CaliforniaCityNews.org

Police Union Sues Claremont and Chamber of Commerce; Claims Free Speech Violated

In October, the city of Claremont and the local Chamber of Commerce put on an arts and crafts fair in downtown, but according to the Claremont Police Officers Association, members of the union were not allowed to hand out fliers at the event regarding the association’s position on contract negotiations. A lawsuit has now been filed against the city and the Claremont Chamber of Commerce that argues both entities violated the association’s free speech and right to assemble.

Curious what the flier actually says? You can see a copy here. In large font at the top it states: “Why is [the] City Council Gambling with Your Safety?” It urges residents to call the city council in order to make public safety the top priority.

According to the lawsuit, the Association’s president was denied space at the fair and members were told they could not hand out fliers. But the chamber counters that booth space was already booked up and that the city’s police chief did not want fliers handed out in front of the police department’s booth, which was offered as an alternative option. In a statement, the Chamber of Commerce notes, “The CPOA was simply asked to follow the same rules as everyone else and to remove a table from an unauthorized area.”

Notably, the council imposed an increase in retirement contributions by 6 percent in October. In response to the higher contribution rate, the Association filed an unfair labor practice charge and also filed a writ of mandate to obtain salary information for the city’s top officials. You can read the lawsuit here.

Records Policy Faces More Scrutiny in Anaheim after 2 Orders to Purge Files

We relayed recently that open government advocates were alarmed by the revelation that an Anaheim Planning Department official ordered employees to delete old documents from city files. The Voice of OC subsequently reported that a similar memo had been sent by an Anaheim Community Preservation Manager who told workers “not to archive emails for any purpose." Similarly, the memo also included a threat about disciplinary action if city emails were archived. You can read the second email message here.

Such city records must be kept for two years and can only be destroyed after authorization by the City Council, according to state law. Both of the aforementioned memos were sent out after a records request was made by the Voice of OC.

Originally city officials argued that the memos were merely a reminder of the city’s retention policy, but Mayor Tom Tait eventually issued a statement on the matter:

“The City has a retention schedule and administrative regulations for the management of public records in accordance with state laws. Unfortunately, these emails within the Planning Department and the manner in which they were articulated were a mistake. We are taking corrective action to assure this does not happen again.”

In another update, this week the mayor directed staff to review the city’s retention policy with respect to records to verify compliance with the law. The city plans to examine its email policy since reportedly many are deleted automatically after 30 days. The Voice of OC points out that “Anaheim is but one of a number of cities in Orange County that purge emails in as little as 30 days, a Voice of OC investigation in 2010 found. First Amendment experts said the cities are violating state records laws. After receiving legal threats from CalAware, the city of Irvine reformed its records policy to archive emails identified as "business records" for two years.”

Chowchilla Stands Up to the State; Files Legal Challenge over Prison Conversion

During the summer, officials in the city of Chowchilla expressed concerns about a proposal from the State Department of Corrections and Rehabilitation that would result in one of the region’s jails being converted from a women’s prison into a facility that would house male inmates. Both county and city officials noted they preferred the status quo and that a men’s jail would not be a welcome addition to the local community. The city also fears that a men’s prison could present onerous burdens on local services.  Now that the state is moving forward with plans to convert the Valley State Prison for Women into a facility for men, Chowchilla officials have decided to file a legal challenge.

Mayor Janan Hebert commented, “The Chowchilla City Council feels it is imperative to take necessary steps to protect our community and our rural way of life from the state's planned prison conversion. It's unfortunate that we have to file papers in court in order to keep our neighborhoods secure, but CDCR has left us with no other options."

The legal action seeks to force the CDCR to conduct analysis of the change under the California Environmental Quality Act. In December, state officials denied they had to perform such an action because the conversion would merely “reorganize inmates,” so an exemption was filed.

The state department contends the conversion is necessary because it is in a bit of tight squeeze, as it must comply with the Supreme Court’s order requiring the state’s prison population to be reduced, so space is being sought and Chowchilla’s name became a part of the mix. Realignment also is a contributing factor.

Recipe for Revenge: Local Govt Political Leverage in the Battle over Redevelopment

The dust is far from settled on the redevelopment front as local officials make their legislative push to revive the agencies in the aftermath of the Supreme Court’s recent ruling. In addition, the City of Cerritos, along with nine other cities, filed a separate legal challenge in Sacramento Superior Court in order to raise constitutional claims that were not addressed in the court’s decision (a copy of the complaint can be seen here).

However, writer Joe Mathews over at NBC’s Prop Zero argues in an interesting article that the court’s ruling provides a recipe of revenge for local governments if they’re willing to consider another route in light of the governor’s staunch position on the matter and the inevitable budgetary tug-of-war that could decrease agencies’ slice of the pie every year if they are preserved in some other (i.e. weaker) form.

Mathews posits that local governments should use their political leverage in upcoming battles over pension reform and the governor’s desire to raise taxes by demanding greater power to raise their own revenues. An excerpt from Mathews’ article reads:

“The smarter move would be to launch a long-term campaign to return the power to set tax rates to local officials. Yes, that's a game-changer. And yes, that would change one provision of Prop 13. But the policy is right, and the strange politics of 2012 offer an opportunity. Gov. Jerry Brown and the Democrats are desperate to pass tax initiatives. But to do so, they'll need support from local elected officials -- for political cover and because the money from Brown's tax initiatives is supposed to go to local governments. By the same token, Republicans want pension reform and a new spending limit, and will have trouble getting them if local governments oppose the measure.”

“Locals should leverage Democrats' need for support for the tax initiatives -- and Republicans' desire for pension reform and spending changes -- to demand more flexibility to set tax rates themselves. The specifics of such a change would involve everything from tweaks of existing laws to the possibility of a future ballot measure or a constitutional revision process.  If Brown and Democrats balk, then the local governments should threaten to oppose -- loudly -- the tax initiatives, and to continue to use the courts to frustrate state budget-balancing efforts.”

Mathews concludes that without greater revenue-raising power, local governments will find themselves stuck in the same position, meaning the state will balance its budget on the backs of locals while offloading greater responsibility without the funds needed to cover the costs. Read the whole article here. Let us know what you think of Mathew’s arguments by leaving a comment below.

Open-Government Advocates Alarmed by Anaheim Official’s Memo to Purge Records

Anaheim officials are in a bit of hot water over comments made by Planning Department official Hannah Jones, who emailed employees to inform them that they should delete old documents from city files. Debate continues over whether the order is merely an innocuous reminder or if foul play is at work. In addition, the email sent by Jones notes that disciplinary action would be taken if managers or supervisors found “old unnecessary documents” on the computers of workers. Reportedly Jones sent out the email after the city received a request for records of communications to and from City Council members. The request was made by the non-profit news organization Voice of OC, which has been digging around into other city correspondence. Here is the opening of Jones’ email to Planning Department employees:

“The city has been getting daily public records requests, and on several occasions, old unnecessary or inappropriate documents have been found in City files. We have been fortunate in that we have not had old or unnecessary documents turn up as a result of these requests. When these documents do turn up, it can very easy portray the actions of city staff, applications, contractors and decision makers out of context and damage our credibility. Because of the increased scrutiny of these records, division managers or supervisors, from time to time, will be reviewing your records, both hard copy and electronic. If old unnecessary document are found on computers or in offices/work areas, then disciplinary action will be taken.”

City spokeswoman Ruth Ruiz stated that the email was merely a reminder about the city’s retention policy. Anaheim City Attorney Cristina Talley is quoted as saying that she is looking into the matter. The Voice of OC reports on other city feedback:

“City Clerk Linda Andal said she interpreted the email as a reminder to employees to manage city records according to the rules of the department's records retention policy. She pointed to specific guidelines in which Jones outlines which records should be destroyed and which should be saved. […] Records that should be purged include: ‘emails and correspondence that simply confirm meeting dates, confirm shipping or receipt of information, or arranges meeting times.’ The email is simply ‘restating our city's policy on record keeping, purging emails and identifying a record,’ Andal said.”

The Orange County Employees Association has told workers not to comply with the email’s request until the district attorney’s office completes an investigation on its legality.

You can be the judge by reading Jones’ full memo here.

San Jose Pot Referendum May Force Council to Change Course; 31,103 Valid Signatures

As has been the case in other pockets of the state, medical marijuana collectives showed they wouldn’t take new regulations lying down when they corralled around a referendum to repeal new rules in the city of San Jose. Back in September, we relayed that the City Council had taken steps to regulate the medical marijuana industry through the approval of limits on the number of businesses that can legally operate. The ordinance provoked outrage among pot advocates because the council stipulated that only 10 dispensaries would be allowed to stay open when there were over a 100 operating in the city.

Notably, a referendum effort was able to collect 49,000 signatures in a month to repeal the law. In response, San Jose Mayor Chuck Reed has indicated that the city may be willing to amend the ordinance it passed in order to make it less strict. Reed commented that “My preference is that we can negotiate some kind of ordinance that we can all live with." Increasing the number of dispensaries allowed to operate would be foremost among the concerns of collectives, but a majority of the council may be unwilling to change course.

There is another option as well, based on previous comments made by the Mayor. Reed has said in the past that if a referendum effort was successful, then the issue should be put to the voters to have a final say. To pay for the costs of the election in cash-strapped San Jose, the mayor proposed raising the city's tax on medical marijuana collectives from 7 to 10 percent.

The Santa Clara County Registrar of Voters has already concluded that the referendum drive gathered the necessary number of qualified signatures, thereby leading to the suspension of the ordinance. Time will tell if the council will repeal the law, call a special election, or put it on the ballot in June.

Controller Announces He will Keep Pushing for Expanded Auditing Authority; $3 Billion in Findings

At any given point during the year, the State Controller’s Office is typically conducting 200 to 300 different audits, and local governments have been no stranger to these efforts and increased scrutiny. In fact, since taking office in 2007, the controller’s audit findings through State and local investigations have now totaled more than $3 billion, which is more than any other Controller in recorded State history.

State Controller John Chiang commented the following about the work of his office:

“Unchecked spending is an invitation for misspending. My audits offer an inside-look at state and local checkbooks, and show us where fiscal practices need serious improvement. These findings can lead to real taxpayer savings, and every dollar rescued is one that we don’t have to take away from education, public safety, or other essential services.”

Prominent audit findings at the local level and beyond include:

Bell: Illegal Property Taxes and Unlawful Spending
Hercules: Currently being audited
Montebello: No-bid contracts and lax spending controls
You can find a list of the Controller’s audits of state and local agencies here.
Revenue Audits can be seen here.
Oversight of Independent Auditor Findings of Education and Local Government Agencies: see here.
More here.

Notably, the controller used the announcement about his overall audit findings to note that he would continue to push for expanded authority. Chiang’s press release states the following: “The Controller's office was flooded with requests audits of more than 200 local governments across California. In order to meet those demands and better protect taxpayer dollars at the local level, the Controller introduced legislation to broaden his office's auditing abilities. While those bills stalled in the last legislation session, the Controller will continue to push to expand his office's ability to protect taxpayer dollars through financial audits.”

Citizens Group Sues the City of Ontario for Extending Building Permits w/o Transparency

In an effort to beat back the worst effects of the recession, the Ontario City Council, much like other cities, has extended building permits and development plans that were set to expire. Since 2009, the council has approved one-year extensions for all permits to address the economic downturn, but now the council is facing legal action over this common practice. A local group known as the Ontario Mountain Village Association has filed a lawsuit against the city because the group’s attorney, Cory Briggs, alleges the extension of permits lacked transparency and that some businesses may benefit more than others.

It is worth noting that the Ontario Mountain Village Association is strongly opposed to the presence of a new Wal-Mart in the city, which is likely the motivating factor behind the legal action. After all, the group sued the city back in 2007 when it approved the retail giant’s supercenter. The Daily Bulletin reports:

“The [extension of permits] was done to keep projects going when the economy did recover so builders would not have to wait at least a year for a project to again go through the permit process before it could move forward. ‘It certainly wasn't intended for one specific project, it's for all projects,’ said Councilman Alan Wapner.”

According to City Attorney John Brown, no other city has faced litigation over the extension of permits and Brown advised the council that “There's no question in my mind that the city can proceed. You are clearly within your legal right to consider this ordinance." In March there will be a hearing on the lawsuit in San Bernardino County Superior Court.

Legal Fight Lies Ahead for San Jose as Council Approves Pension Reform Measure for June

The city of San Jose appears to have set itself up for a fierce (and inevitable) legal battle if voters approve the controversial ballot measure the council agreed this week to place on the June ballot. The divided 6-5 vote gave Mayor Chuck Reed the initial victory he has been looking for since May, despite the objections of labor leaders who earlier this week pleaded with the council for more negotiations and a request to settle reform at the bargaining table as opposed to the ballot. Residents, city workers and retirees flooded the council’s chambers during discussion of the pension measure and debate lasted as long as 3 hours.

Unions deemed the pension measure unnecessary and premature and have called on the council to hold off on the issue until further talks can occur. Notably, the city did put off the declaration of a fiscal emergency because new figures indicated the city’s retirement bill would be smaller than projected and its budget shortfall fell from $80 million to $25 million. Council members who voted against the measure, as well as other opponents, have pointed out that the legal costs the city is likely to incur from the measure’s passage are alone reason enough to think twice before putting the issue before voters.

Labor leaders contend the measure is simply unlawful, but Mayor Reed has emphasized that savings are necessary as costs continue to balloon. Here are key proposals from the measure, according to a fact sheet disseminated by the mayor’s office:

• “New Employees would be placed in a new, lower-cost, hybrid retirement plan; New employees would pay for at least 50% of the total cost of the new plan and the City’s contribution would be capped at 9% of an employee’s salary
• Current employees would be given the option to either: a) pay more to keep their current retirement plan or b) opt-in to a new, lower-cost retirement plan
• Retirees would have their Cost of Living Adjustments (COLAs) temporarily suspended during a fiscal and service level emergency
• Disability retirement rules would be reformed to prevent abuses
• The City Council would be prohibited from enhancing retirement benefits without voter approval”

Mercury News points out that “Employees argue that forcing them to pay more toward existing pension benefits and suspending promised cost-of-living raises to retirees violates their legally ‘vested rights.’ Reed said such provisions are needed to ensure significant savings over the next couple of years and avoid further layoffs.”

You can see the full text of the ballot measure here.  ABC News filed the following report:

Court Strikes Down City’s Occupancy Tax for Online Companies; Fight’s Latest Development

For years now cities in multiple states across the country have set their sights on targeting online travel companies like Expedia as a way to recuperate millions in lodging taxes that local governments argue are unfairly kept by such companies due to a tax loophole. The root of the matter is that online companies collect taxes from customers on the retail price of hotel rooms, but only pay cities the tax on the wholesale price. The question is whether online travel companies should pay taxes based on the wholesale price or the price consumers actually pay the companies for lodging. More than 80 municipalities have filed lawsuits in 22 states across the country, but the Denver Post points out that “Several recent court decisions support the online travel companies while some states such as Missouri have forged legislation preventing local cities and towns from taxing the online travel companies. California courts in three cases recently ruled in favor of online travel companies.” Many cases are still pending and courts have often avoided forcing online companies to pay back taxes to cities.

The latest court update stems from New York City. The Big Apple passed a law in 2009 that required online travel companies to pay taxes on the price consumers pay for rooms. However, this week an appeals court struck down the law, thereby reversing a trial court decision. The appellate court declared the ordinance unconstitutional. The ruling is sure to cost New York millions in revenue, much like other cities who have taken up similar legal battles. Reuters reports:

“But the ruling means that the city may still owe a refund of the taxes collected on the sites' fees during that year. The exact amount was unavailable Tuesday, but city projections for the law prior to its approval by the City Council estimated $4 million in new annual revenues. ‘We are very disappointed in the decision and are considering all of our legal options,’ said city attorney Joshua Wolf.”

The record against these sites has been a mixed bag, but more often than not, courts have ruled in favor of the travel companies---doing no favors for cash-strapped cities eager for revenues.