Issue 118 - December 2021
I believe that people are the most important part of any organization. Our employees’ authentic teamwork, collaborating with one another and with our members and partners, has established the California JPIA as a leader in the pooling industry.
Building on last year’s acquisition of three new senior risk managers, the California JPIA has continued to strategically evolve our staff to provide excellent service for and substantive relationships with our members. In 2021, we celebrated the promotion of Alex Smith from chief financial officer to deputy executive officer and welcomed five accomplished professionals: Employment Practices Manager Kelly Trainer Policky, a former partner at Burke, Williams & Sorensen, LLP; Human Resources Manager Nikki Salas, former Barstow city manager; Finance Director Jason McBride, who joined the Authority from the City of Anaheim; Data & Underwriting Analyst Aaron Webb; and Communications Director Olga Berdial, who joins us from the City of Chula Vista.
These arrivals are juxtaposed with a significant departure: after more than 17 years of service to the Authority and our members, Assistant Executive Officer Norm Lefmann is retiring. A highly respected professional and amiable colleague, Norm has made our pool more effective, more efficient, and better able to provide excellent service to our members. I wish him and his wife, Sheryl, the best on their retirement.
Continuing to exercise our core value of teamwork, the California JPIA has cultivated relationships with similarly minded organizations that support municipal agencies in California. We have leveraged these connections to forge partnerships, address priority issues, and discuss risk management best practices with our members, prospective members, and business partners that share our genuine interest in local government.
Providing learning opportunities for municipal managers and elected officials at all levels helps develop well-informed leaders who support healthy risk management cultures in their organizations. This year the California JPIA has presented risk management best practices at several key events, including the League of California Cities’ Virtual City Managers Conference, the Public Agency Risk Management Association’s Virtual Conference & Expo, the League of California Cities’ Annual Conference and Expo, the California Public Employers Labor Relations Association’s Annual Training Conference, and the California Contract Cities Association’s Fall Educational Summit.
After last year’s virtual event, this year’s in-person Risk Management Educational Forum provided more than 300 participants a welcome opportunity to interact with seasoned subject-matter experts, experience relevant and timely presentations, and network with members and business partners.
The Authority is always proud to support our member agencies with services to reduce risk, avoid litigation, and limit exposure. We are deeply grateful for the opportunity to gather again in person and look forward to connecting with our community throughout the new year. Warm thanks for your continued engagement with and support of the California JPIA, and best wishes for a very happy holiday season.Print Article
To better connect with current members and reach potential new members, the Authority has an active presence on social media. Members can find information on various topics on the social media channels listed below.
Connect with our latest posts:
“Authority Deputy Executive Officer Alex Smith and Administrative Assistant Lyndsie Buskirk met with Orange County city leaders on Dec. 1 during the Orange County City Manager Association holiday luncheon in Anaheim. Alex and Lyndsie enjoyed the opportunity to connect with Authority members from Orange County, including Ben Siegel, City Manager of the City of San Juan Capistrano.”
Comment and share:
“The Authority has new resources available for California JPIA members to assist with liability exposure associated with trees and creating agreements for tree maintenance services. Visit our website library, keyword ‘tree:’ https://tinyurl.com/ycknzfbs”
Follow us, comment, and share about risk management:
“Happy 30th anniversary to Authority member, the City of Lake Forest! Learn more about the city’s history here: https://tinyurl.com/2p99z5bn #lfis30”
Like and follow us:
For information on how to join these sites or participate in discussions, please contact Courtney Morrison, Management Analyst.
The Authority published an article earlier this year in this newsletter (New Employment Practices Liability Resources, June 2021 issue) regarding additional resources that will soon be available to assist members in better managing employment practices liability (EPL) exposures.
Since that time, the Authority has published an EPL white paper. This resource, targeted toward member leadership, summarizes why local government agencies should proactively manage EPL exposures. The white paper also addresses the EPL legal and regulatory landscape, recommends techniques for recognition and intervention to handle problematic situations, and discusses resources available through the California JPIA. Members are encouraged to review and discuss the white paper internally and follow the included guidance regarding the management of EPL exposures. The white paper can be found in the Library section or on the White Papers page of the Authority website, cjpia.org.
In the coming months, the Authority also intends to roll out an anonymous harassment reporting system for use by members. This resource will allow individuals to report allegations of wrongful employment practices in the workplace anonymously.
The Authority staff also plans to make the following resources available to member agencies in 2022:
- Training to address the behavior of employee and elected officials and organizational culture. Topics include abusive conduct, ethics, cultural diversity, implicit bias, nepotism, cronyism, etc.
- Training to improve manager and supervisor soft skills. Topics include effective communication, teamwork, and conflict resolution.
- HR practitioner training. Topics include absence management, disability management, discipline, compensation, labor relations, etc.
- Additional HR policy templates and other HR reference materials.
These additional resources are designed to help members address the root causes of EPL claims and reduce the frequency and severity of such claims.
If you have questions about these upcoming resources, please contact your Risk Manager.Print Article
Originally published on October 19, 2021. Reprinted with Permission from Burke, Williams & Sorensen, LLP.
A slew of new laws related to housing will be going into effect on January 1, 2022, in Sacramento’s continued effort to improve the State’s persistent housing production and affordability crisis. The bills range from clean-up amendments clarifying existing housing laws to major changes in local control over housing density.
The most talked about housing bill from this Legislative session, SB 9 requires ministerial approval of an application to develop up to two units on nearly all lots zoned for single-family housing (including via partial or full teardown of an existing unit). SB 9 also requires ministerial approval of an application to split a lot in order to create not more than 2 new parcels, which must be of approximately equal size. Under SB 9, an existing single-family residential lot can be split and then two units built on each lot, for a total of 4 dwelling units with no discretionary review even if this would exceed the permissible density for the property under the city or county’s general plan and zoning.
Once a lot has been split under SB 9 it cannot be split again under SB 9. Additionally, a lot can’t be split under SB 9 if the owner or someone acting in concert with the owner previously split an adjacent parcel under SB 9. If a lot has been subject to both a ministerial lot split and a ministerial two-unit development approval under SB 9, the city or county is not required to permit an accessory dwelling unit on the property.
SB 9 allows cities and counties to impose objective zoning standards, objective subdivision standards, and objective design review standards that do not conflict with SB 9.
SB 8 makes several changes to the Housing Crisis Act of 2019 (SB 330), including extending the sunset date to January 1, 2030. It also clarifies the “no net loss” requirement in the Act, which requires cities and counties to make sure that any loss of residential development capacity on a site due to a general plan or specific plan amendment or zoning change is offset through a “concurrent” action of the legislative body. SB 8 clarifies that the offsetting action can occur within 180 days and still be considered “concurrent.” The definition of “housing development project” is expanded to include single unit developments and developments that are ministerially approved.
This bill allows, but does not require, local jurisdictions to adopt an ordinance authorizing housing development projects of up to 10 residential units per parcel in transit-rich areas or urban infill sites, subject to limited exceptions, until January 1, 2029. Ordinances adopted pursuant to SB 10 are exempt from the California Environmental Quality Act (CEQA). However, subsequent projects that propose more than 10 units on a parcel up-zoned under SB 10 are prohibited from ministerial or by right approval and are ineligible for any CEQA exemptions.
SB 10 allows a two-thirds vote of the legislative body to supersede any zoning restriction established by local initiative, excluding certain open-space and parkland restrictions. It also cannot be used to implement downzoning and, once parcels have been up-zoned under SB 10, the local government is prohibited from later reducing the density of those parcels.
SB 478 imposes maximum floor area ratios that a city or county can apply to a housing development project of between 3 and 10 units located in multifamily or mixed use zones and not within a historic district or on a historic property. Cities and counties will be prohibited from imposing a floor area ratio standard that is less than 1.0 on a housing development project that consists of 3 to 7 units, or less than 1.25 on a housing development project that consists of 8 to 10 units. This law also prohibits a local agency from imposing a lot coverage requirement that would physically preclude a housing development project from achieving the aforementioned floor area ratios. Further, the new law prohibits cities and counties from denying a housing development project located on an existing legal parcel solely on the basis that the lot area of the proposed lot does not meet the local agency’s requirements for minimum lot size. These provisions only apply to cities that have an urbanized area or urban cluster within its boundaries, or in unincorporated areas where the subject parcel is wholly within the boundaries of an urbanized area or urban cluster.
AB 1174 is an urgency measure that went into effect in September 2021, immediately upon the Governor’s signature. It amends SB 35 (Government Code section 65913.4), which requires streamlined, ministerial approval of qualifying affordable housing projects. The changes to SB 35 made by AB 1174 primarily impact the provisions pertaining to the life of project approvals and the ability to apply new objective standards to a previously approved project.
AB 215 changes the procedures applicable to the adoption and amendment of a Housing Element. It requires cities and counties to make the first draft revision of a housing element available for public comment for at least 30 days and, if any comments are received, take at least 10 additional business days to consider and incorporate public comments into the draft revision before submitting it to the Department of Housing and Community Development. The bill would require agencies to post any subsequent draft revision on its website and to email a link to individuals and organizations that have requested notices relating to the local government’s housing element. The Department of Housing and Community Development is prohibited from reviewing a draft housing element revision until this public review process has been completed.
AB 571 adds Section 65915.1 to the Government Code, consisting of a single sentence, related to density bonuses. It provides that affordable housing impact fees, including inclusionary zoning fees and in-lieu fees, shall not be imposed on the affordable units provided under the Density Bonus Law (Government Code section 65915).
Similar to AB 571, AB 634 adds a new one sentence section to the Government Code pertaining to density bonuses. It provides that the Density Bonus Law, if permitted by local ordinance, shall not be construed to prohibit an agency from requiring an affordability period longer than 55 years.
Despite the ongoing pandemic, the 2021 calendar year was a busy one for the State Legislature. The following bills, approved by the Governor in September, may be of interest to members. The below bills are scheduled to go into effect on January 1, 2022.
AB 26 (Holden) Peace officers: use of force
Summary: Existing law requires each law enforcement agency, on or before January 1, 2021, to maintain a policy that provides a minimum standard on the use of force. Existing law requires that policy, among other things, to require that officers report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be unnecessary, and to require that officers intercede when present and observing another officer using force that is clearly beyond that which is necessary, as specified.
This bill will mandate those law enforcement policies to require officers to immediately report potential excessive force, as defined. The bill will additionally require those policies to, among other things, prohibit retaliation against officers that report violations of law or regulation of another officer to a supervisor, as specified, and to require that an officer who fails to intercede be disciplined up to and including in the same manner as the officer who used excessive force. By imposing additional duties on local agencies, this bill will create a state-mandated local program. This bill contains other related provisions and other existing laws.
AB 48 (Gonzalez, Lorena) Law enforcement: use of force
Summary: Existing law authorizes a peace officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance. Existing law requires law enforcement agencies to maintain a policy on the use of force, as specified. Existing law requires the Commission on Peace Officer Standards and Training to implement courses of instruction for the regular and periodic training of law enforcement officers in the use of force.
This bill will prohibit the use of kinetic energy projectiles or chemical agents by any law enforcement agency to disperse any assembly, protest, or demonstration, except in compliance with specified standards set by the bill, and will prohibit their use solely due to a violation of an imposed curfew, verbal threat, or noncompliance with a law enforcement directive. The bill will include in the standards for the use of kinetic energy projectiles and chemical agents to disperse gatherings the requirement that, among other things, those weapons only be used to defend against a threat to life or serious bodily injury to any individual, including a peace officer, or to bring an objectively dangerous and unlawful situation safely and effectively under control. This bill contains other related provisions and other existing laws.
AB 361 (Rivas). Open meetings: state and local agencies: teleconferences.
Summary: This bill, until January 1, 2024, will authorize a local agency to use teleconferencing without complying with the teleconferencing requirements imposed by the Ralph M. Brown Act when a legislative body of a local agency holds a meeting during a declared state of emergency, as that term is defined, when state or local health officials have imposed or recommended measures to promote social distancing, during a proclaimed state of emergency held for the purpose of determining, by majority vote, whether meeting in person would present imminent risks to the health or safety of attendees, and during a proclaimed state of emergency when the legislative body has determined that meeting in person would present imminent risks to the health or safety of attendees, as provided. This bill contains other related provisions and other existing laws.
AB 654 (Reyes) COVID-19: exposure: notification
Summary: Existing law, the California Occupational Safety and Health Act of 1973, authorizes the Division of Occupational Safety and Health to prohibit the performance of an operation or process, or entry into a place of employment when, in its opinion, a place of employment, operation, or process, or any part thereof, exposes workers to the risk of infection with COVID-19, so as to constitute an imminent hazard to employees. Existing law requires that the prohibition be issued in a manner so as not to materially interrupt the performance of critical governmental functions essential to ensuring public health and safety or the delivery of electrical power or water. Existing law requires that these provisions not prevent the entry or use, with the division’s knowledge and permission, for the sole purpose of eliminating the dangerous conditions.
This bill will add the delivery of renewable natural gas to the list of utilities that the division’s prohibitions are not allowed to materially interrupt. This bill contains other related provisions and other existing laws.
AB 1455 (Wicks) Sexual assault by law enforcement officers: actions against public entities: statute of limitations
Summary: Existing law sets the time for commencement of any civil action for recovery of damages suffered as a result of sexual assault, as defined, as the later within 10 years from the date of the last attempted act, or assault with intent to commit an act of sexual assault by the defendant against the plaintiff or within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from the sexual assault.
This bill will exempt a claim arising out of an alleged sexual assault, as defined, by a law enforcement officer if the alleged assault occurred on or after the plaintiff’s 18th birthday and while the officer was employed by a law enforcement agency from all state and local government claim presentation requirements. The bill will, notwithstanding any other law, require the claim to be commenced within the later of either of 10 years after the date of judgment against a law enforcement officer in a criminal case for a crime of sexual assault or a judgment against a law enforcement officer for a different crime if a crime of sexual assault was alleged and the crime for which there was a judgment against a law enforcement officer arose out of the same set of operative facts as the allegation of sexual assault in the present claim or 10 years after the law enforcement officer is no longer employed by the law enforcement agency that employed the officer when the alleged assault occurred. The bill will also, notwithstanding those provisions, revive and authorize to be commenced, a claim seeking to recover damages arising out of a sexual assault by a law enforcement officer, if the alleged sexual assault occurred on or after the plaintiff’s 18th birthday while the officer was employed by a law enforcement agency, and the claim has not been litigated to finality or compromised by an executed written settlement agreement, and would otherwise be barred because of the applicable statute of limitations, any state or local government claim presentation deadline, or any other applicable time limit, if it is filed within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff or within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff. This bill contains other existing laws.
This bill extends the statutes of limitation to bring action against a police officer for sexual assault to ten years past conviction or separation from the department. Extended statutes of limitation make defense of these cases very difficult as personnel change and it is challenging to discover the true facts of the incident.
SB 16 (Skinner) Peace officers: release of records
Summary: This bill will make a sustained finding involving force that is unreasonable or excessive, and any sustained finding that an officer failed to intervene against another officer using unreasonable or excessive force, subject to disclosure. The bill will require records relating to sustained findings of unlawful arrests and unlawful searches to be subject to disclosure.
The bill will also require the disclosure of records relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in conduct involving prejudice or discrimination based on specified protected classes. The bill will make the limitations on delay of disclosure inapplicable until January 1, 2023, for the described records relating to incidents that occurred before January 1, 2022. The bill will require the retention of all complaints and related reports or findings currently in the possession of a department or agency, as specified. The bill will require that records relating to an incident in which an officer resigned before an investigation is completed to also be subject to release.
For purposes of releasing records, the bill will exempt from protection under the lawyer-client privilege, the disclosure of factual information provided by the public entity to its attorney, factual information discovered by any investigation by the public entity’s attorney, or billing records related to the work done by the attorney. The bill will expand the authorization to redact records to preserve the anonymity of victims and whistleblowers. The bill will require records subject to disclosure to be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure, except as specified. By imposing additional duties on local law enforcement agencies, the bill will impose a state-mandated local program. This bill contains other related provisions and other existing laws.
SB 98 (McGuire) Public peace: media access
Summary: Existing law makes every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined, in the discharge or attempt to discharge any duty of the office or employment, when no other punishment is prescribed, guilty of a misdemeanor. Existing law also authorizes specified peace officers to close an area where a menace to the public health or safety is created by a calamity and to close the immediate area surrounding any emergency field command post or other command post activated for the purpose of abating a calamity, riot, or other civil disturbance, as specified. Existing law makes any unauthorized person who willfully and knowingly enters those areas and who remains in the area after receiving notice to evacuate or leave guilty of a misdemeanor. Existing law exempts a duly authorized representative of any news service, newspaper, or radio or television station or network from the provisions prohibiting entry into the closed areas, as specified.
This bill will, if peace officers close the immediate area surrounding any emergency field command post or any other command post, or establish a police line, or rolling closure at a demonstration, march, protest, or rally where individuals are engaged primarily in constitutionally protected activity, as described, require that a duly authorized representative of any news service, online news service, newspaper, or radio or television station or network, as described, be allowed to enter those closed areas and would prohibit a peace officer or other law enforcement officer from intentionally assaulting, interfering with, or obstructing a duly authorized representative who is gathering, receiving, or processing information for communication to the public.
The bill will also prohibit a duly authorized representative who is in a closed area and gathering, receiving, or processing information from being cited for the failure to disperse, a violation of a curfew, or a violation of other, specified law. The bill will require that if a representative is detained by a peace officer or other law enforcement officer, the representative be permitted to contact a supervisory officer immediately for the purpose of challenging the detention. The bill will not impose criminal liability. The bill will state the Legislature’s intention to achieve parity in the access and protections in these circumstances as those established pursuant to a specified law.
SB 447 (Laird) Civil actions: decedent’s cause of action
Summary: This bill will permit damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative or successor in interest if the action or proceeding was granted a specified preference before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. The bill will require a plaintiff who recovers damages for pain, suffering, or disfigurement between specified dates to submit to the Judicial Council a copy of the judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages and a cover sheet containing certain information. The bill will require the Judicial Council to transmit to the Legislature a report detailing this information, as specified.
This bill will permanently allow non-economic damages for pain and suffering to be awarded in survival actions, which could give rise to increased costs and more litigation clogging California courts.
The California State Legislature reconvenes in January. The Authority will update members with further legislative updates throughout the 2022 Legislature calendar year.Print Article
Code enforcement officers serve a vital role in protecting and improving communities throughout California. By some accounts, there are more than 2,000 code enforcement officers in this state alone, not to mention thousands more across the United States.
They are charged with enforcing a wide array of state and local laws found in the municipal codes and county codes of every jurisdiction in California. These range from straightforward yard maintenance issues to extremely dangerous and complex substandard housing and building issues, enforcing laws relating to illegal cannabis, enforcing pandemic-related orders, insect and rodent infestations, and land use and parking enforcement.
The State definition of “code enforcement officer” reflects these broad duties, defining one as:
[A]ny person who is not [a peace officer] and who is employed by any governmental subdivision, public or quasi-public corporation, public agency, public service corporation, any town, city, county, or municipal corporation, whether incorporated or chartered, who has enforcement authority for health, safety, and welfare requirements, whose duties include enforcement of any statute, rule, regulation, or standard, and who is authorized to issue citations, or file formal complaints.
(Penal Code section 829.5.) It also includes certain employees of the State Department of Housing and Community Development.
Adding to these duties, code enforcement officers in California increasingly are being tasked with community quality of life and safety duties that put them at risk. In addition, in many states, with the public shift away from traditional policing, code enforcement officers are asked to fill the gap, and consequently, are dealing with nuisances and other issues that were traditionally in the realm of police departments.
As a result, code enforcement officers face heightened physical threats as well as health risks. By definition, code enforcement officers put themselves in dangerous situations dealing with problem issues such as mold and lead abatement, environmental hazards and discharges, and seeking compliance from hostile violators, some of whom have criminal histories and do not appreciate government agency inspectors on their property or otherwise requiring them to comply with the law.
According to data compiled by the California Association of Code Enforcement Officers (CACEO), based on reports from code enforcement officers between 2015 and 2021, 141 safety incidents involving code enforcement officers were reported. This included 29 incidents of actual attacks, assaults, and being held against one’s will, and 108 incidents involving some form of a threat, stalking, or brandishing a weapon. Unfortunately, the number of such incidents are increasing both in terms of volume and danger.
Nonetheless, despite the increased risk thrust upon code enforcement officers by virtue of their job duties, it is no secret that code enforcement officers in many jurisdictions lack basic protections. By law, code enforcement officers are not peace officers. Non-sworn officers, however, still need reasonable protections to do their jobs. Very few jurisdictions have safety standards specifically applicable to code enforcement officers. This leaves them entirely without safety protocols, training, and tools in some agencies, and in others, are subject to inadequate safety standards applicable to dissimilar jobs like building inspectors, planning staff, and the like.
In California, CACEO, in partnership with Senator Monique Limon, has sought to begin addressing this issue with Senate Bill (SB) 296, which Governor Newsom signed into law on October 7, 2021. The law goes into effect on January 1, 2022. SB 296 received rare unanimous approval from the Legislature, although it took a significant effort to ensure it passed the Appropriations Committees in both legislative chambers.
This new law is simple but effective: every city or county that employs a code enforcement officer must develop safety standards that are specific and appropriate to code enforcement officers and the threats they face in their jurisdiction. Any person who falls within the definition of “code enforcement officer” under State law, regardless of official job title, is covered by SB 296.
In California, with its 482 cities and 57 counties, a one-size-fits-all program would not work: code enforcement officers deal with different issues and face different hazards in each jurisdiction. Furthermore, each employer may have different, but equally effective, approaches to safety standards specific to enforcement officers.
To comply with this law, agencies will have to adopt standards, and in doing so, undergo a two-part process: evaluating in some manner the threats, risks, and hazards facing code enforcement officers in their specific jurisdiction, and second, developing standards “appropriate” for those threats, risks, and hazards. Furthermore, these standards will need to be re-evaluated and updated from time to time as the threats, risks, and hazards to code enforcement officers evolve, as they have tremendously in the last several years. A model minimum safety standards template and information on SB 296 training is available on the CACEO website.
The California JPIA was asked by CACEO to contribute to its board-approved model safety standards. Revisions to CACEO’s existing template may be forthcoming. The California JPIA will work with its members to ensure that SB 296’s requirements are understood so that each agency can put in place appropriate safety standards for its jurisdiction.Print Article
As we discussed in last month’s newsletter, Senate Bill 2 (SB 2) covers a broad range of topics, whose only common-thread is a relationship to law enforcement. In part 1 of our two-part series on SB 2, we discussed the decertification and disqualification of peace officer. In the second part of our two-part series, we will discuss the key amendments to Civil Code § 52.1 contained in SB 2, as well as the amendments to Penal Code § 832.7 that reform the “SB 1421” process.
Civil Code § 52.1 Amendments
The amendments to Civil Code § 52.1 complete a wholesale, decades-long transformation of Section 52.1 from what was initially intended to be a “hate crimes” statute into what is now used as a civil rights statute by plaintiffs suing public entities. The amendments contained in SB 2 do not repeal the immunities of Government Code §§ 821.6, 844.6, and 845.6 for all purposes, but the amendments preclude those immunities from being used to defend against a Civil Code § 52.1 claim, which will have nearly the same impact as if the Legislature had fully repealed those immunities.
- Under Government Code § 821.6, “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Eliminating this immunity in the context of Civil Code § 52.1 claims will allow plaintiffs to sue for allegations that they were prosecuted without a lawful basis.
- Under Government Code § 844.6, “A public entity is not liable for: (1) An injury proximately caused by any prisoner [or] (2) An injury to any prisoner.” This immunity has the effect of precluding plaintiffs from suing a local government for incidents that occurred in a local jail (although the public employee is not immune under this statute). The implementation of SB 2 means that public entities can now be liable directly under Civil Code § 52.1 for incidents occurring in their local jails, such as a use of force or a jail suicide.
- Under Government Code § 845.6, “Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody [unless]… the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.” The amendment to SB 2 eliminates this immunity, which will allow arrestees held at a local jail to pursue Civil Code § 52.1 claims relating to their medical care, without the requirement to establish that their need for medical care was “immediate.”
- Finally, the amendment to SB 2 requires public entities to indemnify all current or former public employees for Civil Code § 52.1 claims “brought under this section against an employee or former employee of a public entity.” This amendment closes a seldom-used loophole, which is found in Government Code § 844.6 and reads in part, “The public entity may but is not required to pay any judgment, compromise or settlement, or may but is not required to indemnify any public employee, in any case where the public entity is immune from liability under this section.” The amendment to SB 2 requires the entity to defend and indemnify a current or former employee where, for example, a Civil Code § 52.1 claim is asserted for an injury to an arrestee at a local jail.
Overall, the amendments to Civil Code § 52.1 will make it easier for plaintiffs to pursue civil rights claims against public entities and their employees. In any of these potential fact patterns – a use of force in the jails, a jail suicide, or a failure to provide medical care to an arrestee – a plaintiff has always had the ability to pursue a federal Section 1983 claim for those events, but the Section 1983 claims required a plaintiff to clear significant hurdles to prevail against a public employee or a public entity. The defense of qualified immunity is available to public employees facing a Section 1983 claim, and a Section 1983 claim against a public entity requires proof that a Constitutional violation was caused by a custom, policy, or practice or a wholesale failure to train its employees; neither bar applies to a Civil Code § 52.1 claim.
“SB 1421” Reform
In 2019, SB 1421 made four categories of law enforcement records disclosable in response to a Public Records Act request. SB 2 revised Penal Code § 832.7 to make four additional categories of law enforcement records disclosable:
- Sustained findings of excessive or unreasonable force (Penal Code § 832.7(b)(1)(A)(iii);
- Sustained findings of failing to intervene against another officer using force that is clearly unreasonable or excessive (Penal Code § 832.7(b)(1)(A)(iv);
- Sustained findings of “prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status” (Penal Code § 832.7(b)(1)(D)); and
- Sustained findings of an unlawful arrest or an unlawful search (Penal Code § 832.7(b)(1)(E)).
SB 2 makes numerous other revisions to the language of Penal Code § 832.7 that was first implemented by SB 1421, but the most significant change relates to the timetable for production of disclosable documents. While the ability to delay disclosure for certain time periods due to pending investigations remains in effect, under Penal Code § 832.7(b)(3), “records subject to disclosure under this subdivision shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.”
The new 45-day window means that a public entity must complete its production within 45 days from the date of a request. For example, if a requester submits a Public Records Act request on January 1 for documents that are no longer exempt from disclosure, the public entity must respond to the request by January 11. Due to the complexity of redacting and producing responsive documents, many public entities have routinely provided written responses indicating that production would occur on a rolling basis. The amendment of SB 2 would require the public entity to complete the production of documents by February 14 under the timetable in this example.
The language of Penal Code § 832.7(b)(2) ensures that the 45-day production timetable will not start until January 1, 2023 for the four categories of newly-disclosable documents. Penal Code § 832.7(b)(2) reads, “Records that are subject to disclosure under clause (iii) or (iv) of subparagraph (A) of paragraph (1), or under subparagraph (D) or (E) of paragraph (1), relating to an incident that occurred before January 1, 2022, shall not be subject to the time limitations in paragraph (8) until January 1, 2023.” The 45-day production timetable, however, will begin on January 1, 2022 for the four categories of documents that were previously-disclosable under the initial language of SB 1421.
I encourage you to make a thorough review of the amendments to Penal Code § 832.7 to ensure that your agency is prepared for the changes that will take effect in 2022.Print Article