BILL NUMBER: SB 239 CHAPTERED
BILL TEXT
CHAPTER 763
FILED WITH SECRETARY OF STATE OCTOBER 10, 2015
APPROVED BY GOVERNOR OCTOBER 10, 2015
PASSED THE SENATE SEPTEMBER 10, 2015
PASSED THE ASSEMBLY SEPTEMBER 8, 2015
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
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, 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.
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.
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.
SEC. 2.5. 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 boundary
only if it first requests and receives written approval from the
commission.
(b) The commission may authorize a city or district to provide new
or extended services outside its jurisdictional boundary but within
its sphere of influence in anticipation of a later change of
organization.
(c) If consistent with adopted policy, the commission may
authorize a city or district to provide new or extended services
outside its jurisdictional boundary and outside its sphere of
influence to respond to an existing or impending threat to the health
or safety of the public or the residents of the affected territory,
if both of the following requirements are met:
(1) The entity applying for 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, 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 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 requests made pursuant to this section to the
executive officer. The commission or executive officer shall approve,
disapprove, or approve with conditions the extended services. If the
new or extended services are 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) 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) The transfer of nonpotable or nontreated water.
(3) 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 boundary.
(6) A fire protection contract, as defined in subdivision (a) of
Section 56134.
(f) This section applies only to the commission of the county in
which the extension of service is proposed.
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, except those contracts
entered into pursuant to Sections 4143 and 4144 of the Public
Resources Code, 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, except those contracts entered into
pursuant to Sections 4143 and 4144 of the Public Resources Code,
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 1 of the
Government Code) 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.
SEC. 6. 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.