Public BLAWG Blog

On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII).  The Enforcement Guidance clarifies and updates the EEOC's longstanding policy that a categorical exclusion from employment of individuals with a criminal record raises disparate impact concerns. 

The California Environmental Quality Act ("CEQA") imposes very short time limits – some as short as 30 days – to commence litigation to challenge environmental review.  Parties in CEQA disputes frequently rely upon tolling agreements to put costly litigation "on hold" while they pursue settlement.  Until now, no court had ever ruled on whether such tolling agreements are permissible under CEQA.  In Salmon Protection and Watershed Network v. County of Marin (2012) __ Cal.App.4th __ (April 20, 2012), the First District Court of Appeal decided that question in the affirmative.

In Salmon Protection, a non-profit environmental group (whose acronym, "SPAWN," is a colorful addition to the roster of cleverly named CEQA plaintiffs) filed a petition for writ of mandate challenging an EIR prepared by the County of Marin for a general plan update that the County had certified in 2007.  The suit was filed in 2010, long after expiration of the normally applicable statute of limitations, due to a series of tolling agreements entered into by the parties while settlement negotiations were ongoing.  Concerned about the risk of a possible injunction, a local group of property owners filed a complaint in intervention and requested that the court dismiss the lawsuit as untimely based on the (novel) argument that CEQA's statute of limitations are mandatory and jurisdictional, and that the tolling agreements were therefore illegal and without effect. Alternatively, the property owners argued that Government Code section 65009, which imposes similarly short statute of limitations periods for challenges under the State Planning and Zoning Law, precluded the parties from agreeing to toll the limitations periods.   The Court of Appeal disagreed.  Finding that tolling agreements further important public policies and are not contrary to CEQA, the Court concluded that the tolling agreements at issue were valid and effective.  Click here to read the full opinion.

The decision should come as a relief to public agencies and others throughout the State.  Although few doubted the ultimate outcome, the case was sufficiently contentious to warrant amici briefs from the California League of Cities, the Sierra Club, the California Building Industry Association, and others. 

This month, Maryland became the first state to pass a law that prohibits an employer from requesting or requiring job applicants to hand over username and passwords for social media websites, such as Facebook and Twitter.

Maryland passed Senate Bill 433 and House Bill 964, which forbid employers from 1) requesting or requiring a job applicant to disclose user names or passwords for a personal electronic service; 2) refusing to hire an applicant for not providing access to such information; and 3) terminating or disciplining an employee for refusing to provide this information. However, the law also protects employers by prohibiting employees from downloading employer proprietary information to personal accounts and allowing employers to require that employees provide password and login information for company email accounts.

The law takes effect October 1, 2012, and may be found here.

On November 21, 2008, a citation was issued charging defendant Steven Gray with violating Vehicle Code section 21453, subdivision (a) for failing to stop for a red signal at the intersection of Washington Boulevard and Helms Avenue in Culver City.  An Automatic Traffic Enforcement System (ATES) recorded the violation.  Gray was arraigned and pleaded not guilty.  The defense made a pre-trial motion to dismiss based on Culver City’s alleged failure to provide the 30-day warning notice period and public announcement requirements of Vehicle Code section 21455.5, subdivision (b) before ATES equipment was installed at Washington Boulevard and Helms Avenue.  Culver City stipulated that “Culver City has only conducted such warning notices and public announcements prior to the commencement of the entire program in Culver City in 1998, and that no such notices or announcements were done specifically for the intersection (at the intersection of Washington Boulevard and Helm[s] Avenue, Culver City) at which defendant was photographed allegedly running a red light.”  The trial court denied Gray’s motion to dismiss. At conclusion of the trial, the court found that the ATES-produced evidence was admissible, found Gray guilty of the charge, and ordered Gray to pay a fine.  Gray appealed the decision.  

Appellant Besaro Mobile Home Park, LLC (“Besaro”) operated a mobile home park in the City of Fremont (“the City”).  In 1987, the City adopted a rent control ordinance to address the unique attributes of mobile home ownership and park management.  In 2009, Besaro filed an application for a major rent increase under the ordinance.  Although Besaro admitted that it was currently receiving a fair rate of return on its investment, it argued that the rents should be consistent with general market conditions.  The application was denied following an administrative hearing and the superior court denied Besaro’s petition for writ of administrative mandate.  In the appeal, Besaro argued that the denial of the major rent increase was contrary to the ordinance and violated its rights under the California Constitution. 

Some states require the government to pay for all of the costs incurred by a property owner when it condemns land, however, California Eminent Domain Law only requires a public agency to pay for attorney's fees and litigation expenses when a court finds "that the offer of the plaintiff [public entity] was unreasonable and that the demand of the defendant [the property owner] was reasonable viewed in the light of the evidence admitted [at trial] and the compensation awarded [judgment]. . . ." (Cal. Code of Civil Procedure section 1250.410.) In a recent case, Cal. Dept. of Transportation v. Menigoz, the State accepted the property owners' statutory "final demand" several days before the scheduled trial date, resulting in a stipulated judgment. Upon the judgment being entered, the property owners' moved for their litigation expenses (attorneys' fees, experts' fees, trial preparation costs, etc.). The court granted the motion, in part, because the parties had spent considerable expense in preparing for trial.

On February 7, 2012, the California Court of Appeal for the Second Appellate District upheld a trial court’s decision that release of officers’ names involved in an officer-involved shooting did not amount to an unwarranted invasion of privacy. Los Angeles Times Communications, LLC ("the Times") submitted a request to the City of Long Beach under the California Public Records Act (CPRA) seeking the names of police officers involved in a 2010 officer-involved shooting in Long Beach, and the names of all officers involved in shootings in Long Beach for the preceding five years. The Long Beach Police Officers Association (LBPOA) brought an action against the City of Long Beach, the Long Beach Police Department and the Chief of Police seeking to enjoin disclosure of the names. In support of its request, LBPOA averred that a shooting review which takes place after an officer-involved shooting can lead to findings resulting in an internal affairs investigation. LBPOA also expressed safety concerns about releasing the names of shooting officers. The Times moved to intervene and filed an opposition.

On January 24, 2012, the Court of Appeal ruled that a report of a personnel investigation was subject to public disclosure. In Marken, the Court ruled that, under the California Public Records Act (CPRA), public interest in disclosure of a report of a personnel investigation finding a teacher had violated his employer's sexual harassment policy outweighed the teacher's privacy interests. 

On January 4, 2012 Senate President Pro Tem Darrell Steinberg introducedSenate Bill 654, which (if passed) would allow municipalities to permanently retain the portion of redevelopment dollars earmarked for affordable housing projects. According to Steinberg, the bill is intended to preserve for affordable housing the roughly $2 billion in outstanding balances in the Low and Moderate Income Housing funds maintained by redevelopment agencies throughout the state.

For a copy of the proposed bill, click here.