September 2007

California Supreme Court Issues Two Rulings Requiring Disclosure of Individual Public Employee Name, Salary and Other Employment Information under the California Public Records Act

In International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court of Alameda County filed August 27, 2007, the California Supreme Court held that the broadly based and widely accepted community norm and public policy applicable to government employee salary information is public disclosure, that public employees' names and salaries are excluded from the zone of financial privacy protection, and that such disclosure does not constitute an unwarranted invasion of personal privacy. Accordingly, the Court held that employee name and salary information is subject to disclosure under the California Public Records Act ("Act"). The Court also held that the protections afforded peace officer personnel records under California Penal Code sections 832.7 and 832.8 do not extend to officer salary records, and that as a result, police officer name and salary information is generally subject to disclosure to the same extent as name and salary information of other public agency employees. However, the Court observed that Section 6255 of the Act could apply to exempt some police officer name and salary information from disclosure. For example, the Court suggested that the name and salary information of some under cover officers working large amounts of overtime could be exempt if disclosure would undermine the safety and efficacy of such officers.

The impact of this case is probably broader that its actual holding, and the records request on review by the Court, would suggest. The case arose from a request for name and gross salary information of City of Oakland peace officer and non-peace officer employees earning $100,000 or more per year. Nonetheless, the language and reasoning of the opinion is not limited to public employees earning $100,000 or more per year. Although the Court's holding may be partly dicta, it appears intended to announce a rule that virtually all public agency employee names and salaries are subject to disclosure, regardless of salary amount.

In a related case, filed the same day, the Court held in Commission on Peace Officer Standards and Training v. Superior Court of Sacramento County that the names, employing departments, and hiring and termination dates of California peace officers listed in records of the Commission on Peace Officer Standards and Training are subject to disclosure under the Act. The Court concluded that the privilege against disclosure of peace officer personnel records established in California Penal Code sections 832.7 and 832.8 does not render the names, employing departments, and hiring and termination dates of peace officers exempt under the Act, because such information is not covered by any of the categories of protected information enumerated in California Penal Code section 832.8 (a)-(f).

For more information on these cases, please feel free to contact Eric Danly or Elizabeth Pianca.

Eminent Domain Reform Fails in State Assembly

Assembly Constitutional Amendment 8 proposed by Assemblyman Hector De La Torre (D- South Gate) failed to receive the necessary 2/3 vote in the State Assembly on September 11, 2007. ACA 8 and its companion statutory measure, Assembly Bill 887 (De La Torre), are backed by a broad coalition of homeowner groups, small business organizations, taxpayer groups, labor, environmental, community, and ethnic organizations. The amendment would have protected homes, churches, small businesses and farmland against eminent domain for redevelopment purposes or that would transfer the property being acquired by the public agency to a private person (developer).  The League of California Cities supported the amendment. Several initiatives for similar reforms and amendments are currently being circulated for signatures to be placed on the 2008 ballot.

AB 32 - ARB Announces Additional Early Action Measures to Reduce Greenhouse Gases

The California Air Resources Board (ARB) staff has proposed additional Early Action Measures to reduce greenhouse gas emissions under AB 32. The revised list adds measures to those originally approved by ARB in June 2007. The Board will consider approval of these Early Action Measures at its October 25-26, 2007 hearing.

Attorney General Settles Greenhouse Gas and CEQA Dispute on Refinery Project

The California Attorney General and ConocoPhillips reached an agreement on a greenhouse gas reduction plan to settle the Attorney General's appeal of a refinery expansion plan to the Contra Costa Board of Supervisors. The Attorney General's appeal challenged the adequacy of the analysis and mitigation of greenhouse gas emissions and climate change in the environmental impact report (EIR) for the project. Under the settlement, ConocoPhillips agreed to significantly offset the greenhouse gas emissions from the project. This is the second settlement by the Attorney General in the past month of a challenge to the adequacy of greenhouse gas analysis under CEQA for a project. In August, the Attorney General settled its dispute with San Bernardino County on greenhouse gas emissions from its General Plan.

Federal Court Says States Can Regulate Vehicular Emissions to Reduce Greenhouse Gases

The state of Vermont can regulate greenhouse gas emissions by requiring a 30% reduction in emissions from cars and light trucks by 2016. Automobile manufacturers and dealers challenged the Vermont regulations, modeled on an identical California statute, on grounds of federal preemption, technological and economic difficulties and safety. In a lengthy, and often technical, opinion, the court rejected the challenge on all counts.

The automakers' major challenge was that the Vermont statute indirectly established fuel economy standards, and thus was preempted since only the federal government can regulate such standards. The court disagreed, ruling that while the required emissions reductions might affect fuel economy, they were not so draconian as to usurp the federal role in establishing fuel economy standards. Furthermore, noted the court, the required emissions reductions could be achieved by methods other than improved fuel economy, including use of alternative fuels and other technologies.