By Jeff Ballinger and Jeff Ferre, Best Best & Krieger LLP.
Public leaders need to be aware of – and prepared for – the many new laws that go into effect Jan. 1 that deal with issues specifically relating to cities, special districts and other public agencies. The public law attorneys at Best Best & Krieger have closely studied the new laws that cover everything from security data breaches to new reporting requirements for economic development subsidies. Below is an analysis of what public agencies need to know as they begin 2014, including links to more extensive information.
Effective Jan. 1, 2014:
This bill requires the impartial analysis of a local ballot measure to identify whether the measure was placed on the ballot by a petition signed by the requisite number of voters or by the local agency’s legislative body. For school district ballot measures, the impartial analysis is only required to note when the measure was placed on the ballot by the governing board of the school district.
All cities and counties are required to provide a report to the public before approving any economic development subsidy of $100,000 or more that is issued to corporations and other business entities. The reports require specific information about the entity and the subsidy. In addition, each city and county will need to review, hold hearings and report on the subsidies at five-year intervals.
Under this law, the Fair Political Practices Commission is empowered to investigate or initiate an administrative or civil action (including significant fines) against an officer or other person for violation of Government Code section 1090, which prohibits public officials and employees from having financial interests in any contract made by them in their official capacity or by any body or board of which they are members. The law also requires that the district attorney in the county in which the alleged violation occurred authorizes the Fair Political Practices Commission to pursue the action, but prohibits the commission from filing a civil action if the attorney general or district attorney is pursuing a criminal prosecution of the person.
AB 1090 also authorizes any local government official or employee to request advice or an opinion from the Fair Political Practices Commission regarding his or her duties under Section 1090. The law also provides an additional “non-interest” exception for the interest of a Board member in a contract for “public services” with a special district that requires a person to be a landowner or represent a landowner to serve on the board, as long as the contract is on the same terms as if he or she were not a board member.
Local public agencies are now required to advise residents when the security of their personal information has been breached, as quickly as possible. Previously only state agencies and businesses had to make such notifications. The new law also expands the scope of personal information that prompts a disclosure of a security breach to include a user name or email address, in combination with a password or security question and answer that permits access to an online account.
This law clarifies the Subdivision Map Act’s process for converting mobile home parks to resident ownership and authorizing cities and counties to deny a proposed conversion if a majority of the mobile home park’s residents oppose it. A subdivider of a mobile home park is required to avoid the economic displacement of non-purchasing residents, in part, by surveying the residents about their support for the conversion and submitting the survey results to be considered as part of the local agency’s hearing. The specific results of the survey, though, are not binding. Prior to this law, there was legal uncertainty over a local agency’s ability to consider the outcome of a resident survey when making its decision to approve, conditionally approve or disprove a conversion?.
Nonprofits are now prohibited from using “public resources” from local agencies in any communications that expressly advocate for or against a state or local ballot measure or for the election or defeat of a candidate or that constitutes a campaign contribution. Public resources include cash, office supplies and any assets owned by a local agency, including equipment and compensated employee work time. The law applies to all nonprofits incorporated under California law, including chambers of commerce and labor unions, and certain other nonprofit organizations exempt under federal law. SB 594 also carves out certain exceptions, allowing nonprofits to use public resources to adopt a position or resolution supporting or opposing a ballot measure or candidate.
SB 743: CEQA Changes
The main purpose of this new law was to streamline the environmental review for a proposed arena for the National Basketball Association’s Sacramento Kings, however, it does include provisions that apply statewide including: Any challenges to certification of an environmental impact report, or EIR, and approval of an “environmental leadership development project,” including any appeals, must be resolved within 270 days of the certification of the record of proceedings. An “environmental leadership development project” are a small class of “green” mega-projects that must invest at least $100 million in California. The bill also included several other changes to the California Environmental Quality Act.
All legislative bodies are now required to publicly report any action taken in any meeting, and the vote or abstention on that action of each member present. In order to comply with these requirements, legislative bodies must verify the vote or abstention of each member, and publicly announce the action taken and the vote or abstention of each member in attendance. This information should also be noted in the minutes. As a practical matter, votes may need to be taken by roll call or in another manner that allows verification of the vote of each member. The Brown Act already requires legislative bodies to report individual votes on actions taken during teleconferenced meetings and on certain actions taken in closed session. SB 751 extends this requirement to actions taken in open session in any meeting of a legislative body subject to the Brown Act.
Effective July 1, 2014:
Public agencies must modify their public construction bid forms to require the license number in the subcontractor listing form and a prime contractor must list a subcontractor’s contractor license number when bidding on public construction projects. Inadvertent errors in listing the subcontractor’s license number shall not be grounds for filing a bid protest or grounds for considering the bid nonresponsive, if the corrected contractor’s license number is submitted to the public entity by the prime contractor within 24 hours after the bid opening.
With this law, new requirements have been established for public agencies that handle water, sewer, and solid waste services to conduct property-related fee elections and clarifies that such proceedings are not “elections” or “voting” for purposes of California Constitution article II and the California Elections Code.
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Jeff Ballinger and Jeff Ferre are partners with Best Best & Krieger LLP and leaders of the firm’s Municipal Law and Special Districts practice groups, respectively. Based in the firm’s Ontario office, Ballinger’s practice areas include municipal law, planning and zoning, environmental and natural resources law. He currently serves as city attorney for the cities of Fontana and San Jacinto, and assistant city attorney for the City of Big Bear Lake. He can be reached at jeff.ballinger@BBKlaw.com
Ferre serves as general counsel to a number of public agencies and water districts, and provides advice on various public laws, including the Brown Act/Open Meeting Law, conflict of interest laws, finance/rates and charges, public works construction and disclosure of public records. He can be reached at jeff.ferre@BBKlaw.com.