HomeMy WebLinkAbout04.a. Transportation, Gifts of Public Funds, Form 700, Competitive Bidding (Handout)yQ.
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TRANSPORTATION, GIFTS
OF PUBLIC FUNDS, FORM
700, COMPETITIVE BIDDING
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TRANSPORTATION BY TRANSPORTATION COMPANIES
In the United States, the railroads were one of the essential keys to the opening of the great
Western Frontier in the middle of the nineteenth century. Their effectiveness at opening this frontier was
not however, without a cost. The state of California's early history was heavy with the influence railroads
and their owners had over the course of commerce and growth in this state. Accordingly, California has
long had a ban focused on the corruptive influences of gifts of free transportation by railroads and other
transportation companies to legislators and other public officials.
In modern times, it might have been thought that Californians had long forgotten this past as well
as the concerns of undue influence by the transportation sector upon their elected officials. Yet in 1970, a
proposal to repeal this ban as a provision from the Constitution was defeated by the electorate.
Constitutional Prohibition against accepting Transportation Passes or Discounts
The California Constitution prohibits public officers from accepting passes or discounts from
transportation companies. The ban is currently contained in article XII, section 7:
A transportation company may not grant free passes or
discounts to anyone holding an office in this State; and the
acceptance of a pass or discount by a public officer, other than a
Public Utilities Commissioner, shall work a forfeiture of that
office. A Public Utilities Commissioner may not hold an official
relation to nor have a financial interest in a person or corporation
subject to regulation by the commission.
What are the Elements of the Ban?
• Basically, this ban is violated when a transportation company makes a gift of transportation
or discounts the price of transportation to a public officer.
• The ban applies to public officers, both elected and non - elected but does not apply to
employees.
• The ban applies to interstate and foreign carriers, as well as domestic carriers, and to
transportation received outside of California.
• The ban applies regardless of whether the pass or discount was provided in connection
with personal or public business.
• Violation of the ban is punishable by forfeiture of office.
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Gifts and Discounts from a Transportation Company
The constitutional prohibition applies only to gifts made by transportation companies. An airline ticket or rail
pass provided by the airline or railroad to officers would be covered by the ban. The ban does not apply
when a ticket or pass is donated to a charity for a door prize and an officer wins the prize.
For purposes of the ban, the receipt of free transportation includes all other benefits accompanying the
transportation. For example, when a railroad wished to provide transportation to a number of state and local
public officers along with food, beverages, and entertainment from San Francisco to the Dixieland Jazz
Festival in Sacramento, the officials in question were advised that the railroad should not merely charge the
officer the standard fare for the transportation. Rather, all of the benefits received along with the
transportation should be included in computing the value of the transportation. Officials who paid the full
value of the goods and services could avoid receipt of a prohibited gift.
Where the gift or discount is made to the officer, as part of a larger group, and without regard to official
status, the ban may not apply. For example, if the officer's spouse is employed by a transportation
company and receives free or discounted transportation as an employment benefit, receipt of such a
benefit by the officer solely as a result of the marital relationship would not trigger the ban.
Similarly, when a honeymooning official received an upgrade in airline service, the ban was not triggered
because the upgrade was provided as a part of the airline's policy of providing free first class upgrades to
all persons on their honeymoons.
These situations are distinguishable from the case in which a mayor received a free first class airline
upgrade as a part of a promotion designed to bestow such upgrades on high profile, prominent individuals
in the community. In that case, the mayor received the upgrade as a result of his status as mayor and not
as a result of his participation in some larger group unrelated to his official status. For that reason, the
mayor was found to have violated the ban.
The prohibition has been interpreted by the California Attorney General to include the acceptance of
passes or discounts from interstate as well as intrastate carriers and transportation. The prohibition applies
even if the carrier does not do business in California and is not under the jurisdiction of the public official.
Finally, the prohibition applies equally to personal as well as business travel.
Only Public Officers Are Covered by the Prohibition
The constitutional prohibition specifically applies to public officers and does not apply to employees.
However, the officer /employee distinction is not always an easy one to make.
It is generally said that an office requires the vesting in an individual of a portion of the sovereign powers of
the state. For purposes of the ban, if a particular individual actually sets or makes policy, he or she is an
officer. However, if the official merely advises policy makers, the official is probably not an officer.
Both Interstate and Intrastate Travel Are Covered by the Prohibition
Over the years, the Attorney General has interpreted the constitutional ban against the acceptance of
passes or discounts from transportation companies to apply to interstate as well as intrastate carriers and
transportation. It does not matter if the interstate carrier in question does business in California and is
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therefore under the officer's jurisdiction. For example, the ban applies to a California official who accepts
free transportation in another state or country.
Both Public and Personal Business Transportation are Covered by the Prohibition
The issue of public versus personal business is generally not viewed as relevant to the application of the
ban. There is a specific exception for Public Utility Commissioners who are authorized to accept free
transportation in connection with the performance of their official duties. For all others, the ban against the
acceptance of free passes or discounts for transportation applies equally to personal and business travel.
Violation of the Prohibition Means Forfeiture of Office
The Constitution specifically provides that an officer can be removed from office for accepting a pass or
discount from a transportation company.
Points to Remember
The Prohibition on free transportation:
• Applies to passes or discounts from transportation companies.
• Applies only to officers; not employees.
• Covers both personal and business use.
Covers inter and intrastate transportation companies.
• Violation means forfeiture of office.
CASE STUDIES
Scenario #1
Paul Itick is the deputy director of City's Waste Management Department, and has accumulated
100,000 miles in his personal frequent flier mileage program, and is entitled to two free tickets to any
location in the world where Eastern Airlines flies. Eastern Airlines does not do business with City or with
City's Waste Management Department, and does not even fly into or out of City's Airport. Paul wants to use
his free tickets to take is wife to Bali for their 20th wedding anniversary.
Which is the correct answer?
1) Paul should not accept the free ticket because he did not pay full value for the ticket.
2) Paul may accept the free ticket because it was earned as part of a program designed to
promote that airline, and the program was offered to the public generally without regard to official status.
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3) Paul may accept the ticket because his daily work has nothing to do with City's airport.
4) Paul may accept the ticket because his wife is not a City employee or official and the
trip is personal vacation for her.
Answer:
Paul may accept the free ticket because it was his personal mileage program which was offered by
the airline to the general public without regard to official status.
Scenario #2
Paul Itick is now the deputy director with City's Metro Rail Department. An airline wishes to
persuade California to embrace a new technology in easing the process of transferring air passengers to
public transportation such as buses. The airline wishes to give Paul a pass on its airline to fly him to
Germany to witness the success of the technology in action. Is Paul prohibited from accepting the airline
pass even thought he does not do business with the airline and the trip is solely for business purposes?
Answer:
Paul is prohibited from accepting the airline pass even though he does not do business with the
airline and he is not traveling for personal reasons. The ban applies whether or not Paul personally
benefits from using the pass.
Scenario #3
David is Paul Itick's administrative assistant, and works closely with Paul at City's Waste
Management Department. Listening to the radio at work one day, David is the lucky 20th caller and wins a
free airline trip to Aruba. Would David be in violation of the prohibition if he accepts the trip to Aruba?
Answer:
No, David would not be in violation of the prohibition because it applies to officers, and not
employees.
Scenario # 4
Eastern Airlines donates two tickets to Aruba to City's Children's Hospital annual fund raising
campaign. Paul Itick is now employed as the deputy director of City's Airport Management Department,
and attends wins the tickets as a prize in the fund raising campaign. Would Paul be in violation of the
prohibition if he accepts the tickets to Aruba?
Answer:
No, Paul's acceptance of the tickets would not violate the ban because the tickets were provided to
Paul by the charity and not the airline.
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Scenario # 5
While employed as the deputy director of the Waste Management Department, Paul Itick accepted
and used two free rail passes to provided by Transportation Company to travel to Del Mar and attend the
opening day festivities. Paul 's department does conduct any business with Transportation Company and
Paul attended the races on a Saturday with his wife. Alerted to his error in accepting the passes, Paul tries
to pay Transportation Company the full value of the rail passes. Can Paul un -do the situation he finds
himself in this way?
Answer:
No, the only sanction recognized is removal from office.
GIFTS OF PUBLIC FUNDS
Expenditures of Public Funds Must Have a Public Purpose
The California Constitution prohibits public agencies from making gifts of public funds.
Article XVI, section 6 states:
The Legislature shall have no power to ... make any gift or authorize the making of any gift, of any
public money or thing of value to any individual, municipal or other corporation whatever...
An expenditure is a "gift" if it does not serve a substantial public purpose. What constitutes a "public
purpose" is left to the discretion of the Agency's governing board. A court reviewing a challenged
expenditure should uphold the board's decision as long as the board had a reasonable basis for concluding
that the expenditure served a substantial public purpose.
Neither the Legislature nor the courts have provided a bright line definition of what constitutes a "substantial
public purpose." However, it is clear that an expenditure made solely on moral grounds does not serve a
substantial public purpose. Further, if the expenditure does not provide the agency making the expenditure
with a direct, substantial benefit, the expenditure would not serve substantial public purpose. In approving
an expenditure that may potentially raise a gift of public funds issue, a board can strengthen its legal
position by adopting a resolution with findings that set forth its basis for concluding the expenditure serves
substantial public purpose.
Public versus Private Use Analysis
The starting point for any analysis concerning the misuse of public funds begins with the principle that
public funds must be expended for an authorized public purpose. An expenditure is made for a public
purpose when its purpose is to benefit the public interest rather than private individuals or private
purposes. However, the mere fact the expenditure also benefits a private party does not necessarily mean
that the expenditure is not also serving a substantial public purpose.
Once a public purpose is established, the expenditure must still be authorized. A public official possesses
only those powers that are conferred by law, either expressly or impliedly.
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Incidental Personal Benefits Permitted
The prohibition against using public funds for personal purposes does not mean that no personal benefit
may result from an expenditure of public funds. For example, the payment of a public employee's salary
confers a personal benefit on the employee, but it is an appropriate expenditure of public funds because it
is procuring the services of the employee for public purposes.
The misuse of public funds occurs when the personal benefit conferred by a public expenditure is not
merely incidental. The term "public funds" is not limited to money, but includes anything of value belonging
to a public agency such as equipment, supplies, compensated staff time, and use of telephones,
computers, and fax machines etc.
Violations of the laws prohibiting misuse of public funds may subject the violator to criminal and civil
sanctions. These penalties may include imprisonment for up to four years and a bar from holding office.
Public Funds and Ballot Measure Campaigns
This issue concerns the use of public funds in connection with ballot measure campaigns.
The California Supreme Court case of Stanson v. Mott is the cornerstone case concerning the expenditure
of public funds in election campaigns. In that case, a private citizen sued the Director of the California
Department of Parks and Recreation, challenging the Director's expenditure of Department funds to support
passage of a bond act appearing on a statewide ballot. The Supreme Court unanimously found that the
Director had acted unlawfully, concluding that in the absence of clear and explicit legislative authorization, a
public agency may not expend public funds to promote a partisan position in an election campaign.
The Supreme Court wrote in Stanson:
A fundamental precept of this nation's democratic electoral process is that the government
may not'take sides' in election contests or bestow an unfair advantage on one of several
competing factions. A principal danger feared by our country's founders lay in the
possibility that the holders of governmental authority would use official power improperly to
perpetuate themselves, or their allies, in office...; the selective use of public funds in
election campaigns, of course, raises the specter of just such an improper distortion of the
democratic electoral process.
Endorsement and Informational Materials
Subsequently, court cases have held that a government agency may endorse a measure which is related to
its expertise so long as it does not expend funds to promote its passage. Similarly, a government agency
may draft legislation or a ballot measure related to its expertise, but may not promote the passage of the
measure in an election campaign.
Later decisions have noted that if a state agency or department has authority to disseminate information
relating to its activities, it may spend funds to provide the public with a fair presentation of relevant
information. The Court found that "it would be contrary to the public interest to bar knowledgeable public
agencies from disclosing relevant information to the public, so long as such disclosure is full and impartial
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and does not amount to improper campaign activity." To be fair, a presentation must consider all important
points and provide equal treatment to both sides of the issue.
Penalties for the Improper Use of Public Funds
Improper use of public funds also may trigger fines from the Fair Political Practices Commission for failing
to report campaign contributions. For example, in 1996, Sacramento County paid a $10,000 fine to the
Commission in connection with a utility bill insert explaining the effect on the County of several ballot
measures. The Commission ruled that the insert advocated a position on the ballot measures and was not
a neutral and fair presentation of the facts.
Points to Remember
For an expenditure of public funds to be appropriate:
• Expenditures must be for a public purpose
• Expenditures must be authorized
• Public funds may not be expended for personal purposes
• Information may be fairly presented
• Violations bring criminal, civil and administrative sanctions
CASE STUDIES
Scenario #6
Paul Itick is working as the Assistant Director of City's Wastewater Management District, and
believes that he can more effectively manage his workload if he buys a Palm Pilot to handle his
professional appointments and store his work - related contact information. He intends to purchase the Palm
Pilot with petty cash from the District's funds and that the Palm Pilot will always remain the property of the
District. Is this a permissible expenditure?
Answer:
Not unless the expenditure is authorized by someone with the necessary authority to sanction the
purchase.
Scenario #7
Paul Itick is a City's Waste Management District secretary. He has just completed a long day and
wishes to make a few telephone calls before he leaves the office to invite potential contributors to the
incumbent City Councilman's campaign fundraising dinner. Since the people he will be calling frequently
have dealings with City government on a variety of issues, may he charge these calls to the state?
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Answer:
No, because these calls are for personal political purposes rather than for a public purpose.
PROHIBITION AGAINST EXTRA COMPENSATION
Similar to the ban on gifts of public funds, the California Constitution also prohibits "extra compensation" at
Article XI, sections 10(a):
... a local government body may not grant extra compensation or extra allowance to a
public officer, public employee, or contractor after service has been rendered or a
contract has been entered into and performed in whole or in part, or pay a claim
under an agreement made without authority of law."
Definition of Extra Compensation
Extra compensation is defined as compensation over and above that fixed by contract or by law when the
services are rendered. (33 Ops.Cal.Atty.Gen. 143, 145 (1959). This applies even if the contracted rate of
compensation is later deemed inadequate or if the performance of the duties requires greater skill or
diligence than originally anticipated.
It is also against public policy for a public officer to receive additional compensation from a private
individual for performance of an official duty.
Subsequent Bargaining Negotiation Exception
However, it has been held that when employees of a bargaining unit were paid pursuant to the terms of an
expired memorandum of understanding, it was not unlawful to provide the employees with retroactive
compensation following the negotiation of a new MOU since compensation remained undetermined while
the new MOU was being negotiated. (Goleta Educators Assn. v. Dall'armi (1977) 68 Cal.App.3d 830.)
Consequences of Violation
Any agreement or contract entered into in violation of this provision is void, as the acting public entity is
without authority to act in violation of the California Constitution.
Points to Remember
Compensation greater than the amount contracted for cannot be paid
• Applies even if exceptional performance rendered
• Applies even if the job or performance is far more difficult to render than anticipated
• Any agreement to pay beyond the contract price is not enforceable
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CASE STUDIES
Scenario #8
Paul Itick, as the Assistant Director of City's Waste Management District completed a major project
for the District well ahead of schedule, due not only to the extra hours he devoted to the project on the
weekend and what he had just recently learned in the MBA program he had just completed. He was
assisted in the project by an outside contractor that had been hired by City to put the presentation together.
The project was well received and resulted in City obtaining major Federal funding to permit the project to
go forward.
The Waste Management District wants to give Paul a performance bonus based upon his
exceptional performance, as well as reimburse the outside contractor for unanticipated expenses the
contractor incurred due to mal- functioning City owned computers. Are these planned payments in violation
of the California law?
Answer:
Yes, even though Paul brought special skill, long hours and newly acquired credential to the table,
the duties he was performing were still within his expected job performance. As to the contractor, absent a
contractual provision allowing reimbursement for the extra expenses, payment of the expenses would be in
violation of Article XI, section 10(a) of the California Constitution.
Competitive Bidding Requirements
COMPETITIVE BIDDING
Competitive bidding statues are for the benefit and protection of the public, not the bidders, and
must be strictly followed. These laws are intended to invite competition, to guard against favoritism,
extravagance, fraud and corruption, as well as to secure the best work or supplies at the lowest price
practicable. Accordingly, laws have been enacted under which a public improvement or necessary
services or materials require competitive bidding to ensure fairness, efficiency and security in the execution
of the contract.
The laws addressing this topic are numerous, complex and quite detailed, such that review of them
in this forum is not possible. Accordingly, the intent of this portion of the materials then is to simply the
public official or employee's awareness of the need to fully understand and investigate applicable regulation
regarding bid solicitation and the awarding of public contracts.
Statutory Creation
There is not any all- pervasive public policy that requires all public agencies to engage in
competitive bidding. Absent some specific state mandate, charter or statutory provision, government
contracts need not be let under competitive competition. State law, as well as county and municipal
regulations will govern the bidding and awarding of public contracts.
These laws, however, are passed of the benefit and protection of the public. Competitive bidding
provisions are strictly construed by the Courts, and will not be extended beyond their reasonable purpose.
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When Bids are Required
The State Contract Act (Public Contract Code, §§ 10100 et seq.), provides that if the estimated
total cost of any construction project or work exceeds $25,000.00, the appropriate agency or district must
solicit bids in writing and award the work to the lowest responsible bidder, or reject all bids. Other code
provisions require competitive bidding on county and municipal public works projects exceeding specified
amounts. Various provisions become applicable depending upon the size of the municipality, the size of
the contract and even the subject matter of the contract.
PRACTICE POINTER:
Consult with your agency's purchasing department, as well as local and state regulations to
determine if the project in question meets one of the many guidelines that would require the contract be
submitted for competitive bidding.
Exceptions to the Requirement
When an emergency arises and services or materials are needed immediately, and competitive
bidding would be impractical or impossible, competitive bidding statues do not apply. This exception implies
a sudden or unexpected necessity requiring speedy action. The declaration by public authorities that a
situation constitutes an emergency and requires dispensing with the competitive bidding process, though
not conclusive proof, is prima facie evidence of an emergency.
Contracts for furnishing public utility services such as gas, electricity and water do not require
competitive bidding, as the rates for the services are regulated by other laws. Also, matters requiring
special services and advice, such as financial, legal, accounting, engineering or administrative expertise
may be exempt from the competitive bidding process.
State agencies may award contracts valued at between $5,000 and $100,000, for the acquisition of
goods, services or information technology, to a certified small business or disabled veteran business
enterprise as long as the agency obtains price quotations from two or more certified small businesses or
veterans business enterprises.
Procedures
The processes involved in advertising, selecting and working with a contractor are too voluminous
to cover in this setting. It should be remembered however, that numerous guidelines and statutes will
govern all aspects of the contracting process including advertising for the competitive bid; bid review and
selection process; soil issues (if applicable); bidding security; confirmation of bids to specification; bid
rejection and other related matters.
Violation of Competitive Bidding Requirements
A contract made in violation of statutory provisions or ordinances requiring competitive bidding is
illegal and void. Such a contract cannot later be validated or ratified, because once the contract is entered
into it is too late to advertise for bids.
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A contractor may not recover for the construction of a public improvement or other contract with a
public body without compliance with all applicable competitive bidding regulations, even if the contract has
been executed and work preformed in accordance with the contract terms. Further, there is no implied
liability on the part of the public body for the reasonable value of services or materials provided. All
persons dealing with public agencies are presumed to know the laws relating to competitive bidding and act
at their own peril.
Points to Remember:
• Confirm any potential contract is subject to competitive bidding regulation;
• If you are operating under an "emergency" exception, be certain that such an emergency truly
exists;
• Confirm precise compliance with all rules relating to advertising, bid solicitation, bid selection and
contract formation; and
• Confirm that the selected contractor has met all statutory requirements before commencing
performance upon the contract.
Fair Decision Making and Processes
DUE PROCESS
The citizens of the United States, and the various states, are entitled to due process before the
government, or any governmental agency, may deprive that citizen of life, liberty or property.
A. Constitutional Basis
A fair process (e.g., notice and hearing) is required for a government agency to take a person's life, liberty
or property. The fourteenth amendment to the United States Constitution extends this protection, also
known as "due process" to the states, thereby imposing upon state agencies due process limitations and
requirements. These due process requirements generally do not apply to purely legislative actions by a
governmental agency.
For example, City councils may take actions which implicate constitutionally protected property interests
(such as through eminent domain). Those with an interest at stake in the decision must be accorded due
process before a decision is rendered. This process typically takes place at a properly noticed meeting.
B. Legislative Actions
Legislative actions, such as the adoption of broad policies, general plans or ordinances of general
application, are presumed valid. [FN1 ] Every conceivable finding in support of their validity is presumed to
have been relied upon in taking the action. Unless otherwise required by law, legislative acts need not be
preceded by a public hearing.
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C. Quasi- Judicial Action Requirements
Quasi - judicial or administrative actions are governed by the due process requirements of the fourteenth
amendment to the United States Constitution. A governmental regulation may not deprive a person of
property without due process of law. The procedure (due process) employed must be fair and afford
interested parties the opportunity to prepare and to be heard. Formal rules of evidence are not required,
and a public hearing is not required unless otherwise specified by law. The decision maker must be fair
and impartial. [FN2]
Quasi - judicial actions include the issuance of business licenses, rent control hearing, use permits, etc.
D. Public Hearings
Some legislative actions (i.e., zoning change) and some quasi - judicial actions (i.e., conditional use permits)
may require a properly noticed and time public hearing. The requirements of the Brown Act, Cal. Gov't.
Code §54954, must be met so as to afford a meaningful opportunity for preparation and an impartial
hearing.
Footnotes:
FN1 Terminal Plaza Corporation v City and County of San Francisco, 177 Cal.App. 3d 892, 223 Cal.Rptr.
379 (1986).
FN2 Clark v City of Hermosa Beach, 48 Cal. App. 4th 1152, 56 Cal. Rptr. 2d 223 (1996)
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I. FORM 700 (STATEMENT OF ECONOMIC INTEREST)
The Political Reform Act requires certain public officials to disclose their personal financial holdings and
income which could be materially affected by their actions in office.
A. REQUIREMENTS
Form 700s (technically, "Statements of Economic Interests ") are produced and maintained by the Fair
Political Practices Commission ( "FPPC "). The statements may be referred to as "Form 700's," "conflict -of-
interest statements," or "statements of economic interest." They include information about the personal
financial interests of local officials and must be signed on penalty of perjury. Public officials must file Form
700's upon assuming office, leaving office, and annually, and must file amendments of previous statements
if warranted.
Government Code section 87200 lists particular officials to whom the disclosure requirements apply. The
listed persons are subject to the Political Reform Act's disclosure requirements, as well as its gift restriction,
travel expense limitation, and honoraria prohibition. Other categories of officials and employees of local
government agencies not listed in Government Code section 87200 are still regulated by the Political
Reform Act if the agency's conflict of interest code requires employees in that category to file a Form 700.
B. PURPOSE
The purpose of the Form 700 is to remind public officials about their own economic interests and potential
areas of conflict in relation to their duties, and provide information to members of the public so that they can
monitor official actions for any conflicts. The FPPC may impose penalties when a Statement of Economic
Interests is not filed on time.
C. FILING
Most of the time, you should file your Form 700 with your agency's filing official. In the case of candidates
for public office, the form may have to be filed with the election office or local clerk's office. In some cases,
the form will be copied by the agency and kept in its files, with an original going to the FPPC.
VIII. MASS MAILING RESTRICTIONS
Section 89001 of the Political Reform Act provides that "[n]o newsletter or other mass mailing shall be sent
at public expense." In order to avoid the absurd result of literally prohibiting any and all mass mailings
created or distributed with public funds, regardless of their content or purpose, the Fair Political Practices
Commission adopted regulation 18901, clarifying which mailings were permissible and which were not.
The chief purpose of the regulation is to prevent incumbent elected officials from taking advantage of public
funds to increase the official's exposure to the public.
Under Regulation 18901, a mass mailing is defined as more than 200 substantially similar tangible items
delivered in a month, by any means, to recipients at their residence, place of employment, business, or
post office box. Such items, if prepared and mailed at public expense, may not "feature" an elected official
or include the name, office, photograph, or other reference to an elected official affiliated with the agency if
the elected official helps to prepare or approves the mailing.
Regulation 18901 provides that "features an elected officer" means that the item mailed includes the
elected officer's photograph or signature, or singles out the elected officer by the manner of display of his or
her name or office in the layout of the document, such as by headlines, captions, type size, typeface, or
type color.
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Regulation 18901 includes many exceptions to the prohibition against mass mailing:
1. Any item in which the elected official's name appears only in the letterhead or the envelope of the
agency sending the mailing, or in a roster listing containing the names of all elected officials of the
agency.
2. A press release sent to members of the media.
3. Any item sent in the normal course of business from one governmental entity or official to another
governmental entity or official.
4. Any intra- agency communication sent in the normal course of business to employees, officials,
deputies, and other staff.
5. Any item sent in connection with the payment or collection of funds by the agency sending the
mailing, including tax bills, checks, and similar documents, in any instance where use of the
elected official's name, office, title, or signature is necessary to the payment or collection of the
funds.
6. Any item sent by an agency responsible for administering a government program, to persons
subject to that program, in any instance where the mailing of such item is essential to the
functioning of the program, where the item does not include the elected officer's photograph.
7. Any legal notice or other item sent as required by law, court order, or order adopted by an
administrative agency pursuant to the Administrative Procedure Act, and in which use of the
elected official's name, office, title, or signature is necessary in the notice or other mailing.
8. A telephone directory, organization chart, or similar listing or roster which includes the names of
elected officials as well as other individuals in the agency sending the mailing, where all the names
appear in the same type, size and color.
9. An announcement sent to an elected official's constituents concerning a public meeting which is
directly related to the elected official's incumbent governmental duties, which is to be held by the
elected official, and which the elected official intends to attend or an announcement of any official
agency event or events for which the agency is providing the use of its facilities or staff or other
financial support.
10. An agenda or other writing that is required to be made available pursuant to the Brown Act.
11. A business card that does not contain the elected official's photograph or more than one mention of
the elected official's name.
1959485.1
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