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NEWSLETTER |
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I. EMPLOYMENT LAW
AB 1825 adds section 12950.1 to the California Government Code to require that certain employers provide sexual harassment training. Section 12950.1 provides that by January 1, 2006, an employer having fifty (50) or more employees must provide at least two hours training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position.
Any employer who has provided this training and education to a supervisory employee after January 1, 2003, is not required to provide training and education by the January 1, 2006, deadline. After January 1, 2006, each employer covered by section 12950.1 must provide sexual harassment training and education to each supervisory employee once every two years.
The training and education required by section 12950.1 must be by classroom or other effective interactive training and education, and must at least include: (1) information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and remedies available to victims of sexual harassment in employment; and (2) practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. Additionally, the training and education must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
A claim that the training and education required by section 12950.1 did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. However, an employer's compliance with section 12950.1 does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
If an employer violates the requirements of section 12950.1, the Department of Fair Employment and Housing will issue an order requiring the employer to comply.
Finally, the training and education required by section 12950.1 is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.
II. PREVAILING WAGE LAW
Recently, the California Supreme Court issued its opinion in City of Long Beach v. Department of Industrial Relations, 34 Cal. 4th 942 (2004). This was an eagerly awaited decision because of the importance of the issues presented. The Court addressed whether an animal control facility built on City of Long Beach land and leased by a private developer, the Society for the Prevention of Cruelty to Animals of Los Angeles (SPCA-LA), was a public work subject to prevailing wage law (PWL) because the City had provided public funds that were used to pay for pre-construction costs and expenses.
The Supreme Court reversed the Court of Appeal, but declined to address the important issues. In the Court's own words, they left "open for consideration at another time important questions raised by the parties, including (1) whether, assuming the project indeed was a 'public work' under section 1771, it should be deemed a 'municipal affair' of a charter city and therefore exempt from PWL requirements, and (2) whether the PWL is a matter of such 'statewide concern' that it would override a charter city's interests in conducting its municipal affairs." Id. at 947.
The basis of the Court's holding was that the 2000 amendment to section 1720(a) of the Labor Code, expanding the definition of "construction" to include work performed during the design and preconstruction phases of the project (such as inspection and land surveying), only operated prospectively from its effective date of January 1, 2001, The Court thus rejected the DIR's argument that the amendment clarified existing law. The contracts between the City and SPCA-LA were executed in 1998, and mostly performed prior to the amendment's effective date. At the time of the contracts' execution and performance, the Court said, the term "construction" did not include language that indicated that pre-construction work was also subject to PWL. While the DIR's interpretation of the term was entitled to deference, the Court concluded that the 2000 amendment, as the Assembly Committee on Labor and Employment Report indicated, codified DIR practice into law rather than reflecting existing law.
The effect of the Supreme Court opinion is that it remains unclear whether or not PWL applies to projects that are deemed municipal affairs for charter cities, and if PWL is an issue of statewide concern, as mentioned above. With respect to how broadly the term "construction" is defined for PWL purposes, all we are left with is the current wording of section 1720(a) and the DIR's precedential opinions on the subject.
Of particular concern to public entities is to what extent professional services connected to a particular project, such as architectural plans and legal services, may be subject to PWL.
The DIR has rejected the argument that professional services should not be subject to prevailing wages. In Decision No. 2000-006 at pp. 5-6 (SPCA-LA Companion Animal Village and Education Center) the DIR stated that "architectural work, legal work, insurance expenses and project management, all of which constitute either pre-construction work or work necessary to the construction" of a project are included in the definition of "construction" for PWL purposes. See also, Decision No. 2001-068 (Field Technician Observation and Testing, Los Angeles County Sanitation Districts Sewer Line Project, July 19, 2001) at p. 4.
In sum, professional service contracts that are related to a public works project are most likely subject to PWL requirements. The nature of the services is probably not dispositive. The question is not whether the professional services contract requires construction, but whether it involves work by contractors, subcontractors (or their employees, agents, etc.) in the execution of a public work.
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The Court of Appeal had deferred to the DIR’s interpretation, and had taken the position that “construction” “should be interpreted broadly to include not only the actual building of a structure but the activities integrally connected to the actual building and without which the structure could not be built. . . . Under this interpretation, activities such as architectural design, project management, legal services, surveying and insurance are part of a project’s ‘construction’ for purposes of the California prevailing wage law.” City of Long Beach v. Department of Industrial Relations, 110 Cal. App. 4th 636, 646 (2003), superseded by grant of review.
III. CITY LIABILITY
We bring this recent case involving the City of Fontana to your attention because of the implications it has on the liability of a City for the lack of sidewalks. Knowing the facts of the case and the evidence presented against Fontana at trial may help you to minimize any such potential liability for your City. Here, although the jury verdict required Fontana to pay over $28 million, the good news is that the court granted Fontana's motion for a new trial and set aside the verdict. There will be a new trial, which may result in a better outcome.
On September 20, 2004, in the case of Medina v. City of Fontana et al., a San Bernardino County jury found that the City of Fontana was 75% liable for the death of a 14-year-old girl who was struck by a car as she walked along a street with no sidewalk after school. The jury awarded the girl's parents $37.5 million in damages, making Fontana liable for over $28 million.
Karen Medina was walking along Cypress Avenue in Fontana, which does not have sidewalks, when an unlicensed 15-year-old driving over 50 miles per hour, in a car his parents had lent him, lost control as he passed another car, hit a tree, and struck and killed her. Her parents sued Fontana and the driver's parents.
During the trial, the attorneys for the girl's parents argued that Fontana failed to act on reports that the lack of sidewalks created a hazard because of the heavy volume of vehicle and pedestrian traffic before and after school. He said that the girl was less than a mile away from school in a residential neighborhood when she was struck. He told jurors that the City Council had received many complaints about the dangerous conditions along Cypress Avenue. During the trial, a videotape from a 1999 City Council meeting was played of a City Council member raising concerns about student safety in another school area without sidewalks.
According to Fontana's trial attorney, the main thing that hurt the City was its application for Safe Routes to Schools (SR2S) funding for sidewalk construction in the area where the accident occurred. In 2000, the City had a consultant prepare and submit the SR2S application. The consultant testified at trial that he embellished the sidewalk problems in the application in order to better the City's chances of being awarded funding. However, the application was rejected. Fontana reapplied for SR2S funding in 2001, but the attorney for the girl's parents argued that the City was at fault because it should have put in sidewalks itself after the first application was rejected. He argued that the City knew of the dangers but did not do anything about it until it was too late. The jury also saw a videotape of the mayor's deposition, during which it appeared that the mayor could not answer as to why the City did not put in sidewalks after its application for funding was denied. Fontana's trial attorney believes that the jury awarded such large damages against the City because it felt the City was on notice of the situation, largely because of the fact that it had applied for SR2S funding.
Fontana's trial attorney believes that the jury felt sympathy for the 15-year-old driver because the jury felt he would always have to live with the fact that he killed someone and because the driver had already gone through the criminal system. The attorney feels that the jury did not understand the distinction between the criminal and civil system and did not want to punish the boy twice. He also believes that the jury found the driver's parents to be only 25% liable for the damages because while the jury felt anger towards them for giving their unlicensed son permission to drive a car, Fontana had more money available to pay for damages. Therefore, the jury found the City to be 75% at fault for the accident.
Following the jury verdict, Fontana moved for a new trial, and on December 20, 2004, the court granted the motion and ordered that the jury verdict be set aside. There will be a new trial in June to determine the allocation of responsibility and damages. We will be monitoring the case and updating you on its status.
IV. CITY COUNCIL
Lacy Street Hospitality Service ("LSHS") leased commercial property in the City of Los Angeles ("City") to operate an adult cabaret known as The Blue Zebra. Lacy Street Hospitality Service v. City of Los Angeles, 2004 Cal. App. LEXIS 2258, *1 (2004). When LSHS took over the property, it assumed 20 land use restrictions imposed by the City on the property's previous tenant, who had unsuccessfully tried to operate an adult cabaret on the site. Id. at *2. After taking over the property, LSHS exercised its right to seek a modification of the City's 20 conditions. Id. One condition limited the cabaret's hours from 6:00 p.m. to 2:00 a.m. seven days a week. Id. The second required LSHS to use independent contractors as security guards. Id. Claiming it needed longer operating hours in order to make a profit, LSHS sought permission to open at 11:00 a.m. every day and to extend its weekend closing hours to 4:00 a.m. Friday through Sunday. Id. at *3. LSHS also sought permission to hire its own licensed guards to provide security, instead of using an independent contractor. Id.
LSHS submitted its requested modifications to the City's Zoning Administrator ("ZA"). Id. After holding a public hearing and visiting the property, the ZA granted the modifications. Id. Neighborhood and community members who opposed the modifications appealed the ZA's decision to the Los Angeles City Council, which referred the appeal to its Planning and Land Use Management ("PLUM") Committee. Id. The PLUM committee held a hearing on the proposed modifications. Id. After hearing of the purportedly deleterious effects of expanding LSHS's operating hours and loosening security guard requirements, the PLUM committee recommended that the City Council reverse the ZA and reinstate the original conditions. Id.
The City Council scheduled a public hearing, which the tenant recorded on videotape, on the PLUM committee's recommendations and overturned the ZA. Id. at *3-4. The videotape captured the council members behavior during the public hearing. Id. at *5. The videotape shows that when the council president summoned LSHS to the speaker's lectern to present its case, eight council members, three of whom were absent, were not in their seats. Id. Only two council members were visibly paying attention. Id. Four others might have been paying attention, although they engaged themselves with other activities, including talking with aides, eating, and reviewing paperwork. Id.
One minute into LSHS's presentation, a council member began talking on his cell phone and two council members, one of whom had been paying attention when the hearing opened, started talking to each other. Id. A minute later, two other council members struck up their own private conversation. Id. Three minutes into his presentation, LSHS's counsel complained "it doesn't appear that too many people are paying attention," an observation the videotape verifies, as only a few council members were sitting in their seats not talking to others. Id. at *5-6.
Despite LSHS's public reproach of council members, their private conversations and pursuit of other activities continued. Id. at *6. One council member was especially peripatetic, walking from one side of the council chamber to the other to talk to different colleagues. Id. Only five council members and the council president sat at their desks spending most of their time not talking to anyone--but even some of them turned their attention to other things from time to time. Id.
After ten minutes, LSHS's presentation ended and those opposed to the zoning modifications began. Id. Although the speakers changed, the council's behavior did not. Id. Some members paid attention, but even some of them divided their attention among things such as reviewing paperwork and getting up from their seats to talk to others. Id.
LSHS filed a petition for a writ of administrative mandate. Id. at *7. The trial court reviewed the City Council's reversal of the ZA. Id. The court found substantial evidence supported the City Council's action, and thus the City Council's decision was not an abuse of discretion. Id. The Court therefore denied the petition. Id. An appealed followed which resulted in the Court's reversal and remanding to the City Council for a hearing which satisfies LSHS's due process rights. Id.
The Court stated that because the City Council was sitting in a quasi-judicial role, adjudicating the administrative appeal of constituents, the City Council was obligated to pay attention. Id. Citing to cases that state that due process requires fair adjudicators in administrative tribunals and that a fact finder must listen to the evidence before making a decision, the Court stated that a fundamental principle of due process is "he who decides must hear," and that the inattentiveness of council members during the hearing prevented the City Council from satisfying that principle. Id. The Court further stated that sitting as "judges" in the appeal, the City Council was obligated to pay attention as is the obligation of sitting members of the judiciary. Id. at 8. The Court stated that the videotape showed that the City Council cannot be said to have made a reasoned decision based upon hearing all the evidence and argument, which is the essence of sound decision making and to which LSHS was entitled as a matter of due process. Id. at 9. Accordingly, the Court reversed and remanded to the City Council for a hearing that satisfies appellant LSHS's due process right to be heard. Id.
V. PROPOSITION UPDATE
In 1969, the Bighorn Mountains Water Agency Law (Cal. Wat. Code Append. § 112-1 et seq.) established the Bighorn-Desert View Water Agency ("Bighorn") as a special act agency, which provides water services to those consumers who do not obtain their water from other sources such as wells and trucking. Bighorn's board of directors is empowered to fix water rates such that they will pay for the operating expenses of the agency, including repairs, upgrades, and expansion, as well as to pay interest and principle on debt the agency might incur (Wat. Code Append. § 112-25). Bighorn-Desert View Water Agency v. Beringson (Kelley), 120 Cal. App. 4th 890, 893 (2004).
Kelley (real party-in-interest) succeeded in putting an initiative petition on the ballot, seeking to reduce Bighorn's water rates and charges, and requiring a two-thirds voter approval for future increases. Real parties identified themselves as "citizens, residents, taxpayers, and registered voters." Bighorn sought declaratory relief. Id. at 893-94.
The issue in the case was whether Bighorn's water rates were a property-related service, subject to the requirements and limitations of Proposition 218. The Court of Appeal concluded they are not. Id. at 895.
The court followed Howard Jarvis Taxpayers Assn. v. City of Los Angeles, 85 Cal. App. 4th 79 (2000) and Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles, 24 Cal. 4th 830 (2001) in reaching its conclusion. The issue in HJTA v. Los Angeles, 85 Cal. App. 4th at 82, was whether water rates are subject to voter approval under article XIII C and XIII D of the California Constitution (respectively, involving general and special taxes, and assessments). In that case, the Second Appellate District held that water rates are not subject to Prop 218 because the supply and delivery of water does not require that a person own or rent the property where the water is delivered. Thus water rates are not levies or assessments "incident to property ownership," nor are they fees for a "public service having a direct relationship to property ownership." Further, water rates are based on usage amounts, and not incident to or directly related to property ownership. Id. at 83. Apartment Assn. v. Los Angeles involved whether inspection fees for rental units are subject to Prop 218. The California Supreme Court held that they are not. The Court said that "taxes, assessments, fees, and charges are subject to constitutional strictures when they burden landowners as landowners." Apartment Assn. v. Los Angeles, 24 Cal. 4th at 842 (italics in original). Inspection fees for rental units are more like business license fees than landowner fees because they are imposed on landlords in their capacity as business owners, i.e., renters. Id. at 840. Based on these two cases, the Court of Appeal in Bighorn concluded that because Bighorn's rates were based on usage, and not on landownership as such, they are not subject to the voter approval requirement of article XIII D. Bighorn, 120 Cal. App. 4th at 896.
The court then distinguished Richmond v. Shasta Community Services District, 32 Cal. 4th 409 (2004), which addressed whether or not fees imposed for new water connections are subject to Prop 218. The Supreme Court held that such fees do not require voter approval because an assessment within the meaning of article XIII D must confer a special benefit on real property, and must be imposed on identifiable parcels of land. Here, the water district was hard pressed to identify the specific parcels because new connections would be made, for example, for properties that would be developed in the future. Id. at 419. Additionally, a connection charge would be imposed as a result of a voluntary act of applying for a new connection, and thus cannot be incident to property ownership. Id. at 426. In its discussion, the Court added that while a new connection fee results from a voluntary act, a "fee for ongoing water service through an existing connection is imposed 'as an incident of property ownership' because it requires nothing other than normal ownership and use of the property." Id. at 427 (internal citations omitted).
The Bighorn court said Richmond was not dispositive of the issues in Bighorn, Bighorn, 120 Cal. App. 4th at 897, but the court did not articulate the basis for this conclusion. Richmond addressed whether one-time new water connection fees and fire suppression charges are subject to Prop 218, whereas Bighorn addressed whether usage-based water rates are subject to the same requirements. Presumably this is how the Bighorn court distinguished Richmond from its own case.
To the extent that Richmond held that new connection fees are not subject to Prop 218 because a new connection is a voluntary expense, it is also consistent with Bighorn's conclusion that rates based on water usage are voluntary, not property related, and therefore are not subject to voter approval. Bighorn, 120 Cal. App. 4th at 897.
The Court of Appeal also held that even if it concluded that Bighorn's water rates were property related or an incident to property ownership, it would still hold that voter approval is not required because section 6, subdivision (c) of article XIII D excepts water rates from the voter approval requirements of Prop 218. Bighorn, 120 Cal. App. 4th at 897.
Finally, the court agreed with the water district that Bighorn was required by legislative mandate to set reasonable water rates. The initiative and referendum power may not be exercised in areas where the local government is performing an administrative function rather than a legislative one, i.e., in areas in which the State has preempted local legislation. Thus, Bighorn's administrative act of setting water usage rates was not subject to voter approval. Id.
Effects of Proposition 59 on Responding to Public Records Requests
On November 2, 2004, Proposition 59 was approved by California voters by an 83 percent margin. Prop. 59 makes the access to government information, which was previously provided by statute, a constitutional right. With the passage of Prop. 59, Article 1, Section 3 of the California Constitution was amended to provide that the people have the right of access to information concerning the conduct of the people's business. As amended by Prop. 59, Article 1, Section 3 now also provides that "[a] statute, court rule, or other authority . . . shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access." We are only beginning to see what effects these changes may have with respect to responding to public records requests.
Article 1, Section 3, as amended by Prop. 59, specifically states that it does not repeal or nullify, expressly or by implication, any constitutional or statutory exemptions to the right of access to public records. Therefore, the exemptions to disclosure contained in the Public Records Act, or any other statute, or any constitutional provision (such as the right to privacy) still apply. However, within days after the passage of Prop. 59, one of its sponsors, the California First Amendment Coalition (CFAC), formally requested access to the Governor's appointment book. Such information has been withheld in the past under Government Code § 6254(a), known as the "deliberative process" exemption under the Public Records Act, and in reliance on Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991), which held that then-Governor Deukmejian's calendar was exempt from disclosure under the deliberative process exemption. While Article 1, Section 3, as amended by Prop. 59, contains a caveat preserving constitutional or statutory exemptions to disclosure, it does not address case law interpreting the scope of those exemptions. The CFAC's new template letter for public records requests demonstrates that the CFAC is taking the position that Prop. 59 may modify or overturn authorities on which governmental entities have relied in the past to support non-disclosure of certain documents. Please refer to the following website: (http://www.cfac.org/templates/cpraletter.html).
The effects of Prop. 59 are unclear at this time because there is not yet any court interpretation of how broadly this open government provision should be construed. What we do know is that, because open government laws now have constitutional status, a government entity will likely have to demonstrate why information requested by the public should be kept private to a greater extent than under current law. In addition, to the extent that there are successful challenges to governmental actions based on this new constitutional provision, governmental entities could be required to make a greater breadth of documents available to the public. We will likely begin to see more controversy and litigation regarding the effects of Prop. 59, and we will be monitoring how Prop. 59 is being interpreted in order to provide future updates on this issue. In the meantime, you should carefully consider the potential impacts of Prop. 59 when responding to public records requests, particularly if records will be withheld.
VI. FIRM NEWS
Jones & Mayer is pleased to announce the addition of a new attorney to our firm; Elizabeth R. Feffer.
Ms. Feffer's litigation practice includes the representation of municipalities and other public entities in a variety of civil actions in both state and federal court, with special emphasis on the representation of public entities and police department personnel in civil rights litigation and civil actions that include allegations of excessive force, false arrest, and other police misconduct. Ms. Feffer's litigation experience includes all stages of law and motion and trial preparation, Superior Court jury trials, and handling appellate briefs and oral argument before the California Court of Appeal and Federal Ninth Circuit Court of Appeals. She has two published decisions, Smith v. City of Hemet, et al., 356 F.3d 1138 (9th Circuit 2004), petition for hearing en banc granted, 371 F.3d 1045 (9th Circuit 2004) and Alejo v. City of Alhambra (1999) 75 Cal. App. 4th 1180. Ms. Feffer's practice also includes defending confidential peace officer personnel records in Pitchess motions, preparing successful "anti- S.L.A.P.P." motions to strike, and representing public entities in actions alleging dangerous conditions of public property or employment discrimination.
In addition, Ms. Feffer's practice includes the prosecution of municipal code violations and the abatement of public nuisances. She presently serves as the City Prosecutor for the City of Downey. She has also served as the Deputy City Prosecutor for several cities throughout Southern California. Her criminal practice experience includes obtaining multi-count criminal convictions as jury and court trials, prosecution for probation violations, successfully defending criminal convictions on appeal, and appeals of permit revocations or denials. Ms Feffer is a member of the Los Angeles County Prosecutors' Association and was appointed by District Attorney Steve Cooley to the Association's standing committee on code enforcement.
Ms. Feffer developed the "legal aspects" segment of the "Youth Violence in the Schools" training telecourse and workbook for State of California Commission on Peace Officer Standards and Training (P.O.S.T.), used as a part of the mandatory continuing training requirements for peace officers throughout the state. Ms. Feffer teaches P.O.S.T. - certified legal seminars for basic, intermediate and advanced-officer level certification courses for the Southern California Association of Code Enforcement Officials through Rio Hondo Community College. Ms. Feffer also conducts seminars on municipality liability issues at the request of various municipalities.
Martin J. Mayer, Esq.
February 1, 2005: POST Management Course,
San Diego, California.
February 6, 2005; CPCA Annual Conference,
Sacramento, California. Topics: SWAT
Legislation, Doctor v. Attorney - Critical
Incidents & Legal Updates.
February 15, 2005; Petaluma Police Department,
Petaluma, California. Topic: Legal Update for
Law Enforcement Supervisors.
February 15-17, 2005; CPOA, Pasadena,
California. Topic: Legal Update.
February 24, 2005; Bakersfield Police
Department, Bakersfield, California. Topic:
Peace Officer Bill of Rights Act for Supervisors
and Managers.
February 25, 2005; Peace Officer Association of
Los Angeles County, Los Angeles, California.
Topic: Top Ten Law Enforcement Employment
Issues.
February 29, 2005 through March 1, 2005;
CPOA Legal Update, San Carlos, California.
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