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Item 11c - Establishing Attorney Fees Recovery Provision

Arcadia City Council
August 16, 2022

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Item 11c - Establishing Attorney Fees Recovery Provision
Meeting
August 16, 2022
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Arcadia City Council
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DATE: August 16, 2022

TO: Honorable Mayor and City Council

FROM: Dominic Lazzaretto, City Manager
By: Dr. Jennifer Brutus, Senior Management Analyst

SUBJECT: ORDINANCE NO. 2393 AMENDING THE ARCADIA MUNICIPAL CODE BY ADDING PART 10 TO CHAPTER 6 OF ARTICLE II (“THE
ADMINISTRATION CODE”) TO ESTABLISH AN ATTORNEY FEES

RECOVERY PROVISION FOR PREVAILING LITIGATION RELATED TO

ALL LOCAL TAX COLLECTION MATTERS WITH AN EXEMPTION FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
Recommendation: Adopt

SUMMARY
At the July 19, 2022, Regular Meeting, the City Council unanimously introduced Ordinance No. 2393 amending the Arcadia Municipal Code by adding Part 10 to Chapter 6 of Article II (“The Administration Code”) to establish an attorney fees recovery provision for prevailing litigation related to all local tax collection matters with an exemption from the California Environmental Quality Act (“CEQA”). This agenda item would provide for the second reading and adoption of the Ordinance. The July 19, 2022, City Council Staff Report and proposed Ordinance No. 2393 are attached to this report for review.

RECOMMENDATION
It is recommended that the City Council adopt Ordinance No. 2393 amending the Arcadia Municipal Code by adding Part 10 to Chapter 6 of Article II (“The Administration Code”) to establish an attorney fees recovery provision for prevailing litigation related to all local tax collection matters with an exemption from the California Environmental Quality Act (“CEQA”).

Attachments: Ordinance No. 2393
July 19, 2022, City Council Staff Report

DATE: July 19, 2022

TO: Honorable Mayor and City Council

FROM: Dominic Lazzaretto, City Manager
By: Dr. Jennifer Brutus, Senior Management Analyst
Chile Gomez, Administrative Intern

SUBJECT: ORDINANCE NO. 2 393 AMENDING THE A RCADIA MUNICIPAL CODE BY ADDING PART 10 TO CHA PTER 6 OF ARTICLE II (“T HE
ADMINISTRATION CODE”) TO ESTABLISH AN ATTORNEY FEES

RECOVERY PROVISION FOR PREVAILING LITIGATION RELATED TO

ALL LOCAL TAX COLLECTION MATTERS WITH AN EXEMPTION
FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
Recommendation: Introduce

SUMMARY

In 2021, the C ity of Arcadia was a prevailing party in litigation with Southern California Edison Corporation (“SCE”) due to SCE ’s under collection of Utility Users Tax (“UUT”), resulting in lost UUT revenue for the City. The City is entitled t o penalties as a result of a tax operator’s improper assessment of UUT, but not attorney fees as no section of the Arcadia Mun icipal Code explicitly calls for this type of restitutio n. I f the City were to become involved in future litigation with any another local tax collector, it is in the best interest of the City to be able to recover its attorney fees. Therefore, it is recommended that City Counc il introduce Ordinance No. 2393 (Attachment No. 1) updating the City Code to establish an attorney fees recovery provision for all tax collection matters, including but not limited to current local taxes established by ordinance such as UUT and Transit Occupancy Tax (“TOT”), and any future local taxes established b y ordinance hereinafter approved by the voters of the City.

BACKGROUND

The City has been party to on going litigation with Southern California Edison, in which the City is o ne of many c ities (the SCE Coal ition Clients) being represented in a case involving SCE’s under collection of UUT, which resulted in a loss of revenue for the City.

The appellate court r uled in f avor of the SCE Coalition Clients and direct ed that SCE start to collect the tax properly.

Ordinance No. 2393 - Attorney Fees Recovery Provision for Tax Matters July 19, 2022

Page 2 of 3 ends

According to the Arcadia Municipal Code, the City is entitled to penalties and interest as a result o f the improper assessment of UUT and simple negligence ( in the amount of 15%). However, the City Code is silent on whether the City is also entitled to recovery of attorney fees in a legal matter such as this.

Of all the SCE Coalition Cities, 67% , or 27 cities , have an attorney fee s recovery provision in their Municipal Codes. Therefore, it is in the best interest of the City, when it is a prevailing party in any action, to be entitled to recover its attorney fees.

DISCUSSION

If the City were to become involved in similar future litigation with any local tax collector, it is in the best interest of the City to be reimbursed its attorney fees. Thus, the City Code should be amended to add an attorney fees recovery p rovision for all tax collection matters, including but not limited to current taxes established by or dinance such as UUT, TOT, or any future local taxes imposed by the voters of the City.

As a result of this amendment, the C ity will be entitled to recover reasonable attorney’s fees when determined to be the prevailing party in any action or proceeding involving tax matters. Under the new sections, any action to collect by a prevailing party shall not exceed the amount of the City ’s actual attor ney fees incurred in the action or proceeding; and the City must also elec t, at the initiation of the action or pr oceeding, to seek recovery of its own attorney's fees.

It should be noted that the City Code already includes language for recovery of attorney fees in matters related to public nuisances or code enforcement cases. Ordinance No. 2393 will serve as a catch -all attorney fees recovery provision for actions by the City to collect taxes.

ENVIRONMENTAL ANALYSIS

The proposed action does not constit ute a project under the California Environmental Quality Act (“CEQA”), and it can be seen with certainty that it will have no impact on the environment. Thus, this matter is exempt under CEQA under Sections 15060(c)(2) a nd 15060(c)(3) of the CEQA Guidelines.

FISCAL IMPACT

As a result of adopting Ord inance No. 2393, the City will help increase cost recovery in prevailing litiga tion related to tax collection matters involving current and future local taxes by ordinance.

Ordinance No. 2393 - Attorney Fees Recovery Provision for Tax Matters July 19, 2022

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RECOMMENDATION
It is recommended that the City Council introduce Ordinance No. 2393 to amend the Arcadia Municipal Code by adding Part 10 to Chapter 6 of Ar ticle II (“The Administration Code”) to establish an attorney fees recovery provision for prevailing litigation related to all loca l tax collection matters with an exemption from the California Environmental Quality Act (“CEQA”).

Attachment No. 1: Ordinance No. 2393

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