HomeMy WebLinkAboutItem 8.3 BrownActPolitReformAct CTTY
AGENDA STATEHENT
CITY COUNCIL MEETING DATE: February 2003
SUBJECT: Brown Act and Political Reform Act Requirements;
Presentation and Outline (Report prepared by Elizabeth
Pl. Silver, Ci~y Attorney)
ATTACHMENTS: 1. Brown Act and Political Reform Act outline
· ~&~ Receive report.
RECOMMENDATION: /~ , ·
FINANCIAL STATEMENT: None.
DESCRIPTION:
The City Att0mey will give a brief presentation on the requirements of the Brown Act and the Political
Reform Act. The attached outline provides a detailed explanation of the requirements of both taws (along
with some other related laws).
The most important recent change in this area of the law is a statutory clarification of regulations issued
by the Fair Political Practices Commission relating to the requirement that public officials recuse
themselves when they have a conflict of interest. The new law spells out the steps to take if a public
official has a conflict but wishes to make a statement as a member of the public. The new law is
discussed on page 6 [Section 2.D.2 "Recusal'] on the outline (Attachment 1)o
Recommendation:
Staff recommends that the City Council receive the report.
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COPIES TO: ~
, ITEM NO.
riback silver & wilson
law corporation
THE BROWN ACT
and
POLITICAL REFORM ACT
1. Brown Act:
A. General Rule.
Government Code § §4950-54960 is California's open public meeting taw. First enacted in 1953. Essentially
requires that "all meetings of the legislative body of a local agency shall be open and public, and all
persons shall be permitted to attend any meeting of the legislative body of a local agency except as
otherwise provided by this Chapter," §54953(a),
B. Who's Covered?
1} City Council
2) Any standing committee of City; boards and commissions, including the Planning Commission
3) Non-profit corporations created by City to exercise delegated authority
4) Non-profit corporations that receive funding from City and to the board of which the City appoints at least
one member.
C. What is a Meeting?
1) Any congregation of
2) a majority of members
3) of a legislative body (or other entity covered in I(B))
4) at the same time and place
5) to hear, discuss or deliberate
$) on any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it
pertains.
p.age
February 7, 2003 ~
D. Types of Ueetings or "Non.meetings":
1) Individual Contacts: The Act allows individual contacts or conversations between a member of a covered
entity and any other person, including other members of the entity, City staff, and constituents. However,
members of covered entities cannot use this exception to discuss with a majority of members, individual by
individual, a matter that is under the entity's jurisdiction and that the Brown Act would bar them from
discussing at the same time.
2) Conferences: Members of covered entities may attend conferences, but a majority of members must not
discuss among themselves, other than as a part of the scheduled program, specific matters within the
jurisdiction of the entity.
3) Community Meetings: A majodty of members may attend a community meeting to address a topic of local
concern. However, the meeting must have been organized by another agency and the members must not
discuss among themselves, other than as part of the scheduled program, specific matters within the
jurisdiction of the agency.
4) Meetings of Other Bodies A majodty of the members of a covered entity may attend an open and noticed
meeting of another body of the City, as well as an open and noticed meeting of another local agency, with
the same limitations as noted above.
5) Social or Ceremonial Occasions: A majority of members may attend, though with same limitation as
above.
6) Standing Committee Meetings: A majodty of members may attend an open and pubtic meeting of a
standing committee of the body. Those members of the body who are not members of the standing
committee must attend only as observers. No participation.
7) Collective Briefings: Majority of members cannot meet with staff for a collective briefing prior to a public
meeting.
8) Retreats and Workshops: AG has stated that retreats are subject to Act.
9) Serial Meetings: Begin with individual contact but evolve into a meeting subject to the Act.
a. "Daisy Chain:" Member A contacts Member B. Member B contacts Member C. Member C then
contacts Member D and so on until a quordm is reached and collective concurrence is established.
b. "Hub and Spoke:" Staff person telephones members of a covered entity one by one for a decision on
a proposed action, or a chief executive briefs board members prior to a formal meeting, and in the
process, reveals information about the members respective views.
c. Members have the right to confer with other members about local agency business. However, if in
the process a "collective concurrence as to action to be taken" is reached among a majority, the Act has
been violated. Example. Quorum of a city council directed staff by letter on an eminent domain action.
d, Advisory/Informational memoranda from staff to all members are not violations though they may be
public records.
February 7, 2003 Page 2
e. E-Mail as a Serial Meeting: if a member of a covered entity receives an e-mail from another member
regarding an item under consideration, and the member then forwards the e-mail to one or more other
members, such that a majority of the members either receive or reply to the e-mail, a serial meeting
results since the transmission of the member's ideas could result in a majodty of the body reaching a
collective concurrence,
L Can happen when a member selects "reply to ail" on a message sent from staff where that message
contains the deliberation, decision or other content leading to a collective concurrence on the issue.
ii. Not only a violation, but now have an electronic record of the transgression. Note also, e-mails may
be subject to Public Re~rds Act and all communications between Boards and Commission
members to and from constituents, staff or other members of the agency would have to be
disclosed upon request unless exempt.
f. Teleconferencing: May use teleconferencing. Agenda must be posted at ali teleconference
locations. Each location must be identified in the notice and agenda of the meeting and MUST BE
ACCESSBILE TO THE PUBLIC. Also, a quorum of the members must participate from within the
boundaries of the agency's jurisdiction. Note: this precludes participation when in transit, i.e. at an
airport via cell phone.
10) Closed Meetings/Sessions: Authorized for specified subject AND must be listed on agenda. Limited to
certain matters including: 1) real property negotiations where agency is a party; 2) pending litigation when
discussion in open session would prejudice the position of the agency in litigation; 3) threats to the security
of public buildings or to the public's dght of access to services or public facilities; 4) labor negotiations; and
5) personnel matters.
E. Notice of meetirtgs.
To further the Act's mandate that meetings be "open and public,' all covered entities are required to publish/post
notice of meetings and provide copies of a pdnted agenda. Notice of regutar meetings must be posted 72 hours in
advance. Notice of special meetings must be published at least 24 hours ahead of time. The City must mail copies
of the agenda for a meeting to anyone who makes a written request.
F. Content of meetings limited to agendized items.
With a few narrow exceptions, meetings of covered entities are limited to the items listed on the published
agenda. Nevertheless, because the public has the right to speak on matters not listed on the agenda, non-
agendized issues may arise. The members of the body holding the meeting may ask questions and direct staff
to take action, including placing the issue on a future agenda, but may not generally discuss or take action on an
issue raised by a member of the public at the meeting.
G. Penalties for violations.
The Act provides cdminai misdemeanor penalties for attendance by a member of a body at a meeting where
action is taken in violation of the Act, and where the member intends to deprive the pubtic of information to
which the member knows or has reason to know the public is entitled. Participation in deliberations will not result
in cdminal penalties.
Other penalties for violations include injunctive and declaratory relief and the nullification of the decision made
by the body.
February 7, 2003 Page 3
2, Political Reform Act: Conflicts of interest
A. General Rule: No public official at any level of government shall make, participate in making or in any way
attempt to use their official position to influence a governmental decision in which the official knows, or has
reason to know, he or she has a financial interest. Purpose is to ensure officials perform their duties in an
impartial manner, free from bias caused by their own financial interests or the interests of persons who have
supported them.
B. Public Official Defined: Every person who is a member, officer, employee or consultant of the City.
*~) Member: Includes, but is not limited to salaried or unsalaried members of agency boards or commissions
with decision making authority, such as final approval authority, power to compel a decision or power to
make substantive recommendations which are typically approved without significant amendment or
modification.
C. Where is there a Conflict? An official has a conflict of interest when it is reasonably foreseeable that the
decision will have a matedal financial effect, distinguishable from its effect on the public generally, on the official,
a member of his or her immediate family, or on any of their economic interests.
'1) Components of a Conflict of interest: If all five of the following are present, then a conflict exists.
a. Decision involving public official: Covers actually making a decision, participating in the making
of a decision and influencing the decision making.
b. Does the officia~ have a statutorily defined economic interest? Two questions that must be
answered. ~s it a direct or indirect interest and is that interest materially affected?
i. Business investments: any direct or indirect investment of $2,000 or more. Business entity is any
organization that is operated for profit. Indirect investment is defined as investments owned by an
official's spouse or dependent children, including trusts. The financial effects of a governmental
decision on a business that is directly involved in a governmental decision is presumed to be
material. However, when a business is only indirectly involved in a decision, the standards are as
follows: for a Fortune 500 company, a decision will be material if its effect on the business': 1)
gross revenues in a fiscal year is $10 million or more; and 2) expenses increase by $2.5 million or
more; or assets or liabilities change by $'10 million or more. There are similar standards for
investments listed on the New York Stock Exchange, and a separate category for the NASDAQ and
the AMEX. if a public official's only economic interest in a business is an investment interest that is
worth less than $25,000 (e.g., as 100 shares of stock woAh $20,000), then the above materiality
standards for indirect effects, not the "one-penny rule," apply.
ii. Real Property: An official has an interest in real property when the official, spouse or dependent
children have a direct or indirect equity, option or leasehold interest of $2,000 or more in a parcel of
property located in, or within two miles of, the geographical jurisdiction of the official's agency. If a
real property interest is within 500 feet of a proposed governmental decision, the decision is
presumed to have a materiat economic effect on the property, even if it only impacts the value of the
property by one cent (known as the "one-penny rule"), Outside of the 500 foot circle, the effect of
the decision is presumed not to be matedat, but a conflict may still exist if there are "specific
circumstances" indicating a financial effect of the govemmental decision on the properly, such as
effects on development potential of the decision maker's property or the character of the
neighborhood (traffic, views, pdvacy, otc).
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iii. Sources of Income and Gifts: A public officiat has an economic interest in any person from whom
he/she has received income aggregating $500 within 12 months pdor to the time when the relevant
governmental decision is made. Income includes income which has been promised to the public
official but not yet received by him or her, if he or she has a legally enfomeable right to the promised
income. A public official has an economic interest in any donor of, or any intermediary or agent for a
donor of, a gift or gifts aggregating $320 or more in value provided to, received by, or promised to
the public official within 12 months pdor to the time when the decision is made.
c. Is the official making, participating in the making of, or using officia~ position to influence the
making of a governmental decms~on.
i. Participation does not include acts that are solely ministerial, secretarial, manual or clerical.
ii. Official may appear at a hearing or before a public agency to represent his own personal interests
IF he does so in private capacity and if the matter in question reiates ONLY to the official's private
interests and not to his official duties.
d. Is it reasonaifly foreseeable that the decision could materially affect the official's economic
interest?
i. Is it foreseeable? Generally, an official is not required to abstain from participating in a decision
unless the effects of the decision are reasonably foreseeable under the circumstances. Very fact
specific.
ii. Will the decision have a material effect on the interest? Different rules for direct versus indirect
effects. Discussed above in effect section.
e, Is the effect of the decision on the official's interest distinguishable from its effect on the public
generally?. Even if a decision maker has a conflict of interest, they may participate in a governmental
decision if the decision impacts the decision maker in the same way that it impacts the public generally.
In order for this exception to apply, the decision must affect a "significant segment" of the public in
"substantially the same manner" as it will affect the decision maker's interests. The regulations clarify
this exemption by providing a four step roadmap to determine if the "public generally" exception applies.
If the exception applies, there in no conflict. To determine whether the exception applies, follow the
steps below:
i. Step 1 - identify the people or property that are materially affected by the decision.
ii. Step 2 - Determine the applicable "significant segment." The definition is tied to the nature of the
economic interest. If the interest is in real property, the segment must be 10% of the property
owners in the jurisdiction. If the interest is personal income, the segment must be 10% of the
people in the jurisdiction. If the interest is in a business, the segment must be 25% of all
businesses in the jurisdiction, and must include more than a single industry.
iii. Step 3 - Determine if the significant segment is affected by the governmental decision.
iv. Step 4 - Determine if the govemmental decision affects the decision maker in "substantially the
same manner" as it affects the identified significant segment,
February 7, 2003 Page 5
D, Disqualification if Conflict Exists: Once a conflict is found to exist, the decision maker is disqualified from
participating in making the decision. The decision maker may choose whether or not to disclose the disqualifying
interest; the disclosure is not required. An official who'is disqualified from an item On the agenda for a closed
session may not attend the closed session or obtain the materials distributed for the closed session.
1) Rule of Necessity: Legally required participation allows disqualified member to participate in decisions.
a. Must be no other alternative to achieve a quorum.
b, May not be used if other members who do not have a conflict are absent from meeting or when lack of
quorum caused by a vacancy.
c. May not be used to break a tie.
d. MUST disclose financial interest and why no alternate source exists.
e, Re-qualify the minimum number needed by random selection.
2} Recusal
a. Required actions. If a conflict exists and the disqualified member is not required to participate by the
rule of necessity, then the member must recuse himself or herself by taking the following steps:
i, Publicly identify the financial interest that gives rise to the conflict in detail.
ii. Recuse himself or herself from discussing and voting on the matter.
iii, Leave the room until after the discussion, vote and any other disposition of the matter is concluded
(unless placed on the consent calendar).
b, Exceptions. A disqualified member may participate in the discussion of the issue creating the conflict
on a limited basis, but must take one of the following actions:
L Follow the steps outlined above, but additionally state one's intention to speak on the matter as a
member of the general public; leave the room; return to the room during the public participation in
the discussion of the item; leave the room again; and return after the consideration of the item has
concluded.
ii. Follow the steps outlined above, but additionally state both one's intention to speak on the matter as
a member of the general pubtic and that one considers it necessary to hear all information
presented on the item to be able to respond and to express one's views fully; leave the dais and join
the audience; speak during the public participation on the item; and return to the dais after the
consideration of the item has concluded.
E, Limitations on Gifts: May not accepts gifts from a single source totaling more than $320 in a calendar year.
Same for employees of City--if employee is required to report gifts on the statement of economic interests,
1} Gifts Defined: Includes any payment or other benefit that confers a personal benefit for which you do not
provide goods or services equal in value, includes rebates, discounts unless they are made in the regular
course of business to the general public.
February 7, 2003 Page 6
2) Exceptions:
a, Any gift you return unused to the donor or for which you reimburse the donor within 30 days. Cannot
simply "throw it away."
b. Gifts donated (unopened) to a non-profit, tax exempt organization or government, within 30 days and do
not claim as a deduction for tax purposes.
c, Gifts from spouse, children, other family members unless they are acting as an agent or intermediary for
another person who is the true source of the gift.
d. Gifts of hospitality involving food, drink or occasional lodging which you receive in an individual's home
when the individual or a member of his or her family is present.
e. Gifts of equal value exchanged between you and another person on holidays, etc.
f, Informational materials provided to assist you in the performance of your official duties.
g. Tickets to attend fundraisers for campaign committees or other candidates and tickets to fundraisers for
organizations exempt under §501(c)(3).
h. Free admission, refreshments, and similar non.cash nominal benefits given at an event where you gave
a speech, participated in a panel or seminar or other similar service. Transportation within Califomia-
and necessary lodging and subsistence provided directly in connection with the speech, panel, seminar
are likewise not considered gifts.
i. Passes, tickets other types of things that are given to you but not used. Gifts to members of your family
unless you receive direct benefit from the gift or exercise discretion and control over the use or
disposition of the gift.
3) Reportable Gifts NOT subject to Limits: Exceptions to gifts but may be required to report these items and
they can subject an official to disqualification.
a, Certain payments for transportation, lodging and food.
b. Wedding gifts are not subject to gift limits but are reportable. One half the value of each gift is attributed
to each spouse-unless cleady the gift is intended for the benefit of one spouse only.
c. A pdze or award received in a bona fide competition not related to your official status. Must report if
greater than $500.
d. Passes or tickets which provide admission or access to facilities, goods, services or other benefits are
reportable and subject to the gift limit if you use them or give them to another person.
F. How to Obtain Advice: If you think you may have a conflict or are unsure as to whether you should accept a
gift, travel arrangements, etc., contact City Attomey. City Attomey can provide general guidance but only FPPC
can provide immunity.
1) You may also request unofficialadvice from the FPPC by calling 1-866-ASK-FPPC (1-866-275-3772).
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2) FPPC Advice Letter: Only official or his or her authorized representative can seek advice concerning his/her
duties. No third party advice given.
a, Only wdtten advice conveys immunity.
b. All matedal facts must be set out in writing; 21 working days required to respond to request.
c, No advice provided for past conduct.
G. Penalties for Violatior~ of the Political Reform Act:
1) Administrative Fine: $2,000 fine per violation.
2) Civil Remedy: if official derived economic benefit from decision, fine could amount to 3 times the benefit
received.
3) Criminal Sanctions: If the official knowingly or willingly violated the law: misdemeanor conviction, fine of
$t0,000 or 3 times value of benefit conferred (whichever is greater and the official may not be a candidate
for public office for 4 years.
H. Constitutional Prohibition
Constitutional Prohibition on Free Transportation: Article XII, section 7 of the state constitution prohibits
public officials from accepting free passes or discounts from transportation companies (airline, limousine/taxi
service, etc.). Acceptance of such a pass or discount will result in the public official forfeiting his or her office.
However, the following do not constitute an unlawful acceptance of a free pass or discount:
1) Accepting a ticket earned with "frequent-flyer" miles;
2) VVhen the pass or discount is offered to a greater class of individuals; for example, some airlines have a
policy of offedng free upgrade honeymooners. A honeymooning public official would not be prohibited from
accepting the upgrade.
I. Government Code Section 1090
Prohibition on Having Financial Interest in a Contract: Government Code section 1090 prohibits a city
official or officer from entering into a contract, made by them in their official capacity or by the board on which
they serve, in which he or she; ~ financial interest. ,
J. Common Law- Conflict of Interest.
The common law doctrine against conflicts of interest is the judicial expression of the public policy against public
officials using their official positions for private benefit. This doctrine has been primarily applied to require a
public official to abstain from participation in cases where the public official's private financial interest may
conflict with his or her official duties. By virtue of holding public office, an elected official is impliedly bound to
exercise the powers conferred on him or her with disinterested skill,, zeal, and diligence and primarily for the
benefit of the public. An elected official beam a fiduciary duty to exercise the powers of office for the benefit of
the public and is not permitted to use those powers for the benefit of private interest. Violation of the common
taw duty to avoid conflicts of interest can constitute official misconduct and result in a loss of office.
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