AB 1344 (Feuer and Alejo) Chaptered: A Reaction to the City of Bell Scandal

By Michael Reiter, Attorney at Law

Even though I no longer work as Assistant City Attorney for the City of Redlands or a Deputy City Attorney for the City of San Bernardino, municipal law continues to fascinate me, and I still help governments, business entities, organizations, and private citizens with their municipal legal issues. Even if I did not, the process of municipal government and the interplay between law and politics is fascinating.

The City of Bell scandal has had a large impact on cities, from cities jettisoning the City of Bell’s auditors, to citizens taking another look at how government works.  AB1344 is an attempt to fight the last war, and try to close perceived loopholes that allowed the situation in Bell to occur.  Here is the Legislative Counsel’s Digest for this bill, which was signed by Governor Brown and chaptered on October 9, 2011, and will be operative on January 1, 2012:

AB 1344, Feuer. Local governance.

(1) Existing law requires a charter commission to submit, among other things, a city charter to the voters of a city at either a special election called for that purpose, at any established municipal election date, or at any established election date, provided that there are at least 88 days before the election. Existing law also authorizes the governing body of any city or city and county to, among other things, propose a charter and submit the proposal for the adoption to the voters at either a special election called for that purpose or at any established municipal election date or at any established election date, provided there are at least 88 days before the election.
This bill would require a city charter or charter amendment, whether submitted to the voters by a charter commission or the governing body of the city or city and county, to be submitted at the next established statewide general, statewide primary, or regularly scheduled municipal election date, provided there are at least 95 days before the election. This bill would also require a proposal to adopt a charter, whether submitted to the voters by a charter commission or the legislative body of a city or city and county to include in the ballot description an enumeration of new city powers as a result of the adoption of the charter, including, but not limited to, whether the city council will, pursuant to an adopted charter, have the power to raise its own compensation and the compensation of other city officials without voter approval.

(2) The Meyers-Milias-Brown Act contains various provisions that govern collective bargaining of local represented employees. The Ralph M. Brown Act requires that all meetings of a legislative body of a local agency be open and public and all persons be permitted to attend unless a closed session is authorized. Existing law requires all contracts of employment between an employee and a local agency employer to include a provision which provides that regardless of the term of the contract, if the contract is terminated, the maximum cash settlement that an employee may receive shall be an amount equal to the monthly salary of the employee multiplied by the number of months left on the unexpired term of the contract, with a maximum of 18 months. This bill would, on and after January 1, 2012, additionally prohibit an employment contract for a local agency executive, as defined, from providing an automatic renewal of a contract that provides for an automatic compensation increase in excess of a cost-of-living adjustment or a maximum cash settlement in excess of certain limits, as specified. By expanding the duties of local officials, this bill would impose a state-mandated local program.

(3) Existing law sets forth the penalties for misuse of public resources or falsifying expense reporting, including, but not limited to, loss of reimbursement privileges, restitution to the local agency, civil penalties for misuse of public resources, and prosecution for misuse of public resources, including imprisonment for 2, 3, or 4 years, and disqualification from holding office, as specified. This bill would, on and after January 1, 2012, require a contract executed or renewed between a local agency and an officer or employee of the local agency to include a provision that requires an officer or employee of a local agency who is convicted of a crime involving an abuse of his or her office or position, as defined, to fully reimburse the local agency for specified payments made by that local agency to the officer or employee. The bill would also require an officer or employee of the local agency, who is convicted of a crime involving an abuse of his or her office, to fully reimburse any such payments that are made by the local agency in the absence of a contractual obligation between the agency and the officer or employee.

(4) The Ralph M. Brown Act enables the legislative body of a local agency to call both regular and special meetings. The act requires the legislative body of a local agency to post an agenda containing a brief general description of each item of business to be transacted or discussed at a regular meeting, in a location that is freely accessible to members of the public. The act also requires the presiding officer of the legislative body to deliver written notice to each member of the legislative body, and to each local newspaper of general circulation and radio or television station requesting notice in writing if the presiding officer of the legislative body calls a special meeting. This bill would require the legislative body, or the presiding officer of the legislative body, to provide notice of each meeting, including special meetings, on the local agency’s Internet Web site, if the local agency has one, as specified. In addition, this bill would prohibit any legislative body from holding a special meeting regarding the salary, salary schedule, or other form of compensation for any local agency executive.

(5) The bill would express a legislative finding and declaration that, to ensure the statewide integrity of local government, the provisions of the act are an issue of statewide concern and that, therefore, all counties and cities, including charter counties, charter cities, and charter cities and counties, would be subject to the provisions of the bill.

(6) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Specifically, this bill amends Elections Code sections 9255 and 9260; adds Chapter 10.1, commencing with section 3511.1 to Division 4 of Title 1 of the Government Code; amends Government Code sections 34457 and 34458; adds Government Code section 34458.5, Adds Article 2, commencing with section 53243 to Chapter 2 of Part 1 of Division 2  of Title 5 of the Government Code,  amends Government Code sections 54954.2 and 54956.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law.

Address : 1255 W. Colton Ave., Suite 104

                     Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

A Closer Look At The November 2011 City of San Bernardino City Clerk’s Race

By Michael Reiter, Attorney at Law

The City Clerk’s Race is interesting because of the number of candidates running, and because it is a wide-open race, and you don’t have any candidates from the City Clerk’s Office running, though Peggi Hazlett does work for the City as Assistant to the Mayor, as she did when I was a Deputy City Attorney (under Mayor Valles).

Why are the candidates interested in this race?  While no doubt the warring camps of San Bernardino City Hall each have a candidate, short of being personal friends with the candidates, there is no way of knowing the motivations, other than a longing to do public service and a commitment to the City.  If anyone is running for a spring-board to further political ambitions, historically, this has not been a good first step, though a previous City Clerk did become City Administrator.

The compensation for San Bernardino City Clerk (obtained from the State of California Controller’s Office for calendar year 2009, the most recent data available:

Department	Classification	Multiple Positions	Annual Salary Minimum	Annual Salary Maximum	Total Wages Subject to Medicare (Box 5 of W-2)	Applicable Defined Benefit Pension Formula	Employees’ Share of Pension Contributions	Deferred Compensation	Health, Dental, Vision

City Clerk Administration

City Clerk

—

$111,624

$135,684

$127,879

2.7@55

$9,577

—

$8,735

Presumably, the new Clerk (will be at a lower pension formula adopted (2%@55) with the possible exception of Peggi Hazlett.  The City Clerk’s salary is set by the Mayor and Common Council pursuant to San Bernardino City Charter Section 24-B.  The Clerk will be going in at the beginning of the salary range shown above.

Because San Bernardino is a charter city, the duties of the City Clerk are set by the Charter and by ordinance of the Mayor and Common Council, and other duties arising out of California law, such as duties under the Political Reform Act.

Section 60 of the San Bernardino City Charter says:

City Clerk
Section 60. Duties. The duties of the City Clerk shall be to keep the corporate seal and all books, papers, records and other documents belonging to his/her office, attend all meetings of the Mayor and Common Council and keep a journal of the proceedings. He/She shall have full power and authority to take all affidavits and administer all oaths necessary in the transaction of city business, but shall make no charge therefor. His/Her official books and records shall be kept properly indexed and be open to public inspection during office hours. He/She shall number and keep a record of all demands allowed and certified to him/her, showing the date of approval, to whom the same is allowed, the nature of the claim, and the fund out of which the same is payable. He/She shall issue all licenses and countersign all warrants on the City Treasury, except warrants of the boards, and shall do and perform all other acts required of him/her by this Charter, or by ordinance, or which may be required of him/her by the Mayor and Common Council.

The Charter also includes other duties of the Clerk, such as being an ex-officio secretary of the Water Board.  San Bernardino City Charter section 168.

There is actually a job description adopted by the Mayor and Common Council on January 24, 2011 (according to the document, I was not able to find it in the staff report for that date) and available on the City’s website.  This description may be useful in helping voters determine which candidate to pick.

The first section of the document is labeled “Job Summary” and it says:

As an elected official and under legislative policy direction from the Mayor and City Council, plans, organizes, manages, directs and coordinates the programs and activities of the City Clerk’s Office; serves as clerk/recorder for the City Council; directs the City’s business registration program, provides policy guidance and expert professional assistance to City departments in areas of responsibility; and performs related duties as assigned.

The next section is labeled “Distinguishing Characteristics:”

City Clerk is an elected position, responsible for managing and integrating a variety of programs and services that enable the Mayor and City Council and City departments to accomplish City business efficiently and effectively while ensuring that procedures and processes meet legal requirements and are implemented with integrity.  The incumbent manages a variety of programs and services including: business registration and collection of business, transient occupancy and utility taxes: issuance of U.S. passports; a records management and document imaging program; maintenance of official City records; Statements of Economic Interest; and analysis and enforcement of laws pertaining to elections, public records and conflict of interest.  As City Clerk, the incumbent is responsible for preparation of Council agenda and minutes and for conduct of City elections, including election and campaign financing disclosure.  Many City Clerk functions and activities are prescribed [sic] by the City Charter, Municipal Code and other state and federal laws.  Assignments are broad in scope and allow for a high degree of administrative discretion in their execution.

The document continues with “Essential Duties and Responsibilities:”

The duties listed below are intended only as illustrations of the various types of work that may be performed.  The omission of specific statements of duties does not exclude them from the position if the work is similar, related or a logical assignment to the class.

1. Plans, organizes, controls, manages and evaluates the work of the City Clerk’s office; with subordinate managers and supervisors, participates in establishing operational plans and initiatives to meet department goals and objectives; implements departmental plans, work programs, processes, procedures and policies required to achieve overall department performance results; coordinates and integrates department functions and responsibilities to achieve optimal efficiency and effectiveness; participates in developing and monitoring performance against the annual departmental budget.

2. Participates with the City Manager, elected officials and other managers in establishing strategic plans for the City; sets overall management and policy goals and objectives for the City Clerk’s Office with the administrative and legislative framework established by the City Manger and the Mayor and City Council; coordinates department program and policy issues with managers of other departments and/or on a City-wide basis.

3. Plans and evaluates the performance of supervisors and staff; establishes performance requirements and personal development targets; monitors performance and provides coaching for performance improvement and development; provides or recommends compensation and other rewards to recognize performance; takes disciplinary action, up to and including termination, to address performance deficiencies, subject to management concurrence, in accordance with the City’s human resources policies and procedures, Civil Service Commission Rules and labor contract provisions.

4. Provides leadership and works with supervisors and staff to develop and retain highly competent, customer service-oriented staff through selection, compensation, training and day-to-day management practices that support the City’s mission, strategic goals and core values.

5. Attends CIty Council meetings and directs preparation of the agenda and supporting materials; takes minutes, records votes and administers oaths or affirmations; direct the documentation, maintenance and dissemination of all City Council actions including minutes, ordinances, resolutions, agreements and deeds; prepares requests for Council action; directs the legal posting and publication of notices, postings, ordinances, bids and public hearings to ensure Brown Act requirements are met; attends pre-agenda meetings and agenda briefings.

6. Directs and coordinates a records management program for official City records and archives; acts as custodian of official, permanent ordinances, resolutions and other documents for which the City Clerk’s Office is the office of record; review resolutions and ordinances for correctness and codifies ordinances in the City’s Municipal Code; periodically publishes and distributes Municipal Code updates.

7.  Directs and manages the City’s business registration program; manages the issuance of all business registrations and collection of business registration taxes; directs the collection of transient occupancy and utility taxes; directs review of applications and issuance of U.S. passports in accordance with requirements of the U.S. Passport Agency.

8. Plans, supervises, coordinates and administers the conduct of municipal elections; plans voter outreach initiatives and directs the registration of voters; in collaboration iwth the City Attorney ensures the legality of election proceedings in accordance with state and local election and campaign financing laws; administer procedures for filing Statements of Economic Interest and campaign financing statements and reporting; notifies affected parties of FPPC requirements and deadlines and answers questions regarding filing issues from the Mayor and City Council, designated City employees, candidates, consultants, the media and the public; certifies election results.

9. Analyzes and ensures compliance with local, state and federal laws pertaining to public records, municipal elections, campaign financing and conflict of interest and advises the City Manager and the Mayor and City Council regarding the requirements of such legislation.

10. Researches and prepares reports for the City Manager and the Mayor and City Council; works closely with the City Manger, Mayor, City Council, City departments, other public and private entities, the media and the public in providing public records information and services, responds to and resolves difficult and sensitive citizen inquiries and complaints, assists the public and CIty staff by providing information and research assistance; certifies the authenticity of City documents.

11. Maintains official custody of the City seal and shares signatory power on ordinance,s resolutions and agreements; certifies copies of official documents.

12. Receives the services of claims and subpoenas on behalf of the City; officiates at bid openings and prepares or directs the preparation of related documents.

13. Participates in a variety of public relations activities on behalf of the City, including liaison with Sister City representatives, Chambers of Commerce, community organizations and the media.

14. Attends professional and community events and meetings.

15. Notarizes official documents as necessary.

The job description continues with a section titled “General Qualifications:”

Knowledge of:

1. Policies, procedures and requirements governing the actions of an elected City Council and the general functions of a municipal government.

2. Organization, functions, procedures and rules of the Council and Council Committees.

3. City Charter and Municipal Code provisions related to the operations of the City Clerk’s function and matters which come before the Council and its Committees.

4. The Brown Act, Roberts Rules of Order, parliamentary procedure and other rules and procedures governing the notice and conduct of public hearings.

5. The California State Election Code and other applicable ordinances and laws pertaining to the conduct of municipal elections.

6. The California Public Records Act and other applicable federal, state and local law governing the maintenance and retention of public records.

7. Other federal, state and local laws, regulations and court decisions applicable to assigned areas of responsibility.

8. Principles and practices of public administration, including budgeting, purchasing, contract administration and maintenance of public records.

9. Research methods and analysis techniques.

10. Principles and practices of sound business communication.

11. Principles and practices of effective management and supervision.

12. City human resources policies and procedures, Civil Service Commission Rules and labor contract provisions.

Ability to:

1. Plan, organize, direct, integrate and evaluate a variety of City Clerk’s Office programs and services.

2. Develop and implement goals, objectives, policies, procedures and internal controls.

3. Analyze, interpret, explain and apply complex legal documents, contracts and administrative procedures and regulations.

4. Analyze complex technical and administrative problems, evaluate alternatives and adopt effective courses of action.

5. Prepare clear, concise and comprehensive correspondence, minutes, reports, studies and other written materials.

6. Plan, organize and coordinate effective municipal elections.

7. Prepare and present organized and accurate oral reports.

8. Exercise sound expert judgment with general policy guidelines.

9. Exercise tact and diplomacy in dealing with sensitive and complex issues and situations.

10. Establish and maintain effective working relationships with the City Manager, Mayor, Council members,  departments directors and staff, customers, professional and community organizations, the media, the public and others encountered in the course of work.

The Minimum qualifications are listed as “Education, Training and Experience: As determined by the electors of the City of San Bernardino.”

While the document is chock-full of human resources jargon, it can be a good tool for voters to use in choosing a candidate.  As far as I can tell, none of the candidates have been a City Clerk, and none have worked in a City Clerk’s Office.  The downside of the document is that in some ways it reflects how City Clerk Rachel Clark has run the office.  The new City Clerk has the opportunity, within the bounds of the law, to reshape the environment in the office, including its employees, and changing the discretionary duties of the office.

Charter Section 242 reads:

Section 242. Qualifications of City Employees and Appointment. The Mayor and Common Council may prescribe the number, qualification and
compensation of the deputies, clerks, assistants, employees and attaches of the City Attorney, City Treasurer and City Clerk. All deputies, clerks, assistants,
attaches and employees of the City Attorney, City Clerk and City Treasurer shall be appointed by the respective officers with the consent and approval of the Mayor
and Common Council, and shall hold office at the pleasure of the officers appointing them.

This section means that the new City Clerk can, to some degree, start with a fresh plate and get rid of the existing staff. That’s far more likely to happen in the City Attorney’s Office than the Clerk’s Office, but that decision is up to the City Clerk.

Reading the job description, the City Clerk needs to have management skills, knowledge of how the City works, knowledge of the law, basic grasp of the English language, and the ability to work well with others.  Of  course, the actual requirement is election to office is in the Charter: “Section 235. Qualification of officers. The City Clerk and City Treasurer shall have been qualified electors and residents of the City for a period of at least thirty (30) consecutive days prior to their appointment or filing of their nomination papers for election to office.”

Here is a matrix of available information that I have found online regarding the candidates and their qualifications for the office.  I couldn’t find any information in some areas.  The information I have that is most complete is for Gigi Hanna; she was the first to send out information, and her Facebook page fills out any details.  She is listed first because she is first on the Registrar of Voters’ list.

Name	Education	Management Experience	Public  Entity Experience	Communications Ability	City Clerk Training?
Georgeann “Gigi” Hanna	M.A.	Yes	Yes	Journalism, PR	Yes
Peggi Hazlett	B.A.	Yes	Yes	Assistant to Mayor	Unknown
Esther Jimenez	B.A.	Unknown	Yes	Sr. Legislative Assistant	Unknown
Amelia Sanchez-Lopez	B.A.	Yes	Yes	Cordinator, SB County	Unknown
William A. Valle	A.A.	Unknown	No	Platoon Leader	Unknown

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law.

Address : 1255 W. Colton Ave., Suite 104

Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Use of the California Public Records Act for Opposition Research

By Michael Reiter, Attorney at Law.

The California Public Records Act (as well as the disclosures required by the Political Reform Act, adjudicative court records)  provides an important tool for gathering information about political rivals.   Below is a brief overview of the kinds of records that are available to the public, and what can be learned from the types of information.

1. Permit and Property Records.  An opponent may be able to find administrative citations, notices of violation, building permits (or no building permits) by making a California Public Records Act request by a parcel number or street address.  Some cities will take the view that code enforcement records are criminal investigatory files and refuse to disclose.  However, I have found that most cities will disclose this information, with some redactions with the name of reporting parties.  Building permits themselves are relatively non-controversial, and will be inspected.

2. Contracts with government entities, particularly entities that are not

3.  Litigation with a public entity.  This can be a treasure trove of information about the inner workings of government.  Depositions are a good source because they are largely unfiltered.  Also ask for any government claims, as they may not show up if no lawsuit is filed.

4.  Minutes.  Opponents can use these to establish a record of voting or non-voting.

5. Electronic mail.  Though many public entities have policies of deleting email within a certain amount of time, electronic mail is often very candid and can provide powerful ammunition.

6. Constituent correspondence.   You can find specific complaints about public officials and contact the complainants.

7. Correspondence with staff, including electronic mail.  Is the political rival abusing staff?  Find out by requesting correspondence on matters of importance to the elected official, particularly on matters that have dragged on for a long period of time because of red tape or the involvement of other government agencies.

8. Campaign disclosures.  These often have little nuggets of  information.  For example, sometimes candidates keep committees open long after the election.  One reason is because they made a loan of personal funds to themselves, and they hope to some day get paid back when they run a successful campaign in the future.  Form 700 Statement of Economic Interests, whether for a candidate or an elected or appointed public official, have valuable information about potential campaign opponents.

9. Web browsing information.  This may be subject to some exemptions, the agency may claim that these are not records, and they may be deleted fairly regularly.  Request these records early and often.

9. There are many, many more areas which might be helpful.   These requests need to be made regularly and not during election season.  Records can be destroyed in compliance with California law, so the record you most want may not be there when you need it.  Also, the California Public Records Act’s time provisions can be a disadvantage to obtaining records in a timely fashion.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law .

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Duties of the City Clerk Under California Law In a General Law California City

By Michael Reiter, Attorney at Law

In a general law California city, the City Clerk’s duties are created by state law and by city or town ordinances and resolutions.  State law establishes the duties of  a general law City Clerk in Government Code section 40801, et seq.

The Duties of the California general law City Clerk are:

1. Clerical: Keep accurate record of the legislative body and board of equalization in books bearing appropriate titles and devoted exclusively to such purposes  with a comprehensive general index. The City Clerk shall keep an ordinance book and record all certified city ordinances.   The record with the certificate is prima facie evidence of the ordinance’s passage, publication and contents.  The official records should not be filed in any court proceeding.  The City Clerk is the custodian of the city seal.  The City Clerk can administer City oaths, take and certify City affidavits and depositions, and appoint deputies.  (Government Code sections 40801, 40806, 40807, 40813, 40814);

2. Financial: The City Clerk is the City’s accounting officer and shall retain records reflecting the City’s financial condition.  The City Clerk shall cause to be published a summary of the City’s financial report (required by Government Code section 53891 in the form prescribed by the the State Controller) once in a newspaper of general circulation, or if no newspaper, according to code, and posted no later than 120 days after the fiscal year’s close, and the clerk’s financial and accounting duties can be transferred to the finance director.  The City clerk is the ex officio assessor for the assessment and collection of city taxes unless delegated to the county.  (Government Code sections 40802, 40804, 40805, 40805.5, 40810); and

3. Other:  The City Clerk shall perform “such additional duties as are prescribed by ordinance.” ( Government Code section 40812).

 

The City Clerk also has duties created by the Election Code regarding elections and other duties in the Government Code, such as notifying the county board of supervisors regarding the change of a place name or number (Government Code section 34092).  The Government Claims Act allows a government claim to be filed with a city clerk.  Government Code section 915(a)(1).  The City Clerk is also receives Statements of Economic Interest under the Political Reform Act, as well as other duties under the Act.  Government Code section 87500(f).
Other duties can be prescribed by ordinance.  The City of Rancho Cucamonga, for example, requires certain documents on appeals to be filed with the City Clerk.  As I have mentioned before, often California Public Records Act requests are routed through or answered by the City Clerk.  The City Clerk in Redlands sold Fourth of July tickets at the University of Redlands on behalf of  the Redlands 4th of July Committee, Inc.  Many City Clerks process passports for the State Department.

 

A charter law City’s City Clerk’s duties will be created by the City’s Charter.  For example, the City of San Bernardino’s City Charter, Section 60 is very similar to the Government Code’s prescribed duties.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law .

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

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Can a California local public official sue for slander or libel (defamation)?

By Michael Reiter, Attorney at Law.

In California, do statements regarding a public official made during a public meeting and statements regarding a public official made in letters to the editor of a newspaper or other written materials that are publicly distributed give rise to a cause of action for defamation?  “Defamation” is used generically to include both libel (written) and slander (spoken).  The distinctions between the two are largely procedural, so I will use “defamation.”

It is very difficult for a public official to prevail on a claim that a statement made about the official at a council meeting, or in the press, is defamatory.  Statements made during local agency meetings, even if false, are privileged and do not constitute defamation.  Statements made in the press about a public official are generally not defamatory unless the official can show the statements were made with actual malice.

Any discussion of defamation involves two different levels of inquiry.  The first is whether a statement is defamatory.  Defamation is generally defined as a false and unprivileged publication (to a third party) which causes damages (Civil Code sections 45, 47).  Therefore, if a statement is true, or if it is privileged, then it is not defamation.  Second, even if a statement is not true, or not privileged, a public official may only be defamed if a false statement regarding the official is made with actual malice (that is, with knowledge that it is false, or with reckless disregard of its truth or falsity).  New York Times v. Sullivan (1964) 376 U.S. 254, 279-280.

The New York Times case, which discusses “actual malice,” involved an advertisement printed in the New York Times newspaper that contained certain false statements regarding civil rights-era Alabama.  The plaintiff in the New York Times case was a public official — the Montgomery, Alabama Police Department Commissioner.  In summary, the United States Supreme Court determined that although the statements published in the advertisement were false, they were not made with actual malice and therefore did not result in defamation.  The Supreme Court reasoned that the First Amendment protects false statements about public officials because “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”

Statements made at a local agency meeting are privileged under California law and therefore cannot constitute defamation.  (Civil Code section 47(b)).  The law states that a privileged publication “is one made . . . in any . . . legislative proceeding.”  The courts have read “any legislative proceeding” very broadly to include “all that is spoken or done in the course of legislative proceedings.”  Scott v. McDonnell Douglas Corporation (1974) 37 Cal.App.3d 277, 288.  In Scott, a letter distributed at a city council meeting charged the city manager with a lack of moral and ethical character.  The court found that the distribution was privileged.  The court’s reasoning was that the benefits of extended immunity outweigh a narrow reading of the privilege, “even though it countenances vehement, caustic and at times vigorous attacks on government officials.”  Id., quoting New York Times.  The immunity extends to interested members of the public who wish to address themselves to matters pending before a legislative body.  Id.

For example, if a speaker comments on a development and states that “this development will be approved because the entire agency governing body is taking bribes from the developer,” the statement, even if false, is privileged because it is relevant to the subject matter of the meeting.  Likewise, if a speaker, during public comments says that “the entire agency governing body is corrupt and is taking bribes from developers,” it is still relevant to the subject matter of the legislative proceeding because the Ralph M. Brown Act allows citizens to make public comments within the subject matter jurisdiction of the local agency, and specifically allows criticisms of the acts or omissions of the legislative body.  Therefore, such a comment is privileged and not actionable, even if false.

Letters to the editor that are not true, not privileged, and not an opinion, may be actionable as defamation if there is a false statement regarding a public official made by a speaker who has “actual malice.” The difference between an opinion and a “fact” (true or untrue) turns on a variety of factors.  Defamation “can be meaningfully applied only to statements that are capable of being proved as false or true.”  Savage v. Pacific Gas & Electric (1993) 21 Cal.App.4th 434, 445.  In one case, a newspaper reporter’s statement that a city council member was a crook and a crooked politician were found to be statements of opinion.  Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172.

The “actual malice” standard can be difficult to prove, but is not insurmountable.  Former San Francisco Mayor Joseph Alioto was able to prevail in a defamation action after suing the publishers of Look Magazine.  The magazine had published an article which falsely detailed dealings between the Mayor and members of the mafia.  The magazine was found to have published the article with actual malice, meaning a reckless disregard for the truth.  Alioto v. Cowles Communications (1977) 430 F.Supp. 1363.  However, it took Mayor Alioto eight years after the article was published to win the case and collect a judgment.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W:http://michaelreiterlaw.com

How to Read a Riverside County or San Bernardino County Town or City Council Brown Act Agenda Closed Session List

The Ralph M. Brown Act codified at Government Code section 54950 et seq., California’s open meeting law gives the public the opportunity to know what their elected officials are doing, and requires their meetings to be open and public.  Certain items can be discussed in closed session only if they meet the criteria set by the Brown Act.  I will take an example from the recent agenda of two local agencies, one in Riverside County, and one in San Bernardino County and examine what they tell us.

From the City of Riverside’s April 12, 2011 City Council Meeting, from the City’s website, a portion of the closed session agenda.

“3 P.M.

MAYOR CALLS MEETING TO ORDER

. . .

CLOSED SESSIONS – Time listed is approximate. The City Council/Redevelopment Agency may adjourn to the below listed Closed Sessions at their convenience during this City Council/Redevelopment Agency meeting.

3. City Council – Pursuant to Government Code §54956.9(a) to confer with and/or receive advice from legal counsel concerning Paul Wilkerson, et al. v. City of Riverside, et al., Riverside Superior Court Case No. RIC 484376

4. City Council – Pursuant to Government Code §54956.9(c) to confer with and/or receive advice from legal counsel concerning one case of anticipated litigation”

From this agenda, we see that Closed Session will not start before 3 p.m.  That doesn’t mean it will start at 3 p.m.

The first item on the closed session agenda, is existing litigation.  We don’t know from the closed session agenda item what is being considered.  It could just be a status update, or Council could be approving a settlement offer.  We could go to the Riverside County Superior Court website and see what we can find out about the case.  We find from the Riverside Superior Court Public Access site that this is a personal injury, non-motor vehicle case.   A thirty day (!) jury trial is set for 9/23/2011.  The City is one of many defendants, including what appear to be businesses, including downtown bars.  The Riverside Police Department was erroneously sued.   A Motion for Summary Judgment is set for May 16, 2011.  Perhaps there has been a demand by plaintiff to settle in the shadow of the Motion for Summary Judgment hearing.  You could purchase the pleadings online or go to the courthouse to see the original records if you were curious about the case.

The second closed session agenda gives very little information.  The section of the Brown Act cited reads: “(c) Based on existing facts and circumstances, the legislative
body of the local agency has decided to initiate or is deciding whether to initiate litigation.”  Government Code section 54956.9(c).   This is in substantial compliance with the requirements of the Brown Act in listing this item:which requires ” Initiation of litigation pursuant to subdivision (c) of Section 54956.9: (Specify number of potential cases).”  Government Code 54954.5(c).   The idea behind this limited information is that you don’t want to tip off the person or people that the agency wants to sue, just in case they don’t sue, and to keep the element of surprise.

Moving on to San Bernardino County, here is a recent agenda from the City of Chino Hills.  On the Council Agenda of the City of Chino Hills for the April 12, 2011 meeting, item 1:

“1. Conference with Real Property Negotiator, pursuant to Government Code Section 54956.8 – City of Chino Hills and Chino Valley Unified School District relating to the purchase or lease price/terms regarding property known as Assessor Parcel No. 1028-481-02 (Bird Farm Property).”   You can go to the San Bernardino County Tax Collector’s site  amd enter the APN (Assessor’s Parcel Number) and find out information about the property.  The San Bernardino Tax Collector’s site says that the property belongs to the Chino Valley Unified School District and has since 1988.  From the assessor’s parcel map, we see that it is along Bird Farm Road and Rincon Road and is a 17 acre property.  Putting those terms in Google  we find a map and we find that it is Chaparral Elementary School.  Whatever is going on with the City of Chino Hills, it is not apparent what is going on in this closed session (other than the City is trying to purchase or lease the property from Chino Valley Unified School District and the are only going to discuss the amount or the terms of the purchase or lease.   Did this description substantially comply with the Brown Act?  This is what the Brown Act requires:

“CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: (Specify street address, or if no street address, the
parcel number or other unique reference, of the real property under
negotiation)
Agency negotiator: (Specify names of negotiators attending the
closed session) (If circumstances necessitate the absence of a
specified negotiator, an agent or designee may participate in place
of the absent negotiator so long as the name of the agent or designee
is announced at an open session held prior to the closed session.)
Negotiating parties: (Specify name of party (not agent))
Under negotiation: (Specify whether instruction to negotiator will
concern price, terms of payment, or both)”  Government Code section 54954.5(b).

I didn’t see the name of the agency negotiator on the agenda.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

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