Amended in Assembly September 2, 2015

Amended in Assembly August 31, 2015

Amended in Senate June 1, 2015

Amended in Senate April 23, 2015

Amended in Senate March 23, 2015

Senate Bill No. 239

Introduced by Senator Hertzberg

February 17, 2015

An act to amend Sections 56017.2 and 56133 of, and to add Section 56134 to, the Government Code, relating to local services.

LEGISLATIVE COUNSEL’S DIGEST

SB 239, as amended, Hertzberg. Local services: contracts: fire protection services.

Existing law prescribes generally the powers and duties of the local agency formation commission in each county with respect to the review approval or disapproval of proposals for changes of organization or reorganization of cities and special districts within that county. Existing law permits a city or district to provide extended services, as defined, outside its jurisdictional boundaries only if it first requests and receives written approval from the local agency formation commission in the affected county. Under existing law, the commission may authorize a city or district to provide new or extended services outside both its jurisdictional boundaries and its sphere of influence under specified circumstances.

This bill would, with certain exceptions, permit a public agency to exercise new or extended services outside the public agency’s jurisdictional boundaries pursuant to a fire protection contract, as defined, only if the public agency receives written approval from the local agency formation commission in the affected county. The bill would require that the legislative body of a public agency that is not a state agency adopt a resolution of application and submit the resolution along with a plan for services, as provided, that a proposal by a state agency be initiated by the director of the agency with the approval of the Director of Finance, and that a proposal by a local agency that is currently under contract for the provision of fire protection services be initiated by the local agency and approved by the Director of Finance. The bill would require, prior to adopting the resolution or submitting the proposal, the public agency to enter into a written agreement for the performance of new or extended services pursuant to a fire protection contract with, or provide written notice of a proposed fire protection contract to, each affected public agency and recognized employee organization representing firefighters in the affected area, and to conduct a public hearing on the resolution.

The bill would require the commission to approve or disapprove the proposal as specified. The bill would require the commission to consider, among other things, a comprehensive fiscal analysis prepared by the executive officer in accordance with specified requirements.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

begin insert

This bill would incorporate additional changes to Section 56133 of the Government Code proposed by AB 402 that would become operative if this bill and AB 402 are both enacted and this bill is enacted last.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 56017.2 of the Government Code is
amended to read:

56017.2.  

“Application” means any of the following:

(a) A resolution of application or petition initiating a change of
organization or reorganization with supporting documentation as
required by the commission or executive officer.

(b) A request for a sphere of influence amendment or update
pursuant to Section 56425.

(c) A request by a city or district for commission approval of
an extension of services outside the agency’s jurisdictional
boundaries pursuant to Section 56133.

(d) A request by a public agency for commission approval of
an extension of services outside the agency’s jurisdictional
boundaries pursuant to Section 56134.

SEC. 2.  

Section 56133 of the Government Code is amended
to read:

56133.  

(a) A city or district may provide new or extended
services by contract or agreement outside its jurisdictional
boundaries only if it first requests and receives written approval
from the commission in the affected county.

(b) The commission may authorize a city or district to provide
new or extended services outside its jurisdictional boundaries but
within its sphere of influence in anticipation of a later change of
organization.

(c) The commission may authorize a city or district to provide
new or extended services outside its jurisdictional boundaries and
outside its sphere of influence to respond to an existing or
impending threat to the public health or safety of the residents of
the affected territory if both of the following requirements are met:

(1) The entity applying for the contract approval has provided
the commission with documentation of a threat to the health and
safety of the public or the affected residents.

(2) The commission has notified any alternate service provider,
including any water corporation as defined in Section 241 of the
Public Utilities Code, or sewer system corporation as defined in
Section 230.6 of the Public Utilities Code, that has filed a map and
a statement of its service capabilities with the commission.

(d) The executive officer, within 30 days of receipt of a request
for approval by a city or district of a contract to extend services
outside its jurisdictional boundary, shall determine whether the
request is complete and acceptable for filing or whether the request
is incomplete. If a request is determined not to be complete, the
executive officer shall immediately transmit that determination to
the requester, specifying those parts of the request that are
incomplete and the manner in which they can be made complete.
When the request is deemed complete, the executive officer shall
place the request on the agenda of the next commission meeting
for which adequate notice can be given but not more than 90 days
from the date that the request is deemed complete, unless the
commission has delegated approval of those requests to the
executive officer. The commission or executive officer shall
approve, disapprove, or approve with conditions the contract for
extended services. If the contract is disapproved or approved with
conditions, the applicant may request reconsideration, citing the
reasons for reconsideration.

(e) This section does not apply to any of the following:

(1) Contracts or agreements solely involving two or more public
agencies where the public service to be provided is an alternative
to, or substitute for, public services already being provided by an
existing public service provider and where the level of service to
be provided is consistent with the level of service contemplated
by the existing service provider.

(2) Contracts for the transfer of nonpotable or nontreated water.

(3) Contracts or agreements solely involving the provision of
surplus water to agricultural lands and facilities, including, but not
limited to, incidental residential structures, for projects that serve
conservation purposes or that directly support agricultural
industries. However, prior to extending surplus water service to
any project that will support or induce development, the city or
district shall first request and receive written approval from the
commission in the affected county.

(4) An extended service that a city or district was providing on
or before January 1, 2001.

(5) A local publicly owned electric utility, as defined by Section
9604 of the Public Utilities Code, providing electric services that
do not involve the acquisition, construction, or installation of
electric distribution facilities by the local publicly owned electric
utility, outside of the utility’s jurisdictional boundaries.

(6) A fire protection contract, as defined in subdivision (a) of
Section 56134.

begin insert

begin insert SEC. 2.5. end insert   

end insert

begin insert Section 56133 of the end insert begin insert Government Code end insert begin insert is amended
to read: end insert

56133.  

(a) A city or district may provide new or extended
services by contract or agreement outside its jurisdictional
begin delete boundaries end delete begin insert boundary end insert only if it first requests and receives written
approval from the begin delete commission in the affected county. end delete begin insert commission. end insert

(b) The commission may authorize a city or district to provide
new or extended services outside its jurisdictional begin delete boundaries end delete
begin insert boundary end insert but within its sphere of influence in anticipation of a
later change of organization.

(c)  begin delete The end delete begin insert If consistent with adopted policy, the end insert commission may
authorize a city or district to provide new or extended services
outside its jurisdictional begin delete boundaries end delete begin insert boundary end insert and outside its sphere
of influence to respond to an existing or impending threat to the
begin delete public end delete health or safety of the begin insert public or the end insert residents of the affected
begin delete territory end delete begin insert territory, end insert if both of the following requirements are met:

(1) The entity applying for begin delete the contract end delete approval has provided
the commission with documentation of a threat to the health and
safety of the public or the affected residents.

(2) The commission has notified any alternate service provider,
including any water corporation as defined in Section 241 of the
Public Utilities Code, begin delete or sewer system corporation as defined in
Section 230.6 of the Public Utilities Code, end delete that has filed a map and
a statement of its service capabilities with the commission.

(d) The executive officer, within 30 days of receipt of a request
for approval by a city or district begin delete of a contract end delete to extend services
outside its jurisdictional boundary, shall determine whether the
request is complete and acceptable for filing or whether the request
is incomplete. If a request is determined not to be complete, the
executive officer shall immediately transmit that determination to
the requester, specifying those parts of the request that are
incomplete and the manner in which they can be made complete.
When the request is deemed complete, the executive officer shall
place the request on the agenda of the next commission meeting
for which adequate notice can be given but not more than 90 days
from the date that the request is deemed complete, unless the
commission has delegated approval of begin delete those end delete requests begin delete to end delete begin insert made
pursuant to this section to end insert the executive officer. The commission
or executive officer shall approve, disapprove, or approve with
conditions the begin delete contract for end delete extended services. If the begin delete contract is end delete begin insert new
or extended services are end insert disapproved or approved with conditions,
the applicant may request reconsideration, citing the reasons for
reconsideration.

begin delete

(e) This section does not apply to contracts or agreements solely
involving two or more public agencies where the public service
to be provided is an alternative to, or substitute for, public services
already being provided by an existing public service provider and
where the level of service to be provided is consistent with the
level of service contemplated by the existing service provider. This
section does not apply to contracts for the transfer of nonpotable
or nontreated water. This section does not apply to contracts or
agreements solely involving the

end delete begin insert

(e) This section does not apply to any of the following:

end insert begin insert

(1) Two or more public agencies where the public service to be
provided is an alternative to, or substitute for, public services
already being provided by an existing public service provider and
where the level of service to be provided is consistent with the level
of service contemplated by the existing service provider.

end insert begin insert

(2) The transfer of nonpotable or nontreated water.

end insert

begin insert (3) end insert begin insert   end insert begin insert The end insert provision of surplus water to agricultural lands and
facilities, including, but not limited to, incidental residential
structures, for projects that serve conservation purposes or that
directly support agricultural industries. However, prior to extending
surplus water service to any project that will support or induce
development, the city or district shall first request and receive
written approval from the commission in the affected county. begin delete This
section does not apply to an extended service that a city or district
was providing on or before January 1, 2001. This section does not
apply to a local publicly owned electric utility, as defined by
Section 9604 of the Public Utilities Code, providing electric
services that do not involve the acquisition, construction, or
installation of electric distribution facilities by the local publicly
owned electric utility, outside of the utility’s jurisdictional
boundaries. end delete

begin insert

(4) An extended service that a city or district was providing on
or before January 1, 2001.

end insert begin insert

(5) A local publicly owned electric utility, as defined by Section
9604 of the Public Utilities Code, providing electric services that
do not involve the acquisition, construction, or installation of
electric distribution facilities by the local publicly owned electric
utility, outside of the utility’s jurisdictional boundary.

end insert begin insert

(6) A fire protection contract, as defined in subdivision (a) of
Section 56134.

end insert begin insert

(f) This section applies only to the commission of the county in
which the extension of service is proposed.

end insert

SEC. 3.  

Section 56134 is added to the Government Code, to
read:

56134.  

(a) (1) For the purposes of this section, “fire protection
contract” means a contract or agreement for the exercise of new
or extended fire protection services outside a public agency’s
jurisdictional boundaries, as authorized by Chapter 4 (commencing
with Section 55600) of Part 2 of Division 2 of Title 5 of this code
or by Article 4 (commencing with Section 4141) of Chapter 1 of
Part 2 of Division 4 of the Public Resources Code, begin insert except those
contracts entered into pursuant to Sections 4143 and 4144 of the
Public Resources Code, end insert that does either of the following:

(A) Transfers responsibility for providing services in more than
25 percent of the area within the jurisdictional boundaries of any
public agency affected by the contract or agreement.

(B) Changes the employment status of more than 25 percent of
the employees of any public agency affected by the contract or
agreement.

(2) A contract or agreement for the exercise of new or extended
fire protection services outside a public agency’s jurisdictional
boundaries, as authorized by Chapter 4 (commencing with Section
55600) of Part 2 of Division 2 of Title 5 of this code or Article 4
(commencing with Section 4141) of Chapter 1 of Part 2 of Division
4 of the Public Resources Code, begin insert except those contracts entered
into pursuant to Sections 4143 and 4144 of the Public Resources
Code, end insert that, in combination with other contracts or agreements,
would produce the results described in subparagraph (A) or (B)
of paragraph (1) shall be deemed a fire protection contract for the
purposes of this section.

(3) For the purposes of this section, “jurisdictional boundaries”
shall include the territory or lands protected pursuant to a fire
protection contract entered into on or before December 31, 2015.
An extension of a fire protection contract entered into on or before
December 31, 2015, that would produce the results described in
subparagraph (A) or (B) of paragraph (1) shall be deemed a fire
protection contract for the purposes of this section.

(b) Notwithstanding Section 56133, a public agency may provide
new or extended services pursuant to a fire protection contract
only if it first requests and receives written approval from the
commission in the affected county pursuant to the requirements
of this section.

(c) A request by a public agency for commission approval of
new or extended services provided pursuant to a fire protection
contract shall be made by the adoption of a resolution of application
as follows:

(1) In the case of a public agency that is not a state agency, the
application shall be initiated by the adoption of a resolution of
application by the legislative body of the public agency proposing
to provide new or extended services outside the public agency’s
current service area.

(2) In the case of a public agency that is a state agency, the
application shall be initiated by the director of the state agency
proposing to provide new or extended services outside the agency’s
current service area and be approved by the Director of Finance.

(3) In the case of a public agency that is a local agency currently
under contract with a state agency for the provision of fire
protection services and proposing to provide new or extended
services by the expansion of the existing contract or agreement,
the application shall be initiated by the public agency that is a local
agency and be approved by the Director of Finance.

(d) The legislative body of a public agency or the director of a
state agency shall not submit a resolution of application pursuant
to this section unless both of the following occur:

(1) The public agency does either of the following:

(A) Obtains and submits with the resolution a written agreement
validated and executed by each affected public agency and
recognized employee organization that represents firefighters of
the existing and proposed service providers consenting to the
proposed fire protection contract.

(B) Provides, at least 30 days prior to the hearing held pursuant
to paragraph (2), written notice to each affected public agency and
recognized employee organization that represents firefighters of
the existing and proposed service providers of the proposed fire
protection contract and submits a copy of each written notice with
the resolution of application. The notice shall, at minimum, include
a full copy of the proposed contract.

(2) The public agency conducts an open and public hearing on
the resolution, conducted pursuant to the Ralph M. Brown Act
(Chapter 9 (commencing with Section 54950) of Part 1 of Division
2 of Title 5) or the Bagley-Keene Open Meeting Act (Article 9
(commencing with Section 11120) of Chapter 1 of Part 1 of
Division 3 of Title 2), as applicable.

(e) A resolution of application submitted pursuant to this section
shall be submitted with a plan which shall include all of the
following information:

(1) The total estimated cost to provide the new or extended fire
protection services in the affected territory.

(2) The estimated cost of the new or extended fire protection
services to customers in the affected territory.

(3) An identification of existing service providers, if any, of the
new or extended services proposed to be provided and the potential
fiscal impact to the customers of those existing providers.

(4) A plan for financing the exercise of the new or extended fire
protection services in the affected territory.

(5) Alternatives for the exercise of the new or extended fire
protection services in the affected territory.

(6) An enumeration and description of the new or extended fire
protection services proposed to be extended to the affected territory.

(7) The level and range of new or extended fire protection
services.

(8) An indication of when the new or extended fire protection
services can feasibly be extended to the affected territory.

(9) An indication of any improvements or upgrades to structures,
roads, sewer or water facilities, or other conditions the public
agency would impose or require within the affected territory if the
fire protection contract is completed.

(10) A determination, supported by documentation, that the
proposed fire protection contract meets the criteria established
pursuant to subparagraph (A) or (B) of paragraph (1) or paragraph
(2), as applicable, of subdivision (a).

(f) The applicant shall cause to be prepared by contract an
independent comprehensive fiscal analysis to be submitted with
the application pursuant to this section. The analysis shall review
and document all of the following:

(1) A thorough review of the plan for services submitted by the
public agency pursuant to subdivision (e).

(2) How the costs of the existing service provider compare to
the costs of services provided in service areas with similar
populations and of similar geographic size that provide a similar
level and range of services and make a reasonable determination
of the costs expected to be borne by the public agency providing
new or extended fire protection services.

(3) Any other information and analysis needed to support the
findings required by subdivision (j).

(g) The clerk of the legislative body of a public agency or the
director of a state agency adopting a resolution of application
pursuant to this section shall file a certified copy of the resolution
with the executive officer.

(h) (1) The executive officer, within 30 days of receipt of a
public agency’s request for approval of a fire protection contract,
shall determine whether the request is complete and acceptable
for filing or whether the request is incomplete. If a request does
not comply with the requirements of subdivision (d), the executive
officer shall determine that the request is incomplete. If a request
is determined incomplete, the executive officer shall immediately
transmit that determination to the requester, specifying those parts
of the request that are incomplete and the manner in which they
can be made complete. When the request is deemed complete, the
executive officer shall place the request on the agenda of the next
commission meeting for which adequate notice can be given but
not more than 90 days from the date that the request is deemed
complete.

(2) The commission shall approve, disapprove, or approve with
conditions the contract for new or extended services following the
hearing at the commission meeting, as provided in paragraph (1).
If the contract is disapproved or approved with conditions, the
applicant may request reconsideration, citing the reasons for
reconsideration.

(i) (1) The commission shall not approve an application for
approval of a fire protection contract unless the commission
determines that the public agency will have sufficient revenues to
carry out the exercise of the new or extended fire protection
services outside its current area, except as specified in paragraph
(2).

(2) The commission may approve an application for approval
of a fire protection contract where the commission has determined
that the public agency will not have sufficient revenue to provide
the proposed new or different functions or class of services, if the
commission conditions its approval on the concurrent approval of
sufficient revenue sources pursuant to Section 56886. In approving
a proposal, the commission shall provide that, if the revenue
sources pursuant to Section 56886 are not approved, the authority
of the public agency to provide new or extended fire protection
services shall not be exercised.

(j) The commission shall not approve an application for approval
of a fire protection contract unless the commission determines,
based on the entire record, all of the following:

(1) The proposed exercise of new or extended fire protection
services outside a public agency’s current service area is consistent
with the intent of this division, including, but not limited to, the
policies of Sections 56001 and 56300.

(2) The commission has reviewed the comprehensive fiscal
analysis prepared pursuant to subdivision (f).

(3) The commission has reviewed any testimony presented at
the public hearing.

(4) The proposed affected territory is expected to receive
revenues sufficient to provide public services and facilities and a
reasonable reserve during the three fiscal years following the
effective date of the contract or agreement between the public
agencies to provide the new or extended fire protection services.

(k) At least 21 days prior to the date of the hearing, the executive
officer shall give mailed notice of that hearing to each affected
local agency or affected county, and to any interested party who
has filed a written request for notice with the executive officer. In
addition, at least 21 days prior to the date of that hearing, the
executive officer shall cause notice of the hearing to be published
in accordance with Section 56153 in a newspaper of general
circulation that is circulated within the territory affected by the
proposal proposed to be adopted and shall post the notice of the
hearing on the commission’s Internet Web site.

(l) The commission may continue from time to time any hearing
called pursuant to this section. The commission shall hear and
consider oral or written testimony presented by any affected local
agency, affected county, or any interested person who appears at
any hearing called and held pursuant to this section.

(m) This section shall not be construed to abrogate a public
agency’s obligations under the Meyers-Milias-Brown Act (Chapter
10 (commencing with Section 3500) of Division 4 of Title 1).

SEC. 4.  

The Legislature finds and declares that, with respect
to fire protection contracts subject to this act, the provisions of this
act are not intended to change, alter, or in any way affect either of
the following:

(a) The existing jurisdiction of a local agency formation
commission over proceedings that involve the provision of
prehospital emergency medical services.

(b) Mutual aid agreements, including mutual aid agreements
entered into pursuant to the California Emergency Services Act
(Chapter 7 (commencing with Section 8550)of Division 1 of Title
begin delete 1) end delete begin insert 1 of the Government Code) end insert or the Fire Protection District Law
of 1987 (Part 2.7 (commencing with Section 13800) of Division
12 of the Health and Safety Code).

SEC. 5.  

The Legislature finds and declares that Section 3 of
this act, which adds Section 56134 to the Government Code,
furthers, within the meaning of paragraph (7) of subdivision (b)
of Section 3 of Article I of the California Constitution, the purposes
of that constitutional section as it relates to the right of public
access to the meetings of local public bodies or the writings of
local public officials and local agencies. Pursuant to paragraph (7)
of subdivision (b) of Section 3 of Article I of the California
Constitution, the Legislature makes the following findings:

This act provides for notice to the public in accordance with
existing provisions of the Cortese-Knox-Hertzberg Local
Government Reorganization Act of 2000 and will ensure that the
right of public access to local agency meetings is protected.

begin insert

begin insert SEC. 6. end insert   

end insert begin insert

Section 2.5 of this bill incorporates amendments to
Section 56133 of the Government Code proposed by both this bill
and Assembly Bill 402. It shall only become operative if (1) both
bills are enacted and become effective on or before January 1,
2016, (2) each bill amends Section 56133 of the Government Code,
and (3) this bill is enacted after Assembly Bill 402, in which case
Section 2 of this bill shall not become operative.

end insert