HomeMy WebLinkAbout1991/04/23 Item 25
council Agenda statement
Item: 25
Meeting Date: April 23, 1991
Item Title:
Submitted by:
Bruce M.
Public Release of the Confidential
Reports of the City Attorney regarding
legal risks associated W~'t the enactment
of a trench fee morator'
Boogaard, city Attorney
4/5ths Vote: ( ) Yes (X) No
Report:
Recommendation:
That the City Council defer release of confidential reports of
the city Attorney relating to a trench fee prohibition bearing
meeting dates of January 15, 1991 and March 21, 1991 for a period
of four months unless the city council reconsiders the issue prior
thereto, and in the meantime advise the public that in those
memoranda, the City Attorney has advised the city council that a
prohibition on the ability of a developer to impose fees for
occupancy of main utility trenches involved legal risks for which
the city should be adequately indemnified.
Boards and Commissions Recommendation:
None. None applicable.
Discussion
Backqround:
At the request of Chula vista Cable, on December 11, 1990, the
ci ty Council directed staff to evaluate the city I s ability to
regulate trench access fees that are paid to developers by cable
operators as a condition of gaining access to main utility trenches
in new developments.
The city Attorney prepared a confidential report ("First
Report") to the city council for the meeting of January 15, 1991
recommending that the city council not attempt to regulate such
trench access fees.
A motion was made to "refer the item back to the city
Attorney's office for review of the financial condition of Chula
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vista Cable, indemnities, and to review the legal firm that Chula
vista Cable was proposing to represent the city with a report back
to Council. The motion carried 4-0-1 with Mayor McCandliss
absent. 1
The city Attorney thereafter received and considered the
resume of the legal firm proposed by Chula vista Cable. Chula
vista Cable's attorneys proposed an indemnity which was not
acceptable to the City Attorney's office, and the city Attorney's
office proposed an indemnity which was not acceptable to Chula
vista Cable.
Thereafter, the city Attorney prepared another confidential
report to the City Council for the meeting of March 21, 1991
("Second Report") wherein he reported back with his consideration
of the proposed legal firm and the negotiating position on the two
different indemnities.
At the meeting of March 21, 1991, a motion to place a trench
access fee prohibitory ordinance ("Ordinance A") on first reading
failed on a 2:2 vote.
Thereafter, two of the councilmembers opposing the introduc-
tion of Ordinance A were publicly criticized in a rate increase
notification from Chula vista Cable for causing an increase in a
cable operator's cable rates.
Analysis of Request for Disclosure of Reports
One of the Councilmembers so criticized is requesting public
disclosure of the First and Second Reports prepared by the City
Attorney to offer an explanation of why he cast his vote in the
manner he did.
The primary problem with disclosure of the Reports is that if
this or some future Council enacts the Ordinance, the Reports will
give an opponent to the legislation a variety of legal theories
upon which to attack the ordinance, and will provide some evidence
as to the city's recognition of those litigation risks. Therefore
it is generally considered risky to permit disclosure of such
information if there is a chance that the Ordinance, or a similar
version thereof, will be adopted.
On the other hand, a Councilmember may be called upon to
justify his voting record, and should be permitted to do so on the
basis of the legal advice received from the City Attorney.
1. See Page 3 of Minutes of the city Clerk for the meeting of
January 15, 1991.
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~s "2.
It order to satisfy both purposes, it is recommended that the
council release publicly the following statement:
"The City Attorney recommended against adoption of any
ordinance prohibiting the charging of trench access fees on
the grounds that it presented a legal risk of be overturned,
and that the City may be held liable for damages incurred by
the attempted enactment thereof, a risk for which adequate
indemnity was not offered."
Fiscal Impact:
Indefinable
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