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Home My WebLink About09.a. Written Legal Update - District Counsel Kent Alm Page 1 of 5 Item 9.a. 1 Central Contra Costa Sanitary District February 15, 2018 TO: HONORABLE BOARD OF DIRECTORS FROM: KENTON L.ALM, DISTRICT COUNSEL SUBJECT: WRITTEN LEGAL UPDATE Attached is a a written legal update from District Counsel Kenton L. Alm. ATTACHMENTS: 1. Written Legal Update February 15, 2018 Regular Board Meeting Agenda Packet- Page 56 of 77 Page 2 of 5 555 12th Street,Suite 1500 Kenton L.Alm Oakland,California 94607 Attorney at Law tel(510)808-2000 Direct Dial:(510)808-2081 fax(510)444-1108 kalm@meyersnave.com www.meyersnave.com meyers nave Central Contra Costa Sanitary District District Counsel Update by Kenton L. Alm February 15, 2018,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 in May of 2017. 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 previous organizations have challenged AB 197, Governor Brown's "anti-spiking" legislation, as interfering with vested rights of current CCCERA members. The status of these cases is described below. Contra Costa County Deputy Sheriff's Association, et al. v. Contra Costa County 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. Al 41913 • Superior Court upheld AB 197 and the unions appealed • An appeal was filed and the District participated in that appeal process • A decision was issued on January 8, 2018 • Review by the Supreme Court is likely and a date for filing a Petition for Review is February 20, 2018 Public Employees Union Local No. 1, 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 ruled in the CCCERA case cited above • Current stay may be extended if the Supreme Court accepts review of the CCCERA appellate decision 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, February 15, 2018 Regular Board Meeting Agenda Packet- Page 57 of 77 Page 3 of 5 District Counsel Update February 15, 2018 Page 2 the Court accepted review of Marin Ass'n. of Public Employees v. Marin County— Employees' Retirement Ass'n., 2 Cal.App.5th 674 (2016), and the Cal Fire case 7 Cal.App.5th 115 (2016), pursuant to AB 197. In December 2016, in Cal Fire Local 2881, 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." The California Supreme Court has accepted the Cal Fire case. The Cal Fire case will likely be heard before the Marin case as the initial briefing has already been submitted. B. Site Cleanup Investigation, Regional Board 13267 Letter and CAOs RS-2014- 0750132 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 • No recent correspondence from RWQCB but investigation and clean-up continues C. Save Lafayette Trees, Michael Dawson, Gina Dawson, and David Kosters v. City of Lafayette and PG&E, Superior Court of Contra Costa County, Case No. N17- 1142 Attorneys for Save Lafayette Trees initiated litigation against Lafayette for taking action to permit PG&E to cut down numerous trees within Lafayette. Attorneys for Save Lafayette Trees requested a tolling agreement from the District due to a portion of the identified trees being on or near District property. A tolling agreement was executed which terminated in December, 2017. No further action on this matter. D. Settle v. Contra Costa Sanitary District, Town of Moraga, Lara's Concrete, Inc., Superior Court of Contra Costa, Case No. C17-01691) The Settle complaint was served on the District in September, 2017 alleging numerous counts against each defendant, including causes of action for inverse condemnation, trespass, nuisance, and dangerous conditions of public property against the District. The apparent dangerous conditions cause of action against the District appears to relate to potential exfiltration of sanitary sewers resulting in pollution and property damage. The damages relate to significant property damage to the residence and property owned by the Settles, occurring during the heavy rain period of February, 2017. The Settles' property is bordered by Scofield Drive at the front and a natural creek and ravine at the rear. The damages, which are publically visible from aerial photographs and Scofield Drive, suggest substantial slope failure at the rear of the residence near the natural creek February 15, 2018 Regular Board Meeting Agenda Packet- Page 58 of 77 Page 4 of 5 District Counsel Update February 15, 2018 Page 3 area. An amended complaint has been filed and answered by the District and the Town of Moraga. Initial discovery is proceeding. No critical event dates have been set. 2. Transactional and General Counsel Advice. During the period of this report, there has been the normal consistent demand for general advice and legal effort on projects, contracts and transactional matters. The presence of attorneys on site for three half-days per week has generally provided for the handling of much of this work. There are, of course, other matters which require additional legal efforts, some of which makes necessary the use of other members of the Firm that are specialists in practice areas such as CEQA. Several of the matters, which have required more effort during this period include: • 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 • BioEnergy RFI and potential P3 project for solids handling • Implementations of San Jose rulings on Public Records Act and mobile devices • ADU program development and rate settings • Responses to Public Record Act requests, including pending projects and Scofield Drive • Finalize agreements on easement issues for Stoneridge HOA • Payment disputes with Superian • Subpoena duces tecum regarding the District's asbestos use in 1990s • Support to Specifications Committee and Purchasing Department • Brown Act update presentation to staff • Review and negotiate contracts for P3 consultants • Potential Board member conflict issues • Mobile Devices policy, staff procedures for PRAs and retention schedules • Support participation in CASA flow and loading study • Labor negotiations In addition to the specific matters noted above, there have been numerous day-to-day activities in support of purchasing, engineering,plant operations and collection system operations. Summary Several Firm members, including Eric Casher, Jen Faught and Sky Woodruff, have become more familiar to staff, and the District's practice and culture are similarly becoming February 15, 2018 Regular Board Meeting Agenda Packet- Page 59 of 77 Page 5 of 5 District Counsel Update February 15, 2018 Page 4 more familiar to these lawyers. Unfortunately, Jen Faught has left the firm to maximize her availability to her young family. However, she has been replaced by a very capable attorney, Thomas Smith. The amount of litigation work for the District by Meyers Nave over this period has picked up a little but was relatively light. A modest upturn in litigation efforts is anticipated. I look forward to being available to supplement the information noted in the update or answer questions as may be appropriate. 2925697.1 February 15, 2018 Regular Board Meeting Agenda Packet- Page 60 of 77