. While the Legislature limited the reach of the law, it does provide a framework for decision-making to improve access to safe affordable water service. This article examines the scope of AB 685, its legislative history, what it may mean for water distribution in California, and its relationship to certain international laws.

Click here to read the article.