Open Letter to Chief Williams, Oxnard Police Dept.(info@oxnardpd.org) and Chief Corney, Ventura Police Dept. (lperry@vpd.org, 911@vpd.org)

Dear Chief Williams and Chief Corney,

I’m writing you about the Red LIght Camera Programs currently in place in your cities. My concern is that both of these programs are illegal within the meaning of California Vehicle Code 21455.5 as they both are “Cost Neutral.” Such contracts have been found to be illegal in several courts. In fact, the “fixed fee” language found in them are attempts to get around the statutory language prohibiting them.

The “fixed fee” language in both contracts is contradicted by the “cost neutrality” clauses in the same contracts which guarantee that the cities will never pay more than the revenue generated in a given time period. In other words, what is termed “fixed fee” is really more properly “maximum fee” or “maximum contingency fee.” For example, if no revenue is generated in a given month, no money will be paid to Redflex, the private contractor providing cameras and services, in that month. Instead, the “fixed fee” deficit amount rolls over to the next month as an amount owing. The amount of money Redflex is paid is directly dependent on the amount of money collected up to a maximum amount. There is nothing “fixed” about the fee since it can vary depending on the amount of revenue generated. The use of this confusing language in the contract might best be called “linguistic gymnastics” and the clear purpose is to violate the intent of the Legislature.

CVC 21455.5(h) (1) provides “A contract between a governmental agency [such as the City of Ventura or the City of Oxnard] and a manufacturer or supplier of automated traffic enforcement equipment shall not include provision for the payment or compensation to the manufacturer or supplier based on the number of citations generated, or as a percentage of the revenue generated, as a result of the use of the equipment authorized under this section.”

A couple of things should be noted regarding the Legislative Intent of this provision. First, when the language was originally enacted, there was significant concern among the legislators and the general public about the idea that a corporation (such as Redflex) would involve itself in the Justice System with a profit motive where the profit realized would be directly related to the revenue generated.Second, in the most recent legislative change, the language was changed from “may not” to “shall not.” While these phrases are both imperatives, this change adds emphasis to the prohibition.

While it can be argued that the cost neutral contracts do not violate the specific wording of the statute, they definitely frustrate its Legislative Intent. This is why a number of cities have either modified their contracts to remove the cost neutral language or they have eliminated the programs altogether. On the question of Legislative Intent, as noted above, several courts have found these sorts of contracts illegal. When a statute is ambiguous (either unclear in its actual language or as here, not specifically addressing a specific contract provision) a court’s task is to give the statute the intended meaning.

The Legislative Intent embodied in the “number of citations” and “percentage of the revenue generated” phrases covers any incentivized contract where a contractor is given a motive to participate improperly in the administration of justice. This could include transmitting evidence where there clearly was not a violation, falsifying or fabricating evidence, etc. (As you may know, Redflex is being investigated in more than a dozen states, including California, regarding bribery and improper payments and gifts to government officials.) Neither the Legislature nor the General Public are comfortable with the idea of a profit motivated corporation being involved in the Justice System while having no duty to uphold the law, such as a public official or police officer does.

One case in particular that relates to this issue is California v. Evelyn McGee. What this case says is that when a statute contains enabling provisions such as the cost neutral prohibition here, and the government violates it, that violation is a bar to prosecution and any sanction against a defendant cannot be upheld. Similarly, the recently decided Gray case, which echoed the earlier McGee case, indicates that the enabling provisions of CVC 21455.5 are mandatory provisions that must be complied with. Similarly, California v. Gray held that a Defendant could raise the failure to abide by enabling provisions as a defense, assuming those provisions were intended to protect that group of persons to which the Defendant belongs.. Hopefully, defendants will start doing this  in Ventura County and the violations will be dismissed.

Additionally, it’s possible that a Class Action Lawsuit will be filed in the future that will require refunds to thousands of motorists. This could be a substantial financial liability. But, the bigger question is whether your Agency should participate in a program that is operating contrary to State Law. My suggestion is that either the contracts should be amended to comply with State Law or the programs should be discontinued. And, in view of your responsibility to follow and enforce the law, I believe one of these two things should be done immediately.

Sincerely,

__________________________ _________________

Don Hiebert Date

Oxnard, CA

donzoh1@gmail.com

cc: Editor, Ventura County Star (jmoore@vcstar.com), Judge Brian Back, Presiding Judge, Ventura County Superior Court (800 S. Victoria Ave., Ventura, CA 93009)