BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Dave Cox, Chair
BILL NO: SB 894 HEARING: 4/19/10
AUTHOR: Committee on Local GovernmentFISCAL: Yes
VERSION: 4/12/10 CONSULTANT: Detwiler
LOCAL GOVERNMENT OMNIBUS ACT OF 2010
Background and Existing Law
Each year, local officials discover problems with the state
statutes that affect counties, cities, special districts,
and redevelopment agencies, as well as the laws on land use
planning and development. These minor problems do not
warrant separate (and expensive) bills. According to the
Legislative Analyst, in 2001-02 the cost of producing a
bill was $17,890.
The Senate Local Government Committee responds by combining
several of these minor topics into an annual "omnibus
bill." For example, the Committee's 2009 omnibus bill was
SB 113 which contained 39 noncontroversial statutory
changes, avoiding about $700,000 in legislative costs.
Although this practice may violate a strict interpretation
of the single-subject and germaneness rules as presented in
Californians for an Open Primary v. McPherson (2006) 38
Cal.4th 735, it is an expeditious and relatively
inexpensive way to respond to multiple requests.
Proposed Law
Senate Bill 894, the "Local Government Omnibus Act of
2010," proposes 20 changes to the state laws affecting
local agencies' powers and duties:
1. Land use mediation law clean-up . Judges can resolve
land use and environmental lawsuits through mediation
(Government Code 66030, et seq., added by SB 517,
Bergeson, 1994). A judge can invite the litigants to use a
mediator to resolve their case before it goes to trial
(Government Code 66031 [d]). Judges can use these
mediation procedures for lawsuits that affect 10 specified
statutes (Government Code 66031 [a]):
Development projects.
California Environmental Quality Act (CEQA)
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decisions.
Time limits in the Permit Streamlining Act or
Subdivision Map Act.
School districts' developer fees.
Developer fees.
The adequacy of general plans or specific plans.
Local agency formation commission (LAFCO)
decisions.
The adoption or amendments of redevelopment plans.
Zoning decisions.
Airport land use decisions.
Although no one keeps track, practitioners say that judges
don't use these mediation procedures very often. The
Committee's staff believes that one reason that judges may
not use the law is that the authority appears only in a
general statutory location and not in each of the affected
laws. The Committee's staff wants the Legislature to
insert a cross-reference to the existing mediation
procedures in each of the affected statutes. Senate Bill
894 inserts the statutory cross-reference to the existing
land use and environmental dispute mediation law in each of
the affected statutes. SB 894 also corrects the references
to the existing laws that describe school districts'
developer fees and the Mitigation Fee Act. The changes in
SB 894 are consistent with current law and do not change
state policies or result in new state-mandated local
programs. See these sections of the bill:
2 School fees (Education Code 17624.5)
18 LAFCO decisions (Government Code 56103.5)
20 General and specific plans (Government Code
65107)
21 Zoning (Government Code 65801)
22 Permit Streamlining Act (Government Code 65920)
23 Mitigation Fee Act (Government Code 66000.5)
24 Mediation law clean-up (Government Code 66031)
25 Subdivision Map Act (Government Code 66499.38)
27 Redevelopment plans (Health & Safety Code
33501.9)
37 CEQA (Public Resources Code 21167.9)
38 Airport land use commissions (Public Utilities
Code 21670.6).
2. Commission on State Mandates reports . The California
Constitution requires the state to reimburse local
governments for the cost of new programs or higher levels
of service mandated by the Legislature or any state agency.
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The Commission on State Mandates is a quasi-judicial body
which decides test claims for reimbursable state-mandates.
If the Commission identifies a state-mandated program, it
adopts parameters and guidelines defining what activities
will be reimbursed, and adopts statewide cost estimates.
The Commission reports to the Legislature semiannually on
the status of state-mandate claims (Government Code
17600). In 2007, the Legislature allowed the State
Department of Finance and local governments to use
alternative processes to resolve claims and parameters and
guidelines for state mandates (AB 1222, Laird, 2007). In
October 2009, the California State Auditor questioned why
public officials weren't using these alternative processes
(Report 2009-501). The State Auditor recommended that the
Commission on State Mandates add additional information in
its semiannual report about the status of these alternative
measures and any delays. The Commission agrees and wants
the Legislature to require this information in the
semiannual reports. Senate Bill 894 requires the
Commission on State Mandates to include more information in
its semiannual reports to the Legislature, specifically
explaining the use of alternative processes and any delays.
[2.5]
3. Fresno and Merced counties' boundaries . The state
statutes recite the official boundary descriptions of all
58 counties (Government Code 23101-23158). State law
also allows counties to adjust their mutual boundaries
(Government Code 23200, et seq.). After counties use this
procedure they ask the Legislature to revise their
statutory boundary descriptions to match the new realities.
For example, Kern and Los Angeles county officials used
this procedure in 2000 when property owners asked to
transfer about 1,000 acres near the Tejon Pass from Los
Angeles County to Kern County. The Legislature then
corrected the counties' statutory boundary descriptions (SB
1326, Senate Local Government Committee, 2002). In 2007,
Fresno and Merced county officials used the same procedures
to shift 4,175 acres from Fresno County to Merced County
near the City of Dos Palos. The county boundary changes
took effect on January 1, 2008 and county officials want
the Legislature to conform their statutory boundary
descriptions (Government Code 23110 & 23124) to match the
new legal reality. Senate Bill 894 amends the statutory
boundary descriptions for Fresno County and Merced County
to conform to the counties' current boundaries. [3 & 4]
SB 894 -- 4/12/10 -- Page 4
4. MACs & CSDs . A municipal advisory council (MAC) is an
appointed or elected body that advises county supervisors
on topics that affect an unincorporated community
(Government Code 31010). State law prohibits public
officials from holding incompatible offices, with
exceptions. One exception is that state law may expressly
authorize holding dual offices (Government Code 1099). In
1991, the Legislature expressly declared that service on a
recreation and park district's board is not incompatible
with service on a MAC (Government Code 31010.5; added by
SB 767, Senate Local Government Committee, 1991). In 2001,
the Legislature revised the state laws that govern park
districts and restated the MAC exception in the Recreation
and Park District Law (Public Resources Code 5784 [d];
added by SB 707, Senate Local Government Committee, 2001).
In 2005, when the Legislature revised the state laws that
govern community services districts (CSDs), it also
declared that service on a CSD board was not incompatible
with serving on a MAC (Government Code 61040 [d]; added by
SB 135, Kehoe, 2005). However, the Legislature failed to
make the parallel change in the MAC law. To avoid
misunderstandings, the Committee's staff wants the
Legislature to add CSDs to the list of special districts'
boards that are not incompatible with serving on a MAC.
Senate Bill 894 adds community services districts to the
statute that declares that service on a municipal advisory
council is not an incompatible office. [5]
5. Gender-specific city council references . All general
law cities have city councils with at least five members
(Government Code 36501 [a]). Although older statutes
still refer to city councilmembers as "councilmen" or
"councilwomen," state law makes it clear that any member of
a city council can be called a "councilmember" (Government
Code 36815; amended by SB 1685, Bergeson, 1986).
Nevertheless, at least 16 older sections in the Government
Code and the Health & Safety Code still use the terms
"councilman" and "councilmen," or use the male pronoun
"his." The Committee's staff wants the Legislature to use
gender-neutral terms in the state laws that refer to city
councilmembers. Senate Bill 894 changes the statutory
references to city "councilman" and "councilmen" to city
"councilmember" and "councilmembers." See these sections
of the bill:
6 Government Code 31479.1
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7 Government Code 34873
8 Government Code 34875
9 Government Code 34900
10 Government Code 34901
11 Government Code 36508
12 Government Code 36511
13 Government Code 36515
14 Government Code 36516.1
15 Government Code 36516.5
16 Government Code 36804
17 Government Code 36811
17.5 Government Code 50271
19 Government Code 65063.7
28 Health & Safety Code 40225
29 Health & Safety Code 40326
6. Health care districts' assets . The Local Health Care
District Law (Health & Safety Code 32000, et seq.) governs
the 80 special districts which own and operate local public
hospitals and clinics. In 1982, the Legislature authorized
health care districts to transfer some of their assets to
nonprofit corporations (Health & Safety Code 32121 [p],
added by SB 2012, Maddy, 1982). In 1992, the Legislature
required health care districts to get majority-voter
approval before transferring 50% or more of their assets to
nonprofit corporations (SB 1771, Russell & Kopp, 1992). In
1998, the Legislature required health care districts to get
majority-voter approval before transferring or leasing 50%
or more of their assets to any corporation at fair market
value. That requirement would have automatically
terminated on January 1, 2001 (Health & Safety Code 32121
[p] & 32126, amended by SB 460, Kelley, 1998). In 2000,
the Legislature extended the sunset date to January 1,
2006, and directed the Legislative Analyst's Office (LAO)
to determine if the requirement should be permanent (SB
1508, Figueroa, 2000). A November 2004 LAO report
concluded that after studying just one transfer from a
district to a for-profit corporation, there was no basis to
recommend a continuation of the requirement for voter
approval. In 2005, the Legislature extended the sunset
date to January 1, 2011 (AB 1131, Torrico, 2005). The
Washington Township Healthcare District wants the
Legislature to make the requirement permanent. Senate Bill
894 makes permanent the requirement that healthcare
districts get majority-voter approval before they transfer
or lease 50% or more of their assets to corporations.
SB 894 -- 4/12/10 -- Page 6
Specifically, SB 894 deletes the sunset clauses in 32121
and 32126, and repeals the outdated versions of 32121 and
32126. [25.1, 25.3, 25.5, 25.7]
7. Redevelopment audit terms . When a redevelopment agency
presents its annual report, including its annual
independent financial audit report, to its underlying city
council or county board of supervisors, the agency must
explain any "major violations" that the auditor found
(Health and Safety 33080.2). In 2003, the Legislature
changed this term to "major audit violation" (Health &
Safety Code 33080.8 [j]; amended by SB 109, Torlakson,
2003), but neglected to change all of the other references.
To avoid confusion, the Committee's staff wants the
Legislature to use the correct term. Senate Bill 894
changes statutory references to "major violations" to
"major audit violations" in the state law that tells
redevelopment agencies what to do with their annual
reports. [26]
8. Redevelopment spending outside project areas . The
Community Redevelopment Law (Health & Safety Code 33000,
et seq.) allows redevelopment officials to pay for public
works projects inside redevelopment project areas (Health &
Safety Code 33445). Before they can pay for public works
that are located outside project areas, officials must make
five findings (Health & Safety Code 33445.1, added by SB
93, Kehoe, 2009). These new requirements took effect on
January 1, 2010, but last year's Kehoe bill grandfathered
public works projects with financing, construction, or
installation underway. Redevelopment officials note,
however, that state law doesn't explain that the
grandfathered projects can still proceed under the former
statute. They want the Legislature to clarify
redevelopment law. Senate Bill 894 clarifies that when
redevelopment officials pay for public works projects that
are located outside a redevelopment project area, but were
underway before the Legislature imposed the new
requirements, they can proceed under the former statutory
requirements. This language is already in SB 1287 (Ducheny,
2010). [26.5]
9. Air pollution control officers' deputies . State law
governs the structure and powers of air pollution control
districts (APCDs) and air quality management districts
(AQMDs) (Health & Safety Code 40000, et seq.). Each
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county's APCD appoints an air pollution control officer
(APCO) who in turn appoints the APCD's personnel (Health &
Safety Code 40750 & 40751). Formally appointed deputies
have general statutory authority to perform their
superiors' powers (Health & Safety Code 7). Citing Rauer
v. Lowe (107 Cal. 229 [1885]), a 1987 Attorney General's
opinion explained that a "government official may not
appoint a deputy without appropriate legal authority" (70
Ops.Cal.Atty.Gen. 250 [1987]). Although many APCOs
designate deputies to carry out delegated duties, there is
no explicit authority to appoint Deputy APCOs for APCDs.
However, state law explicitly allows deputies for the South
Coast AQMD, the Mojave Desert AQMD, the Antelope Valley
AQMD (Health & Safety Code 40481, 41261, & 41351).
County officials want the Legislature to give APCOs the
explicit statutory authority to appoint deputies, subject
to the APCD boards' direction. Senate Bill 894 allows air
pollution control officers to appoint deputies. [29.5]
10. West Nile virus and intergovernmental cooperation .
State law requires an agency that responds to an outbreak
of West Nile virus or other mosquito-borne disease to
either contract with a local mosquito and vector control
agency that has a cooperative agreement with the State
Department of Health Services, or consult directly with the
Department (Health & Safety Code 116183, added by AB 1454,
Canciamilla, 2004). This law would have automatically
terminated on January 1, 2009, but the Legislature extended
the sunset date to January 1, 2011 (SB 1124, Senate Local
Government Committee, 2008). The Mosquito and Vector
Control Association of California wants the Legislature to
extend the sunset date for another year so that legislators
will have more time to consider a permanent statute.
Senate Bill 894 extends the sunset date from January 1,
2011 to January 1, 2012, for the state law that requires
public agencies to work with the State Department of Health
Services during an outbreak of West Nile virus or other
mosquito-borne diseases. [29.7]
11. Publishing water reservoir rules . Public agencies
(counties, cities, special districts) with water reservoirs
that are used for fishing or recreation must publish their
watershed rules and regulations at least once in a general
circulation newspaper in the county where the reservoir is
located (Health & Safety Code 117065). The East Bay
Municipal Utility District (EBMUD) operates seven drinking
SB 894 -- 4/12/10 -- Page 8
water reservoirs, five of which are used for fishing and
recreation; the reservoirs are in five different counties.
Publishing the full text of EBMUD's watershed rules and
regulations costs approximately $20,000 each time the
District changes them, although it's not clear if public
agencies must republish their rules and regulations when
they're amended. Other statutory publishing requirements
allow public officials to print only summaries of their
ordinances when they change (See Public Utilities Code
11910 and Water Code 31027. Also see Public Utilities
Code 11938 and Water Code 31027; as amended by SB 113,
Senate Local Government Committee, 2008). Instead of
publishing the full text of changes to its reservoir rules
and regulations, the East Bay Municipal Utility District
wants the Legislature to allow public agencies to publish
summaries of the changes. Senate Bill 894 allows public
agencies to publish summaries of the changes to their
watershed rules and regulations for reservoirs. [30]
12. County public works contracts and change orders .
State law spells out the competitive bidding procedures
that counties follow when they issue public works contracts
(Public Contract Code 20120, et seq.). The county board
of supervisors must approve changes to these contracts by a
4/5 vote (Public Contract Code 20137), however, the county
supervisors can delegate this authority to the county
engineer or other county officer (Public Contract Code
20142). For a contract worth more than $250,000, the
change order can't be more than $25,000, plus 5% of the
amount over $250,000. In no event can the change order be
more than $150,000 (Public Contract Code 20142 [b]). Los
Angeles County officials note that inflation has eroded the
purchasing power of the $150,000 limit since the
Legislature last raised that amount (AB 683, Morrow, 1997).
The equivalent of $150,000 in 1998 dollars would be
$209,100 in 2009. They want the Legislature to increase
the limit on counties' change orders. Senate Bill 894
raises the limit on change orders for public works
contracts that county supervisors delegate to county
officials from $150,000 to $210,000. [31]
13. County bridge contracts and change orders . State law
spells out the competitive bidding procedures that counties
follow when they issue contracts to build or alter bridges
and subways (Public Contract Code 20400, et seq.). The
county board of supervisors must approve changes to these
SB 894 -- 4/12/10 -- Page 9
contracts by a 4/5 vote (Public Contract Code 20405 [c]).
Los Angeles County officials note that unlike the laws
governing other county public works contracts, this statute
doesn't allow the county supervisors to delegate the
authority to approve change orders to county officials (see
Public Contract Code 20142). Taking individual change
orders to the county board of supervisors is time-consuming
and increases the costs of bridge projects. They want the
Legislature to allow county boards of supervisors to
delegate change orders for bridge and subway construction
contracts, following the same thresholds as change orders
for other county. Senate Bill 894 allows county boards of
supervisors to delegate their authority to approve change
orders on county bridge and subway construction contracts
to county officers:
For contracts of $50,000 or less, the maximum
amount is $5,000.
For contracts worth between $50,000 and $250,000,
the maximum amount is $25,000.
For contracts worth more than $250,000, the maximum
amount is $25,000 plus 5% of the amount over $250,000.
In no event can the change order be more than
$210,000. [32]
14. County waterworks districts' contracts and change
orders . The County Waterworks District Law says that a
county board of supervisors is the ex officio governing
board of a county waterworks district (Water Code 55000,
et seq.). State law spells out the competitive bidding
procedures that county waterworks districts follow when
they issue contracts to build water facilities (Public
Contract Code 20600, et seq.). Los Angeles County
officials note that unlike the laws governing county public
works contracts, this statute doesn't allow the county
supervisors to approve changes to county waterworks
districts' contracts or to delegate the authority to
approve change orders to county officials (Public Contract
Code 20142). They want the Legislature to allow county
boards of supervisors to delegate change orders for
construction contracts, using the same thresholds as change
orders for county construction contracts. Senate Bill 894
allows a county board of supervisors, acting as a county
waterworks district's governing board, to delegate to the
district manager or other district official the authority
to approve change orders on construction contracts:
For contracts of $50,000 or less, the maximum
SB 894 -- 4/12/10 -- Page 10
amount is $5,000.
For contracts worth between $50,000 and $250,000,
the maximum amount is $25,000.
For contracts worth more than $250,000, the maximum
amount is $25,000 plus 5% of the amount over $250,000.
In no event can the change order be more than
$210,000. [33]
15. Redevelopment agencies' design-build cross-reference .
Redevelopment agencies can use the design-build contracting
method until January 1, 2016 (Public Contract Code
20688.6; added by SB 4xx, Cogdill, 2009). In describing
the public works projects to which the language applies,
the statute incorrectly cites Health & Safety Code 33455
instead of 33445. Also, the Legislature created a new
provision for public works projects outside redevelopment
project areas (Health & Safety Code 33445.1, added by SB
93, Kehoe, 2009), but current law doesn't recognize the new
provision. The Committee's staff wants the Legislature to
correct these statutory cross-references. Senate Bill 894
corrects the statutory cross-references in the state law
that allows redevelopment agencies to use the design-build
contracting method. [34]
16. Los Angeles County Flood Control District's contracts
and change orders . The Los Angeles County Flood Control
District Act says that the Los Angeles County Board of
Supervisors is the District's ex officio governing board
(Water Code Appendix 28-1, et seq.). State law spells out
the competitive bidding procedures that the District
follows when they issue contracts to build water facilities
(Public Contract Code 20990, et seq.). Los Angeles County
officials note that unlike the laws governing county public
works contracts, this statute doesn't allow the county
supervisors to approve changes to the District's contracts
or to delegate the authority to approve change orders to
county officials (see Public Contract Code 20142). They
want the Legislature to allow the Los Angeles County Board
of Supervisors to delegate change orders for the District's
construction contracts, using the same thresholds as change
orders for county construction contracts. Senate Bill 894
allows the Los Angeles County Board of Supervisors to
delegate to the Los Angeles County Flood Control District's
chief engineer or other District officer the authority to
approve change orders on construction contracts:
For contracts of $50,000 or less, the maximum
SB 894 -- 4/12/10 -- Page 11
amount is $5,000.
For contracts worth between $50,000 and $250,000,
the maximum amount is $25,000.
For contracts worth more than $250,000, the maximum
amount is $25,000 plus 5% of the amount over $250,000.
In no event can the change order be more than
$210,000. [35]
17. Property tax transfer clarification . Complex state
laws spell out how county officials must allocate property
tax revenues to counties, cities, special districts, and
school districts (Revenue & Taxation Code 95, et seq.).
Local officials can agree among themselves to reallocate
property tax revenues, transferring revenue from one local
agency to one or more other agencies, provided that four
conditions exist (Revenue & Taxation Code 99.02,
originally added by AB 241, McClintock, 1985 and recodified
by AB 3347, Gotch, 1994). The second condition is that the
transfer won't increase the ratio between the transferring
agency's user charges and the revenues that the agency uses
to pay for services. When interpreting this language, a
2006 Attorney General's opinion noted that words were
missing from the description (89 Ops.Cal.Atty.Gen. 14
[05-809]). An attorney who works on local government
topics wants the Legislature to insert the missing words
identified in the Attorney General's opinion. Senate Bill
894 clarifies the state law which permits local agencies to
voluntarily transfer property tax revenues by inserting
language suggested by an Attorney General's opinion, and
using consistent statutory terms. [37.5]
18. Publishing California water districts' regulations .
California water districts can adopt "equitable rules and
regulations" that govern the sale and distribution of water
(Water Code 35423). After they publish these rules and
regulations once a week for two weeks in a general
circulation newspaper, they can enforce the regulations
(Water Code 35424). The Irvine Ranch Water District says
that it costs between $10,000 and $20,000 to publish its
lengthy rules and regulations. Other statutory publishing
requirements allow public officials to print only summaries
of their ordinances when they change (See Public Utilities
Code 11910 and Water Code 31027. Also see Public
Utilities Code 11938 and Water Code 31027, as amended by
SB 113, Senate Local Government Committee, 2009). Instead
of publishing the full text of its amended water rules and
SB 894 -- 4/12/10 -- Page 12
regulations, the Irvine Ranch Water District wants the
Legislature to allow California water districts to publish
summaries. Senate Bill 894 allows California water
districts to publish summaries of the changes to their
water rules and regulations. [38]
19. Reclamation districts' seals . State law recognizes
public agencies' seals as formal signs of executing
documents (Code of Civil Procedure 14, 1930, & 1931).
State law allows many types of special districts to adopt
and alter official seals. For example, community services
districts (Government Code 61060 [i]), mosquito and vector
control districts (Health & Safety Code 2040 [j]), and
county water districts (Water Code 31003) can adopt and
alter seals. A reclamation district must adopt a seal
which contains its number and its county's name (Water Code
50655). All reclamation district documents that require
the board of trustees' approval need the district's seal
(Water Code 50656). The California Central Valley Flood
Control Association says that requiring seals on
reclamation districts' documents is antiquated. Instead,
the Association wants the Legislature to require that a
district trustee or the board secretary sign these
documents. Senate Bill 894 allows rather than requires a
reclamation district to adopt and alter a seal. SB 894
requires reclamation districts' documents that need the
board of trustee's approval to be signed by either a
district trustee or the board's secretary, instead of
requiring the district's seal. [39 & 40]
20. North Delta Water Agency's elections . Formed in 1973
as one of the three successors to the Delta Water Agency,
the North Delta Water Agency operates under its own special
act (Water Code Appendix 115-1, et seq.). The Agency's
voters are landowners within its boundaries and each
landowner gets one vote for every acre owned (Water Code
Appendix 115-1.3 [i] & 115-2.2). The Agency's principal
act says that the board of directors has five members, one
from each of the Agency's divisions. Each board member
must be a property owner or a property owner's legal
representative within the division that the member
represents (Water Code 115-3.2). The Agency's general
manager notes that the statute is unclear about which
voters elect the board members. The Agency wants the
Legislature to clarify that only the voters in a division
elect the board member who represents that division.
SB 894 -- 4/12/10 -- Page 13
Senate Bill 894 clarifies that the North Delta Water
Agency's board members are elected by divisions, elected
only by the voters of each division and not at-large. [41]
21. Legislative declarations . Senate Bill 894 expresses
the Legislature's intent to cut costs by combining several
noncontroversial items relating to local government into a
single bill. [1]
Comment
If it's not consensus, it's not omnibus . SB 894 collects
20 noncontroversial changes to the state laws affecting
local agencies and land use into a single bill. Sending a
bill through the legislative process costs over $18,000.
By avoiding 19 other bills, the Committee's measure avoids
over $300,000 in legislative costs. Although the practice
may violate a strict interpretation of the single-subject
and germaneness rules, the Committee insists on a very
public review of each item. More than 125 public
officials, trade groups, lobbyists, and legislative
staffers see each proposal before it goes into the
Committee's bill. Should any item in SB 894 attract
opposition, the Committee will delete it. In this
transparent process, there is no hidden agenda.
Support and Opposition (4/15/10)
Support : Association of California Water Agencies,
California Redevelopment Association, California Central
Valley Flood Control Association, California Special
Districts Association, California State Association of
Counties, Commission on State Mandates, Counties of Fresno,
Los Angeles, Merced; East Bay Municipal Utility District,
Irvine Ranch Water District, Mosquito and Vector Control
Association of California, Washington Hospital Healthcare
System, Alexandra M. Barnhill.
Opposition : Unknown.