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JONES & MAYER NEWSLETTER
Providing Advice and Representation to Public Entities and California’s Law Enforcement Agencies |
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I. CALAWARE REMINDER
By Gregory P. Palmer, Esq.
It is now time to remind our front counter and public contact personnel that the Calaware auditors may be visiting us soon. In the last three years, Californian's Aware (www.calaware.org) has enlisted the help of local newspaper reporters to conduct audits on California law enforcement agencies compliance with the California Public Records Act (Gov. Code §6250 et seq.) Each of these audits have been conducted in the last three months of the year. Two were conducted in October and one was conducted in early December. So it is time to remind our counter personnel to be on the lookout for a Calaware auditor. Some things are common in each of the audits.
Each of the audits has been designed to test one or two particular parts of the California Public Records Act. They consistently target the area of the Public Records Act that requires certain information about current arrest information or calls for service information (i.e. the department's press board or arrest log) To be
made public Calaware will send an auditor out with a script which is typically designed to ask for information concerning a recent crime, arrest or event. In 2007, they sent auditors out to request information about a recent burglary report, which the auditor located in the local paper for that jurisdiction. In 2006, the auditor asked California law enforcement agencies for crime and arrest information concerning armed robberies, burglaries and sexual assaults which occurred between November 1 and November 15, 2006.
Each one of these requests, when boiled down to their essence, is nothing more than a request to see the
department's press board or arrest log. The sneaky thing about it is the Calaware auditors will not simply ask to view the department's press board or arrest log; they will ask for that information in a very confusing way. I believe this is done with the intention of confusing our counter personnel to such an extent that the encounter can be used to embarrass the law enforcement agency later in print.
We need to send a reminder to all of our personnel that an auditor may visit us on behalf of Calaware in the next few months. Remind our personnel that the request made by the auditor will not be of a routine nature. Conversely, the request will always be the odd non-routine request. The fact that a person comes into the public counter area of a police department and makes a non-routine odd and unusual request is the first
indicator that this person may be a Calaware auditor. Counter personnel should be reminded to treat the person with dignity and respect and to consider very carefully, that the request when boiled down to it's bare essence is nothing more than a request to view the department's press board or arrest log. Hopefully with a reminder to our counter personnel we will be able to reduce a number of embarrassing stories concerning these encounters.
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II. DAVID WILLIAMS v. COUNTY OF BUTTE
By Krista McNevin Jee, Esq.
Jones & Mayer is currently acting as amicus curiae in the matter of David Williams v. County of Butte, Third District Court of Appeal Case No. Case No. C057152, Butte County Superior Court Case No. 137329, on behalf of the California State Sheriffs’ Association, the California Police Chiefs’ Association and the California Peace Officers’ Association. This is yet another case involving various legal issues on the subject of medical marijuana, but is unique in that the issues arise in a civil case.
A Butte County Deputy Sheriff arrived at Mr. Williams’ residential property to inspect marijuana plants growing there. He ordered Mr. Williams to destroy marijuana growing on the property or else be subject to arrest and prosecution. Mr. Williams claims that he was required to destroy 22 of his 41 marijuana plants. He claims that he should have been permitted to keep all of the plants, due to his assertion that the marijuana was being collectively grown for himself and others that were medical marijuana patients. Mr. Williams destroyed the required plants and was not subject to criminal prosecution or arrest. However, he thereafter filed suit against Butte County and other related defendants for the allegedly illegal order for him to destroy his and others’ medical marijuana, being collectively grown for qualified patients.
Mr. Williams claims that his constitutional, statutory and common law rights were violated by the order to destroy the plants and by the threatened criminal prosecution and arrest of him if he refused to do so. The County challenged the complaint by a demurrer, claiming that the Compassionate Use Act did not allow a civil right or damages relating to medical marijuana. The Court denied the demurrer and held that Mr. Williams did have a right to sue if he were able to show legal entitlement to possession and cultivation of the plants. The County directly challenged that ruling to the Court of Appeal. The matter has been fully briefed before the Court of Appeal but no oral argument date has yet been set.
This is an important case in the medical marijuana landscape, as it addresses the expanding concept of the nature of the “right” patients have to medical marijuana. The Court’s decision on this matter may explore whether medical marijuanacan be lawfully possessed or whether medical marijuana can be characterized as “property,” given that medical marijuana is still characterized as “contraband” and a “controlled substance” under both federal and state law, and is still completely banned under federal law as to any possession of this substance, except as to federally-approved research.
The Compassionate Use Act merely provides a criminal defense for certain Health and Safety Code violations, butproponents of an expansion of the medical marijuana laws in California would have the Act provide much greater rights to medical marijuana patients. The clear risk to law enforcement and governmental agencies presented by this case is that they could be required to safeguard, i.e. grow, confiscated marijuana in the event that it may be deemed medicalmarijuana and that there may be liability to agencies for the destruction of medical marijuana.
As this important case progresses to a decision, we will continue to provide updates. Hopefully, the Court in this matterwill curtail the proposed expansion of current medical marijuana law so that law enforcement officers and agencies and public entities will not have to continually deal with the discrepancy between federal and state law by the added fear of liability relating to medical marijuana “property.”
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III. Hiring Hearing Officers for Administrative Citation Appeals
By Chris F. Neumeyer
What are the requirements for a California city to hire a hearing officer to hear appeals from administrative citations? California cities are often uncertain on what exactly can and cannot be done in regards to hiring hearing officers for administrative citations.
Although in 2002 the California Supreme Court ruled entities “that appoint temporary administrative hearing officers must do so in a way that does not create the risk that favorable decisions will be rewarded with future remunerative work,” how to do so remains enigmatic for many cities as the court did not clearly outline what is permissible. Haas v. County of San Bernardino, 27 Cal. 4th 1017, 1020 (2002).
Per the Court’s ruling, cities need to avoid even the possibility of bias, meaning the operative question a city must ask itself is “whether the adjudicator's financial interest would offer a possible temptation to the average person as judge not to hold the balance nice, clear and true.” Id. at 1026. How this is done short of hiring a permanent hearing officer, with all of the attendant financial costs that entails, has bedeviled many small cities in California. Any hiring of administrative officers to hear citation appeals must be guided by the following concern:
[T]he practice of selecting temporary administrative hearing officers on an ad hoc basis and paying them according to the duration or amount of work performed…gives hearing officers an impermissible financial interest in the outcome of the cases they are appointed to decide, because the officers' prospects for obtaining future ad hoc appointments depend solely on the county's goodwill and because the county, in making such appointments, may prefer those officers whose past decisions have favored the county. Haas v. County of San Bernardino, 27 Cal. 4th 1017, 1020.
The Haas ruling concerned a successful due process challenge to the manner in which the county selected temporary administrative hearing officers. The court determined that the due process rights of those seeking appeal of administrative citations were violated by the temporary selection of a paid hearing officer to hear the appeal.
The court reasoned that the possibility of monetary bias was too great when the hearing officer was hired on an as-needed basis, as “a temporary administrative hearing officer has a pecuniary interest requiring disqualification when the government unilaterally selects and pays the officer on an ad hoc basis and the officer's income from future adjudicative work depends entirely on the government's goodwill.” Id. at 1024.
So how can a City hire a hearing officer to hear appeals from administrative citations and stay within the confines of the law? Consistent with the guidelines offered by our state Supreme Court, below are some practical approaches to the Haas issue which have been employed by California cities since the ruling in 2002. Particular emphasis for smaller cities, which have relatively limited financial resources, should be on options numbers six and seven. The options revolve around the core issue of avoiding ad hoc hiring of paid temporary administrative hearing officers.
- Create an official Hearing Officer in the City Manager’s Officer who has civil service protections;
- Create an Administrative Hearing Department made up of civil service employees, rather than “at will” employees;
- Hire full-time, permanent employees as hearing officers;
- Don’t pay the hearing officer;
- Enact a municipal administrative rule that any person appointed would not be eligible for a future appointment until after a pre-determined period of time;
- Appoint a Hearing Officer who serves only during a designated time; or
- Create a pre-established system of rotation for multiple hearing officers, perhaps in conjunction with other cities.
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IV. Quon v. Arch Wireless: Public Employee’s Privacy Interest in Text Messages
By Jamaar Boyd-Weatherby, Esq.
On June 18, 2008, the Ninth Circuit Court of Appeals ruled in Quon v. Arch Wireless that Ontario police officers’ Fourth Amendment rights were violated by the Police Department reviewing their text messages - sent and received on City owned pagers - without the officers’ permission.
In Quon, the Ontario Police Department issued to its officers text messaging pagers. In order to restrict the use of the pagers, the Department established an official policy that the pagers were only to be used for business purposes. However, the Department also established an unofficial policy that the text messages would not be reviewed unless the officer failed to pay the overage for going over the text message limit. The Department decided that it was necessary to break from the unofficial policy of not auditing the text messages in order to determine if the Department needed to change its text messaging plan. While auditing the text messages, it was discovered that many of the text messages were sexual and/or non-business related, which violated the Department’s official policy precluding the use of its phones, computers, and pagers for non-city business.
The Ninth Circuit found that the Department violated the officers’ Fourth Amendment rights by reviewing the text messages. The Court relied on the United States Supreme Court decision O’Conner v. Oretega to establish the principle that public employers can violate an employee’s Fourth Amendment rights by searching through the employee’s computer. The Ninth Circuit extended the holding of O’Conner by determining that public employees have a “reasonable expectation of privacy” in their text messages. Further, the court pointed out that the Department’s informal policy inadvertently extended the employee’s privacy interest in the text messages. The court stated, “we agree with the district court that the Department’s informal policy that the text messages would not be audited if [Quon] paid the overages rendered Quon’s expectation of privacy in those messages reasonable.” The court also determined that the Department’s search was unreasonable because the search was “intrusive in light of the non-investigatory object of the search.”
How This Affects Your Agency
There are multiple lessons that can be learned from Quon. First, the court was very clear that a public employer’s property interest is superseded by an employee’s privacy interest in text messages. Ironically, employees’ privacy interests are not necessarily impacted by contracts or policies that preclude improper use of text messages. Further, these policies do not appear to be bolstered by the fact that the employees have signed agreements that preclude improper use of the employer’s property. Quon had received and signed an explicit written policy which stated that he had no expectation of privacy in the messages.
Second, Quon exemplifies the problems associated with creating informal policies regarding the use of the agency’s property. It must be emphasized that the court determined that one of the employees had a privacy interest in the text messages based purely on his reliance on the informal policy. Thus, the informal policy became the de facto formal policy based upon the employees’ reliance. The court noted that while the lieutenant, who made the informal policy, was not the “official policymaker or even the final policymaker,” his rank and supervisory role made it “reasonable for Quon to rely on the policy—formal or informal—that [the lieutenant] established and enforced.”
It is also important to note that employees’ privacy interests are not without limits. The court cited Muick v. Glenayre and Bohach v. City of Reno to provide examples of ways that employers have successfully limited employees’ privacy rights.In Muick, the court ruled that a public employer’s policy that it would inspect all laptops “destroyed any reasonable expectation of privacy that [employees] mighthave had.” In Bohach, the court determined that employees did not have a reasonable expectation of privacy when the police department had a policy that any message on a city issued pager could be seen by any employee “with access to, and a working knowledge of, the Department’s computer system.” By citing Muick and Bohach, the court seems to suggest that employers can strip employees’ privacy interest by instituting policies that make the item to be searched open to the employer and other employees of the agency. Public employers must minimize the employee's interest in the device – or its products/contents -- by making the device as public (i.e. subject to disclosure) as possible.If this is done then employees have actual notice of the employer’s intent to monitor the information contained within the device. This policy would make the information on the pager more akin to a blog posting; rather than a personal email. Hence, the employee could not reasonably assert any privacy interest because the information is open for everyone to see.
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FIRM ANNOUNCEMENTS — PLUMAS COUNTY
By Jeremy J. Rytky, Esq.
As it was reported in our June newsletter, our firm is working together with Cota, Duncan and Cole as Plumas County Counsel. Cota, Duncan and Cole is a Roseville based litigation firm and interim county counsel. Plumas County is located in the northeastern portion of California where the Sierra Nevada and the Cascade mountain ranges meet. The county is an outdoorsman’s dream boasting a total land area of 2,600 square miles which includes over 1,000 miles of rivers and streams, more than 100 lakes and some million acres of national forestland. Despite its vast size, only about 22,000 people call Plumas home. While Quincy is the county seat, Portola is the county’s only incorporated city.
Even though Plumas County is a rural area with a small population, it faces many of the same issues and concerns that Jones & Mayer is accustomed to handling for its other municipal clients. Among the services that the firm will provide include: Advising the county on labor and employment issues, drafting and revising county code sections, drafting and reviewing agreements, Brown Act compliance, handling conflict of interest (PRA and 1090) matters, and providing legal opinions and analysis on a variety of other issues as required. Needless to say, the firm is excited about this new relationship and is looking forward to working with the County’s Board of Supervisors, Department Heads and staff.
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ADDITIONS TO THE FIRM
KATHYA M. OLIVA, ESQ.
Kathya M. Oliva joined the law offices of Jones & Mayer in July 2008. Ms. Oliva serves as a deputy city attorney for the cities of Costa Mesa, Fullerton, La Habra, South Pasadena, Westminster and Whittier. Her primary areas of practice include municipal law, transactional law, and civil litigation. Ms. Oliva's duties include drafting and revising municipal code sections, drafting and reviewing agreements, handling conflict of interest (PRA and 1090) matters, preparing legal opinions and analysis on a variety of issues affecting public entities. She also performs city prosecutorial duties.
Due in part to her unwavering commitment to success, Ms. Oliva graduated from Whittier Law School in May 2007, having earned a solid reputation for academic success and philanthropic involvement. The enthusiastic Southern California native served as a President of the Hispanic American Law Student Association and was an active member of the Public Interest Law Foundation. During her undergraduate studies at the University of California at Irvine, Ms. Oliva also volunteered with the Blind Children's Center.
Because of her firm dedication to the advancement of those who are frequently forgotten, Ms. Oliva researched human rights violations in El Salvador in hopes of drawing the world's attention to the need for international intervention. Further highlighting her passion for global affairs, the outdoor enthusiast also served as a Model United Nations Member at University of California at Irvine.
Throughout law school, Ms. Oliva consistently submersed herself within the legal world by serving as a Law Clerk for Fakhimi & Associates, the Law Offices of Richard M. Procida, the United States Equal Opportunity Commission, and San Pedro Community Legal Services. Realizing the need to diversify her experience, Ms. Oliva also served as a Congressional Intern for the Honorable Loretta Sanchez and worked as an Assistant Mediator for the Newport Beach Unified School District.
Her intense commitment to public service, combined with a solid history of community activism, makes Kathya M. Oliva a tremendous asset to the legal world. Her passion, resilience, and energy add incredible value to the Jones & Mayer team.
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