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HomeMy WebLinkAbout07/28/1988 Donald K. Ratty, Chair James H. Childs Kevin McDermott Staff: John Stinson AGENDA BUDGET AND FINANCE COMMITTEE Thursday, July 28, 1988 12:00 Noon City Manager's Conference Room ITEM #1 TIM GANNON/BAKERSFIELD COURTHOUSE RACQUETBALL ITEM #2 CITYWIDE PARKS SURVEY ITEM #3 ATTORNEY SERVICES TO OUTSIDE CITIES MEMORANDUM JULY 28, 1988 TO: BUDGET AND FINANCE COMMITTEE FROM: ARTHU______R~ SAA---~LFIE___LD_~, CI___~T~ ATTORNEY SUBJECT: LEGAL SERVICEs TO MARICOPA, SHAFTER, ANII/TAFT The issue of whether the City of Bakersfield should continue to provide city attorney services to the cities of Mari- copa, Shafter and Taft, utilizing staff of our City Attorney's Office, has been under active review now for several months. That review has established, in my opinion, the following: 1. Atforneys from this office obtain valu- able experience in advising the councils and commissions of the three cities at public meetings and in addressing a broad range of municipal law issues outside their usual duties for our city, and supplement their incomes as well. 2. With the municipal law experiences of our entire staff available to them, these attorneys have significant resources to call upon in providing services to the three cities. 3. The work done by our staff attorneys for the three cities, which does not include litigation or any services to those cities outside our office during the regular work day, is now being and can in the future be managed so as to be insignificant in its impact on time devoted to the legal matters of our city. 4. The process, as described, provides the three cities with a greater range of municipal law expertise than is available from the private bar in Kern County. 'Memo to Budget & Finance Committee 'July 28, 1988 ~ Page 2 5. In providing legal services to the three cities, Bakersfield is exposed to the potential of claims, suits and, ultimately, liability for any malpractice committed by attorneys from this office in performing legal services for those cities. That risk cannot be.quantified. We have been providing legal services t6 the three cities since June 1983, and have never had a claim filed against us for malpractice. However, considering .the assets of this City compared to those of our client cities and the fact that "training" our attorneys is an acknowl- edged rationale for providing the cities legal services, doing so must be considered a relatively high risk activity~ in terms of potential liabilities. 6. If in fact an insurance company would issue a malpractice policy covering the work this office does for the three cities, the premiums charged would exceed what the three cities are willing to pay. 7. Requiring the three cities to indemnify and hold harmless the City of Bakersfield vis-a-vis claims or liabilities relating to the legal services we provide is functionally equivalent to requiring clients to underwrite their attorneys' malpractice. I doubt such a contract provision would be judicially enforced. 8. At least one local law firm has the evident ability to provide legal services to the cities and has expressed a willingness to do so at comparable per-hour fees. I conclude that in providing legal services to Maricopa, Shafter and Taft, the City of Bakersfield obtains a significant benefit in terms of the training of our staff, the attorneys obtain income in addition to such training, and the other cities obtain a breadth of municipal law expertise not likely available from a private sector law firm. However, all such benefits are at ~_Memo to Budget & Finance Committee 'July 28, 1988 ~Page 3 the cost of exposing the City of Bakersfield to a risk of signifi- ~ cant liability, the likelihood or amount of which cannot be estimated. The decision to continue or to cease providing legal ser- vices to Maricopa, Shafter and Taft is a "business", not a "legal" decision, and I claim no special expertise in advising upon such decision. The Council will have to. determine whether the benefits outweigh the risks. In my opinion the two are pretty much in balance. Though the existing arrangement benefits the City Attorney's Office, the conservative course would be to eliminate the liability exposure by terminating our contracts with those cities. AJS/meg M.BUDFIN1 OFFICE. of THE CITY ATTO 0 ARTHUR J. SAALFIELD CITY ATTORNEY CITy M'ANAG£R~S 1501 TRUXTUN AVENUE O~'irC~' MUNICIPAL LAW: BAKERSFIELD, CALIFORNIA 93301 LITIGATION: ALAN DALE DANIEL (805) 32~-3721 DON McGILLIVRA Y Assistant City Attorney ' Assistant City Attorney August 8, 1988 ROBERTM. SHERFY LAURA C. MARINO Deputy City Attorney Deputy City Attorney WILLIAM H. SLOCUMB, JR. Deputy City Attorney IN VES TIGA TIONS: DON MARTIN Mr. Wayne Maxwell CityAttorneylnvestigator 5004 Evanston Court Bakersfield, CA 93309 Dear Mr. Maxwell: This letter is written in response to the correspondence you' received from Assemblyman Phillip D. Wyman's Office dated June 9, 1988 and signed by Bill Hanlon, Administrative Assistant 'to Mr. Wyman. I must respectfully disagree with Option No. 3 in Mr. Hanlon's letter wherein he states that under the California S~ate Constitution, a charter city may make and enforce all ordinances and regulations in respect to municipal affairs. While it is true that Bakersfield is a charter city and falls under the municipal affairs doctrine set forth in the California State Constitution, in my opinion this matter is not a municipal affair. Government Code Section 53074 states, "Notwithstanding. any other provision of law or any local ordinance, an officer or employee of any animal control agency shall not seize or impound a dog for the violation of an ordinance requiring a dog to be leashed... " "or any local ordinance ." In my opinion, the words, . . clearly indicates that the state legislature feels this is not a matter for local control, and is not a municipal affair. As this matter is not one of local concern and the State has legislated in the area the City of Bakersfield may not pass an ordinance contrary to the State's direction on this issue. Sincerely, Assistant City Attorney ADD:lg cc: Art Saalfield, City Attorney Dale Hawley, City Manager 4 L.MAXWELL ~' ' PLEASE REPLY TO: ~.~STATE CAPITOL COMMITTEES SACRAMENTO, CA 95814 FINANCE AND INSURANCE % (9 ! 6) 44~-3266 INTERNATIONAL TRADE AND INTERGOVERNMENTAL [] 5393 TRUXTUN AVENUE PUBLIC EMPLOYEES. RETIREMENT BaKERSfIELD. CA 93309 AND SOCIAL SECURITY (805) 395-2673 TRANSPORTATION LANCASTER, CA 93534 LITTLE HOOVER COMMISSION (805) 945-3544 JOINT COMMITTEE ON THE STATE'S ECONOMY [] 825 N. CHINa LAKE BlVD, ROOM B R'DOECREST, CA 93~ P H I IlI P D. WY M A N ASSEMBLYMAN. THIRTY-FOURTH DISTRICT June 9, 1988 Wayne Maxwell 5004 Evanston Court Bakersfield, CA 93309 Dear Mr. Maxwell: Thank you for your letter of April 4, 1988, which described a problem relating to dog leash laws. Your deep concern with this problem is well understood and ft has been our intention to help in any way possible to come tip with a practical solution. In my review of your enclosures, I noted that both Lt. Overfield of the S.P.C.A. and Mr. Hawley , City Manager, advised that this area of law is covered by the State Government Code and that no city or county ordinance can overrule Code Section 53074. It is my understanding that traditionally city and county governments handle problems such as dog leash regulations. However, in the case of 53074 an exception exists to the tradition. This code was originated by Senator J. Holmdohl of Alameda County in 1976. A constituent of Senator Holmdohl's complained that her poodle was sitting in her front yard and the animal control person picked up her dog, took it to the pound and put it to sleep. An effort was made at the time to veto the Senator's bill as it was contrary to the normal way of handling these types of matters, but was unsuccessful. The above information and the following suggestions were obtained in a telecom with Mr. Peter Detwiler, principal consultant for the State Senate Committee, State Capitol Room 2085, Sacramento. His telephone number is (916) 445-9748. The suggested courses of action are as follows: 1. Start working with Lt. M. Overfield, senior animal control officer for S.P.C.A. relative to paragraph 2 of 53074, which refers to a dog that has strayed provides for the issuance of a citation, and further provides that if in such a situation the owner or person who has a right to control the dog is not home, the dog may be impounded, but a notice of such impounding on front door must be posted. The idea here is by working with Lt. Overfield enforcement action will be taken. 2. Contact a local State Legislator and request that this Code 53074 be recinded by having the Legislator introduce legislation. 3. Bakersfield is one of 83 cities that possesses a "City Charter" ou~ of 450 cities. Accordingly, Bakersfield comes under the "Municipal Affairs Doctrine." Therefore under the California State Constitution Article XI Section 5 (a) "It shall be competent in any city charter to provide that the city '~..governed there under may make and enforce all ordinances and regulations in respect to municipal affairs: etc. If you select suggestion 3, and in your contact with the City Attorney, Peter Detwiler, referred to above has offered to ~assist you in answering any question the City Attorney may have. I hope that the above information and suggestions will assist you in your efforts. I have enclosed a copy of the State Constitution for your information. Sincerely, Bill H~nlon Administrative AsSistant BH/mlh Enclosure the temptation to put it on the November/ W~HINGTON ~ It was just ;'mjeaed by the ".ballot and. walk away. If they believe that. ]over a cenm~ ago that the ha~ a utili~ t~ ~11 revenues ever ]less Rev. Samuel D. Burchard' ........... ,helped elect. Grover Cleveland ~tn me costs ~g~ ~,~h the famous d~laration YWe , -~ Republicans; and we do not their hands ~di~, ~propose to . .. identi~ ou~elves That's ~with the pa~ of ~m, Romanism ' · ~and rebellion.~ . New YorI -. presidem Droves of ang~ immigrants, at least to · '" :. wets and Southemem trooped to ob~ous. .' the polls to vote against Bur- ancy act' .u,.o, ', chard's candidate, James G. Europear .~[~r.-,~ '. :.'[ : That was the most famous occa- that was . ' . . , ' stun.When Wo~s werep~otal in a ' Day, "1 chil ' : To'be declared ~cious" a do ,_ _ presidential el~ion. But in a re- Po/es co~ ' ;,'~ ' ~ g WOUIO ~ave cent discussion of our political . ;eles,';'to injure or ~11 three dogs. in the street prospects with European f~ends, nated by~ new law "~thin 36 months or ~ce aRack neighbor' ~ came to me that our I~t thee At a sir US :dogs,'?dogs in their own yard or bite a chPa -~', e~e~ions ~ight easily have turned ra~lousk, ..... on ~a~s~ uae~n~s ha~ng lit- fiat; and Of. concessions to .;'marl carnet so badly that ,t~ey ,~requir~ ', tie to do ~th i~u~. , tressed ~: aemb~'~ ]:'of the ~sembly Water; }'~ t0 appeal the desjg~atiqa to municipal or. ~ ~[ y~_ t~, ~an .~o_ Subtle for an it~ h,~y ~/ould do, veil to ~veit a h,~=~o: ?w°um oe authorized to destrov an animal ~, .............. ~s so hind the · ' r all~; naps~ll, anomer Pe~on .... :~, ;:..~ FOUR ~ later, the same Ford's mo,. dangerous dog' would be requiredto license ~&,,. ; · · ' . . '. :, electronic Merlin brilliantly de- ~ ad~ser~ ',' it, :have it vaccinated and keep i~ in a fenced ?k~ ?: ~at ~nd of lenien~ for owne~ and their claud that he would not "take Polish gal spa6e.. The o~er 0f a ~cious ' dog would' dogs that are a threat to pe~ons and other Unfair advantage of the relative guess," I bg,~equired to tattoo the a~imal, confine it in ~ animals is ~di~lous. Even before the recent ~nent-; and so much for the "age the presid, youth and inexperience of my o~ about ~he ' a~:'~enclosure, .post a wa~ing si~ and buy :;..Pit bull aRac~, some cities had tougher ordi- ~saue" and whatever small chance ' lhat he sh; $I00,000 wo~h of special liabili~ insurance ."nances that co~ectly defined ~cious dogs ~: WMter Mondale may have had at ' any reaso, '. inulase it attac~ a pe~on or.another dog. ' "' "those that have aHacked another animal or '; that ~int., . slightly rev . ~fo~unately, SB 1741's definitions of "po-", threatened persons ~thout being provoked '~ '.~ ~_~po~s~pp~, ~h?e epi- ma~ to th ~;.,;~. Z..~ .... ~. C.~ are,so for- Unlessthe ~semblv is read to str , ~?qt that probably cost ~rald to his coacl ~,~,.b a~' to make, t~ose still regulations ' ~ ..... , ...... - . Y en~hen ford the East Euro-ean ethni . the blunde; meaningless. ' oo ~ai s ~ennmon of what is a dange~us "'votein 1976. ' P c ' ]Exactly, Othe~ wh; dog and ~ve animal control officials enough It happened in the second For example, a pit bull that, unprovoked,; authofi~ to destroy a dog that has ~lled a F~-Ca~er debate in San F~n- ing have to' attacked and ~lled a .cocker spaniel in the baby/the bill threatens to become a 'model~-':c~s~ Ford flatly declared, ~e "Son "~ So. et do.nation of a press-inv park couldn't be declared a "potentially dan- 'law that pit bull enthusiasts ~1 invoke' to ~ste~ Euro~ and there never of somethi gerous" ,dog until it had chewed up the weaken existing local orotections a ain ' ,~11 be under nei hbor s o ' "~ · - g st ~- a Ford administra State Depa . ~.. .. ..... · ;, ~. - ..... , C OUS dogs and their ~espons~ble ownem '~"d ~on. · mut Sonm ?: ' ' · :.. ,. ' .... - · '. .' .};{;;~i~c 'valrous Max Frankel of the The sch( about wor ON T CONFUSE forgo w~th forego. ~ ;Forgo means to go without, to forsake. Forego n go before or precede. The appetizer foregoe you should forgo it, too. ,2. Don't confuse foreword with forward. is the introductory note in a book - at the fore. Forward is an adverb that means toward the front (let's move forward); an adjectiv(. d,;~ means ahead or advanced or situated in the front forward cabin of the plane), or romantically bold : forward young man) or impudent or eager (the for · salesman); and a verb that means to send oowa~ 'transmit or to promote or advance (good work will · forward your career). A forward is also a po}ition basketball or soccer team so it's possible, I suppos( . an impudent or romantic athlete to be a forward · . ward. Or,,ff he's both impudent and ardent, he coul a fonvard forward forward. And if he had writt~ book, it would begin with a... Oh, never mind. ~ HO~ ~[~ '/~[~ '~;;~J.,O '~ ' 3. Don't confuse fortuitous with fortunate. .~;.t~:?, , Fortuitous means unplanned or happening by; ' : """ ": ' '' .... ~' ' ' ' ....... ', .., dent or chance. Fortunate means lucky or occurrin~ :";" ' ' ..... ~ ' '" ' "' ";' . !' .. good fo~tune.~The boy and the girl wei'e riding t