Summary of Important New Laws Affecting Local Agencies in 2016
by Betsy Martyn on January 28, 2016
posted in CEQA, Damages, Elections, Employee Benefits, Employment Law, Ethics, Legislative Updates, Medical Marijuana, Proposition 215, Public Records Act, Water, Zoning,
The following laws are effective January 1, 2016, unless otherwise provided. These legislative changes were selected as those of importance and/or interest to public agencies.
The Brown Act
No changes this year.
Follow up to public works/prevailing wage legislation:
Delay Damages. Any damages in a public works contract payable to the public agency for delay must be identified as liquidated damages in order to be enforceable. There may be more than one provision for delay damages as long as each provision is for liquidated damages. An effective liquidated damages provision contains a statement that the parties agree that actual damages would be difficult to determine and that the liquidated damages are an agreed upon measure of harm in the event of breach of the applicable provision of the contract. (See AB 552 that adds Public Contracts Code Section 7203).
Volunteer Exemption. AB 327 continues (unchanged) the narrow volunteer exemption to the payment of prevailing wages set out in Labor Code Section 1720.4. The exemption provides that a volunteer is someone who performs work for a public agency with no monetary compensation (although meals, lodging, transportation and other incidental expense payments are allowed). The volunteer cannot be an employee of a contractor working on the same job for compensation. Labor Code Section 1720.4 also defines a “volunteer coordinator.”
Redevelopment Agency Dissolution; Replacement Economic Development Programs
SB 107 is the latest major revision to the RDA Dissolution law. Its provisions do not change the law or process as to special districts although they are intended to move along the eventual dissolution of RDA’s, which will result in a return of more taxes to taxing agencies.
AB 2 provides for the formation of a Community Revitalization and Investment Authority (CRIA) in certain economically depressed areas. The amendments in AB 313 update the Enhanced Infrastructure Financing District. Each process provides for the formation of a quasi-redevelopment agency funded with voluntary contributions of existing tax proceeds. For a further analysis, please contact us.
Medical Marijuana
Three separate bills make up the complete revision of the state law regarding dispensaries, mobile dispensaries and cultivation, while (in general) preserving local authority to ban them or regulate them along with state licenses. There is an additional amendment pending which would allow a ban of cultivation to be put in place by a city or county after March 1, 2016. The regulations and process for licensing are being developed this year.
The Public Records Act
Format for posted data. There now is a required format for data posted on a public agency website. Government Code Section 6253.10 (AB 169) requires that when an agency voluntarily posts a document on its website as “open data,” the posted document must retain the same structure as the original and be free, retrievable, downloadable, searchable, and able to be provided to third parties. (It is not clear what “provided to third parties” means except that it could be downloaded and forwarded). By way of example, this new requirement will affect the posting of agenda materials and minutes, as well as public bid and RFP packages.
Disclosure of “Operating Systems.” Effective July 1, 2016, Government Code Section 6270.5 was added to the Public Records Act, which states that when a public agency uses a system which collects, stores and itself creates data (called an “enterprise system”), the public agency must post a catalog of the software used to create that data. The exceptions are firewalls, IT security systems, and when to post a description of that software would create a health and safety risk. The listed exceptions are longer than the requirement: firewalls, IT security systems, physical access control systems employee data management systems, video monitoring, control systems for utilities, 911 dispatch and emergency services, and the records that are part of the data compiled, or records not public pursuant to the Public Records Act, including those described in Government Code Section 6254.19. Where the risk outweighs the public benefit in providing the information, the public agency may provide just the name of the system or otherwise identify it. It remains unclear what this new requirement is intended to achieve or what it really means, so we will be looking for more information before July 1, 2016. Government Code Section 6254.19 provides some guidance:
“Nothing in this chapter shall be construed to require the disclosure of an information security record of a public agency, if, on the facts of the particular case, disclosure of that record would reveal vulnerabilities to, or otherwise increase the potential for an attack on, an information technology system of a public agency.”
“Nothing in this section shall be construed to limit public disclosure of records stored within an information technology system of a public agency that are not otherwise exempt from disclosure pursuant to this chapter or any other provision of law.”
Conflicts of Interest
SB 21 revises Government Code Section 87207 regarding the definition of income to be disclosed on the Form 700. The disclosure amount for a gift remains $50, but the disclosure amount for income has been increased to $1,000 per calendar year. When filling out your Form 700 this year, be sure to read the income definitions carefully. In addition, a nonprofit organization that regularly hosts travel for elected officials in the amount of $10,000/more per calendar year (or $5000 per person) must disclose the names of its donors in certain ways.
SB 704 adds new remote interests to Government Code Section 1091, i.e. a conflict of interest where disclosure and abstention are sufficient. The new remote interest is that of a planner who is an employee of a consulting firm which contracts with the pubic agency and who does not serve in a management capacity, and that of an owner or partner of a firm which provides consulting advice to the City and who serves as an appointed commission member (such as a planning commission) where the owner or partner recuses himself/herself from providing advice to the public agency regarding the contract with his consulting firm and from participation in reviewing a project resulting from that contract.
FPPC Regulations. The FPPC has almost completely revised the regulations interpreting the Political Reform Act, and the revisions continue. Be sure to check the FPPC regulations on the website or ask for advice before making a determination on a conflict of interest. We’ve covered some of the regulatory changes in previous blog updates, which could be found here and here.
Employee Relations
Discrimination against protected classes. AB 987 and AB 1509 reiterate that there cannot be retaliation by the employer against an employee or family member of an employee for that employee’s request for accommodation as a result of a disability or of religious beliefs, whether or not the request for accommodation was granted. The bills are intended to clarify an appellate court ruling that may have contained contrary language.
Clarification of Paid Sick Leave Requirements. AB 304 was effective July 15, 2015. It is a clean up to last year’s requirement for paid sick leave for part-time workers. The bill confirms that:
- the 30 hours worked required for eligibility for sick leave must be for the same employer and must be in California
- alternative computation of sick leave is acceptable as long as the employee will have 24 hours of paid sick leave available by his/her 120th day of employment
- the use of paid sick days may be limited to 3 days/24 hours per year (calendar or 12 month period)
- the pay for sick leave taken is at the regular rate of pay (which is total wages divided by total hours in a 90-day period or at the rate of pay on that paycheck)
- there is no requirement to reinstate sick leave where the employee is rehired within a year and was paid for the sick leave upon termination.
- records of sick leave accrued and paid must be kept for at least 3 years.
Flu Shots. Effective September 1, 2016, SB 792 requires that in order to be employed, a paid or volunteer day care worker or teacher and a worker in a family day care home must have a flu vaccination between August 1 and December 1 of each year (as well as whooping cough and measles vaccinations), subject to some limited medical exceptions.
Tort Liability
AB 1146 added Health & Safety Code Section 115800 that extends skateboard-park immunities to scooters, non-motorized bicycles, wheelchairs, roller skates and in-line skates.
Elections
Tax elections. AB 809 requires that when a city, county or district ordinance is submitted to the voters as an initiative measure to impose or raise the rate of a tax, the ballot measure itself (not just the ordinance) must include the amount to be collected annually and the rate and duration of the tax, i.e. “Shall an ordinance setting a tax rate at ________ for _______ years to collect ________ annually be adopted?” Obviously this requirement must fit within the 75-word maximum. It appears that the author’s office was not aware of the word limit on such ballot measures when they supported this measure for the Howard Jarvis Taxpayer’s Association.
Election dates and voter turnout after January 1, 2018. SB 415 does not apply to special elections; otherwise, it requires that the public agency must hold any election on a statewide election date if an election held on a different date in the past four elections had less than a 25% voter turnout. At a minimum plan to consolidate such elections on a statewide date must be in place by January 2018, for consolidation no later than November 8, 2022. A voter may enforce new may enforce this new requirement; if successful, a petitioner may obtain attorneys’ fees if he/she prevails.
City Council election change. SB 493 added Government Code Section 34886 that allows a general law city with fewer than 100,000 people to determine to elect council members by district (or by district with elected mayor) without submitting that requirement to the voters.
City Council vacancy change. AB 952 changes how long a person appointed to fill a City Council vacancy will hold office, depending on the length of time to the next election.
Water Quality
The State Water Resources Control Board staff is considering recommendations for some changes to the present emergency water conservation regulations calling for a 25% reduction in use. The regulations to be considered are adjustments to water reductions for warmer climates and increased population in urban areas. A draft of the regulations will be available in mid-January, with a final regulation by the beginning of February.
California Environmental Quality Act (CEQA)
Exemptions continue for repair, maintenance or alteration in the right of way of existing roads for safety reasons in communities with populations under 100,000.
Land Use
AB 1236 requires expedited permitting for electric charging stations by cities and counties by September 30, 2016 for those with a population over 200,000, and September 30, 2017, for those with lower populations.
SB 379 requires, after July 1, 2017, that an update of the hazard mitigation portion of local safety element of the general plan (or an entity which has one, and until January 1, 2022 for those that do not) be reviewed and updated as necessary to address climate adaptation strategies applicable to that city or county. The bill would require the update to include goals, policies, and objectives based on an assessment of the risks that climate change poses to the local jurisdiction and the geographic areas at risk from climate change impacts, and specified information from federal, state, regional, and local agencies.
