July 2006

Public Agencies Need Not Disclose Competitive Proposals During Negotiations

In Michaelis, Montanari & Johnson v. Superior Court (June 22, 2006) Supreme Court No. S133464, the California Supreme Court considered when competitive proposals submitted to a public agency in response to a Request for Proposals ("RFP") for a public contract or lease must be disclosed under the California Public Records Act, Government Code section 6250 et seq. (the "Act"). At issue were responses submitted to an RFP for a lease of airport property at the Van Nuys Airport, part of Real Party in Interest Los Angeles World Airports.

In balancing the public interest in disclosure versus the public interest in nondisclosure under the "catch all" exemption to the Act, the Court agreed that there was a "legitimate and substantial" public interest in reviewing the agency's selection of a winning proposal. However, in a 7-0 decision the Supreme Court held that "public disclosure of such proposals properly may await conclusion of the agency's negotiation process, occurring before the agency's recommendation is finally approved by the awarding authority."

The decision can be found here.

California Supreme Court Issues Long-Awaited Bighorn Decision

Today, the California Supreme Court issued its long-awaited decision in Bighorn-Desert View Water Agency v. Verjil (July 24, 2006, S127535) __ Cal.4th __. The case concerned whether the water agency’s rates were subject to repeal by initiative pursuant to section 3 of article XIII C of the California Constitution. In the course of answering this question, the Court determined that water service charges (and by implication sewer and refuse collection fees) are “property related fees” under Article XIIII D. This decision ends a long period of uncertainty.

For agencies that impose water, sewer, and refuse collection fees, Bighorn has three basic implications. First, the adoption and increase of “property related fees” are subject to Proposition 218’s procedural requirements. (Art. XIII D, sect. 6(a).) These procedural provisions require detailed noticing of each property owner 45 days prior to the hearing on the fee and prohibit the adoption of the fee or increase if a majority of the property owners protest the imposition or increase in writing. Second, property related fees are subject to Proposition 218’s substantive requirements. (Art. XIII D, sect. 6(b).) Among other things, the substantive requirements provide that the amount of the fee “shall not exceed the proportional cost of the service attributable to the parcel,” and that revenues from the fee “shall not exceed the funds required to provide the service” and “shall not be used for any purpose other than that for which the fee was imposed.” Third, “property related fees” are subject to the power of the electorate to reduce them by initiative. (Art. XIII C, sect. 3).

The decision can be found here. A link to a more detailed discussion of the case is forthcoming shortly.

PERB Updates Regulations

The California Public Employment Relations Board ("PERB") has recently amended its regulations which implement the provisions of the EERA, Dills Act, HEERA, MMBA, TEERA, Trial Court Act and Court Interpreter Act. One notable change to the regulations is that PERB no longer has a separate procedure to review petitions for decertification or unit modification for local public agencies governed by the MMBA. Rather, these issues must now be raised through PERB's unfair labor practice procedure.

To review a summary of the amendements to PERB regulations, click here.

Ohio High Court Says City Can't Take Property For Economic Development

While the Ohio legislature is set to review and recommend sweeping changes to the State's eminent domain law, the Ohio Supreme Court has struck down the City of Norwood's attempt to aquire land for a $125 million shopping center and office complex. Three residential property owners fought the project and refused to sell to the developer. The City ws counting on $2 million a year in additional revenue. The property owners argued that the City should not be allowed to take their property and then give it to a private developer.

Jury Awards Over $17 Million in Defamation Case Against Union

A California state court jury awarded $17.3 million to a chain of hospitals in a defamation lawsuit based on a union sending postcards to potential patients of the hospitals claiming that that there was no assurance that linens at the hospitals were free from blood, feces and harmful pathogens.

To read more click here.