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HomeMy WebLinkAbout04/15/2002 BAKERSFIELD Sue Benham, Chair David Couch Jacquie Sullivan Staff: Trudy Slater SPECIAL MEETING NOTICE LEGISLATIVE AND LITIGATION COMMITTEE of the City Council - City of Bakersfield Monday, April 15, 2002 1:00 p.m. City Manager's Conference Room Second Floor - City Hall, Suite 201 1501 Truxtun Avenue, Bakersfield, CA AGENDA 1. ROLL CALL 2. ADOPT JANUARY 28, 2002 AGENDA SUMMARY REPORT 3. PUBLIC STATEMENTS' 4. NEW BUSINESS A. REVIEW, DISCUSSION, AND RECOMMENDATIONS RELATING TO LEGISLATIVE CHANGES TO SB 975 AND CREATIVE INCENTIVES FOR REDEVELOPMENT PROJECTS B. REVIEW, DISCUSSION, AND RECOMMENDATIONS REGARDING SENATE CONSTITUTIONAL AMENDMENT #7, ACCESS TO GOVERNMENT INFORMATION (BURTON) C. REVIEW, DISCUSSION, AND RECOMMENDATIONS REGARDING MASSAGE ORDINANCE MODIFICATIONS TO ALLOW MOBILE MASSAGE D. REVIEW, DISCUSSION, AND RECOMMENDATIONS REGARDING SB1355, PUBLIC WORKS: PREVAILING WAGES (ALARCON) 5. ADJOURNMENT S:\TI'S~002Leg LitCom~AG N020415.wpd DRAFT BAKERSFIELD Alan Tandy, City I~l~nager Sue Benham, Chair Staff: Trudy Slater David Couch Jacquie Sullivan AGENDA SUMMARY REPORT LEGISLATIVE AND .LITIGATION COMMITTEE Regular Meeting Monday, January 28, 2002 1:00 p.m. City Manager's Conference Room 1. ROLL CALL Called to order at 1:06 p.m. Members present: Councilmember Sue Benham, Chair Councilmember David Couch Councilmember Jacquie Sullivan, arriving 1:10 p.m. 2. ADOPT NOVEMBER 19, 2001 AGENDA SUMMARY REPORT Adopted as submitted. 3. PUBLIC STATEMENTS None. 4. DEFERRED BUSINESS A. REVIEW, DISCUSSION, AND RECOMMENDATIONS RELATING TO SUBCOMMITrEE'S REVIEW OF ANNEXATION PROCEDURES Committee Chairperson Sue Benham thanked all those who had participated in the dialogue leading to the proposal being presented at the meeting. Deputy City Attorney Virginia Gennaro explained the purpose of the handout. Several topics were brought out in the following discussion. Included in the items discussed was the issue of bundling annexations. Committee Member Couch explained that households non- contiguous to each other could be included in the same annexation area only if 100% of the property owners agreed they wanted to be annexed and the affirmation had to be in writing. This would eliminate the necessity for spending thousands of taxpayers dollars in separate annexation efforts when much less expense would be incurred in a situation where they could cost effectively be combined into one. COmmittee Member D AFT Agenda Summary Report Legislative and Litigation Committee January 28, 2002 Page 2 Couch and other Committee members felt that there was a need .for some flexibility as every annexation and every meeting would not be the same. County residents' expressed concerns over the divisiveness within a community this could develop, the need for safety checks within the process, timing of informational meetings, and when an individual could request a public meeting. In response toCounty resident concerns over the statement that a "majority" of FAQ's would be included in annexation information, Committee Chairperson Benham suggested the wording be changed to "standard questions' would appear. Further discussion determined a broad-based statement of intent to use in mailers and public informational meetings was best rather than spelling out specific measures. Committee Chairperson Benham, Committee Member Couch, and Committee Member Sullivan concurred that with the changes agreed upon by the Committee members, the proposal was to be forwarded to Council for its approval. Committee Member Couch indicated his desire for a resolution seeking Bakersfield State legislator authorship of proposed legislation giving the City of Bakersfield a permanent place on the LAFCo board. Committee members concurred and directed staff to forward this to Council for approval. 6. NEW BUSINESS A. REVIEW AND RECOMMENDATION REGARDING OPPOSITION TO AB 680: LAND USE: SALES TAX AND PROPERTY TAX REVENUE ALLOCATION Administrative Analyst Trudy Slater noted AB 680, AB 100 and AB 1076 were all bills which had been held in the Assembly from the prior year and that they would "die" at this point unless they passed out of committee and passed by the Assembly prior to the January 31 deadline. City Attorney Bart Thiltgen explained the negative impacts AB 680's proposed sales tax redistribution would have upon the City if such a law were expanded statewide. A motion was made, seconded and carried by the Committee for staff to move forward in notifying Bakersfield State legislators of the City's opposition to AB 680. B. REVIEW AND RECOMMENDATIONS REGARDING SUPPORT FOR AB 100: PROPERTY TAX REVENUE SHIFTS: LIMITATION AND AB 1076: LOCAL GOVERNMENT FINANCE (ERAF BILLS) City Attorney Thiltgen explained that AB100 and AB1076, which attempt to "cap" the effects of the original ERAF1992-93 legislation, currently have language within them which detracts from the efficacy of the bills. Concerns within these bills include: a) the 3% reserve tied to the revenue forecast which provides an opportunity for gamesmanship within the forecasting process and b) the relationship to the CPI. Property tax growth is less than the CPI and thus over time revenues will diminish. The Committee directed staff to write lettersof support to Bakersfield Assemblymembers indicating 'City support should the offending sections be amended. DRAFT Agenda Summa~ Report Legislative and Litig~ion Committee Janua~ 28,2002 Page 3 C. REVIEW AND RECOMMENDATION REGARDING 2002 LEGISLATIVE PLATFORM Administrative Analyst Trudy Slater explained that one change to the 2001 Legislative Platform was being suggested to ensure that the Platform reflected current legislative priorities for the City of Bakersfield. It was suggested that paragraph four under General Government be deleted and replaced with new language. The existing language, "Support legislation or a constitutional amendment that provides permanent fiscal relief for cities in light of the State budget surplus", would be replaced with '"'Support legislation or a constitutional amendment that returns local government revenues previously captured by the State and limits the State's authority to access ' revenues which traditionally fund city services, including, but not limited to, property tax, vehicle license fees, and sales tax." The Committee voted unanimously to approve the Platform as proposed. The prOposed 2002 Legislative Platform will be forwarded to Council 'for approval. 6. COMMI'n'EE COMMENTS None. 7. ADJOURNMENT The meeting adjourned at 2:50 p.m. Staff Attendees: City Manager Alan Tandy, Assistant City Manager John Stinson, Assistant City Manager Alan Christensen, Administrative Analyst Trudy Slater, City Clerk Pam McCarthy; City Attorney Bart Thiltgen, Deputy City Attorney Virginia Gennaro Other Attendees: Ray Allen, Barbara Fowler, Barbara Fields, Liz Keogh, Ginger Wells, Becky Kaiser, and Raegan Kaiser (L020128.MIN) MEMORANDUM CITY ATTORNEY'S OFFICE March 13, 2002 TO: LEGISLATIVE AND LITIGATION COMMITTEE Sue Benham - Chair David Couch Jacquie Sullivan ~ FROM: BART J. THILTGEN, City Attorney SUBJECT: SENATE BILL 975- PREVAILING WAGE On January 23, 2002, a workshop presentation to the City Council discussed the impact of SB 975 on private developers with regard to paying prevailing wage on construction projects. The Council referred the matter to the Legislative and Litigation Committee to consider seeking new legislation to address some of the issues raised. The City Attorney was directed to provide the Committee with a memorandum describing alternatives to our current method of providing economic incentives in order to avoid and/or comply with the new law, as well as suggestions for a possible legislative "fix." ALTERNATIVES Since the payment of prevailing wage could significantly impact the feasibility of proceeding with a project, the following potential alternatives to be considered involve an attempt to apply the enacted exemptions. 1) Provide economic incentive equivalent to the cost (at prevailing wage) of the public improvements required as a condition of development. For example, if the 'developer is required, as a condition of development, to install public improvements, such as curbs, gutters, water lines, sewer lines, street lights, signals, storm'drain sumps, etc., the City, to attract the new developer (i.e., business), could agree to an economic incentive equivalent to the developer's costs of installing such improvements. The public improvements constructed would be subject to prevailing wage, but the remainder of the project would be exempt. (Labor Code, § 1720 (c)(2)(A).) 2) Enter into a reimbursement agreement with the developer to reimburse costs which would normally be borne by the public, or provide a subsidy to the developer to cover such costs.., that is de minimus in relation to the entire project. LEGISLATIVE AND LITIGATION COMMI'I-I'EE March 13, 2002 Page 2 For example, reimburse or subsidize the cost of constructing the other side of a street when only required as a condition of development to construct the side adjacent to the project (or extending the street to an intersection to avoid "zig-zag" street), provided the cost is small in relation to the entire project. (Labor Code, § 1720 (c)(2)(B).) 3. Provide funding for Iow or moderate income housing for use only in construction or rehabilitation .(not for site acquisition, real property on-site or off-site improvements, or other purposes listed in Section 33334.2 of the Health and Safety Code). (Labor Code, § 1720 (c)(3).) The above alternatives only related to the enacted exemptions. The following lists alternatives which may be considered which are not the enacted exemptions but are alternative' means of providing economic incentives which comply with SB 975: 1) Continue the program as it currently exists. This alternative could have a detrimental effect on the City's ability to effectively compete with other entities which may provide incentives. 2) Tailor the economic incentive to cover the increased cost of paying prevailing wage. This alternative would most likely result in an increase in the amount of incentive, and correspondingly, decrease the potential number of recipients of incentives due to larger individual allocations from the total amount available (assuming the total amount of available incentives remains unchanged). 3) Establish a program which contains specific criteria which would relate to the extent of incentive available (e.g., number of jobs, type of development, long-range impact on community, etc.). Such a program sounds theoretically possible, but strict compliance with the program could be impractical as variability in the type and availability of potential developments seeking incentives most likely would skew the applicability of the criteria. 4) Limit incentives to specific portions of the development (e.g., streets, property acquisition, City permits/fees, etc.). Again, this alternative could detrimentally impact the City's economic development efforts due to non-competitiveness with other competing entities and could be impractical due to variability in type of incentive needed/sought. LEGISLATIVE "FIX" Ideally, a complete repeal of SB 975 would be beneficial, but politically, this type of fix is unattainable. There are some alternatives which could be explored which might be acceptable, while at the same time provide some relief from the impacts of SB 975. 1) Amend the exemption in Labor Code section 1720(c)(3) to include all paragraphs of subdivision (e) of Section 33334.2 of the Health and Safety code LEGISLATIVE AND LITIGATION COMMI'I-rEE March 13, 2002 Page 3 (affordable housing - allow monies to be also used for site acquisition, improvements on-site or off-site, etc.) 2) Reestablish the importance of redevelopment through an exemption for any development in a project area, including, but not limited to, property acquisition, tax increment rebates, direct expenditures to eliminate blight, etc. 3) Provide an exemption for projects that are in-fill development, or for affordable housing, or similar type of public policy established priority projects. 4) Provide an exemption for small residential rehabilitation or emergency repair projects. 5) Provide an exemption for loans (with forgiveness) for job production for low income persons. 6) Clearly state that federal rules apply when federal funds are used, or combination of federal and local funds. (NOTE: Use of CDBG monies to improve curbs and gutters, HOME monies, etc.) .. 7) Amend the law to clarify that monies used for acquisition of FF&E does not trigger PW (installation of the FF&E would be PW). BJT:las S:\COU NCIL~IEMOS~SB975 ATERNATIVES.LEG&LIT.DOC CONFIDENTIAL'.'-  PROTECTED BY ATTORNEY. CLIENT AND ATTORNEY WORK-PRODUCT ':-. ' · PRIVILEGES MEMORANDUM . ClTYATTORNEY'S OFFICE February 11, 2002 TO: HONORABLE MAYOR AND CITY COUNCIL THILTGEN, City Attorney ~- FROM: BART J. SUBJECT: SCA 7- PROPOSED LEGISLATION As a part of the charge of this office to provide Council an analysis of pending legislation which may have a significant impact upon the operations of the City, the following analysis of SCA 7 is being provided. For the reason cited below, it is our recommendation the proposed legislation be opposed. · BILL' CONTENT ' SCA 7 introduced by Senator BUrton on January 10, 2002, at the reqUest Of and authored by the Califomia First Amendment Coalition,' proposes a Constitutional Amendment relating to access to government information. Currently, the City of BakerSfield is bOUnd by existing state law (Public Records Act, Gov. Code,'§ 6250, et seq. ["PRA"]) tO'provide'aCcess to the public to all public reCords, with certain enumei'ated exemptions from"dis~lo'Su~b~:=;~.This measure' :' purPortedly.. is an'effOrt to'" ~lace .the ':'s~me requirements-linto':~th~-..i ca-ii~mia Constituti°n~ Howevel', the language of the measur~ raises sOme serious qEie~,tions tl-i~t'~i:nay,. in fact, .limit some of the exemptions which currently exist and maY result in exPoSbi;6:'t°.the City to attorneYs' fees in the event of a challenge. ' ' ' · Attached is a copy of SCA 7 for your information. The bill essentially states that access to information conceming the' conduct of the people's business is a fundamental' and necessary right of every person in 'this State (already embodied in the PRA) and further provides the LegiSlature could establish, by statutel' limitations on access to such information to protect the pdvacy of individuals (except to the extent such information relates to the qualifications or fitness of a person for any elective or appointive office in govemment). It further provides that the Legislature could also establish, by statute, other limitations on "... access to govemmental information c~nly as necessary to protect public safety or private property, to ensure fair and effective administration of justice, or to provide for the preservation of public funds and resources." (Emphasis added.) .The measure' then qualifies this exemption from disclosure by requiring "Any application of such limiting statutes by any public body, ...officer, or emPloyee ... to deny [access]... shall be based on particularized findings demonstrating a substantial probability of sedous harm to the· public interest that the denial will avert, and that this harm cannot otherwise be averted by reasonable alternatives .... (Emphasis added.) HONORABLE MAYOR AN[., CITY COUNCIL February 11,2002 -" Page 2 It should be noted the PRA provides that a prevailing plaintiff aSserting the records were improperly withheld is entitled to an award of court.,costs and attomeys fees. (Gov. Code, § 6259.) It is doubtful this statute would be amended or deleted if the Constitutional Amendment was enacted. LEGAL IMPACT ANALYSIS Initially, sections 3(a), 3(b)(1) and 3(b)(2) of the proposal do not create any legal issues as they are already embodied in the PRA. Section 3(b)(3), however, contains language which could have far reaching impacts. There are at least three (3) pdmary legal issues which arise. First, by restricting the Legislature's ability to limit access to only the three listed situations creates a definitional problem.. The terms describing the situations are broad and subject to interpretation~ This means a court would have to determine whether'a specific limitation (either already enacted' or enacted in the future) would fit within the definition. For example, current law provides for an exemption from disclosure information which is protected under the attomey-client privilege or as attomey w. ork-product. Would this information now be included under the "fair and effective administration of justice" category or the "preservation of public funds or resources" category, or does each record have to be subjected t° a case-by- case analysis potentially/ resulting in some attorfi~y-client infOrmation' being .required t°` be disclosed and other not. 'it is contended such a Situation causes the public entity lto be at a significant disadvantage when involved in litigatior~' or, for that matter, when' seeking' legal advice from its attome'y~- ' · .. :-%?~" .. It should be noted, also, that existing .laW'.(Gov. Code, § 6254(k)) exempts f~om disclosure those records which are deemed confidential and not subject 't° discioS~re by-any federal or state law, including, but nOt limited to,' ti'i~"Calif0mia Evidence'Code... ~Thi~ Police Department"internal Affairs investigations?ii~igation 'Settl'ement'offers,:~:~e~i appraisals, 'financial documents required to be Submitted Pursuant to HUD 'regUlati'o'h'~';:~'~'~:d" other 'documents too' numerous 'to 'list. Whether.~these documents currently` exempt i{r~)m' ' · " l~ieSClosure would continue to 'be exemPt is queStionable, and the determination w°uld"prob'~'bly subject to the changing views of the courts. From a general operational viewpoint, it is much better to have certainty in the laws rather than continually having to rely upon potentially vadable court interpretations. .. Second, the requirement for "...particularized findings demonstrating a substantial probability of sedous harm..." apparently changes the standard under which the public entity justifies non-disclosure. Currently, the PRA requires the public entity to justify the Withholding of a record via a balancing test which consists of showing "...the public interest served by not making the record public clearly outweighs the Public interest served by disclosure of the record." (Gov. Code,-§ 6255.) The current 'standard, using typical legal terminology, is a "preponderance of the evidence" standard. It is uncertain what "substantial probability" means, but it may require a "clear and convincing" standard or, potentially, a "beyond a reasonable doubt" standard, both of which are much higher standards to achieve. Again, the definition of the term, and the standard which the entity would have to meet would be left to a court. Inasmuch as the public entity could be exposed to attomeys' fees depending upon how the courts may define the term, this uncertainty raises a significant monetary issue. Further, depending upon how a court might eventually define the term, the potential for more litigation HONORABLE MAYOR ANi .~ITY COUNCIL (~- February 11, 2002 Page 3 and exposure to costs could increase significantly (e.g., as the standard becomes more severe, the potential to challenge the meeting of the standard increases). Third, the requirement that the "harm cannot otherwise be averted by reasonable altematives" opens an entire sphere of potential litigation which currently does not exist with the certainty of existing law. As has been seen during litigation on land .use regulations, courts have second-guessed the public entity on numerous occasions regarding what is a "reasonable alternative." (e.g., This has been most evident with' sites for adult-related businesses.) Again, the City could be exposed to the varying interpretations of the court and the open-ended, case-by-case scrutiny of the entity's decision-making process. With the potential for the award of court costs and attorneys' fees, this becomes an ever-present exposure to potential monetary liability. _POLITICAL VIEWPOINT Obviously, the California First Amendment Coalition will be promoting this legislation and the resultant ballot measure from the stand that all activities of the government should be open to the public. Further, it will be touting the fact that the measure provides the Legislature with the ability to enact exemptions from disclosure to provide protection to the public entity and the public from release of information Which may harm the public. The organization Will use "buzz words" ('e.g., protection of privacy, etc.) to justify its poSition. Further, it is expected the media will also seize upon this opportunity to broaden its access to'information. Opposition to the measure may also be publicly characterized as being secretive and not in the' best interests Of the citizens. · .CONCLUSION ; . .While the ideals embodied in the meaSure 'may be laudable, ' the' lang~iage' i~f'=the measure, in fact, Creates a Situation Where the public entity will be at a significant disadvantage in litigation, real property negotiations, and general operational dealings with potential adversades~ The measure, theoretically, could abrogate sOme long-established privileges and 'statutery protections. Additionally, the public entity will be exposed to more litigation and potential liability for court costs and attorneys' fees. The measure is pOorly written (possibly on pUrpose)in that it leaves much to be interpreted by, and limited by, the courts and will result in a case-by-case evaluation of public records requests with a level of uncertainty which currently does not exist under current law. It is recommended the City transmit its opposition to this measure to the League of California Cities and its legislative representatives. BJT:las cc: Alan Tandy, City Manager Trudy Slater, Administrative Analyst S:~EGISLA TION~CA T. DOC Senate Constitutional Amendment No. 7 -,-' .- .,..:: - Introduced by Senator Burton (Coauthors: Assembly Members Keeley, Kehoe, Leonard, Papan, and Shelley) January I0, 2002 Senate Constitutional Amendment No. 7--A resolution to propose to the people of the State of California an amendment to the Constitution of the State, by amending Section 3 of Article I thereof, relating to access to government information. LEGISLATIVE COUNSEL'S DIGEST SCA 7, as introduced, Burton. Access to government information. The California Constitution provides that the people have the right to.instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common g°°d. Various provisions of existing law, including, among others, the California Public Records Act, the Bagley-Keene Open Meeting Law, and the Ralph M. Brown Act, provide, with some exceptions, for public access to government records and meetings of government bodies. This measure would provide that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state. It would provide that, except as otherwise provided in the California Constitution, the people have a right to attend, observe, and be heard in the meetings of elected and appointed public bodies, and to inspect and copy records made or received in connection with the official business of any public body, agency, officer, or employee, or anyone acting on their behalf. This' measure also would provide that nothing in those provisions shall be construed to limit the'ability of the Legislature to provide by . statute for the protection of government information about a private SCA 7 -- 2 ~ person unless the information relates-to the qualifications or fitness of .. person for any elective or appointive government office. It also would permit the Legislature to provide by statute for other limitations on the " right of public access to government information only as necessary to protect public safety or private property, to ensure the fair and effective administration of justice, or to provide for the preservation of public funds and resources. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State-mandated local program: no I Resolved by the Senate, the Assembly concurring, That the 2 Legislature of the State of California at its 2001--02 Regular' 3 Session commencing on the fourth day of December 2001, 4 two-thirds of the membership of each house concurring, hereby 5 proposes to the people of the State of California that the ' 6 Constitution of the State be amended by amending Section 3 of 7 Article I thereof, to read: 8 SEC. 3. (a)The people have the fight to instruct their 9 representatives, petition government for redress of grievances, 10 and assemble freely to consult for the common good. 11 (b) (1) Access to information concerning the conduct of the 12 people's business is a fundamental and necessary right of every 13 person in this State. Public agencies and officers exist to aid in'the 14 conduct of the'people's business, and their actions and 15 deliberations shouM be open to public scrutiny. Therefore, except 16 as provided pursuant to this Constitution, the people have a right 17 to attend, observe, and be heard in the meetings of elected and 18 appointed public bodies, and to inspect and copy records made or 19 received in connection with the official business of any public 20 body, agency, officer, or employee, or anyone acting on their 21 behalf. 22 (2) Privacy also being a fundamental right of the citizens of the 23 State, nothing in this section shall be construed to limit the ability 24 of the Legislature to provide by statute for the protection of 25 information about p~ivate individuals submitted to or obtained by 26 any pubIic body, agency, officer, or employee, or anyone acting on 27 their behalf, except to the extent that the information relates to the 28 qitalifications or fitness ora person for any elective or appointive 29 office in government. · ~ 3 ~ SCA '7 .._ I (3) The Leg~lature maYprovide by statute fOr other limitations 2 on the right of public access to governmental information only as 3 necessary to protectpublic safety orprivateproperty, to ensure the 4 fair and effective administration of justice, or to provide for the 5 preservation of public funds and resources. ,4ny application of 6 such limiting statutes by any public body, agency, officer or 7 employee, or anyone acting on their behalf, to deny rights specified 8 in paragraph (1). shall be based on particularized findings 9 demonstrating a substantial probability of serious harm to the 10 public interest that the denial will avert, and that this harm cannot 11 otherwise be averted by reasonable alternatives~ and shall be no 12 broader in scope or longer in duration than necessary to avert the 13 identified harm. 0