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Legislative Report: New Laws Affecting Local Government

by on January 3, 2019

posted in Legislative Updates,

In 2018, the Legislature enacted several new laws relevant to local government.  The following are some of the more notable laws enacted.

Administration

AB 1912 – JPA unfunded retirement liability – Amends Govt. Code Sections 6508.1 and 20575; adds Sections 6508.2 and 20574.1; and repeals and adds Section 20577.5 – Imposes liability on JPA members for JPA employees’ pension obligations if the JPA terminates PERS membership or dissolves.  Consider what JPAs you belong to that have employees and whether you should create new ones with employees as opposed to those assigned by member agencies.

SB 1053 – Amends Govt. Code Section 935 to exempt claims for childhood sexual abuse against public entities from local claims requirements.

Police Department

AB 1069/AB 939 – Taxicab permitting – AB 1069 amends, repeals, and adds Govt. Code Section 53075.5; adds Sections 53075.51, 53075.52, and 53075.53; and amends Vehicle Code Section 1808.1.  AB 939 amends Govt. Code Sections 53075.5, 53075.51, and 53075.52 – Limits regulatory authority over taxicab companies by only requiring a taxicab company to obtain a permit in the jurisdiction in which it is “substantially located” (instead of every jurisdiction in which it operates).  Allows a taxicab company that is permitted by another city within the county to use the city’s taxi stand and/or pick up street hails with the authorization of the Police Chief.  Also allows a taxicab company to set fares (not to exceed a maximum set by the city) or use a GPS device to calculate fares.  Contains updated requirements regarding safety, drug and alcohol testing, and discrimination.

AB 1749 – Amends Labor Code Section 3600.2 – Provides a city may accept liability for workers’ compensation coverage for a peace officer injured outside California while engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace, but who was not at the time acting under the immediate direction of his or her employer, if the employer determines providing compensation serves its public purposes.

SB 1421 – Police officer records – Amends Govt. Code Sections 832.7 and 832.8 to allow inspection of specified peace officer records pursuant to the California Public Records Act (CPRA); records related to reports, investigations, or findings may be subject to disclosure if they involve the following: (1) incidents involving the discharge of a firearm by an officer; (2) incidents of deadly force or great bodily injury by an officer; (3) incidents of sustained sexual assault by an officer; or (4) incidents relating to sustained findings of dishonesty by a peace officer.  A law enforcement agency may redact the records to protect the personal data or information of an officer but may not redact the officer’s name or work-related information.  The agency may also redact confidential medical, financial, or other information when there is a specific, articulable, and particularized reason to believe that disclosure of the information would place the officer or another person in danger.

AB 2717 – Change in DUI standard – Amends Vehicle Code Sections 23577, 23578, and 23612 – Modifies California law regarding the refusal to submit to a test of blood alcohol when a person is suspected of driving under the influence (DUI) to attempt to comply with the United States Supreme Court’s ruling in Birchfield v. North Dakota, (2016) 136 S. Ct. 2160, by deleting the criminal penalty for refusing to submit to a blood test.  The Supreme Court held that the Fourth Amendment to the United States Constitution permitted warrantless breath tests incident to arrests for drunk driving, but did not permit warrantless blood tests incident to arrests for drunk driving, and held that a motorist cannot be punished criminally for his or her refusal to submit to a blood test. The Court held that administrative penalties could be imposed for a refusal to submit to a blood test for those purposes.

SB 923 – Photo lineup – Adds Penal Code Section 859.7 – All law enforcement agencies to adopt regulations for conducting photo lineups and live lineups with eyewitnesses to ensure reliable and accurate suspect identifications (i.e., prior to conducting the identification procedure, and as close in time to the incident as possible, when the eyewitness provides the description of the perpetrator of the offense).

AB 2544 – Parking tickets – Amends Vehicle Code Section 40220, and adds and repeals Section 40220.5 – Effective September 18, 2018 – In order to collect on unpaid parking tickets from before July 1, 2018, the City must provide payment plan options for indigents as set out in Vehicle Code Section 40220.  You should have received notice of this from your parking ticket processing company.

AB 2327 – Files of police officer investigations – Adds Govt. Code Section 832.12 – Each agency must make a record of any investigations of misconduct in an officer’s general file or in a separate disciplinary file.  Any peace officer seeking employment must give written permission for the hiring agency to view his or her personnel file, including any disciplinary file.

AB 748 – Amends Govt. Code Section 6254 – Commencing July 1, 2019, video or audio recordings regarding a defined “critical incident” may be withheld for 45 calendar days if disclosure would substantially interfere with an active investigation, subject to specific narrow extensions.  For example, a recording could be withheld if the public interest in withholding video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording, in which the agency must attempt to redact the recording to protect that interest.  To entirely withhold a recording, the agency must demonstrate that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction.  In any case, the recording must be disclosed to a subject of the recording, his or her parent, guardian, or representative, as applicable, or his or her heir, beneficiary, immediate family member, or authorized legal representative, if deceased.

Fire

SB 1205 – Adds Health & Safety Code Section 13146.4 regarding an annual report on fire inspections and requires local fire departments to report annually to the City Council on the Fire Department’s compliance with statutorily required inspections of buildings used as public or private schools, hotels, motels, lodging houses, and apartment houses, and the City Council to acknowledge receipt of that report by adoption of a resolution.  The bill suggests but does not require that this action be taken at the time the budget is adopted.

SB 1305 – Adds Health and Safety Code Section 1799.109 – EMS personnel may provide basic first aid to a dog or cat without violating the Veterinary Medicine Practice Act.

Human Resources

There are a number of bills passed in response to United States Supreme Court decision in Janus that invalidates an agency shop requirement for public agencies.

 SB 866 –

  • Mandatory for employers to allow union dues to be paid by payroll deduction;
  • Employees must go through the union to request to start (or stop) payroll deductions for union dues and cannot bring those requests to the public agency;
  • Union must advise the agency as to the amount of dues deduction and employer must accept that information from the union;
  • Unions are not required to show proof of authorization to the public agency unless there is a dispute about whether the authorization exists or what it allows;
  • Unions are required to indemnify the employer from claims against them regarding dues deductions;
  • Change to the rules for new employee orientations: the location, date and time of new employee orientation can only be shared with the union or third parties that have a business interest in that information on account of their participation in the orientation (a union, or a benefit provider, for example); and
  • Other changes having to do with how employers communicate with employees over their right to join or form unions: if an employer is going to distribute a communication about employee rights to form, join or participate to applicants or existing employees, it must provide notice and an opportunity to meet and confer over the contents of the communication to a recognized employee organization. Further, if there is no agreement and the employer’s communication is distributed, the employer must also distribute a communication that the union may choose to provide.

AB 1976 – Amends Labor Code Section 1031 – The employer must provide lactation accommodation that is not in a restroom; there are temporary locations allowed as well.

AB 2282 – Clarification of use of prior salary history – Amends Labor Code Sections 432.3 and 1197.5 – The employer may make a compensation decision based on a current employee’s current salary and an applicant may be asked about salary expectations.

AB 2770 – Limited privilege – Amends Civil Code Section 47 to add three types of communications regarding sexual harassment that are now considered “privileged” communications, meaning they cannot be used as a basis for a defamation claim unless they are made with malice (i.e., statements made with complete disregard for the truth or false accusations made out of spite, ill will, or hatred towards the alleged harasser).  Specifically, the bill protects

  1. Reports of sexual harassment made by an employee to their employer based on credible evidence and without malice;
  2. Communications made without malice regarding the sexual harassment allegations between the employer and “interested persons” (such as witnesses or victims); and
  3. Non-malicious statements made to prospective employers as to whether a decision to rehire, or not, would be based on a determination that the former employee engaged in sexual harassment.

Employers must review the provisions of SB 1300, which states the Legislature’s understanding of legal standards for sexual harassment.  Whether or not accepted by courts the provisions significantly expand the definition of such harassment as well as liability as follows

A single incident of severe harassment may lead to liability, working conditions need not actually be effected if a reasonable person would find that the alleged harassment would have made it more difficult to do the job.  “Stray remarks” (potentially outside the work environment) may be considered to show a hostile work environment.  Summary judgment is limited as are releases of harassment claims, except through the DFEH or EEOC process of a voluntary internal settlement.  Finally, an employer is liable for harassment on the basis of any protected class by a third party.  These provisions also change the content of anti-harassment training.

SB1085 – Paid time off for union officers – Adds Govt. Code Section 3558 to require a public agency employer in California to grant, upon the request of a union, “reasonable” paid leaves of absence to employees serving as stewards or officers of the union or of any statewide or national employee organization with which the union is affiliated.  The leave could potentially be on a full-time, part-time, periodic, or intermittent basis.  The employee must receive the same compensation and benefits and must be reinstated to the same or a similar job.  However, the union must pay for the leave unless otherwise negotiated and must indemnify the public agency for any liability caused by the employee on such leave.

SB1412 – Limitations on an employer’s use of criminal histories – Amends Labor Code Section 432.7.  The law already prohibited employers from seeking or using information concerning participation in pre-trial or post-trial diversion programs or convictions that had been judicially dismissed or ordered sealed.  Employers could not ask applicants to disclose this information, could not seek it from any source, and could not utilized it as a factor in determining any condition of employment, unless (1) the employer is required to obtain information regarding an applicant’s convictions; (2) the applicant would be required to possess/use a firearm in the course of employment; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

These exceptions have been narrowed to that the employer now only may inquire about a prior conviction where an employer is required by law to inquire into a “particular conviction” (as for those working with minors) or where an employer cannot by law hire someone with a “particular conviction.”  “Particular conviction” is defined only to mean “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.

Community Development/Planning

As with last year, there are a number of bills to address the perceived lack of affordable housing in California as well as a number of bills which place additional requirements on RHNA reporting, housing element content, and land use element content.  We have summarized those we believe to be the most significant.

SB 1333 – Amends various section of the Govt. Code to require that charter cities follow general planning laws.  (See, for example, AB 2035, SB 828 regarding water impacts in the housing element).

AB 2890 – Accessory dwelling units – Amends Govt. Code sections 65852.2 and 65852.22 again to significantly limit the ability to regulate accessory and junior accessory units; an ADU must be allowed anywhere a dwelling unit exists; a junior ADU must be allowed as well.

AB 2162 – Amends Govt. Code Section 65583 to allow supportive housing by right where multiple family and mixed use are allowed.  “Supportive housing” means housing with no limit on length of stay, that is occupied by the persons with disabilities, previously homeless persons or homeless youth, and that is linked to onsite or offsite services that assist the supportive housing resident in retaining the housing, improving health status, and maximizing the ability to live and, when possible, work in the community.

SB 1035 – Amends Govt. Code Section 65302 – Safety element revision when housing or hazard mitigation plan done, or every five years.

SB 1202 – Amends Govt. Code Section 66023 – Audit of mitigation fees must be paid if none done for three consecutive years.

To watch: SB 1215 – Sewer service to disadvantaged communities – Adds Chapter 4.3 to Division 7 of the Water Code – Regional Water Boards have additional authority to order local governments to extend sewer service to disadvantaged communities with inadequate sewer service (i.e., septic) where that inadequate system could affect water quality or cause a nuisance.  Annexation by special district or extension of city service or additional service within a city; property owners may opt out for up to 5 years; no more than 3 miles away and SWRCB must make funds available if Legislature appropriates them.

Code Enforcement

AB 2164 – Amends Govt. Code section 53069.4 to provide increased fines for illegal cannabis facilities by allowing the city to adopt an ordinance immediately imposing administrative fines for the violation of building, plumbing, electrical, or other similar structural, health and safety, or zoning requirements if the violation exists as a result of illegal cultivation of cannabis.

AB 2495 – Adds Penal Code Section 688.5 to prohibit pass through of legal and related costs of criminal citations.  This is the bill resulting from the issues with Silver & Wright.

AB 2598 – Amends Govt. Code Section 36900 to increases the amount of fines for violations of local building and safety code determined to be an infraction: $130 for a first violation, $700 for a second violation of the same ordinance within one year, and $1,300 for each additional violation of the same ordinance within one year of the first violation.  However, for a city to adopt increased fine, it also must adopt a hardship program for those who cannot pay the fines

Public Works/Engineering

AB 2913 – Amends Health & Safety Code Section 18938.5 and adds Section 18938.6 to provide that a building permit is good for 12 months and expires at the end of that time if work authorized has not been not done, unless extended.  The sections also confirm that any local adoption of building codes apply only to those permits issued after the date of such adoption.

AB 636 – Amends Streets and Highways Code Sections 2151 and 2154 – Change in reporting date for street and road expenditures (not for SB 1).

AB 2989 – Amends Vehicle Code Section 21235 – Authorizes a city to allow scooters on local roads in bike lanes.

SB 1202 – Amends Govt. Code Section 66023 – Requires local governments that have not completed a required report on mitigation fees for three consecutive years to pay the costs of requested audits of their Mitigation Fee funds.

SB 966 – Adds Article 8 to Chapter 7 of Division 7 of the Water Code – Onsite non-potable water systems.  This bill requires that any local jurisdiction that elects to establish a program for onsite treated nonpotable water systems to, among other things, adopt an ordinance for a local program that includes the risk-based water quality standards established by the state board.

SB 998 – Water shut-off day guidelines – Adds Health and Safety Sections 116900 et seq. – Prohibits water services from being discontinued until payment has been delinquent for at least sixty days.  Requires an agency to have a written policy that includes a plan for deferred, reduced, and alternative payment that must be provided to a customer no less than seven days before discontinuing service.  Prohibits discontinuing service to low-income households under specified circumstances.

Community Services

AB 1766 – Auto defib at public pools – Amends Health and Safety Code Section 116045, and adds Section 116046 – A city presently is required to have a lifeguard on duty when it has a pool that is artificially constructed and a direct fee is charged for the use of that pool; absent a lifeguard, there is a requirement for warning signage.  As of January 1, 2019, AB 1766 requires an Automatic External Defibrillator (AED) be available at a pool during hours of operation.  The implication is that the lifeguard will be trained to use it, although the law does not say that.  As with the provision of lifeguard services, failure to comply is a crime.

SB 1202 – Amends Govt. Code Section 66023 – Requires local governments that have not completed a required report on mitigation fees for three consecutive years to pay the costs of requested audits of their Mitigation Fee funds.

Other

AB 1168 – Gambling moratorium – Amends Business and Professions Code Sections 19962 and 19963 – Continues the statewide moratorium until January 1, 2023 on the state’s issuance of a new gambling license but does not affect licenses granted on or before on December 31, 1999, and prohibits a city’s amendment of any ordinances to expand gaming in the city beyond that permitted as of January 1, 1996.

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