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HomeMy WebLinkAbouta. (Handout) Meyers Nave presentation on AB 1234 Ethics Compliance Training r Required Ethics AB 1234 ComplianceTraining Alex J . Mog Why Are We Here ? California state law (AB 1234) • Mandates ethics training • All local elected officials or members of legislative bodies Must receive who receive any compensation 2 hours or expense reimbursements of training • And employees designated every 2 years by the legislative body AB 1234 Overview Training I. Personal Financial Gain by Public III. Government Transparency Laws Officials A. Economic Interest Disclosure A. Conflicts of Interest under the Political Reform Act Under the Political Reform Act B. Brown Act B. Contractual Conflicts of Interest C. Public Records Act (Gov't Code § 1090) IV. Laws Relating to Fair Processes C. Conflicts of Interest A. Common Law Bias Prohibitions and Campaign Contributions D. Conflicts of Interest B. Due Process Requirements When Leaving Office C. Doctrine of Incompatible Offices E. Bribery D. Incompatible Activities E. Competitive Bidding Requirements for Public II. Laws Regarding Claiming Contracts Perquisites of Office F. Disqualification from Participating A. Limitations on Receipt of Gifts in Decisions Affecting Family Members B. Honoraria Ban (Anti-Nepotism Laws) C. Misuse of Public Funds D. Prohibitions Against Gifts of Public Funds GOOD TO E. Mass Mailing Restrictions KNOW F. Prohibitions Against Free or Discounted Transportation by Transportation Companies DiegofW Oakland Sacramento San meyers nave Los Angeles Santa Rosa rneyersnave.corn 1 . Personal Financial Gain by Public Officials A. Conflicts of Interest under the Political Reform Act ( PRA) B. Contractual Conflicts of Interest , (Gov't Code § 1090) � C. Conflicts of Interest and Campaign Contributions CONFLICTj D. Conflicts of Interest when Leaving Office E. Bribery 1 . Personal Public Officials A. Conflicts of Interest under PRA — --.N Basic Rule P 47LR S T1 • Public officials* have a disqualifying S" conflict of interest under the Political Reform Act of 1974 L: Jji when a decision has a : - Reasonably foreseeable material financial effect on an official's economic interest - Different from the effect on the public generally * For purposes of this rule, a "Public official" is every member, officer, employee or consultant of a state or local government agency DiegoPOW Oakland Sacramento San Angelesrneyers nave Los Rosa meyersnave.coi-n 1 . Personal Public Officials What is an "Economic Interest" under the PRA? Business investments of $2,000 or more Business management positions or employment in for-profit entities Real property Interests of $2,000 or more Sources of income of $500 or more (within previous 12 months) Sources of gifts of $470 or more (within previous 12 months) Personal financial effects or finances SacramentoOakland San Diego meyers nave Los Angeles Santa Rosa meyersnave.coi-n 1 . Personal Public Officials How do you determine if the "Economic Interest" qualifies as a Conflict of Interest under the PRA? Four-Part Test 4: Is the official "making, participating in the making, or using his or her position to influence" the governmental decision from which the financial effects result? `- 3: Is the effect on the official the same as on the "public generally"? 2: Is it material? 4 1: Is the financial effect "reasonably foreseeable"? DiegoOakland Sacramento San Angelesmeyers nave Los Rosa meyersnave.coi-n I . Personal Financial Gain by Public Officials Conflicts of Interest under PRA STEP 1: STANDARD: Is the "Realistic possibility financial effect and more than "reasonably foreseeable?" hypothetical or theoretical" Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 1 . Personal Public Officials Conflicts of Interest under PRA STE IF ■ Q: Is it material? 2 A: Determine correct "materiality standard" • Materiality is a measure of "how important" it is • Rules vary by type of interest • In general, materiality is presumed when the public official's financial interest is a party to, or the subject of, the governmental decision. SacramentoOakland San Diego meyers nave Los Angeles Santa Rosa meyersnave.coi-n 1 . Personal Public Officials Conflicts of Interest under PRA Is the effect on the = ff official the same as on the "'public generally- Effect enerally Effect on official is indistinguishable from its effect on the public generally if: — Significant segment of public is affected (i.e. 25% of all businesses, real property or individuals); and — Effect on his/her interest is not unique compared to the effect on a significant segment (e.g., Decision would have a disproportionate effect on development potential of official's real property or on an official's business due to its proximity to project that is subject of the decision). DiegoFV -MMI rneyers nave Los Angeles Santa Rosa rneyersnave.corn I . Personal Financial Gain by Public Officials Conflicts of Interest under PRA Is - official . participating in the making, financialinfluence"" the governmental decision from which the Determine if the official is: • Making a decision Official may still • Pa rtici pati ng i n a decision participate if a n • Usin official sitin to exemption applies g p oo attMmpt to influence a decision Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 1 . Personal Public Officials A. Conflicts of Interest under PRA: Recusal • Public official with a disqualifying interest must: — Publicly identify interest in sufficient detail — Recuse self from discussions or acting on matter — Leave room, unless matter on consent agenda 7 7 May speak . public comment on certain pmr personal interests. xce, '°r E DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n 1 . Personal Public Officials B. Conflicts of Interest in Contracts : • AP • • Applies 4 -,Broadly • Prohibits public • Applies to renewals, officials and extensions, and oral employees from contracts having financial 0"• Financial interests interests... Omm in contracts are • In contracts... broadly construed Made by them in their official capacities SacramentoOakland San Diego meyers nave rr' Los Angeles Santa Rosa meyersnave.coi-n 1 . Personal Public Officials B. Conflicts of Interest in Contracts Legislative body deemed to make all agency contracts • Legislative body members are deemed to have participated in making all contracts of the agency, except where an exception applies — Prevents the agency from entering into contract in which a member of the agency's board or commission has a financial interest Employees can avoid prohibition by not participating in the making of the contract DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n 1 . Personal Financial Gain by Public Officials B. Conflicts of Interest in Contracts Remote Interest Exceptions � • Public official does not have 78 e an interest in a contract if: o IN v' the interest is "remote" ✓ the interest is disclosed to the legislative body and noted in official records ✓ and the official does not vote (applies only to multi-member bodies) 1 . Personal Public Officials B. Conflicts of Interest in Contracts Remote Interest Exceptions - Examples - Employee or officer of non-profit - Owner/partner of a firm who - Landlord or tenant of contracting serves as appointed member party of unelected board or - Salary or per diem from a commission directly involved government - Supplier of same goods and department services for 5 years prior to - Engineer, geologist, architect, election/appointment or planner employed by a - Employee of private party if: consulting engineering or ■ 10 or more employees, and architectural firm ■ Employed more than 3 years DiegoOakland Sacramento San Angelesmeyers nave Los Rosa meyersnave.coi-n 1 . Personal Public Officials B. Conflicts of Interest in Contracts Non-Interest Exceptions • Public official is deemed not interested and may participate in making of the contract. • Examples: - Ownership of less than 3% of stock, constituting less than 5% of income - Spouse of officer/employee of public agency, if the office holding or employment has existed at least one year prior to the spouse's election/appointment - Salary or per diem from a non-directly involved government department - Non-salaried member of non-profit, with disclosure and noting records DiegoCPEW Oakland AV Sacramento AV San AngelesRosa meyersnave.co, 1 . Personal Public Officials B. Conflicts of Interest i Contracts CDO DIRETY OT JAIL Consequences of Violations • Contract is void and unenforceable pp HOT PASS Gd, DO NOT GOLLECT $200 - Payments made to the contracting party must be returned to the public agency - Public agency may keep benefit of the contract • Willful violations are criminal - Permanently disqualified from holding office • FPPC now has jurisdiction and can issue administrative fines - Offering section 1090 advice SacramentoOakland San Diego meyers nave L Los Angeles Santa Rosa meyersnave.coi-n 1 . Personal Public Officials C. Conflicts of Interest in Campaign Contributions Basic Rule • Public officials are disqualified from making a decision involving a license, permit, or entitlement for use if official accepted a DON TE campaign contribution exceeding $250 in the preceding 12 months. �. - Exception for "directly elected" officials - Official may not accept a campaign contribution exceeding $250 while an application is pending, and for three months after the decision is made. SacramentoPOW San Diego meyers nave L Los Angeles Santa Rosa meyersnave.coi-n 1 . Personal Public D. Conflicts of Interest When leaving Office • One year ban on lobbying former agency Lobbying • Applies to elected officials, executives, Former and general managers Agency • Applies only if compensated and representing another person Decisions Involving 7 • Public officials and employees are prohibited from Prospect ive being involved in governmental decisions directly relating to a prospective employer Employers DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n 1 . Personal Public Officials E. Bribery Basic Rule • Elements of the crime - A governmental official (elected, appointed, employed); "anything of - Requests, takes, or agrees to take a bribe; and value Or - Represents that the bribe would unlawful) advantage, p Y influence vote decision, or opinion. present or Representation can be express or implied. prospective" • Must have corrupt intent that official duty would be unlawfully influenced DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n 41 Oakland Sacramento San Diego rn e y e r s nave Los Angeles Santa Rosa meyersnave.coin Question #1 • The Board of Directors and District Manager will beCa F Can the rn;qr;,rt r attending a conference and they ' District enter intJl, want to contract with a vendor i, an agreement with theBoard to make District pins that theymember? can all wear to the meeting. • A Board member owns a business that manufactures decorative pins and offers to provide the pins at a discount. Answer to Question # 1 • No, the District cannot enter into an agreement with the Board member's business even though the pins will be provided at a discount. DiegoOakland Sacramento San rneyers nave Los Angeles Santa '■ - ■ Question #2 • - District and SolarCity (owned • - are Can the District negotiating an energy contract with efficiency contract to SolarCity to construct • . panels install the on District panels? property • • : • . • members • • Tesla stock Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin Answer to Question #2 the District most likely can enter the agreement with SolarCity. The Board members' stock interests in Tesla is most likely a "non-interest" for purposes of Section 1090. — To be a "non-interest," the Board members must own less than 3% of Tesla's shares and earn no more than 5% of their annual income from the corporation . • However, depending on the value of the stock, Board members may have personal conflicts of interest under the PRA and would be required to recuse themselves even if the Board was able to enter into the agreement. DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.conn Question #3 Can the Board member participate in consideration of the contract? Ar i A Consultant seeks a contract for services 0 from the Board of A Board member received Directors. a $300 campaign contribution from the consultant 3 years ago. DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n Answer to Question #3 • Yes , Board members are directly elected by the voters and so the prohibition against receiving campaign contributions does not apply. DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n 11 . Laws Relating to Claiming Perquisites of Office A. Limitations on the receipt of gifts s B. Honoraria ban C. Misuse of public funds �ody Y1Re-� s..;i_ Assorted Party irufFes W D. Prohibitions against gifts of public funds NEEGvro-nra9} A' E . Mass mailing restrictions F. Prohibitions against acceptance of free or discounted transportation by transportation companies DiegoOakland Sacramento San meyers nave L Los Angeles Santa Rosa meyersnave.coi-n II . Laws Relating to Claiming Perquisites of Office A. Gifts Basic Rule Gift Limit Prohibition : • Gifts received in excess of $50 from Public officials and employees... a single source in a calendar year must be reported V May • Public Officials may not accept a gift not - pin excess of $470 from a single source in a calendaryear. From - • calendar V In excess of 1 (2018 limit) . Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 11 . Laws Relating to Claiming Perquisites of Office A. Gifts What is a Gift? • Anything of value thatFT provides a personal benefit for which the r donor does not receive UID equivalent consideration Includes rebates or discounts Q--* unless given in the regular course of business to members of the public 11 . Laws Relating to Claiming Perquisites of Office A. Gifts When is a Gift received? II � • The public official has actual possession of the gift; or • When the official takes any Give it back action exercising direction or donate it or control over the gift, including to charity discarding the gift or turning it over to another person . DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n 11 . Laws Relating to Claiming Perquisites of Office A. Gifts Numerous Exceptions • Gifts Returned • Disaster relief provisions • Gifts donated to charity • Travel and subsistence as (without claiming a part of campaign activities deduction) 0 Entrance to an event while • Gifts from family members performing a ceremonial • Informational material role (includes one guest) • Inheritance • Prizes received in a bona fide competition • Leave credits SacramentoPMF- f Oakland San Diego L Los Angeles Santa Rosa meyersnave.coi-n 11 . Laws Relating to Claiming Perquisites of Office A. Gifts Numerous Exceptions to Gift Rule • Benefits received as a • Bona fide dating �i guest attending a wedding relationship F • Bereavement offerings • Acts of human • Acts of neighborliness compassion • Reciprocal exchanges • Gifts from long-term, in a social relationship close personal friends • Personalized plaques or trophies valued less than $250 SacramentoOakland San Diego meyers nave F Los Angeles Santa Rosa meyersnave.corn 11 . Laws Relating to Claiming Perquisites of Office A. Gifts Limitations on Receipt of Gifts • Special Exceptions for Travel Payments — Some payments are not subject to limits and not reportable — Others are not subject to limits but are reportable — Travel rules are very specific; check with legal counsel if your travel will be paid for by a third party Diego�r Los Angeles Santa Oakland Sacramento San meyers nave '■ - ■ 11 . Laws Relating to Claiming Perquisites of Office B. Honoraria Ban Basic Rule Elected officials, district managers, : and the district counsel, may not accept any payment for: ➢ Giving a speech, ➢ Publishing an article, or ➢ Attending a public or private conference, convention, meeting, social event, meal, or similar gathering. DiegoOakland Sacramento San meyers nave F L—! Los Angeles Santa Rosa meyersnave.corn 11 . Laws Relating to Claiming Perquisites of Office B. Honoraria Ban Exceptions Donated to agency general fund Returned Made directly honorarium to a bona fide non-profit Bona fide business (teaching, practicing racticin Campaign law, banking, contributions medicine) ( but must be reported ) DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n 11 . Laws Relating to Claiming Perquisites of Office C. Misuse of Public Funds Basic Rule • Public officials and employees may not use public resources for any private gain — Whether financial or political • Government cannot expend resources to promote a partisan `n -BALLOT y ' position in an election campaign meaning,definition,explanation... — But it can educate about ballot measures Diego-19 fPV Oakland Sacramento San meyers nave Los Angeles Santa '■ - ■ 11 . Laws Relating to Claiming Perquisites of Office D. Gifts of Public Funds Constitutional Prohibition Public agencies may not make gifts of • • funds -, L I lk� • An expenditure is not a Legislative body's gift if it serves a public purpose, determination of even if it benefits a public purpose is a private party given deference if consistent with agency's purpose Oakland ■ San Diego meyers nave Los Angeles Santa Rosa meyersnave.corn 11 . Laws Relating to Claiming Perquisites of Office E. Mass Mailing Prohibition Basic Rule Mass „ ,, i • A mass mailing s., mailings — A tangible item sent or delivered may not be sent at — To 200 or more people within a calendar month public — That "features" an elected official by: expense • Including the photograph or signature, or • Singling out the official by the manner of display of name or office in the layout, such as headlines, captions, type size, or type color — For which the costs of design, production, and printing exceed $50 and are paid with public monies ��W P",fFV Oaklan Sacramento San Diego meyers I nave Los Angeles Santa Rosa meyersnave.coi-n 11 . Laws Relating to Claiming Perquisites of Office F. Acceptance of Free or Discounted Travel From Travel Companies FREE TRAVEL • California Constitution prohibits - public officers ( not all employees) from accepting free p g passes or discounts from a transportation company • Acceptance automatically forfeits his/her office • Prohibition does not apply to discounts offered to the general public DiegoPOW �9 f Oakland Sacramento San rneyers nave L Los Angeles Santa Rosa meyersnave.coi-n qqq Oakland Sacramento San Diego rn e y e r s nave Los Angeles Santa Rosa meyersnave.coin Question #4 • Your neighbor is going on UU-cU _ . vacation and gives you two r tickets to the Warriors game . Face value on each ticket is $200. Can you accept the tickets ? DiegoOakland Sacramento San meyers nave Los Angeles Santa '■ - ■ Answer to Question #4 • Yes, the combined value of the tickets is less than $470. — Assuming your neighbor has not given you any other gifts such that you have received more than $470 from him in the calendar year, you can accept the tickets. — However, as the gift is in excess of $S0, you will need to disclose the gift. Question #5 • Board member has campaign t-shirts made by a screen printing business that is located •� 5 minutes from the District's u main office . • District staff offers to pick up the t-shirts and return them to the May district staff Board member during regular retrieve the t-shirts ? business hours. DiegoOakland Sacramento San meyers nave 7 Los Angeles Santa '■ - ■ Answer to Question #5 • No, utilizing District staff time to obtain campaign t-shirts would constitute a misuse of public resources. — Public officials are prohibited from using public resources for private political gain . 111 , Government Transparency Laws A. Economic interest disclosure under the Political Reform Act B. Brown Act C. Public Records Act R m, r Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.com 111 . Government Transparency Laws Public Policy Considerations • Economic Interest Disclosure — The people have a right to know public officials' economic interests that may affect their official decisions • Right to access/information — The people have a right to access information that enables them to monitor the functioning of government. • Brown Act — The people have a right to be informed about the conduct of public business, and for legislative body deliberations and actions to be conducted openly (unless an exception applies). Sacramento0" f Oakland San Diego rneyers nave Fr- L Los Angeles Santa Rosa meyersnave.coi-n 111 . Government Transparency Laws A. Economic Interest Disclosure Under the Political Reform Act �HE ��' �� ..r 1"-}MS�11 RlMTAl1�1l�L�JlFII INSERT YOUR HEADLINE HERE • A Form 700 must be filed ry���rl�a iYJIT��-W 4 +ate h� by public officials including -�� .i Ia,.,.W V.. wrrrr wr ICY .rteµlama�those listed listed in an agency's -�- Conflict of Interest Code It's a public document! • Filed upon taking office, leaving office, and on an annual basis • Requires disclosure of personal financial interests DiegoOakland Sacramento San rneyers nave Los Angeles Santa '■ - ■ 111 , Government Transparency Laws Form 700 Key Points Statement of Economic Interests • Not required to list primary home Form 700 AFlu Nii Lh--cUMrnr • Remember to list spouse/domestic AmavarlobhcanMeFFACweb5rte, ■ Farm 7M in€WM farm 0i partner income ftfffVf3Crj9rA;hhk`jbrFxm 700 r.wffwr"Fab 4n riam%u i74F•Srrrarvrt a CR 7617+ r..,hAd, F Acku airs ago. Fag her A&w 4v I i W OeW FOr•7 PO 27T'7FF2 raYpFry r7�iiY?.`,...,-h4wb,r w�l�pct■� ONM"2M OaklandSacramento San Diego meyers ■ a ! Angeles 111 . Government Transparency Laws RaIph M. Brown Act Government Code sections 5495o et seq. IES pen & Public V T"E?Atp"A4 BROWN ACT i� LMM °"^�wrrr.mraatamnidus r I J L � Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 111 . Government Transparency Laws . ,, Brown Act Open Meeting Requirements 4 • Of Legislative Bodies... • Shall be open and public a�hb Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 111 , Government Transparency Laws Legislative Bodies What is a What is not a legislative body? legislative body? Governing • hoc body committee comprised of less than a Appointed quorum body Standing committee 9 Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 111 . Government Transparency Laws B. Brown Act Definition of "Meetings" • A congregation of a majority of the members at the same time and place to hear, discuss, or deliberate on an item of business within the agency's subject matter jurisdiction • Exceptions : - Conferences - Individual contacts - Community meetings - Standing committees - Social or ceremonial - Meetings of other occasions legislative bodies DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n 111 . Government Transparency Laws B. Brown Act—Avoiding "Serial Meetings" • Majority may not, outside a meeting, use a series of communications to discuss, deliberate, or take action on any item of business - Does not prevent employees and officials from engaging in separate conversations outside of a meeting provided that the comments or positions of the other officials are not communicated 111 . Government Transparency Laws B. Brown Act—Avoiding "Serial Meetings" ;.al Examples Hub and spoke 5 Astaff member the hub communicates with members of a legislative body (the spokes) one-by-one for input on a proposed action and in the process reveals members' positions to other members in advance of the meeting. DiegoFEW�9 C Oakland Sacramento San rneyers nave rrLos Angeles Santa '■ meyersnave.conn 111 , Government Transparency Laws B. Brown Act—Avoiding "Serial Meetings" Examples 1 Daisy Chain - . Member A contacts Member B. Member B contacts Member C. Member C contacts Member D and so on, until a quorum has discussed, deliberated or taken action on an item within the legislative body's subject matter jurisdiction . DiegoFEW _Wf Oakland Sacramento San rneyers nave L Los Angeles Santa '■ meyersnave.conn 111 . Government Transparency Laws B. Brown Act—Avoiding "Serial Meetings" Exa m p I es 5pra:Monday,lour 06,2016 11:40 PM aa�e T.3o ld Tmmplr. 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Government Transparency Laws B, Brown Actv Closed Closed• discussions . confidential LU • Required to publicly report certain actions taken in closedsession Permissible ClosedSession • • • Real estate negotiations Personnel • Pending or threatened Labor negotiations litigation Public security • Initiation of litigation Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 111 . Government Transparency Laws B. Brown Act SPECIAL May take action only MEETING on items on posted agenda NOTICE • Posting requirements : - Regular meetings • Exceptions must be posted 72 - Emergency hours before meeting - Urgency 4 need for - Special meetings must immediate action p g be posted 24 hours came to agency's before meeting attention after posting the agenda DiegoOakland Sacramento San meyers nave L Los Angeles Santa Rosa meyersnave.corn 111 . Government Transparency Laws B. Brown AlternativelIV, provide • agendaan integrated agenda management platform, with the current at the top. REBATES ' 5ervice Notifications Residential and commercial customers can BoardAgendaSMinutes qualify for up to $1 QQ per water service! QnlineBilling For more details, click through to our ProjectUgdates water efficiency webpage. eNews Sign Up Water Efficiency Upgrades? Employment Yau may qualify for a rebate! Read More a�o 0 0 0 Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 111 . Government Transparency Laws B. Brown Act Public Participation Rights Regular meetings must provide an opportunity for the public to F speak regarding any matter within the body's jurisdiction - Legislative body may briefly discuss these items and refer matters to staff, but cannot take action • Public can address the legislative body on matters on the agenda before or during consideration of the item Diego�9 C Oakland Sacramento San rneyers nave L Los Angeles Santa Rosa meyersnave.coi-n 111 . Government Transparency Laws B. Brown Public Participation 1 Public right - �► audio/video recordin Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 111 , Government Transparency Laws B. Brown Act • SB 1436 r _ r w • Requires an oral report in open session summarizing ' - the recommendation to , . . adjust the compensation of any "local agency executive" before action is taken . DiegoOakland Sacramento San meyers nave Los Angeles Santa '■ - ■ Oakland Sacramento San Diego rn e y e r s nave Los Angeles Santa Rosa meyersnave.coin Question #6 The : • . • establishes a standing committee of three of its seven members, which meets monthlyti A fourth Board • ' �r + to attend these meetings and participate . 1. May she attend . 2. Is this a Brown � Act violation? � � r ' Oakland Sacramento San Diego rn e y e r s nave Los Angeles Santa Rasa meyersnave.coin Answer to Question #6 Yes she may attend an open and noticed meeting of a standing committee of the District IF: v' She attends only as an observer v' And does not participate in the deliberations How does it become a violation? ➢ Attending the standing committee is not a violation of the Brown Act. ➢ However, if she participates in the discussions then it would be a violation . Question • A Board member e-mails a f newspaper article pertaining to an upcoming agenda item to the other 4 Board members. • The Board member indicates that she supports the agenda item based on the article and three Was this a Brown members respond back to the Act violation ? email and indicate that they also support the item and that the information was very helpful . DiegoAMMER CPV Oakland Sacramento San meyers nave L —1 Los Angeles Santa Rosa meyersnave.coi-n Answer to Question #7 • Yes , the Board members participated in a discussion of an item within the jurisdiction of the body that was not noticed, open or public. DiegoOakland Sacramento San meyers nave Los Angeles Santa '■ - ■ Question #8 • During public comment for items not listed on the agenda, a speaker requests that the Board write a letter of support on behalf of his cause. Is this a Brown • The Board proceeds to vote Act violation ? on writing the letter and it passes unanimously. Answer to Question #8 • Yes , the Board has taken action on an item that was not noticed on the agenda . ➢ Before taking action, the Board should have directed staff to put the item on the agenda for a future Board meeting for consideration/action . 111 . Government Transparency Laws C. Public Records Act Trans • , Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin 111 . Government Transparency Laws C. Public Records Act Basic Rule • All non-exempt, state and local government agency records in any form or medium are subject to public inspection during office hours or copying upon payment of duplication costs Record • Any tangible thing containing information relating i ' i to the conduct of the public's business prepared, owned, used, or retained by any state or local broadly agency regardless of physical form or characteristics. SacramentoOakland San Diego meyers nave Los Angeles Santa Rosa meyersnave.conn 111 , Government Transparency Laws C. Public Records Act Duty to Assist Requestors • Agencies are required to r — Assist requestors with identifying - records and information that _ are responsive to requestse or to the purpose of the requests - Describe the information technology and physical location in which the records exist - Provide suggestions for overcoming any practical basis for denying access to the records or information sought. DiegoPOW PFW Oakland Sacramento San rneyers nave Los Angeles Santa Rosa meyersnave.corn 111 . Government Transparency Laws C. Public Records Act Exemptions - • Draftsk - • Pending litigation - - • Personnel records - ` ` - --- • Medical, dental, and other insurance records • Closed session minutes and legal memoranda and other materials distributed in a closed session • Records protected by the attorney-client privilege DiegoAV AVOakland Sacramento San rneyers nave L Los Angeles Santa '■ - ■ 111 . Government Transparency Laws C. Public Records Act HOT Issues • Emails and text messages about public business on personal phones, devices, or accounts » Cal . Supreme Court held that these records are subject to disclosure in response to a Public Records Act request. (City of San Jose et al. v. Superior Court) • Accidental release of privileged documents OOPS! does not waive the privilege r J. » Recent decision by the CA Supreme Court (Ardon v. City of Los Angeles) �-- SacramentoOakland San Diego meyers nave L Los Angeles Santa Rosa meyersnave.coi-n Oakland Sacramento San Diego rn e y e r s nave Los Angeles Santa Rosa meyersnave.coin Question #9 • Over the course of several years, two Board members exchanged � r� emails about a properties in the 4 District with numerous delinquent ► "" "" �,' payment issues. They exchanged no other emails. How should the • All the emails were sent to and District respond. � from their private email accounts, which the Board members use for District business. • A member of the public asks the District for all emails between the two Board members. DiegoPOW -W �9 C Oakland Sacramento San rneyers nave L Los Angeles Santa Rosa meyersnave.coi-n Answer to Question #9 • The Supreme Court has decided that emails about public business exchanged between private email addresses on private devices are public records. • City of San Jose v. Superior Court ( March 2, 2017, S218066) IV. Laws Relating to Fair Processes A. Common law bias prohibitions B. Due process requirements C. Doctrine of Incompatible Offices D. Incompatible Activities E. Disqualification from participating in decisions affecting family members (anti-nepotism laws) F. Competitive bidding requirements for public contracts IV. Laws to Fair Processes Relating A. Common law Bias Prohibition • Elements: - A public officer... - Must exercise the powers conferred on him or her with disinterested skill, zeal, and diligence, and primarily for the benefit of the public ❖ One cannot be tempted by personal or pecuniary interests ❖ Applies to non-financial interests ❖ Disqualifies one from participating SacramentoOakland San Diego meyers nave Los Angeles Santa Rosa meyersnave.coi-n IV, Laws to Fair Processes Relating B. Due Process Requirements • Applies only to "quasi-judicial" matters i .e. those involving the application of existing rules to a ' specific set of facts) • "Procedural due process" gives those with a property interest a right to : - Notice and opportunity to be heard by - A fair and impartial decision maker DiegoAMMER CPMW Oakland Sacramento San meyers nave pff- L Los Angeles Santa '■ meyersnave.conn IV, Laws Relating to Fair C. Doctrine of Incompatible Offices • Government Code § 1099 • Elements - A person may not hold two 6 public offices simultaneously - If the potential for conflict or overlap in the functions or responsibilities in the office exist • Forfeiture of first office • Often requires individual analysis of specific offices • Common law rule often overridden by statute IV, Laws to Fair Processes Relating D. Anti-Nepotism Laws and Policies • Disqualification from participating in decisions affecting family members (anti-nepotism laws) rana - Political Reform Act requires Rt `l MUm recusal when decisions have uncle Mr :l ' t5t• r.' a material impact on one'souslnirothe �4sr spouse or dependent children . — Common law bias will require recusal in many cases. Diego_19 CPEW Oakland Sacramento San meyers nave r L _1 Los Angeles Santa Rosa meyersnave.corn IV, Laws to Fair Processes Relating E. Competitive Bidding Requirements • Public works projects above a certain amount must be awarded to lowest responsible bidder - Generally, applies only to construction projects l 341 417 J ?ra f;' 2f5 4,554 '�+• Oakland Sacramento San Diego meyers a Los AngelesRosa meyersnave.coi-n IV, Laws to Fair Processes Relating Competitive Bidding Requirements Not to protect bidders Guards against favoritism, O fraud, and corruption Q J Prevents waste of public funds Q Seeks to obtain best economic result for the public AMW6m A DiegoOakland Sacramento San meyers nave Los Angeles Santa Rosa meyersnave.coi-n Oakland Sacramento San Diego rn e y e r s nave Los Angeles Santa Rosa meyersnave.coin Question #10 • A Board member's best friend is applying for a District grant program . , • There are limited funds and `- +fes the District received dozens . of applications. Can the Board • The Board member knows that member participate in the decision to his best friend will be very upset i � award the grant.f he does not vote for his application and it could affect their relationship. DiegoOakland Sacramento San meyers nave Los Angeles Santa '■ - ■ Answer to Question # 10 It depends. • If, despite his personal relationship, the Board member can exercise his powers with disinterested skill, zeal, and diligence, and primarily for the benefit of the public, then he may participate in the decision . • If the Board member believes that his personal relationship would affect his ability to exercise his duties impartially, then he may have a common law conflict of interest and should recuse himself. Question #11 A member of the Board of Directors is ' • to the i • . • of Supervisors. May the Board member serve in-J both I I Y Oakland Sacramento San Diego m e y e r s nave Los Angeles Santa Rasa meyersnave.coin Answer to Question # 11 • No, these are incompatible offices. ! There is a possibility of a significant clash of duties between the two offices. ! Upon being sworn into the Board of Supervisors, the Board member will be deemed to have forfeited his position on the District's Board of Directors. Questions ? 1 . Contact your District Counsel or District Manager/Executive Director 2 . For Political Reform Act & Section 1090 advice and counsel, consider consulting FPPC.