NEWSLETTER

I. SUPREME COURT RULINGS

CALIFORNIA SUPREME COURT DECISION ON SB 402

(BINDING ARBITRATION)

The Legislature recently enacted Senate Bill No. 402 (1999-2000 Reg. Sess.) ("SB 402"), entitled "Arbitration of Firefighter and Law Enforcement Officer Labor Disputes," which empowers unions representing public safety employees to declare an impasse in labor negotiations and require a local agency to submit unresolved economic issues to binding arbitration. Cal. Code Civ. Pro. § 1299 et seq. Each party chooses an arbitrator, who together choose the third arbitrator. Cal. Code Civ. Pro. § 1299.4 (2003). The panel then chooses between each side's last best offer, based on a designated list of factors. Cal. Code Civ. Proc. §§ 1299.4, 1299.6 (2003). SB 402 applies to any local agency or any entity acting as an agent of a local agency. Cal. Code Civ. Proc. § 1299.3 (c) (2003).

The County of Riverside ("the County") and the Riverside Sheriff's Association ("the Association") engaged in negotiations over compensation for employees of the probation department at which they reached an impasse. County of Riverside v. Superior Court of Riverside County, 66 P.3d 718, 2003 Cal. LEXIS 2426, *4-5 (Sup. Ct. April 21, 2003). The Association requested that the dispute be submitted to binding arbitration pursuant to SB 402. Id. The County refused, claiming that the Legislature's compelling it to enter into binding arbitration of compensation issues violated section 1, subdivision (b), and section 11, subdivision (a) of the California Constitution. Riverside, 2003 Cal. LEXIS at * 7.

This article discusses the California Supreme Court's ("the Court") analysis in ruling that SB 402 was unconstitutional. Id. at *4.

On the outset, the Court clarified that the issue is not whether a county may voluntarily submit compensation issues to arbitration but whether the Legislature may compel a county to submit to arbitration involuntarily. Id. at *7-8. In particular, the issue focused on the division of authority between the state and the county and not what the county may itself do. Id. at *8. The Court's holding on this issue is beneficial for general law and charter cities as well.

County Prerogatives

As it applies to counties, SB 402 violates article XI, section 1(b) of the California Constitution. Id. at *25. Section 1 (b) provides that, "The governing body [of each county] shall provide for the number, compensation, tenure, and appointment of employees." Id. at *10. The Court emphasized that the constitutional language is clear and specific in that the County, not the state, or someone else, shall provide for the compensation of its employees. Id. In conflict with that provision, SB 402 compels the County to enter into mandatory arbitration with unions representing its employees, with the potential result that the arbitration panel determines employee compensation. Id. SB 402 permits the union to change the County's governing board from the body that sets compensation for its employees to just another party in arbitration. Id. at *11. It thereby deprives the County of authority section 1(b) specifically gives to counties. Id.

A literal reading of the case can result in an interpretation that this argument applies only to counties. However, the County constitutional language is very similar to that relating to charter city prerogatives. Moreover, the Court relied on charter city cases in concluding that SB 402 violates this aspect of California's Constitution as well. See Id. Therefore, this part of the opinion is beneficial for charter cities as well. However, we are not sure as to whether general law cities would receive the same benefits described in this section of the article under section 1(b) of article XI.

Unlawful Delegation to Private Person

The Court also held that SB 402 violates section 11(a) of article XI of the California Constitution. Id. at *26. Section 11(a), provides that, "The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions." Id.

The Court agreed with the County's argument that in enacting SB 402, the Legislature has impermissibly delegated to a private body (the arbitration panel) the power to interfere with county money (by potentially requiring the County to pay higher salaries than it chooses) and to perform municipal functions (determining compensation for county employees). Id. The Court reasoned that decisions relating to employee compensation are a "municipal function." Id. at *28.

The Court also distinguished between the power to regulate labor relations and the power to delegate regulatory authority to a private arbitration panel. Id. at *31. The Court indicated that the Legislature's power to regulate labor relations as to matters of statewide concern does not permit it to delegate the regulatory authority to an arbitration panel. Id. The Court concluded that SB 402 does not just permit the arbitration panel to impinge minimally on the County's authority; instead it empowers the panel actually to set employee salaries. Id. The Court also rejected arguments that the arbitration panel is a public body. Id. at *32.

In conclusion, the Riverside decision allows for cities (general law or charter) to delegate its own authority. However, the Legislature cannot delegate that authority on behalf of the cities. As applied to charter cities, the Riverside decision does not affect voter-adopted charter provisions providing for binding arbitration. The case only prohibits the Legislature from imposing binding arbitration.

II. ACTS

CITIES' COMPLIANCE WITH HIPAA

The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Public Law 104-191, was enacted on August 21, 1996. Under HIPAA the Secretary of the Department of Health and Human Services ("HHS") was required to establish standards for the electronic exchange, privacy and security of health information. These are known as the Administrative Simplification provisions. Of those provisions, one of the most important is the Privacy Rule, which was published in its final form on August 14, 2002. The Privacy Rule created for the first time a national standard for the protection of health information. The primary goal of the Privacy Rule was to assure that a person's personal health information is properly protected, while at the same time allowing the proper amount of information to flow so as to promote high quality health care and to protect the public's health. The Privacy Rule explains how and under what circumstances organizations subject to HIPAA are permitted to use and disclose a person's protected health information ("PHI").

Who Qualifies as a Covered Entity?

Entities that must comply with the new privacy regulations include: health plans; health plan clearinghouses; and health care providers who conduct certain financial and administrative transactions electronically (the "covered entities"). Covered entities can also include certain business associates of the abovementioned groups.

1) Health Plans. In general all individual and group plans that provide or pay the cost of medical care are considered covered entities under HIPAA. The term health plan includes health, dental, vision, and prescription drug insurers, and health maintenance organizations ("HMOs"). It also includes employer sponsored group health plans, government and church-sponsored health plans, and multi-employer health plans. Group health plans, however, that are administered solely by the employer and which have less than 50 participants, will not be considered a covered entity.

2) Health Care Providers. Any health care provider, who electronically transmits health information in connection with certain designated transactions (i.e. claims, benefit eligibility inquiries, referral authorization requests, etc.), will be considered a covered entity. The Privacy Rule covers a health care provider whether it electronically transmits these transactions directly or uses a billing service or other third party to do so on its behalf.

3) Health care clearinghouses are companies that process nonstandard information they receive from another entity into a standard format, or vice versa (e.g. billing services, etc.).

Applying the above to cities, there are a number of situations where a city would probably be required to comply with the HIPAA privacy regulations. These are as follows: if the city self- insures its employee benefits, including group health plans and health flexible spending accounts (as opposed to a fully insured benefit plan); if the city owns and operates a medical clinic, hospital or nursing home; if the city has a public health department; and to the degree the city owns and operates its own paramedic or ambulance service. In addition to the preceding, in many situations the city's human resource/benefits staff is often responsible for performing the plan sponsor functions of the group health plan, and may receive PHI in the course of performing these functions. In those situations, the city may need to comply with HIPAA if it is determined that those staff members are receiving, using, disclosing or otherwise maintaining PHI as part of their overall functions. Cities will also need to make sure that there is adequate separation between its employment-related functions and the group heath plan functions, to ensure that the PHI is not being used to make employment related decisions, which is impermissible.

Compliance Dates. All covered entities were required to have been compliant with the new Privacy Rule by April 14, 2003. Small health plans, however, have until April 14, 2004 to comply. A small health plan is defined as health plan with annual receipts of not more than $5 million dollars. Notwithstanding this fact, cities still must comply by April 14, 2003, to the degree that it qualifies as a health care provider (e.g. by operating a paramedic service, etc.).

Definition of PHI. Protected health information (PHI) is information which is created, modified, received or maintained by a covered entity, that relates to an individual's past, present or future physical or mental condition, treatment or payment of care. The following are examples of the types of information which could be considered PHI (or could contain PHI): Medical records, a diagnosis of a certain condition, procedure codes, claims data, explanation of benefits, crime reports, coordination of benefit forms, etc. The information does not necessarily need to provide an individual's name, address or social security number to be considered PHI. It will be protected, so long as there is a reasonable basis to believe the information could be used to identify the individual. For example, a high dollar claim report that contains only diagnoses or procedures, and amounts paid during a specific period, might contain PHI if the city has a relatively small number of participants in the health plan. In light of this fact, smaller cities may need to take extra precautions to ensure that PHI is protected, even if the information is being provided on an aggregate basis.

How Will Cities Be Affected?

Self-Insured Benefit Plans. As a general rule, if a City has a self-insured group health plans, it will be considered a covered entity and will have to comply with the Privacy Rules. In such case, the city will be required to take steps to ensure that it is in compliance, including the development of policies and procedures outlining how PHI will be used and disclosed. The first step will involve a department by department assessment to determine which departments have access to and use of PHI, and what steps need to be taken to protect that information. Members of the assessment team may include the city administrator, city attorney, human resources and/or benefits staff, the finance department and representatives of other affected departments. By pulling key employees together, cities will be in a better position to develop a comprehensive and effective plan for compliance.

Fully Insured Group Benefit Plans. On the other hand, if a city maintains its coverage through a fully-insured benefit plan (i.e. it is providing coverage through a health insurance issuer or an HMO), and it is not otherwise creating, maintaining or receiving PHI, it will probably be exempted from having to comply with the HIPAA Privacy Rules. HIPAA allows an exemption, because those requirements are instead being satisfied by the insurance issuer or HMO. In light of this fact, it is important for cities to contact their respective insurance carrier(s) to make sure the carriers are currently in full compliance. Moreover, in order to keep this exemption, cities are required to maintain a completely "hands-off" approach as far as the health insurance relationship is concerned. Each situation will be examined on a case by case basis in order to determine if compliance under HIPAA is required. The more it appears that a city is actually involved in creating, maintaining and/or receiving PHI, the more likely it will be subject to the HIPAA Privacy Rules.

In addition, it is also important to remember that whenever this exemption is applicable, the city is going to be prohibited from receiving any PHI unless it first obtains written authorization from the individual who is the subject of the information. This means that a city with a fully insured health plan will only be able to receive aggregate claims data (summary information) from the health insurance carrier for purposes of renewing benefits. Also, if an employee is seeking assistance from the city's human resource staff in trying to resolve a claim or an appeal with the insurer, the city will not be able to receive any information about the claim until it first obtains written authorization from the employee. This may include the need to get written authorization from a spouse or a covered dependent who is no longer a minor, even if the claim issue was originally initiated by the employee.

As mentioned above, a city will also be considered a covered entity to the degree that it directly acts as a health care provider, such as when it operates its own paramedic or ambulance service. In these situations, where a city is conducting both covered and non-covered functions (i.e. where the city has a fully insured benefit plan, but operates a paramedic service), it may be possible for the city to make an election to be treated as a "hybrid entity." To make this election, the city must simply designate in writing each of its components that perform covered functions (the "health care components"), and which do not. Once this designation has made, most of the requirements of the Privacy Rule will only apply to the health care components that have been designated. A covered entity that does not make this designation will be subject in its entirety to the Privacy Rule.

Our office is available to provide cities and other public agencies with assistance in HIPAA compliance, including updating policies and procedures, providing training in HIPAA implementation, and the handling and protection of PHI and privacy notifications. You can also consult the HHS website which is located at http://www.hhs.gov/ocr/hipaa.

III. AMICUS BRIEFS

INYO COUNTY v. PAIUTE SHOSHONE INDIANS

Paul R. Coble and Martin J. Mayer of the

Law Offices of Jones & Mayer were pleased to provide amicus curiae briefing on behalf of the California State Sheriffs Association (CSSA)⁽¹⁾ in the successful appeal by the County of Inyo to the United States Supreme Court in Inyo County v. Paiute Shoshone Indians [2003 DAR 5282].

This case arose from a criminal investigation of alleged welfare fraud by law enforcement officials of Inyo County wherein it appeared that certain members of the Paiute Shoshone tribe were collecting welfare as being unemployed while actually working full time at the tribal casino. County officials obtained a search warrant from a superior court magistrate and went to the casino business office seeking to obtain employment records. When tribal officials asserted sovereign immunity from state court processes, the padlock securing the space where employment records was maintained was cut and the records were seized.

The tribe challenged this action through a suit brought in United States District Court pursuant to 42 USC §1983. The District Court granted summary judgment in favor of Inyo County, but the Ninth Circuit Court of Appeals reinstated the tribe's action, stating that the actions of County officials violated the federal civil rights statute and that the individual officials involved were not entitled to qualified immunity.

The Supreme Court granted certiorari and several state and local governments and associations weighed in on behalf of the County, including CSSA through the services of Jones & Mayer.

By its decision dated May 19, 2003, the Supreme Court declared that the tribe was not a "person" within the meaning of 42 USC §1983 and thus could not maintain an action under the federal civil rights statute. The matter was remanded to the District Court for further development of what, if any, federal common law theories the tribe could credibly assert as a basis for relief from the actions of state law enforcement authorities. We emphasize the words "if any" as the high court only noted that the tribe made reference to the existence of such rights, but that both the record and the high court's own understanding of the law did not provide further enlightenment as to what these rights or theories of relief might be.

Obviously the outcome of this case must be seen as a victory for the County of Inyo and its many supporters. However, it must also be noted that the Supreme Court has left unanswered the question of whether, and through what means, state and local law enforcement in Public Law 280⁽²⁾ states can enforce state laws and legal processes on tribal lands and/or as against nominally tribal business enterprises such as casinos. While it appears to be lawful and necessary for police in Public Law 280 states, such as California, to do so, and while we now know that such enforcement efforts cannot be challenged by a tribe through a §1983 action, it still cannot be said with absolute certainty that there is not some other basis of legal challenge by a tribe.

IV. ASSEMBLY BILL

AB 1866

With the passage of Assembly Bill 1866,

most cities are far along in adopting regulations consistent with the requirements codified in Government Code Section 65852.2. While most of us are familiar with the general provisions, the following discusses some particular standards that have been proposed by cities governing second units.

With respect to vehicle parking requirements Section 65852.2(e) provides, "[o]ff street parking shall be permitted in setback areas in locations determined by the local agency or through tandem parking, unless specific findings are made that parking in setback areas or tandem parking is not feasible based upon specific site or regional topographical or fire and life safety conditions, or that it is not permitted anywhere else in the jurisdiction." (Emphasis added.)

Cities such as Fullerton and Westminster have interpreted this very last segment of Section 65852.2(e) as an exemption from setback and/or tandem parking since neither has previously been allowed in the jurisdiction. Read literally, it seems a fair interpretation but one that may proscribe the construction of second units.

With respect to limiting second units within single family residential communities Section 65852.2(c) provides that, "[n]o local agency shall adopt an ordinance which totally precludes second units within single-family or multi-family zoned areas unless the ordinance contains findings acknowledging that the ordinance may limit housing opportunities of the region and further contains findings that specific adverse impacts on the public health, safety, and welfare would result from allowing second units within single-family and multifamily zoned areas."

The City of Santa Ana has cited inadequate park space with specific findings as a basis for excluding second units in certain neighborhoods. The findings include the City's failure to meet its General Plan standard of two (2) acres of open space per one-thousand (1,000) residents such that there is a need to preserve additional back yard space. The ultimate result being that any single-family residence not located within one-quarter (¼) mile of a park is prohibited from constructing a second dwelling unit.

These are but a couple of the requirements that are borne out of AB 1866. As Housing and Community Development (HCD) receives ordinances from these and other jurisdictions, it will be interesting to see the response and whether the respective ordinances will continue to strike the balance between alleviating a housing shortage while maintaining residential character.

V. SUPERIOR COURT

NOTICE OF RIGHT TO SEEK MANDAMUS REVIEW OF DISCIPLINARY APPEAL

Final administrative decisions on appeals from disciplinary actions at the city, county or local agency level are subject to Superior Court review pursuant to Code of Civil Procedure §1094.5. For example, the disciplinary appeal decisions of hearing officers, personnel boards, civil service commissions, etc., can be appealed by the employee⁽³⁾to court by filing an action known as a writ of mandate. The only exception is where the jurisdiction has adopted final and binding arbitration.

However, the person seeking such review must file the action in Superior Court within ninety (90) days of the decision becoming final. But this ninety (90) day period does not begin to run until the person is given notice pursuant to Code of Civil Procedure §1094.6 of his/her right to seek mandamus review. And it is the responsibility of the local agency to give this notice in writing.

This notice is very simple, and can be set forth at the end of the written findings and decision of the local agency by use of the following language:

"Pursuant to Code of Civil Procedure §1094.6, you have ninety (90) days from the date this decision was mailed to you within which to seek review of this decision pursuant to Code of Civil Procedure §1094.5. This decision was mailed to you on ________________, 2003."

It is recommended that local agencies adopt this or similar language as a means of ensuring that this simple, yet critical, step of the procedure is not overlooked.

DISCLOSURE OF SALARY INFORMATION

A recent ruling of the Superior Court in the County of San Mateo has renewed a debate about the obligation of government agencies to disclose salary information on employees or officers. City attorneys throughout the state have had varying opinions regarding whether disclosure under the Public Records Act is required.

In San Mateo, the court issued a preliminary injunction restraining the following public entities from releasing "records containing salary, overtime, bonus or any other compensation information, in any such form that discloses such compensation received by individually identifiable employees" for certain classifications of employees: Town of Atherton, City of Burlingame, City of Foster City, City of San Carlos, and City of Belmont. Teamsters Local 856, et al. v. City [sic] of Atherton, San Mateo Superior Court, Case No. CIV-429950. The San Mateo Superior Court specifically found "a reasonable expectation of privacy in the employees based on the confidentiality policies of the City" and also found "a failure [by Plaintiffs] to articulate or show the public interest in the disclosure of information." The San Mateo Superior Court ruling, however, is not binding on any other Superior Court in the State. Until the law is clear from the Court of Appeal or the California Supreme Court,⁽⁴⁾ other Superior Courts are free to disagree.

Some cities have taken the position that public officer salaries, not public employee salaries, are public records. Others believe that even public employee salaries are public records, but that other information on pay check "stubs" is exempt from disclosure, since such material is directly related only to highly personal information.

Our overall conclusion is that the salaries of employees and/or officers with significant policy making authority and discretion should be disclosed as a matter of course. A public agency, however, may be justified in generally refusing to disclose the salaries of individual standard employees, and instead, for instance, disclosing only salary classifications and salary ranges without identification of particular, individual employee names and salaries. This may, for most purposes, satisfy the public's interest in monitoring the compensation of public employees while still protecting the privacy of the individuals. In keeping with the principles discussed below, however, there may be circumstances where the public right to know would require disclosure, even if a refusal to disclose individual salaries would otherwise be found appropriate. Finally, public agencies are likely completely justified in disclosing salary information but refusing to disclose personal information, other than name, salary and classification, contained in any salary records. Following is our analysis of some of the legal authorities which shed light on the subject of salary disclosure.

First and foremost, employment contracts of local agencies are specifically required to be disclosed, despite a specific exemption for personnel files and an exemption based on the balancing of the interests in disclosing and in not disclosing a particular record. Cal. Govt. Code §§ 6254, 6254.8 & 6255. If the salary of an employee or official is contained in that individual's employment contract, such information, in that context, would not be exempt from disclosure.

In contrast, salary information, or any other information, contained in a "personnel file" is exempt from disclosure, if disclosure "would constitute an unwarranted invasion of personal privacy." Cal. Govt. Code § 6254 (c) (exempted records include "[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy"). Disclosure is "unwarranted" if it is not "justified in light of the surrounding circumstances." 64 Cal. Op. Atty. Gen. 575 (1981) (internal quotations omitted). This involves a balancing of the "degree of invasion of privacy against the public interest served by disclosure." Id. (internal quotations omitted). The Attorney General opined that the balance weighed in favor of privacy where the payroll records to be disclosed contained the name, social security number, hourly wage, deductions from salary, trade of, and total number of hours worked by individual, privately employed carpenters working on a public project. Id.

In particular, the Attorney General noted that social security numbers have been "the focus of national debate on personal privacy" and that deductions "are computed on an individualized basis using data that we have regarded as personal and deserving of privacy (such as gross salary or wage classification but also data which is totally unrelated to the carpenter's work (such as number of claimed exemptions or marital status) and the disclosure of which serves no public interest. Id. However, under the facts presented to the Attorney General in that instance, the employees were not public employees and any public interests that would apply "could be served through less obtrusive means." Id.⁽⁵⁾

The Attorney General has specifically noted in another opinion, however, that the disclosure of deductions from a county officer's salary to satisfy a state or federal tax lien "cannot be viewed in the same light as disclosing payroll deductions for medical insurance premiums or deferred compensation investments." 82 Cal. Op. Atty. Gen. 159 (1999). In this particular opinion, however, the Attorney General "conclude[d] that a county auditor-controller is generally prohibited from disclosing to the public information regarding the amount of money deducted from an elected county officer's salary to satisfy a state or federal tax lien, but special circumstances may allow for such disclosure in a particular case." Id. The "special circumstances" considered by the Attorney General in that instance included the fact that the public was aware of the tax dispute between the district attorney and tax officials, which had received widespread media attention, and the fact that the liens themselves were a matter of public record. In addition, the Attorney General pointed out that the public interest "in ensuring accountability is particularly strong where the discretion invested in a government official is unfettered" and "[w]hat the district attorney does in reducing his tax debts affects the public's trust in the performance of his official, discretionary duties." Id.

The Attorney General has also opined that the names and amounts received by former county employees for retirement benefits, contained in county payroll records are subject to disclosure. 60 Cal. Op. Atty. Gen. 110 (1977). Without qualification or specific citation to any legal authority, the Attorney General concluded, as part of this opinion, that "the name of every public officer and employee, as well as the amount of his salary, is a matter of public record." Id. The opinion cited to a previous Attorney General opinion which concluded that "the records of the controller indicating amount of individual payments to retired persons and the names of individual payees were public records open to inspection." Id. (citing 25 Cal. Op. Atty. Gen. 90 (1955)). This prior opinion relied upon the provisions of former California Government Code Section 20134, now Section 20230, which provides for individual retirement records of members are confidential and not to be disclosed. Id. The Attorney General recognized similar provisions in California Government Code Section 31532 as to counties, but concluded again that the type of information protected included information provided to the board of the retirement system by the employee, such as "addresses of members and beneficiaries, statements as to age and disability, names of relatives and dependents, retirement option elections and similar matters." Id. (internal quotations omitted) (quoting 25 Cal. Op. Atty. Gen. 90 (1955)). The Attorney General opined that the roll of payees and payments created by the controller was not an individual record or the type of confidential information provided by members sought to be protected by Section 20230 or 31532.⁽⁶⁾

The question remains whether salary information, in particular, is subject to disclosure. The Attorney General has concluded, based upon California Government Code Section 6254.8, quoted above, that "the amount of a district attorney's total salary is a matter of public record." 82 Cal. Op. Atty. Gen. 159 (1999). This conclusion, however, may also be based upon the principles set forth above, namely the amount of discretion that a public officer has weighs the balance in favor of public disclosure instead of individual privacy.

The California Court of Appeal has held that the salary card of a city employee, although a public record, could have been exempted from disclosure since the card contained information of a "personal nature." Braun v. City of Taft, 154 Cal. App. 3d 332, 344, 201 Cal. Rptr. 654, 660 (1984). The information which the Court of Appeal considered "personal" included the city employee's "address, birth date, social security number, his job classifications, his salary and credit union number," as well as a phone number which may have been his home telephone. Id. The Court ultimately concluded, however, that the trial court was within its discretion to find that disclosure was not an unwarranted invasion of personal privacy, and refused to reverse the trial court, noting that the information on the card was not embarrassing, telephone numbers and addresses are "seldom secret" and no one would likely "find interest" in his social security and credit union numbers or birth date. Id. at 345, 201 Cal. Rptr. at 661. The Court also noted that "[a] salary classification is public information." Id. (emphasis added) (citing Cal. Govt. Code § 6254.8 (public employment contracts as public records)). Cf. Campbell v. United States Civil Service Commission, 539 F.2d 58 (1976) (holding that under the Freedom of Information Act, which is used by California Courts in construing the Public Records Act, disclosure of job classifications, salary information and over classification of individual employees in a report evaluating a government agency could cause embarrassment, was a serious invasion of privacy, would not further the public interest anymore than a more general disclosure of the agency's performance, and justified non-disclosure.

The Braun Court also noted that, "[a]lthough one does not lose his right to privacy upon accepting public employment, the very fact that he is engaged in the public's business strips him of some anonymity." Braun, at 347, 201 Cal. Rptr. at 662. There is also an important "right of the public to oversee the actions of governmental employees." Id. These points should be kept in mind in any balancing and analysis of whether any information relating to public employees should be disclosed.

Except as to any particular circumstances which may weigh particularly in favor of disclosure, a public agency should remain consistent in whatever position it takes as to the disclosure of salary information. Public agencies should also keep the following general information relating to application of the Public Records Act in any request which includes within its scope the disclosure of salary information.

Even if a public record is not otherwise exempt, the "catchall" exemption may apply based upon the circumstances of a specific request and a particular document. Cal. Govt. § 6255 (a). A public agency may justify a refusal to disclose a public record if, "on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." Id.

Public agencies are not required to create records that do not exist. Framed another way, public agencies are only required to provide records which already exist and are responsive to a request. The very definition of "public records"indicates that only existing writings "containing information relating to the conduct of the public's business" whether "prepared, owned, used, or retained" by a local agency are subject to disclosure. Cal. Govt. Code § 6252 (e). In other words, an agency would generally not be required to peruse its record in order compile a list of information sought in a public records request.

Public agencies may disclose only portions of public records, if some part of a public record is exempt from disclosure. In particular, the California Government Code specifically provides that "[a]ny reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law." Cal. Govt. Code § 6253 (a). Even if a public agency determines that it should disclose all employee and officer salary information, the agency may still refuse to disclose other personal information on records containing requested salary information.

VI. FIRM NEWS

ATTORNEY SPOTLIGHT: GREGORY P. PALMER, ESQ.

Gregory P. Palmer joined the law office of Jones & Mayer as a Senior Associate in 1999. Prior to that, Mr. Palmer spent almost ten years with the Law Offices of Mayer, Coble & Palmer. He has extensive experience acting as a legal advisor to more than 100 Chiefs of Police and Sheriffs throughout the State of California. In that capacity, he has provided legal assistance in all aspects of operating a police department. Mr. Palmer has represented Chiefs of Police in more than 70 disciplinary appeal hearings and arbitrations with a 90 % success rate. He has also handled several disciplinary hearings involving firefighters and public works employees. Mr. Palmer is experienced in excessive force, dishonesty, insubordination, off-duty criminal conduct and other matters. He has appeared in court on "Pitchess" motions hundreds of times and has prepared and argued a dozen appellate court writs challenging improper trial court decisions on these motions. Mr. Palmer has also briefed and argued approximately 15 administrative writ petitions on discipline cases and AB301 issues. Prior to entering the practice of law, he was a police officer for 10 years in La Palma, California.

Mr. Palmer is also conversant in all aspects of the criminal prosecution of city code enforcement cases. He has performed as the City Prosecutor in 10 local cities. Mr. Palmer has prosecuted thousands of cases over the years, about four dozen of which went to jury trial. Mr. Palmer has developed unique expertise in prosecuting sexually oriented businesses, both criminally and by administratively suspending or revoking city permits.

Recently, Mr. Palmer has handled several high profile cases. In 1997, he prosecuted the First Southern Baptist Church and its pastor for illegally housing the homeless on its grounds. This case gained national notoriety and the city prevailed on appeal. He filed an injunctive action and negotiated the final closure of the last remaining X-rated theater in Orange County. Mr. Palmer has also assisted in municipal code prosecution arising out of the multi-department task force approach to critical problem areas. In 1998, Mr. Palmer and fellow members on the Buena Park Neighborhood Improvement Task Force were nominated for the Orange County Human Relations Commission Community-Oriented Policing Award.

Mr. Palmer has lectured at POST-approved programs, conferences, and numerous police departments on topics such as civil liability, sexual harassment, legal update, force, discipline and "Pitchess" motions. He has also lectured on topics related to city prosecutor functions to code enforcement associations in Southern California and Texas. He is the principal author of CPOA's "Pitchess Motion Manual", 1999 revision, and in October, 1999 was named the Chair of the CPOA, Police Legal Advisors Committee, Southern Section. Mr. Palmer is the instructor for the CPOA Pitchess Motion Update Class.

UPCOMING EVENTS

June 7, 2003 - City of Westminster - Mayor's Ball

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1. Mr. Mayer has for many years served as counsel to CSSA.

2. Pursuant to Public Law 280, Congress has declared tribal lands in several western states, including California, to be subject to the law enforcement protection and authority of state and local policing agencies.

3. And under certain circumstances, by the employer.

4. Although there are several Attorney General opinions which provide analysis relating to the issue of salary disclosures, such opinions, while entitled to great weight, are not binding on any of the courts in the state.

5. In fact, a public agency is required by law to mark out or obliterate certain individual and personal information from certified payroll records. Cal. Labor Code § 1776 (b)(e).

6. Cities may be subject to the same analysis, depending on the nature of any particular document, based upon their participation in the Public Employee Retirement System. Cal. Govt. Code § 45345 (cities may contract in State Employees' Retirement system, "pursuant to law"). See also, Cal. Govt. Code § 20506 (contracting agency and its employees shall be subject to all provisions "of this part" except those expressly inapplicable).