02.01.2016
Immediate Action May Be Required: Is Your Roster Of Public Agencies Statement Of Facts Up To Date?

California Government Code section 53051 requires the Secretary of State to maintain an indexed “Roster of Public Agencies” including the full legal name and mailing address of every public agency in the state and the name and address of each member of the agency’s governing body. Likewise, section 53051 requires each public agency to file with the Secretary of State and the local county clerk a “statement of facts” providing this information, initially within 70 days of the agency’s legal existence, and then within 10 days after any change in the required information. The information must be submitted to the Secretary of State on a prescribed form designated as the Statement of Facts.

Filing the Statement of Facts is more than a pro forma requirement. Failure to file and keep up to date its listing on the Roster of Public Agencies can be costly. An agency that does not have a statement or amended statement on file, or has on file a statement that is “so inaccurate or incomplete that it does not substantially conform to the requirements of section 53051,” may not rely on the protection of the Government Claims Act. Failure of a plaintiff to present a claim to the agency is not a defense to a lawsuit when the agency has not complied with this requirement. (Government Code § 946.4.) Additionally, when an agency’s statement is not on file or is inaccurate, litigants are permitted to effect service of process (i.e., serve a lawsuit) on the agency by mail or through the Secretary of State’s office, either of which will be deemed “personal service.” (Government Code § 960.2.) The Government Claims Act may provide an opportunity for districts to get out of lawsuits at a relatively early point in the litigation and before spending significant money on attorneys’ fees.

The Secretary of State’s form (NPSF-405) was revised in 2015 as an interactive PDF document, and is available on the Secretary of State’s website, here. County clerks are not required to provide a specific form for public agencies to use for this purpose.

Whenever a change occurs to the name or address of a public agency or any member of its governing body, a revised Statement of Facts form should be filed within 10 days. School and community college districts are subject to these requirements and must file updated Statement of Facts forms with the Secretary of State, and with the county clerk for each county in which the district maintains an office, to reflect changes to governing board membership because of elections or appointments. If the district submits its information electronically, a copy of the submission should be retained as a business record to prove compliance, in the event the Secretary of State’s office or the county clerk fails to properly update the Roster of Public Agencies. Similarly, if the district submits the Statement of Facts by mail, proof of mailing and receipt should be retained.

We urge our clients to ensure compliance with this requirement and thus maintain the protection of the claims presentation statutes and the need for personal service in the event of a lawsuit.

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