The City of Yucaipa, California recently ran into a tough legal question in its quest to plan for an aging population.  The City passed a zoning ordinance “prohibiting any mobile home park currently operating as senior housing from converting to all-age housing.”  In response to the ordinance, four mobile home park owners sued the City claiming that the law violated the Fair Housing Act and the Fair Housing Act Amendments of 1988 (collectively the “FHAA”).  The City argued that an exemption to the FHAA for senior housing enacted in the Housing for Older Persons Act of 1995 (“HOPA”) permitted the ordinance.

The City successfully defended the ordinance before the federal district court, but the mobile home park owners appealed the decision to the Ninth Circuit Court of Appeals.  The primary question before the Ninth Circuit was whether the senior exemption in the HOPA applied to situations where the City intended to protect senior housing or whether it applied only when the housing provider intended to provide senior housing.  The court concluded that the FHAA, as amended by HOPA, is silent on the issue, but that regulations issued by the Department of Housing and Urban Development permit the intent to be the City’s intent and accordingly upheld the City ordinance.  In the court’s view, “as long as the decision to provide senior housing is intentional, whether that intent belongs to a city or a housing provider is irrelevant.”

The Court specifically stated, however, that its decision was limited to ordinances that applied to existing senior housing and that a different question may be presented if the ordinance required mobile home parks that did not already operate as senior housing to do so.

A copy of the Ninth Circuit’s opinion is available here http://www.ca9.uscourts.gov/datastore/opinions/2012/02/17/10-55563.pdf

In this case, the city placed a police officer on administrative leave for work-related misconduct; almost a year later, the officer retired.  Apparently, some time later the Assistant City Manager made a statement to the press that the officer could have been fired had he not retired.  Shortly thereafter, City Councilor Weldon sought copies of the officer’s personnel file, tort claim notice, severance agreement and related documents.  The City Manager declined to provide the records and, ultimately, the entire City Council voted to deny Councilor Weldon access to the records.  Weldon then sought a writ of mandamus directing the city to provide him access to the records.

There were a number of peripheral procedural issues, including whether the court had jurisdiction (it does) and whether the City should be a party (it should), but on the core question, the court ruled that “individual city councilors have no authority to take actions or make decisions on behalf of the city. *  *  *  The right of the council to oversee the integral details of municipal government exists only in a majority of the council.”  Accordingly, an individual councilor does not have authority to review documents that are protected from disclosure solely by virtue of the person’s position on the city council.

While, as noted, the decision is only binding on the parties, the decision is likely to have statewide implications because of the court’s extensive opinion.  The court surveyed the history of municipal corporations to determine the scope of an individual councilor’s authority vis-a-vis the entire council.  The court’s discussion of the merits begins:  “When settlers from Europe made their way to the American continent . . .”  Clearly, this judge is leaving nothing to chance.  Councilor Weldon argued that he has a fiduciary duty to inspect all records of the municipal corporation in order to determine whether the City Administrator is doing his job.  Surveying over 400 years of U.S. history, the court found no such duty.  Councilor Weldon primarily relied on cases that deal with the rights of minority shareholders in a private corporation, which the court found do not apply to a municipal corporation, for which the corporation’s duties are set out in ORS chapters 221 and 222.

It is important to note that this is not directly a case about public records.  Because the case involved a police officer, the city relied on ORS 181.854 (3) which provides:  “A public body may not disclose information about a personnel investigation of a public safety employee of the public body if the investigation does not result in discipline of the employee.”  Here, the City and the public safety official reached a settlement, the officer resigned and no discipline was ever taken.  Accordingly, the city was prohibited from disclosing the requested information.

 Nonetheless, the court’s reasoning would seem to apply equally to information protected under the public records laws or, for that matter, any time an individual city councilor attempts to direct action by the city or city employee.  The court’s final thought are worth remembering:

 ”Finally, the court must address the underlying concern raised by Mr. Weldon.  He says that without oversight by the City Council, government in Lebanon could run amok.  While there may be truth in that assertion, Mr. Weldon must recognize that his position as an elected city official in the City of Lebanon brings with it the mantle of leadership.  This air of authority cannot be sustained by blind pronouncement or show of authority.  It is sustained by purpose, longsuffering, and by persuasion.  Mr. Weldon may well prevail in this matter if he convinces a majority of the council that his position is correct and that additional oversight is necessary.  Mr. Weldon may convince the City Council to call hearings on these matters in executive session.

“If the City Council disagrees, as they have in the past, Mr. Weldon may call for public hearings.  If the people of City of Lebanon agree with him, they may deliver a majority to him at the ballot box.  If the people disagree with Mr. Weldon, they may deliver disappointment to him at the ballot box as well.”

Local governments are covered by Title II of the ADA.  Title II prohibits refusing to allow a person with a disability to participate in a local government service, program, or activity simply because the person has a disability.  What do these new rules mean for public entities?  All newly constructed or altered facilities or facilities undergoing architectural changes to achieve program accessibility must comply with the new standards linked above.  If elements in existing facilities already comply with corresponding elements in the 1991 Standards or the Uniform Federal Accessibility Standards (UFAS) previously in effect, and those facilities are not being altered, then entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

Other changes to Title II which took effect on March 15, 2011 and which affect local governments include: new ticketing requirements for events at covered facilities, service animal definitions, auxiliary aid requirements, and additional requirements for allowing power-driven mobility devices used by disabled individuals.  More information on these changes can be found here.

The precise language of the Bill is being interpreted in different ways by different groups, but at least one fair reading of the Bill seems to make clear that any employee of an organization or entity which provides child-related services or activities is now a mandatory reporter.   Because the new language doesn’t apply to an “Employee of Department,” but rather uses the phrase “public organization,”   the new law potentially casts a rather wide net.  It could mean that everyone from city planners to secretaries, maintenance folks to city managers, as well as everyone in between, may now be responsible for reporting suspected child abuse.

The League of Oregon Cities is working with the legislature to clarify the language of the Bill, which doesn’t go into effect until 2013.  In the interim our firm is providing legal guidance to cities on the new law and how it affects their employees, in an attempt to help cities navigate what is being heralded as a confusing and sticky piece of legislation.

Stay tuned for more information – we plan a more detailed article in the summer issue of the firm’s newsletter, Gov-law Connection.

 “Notwithstanding Section 704 of the Telecommunications Act of 1996 or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

An “eligible facilities request” is any modification request that “involves” collocation of new transmission equipment, or removal or replacement of existing transmission equipment.  Basic terms in the legislation, including “wireless tower” and “substantially change,” are undefined and will ultimately be defined by the courts or by the Federal Communications Commission (FCC).

 Some in the telecommunications field are predicting that several tower companies will respond aggressively to this new law; some companies may even go so far as to claim that local governments must approve pending collocation applications unless the expansion significantly adds to the height or width of a facility.  However, it is important to note that the new federal law does not prevent a locality from reviewing and making decisions regarding proposed collocation.  There are significant ambiguities in the new law that weaken claims that a locality “must act” on every collocation application.

Having said that, we should not expect interpretation of the new law in the immediate future.  For this reason, cities and counties should do two things in the meantime: (1) review local requirements for facility collocations for consistency with the new “substantial change in physical dimension” standard, and (2) inform elected officials and applicable boards and committees on this law so that any decisions granting or denying collocation are consistent with HR 3630.

Stay tuned for updates regarding interpretation and implementation of this law, as well as any information from the FCC on these changes.

We are very pleased for Nancy and her family and look forward to our continuing relationship with her at her new home base.

What if the subjective process of balancing these competing interests were jettisoned in favor of a simpler, bottom-line approach to mitigating the impacts of development? A recent article in the Economist newspaper asks this question. It is an interesting read and we would love to hear your thoughts on it. Could it be done, and if so, should it? Send us your thoughts in the “Contact Us” form in the bar to the left.

The Oregon Government Ethics Commission (OGEC) will be sending the 2012 SEI form to local government officials who are required to file an SEI in early March.  SEIs are like your taxes – on the forms you must disclose information regarding the previous calendar year. As such, on your 2012 SEI, you will disclose the economic interests you held between January 1, 2011 and December 31, 2011, even if you didn’t hold office during that entire period.

SEIs must be filed with OGEC.  SEIs that are postmarked on or before the due date will be accepted as filed on the due date.  Although not required, you may wish to send the form to OGEC by certified mail because a certified mail receipt will assure that you will not be penalized if your completed form is lost in the mail. In addition, you might wish make a copy of a completed form and retain it for your records in case your form is lost in the mail.

Filers should keep in mind that the requirement to file an SEI is the personal responsibility of the public official.  A public official who fails to timely file an SEI is subject to civil penalties in the amount of $10 for each of the first 14 days after the filing deadline and $50 for each day thereafter until the aggregate penalty reaches the maximum of $5,000.

More information about the SEI filing requirement can be found on pages 38-40 of OGEC’s guide for government officials and in a FAQ prepared by the League of Oregon Cities.