Client Alerts
The California state legislature and courts as well as local governments are continuously changing the legal landscape. Staying abreast of new laws, regulations and other legal developments, and analyzing their impact on local governments is what makes our attorneys some of the best in the state. In addition, we write timely alerts to keep our clients informed of developing legal news and analysis.
Client e-Alerts are emailed to our clients, and they can also be viewed on our website. If you are interested in receiving our Client Alerts via email, please complete the subscription information in the left column.
Some of our most recent alerts are presented below grouped by their practice area. Older alerts are available in the Archives, which can be accessed via the links in the left column.
Education Law
California Supreme Court: School districts may be vicariously liable for the negligent hiring, supervision and retention of employee who harms student
C.A., a Minor v. William S. Hart Union High School District S188982
On March 8, 2012, a unanimous California Supreme Court ruled that under Government Code Section 815.2, a school district may be held vicariously liable for the negligent hiring, retention, and supervision of an employee who harms a student, even if the employee’s conduct is deemed outside the scope of employment.
Environmental Law
Rejecting Sunnyvale West, the Second District Court of Appeal Affirms Agency’s Discretion to Use a "Future Conditions Baseline" for CEQA Analysis of Traffic, Air Quality and Greenhouse Gas Impacts
Just over a year ago, the Sixth District Court of Appeal sparked controversy when it ruled, in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (“Sunnyvale West”), that CEQA requires as a matter of law that environmental impacts of a proposed project to be analyzed in comparison to “baseline” environmental conditions as they existed at or before project approval. The Fifth District Court of Appeal subsequently adopted this rule in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (“Madera Oversight Coalition”). Then, in Pfeiffer v. City of Sunnyvale (2011) 200 Cal.App.4th 1552, the Sixth District loosened its application of the rule of Sunnyvale West, and held that agencies have discretion to analyze project impacts against a baseline of conditions anticipated to exist in the future, if that baseline is supported by substantial evidence.
Now, another appellate district has weighed in, with a decision that “fundamentally” disagrees with the rule of Sunnyvale West and Madera Oversight Coalition. In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) __ Cal.App.4th __ (April 17, 2012), the Second District Court of Appeal has ruled that an agency not only has discretion to compare project impacts to a future conditions baseline, but that for at least some types of impacts, comparison against a pre-project approval baseline may be incorrect under CEQA. The Court held that for projects whose impacts will be experienced over a long time period, a future baseline is appropriate if future conditions can be accurately projected based on substantial evidence, and if comparison to future conditions would provide the most realistic picture of how impacts will be felt when they actually occur.
With the publication of Neighbors for Smart Rail, there are now four decisions in three different appellate districts offering multiple interpretations of what baselines may (and may not) be used to assess traffic, air quality and greenhouse gas impacts. These cases illustrate the high stakes for public agencies and developers alike in this increasingly confusing and complicated area of law. Using the wrong baseline can jeopardize the legal adequacy of an EIR and result in the invalidation of project approvals. Public agencies and developers are therefore encouraged to seek legal advice and give careful consideration to what baseline should be used in environmental review, particularly of projects that will have impacts over a long term of years.
Labor and Employment
EEOC Issues Guidance Regarding The Consideration Of Criminal Records In Employment Decisions
INTRODUCTION
On April 25, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 (Title VII). The Enforcement Guidance clarifies and updates the EEOC’s longstanding policy that a categorical exclusion from employment of individuals with a criminal record raises disparate impact concerns.
The EEOC’s Enforcement Guidance comes at an important time. In the last 20 years, an increasing number of Americans, including a disproportionate number of persons from protected status groups, have had contact with the criminal justice system. As a result, more and more job applicants now have criminal records. Simultaneously, advances in technology have made accessing applicants’ criminal history oftentimes as easy as pressing a button. Given these developments, it is essential for employers to maintain proper policies for criminal record screening.
U.S. Supreme Court Extends Qualified Immunity To Outside Attorneys Temporarily Retained By Public Entities To Conduct Workplace Investigations
On April 17, 2012, a unanimous U.S. Supreme Court in Filarsky v. Delia held that an outside attorney temporarily retained by a public entity to conduct an internal workplace investigation is entitled to qualified immunity from a §1983 lawsuit.
The case involved an internal affairs investigation of City of Rialto firefighter Nicholas Delia by an outside attorney hired by the City of Rialto Fire Department. Delia brought a §1983 lawsuit against the City, several fire department managers involved in the investigation, and the outside attorney.
The trial court had held that the outside attorney instigated an unconstitutional search by requiring Delia to bring personal construction material from inside his house to his lawn for inspection by a supervisor, and the question for the Supreme Court was whether an outside attorney working for the government is entitled to qualified immunity. The Supreme Court said the answer was yes.
This case is significant for California public agencies because agencies may retain an outside attorney to conduct an investigation without worrying about their own employees suing the outside attorney. Qualified immunity will protect the outside attorneys just as it protects government employees. In addition, the Supreme Court’s decision encourages outside consultants to continue serving public agencies without fear of liability.
In today’s economy, outside consultants perform many of the specialized services upon which government depends, and the Court’s decision acknowledges and encourages the importance of this role.
States No Longer Liable for Violations of Self-Care Provision of FMLA
Coleman v. Court of Appeals of Maryland, et al, Slip Opinion (March 20, 2012)
The Family Medical Leave Act (FMLA) permits employees to take twelve weeks of unpaid administrative leave for: (a) the care of a newborn; (b) the adoption of a child; (c) the care of a family member with a serious medical condition; or (d) the employee's own serious health condition. Sections (a)-(c) are referred to as the "family care" provisions, while section (d) is referred to as the "self care" provision. Previously, States were liable for money damages for violations of all four provisions.[1] In Coleman v. Court of Appeals of Maryland, the U.S. Supreme Court held that States are no longer liable for violations of the "self care" provision (section d); States remain liable for violations of the "family care" provisions (sections a-c).
U.S. District Court Holds That An Eight Percent Wage Reduction Impairing Existing MOUs Did Not Violate The U.S. Constitution's Contract Clause
On March 29, 2012, the Federal District Court of the Virgin Islands rejected a Contract-Clause challenge to the Virgin Islands Economic Stability Act (“VIESA”), which provided that all executive and legislative branch employees making more than $26,000 would receive an eight percent (8%) wage reduction. United Steel, Paper & Forestry, Rubber, Manufacturing, Allied Industrial and Service Workers International Union AFL-CIO-CLC v. Government of the United States Virgin Islands et al. (D.V.I. March 29, 2012, Civ. No. 2011-76 et al.) 2012 U.S. Dist. Lexis 43461 (hereafter “United Steel Workers v. Virgin Islands”).
The facts in the Court’s opinion paint a picture that is all too familiar to California public agencies. Between fiscal year 2008 and 2010, the Virgin Islands’ tax revenue plunged by $250 million. During this same period, the government’s predicted fiscal year deficits ballooned to $300 million. To reduce the deficit, it borrowed $500 million.
In Fall 2010, salary increases required by several MOUs were projected to cost $31 million. Salaries and benefits of government employees accounted for seventy percent (70%) of all government expenditures. In early 2011, the fiscal year 2011 budget was estimated to run a deficit of $75 million.
In response to the projected deficits, the Virgin Islands in the first half of 2011 imposed a new marine terminal user’s tax, reduced appropriations for the executive and judicial branches, and increased taxes, court filing fees, and traffic fines. It also maintained a limited hiring freeze, sought to reduce energy consumption, and reduced training and travel expenditures.
Despite the government’s actions, the deficit for fiscal year 2011 was still projected to be $17 million and was projected to rise to $50 million for fiscal year 2013.
In June 2011, the Virgin Islands considered several cost-cutting measures including the lay off of 600 employees, furloughs, workweek reductions, the elimination of paid holiday leaves, and a gross-receipts tax increase from 4.5% to 5%. By late June 2011, the Governor had exhausted his $500 million statutory borrowing authorization.
Municipal and Special District Law
FPPC Votes to Allow Public Officials to Vote on Self-Appointment to Boards
Yesterday, the Fair Political Practices Commission (“FPPC”) voted 3-2 to adopt an amendment to Regulation 18705.5. The regulation allows local public officials to vote on their own appointments to compensated positions on various types of boards, including, for example, boards of county sanitation districts, joint powers authorities and local area planning organizations.
The FPPC’s amendment also requires that information about the boards be posted on the local agency’s website, including the name of the appointed official, the amount of compensation (stipend or salary) for the position and the term of the position.
New Court Decision Limits Authority of Cities to Ban Medical Marijuana Dispensaries
A recent California appellate court has issued a potentially significant opinion, declaring that local governments may not completely ban medical marijuana dispensaries, with the limitation that the Legislature authorized medical marijuana dispensaries only at sites where medical marijuana is "collectively or cooperatively...cultivate[d]." (See City of Lake Forest v. Evergreen Holistic Collective, (G043909).) This ruling is significant for local governments because it is the first published California case to declare that local governments may not ban medical marijuana dispensaries and that medical marijuana can only be dispensed from the cultivation site.
