May 2007

League of California Cities City Attorneys Conference

Please join Meyers Nave attorney Art Hartinger in Monterey at the LOCC Spring City Attorneys Conference on May 3-4, 2007 where he will present a Labor and Employment Law Review. For more information, please contact the League of California Cities or send an e-mail to info@meyersnave.com.

Google Launches Initiative to Improve Access to Public Records

Internet search company Google announced a partnership with four states, including California, to make it easier to search for public information on state agency websites. The initiative will remove the technical barriers which limit access to public records available on state agency websites. Advocates for greater government access and transparency are commending Google's efforts. Privacy advocates, however, have expressed concerns about making public records available which contain personal and confidential information.

Google Press Release--Google and Four US States Improve Public Access to Government Websites

Associated Press Article--Google Helps Make Public Records Available

Unlicensed Subcontractor's Bid Found to Be Responsive

Bid on a public agency contract cannot be declared nonresponsive by the public agency on the ground that the bidder has listed an unlicensed subcontractor on the bid forms; nothing in statutes requires that subcontractors be licensed as of the time of the submission of the prime bid. Where agency erroneously declared plaintiff’s bid nonresponsive, trial court’s order canceling contract and requiring agency to contract the remainder of the work to plaintiff based on its bid was error; correct remedy was to require agency to conduct a due process hearing to determine whether plaintiff was a responsible bidder. See D. H. Williams Construction, Inc. v. Clovis Unified School District (Emmett’s Excavation, Inc.) - filed January 10, 2007

New Installment of ADA Technical Assistance Materials Issued By DOJ

On December 5, 2006, February 27, 2007, and May 7, 2007, the Civil Rights Division of the U.S. Department of Justice issued installments of a new technical assistance document to improve compliance with Title II of the Americans with Disabilities Act. The Tool Kit is designed to teach state and local government officials how to identify and fix problems that prevent people with disabilities from gaining equal access to state and local government programs, services, activities, and facilities. New installments will be released over the next 10 months.

For more information, please see Tool Kit for State and Local Governments (new chapters 05/07/07).

County of Orange Ordered to Lower Building Inspection and Construction Plan Check Fees

In County of Orange v. Barratt American Inc., the California Court of Appeals ordered the County of Orange to lower its building inspection and construction plan check fees pursuant to the Mitigation Fee Act, which requires that such fees cannot exceed the reasonable cost of providing the service for which the fee is imposed. The County of Orange had accumulated a surplus of fee revenues because it collected more in fees for building inspections and construction plan checks than the cost of performing the services. The Court of Appeals affirmed the trial court's judgment, which found that the County had used most of the excess revenue in expenditures that were reasonably necessary to support the cost of services, but that the County had not shown the expenditures were reasonable and necessary as to $4.5 million of the excess revenue, and ordered the County to lower fees until that amount was dissipated.

Court Affirms "Fair Argument" Standard in Review of City's CEQA Determination

The court in Sierra Club v. Cal. Dept. of Forestry and Fire Protection affirmed that the standard to be applied in reviewing an agency's decision to prepare a mitigated negative declaration, rather than an environmental impact report (EIR), is the "fair argument" standard. An EIR must be prepared where, "after examining the entire record, there is substantial evidence to support a fair argument that a project may have a significant effect on the environment." Citing a comment letter from a plant ecologist and botanist describing specific, non-speculative effects of the project, including increased sediment, reduction in groundwater discharges, and loss of spotted owl habitat, the court found substantial evidence on the record supported a fair argument that the project could have a significant effect on the environment. Therefore, the Department of Forestry and Fire Protection should have prepared an EIR prior to issuing a Timber Conversion Permit. (The decision was filed on March 29, 2007, but not certified for publication until April 30, 2007, following a request for publication.)

Supreme Court Grants Review of Spielbauer Decision

Attorney Authors: 

On May 9, 2007, the California Supreme Court granted review of the recent Appellate Court decision that declined to follow previous case law holding that a public employer can require its employees to waive their fifth amendment right against self-incrimination in administrative investigations in exchange for immunizing those statements from use in a criminal proceeding.

Click here to read an article describing this case in further detail.

California Cities Focus on Infrastructure Improvement Projects

The League of California Cities’ Legislative Action Days took place on May 16-17 in Sacramento. More than 450 representatives from California cities attended the two-day event, which featured an update on legislative issues and time for lobbying at the State Capitol. L eague President Maria Alegria, Mayor of Pinole, kicked off Legislative Action Days by welcoming everyone to Sacramento followed by Executive Director Chris McKenzie’s update on the organization’s strategic goals and priorities. Issues of importance to local government, including infrastructure, housing and healthy communities were discussed. For more about this post, click here.

Court Affirms Municipal Services Agreement between Redevelopment Agency and Native American Tribe for Development of a Gaming Facility

The court in Hesperia Citizens for Responsible Development v. City of Hesperia affirmed that a redevelopment agency's execution of a municipal services agreement with a Native American tribe did not violate California Health and Safety Code Section 33426.5, which generally prohibits redevelopment agencies from assisting businesses in the development of gaming facilities. The Redevelopment Agency agreed only to provide police, fire, water and sewer services to a proposed gaming development and not to subsidize or otherwise participate in the gaming operations. (Filed and certified for publication on May 30, 2007)

To read the case, click here