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Posts by Carmel & Naccasha

Campaign Contributions to Elected Officials Do Not Create Legal Conflicts of Interest, Reaffirmed

Many are surprised to learn that campaign contributions to local elected officials do not create legal conflicts of interest, which would prohibit the public official from voting on matters involving the campaign contributor.

The issue was revisited in a fairly recent California Court of Appeal decision, All Towing Services LLC v. City of Orange (October 2013) 220 Cal.App, 4th 946. The facts of that case involve a solicitation of proposals for towing services by the City of Orange. The City awarded contracts to several of the tow companies that submitted proposals. However, an unsuccessful proposer sued the City

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C&N Partner Elected to Templeton Chamber Board of Directors

Michael M. McMahon, Partner at Carmel and Naccasha LLP, is one of six newly elected Board members to the Templeton Chamber of Commerce Board of Directors for the 2014-2015 term.

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The Importance of Designating a Third Party Registered Agent

So you’ve formed your corporation or LLC, you’ve got your tax ID, bank account, and business is humming along. Things are going well and so you fill out your first required Statement of Information and write your own name and address in the area for designating the company’s registered agent for service of process – you’re doing everything else, so this should be easy, right? As you likely read in the instructions for the forms, a registered agent is the person designated to receive service of process when a business entity is served with legal papers such as a summons or subpoena. Although the appeal of performing that role for your business may seem like an attractive option, there are several reasons why you should designate a professional to handle those responsibilities. Your business needs to run as smoothly and efficiently as possible and receiving all communications and keeping your corporation or LLC in good standing is crucial.

A physical address in the state of incorporation is required by the California Secretary of State and in most other jurisdictions in the United States. A post office box does not typically meet the requirement, especially when designating an agent for service of process.

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Firm Supports Woods Humane Society Through Special Program

Friends of Woods Humane Society

Carmel & Naccasha LLP is proud to announce its sponsorship of the 2014 Tails Gala and induction as a friend of the Humane Alliance Program. The annual Tails Gala supports the various programs offered at Woods Humane Society, such as the spay/neuter services, animal training, and humane education opportunities.

Jon Ansolabehere, associate at Carmel & Naccasha, currently serves as a board member for the Woods Humane Society.

The Humane Society operates in San Luis Obispo County. More information can be found at their website: http://www.woodshumanesociety.org/.

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Highly Informative Discussion with Second District Court of Appeal Justices

If a case is litigated in San Luis Obispo County Superior Court and goes up on appeal, that appeal will be heard in the Second District Court of Appeal, Division Six, based in Ventura.  The Court hears oral argument on almost all of its cases at its Ventura facility.  However, the Justices sometimes make trips to Santa Barbara and San Luis Obispo to hear oral argument.  Recently, those Justices held a highly informative panel discussion followed by a question and answer session, which was sponsored by the SLO County Bar Association.

Held at the Gardens of Avila, the distinguished panel of speakers assembled to begin the presentation after mingling and talking informally with the county judges and attorneys who were in attendance.  The session was led by Presiding Justice Arthur Gilbert, who was joined by sitting Associate Justices Kenneth Yegan and Steven Perren.  Also participating in the discussion were

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Are Communications of Public Officials on their Private Electronic Devices Subject to the Public Records Act?

On June 25 2014, the California Supreme Court granted review of the decision in City of San Jose v. Superior Court of Santa Clara County (2014) 169 Cal. Rptr. 3d 840. In a case that will be watched closely by California public agencies and officials and employees of such agencies, as well as by advocates of transparency in government, the Supreme Court will determine whether written communications pertaining to City business, including e-mails and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on City servers and (c) are not directly accessible by the City, are “public records” within the meaning of the California Public Records Act.

The California Public Records Act (Gov. Code 6250 et seq.) affords the public the right to inspect and be provided copies of information retained by State and local agencies. The Public Records Act defines public records as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” The Public Records Act regulates the public’s access and includes exemptions for particular records that do not have to be disclosed.

In the City of San Jose case, an individual making a public records request sought to obtain messages sent or received by San Jose public officials (the mayor and 10 council members) and employees on their private electronic devices regarding the City’s downtown redevelopment plans. The City disclosed responsive, nonexempt communications that had been made using City accounts. However, the City did not disclose messages using private accounts, which were not stored on the City’s servers and were not directly accessible by the City. The Requestor brought an action in the Superior Court to require the disclosure of the communications contained on the private accounts. The Superior Court ruled against the City and in favor of the Requestor. The City then filed a Petition for Writ of Mandate or Prohibition in the Court of Appeal.

The Court of Appeal ruled in favor of the City.  The Court held that the City was not required to disclose messages using private accounts, which were not stored on the City’s servers and were not directly accessible by the City because the messages were not Public Records  “prepared, owned, used, or retained” by the City.  The Court of Appeal discussed the privacy interests of the public agency officials and employees and the practical impediments associated with policing private devices and accounts and concluded that any such regulation should be addressed by the Legislature.

The City of San Jose case has been depublished and no longer provides comfort to officials who use their personal electronic devices to communicate about their agencies’ business. Whether the Supreme Court will affirm or reverse is anyone’s guess. It is important to remember, however, that even if the Supreme Court agrees with the Court of Appeal, public agency officials and employees will still have to be cautious when engaging in what they believe to be private correspondence electronically.  Communications made while logged into a public agency network would be subject to the Public Records Act, even under the Court of Appeal’s reasoning. In addition, the public meeting requirements of the Brown Act apply to communications made on private devices. Further, communications made on private devices can be discoverable as part of a civil case or criminal prosecution.

Identifying what is and what is not a public record under the Public Records Act can be tricky. Disclosing a record that is exempt, such as a record covered by the attorney-client privilege, can unnecessarily expose the agency to liability. Conversely, failing to disclose a pubic record can result in legal action against the agency that may include paying the requestor’s attorney’s fees.

Heather Whitham is a partner at Carmel & Naccasha, LLP.  Her practice focuses primarily on representing public agency clients, including  advising on compliance with the Public Records Act. Heather can be reached at hwhitham@carnaclaw.com or 805-546-8785.

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Six Charter Cities Fight to Maintain Their Home Rule Authority

Charter cities are organized under and governed by a charter adopted by local voters rather than the general laws of the State. By way of their local charter, charter cities may adopt their own procedures for matters that are considered “municipal affairs.” Charter cities’ ability to regulate their own municipal affairs is frequently referred to as their “home rule” authority.

One of the advantages of being a charter city is the ability to proscribe their own public bidding requirements for local public works projects. While general law cities must abide by the general laws of the State governing local public works projects, which include requiring contractors to pay prevailing wage, charter cities may follow the procedures set forth in their charter. The California Supreme Court confirmed this in the 2012 case of State Building and Construction Trades Council of California v. City of Vista. In the Vista decision, the Supreme Court ruled in favor of

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Carmel & Naccasha Managing Partner Featured in EVC e-Newsletter

The Economic Vitality Corporation (EVC) is featuring Carmel & Naccasha Managing Partner and Co-Founder Ziyad Naccasha in this month’s edition of their e-Newsletter. The interview is part of a series the EVC is doing on local business leaders who’ve made a positive impact in the local economy.

Naccasha covers topics such as the one lesson he thinks is the most valuable for long-term business success, his personal and professional journey, a preview into some of the most impactful changes to laws governing business formation, and many more.

To see the full interview, click here.

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C&N Attorney Shauna Cunningham to Present at Templeton Chamber Event

Don’t miss an opportunity to hear from C&N attorney Shauna Cunningham on what you need to know about the latest changes in employment law. She’ll be speaking on Friday, April 25, 2014 at a Templeton Chamber of Commerce event.

Sign up here: [Sign up has passed].

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Insights from the Legal Marketing Association Conference

Presentation at the Legal Marketing Association in Florida

Kat Cole, President of Cinnabon, speaking on leadership and driving innovation. “You have to be thoughtful about how you make your business decisions. What changes can you make that are small enough to control but big enough to really make a difference?” Marketing Director Courtney Kienow is attending the Legal Marketing Association Conference in Florida this week.

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