1º ENSEÑANZAS PROFESIONALES

The California Public Records Act is similar to the federal Freedom of Information Act. The purpose of these acts is to give private citizens greater access to government records and information possessed by State government. With some exceptions, the Public Records Act considers all records maintained by most state agencies to be public records, but also recognizes the right to individual privacy. (Government Code §§6250-6270.) Under the Public Records Act, the District must comply with or deny a public records request within ten (10) days of a written request. (Government Code §6253(c).) In unusual circumstances, this time limit may be extended for a period of no more than fourteen (14) days by written notice to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be made. (Government Code §6253(c).) “Unusual circumstances” includes the following:

The need to search for and collect the requested records from offices outside the office processing the request;

The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request;

The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein; and

The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

(Government Code §6253(c).)

1. Record Keeping and Privacy Considerations.

Records received from the employing contractor shall be kept on file in the office or entity that processed the request (for payroll records) for at least six (6) months following completion and acceptance of the project. Thereafter, they may be destroyed unless administrative, judicial or other pending litigation, including arbitration, mediation or other methods of dispute resolution, are in process. Copies on file with the District must not be marked or obliterated, unlike copies released to the public, which must be marked or obliterated prior to releasing them to the public, in the manner prescribed below. (8 CCR §16403(a).)

Districts must make a certified copy of all payroll records available upon request by the public for inspection. However, a request by the public must be made through the District, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. Note that the public cannot be given access to the payroll records at the contractor’s principal office. (Labor Code §1776(b)(3).) Any person may make a request for certified copies of payroll records pursuant to Labor Code §1776. (8 CCR §16400(b).) However, the request must be in writing and contain at a minimum the following information:

a. The District awarding the contract at issue; b. The contract number and/or description;

c. The particular job location if there is more than one; d. The name of the contractor; and

e. The regular business address of the contractor, if known. (8 CCR §16400(b).)

Requests for certified copies of payroll records of more than one contractor or subcontractor must list the information above regarding that contractor or subcontractor individually, even if all requests pertain to the same particular public works project. Blanket requests covering an entire public works project will not be accepted, unless the contractor’s and subcontractor’s responsibilities regarding the project are not clearly defined. (8 CCR §16400(b).)

The District must acknowledge the receipt of such a request and include the cost of providing the payroll records based on either an estimate by the District, the contractor, or subcontractor. (8 CCR §16400(c).) If the District is not already in possession of these records, the District may send a written request to the specific contractor to obtain these records pursuant to 8 CCR §16400(d). By furnishing a copy of the District’s “8 CCR §16400(d) Request” to the person who requested the payroll records, the District satisfies the acknowledgement of receipt requirement discussed above. (8 CCR §16400(c).)

Before the District makes a copy of records available for inspection to the public or to a public agency, the copy of records must be marked or obliterated to prevent the disclosure of an individual's name, address, and social security number. However, all other information, including the name and address of the contractor awarded the contract or the subcontractor performing the contract cannot be redacted or concealed. (Labor Code §1776(b)(3)(e); 8 CCR §16403(b).)

Copies provided to a joint labor management committee established pursuant to the federal Labor Management Cooperation Act of 1978, shall be marked or

obliterated only to prevent disclosure of an individual’s name and social security number. It is recommended that the LCO request proof in writing from the joint labor management committee of its legitimacy prior to honoring the request for information.

A District or LCO should reject any certified payroll requests not in the format set forth in 8 CCR §16400. In the event a request for CPRs follows the correct

format, but requires CPRs from the beginning until the end of the project be sent, such requests should be recognized ONLY for the applicable period at that time (i.e. project started in September and it is now October, only CPRs for September through October, to date, should be sent). Any requests for CPRs beyond that time should be made by a new request from such agency.

In addition to the above, the District shall recover the costs associated with requests for CPRs. The costs, as provided in 8 CCR §16402, are:

a. $1.00 for the first page of the payroll record; b. $.25 for each additional page thereafter, plus; c. $10.00 for handling costs.

For the scenario mentioned above where a request is made by an agency and such request is for six payroll records that are two pages in length the cost would be calculated as follows:

6 X $1.00 = $6.00 (this is for each first page of the payroll record) 6 X $0.25 = $1.50 (this for the remaining pages of the payroll records) $10.00 (for handling costs)

Thus, six payroll records would cost the requesting party $17.50. Payment to the District in the form of cash, check, or certified money order shall be made prior to release of the documents.

2. Regulations For Release of Certified Payroll Records.

A certified copy of all payroll records shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through the District, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement. The public shall not be given access to the records at the principal office of the contractor. (Labor Code §1776(3).) Once again, any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the District shall be marked or obliterated to prevent disclosure of an individual's name, address, and social security number. The name and address of the contractor awarded the contract or the subcontractor performing the contract shall not be marked or obliterated. (Labor Code §1776(e).)

B. Current Legal Issues.

1. Payment of Prevailing Wages at Off-site Locations.

Sansone case.

In O. G. Sansone v. Department of Transportation, 55 Cal.App.3d 434 (1976), the court created a standard for determining whether off-site fabrication is subject to prevailing wage. The Sansone test addresses the principal question of whether a party who is engaged in off-site fabrication is a material supplier, and therefore, exempt from payment of prevailing wages. In Sansone, in order to be regarded as a material supplier, the supplier must meet the following three-part test:

[1] the materialman must be selling supplies to the general public,

[2] the plant must not be established specially for the particular contract, and

[3] the plant must not be located at the site of the work. (55 Cal.App.3d at 442.)

San Diego City Schools.

The Sansone three-part test was applied in San Diego City Schools, Public Works Case No. 99-032 (2000), with respect to the off-site manufacture of portable classrooms. In San Diego City Schools, the District entered into a contract for the construction and delivery of 200 portable classrooms. The portable classrooms were not manufactured in a permanent factory, but rather at a leased site

established solely for the project. After completion of the project, the leased site was closed. Under those facts, the DIR concluded that the contractor did not meet the Sansone test for a material supplier and was therefore subject to payment of prevailing wage.

2. Stayed Helix and Barto Determinations.

The DIR recently modified the longstanding precedent established by Sansone and its progeny discussed above by issuing the Helix and Barto determinations (Offsite Fabrication by Helix Electric, Inc., Public Works Case No. 2002-064 (2003); Cuesta College/Offsite Fabrication of Sheet Metal Work (Barto), Public Works Case No. 2000-027 (2003)).

These two determinations have been stayed, pending appeal. This stay only affects the Helix and Barto determinations and does not affect any other precedential decisions or California case law.

In Helix and Barto, the DIR held that all items specially produced for a public works project were subject to prevailing wage. More specifically, the Helix and

Barto determinations held that:

[P]revailing wages must be paid to the employees of contractors and subcontractors engaged in the off-site fabrication or prefabrication of items specially produced for public work

projects. (Emphasis added.) Helix at 17; Barto at 16.

For the time being, the Helix and Barto determinations are stayed pending appeal, and therefore, should not be relied upon as precedential decisions.

All precedential decisions are listed on the DIR website: http://www.dir.ca.gov/DLSR/PrecedentialDate.htm

APPENDIX

LABOR COMPLIANCE PROGRAMS C.A.S.H. Recommended Practices Handbook