The California Court of Appeal recently held that the California Public Records Act (“Act”) does not require access to communications between public officials using exclusively private cell phones or e-mail accounts. These private communications sent or received by public officials and employees on their private electronic devices using their private accounts, i.e., communications that are not stored on City servers and are not directly accessible by the City, are not “public records” within the meaning of the Act.
In City of San Jose v. Superior Court of Santa Clara County (Smith), Smith sought to inspect specified written communications (including e-mail and text messages) sent or received by public officials and employees on their private electronic devices using their private accounts. The City refused to produce those records on the grounds that the records sought were not stored on City servers and not directly accessible by the City; thus they were not public records within the meaning of the Act.
Smith argued that communications prepared, received, or stored on City officials’ private electronic devices are public records under the Act because local agencies can only act through their officials and employees. Thus, those officials and employees are acting on behalf of the City and therefore their disclosure obligations are indistinguishable from those of the City.
The City had disclosed responsive non-exempt records sent from or received on private electronic devices using the individuals’ City accounts, but not records from those persons’ private electronic devices using their private accounts (e.g., a message sent from a private Gmail account using the person’s own smartphone or other electronic device). The City argued that messages sent from or to private accounts using private electronic devices are not “public records” under the Act, and that individual officials and employees are not included within the definition of “public agency” under the Act.
The Court of Appeal agreed with the City. The court looked to the exact language of the Act and noted that its definition of “public records” is “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” (Section § 6252(e).)
If a local agency and its officials are, as Smith argued, one and the same, then any writing prepared, owned, used, or retained by the official is deemed that of the agency itself. However, the court found that the Act’s definition of “local agency” does not mention individual members or representatives of any public body. “Had the Legislature intended to encompass such individuals within the scope of ‘public records,’ it could easily have done so,” the court said.
Thus, the court found that individual city council members and their staff are not equivalent to the City for purposes of providing public access to their writings on public business. “Because it is the agency—here, the City— that must prepare, own, use, or retain the writing in order for it to be a public record, those writings that are not accessible by the City cannot be said to fall within the statutory definition.
The City cannot, for example, ‘use’ or ‘retain’ a text message sent from a council member’s smartphone that is not linked to a City server or City account,” the court found. Accordingly, the court held that the writings sought by Smith were not “prepared, owned, used, or retained” by a “local agency” as required by the Act.
Additionally, the court acknowledged the possibility that government employees could circumvent the disclosure requirements of the Act by simply using their own private cell phones and computers, over their own private accounts, to communicate City business. However, the court stated that it was the role of the Legislature and not the court to prevent this.
http://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpg00Michael Travishttp://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpgMichael Travis2014-04-01 09:00:262017-05-16 19:18:06Communications Between Public Officials Using Private Cell Phones And Email Accounts Are Not Public Records Under The California Public Records Act
The 9th Circuit Court of Appeals recently determined that a university professor’s writings and comments on proposed department reorganization required an analysis under the First Amendment. By so concluding, the appellate court reversed the lower court’s decision that the professor’s speech did not address matters of public concern. Demers v. Austin, 2014 DJDAR 1190 (Jan. 29, 2014).
At issue was the difficult legal question of whether the professor’s writings and comments constituted matters of public concern entitled to First Amendment protections or whether the writings instead were private institutional issues representing classic personnel struggles not entitled to First Amendment protection.
The 9th Circuit decided the case of Professor Demers from Washington State University who alleged First Amendment violations based on alleged retaliation from University administrators. The alleged retaliation included, among other allegations: negative annual performance reviews, two internal audits, and a formal notice of discipline.
The appellate court determined that the writings and commentary related to academic scholarship, academic writings, and teaching performed in accordance with “official duties.” The court observed that even writings about significant budget issues can fall within the protected area of “matters of public concern.” In its decision the court recognized that not all speech by a teacher or professor addresses a matter of public concern. The court gave examples such as, objectionsto closing laboratories and criticisms of a board of trustees process in selecting a president, that were viewed as essentially private grievances. However, in this case, the Court found the writings go to the organization of the Communications Department and substantially alter the nature of what was being taught by the department, as well as the composition of the faculty that would teach it.
As a result, the decision concluded that the legal analysis by the U.S. Supreme Court in Pickering v. Board of Education controlled the disposition of the case. Consequently, the summary judgment in favor of the University was reversed. (The judgment in favor of the administrators was affirmed on the separate grounds that the administrators were entitled to qualified immunity.) The case will now return to the trial court to determine: if the administration’s interest in the written commentaries were sufficient to deprive them of First Amendment protection; whether the commentaries were a substantial or motivating factor in any adverse employment action; and whether the defendants would have taken such employment action absent the protected speech.
http://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpg00Michael Travishttp://parkercovert.com/wp-content/uploads/2016/02/logo_large_new-300x94.jpgMichael Travis2014-02-14 09:00:252017-05-16 19:18:06Demers v. Austin: Ninth U.S. Circuit Court Of Appeals Concludes University Professor’s Public Comments On Department Reorganization Plan Constitute Matters Of Public Interest Requiring First Amendment Analysis
The State Allocation Board, at its January 22, 2014 meeting, approved an increase in “level 1” developer fees from $3.20 to $3.36 per square foot on new residential development and residential additions of over 500 square feet, and from $0.51 to $0.54 per square foot on new commercial and industrial development.
School districts may implement these higher fees immediately provided that they have an appropriate fee justification report in place. Your existing justification report may be adequate or may need to be updated. Implementing the higher fees requires passing a resolution, preceded by publishing a notice twice in a 10-day period, posting the notice, and mailing the notice to anyone who has specifically requested notice. The higher fees go into effect 60 days after the resolution is passed, unless urgency resolutions are used to reduce the waiting period. The county and any cities having jurisdiction in your district should be notified of the increase so that they have current information for building permit applicants.
Non-unified districts should adjust their allocation agreement for sharing the total fee amounts.
As always, fee revenues are to be placed in an account to be used for facilities construction and modernization, as well as costs of justifying and collecting the fees. Those districts that have the higher “level 2” fees on new residential development should still increase their level 1 fees to capture revenues from projects not subject to level 2 fees.
If you have any questions concerning developer fees, justification reports, or the process to increase fees, please contact our office.
The State Board of Education on January 15, 2014 issued new regulations to implement S.B. 1404 from 2012, authorizing school districts to impose Civic Center Act user fees that include costs of maintenance, repair, restoration, and refurbishment of school facilities or grounds in proportion to their use. These regulations are at Title 5, California Code of Regulations, sections 14037-14042.
The regulations, which expire January 1, 2020, are to be used to determine the specific allowable costs and the proportionate share of those costs that can be charged. The fees calculated by this method are the maximum amount that a district is authorized to charge, and it should be noted that districts may elect to charge lower fees based on the type or category of applicant, such as tax-exempt entities, or to waive fees entirely.
When electing to charge fees pursuant to the Civic Center Act, the governing board must adopt a fee schedule that includes the hourly fee for each specific facility and grounds (similar or “like” facilities or grounds can be grouped together). Districts may charge for “capital direct costs” only, “operational direct costs” only, or both capital and operational direct costs.
“Capital direct costs” are determined by: (a) determining the useful life of the facility; (b) estimating the expected cost to repair, restore, refurbish or replace the facility, as applicable, at the end of the useful life; and (c) dividing that cost by the number of years of useful life to determine an annual cost. “Operational direct costs” are determined by:
(a) determining the annual cost of salaries and benefits for all employee labor or contract services required to operate, clean and maintain the facility or grounds, including janitorial, security, and set up and tear down, as required;
(b) the annual cost of supplies, including equipment, required to operate and maintain the facility or grounds;
(c) the annual cost of utilities required to operate the facility or grounds; and
(d) the prorated portion of annual salaries and benefits for the time of school employees associated with administering these user fees.
The “proportionate share” of the “capital direct costs” or “operational direct costs” that can be charged to a user is determined by dividing the estimated annual hours that a facility or grounds is expected to be used by applicants by the estimated annual hours that a facility or grounds is available for use by anyone, including the district.
Funds that are collected as “capital direct costs” are required to be deposited in a special fund used only for capital maintenance, repair, restoration, and refurbishment.
If you have any questions regarding the Civic Center Act or civic center user fees, please contact our office.