TO:
Honorable Mayor and Members of the City Council
THROUGH:
Mark Danaj, City Manager
FROM:
Quinn M. Barrow, City Attorney
Gregory S. Borboa, Risk Manager
SUBJECT:Title
Petition to File Late Claim for Refund of Underground Utilities, or, Alternatively, Petition for Reconsideration (City Attorney Barrow).
CONSIDER REQUEST AND PROVIDE DIRECTION
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Recommended Action
RECOMMENDATION:
Staff recommends that the City Council consider the request and provide direction.
Body
FISCAL IMPLICATIONS:
There are no fiscal implications unless the Council accepts the petition(s).
BACKGROUND:
In 2006, Brian A. Sweeney offered to contribute $80,000 to pay for underground district engineering costs in connection with proposed Undergrounding District 8. At the City Council meeting on November 21, 2006, the City Council accepted the offer. As reflected in the minutes from that Council meeting, the Council “moved to approve District 8 moving forward to a Proposition 218 vote and to accept the residents’ contribution of $80,000 toward District 8 engineering costs.” The City spent in excess of $80,000 for the pre-Proposition 218 engineering costs. The City Council did not present District 8 to a Proposition 218 vote. According to Mr. Sweeny’s letter, District 8 was dissolved.
On November 15, 2010 Sweeney presented a claim for damages, seeking a refund, on the basis that the “City never put the underground issue to a Prop 218 vote of District 8, as promised when the gift was made for that purpose.”
By letter dated November 16, 2010, the City Attorney returned the claim because, according to the City Attorney at the time, “the claim had not been filed within a year of October 6, 2009, the date that the claim accrued.” The November 16, 2010 letter states, “Your only recourse is to apply, without delay, for leave to present a late claim.”
By letter dated May 9, 2016, Sweeney petitioned to file a late claim for a refund, “or in the alternative, for reconsideration of the rejected claim.”
DISCUSSION:
State Law Governing Late Claims
Sections 911.4 to 912.2, inclusive, and Section 946.6 of the Government Code govern the presentation of late claims against a public entity. Pursuant to Government Code Section 911.6(b), the board of a public entity shall grant the application for leave to present a late claim where one or more of the following is applicable:
1. The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its defense of the claim by the failure to present the claim within the time specified by statute.
2. The person who sustained the alleged injury, damage or loss was a minor during all of the time specified by statute for the presentation of the claim.
3. The person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified by statute for the presentation of the claim and by reason of such disability failed to present a claim during such time.
4. The person who sustained the alleged injury, damage or loss died before the expiration of the time specified by statute for the presentation of the claim.
The application must be presented to the public entity within a reasonable time not to exceed one year after the accrual of the cause of action, although the time within which to file a late claim against a public entity is tolled under certain circumstances.
Application of State Law to Mr. Sweeney’s May 9, 2016 letter requesting a Refund
On November 16, 2010, the City Attorney informed Mr. Sweeney that his claim was late, and that his “only recourse at this time is to apply, without delay, to this office for leave to present a late claim.” If he had applied at that time, the only relevant basis of the four grounds listed above is whether:
“The failure to present the claim was through mistake, inadvertence, surprise or excusable neglect and the public entity was not prejudiced in its defense of the claim by the failure to present the claim within the time specified by statute.”
Mr. Sweeney states, “The reason why the claim was not timely filed is that [he] was pursuing efforts to get the City to reconsider its position.” He does not state that he failed to timely file the claim “through mistake, inadvertence, surprise or excusable neglect.” There has been no analysis as to whether the City would be prejudiced in defending the claim if leave were granted. Mr. Sweeney’s letter does not offer any reason why he did not apply for leave to file a late claim prior to May 9, 2016.
Attachments:
1. May 9, 2016 letter from Brian A. Sweeney
2. November 16, 2010 letter from City Attorney Robert V. Wadden, Jr.
3. November 12, 2010 claim
4. Excerpt from City Council minutes of November 21, 2006 Council meeting