August 2013

It’s on the Name Tag: Name and Rank of Peace Officers in Investigative Report Not Confidential

August 7, 2013, by Kevin P. McLaughlin

On July 23, 2013, the First District of the California Court of Appeal held that police officer identities and ranks in investigative reports unrelated to discipline or personnel actions are discoverable under the Public Records Act. 

In Federated University Police Officers Association v. Superior Court, several news outlets sought to discover an investigative report authored by a consultant to the University of California regarding the use of pepper spray by campus police during student protests at UC Davis in 2011.  14 officers were ordered by their chief to participate in interviews for the report, and were advised that information provided to the consultant would not be used in any disciplinary proceeding.  No officers who were the target of citizen complaints or internal affairs investigations were interviewed.  The report did not recommend discipline of any officer, and was directed at UC Davis administration-level decision-making.  A related task force report concluded that several officers performed improperly, but did not recommend discipline.  These reports were ultimately released to the news outlets with name and rank of involved officers redacted.

Legislation Explicitly Recognizes that Public Entities Are Not Liable for Dog Bites Occurring in Dog Parks

August 13, 2013, by Krysten Hicks

Governor Brown signed today Assembly Bill 265, amending the Government Claims Act to provide clear and unambiguous immunity for public agencies owning or operating dog parks.

Bay Area Air District CEQA Significance Thresholds Survive Legal Challenge

August 14, 2013, by Timothy D. Cremin

The Court of Appeal upheld the Bay Area Air Quality Management District's (BAAQMD) 2010 adoption of thresholds of significance for air quality impacts under the California Environmental Quality Act (CEQA) (California Building Industry Association v. BAAQMD).  The Thresholds establish levels of emissions for air pollutants that would be considered a significant impact under CEQA.

A trial court decision last year invalidated the Thresholds based on BAAQMD's failure to comply with CEQA in the adoption process.  The Court of Appeal reversed the trial court decision finding that an agency adoption of significance thresholds was not a project under CEQA.  The Court ruled that the public process for adoption of significance thresholds in CEQA Guidelines section 15064.7 does not require formal environmental review.  The Court also ruled that the alleged indirect environmental impact of the Thresholds on future projects was too speculative and not reasonably foreseeable.

The Supreme Court Expands the Nollan/Dolan Standard

August 22, 2013, by Adam U. Lindgren, Dawn McIntosh

The United States Supreme Court’s recent decision in Koontz v. St. Johns River Water Management Dist. has broad implications for state and local governments attempting to work with developers to find mutually agreeable solutions that will mitigate the impacts of development projects.  The decision expands the application of the unconstitutional conditions doctrine articulated in Nollan v. California Coastal Commission and Dolan v. City of Tigard (“the Nollan/Dolan standard”) to a broader range of land use permitting decisions while providing little guidance as to how reviewing courts will actually apply the expanded doctrine.  This standard was previously applied only in limited circumstances where an adjudicative land use permitting decision required a dedication of property to offset impacts on the public from a particular project to ensure that the requisite property dedication had a reasonable nexus to the public impact of the proposed project and was roughly proportional to the size of the impact of the project.  If these two prongs were not satisfied, the dedication was found to be a taking of private property requiring payment of just compensation under the Fifth Amendment.