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Home My WebLink About08.b.1) Written Legal Update of District Counsel 8 55512 th Street,Suite 1500 Kenton L.Alm Oakland,California 04607 Attorney at Law tel(510)808-2000 Direct Dial:(510)808-2081 fax(510)444-1108 kalm@meyersnave.com www.meyersnave.com meyers Central Contra Costa Sanitary District District Counsel Update by Denton L.Alm May 4,2017,Board Meeting This District Counsel Update briefly summarizes the issues for which legal services have been required during the past several months since the last update to the Board on November 4, 2016. This summary briefly lists litigation matters pending during the period since the last report and several non-litigation issues requiring more than routine legal responses. The matters listed in this update are in addition to the day-to-day responses to staff inquiries, attendance at the weekly onsite office hours, attendance at agenda review and Board committee and formal Board meetings. 1. Litigation and Regulatory Matters. A. The District is a party in two cases in which various unions challenged AB 197, the state "anti-spiking" legislation, as unconstitutional. The status of these cases is described below. Contra Costa,County Depuly Sheriff s Association et al. v. Contra Costa Count Employee's Retirement Association, et al., Contra Costa County Superior Court, Case No. MSN 12-1870; Court of Appeal of the State of California, First Appellate District, Case No. A141913 * Superior Court upheld AB 197 and the unions appealed Case is fully briefed by all parties Awaiting court to schedule oral argument Public Employees Union Local No. 17 et al. v. Contra Costa County Employees' Retirement Ass'n., Contra Costa County Superior Court, Case No. MSN14-1221 * Petitioners' First Cause of Action was denied with prejudice; First Cause of Action dismissed in its entirety with prejudice • Superior Court has stayed the remainder of the action until the Court of Appeal rules in the Contra Costa case cited above While these cases have been pending,the California Supreme Court accepted review of two other cases that may affect the two Contra Costa cases. Last year, the Court accepted review of Marin Assn. of Public Eml2loyees,v. Marin County_ Employees' Retirement Ass'n., 2 Cal.App.Sth 674 (2016). In the Marin case,the Court of Appeal, First Appellate District, Division Two, held that the decision by the Marin County Employees' Retirement Association (MCERA), pursuant to AB 197, to prospectively eliminate pension benefits attributable to "stand by" and District Counsel Update May 4, 2017 Page 2 other time was"reasonable." Contrary to plaintiffs' contentions,the court found that MCERA was not required to offer a "comparable" new benefit to employees. In December 2016, in Cal Fire Local 2581, Division Three of the First Appellate District joined Division Two, and held, as an alternative holding,that the State had the power to eliminate the purchase of"air time" because the modification was "reasonable" and did not require the offer of a"comparable" benefit to employees. The California Supreme Court also accepted the Cal Fire case and it will be heard before the Marin case because the Supreme Court is holding the Marin case until the Court of Appeal decides the Contra Costa.case. B. Site Cleanup Investigation, Re ional Board 13267 Letter and CAOs RS-2014- 07S0132 and RS-2014-0750204 Chevron and Gregory Village served Petitions for Review in December 2014; primary issue raised is failure of Regional Board to name District • Investigation activities continue on schedule by Chevron • Gregory Village Partners investigation has been delayed based on claimed financial inability • Issues regarding potential contribution from District sewer lines continues to be raised by Chevron and Gregory Village • Last correspondence from RWQCB conditionally approved Chevron's June 17, 2016, Revised Groundwater Investigation Work Plan and required Chevron to submit a report of implementation of the Revised Work Plan by October 31, 2016 2. Transactional and General Counsel Advice. During the months since November 4, 2016,there has been a consistent, significant demand for public law general advice and work on other transactional matters. The greater presence of firm members onsite has helped to provide for the routine handling of much of this Work. As would be anticipated, there were other matters, which require greater commitments of legal effort or commenced the use of other members of our firm which are specialists in practice areas such as CEQA. Several of the matters, which have required more than routine passing effort, including legal support for: • Alamo Stonegate development access easement dispute • Capital Improvement Master Plan, including workshops, detailed CEQA review and budget implications • CASA Legislative Committee and assistance on District's Legislative efforts • Diablo Country Club (DCC) including CEQA issues and interfacing with DCC legal advisors • Furnace air testing RFP, BioEnergy RFI and potential gasification project approaches • Moraga, St. Mary's and Miner Road sinkhole/storm water damage issues District Counsel Update May 4, 2017 Page 3 • New Chevron pipeline easement proposal • Purchasing issues including continued implementation of new prevailing wage rules • Renewal ofNPDES permit and evaluation of case law on "permit shield" • Right-of-way acquisition • San Jose ruling on Public Records Act relating to mobile devices • Sewer service charge development-and rate setting • SunPower bankruptcy and assignment of solar contracts • Upcoming labor negotiations • Use of alternative procurement methods, such as design build, sole source, energy conservation contracts, P3 alternatives In addition to the specific matters noted above, there have been numerous day-to-day activities in support of engineering,plant operations and collection system operations. Right-of- way acquisition and other real property matters remain somewhat prevalent, as are construction and bidding related matters. Summary As noted previously,the increased onsite presence of Meyers Dave attorneys through attendance at office hours, and taping over responsibility for certain legal issues, appears to be beneficial to both District staff and the Firm. Several Firm members, including Eric Casher, Jen Faught and Sky woodruff, are becoming more familiar to staff, and the District's practice and culture are similarly becoming more familiar to these lawyers. Significant assistance has also been provided by Tim Cremin of our firm who is a CEQA specialist. The amount of litigation work for the District over the recent period has been minimal, which of course is positive. Litigation is by its nature cyclical, and often not predictable, but there are no pending matters, which are expected to result in active litigation in the immediate future. I look forward to being available to supplement the information noted in the update or answer questions as may be appropriate. 2808441.1