February 2008

On January 28, 2008, Sacramento Superior Court Judge Lloyd Connelly issued an Order requiring the Commission on Peace Officer Standards & Training (POST) to disclose any and all information on every California peace officer it has in its database. The information that POST was ordered to provide was everything that it may have on each peace officer, including name, rank, wage, annual earnings, hours worked, and any other data stored in its system that would be subject to disclosure under the California Public Records Act. California public agencies are stunned because this Order does not distinguish among the officers in any way, including, for example, those assigned to high-risk operations such as undercover narcotics, street gang, auto theft, and prostitution task forces. In addition, the Order does not allow for the redaction or withholding of this information for officers involved in high-risk assignments.

Meyers Nave is in the process of preparing motions to intervene in this case, L.A. Times v. POST (Sacramento Superior Court Action No. 03CS01077). Intervention must be done quickly, however, based upon the Court's Order that POST must file notice with the Court on February 15, 2008, informing the Court and the L.A. Times if it will comply with the Order to disclose, or if it would like to proceed further on the merits of the underlying action. If you would like additional information, please feel free to contact Trish Hynes at thynes@meyersnave.com, or 510-808-2000. More information to follow...

To increase the opportunity for land ownership the City of Honolulu enacted Chapter 38. When a sufficient number of condominium unit owners within a complex applied, the City would enter into a contract with each lessee and would agree to pursue eminent domain to acquire the property on which their complex was built and then would convey each condo unit to the lessee in fee simple. The lessees of the Discovery Bay condominium complex applied to the City under Chapter 38. However, after entering into contracts with the lessees, the City Council repealed Chapter 38 and it stopped pursuing eminent domain as promised. The lessees filed suit against the City arguing that the City’s repeal of Chapter 38 impaired the City’s obligation to pursue eminent domain under its contracts.

The District Court held that the lessees could not challenge the repeal because it found that the contracts limited the City’s discretion over the use of eminent domain. The public policy concern is that local governments retain the flexibility to exercise their police powers effectively. The Court of Appeal, however, found that the contracts did not prevent the City from exercising its power of eminent domain within its discretion. The case was remanded for the District Court to determine whether the ordinance repealing Chapter 38 impaired the contractual relationship and whether such impairment was substantial.

Matsuda v. City and County of Honolulu, No. 06-15337 (January 14, 2008), a decision by the Ninth Circuit.

Full text http://www.metnews.com/sos.cgi?0108%2F0615337

In Communities for a Better Environment v. South Coast Air Quality Management District the court clarified the appropriate baseline for environmental review, finding that the appropriate baseline for a refinery modification project was actual, not permitted, emissions. Communities for a Better Environment (CBE) challenged South Coast Air Quality Management District’s (SCAQMD) approval of modifications to an oil refinery. The refinery’s permit allowed it to emit a certain level of NOx, however, as of 2003, actual NOx emissions from the plant had declined such that the plant was emitting less than 50% of its initial permitted limit. SCAQMD acknowledged that the project could generate an increase in emissions that exceeded the CEQA threshold; however, using the permitted level of emissions as the baseline, SCAQMD reasoned that the increased emissions that could be generated by the project would still be less than the baseline level and, thus would not result in a significant impact to the environment.

The City of Vallejo is facing serious fiscal crisis. According to the City Manager, Joseph Tanner, it faces a $6 million deficit in its budget. The City is anticipated to make significant reductions in municipal services, including employee layoffs and program funding cuts. The Vallejo City Council is currently engaging in emergency labor negotiations with its public safety unions. Vallejo appears to be the first City in California history to be close to declaring bankruptcy. Read more about this story on the San Francisco Chronicle's website.

The State Water Resources Control Board recently issued an Executive Order requiring that within two hours of becoming aware of a discharge of sewage into a drainage channel or surface water, the discharger notify the State Office of Emergency Services, the local health officer, or the local directors of environmental health, as well as the appropriate Regional Water Quality Control Board. The Executive Order further requires that within 24 hours of the discharge, the discharger certify to the Regional Water Quality Control Board that the State Office of Emergency Services, the local health officer, or the local directors of environmental health have been notified of the discharge. The new notification requirements went into effect upon signature on February 20, 2008.