HomeMy WebLinkAbout04.a. Essentials of Selected Ethics Laws (Handout)meyers i nave
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Essentials of Selected Ethics Laws
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Jennifer Faught ��D�P
Attorney at Law
jfaught@ meyersnave.com
The following is a summary of the ethics laws that Government Code section 53235 requires be
covered in an AB 1234 training. For ease of digestion, the laws have been boiled down to their
essence. Following the training, you should be able to identify situations where ethics laws may
apply. when such issues arise, you should consult with legal counsel or with the Fair Political
Practices Commission.
1. Laws Relating to Personal Financial Gain
a. Bribery
i. Elements
(1) A governmental official (elected, appointed, employed)
(2) requests, takes, or agrees to take bribe and
(3) represents that the bribe would unlawfully influence vote, decision,
or opinion. Can be express or implied.
(4) Must have corrupt intent that official duty would be unlawfully
influenced
ii. Bribe is "anything of value or advantage, present or prospective."
b. Conflicts of interest under the Political Reform Act
i. Elements
(1) A public official
(2) may not
(a) make,
(b) participate in making, or
(c) in any way attempt to use his /her official position to
influence a governmental decision
(3) in which he /she knows or has reason to know he /she has a
disqualifying conflict of interest
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ii. Exceptions
(1) Indistinguishable from the effect on the public generally
(2) Official's participation is legally required.
iii. Potentially disqualifying economic interests
(1) Business Entities. $2,000 or more investment in, or position with
for - profit business entities. Positions include officer, director,
employee, or any other business position.
(2) Real Proper Direct or indirect equity, option or leasehold interest
of $2,000 or more in property located in, or within two miles of,
the geographical jurisdiction of the official's agency.
(3) Source of Income. Sources of income that is either received or
promised to die official totaling $500 or more within 12 months
prior to the decision.
(4) Source of Gifts. Sources of gifts totaling $420 or more within 12
months prior to the decision.
(5) Personal Financial Effect. An effect of $250 or more on an official's
finances or those of his or her immediate family (spouse /domestic
partner and dependent children only).
iv. Disclosure obligations
(1) Council members and planning commissioners disqualified from
participating in a decision due to a conflict of interest must:
(a) Publicly announce the specific financial interest that is the
source of the disqualification;
(b) Leave the room during the discussion and deliberations on
the item; and
(c) Refrain from participating in the making of the decision.
(2) Need not leave the room for consent calendar items.
(3) May participate as a member of the public when item involves
one's financial interest in one's real property or business.
C. Contractual conflicts of interest (Gov. Code, § 1090 et seq.).
i. Elements
(1) Governmental officials
(2) may not be involved in the making of
(3) governmental contracts in which they have a financial interest
ii. Financial interests are broadly construed
iii. Such contracts are void; willful violations are criminal
iv. Employees can avoid prohibition by not participating in the making of the
contract; legislative body members are deemed to have participated in
making all contracts of the agency, except where an exception applies.
(1) Remote interest exceptions require recusal; Non - interest exceptions
most often do not.
V. Limited rule of necessity permits contracting despite a public officials'
financial interest in the contract.
d. Campaign contributions as conflicts of interest.
i. Generally, campaign contributions are not income or gifts for elected
officials, and therefore they are not disqualifying or prohibited.
i. However, appointees, even if they are elected officials, may not:
(1) participate in a proceeding involving a license, permit, or use
entitlement
(2) if the official has received over $250 in campaign contributions
from a party to or participant in a proceeding
(3) within 12 months prior to the decision.
ii. Can apply to city councilmembers when they are appointed to other
positions, such as local agency formation commission.
iii. Participant is defined as anyone who actively supports or opposes a
particular decision in the proceeding.
iv. If the contribution is returned within 30 days from the time the recipient
learns of the contribution and proceeding, disqualification is not required.
C. Conflicts of interest when leaving office.
i. One -year prohibition on lobbying former agency
(1) Elements
(a) Local elected officials and city managers, among others,
may not
(b) for a period of 1 year after leaving that office or
employment
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(c) represent another person
(d) for compensation
(e) by appearing before or communicating with his or her
former agency
(f) if the appearance or communication is made for the
purpose of influencing a decision involving a permit,
license, grant, contract, or sale or purchase of goods or
property.
ii. Rules against participating in decisions relating to prospective employers
(1) An officer or employee of state or local government agency may
not
(1) make, participate in making, or use his or her official position to
influence a decision
(2) relating to any person with whom the officer or employee is
negotiating, or has an arrangement concerning, future
employment.
Law.r Relating to Claiming Perquisites of Office
a. Limitations on Receipt of Gifts
i. Prohibition
(1) Elements
(a) Public officials and employees
(b) may not accept
(c) gifts
(d) from a single source
(e) during a calendar year
(� in excess of $420
ii. For employees other than City Managers, city attorneys, city treasurers,
prohibition only applies if the source of the gift is someone from whom
the City's conflict of interest code would require disclosure.
iii. A "gift" is anything of value that provides a personal benefit for which
the donor does not receive equivalent consideration.
(1) Includes rebates or discounts unless given in the regular course of
business to members of the public.
iv. k gift is received when
(1) the public official has actual possession of d-ie gift
(2) or when the official takes any action exercising direction or control
over the gift, including discarding the gift or turning it over to
another person.
V. Various common sense exceptions to the gift rules exist
(1) Special rules exist for payments for travel.
vi. Gifts of $50 or more from any single source must be reported.
b. Honoraria ban
i. Elements
(1) Elected officials, city managers, city attorneys, and city treasurers
(2) May not accept
(3) any payment
(4) for
(a) giving a speech,
(b) publishing an article or
(c) attending a public or private conference, convention,
meeting, social event, meal, or similar gathering.
ii. Various common sense exceptions exist.
C. Misuse of public funds
i. Public officials and employees may not use public resources for private
gain (whether financial or political)
ii. Government cannot expend resources to promote a partisan position in
an election campaign, but it can educate about ballot measures.
iii. State law permits minimal /incidental use of agency resources.
d. Prohibition against gifts of public funds (Cal. Const., art. XWI, § 6).
i. Public agencies may not make gifts of public funds.
ii. An expenditure is not a gift if it serves a public purpose, even if it benefits
a private party. Note: Special districts purposes are limited to d-ieir
statutory powers.
iii. Legislative body's determination of public purpose given great deference.
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e. Mass mailing prohibition
i. Elements
(1) Mass mailings may not be
(2) sent at public expense
ii. Mass mailing is:
(1) a tangible item sent or delivered
(2) to 200 or more people within a calendar month
(3) that "features" an elected officer by:
(a) including the photograph or signature, or
(b) singling out the officer by the manner of display of name
or office in the layout, such as by headlines, captions, type
size, typeface, or type color
(4) for which the costs of design, production and printing exceed $50
and are paid with public moneys.
f. Prohibition against acceptance of free or discounted transportation by
transportation companies (Cal. Const., art. ZII, § 7).
i. Elements
(1) Public officers (not all employees)
(2) may not accept free passes and discounts
(3) from a transportation company.
ii. One who accepts forfeits his /her office.
iii. Prohibition does not apply to discounts offered to die general public.
�. Govenuvent Tialis areircy Lcnvr
a. Economic interest disclosure (Form 700)
i. City council members, planning commissioners, city managers, city
attorneys, and city treasurers are required to disclose a/ /income, gifts,
interests in real property, and investments.
ii. Other employees and officials listed in their agency's conflict of interest
code must disclose only the income, gifts, interests in real property, and
investments specified in the agency's conflict of interest code.
iii. Disclosure form needs to be filed annually and within 30 days of assuming
and leaving office.
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iv. The forms are public documents, available within one day of request by
public.
b. Brown Act (Gov. Code, 55 54950 et seq.).
Meetings of the board and its committees must be open to the public,
except for closed sessions thereof permitted by law.
ii. "Meetings" means congregation of a majority of members at the same
time and place to hear, discuss, or deliberate on an item of business.
iii. Outside of a "meeting," a majority of members of a legislative body may
not use a series of communications of any kind, directly or through
intermediaries, to discuss, deliberate, or take action on any item of
business that is within the subject matter jurisdiction of the legislative
body.
IV. Board and committees can only take up items that are on the published
agenda, except in narrow circumstances.
(1) Emergency
(2) Need for immediate action that came to the agency's attention
after posting of the agenda
V. Public has a right to address the board at each regular meeting "on any
item of interest to the public ... that is within the subject matter
jurisdiction of the legislative body."
Vi. Many provisions currently suspended because state chose not to
compensate for mandated costs.
Public Records Act (Gov. Code, §§ 6250 et seq.).
i. All records of public agencies, subject to certain exceptions, must be
made available for public inspection during normal business hours.
ii. Records subject to disclosure:
(1) any recording in any form
(2) that is "prepared, owned, used, or retained by" the agency and
(3) that contains information relating to the public's business.
i. Laws Relathig to .Fair Processes
a. Common law bias prohibitions.
Public officials must exercise their powers widi disinterested skill, zeal and
diligence and primarily for the benefit of the public and cannot be
tempted by personal or pecuniary interests.
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ii. Prohibition applies to non - financial interests.
iii. Disqualifies one from participating and voting on a decision.
b. Disqualification from participating in decisions affecting family members
(anti - nepotism lays).
i. Political Reform Act requires recusal when decisions have a material
impact on one's spouse and dependent children.
ii. Common law bias will require recusal in many cases.
iii. Jurisdiction's own policies often limit participation in matter affecting
family members.
C. Due process requirements.
i. Applies only to "quasi - judicial" matters (i.e. dlose involving the
application of existing rules to a specific set of facts)
ii. "Procedural due process" gives those with a property interest a right to:
(1) Notice and opportunity to be heard by
(2) a fair and impartial decision maker
d. Doctrine of Incompatible Offices (Gov. Code, 55 1099).
i. Elements
(1) A person may not hold two public offices simultaneously
(2) if the potential for conflict or overlap in the functions or
responsibilities in the office exist
ii. Common law rule often overridden by statute
C. Competitive bidding requirements for public contracts.
1973105.3
i. Purpose is not to protect bidders
ii. Guards against favoritism, fraud, and corruption; prevents waste of public
funds; and seeks to obtain best economic result for the public.
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