City Council
MEETING DATE: 3/23/2016
TITLE:
Title
Resolution Authorizing the City Attorney to Initiate Code Compliance Litigation and Other Matters
End
FROM:
Eric S. Vail, City Attorney
RECOMMENDATION:
Recommendation
Staff recommends the City Council adopt a Resolution authorizing the City Attorney to initiate Code Compliance litigation and other matters
Body
BACKGROUND:
As the City Council is aware, the mission of the City’s Code Compliance Division is to work toward preventing, discouraging and/or abating certain conditions which endanger the life, limb, health, property, safety or welfare of the general public in a fair, expedient, and cost efficient manner.
The City Attorney’s office is seeking direction on procedures for initiating Code Compliance litigation and other matters in Superior Court, and on the release of Code Compliance legal invoices for the purposes of cost recovery.
DISCUSSION:
The City’s Code Compliance Division currently has over 2,000 open cases on properties throughout the City. These cases range from such minor violations as garbage cans being left out on non-collection days to imminent safety violations such as fire hazards and unsecured vacant properties being accessed by transients.
Code Compliance officers utilize a large range of enforcement tools in order to seek compliance. The vast majority of cases are handled without the need for City Attorney involvement. Only in the most serious and challenging cases are cases referred to the City Attorney.
The majority of the cases referred to the City Attorney are single family homes in dilapidated and dangerous condition in violation of State Housing Law. These homes are often abandoned and vacant. In such cases, the City Attorney often assists Code Compliance staff in obtaining inspection warrants from the Superior Court and preparing specialized notices which are required as a prerequisite to litigation.
When a property owner or responsible party fails to bring serious violations into compliance, the City Attorney may file various actions in the Superior Court. In rare cases this may include criminal misdemeanor charges being filed(1), but more commonly civil litigation is filed seeking either injunctive relief (i.e., an order that the property owner comply) or else the appointment of a health and safety receiver to take control of the property and bring it into compliance (2). In some other cases where an immediate safety hazard exists, the City will obtain an abatement warrant authorizing City staff or contractors to enter the property to physically abate the condition, at the property owner’s expense.
The City Council has the ultimate authority to determine whether and when to initiate any civil litigation. In many cities, the City Attorney is granted the authority to file for inspection warrants, abatement warrants, and other civil litigation when authorized to do so by appropriate staff. This pre-authorization can be beneficial because it allows for an immediate response when necessary and appropriate. For example, if there is an immediate safety hazard that needs to be abated this authority would allow the City Attorney to petition the Superior Court for an abatement warrant or other relief.
In other cities, that authority may be circumscribed or limited to certain cases, or the City Attorney may be required to obtain authority from the City Council on a case-by-case basis.
The proposed resolution would authorize the City Attorney to seek and obtain inspection and abatement warrants, to initiate civil injunction, to obtain temporary restraining orders and preliminary injunctions, and to take other such appropriate measures as are reasonably necessary to assist in achieving compliance on open Code Compliance cases upon approval by the City Manager. The proposed resolution would also require the City Attorney to submit a status report on all Code Compliance cases which it is handling on a monthly basis. The City Attorney would also be required to brief the City Council in closed session as to pending litigation matters at such time as the direction of the Council is required to consider a settlement, the undertaking of a major motion (except for demurrers or motions to strike), or proceeding to trial.
Alternatively, the City Council could require the City Attorney to seek direction in closed session prior to the initiation of any such activity. Or, the City Attorney could be granted the authority to seek inspection and/or abatement warrants, but be required to obtain City Council approval prior to filing any civil litigation beyond that.
Regardless of what method the City Council prefers, the City Attorney intends to endeavor to keep the City Council fully appraised of the status of all Code Compliance cases and all other litigation being handled by the City Attorney’s office.
Separately, the resolution would also authorize the City Attorney’s office to release Code Compliance invoices when necessary and appropriate to seek full cost recovery of Code Compliance attorney’s fees incurred by the City. Normally such invoices are subject to the attorney-client privilege and are not released to anyone.
Pursuant to State Law and the Municipal Code, the City routinely pursues full cost recovery in Code Compliance matters, including not only attorney’s fees but also staff time and expenses and abatement costs, if any. The proposed resolution would allow the City Attorney’s office to release normally privileged legal invoices solely for the purpose of pursuing full cost recovery. If a property owner is going to be asked to pay the City’s expenses, as a matter of due process it is necessary that the owner be given a full accounting of those expenses so that the owner can challenge the amount if they believe it is excessive. The only times the City Attorney would have this authority would be either: (a) to file the invoices with the court (with a copy to the responsible party’s attorney) with a request for an award of attorney’s fees; or (b) to a property owner or other financially responsible party directly in connection with cost recovery efforts.
The proposed resolution would also designate the City Attorney as the City Prosecutor.
Alternatively, the City Council may elect to decide whether to release such invoices on a case-by-case basis.
(1) Code Compliance officers also maintain the authority to issue criminal infraction citations (which are similar to a traffic ticket and are heard in traffic court) without the involvement of the City Attorney’s office.
(2) Health and Safety receivers obtain necessary funds from a super-priority loan issued against the property, and not at City expense. The City normally recovers all its expenses from the receiver.
FISCAL IMPACT:
Any legal services provided would be included under the existing legal services agreement.
ATTACHMENTS:
Resolution