California County News

Imperial County Renews Effort to Defend Gay Marriage Ban; New Motion to Intervene

Earlier this year, the 9th U.S. Circuit Court of Appeals denied Imperial County’s right to defend the ban on gay marriage. It was the only jurisdiction that sought to appeal Judge Walker’s ruling on Proposition 8, and the county looked to overturn Judge Walker’s decision that denied its request to intervene in the case. In an update, the group Advocates for Faith and Freedom has filed another motion to intervene. When the county was first denied, the appeals court indicated that a motion to intervene signed by a deputy county clerk was insufficient, because the clerk lacked the necessary legal standing and was not an elected official. However, this time around, it appears that a motion will be filed on behalf of newly elected County Clerk Chuck Story. KXO Radio reports:

“The Advocates say they believe Story has sufficient standing to intervene because he is an elected official who will be directly involved with the outcome of the litigation. The attorneys say the question before the appellate court is “Does anyone have sufficient legal interest to appeal the district court ruling declaring proposition 8 unconstitutional?” They believe Story and Imperial County does. Jennifer Monk, Associate General Counsel for Advocates, says the case is not only important for influencing nationwide law regarding marriage, but it also is important for the people of California to have their vote respected.”

The legal standing of the initiative’s sponsors is also in question as they work to defend the ban. Notably, if the county’s new motion to intervene is approved, then the local jurisdiction could serve as the primary defendant in the case so that the appeal can move forward if the ban’s sponsors are denied legal standing. Currently, the state’s Supreme Court is weighing the issue of legal standing. For more, see here.

$228 Million Pension Error Results in Two Orange County Officials Put on Leave

An error in Orange County has forced the local government into a position where it will have to pay millions of dollars in extra funds to make up for uncollected contributions owed by county agencies for county employees. Specifically, the county will be shelling out an extra $7 million a year in order to make up for a shortfall in contributions that will ultimately total $120 million. In addition to the county having to cover costs, other agencies in the county that belong to the Orange County Employees Retirement System have also been given bills. Take the Orange County Fire Authority. The agency was handed a bill of $76 million to catch up on contributions, which apparently went uncollected for 8 years. Joe Kerr, president of the 800-member Orange County Professional Firefighters, stated that “To get a bill like that was devastating. How could this oversight have gone on for so many years?” The mistake that has resulted in the shortfall of contributions will reportedly cost $228 million. In response, two employees at OCERS have been placed on paid leave. The OC Register reports:

“OCERS Assistant CEO Steve Cadena and Finance Officer Michelle Williamson were put on leave Feb. 18 while the agency conducts an audit on the massive mistake. Chief executive Steve Delaney said the action was taken to allow auditors to work unhampered. Cadena earns $154,668.80 annually and Williamson makes $112,569.40. Pensions themselves were not affected by the mistake, officials said. ‘We are working with OCERS to sort through it all and they are doing reviews to make sure it doesn’t happen again,’ Zeller said.”

So how did the error occur? According to officials, when a new pension administration software system was installed in 2003, the premium pay portion of the members’ salaries was neglected, so inaccurate information was used for billing rates. For more on the error, see here.

Guest Feature: California’s Voting Rights Act and the New Lawsuits

Guest Feature
By Rod Pacheco

Rod Pacheco is a former State Assemblyman who served as the Vice Chairman of the Education Committee and was selected Legislator of the Year by the California School Boards Association. He also served as an Assembly designee for the last California state reapportionment. His practice currently includes educational institutions and governmental agencies and entities.

As the nation’s legislatures get set for what is sure to be a bruising battle over redistricting, California is facing its own specific electoral problems that will undoubtedly lead to a wave of costly lawsuits. While numerous states have to comply with the Voting Rights Act, California has its own unique law that practically guarantees litigation: The California Voting Rights Act of 2001. Unless local districts take preemptive action, millions of dollars will soon be going down the drain in losing lawsuits.

Like the famed Federal Voting Rights Act of 1965, California’s law attempts to prevent the disenfranchisement of minority voters. However, the California law is different in that it specifically targets local at-large elections, which historically have been used in the deep South to dilute the votes of a “protected class” of minority voters.

California’s law is very broad, covering all “political subdivisions,” such as school boards, water boards, and city councils; however, it is limited only to those with at-large elections. An at-large election is when voters of the entire subdivision elect the entire board. This is much different than the district-based system used for Congress and the State Legislature, where voters elect one official from a specific geographic area. The at-large system is popular, as it is used in over 90% of California’s 693 school districts.
Since California enacted the Voting Rights Act, lawsuits have been numerous and against all types of subdivisions. The plaintiffs have won every time, and the costs have been significant.

Two examples show the potentially high cost to the citizens of California. Madera Unified School District settled their case and paid $162,000 in plaintiffs’ attorney’s fees and costs. The plaintiffs had asked for over $1 million. The board also paid an undisclosed amount to their lawyers. Hanford Unified School District settled immediately and paid $110,000, not including their own lawyers’ fees. The Tulare Hospital District settled by paying $500,000 to the plaintiffs. Tulare’s attorneys cost an additional amount.

Similarly, Modesto was sued in 2005 when the latest census data revealed that their population was approximately split 59.6% Anglo to 25.6% Hispanic. Modesto won at the trial court, but lost in the appellate court, the California Supreme Court, and finally lost in the U.S. Supreme Court. Eventually they paid $3 million in plaintiffs’ attorney’s fees, and $1.7 million to their own attorneys.

California Elections Code section 14030 provides that plaintiffs shall recover attorney’s fees, costs, and expert witness fees if they prevail. However, the defendant can only recover attorney’s fees if the court “…finds the action to be frivolous, unreasonable, or without foundation.”

Plaintiffs need only meet a low standard and are not required to prove discriminatory intent on anyone’s part. Their burden is to prove that “racially polarized voting” has occurred within the political boundaries of the board and that at-large elections are in use. If both are shown, then “the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election” has been diluted, and there is a violation of the California Voting Rights Act (VRA).

The facts will almost always favor the plaintiffs. Racially polarized voting can be easily demonstrated in many ways, such as the lack of minorities getting elected to the governing board, ballot measures that have affected the minority group (i.e. Proposition 187), and other factors. These include “any effects of past discrimination in areas of education, employment, [and] health,” such as data showing higher unemployment figures, lower test scores, or higher death rates for the minority group.

In order to stave off these lawsuits, local governmental entities have several choices available. One choice is to fight any lawsuit. However, given that the law has been found constitutional and failure could easily result in millions of dollars in attorneys fees, this is not an attractive choice (see Modesto). Moreover, the board will unfortunately be at the center of an emotionally-charged racial controversy that will raise many public questions, such as the board members’ addresses in contrast to Hispanic neighborhoods, and the test scores and facilities of the Hispanic schoolchildren versus Anglo students.

The second option is to do nothing in hopes of being missed. Extreme budget cuts, and a possible lost election, have encouraged this seemingly pragmatic approach. However, if there is a significant protected class in the district and at-large elections are used, a lawsuit should be expected. If the board settles, or loses, they will almost assuredly pay more than if they had made a better choice.  The board will pay their attorney’s fees and costs, the costs of drawing constitutional boundaries for districts, election costs, and the plaintiffs’ fees and costs. As always, denial is not a solution to life’s problems.

The final option is a preventative approach that immediately solves the entire problem and allows the avoidance of paying any plaintiffs fees. The board simply needs to voluntarily convert from an at-large electoral entity to one made up of individual districts. Once completed, it will be immune from a California VRA lawsuit. Even without the California VRA law, minority rights would be maintained, as any districts not drawn constitutionally appropriate can still be sued under the federal Voting Rights Act. A careful legal drafting and review of the boundaries of the new districts by those who are experienced and trained in this body of law can avoid expensive lawsuits and benefit the community.

There are benefits to having an at-large electoral system. But with the need to protect minority rights and the need to avoid expensive and divisive lawsuits, it’s time for California’s school boards and other bodies to move to a district based system. The taxpayers don’t have the cash to fight for a potentially unfair system.

Lawsuit over Searches in Jail Leads to Class-Action Settlement; Kern to Pay $7 Million

Preliminary approval was recently filed in U.S. District Court for a settlement that involves Kern County, as the local government has been ordered to pay up in order to settle a class-action lawsuit. Plaintiffs in the case were inmates who claimed they were improperly strip searched while in prison. Specifically, authorities stripped inmates in a group or after they were ordered to be released. In light of the settlement, the county will have to pay out $7 million and beneficiaries are eligible if they were inmates during the time period of March 27, 2005, to Oct. 1, 2007. It is possible that those eligible could receive an amount between $200 and $2,250. County Counsel represented the Sheriff’s Department in the case.

The preliminary approval settlement document can be read here. An excerpt states:

“The Settlement Agreement is hereby preliminarily approved, subject to further consideration thereof, and final approval, at or after the Fairness Hearing provided for below. The Court finds that Defendants’ proposed payment of the following amounts (each of which is in addition to the other) are within the range of what would constitute a fair, reasonable, and adequate settlement in the best interests of the Class as a whole: (a) A person who was subjected for the first time during the class period (between March 27, 2005, and October 1, 2007) to a Kern County strip search after a Court ordered him or her to be released from all pending charges, and the person was in fact entitled to immediate release based on that order, will receive a payment of $1500”

For more, see here.

Ballot Measure Weighed in Alameda to Renew (and Possibly Hike) Sales Tax for Transportation

Will voters be in the mood to renew a half-cent sales tax for Alameda County’s transportation needs? That’s what the county’s Transportation Commission is hoping for, as an early renewal of the current sales tax would help pay for improvements related to road, highway and public transit. The tax doesn’t actually expire until 2022, but the commission wants the sales tax to not only be approved a decade early but also increase the rate to 10 percent temporarily so that several projects can begin. The current sales tax is at 9.75 percent and it generates roughly $100 million in revenue each year. The commission has noted that if it proposes a tax hike, it would last from 2013 to 2022 so that road maintenance can get back on track and bus systems saved from cuts. The Contra Costa Times reports:

“No projects have been picked yet, but options up for discussion include carpool lane extensions, electric car charging stations and a long-discussed multibillion-dollar BART rail extension to Livermore, officials at the congestion management agency said. ‘We were able to deliver all the projects from the 2000 ballot measure because the competitive bidding climate lowered the costs dramatically,’ said Art Dao, the commission's executive director. ‘Now the issue is do we go to voters soon with a new list of projects to relieve congestion, or do we wait 10 years.’”

As the commission weighs the specifics of the ballot measure, it will have to determine whether the tax renewal is to apply for a specific time period or if it will be made permanent. Such a vote will require approval from two-thirds of voters. Public meetings have been scheduled so that the public has a chance to offer their opinions about the ballot options. For more, see here.

Angry Residents Cram Butte County Chambers Over Contentious Marijuana Ordinance

Butte County Board of Supervisors got an earful recently when residents packed the board’s chambers to make their voices heard about a proposed marijuana ordinance. In fact, so many residents turned up that Oroville city Fire Marshal Dean Hill informed many they would have to leave due to fire restrictions. The contentious issue resulted in almost 5 hours of debate, and in the end supervisors decided to shelve the ordinance for now in order to go back to square one on its language and terms. Many of those who filled the chambers and offered their two cents were opposed to the ordinance, which would aim to limit the number of plants that can be grown and charge fees for each registered plant. Essentially, specific procedures would be established for growth, acreage, and property lines. The Oroville MR reports the following on debate about the ordinance:

“Many speakers charged the ordinance was an effort to end legal medicinal marijuana gardens within the county, a claim both County Attorney Bruce Alpert and District Attorney Mike Ramsey denied as they outlined the proposal. Ramsey and Sheriff Jerry Smith told the board medicinal marijuana gardens were sometime covers for commercial operations. They said the skunk-like smell of the plants as they near maturity and the threat of armed thieves is a significant issue for public safety. But dozens came forward to say they would die if they didn't have ready and economical access to their medicine.”

Some residents threatened impeachment if the board passed the ordinance and some sick residents who rely on marijuana for medical reasons said that the ordinance would essentially block the access and affordability they currently have. Many statements against the proposal were rather heated, with one critic going so far as to suggest the supervisors were Nazis. However, that is not to say that there were no residents on hand who did in fact support the ordinance, arguing that controls on gardens are important for public safety. Reportedly the supervisors will take up the issue again in a month after the long meeting resulted in no vote. For more, see here.

Big Picture: Economic Analysis Shows Extent to Which Sonoma’s Economy Shrank

A report from the U.S. Bureau of Economic Analysis surprised Sonoma County officials, as it indicated the county’s economy shrank at a far greater rate than the country as a whole and overall it was one of the hardest-hit regions in the nation. According to Ben Stone, executive director of the Sonoma County Economic Development Board, the report’s figures were unexpected, as Stone commented that “I can't believe we were worse than Riverside and San Bernardino.” Specifically, Sonoma’s economy shrank 3.7 percent between 2008 and 2009, which can be compared to the 2.4 reduction rate that metro areas in the nation as a whole experienced. The Press Democrat reports:

“The county's job market held up better than other parts of California during that time, he said, with only 10 counties reporting lower unemployment rates. But the new data show how some sectors of the economy, led by construction, dragged down Sonoma County's overall output. ‘We lost 40 percent of the jobs in construction,’ Stone said. The study examined gross domestic product, the value of goods and services produced by a particular region. It found 80 percent of 366 U.S. metropolitan areas suffered a decline in 2009. But only 61 areas saw a deeper drop than Sonoma County, according to the report. After removing the impact of inflation, Sonoma County's gross domestic product fell from $20.4 billion to $19.6 billion in 2009.”

According to an expert, Sonoma’s economic woes were exacerbated by the real estate market and the tumble of the construction industry, both of which were heated prior to the recession. As for current growth, it is still sluggish, as is the case for much of the state. The recovery of the housing market would undoubtedly present a boost for Sonoma and many other counties. For more, see here.

Rate of U.S. Counties Dying is on the Upswing with Aging Populations and Poor Economy

Another effect of the poor economy and recession is that a near-record number of U.S. counties have populations with more deaths than births, according to the AP. Demographically-speaking, this is referred to as a “natural decrease” as aging populations die off and leave counties a shell of their former selves. The AP concludes the problem is spending and highlights the city of Welch in McDowell County, an area of West Virginia. One worker who runs a gas station there is quoted as saying that “There's no reason for you to come to Welch. This is nothing but a damn ghost town in a welfare county." In total there are 3,142 counties in the nation, and the AP reports that there are 760 that are facing major problems and are described as “fading away.” The AP reports:

“Johnson said common threads among the dying counties are older whites who are no longer having children, and an exodus of young adults who find little promise in the region and seek jobs elsewhere. The places also have fewer Hispanic immigrants, who on average are younger and tend to have more children than other groups. ‘The downturn in the U.S. economy is only exacerbating the problem,’ said Johnson, whose research paper is being published next month in the journal Rural Sociology. ‘In some cases, the only thing that can pull an area out is an influx of young Hispanic immigrants or new economic development.’”

The West Virginian community in McDowell County experienced an 80 percent drop in its population after U.S. Steel left the area. Specific to decreasing populations, the AP notes that “Natural decrease peaked in 2002 at a record 985, or 1 in 3 counties, before increasing births and an influx of Hispanic immigration helped add to county populations during the housing boom.” Birth rates are currently low for the country, and dying counties are increasing. According to one expert, areas in California like Stockton, Modesto, Fresno and Riverside could become like ghost towns due to job and population loss. For more, see here.

Public Pension Disclosure Legislation Introduced by Sen. Harman

A pension transparency bill to enhance disclosure requirements for state and local public retirement systems has been introduced by State Senator Tom Harman of Huntington Beach. SB 689 aims to establish clear reporting guidelines for pension funds. Commenting on the legislation, Harman stated that “Six-figure pension payouts put a tremendous strain on the state’s finances, and to date, oversight of them has been insufficient. Each day we learn more about the hefty pensions some public employees are earning.  SB 689 will bring needed sunshine and oversight into this process.  Since taxpayers are ultimately on the hook for the bill, they deserve an accurate view of the problem.”

Under the terms on the legislation, pension funds will have to file a pension disclosure report annually to the Legislature specifically for retirees who earn more than $100,000. You can read the bill’s language here:

SB 689

Republican Lawmakers Target Pensions; Hoover Recommendations; Bill Would End Collective Bargaining

Amidst budget talks, the role of public pensions has received less attention in tackling the deficit, but that could change with the release of the Little Hoover Commission’s report on the state’s public pensions. Senate Republican leader Bob Dutton has indicated that Republicans will be inclined to press pension reform on the basis of the recommendations outlined by the commission’s report. However, that doesn’t mean that GOP legislators will be willing to vote for tax hikes in exchange for cutting pension costs. The Bee reports that the commission made the following recommendations: “The bipartisan Little Hoover Commission recommended today that California state and local governments roll back pensions for existing employees, dump guaranteed retirement payouts and put more of the pension burden on workers.” Legally-speaking the recommendations would undoubtedly experience legal pushback and opposition, especially a call to freeze the benefits of current employees and reduce them in future years. Daniel W. Hancock, chairman of the Little Hoover Commission, stated that “State and local governments cannot solve this problem without addressing the mounting pension obligations of current employees.” For more on the commission’s recommendations, see here.

In response to the commission’s recommendations, CalPERS released the following statement:

“Pensions play an important role in the overall compensation of public employees today and have for nearly 80 years, and any change must honor the promises made to all public servants. Pension promises are funded for the long-term. CalPERS has earned a 7.9 percent return over the last 20 years above our assumed rate of return and we have gained more than $70 billion back since the financial crisis. We recognize that pension costs are a source of fiscal concern for the State, local governments and taxpayers. We look forward to engaging with the decision makers who must rely on all the facts when confronting these important issues and recommendations.”

And in other pension news, Republican Assemblyman Allan Mansoor of Costa Mesa is sponsoring a bill that eliminates collective bargaining for pension benefits. Republican Gov. Scott Walker has faced heat in Wisconsin for a similar proposal, and in commenting on that development, Mansoor stated that “I stand with the legislators in the Midwest who are taking brave steps to stand with the citizens. It's very hard to rein things in under the current process. Pensions are out of control. They have to be brought back in line with the private sector.” As of now, Mansoor’s proposed bill lacks specific language, and his legislation comes on top of other bills that are being pushed by Sen. Tom Harman and Sen. Mimi Walters. Regarding the proposals outlined by Walters, the OC Register reports:

“Meanwhile, Walters last week introduced 10 separate measures designed to address the state’s unfunded pension obligations. The centerpiece, Senate Bill 520, would transition new public employees from the current defined-benefit program to a defined-contribution plan, also known as a 401(k)-type retirement plan. Other Walters’ proposals are more modest adjustments of the current system.”

The governor has said that pension reforms should only be addressed after the state tackles its $26.6 billion budget deficit.