Loading...
HomeMy WebLinkAbout04.a. (Handout) Ethics Training PowerPoint Presentation(Handox+) Al.q AB 1234 TRAINING REQUIREMENT General Ethics Principles Ethics Laws • Prohibition Against Personal Gain • Claiming the Perquisites of Office • Government Transparency Laws • Fair Process Laws 4 - Sula Am Offi.rf I � Condo Dial Questioned agno anne iw :ZxFnZ-- � E�Nft jF I -1111% GENERAL ETHICS PRINCIPLES Values such as trustworthiness, respect, faimess and responsibility promote public trust in government. Importance of avoiding even the appearance of impropriety. General Ethics Principles Ethics laws merely set minimum standards for conduct Ethics goes beyond legal requirements — About doing what we ought to do, rather than what's required — Complying with ethics laws does not ensure that you are meeting your own standards and values, or those of your constituents PROHIBITION ON USE OF OFFICE FOR PERSONAL GAIN Conflicts of interest • Contracting with one's own agency (Gov. Code § 1090) • Making decisions affecting a public official's economic interests (Political Reform Act) • Bribery Government Code section 84308 'Directly elected' exception Official is disqualified from making a decision involving a license, permit, or entitlement for use if official has accepted a campaign contribution exceeding $250 from the party within the preceding 12 months Official may not accept a campaign contribution exceeding $250 while such an application is pending, and for three months after the decision is made POLITICAL REFORM ACT OF 1974 The Political Reform Act applies to Public officials With a financial interest Making or attempting to influence a decision (Gov. Code § 87100) POLITICAL REFORM ACT OF 1974 When Does A Public Official Have A Conflict? • Reasonably foreseeable • Material financial effect • Economic interest • Different from the public generally POLITICAL REFORM ACT OF 1974 The 8 Steps To Determine Conflict Of Interest Step 1: Is the individual a public official? Step 2: Is the official making, participating or influencing a governmental decision? Step 3: What constitutes the economic interests of the official? Step 4: Is the economic interest directly or indirectly affected by the decision? Step 5: How will the economic interest be affected? (material financial affect) Step 6: Is it reasonably foreseeable that the economic interest will be materially affected? POLITICAL REFORM ACT OF 1974 Steps 7 And 8: The Exceptions Step 7. Distinguishable from the public generally? Step 8. Does the 'legally required participation" rule apply? POLITICAL REFORM ACT OF 1974 Step 1 IS THE INDIVIDUAL A PUBLIC OFFICIAL? Includes every natural person who is a member, official, employee, or consultant of a public agency Consultant POLITICAL REFORM ACT OF 1974 Step 2 IS THE OFFICIAL MAKING, PARTICIPATING IN OR INFLUENCING A GOVERNMENTAL DECISION? - Making - Participating - Influencing *Note: Prohibition much broader than simply abstaining from final vote POLITICAL REFORM ACT OF 1974 Step 3 • WHAT IS THE OFFICIAL'S ECONOMIC INTEREST? • Business Investments - $2,000 or more • Business Management Position — Director, Official. Partner, Trustee or any position of management • Real Property - $2.000 or more located in or within two miles ofjurisdiction • Sources of Income - $500 or more within 12 months • Sources of Gifts - $420 or more within 12 months • Personal Financial Effects — increase or decrease within 12 months POLITICAL REFORM ACT OF 1974 Step 4 • IS THE ECONOMIC INTEREST • DIRECTLY OR INDIRECTLY AFFECTED • BY THE DECISION? - Business entities, management positions, sources of income ohgins - Real Property - Personal Financial Effect 0 POLITICAL REFORM ACT OF 1974 Step 5 WILL THE ECONOMIC INTEREST BE MATERIALLY AFFECTED? Direct = deemed material Indirect = depends on the rules POLITICAL REFORM ACT OF 1974 Step 6 IS IT REASONABLY FORESEEABLE THAT THE ECONOMIC INTEREST WILL BE MATERIALLY AFFECTED? "Substantial Likelihood" Not merely speculative POLITICAL REFORM ACT OF 1974 Steps 7 and 8: The Exceptions Step 7: Distinguishable from the public generally? (Significant Segment) Step 8: Does the "legally required participation" rule apply? -when no alternative source of decision- making - not to break a fie - not if quorum can possibly be convened of other members who do not have a conflict POLITICAL REFORM ACT OF 1974 Recusal Actions Required Section 87105 • Publicly identify interest in sufficient detail • Recuse self from discussions or acting on matter • Leave room, unless matter on consent agenda • Exception: May speak during public comment POLITICAL REFORM ACT OF 1974 Penalties for Violation of Political Reform Act • Administrative Fine • $5,000 fine per violation imposed by FPPC • Civil Remedy - 11 official derived economic benefit from decision, fine could amount to 3 times the benefit received • Criminal Sanctions • If the official knowingly or willingly violated the law: misdemeanor conviction, fine of $10,000 or 3 times value of benefit conferred (whichever is greater and the official may not be a candidate for public office for 4 years(. GOVERNMENT CODE SECTION 87407 Disqualification from making, participating or using official position to influence any governmental decision directly relating to any person with whom public official is negotiating or has any arrangement concerning prospective employment GOVERNMENT CODE SECTION 1090 California Government Code Section 1090 prohibits an officer or employee of a public agency from participating in the making of a contract in which he or she has a financial interest GOVERNMENT CODE SECTION 1090 Financial Interest In A Contract -"Financial interest" includes both direct and indirect interests -Determination based on the connection between the contract and the official's interest GOVERNMENT CODE SECTION 1090 Contracts Subject To Section 1090 • Contracts are defined broadly • Includes renewal, extension, or renegotiation of existing contract GOVERNMENT CODE SECTION 1090 "Participation" In Making A Contract Preliminary discussions Negotiations Compromises Reasoning Planning Drawing of plans and specifications Solicitation for bids GOVERNMENT CODE SECTION 1090 Scope Of Section 1090 Conflict Abstention does not cure Section 1090 problem Entire governing body is precluded from entering into the contract GOVERNMENT CODE SECTION 1090 Exceptions To Section 1090 • Remote interest (e.g. non - salaried officer of non - profit) • Non - interest (e.g. salary per diem from another government agency) • Rule of necessity 10 GOVERNMENT CODE SECTION 1090 Violation Of Section 1090 • Contracts made in violation of Section 1090 are void and unenforceable • Payments made to the contracting party must be returned to the public agency • Public agency entitled to retain any benefits it received GOVERNMENT CODE SECTION 1090 Personal Consequences Government Code Section 1097 provides that willful violations of Section 1090 are punishable by fine, imprisonment, and permanent disqualification from holding any office in California _M GOVERNMENT CODE SECTION 1090 No Execution =No Violation If the prohibited contract is never executed, there is no violation of Section 1090 If a potential Section 1090 conflict is discovered, don't allow the contract to be executed GOVERNMENT CODE SECTION 1090 Caution Even if a Section 1090 conflict does not exist, there may still be a conflict under the Political Reform Act • A public official • Receives or agrees to receive any bribe • Official action influenced • Penalties - CLAIMING THE PERQUISITES ( "PERKS ") OF OFFICE State law places significant restrictions on the 'perks" that a public official may receive. Regulated categories of 'perks" include- • Transportation by transportation companies Gifts • Travel Payments • Honoraria • Misuse of Public Resources • Mass Mailing at Public Expense • Gifts of Public Funds 12 ILLEGAL GIFTS OF TRANSPORTATION PROHIBITION • No free passes or discounts from transportation companies • Severe penalty III • Applies to all forms of transportation r GIFT AND TRAVEL RESTRICTIONS No gifts from a single source aggregating in excess of $420 (normally adjusted every two years) Gifts aggregating $50 or more must be disclosed on a Form 700 GIFT AND TRAVEL RESTRICTIONS • What is a gift? or 'Any payment a olha benen conkmng a personal Worth for which Me pub c olfici d does not prowde goods or services olequal or greater value • When is a gift accepted? 'A Ph. been recelvdd or accepted when the public oftctul takes actual possession of to gift or Memoirs direction or control Mon Me gift including ciscarding the gill a turning it over b Other pencon. 13 Gifts to Members of an Official's Family Immediate family includes spouse and dependent children Gifts to Members of an Official's Family Gift given solely to a member of the official's family will be attributed to the official, reportable, and subject to the gift limits if the gift confers a "clear personal benefit on the official." — Reasonably foreseeable that the official will enjoy a financial benefit from the gift. — Reasonably foreseeable that the official will use the gift, except for minimal use — The official exercises discrefion and control over who will use or dispose of the gift. GIFT AND TRAVEL RESTRICTIONS Exceptions to Gift Limitations Exceptions to gift restrictions: • Gifts returned or donated to charity within 30 days of receipt (without claiming a deduction) • Gifts from family members • Informational material (books, papers) • Birthday presents of equal value • Bequest or inheritance 14 GIFT AND TRAVEL RESTRICTIONS Exceptions to Gift Limitations Gift to the Public Agency • Agency must control use of the gift • Gift must be used for official agency business • Agency must report on Form 801 TICKETS OR PASSES Admission to a facility, event, show or performance for an entertainment. amusement recreational or similar purpose Not a gift if provided: — for official's admission to an event at which the helshe performs a ceremonial hole or function on behalf of the agency; QR — by the official's agency when official treats the ticket or pass as income consistent with lax laws and the agency reports the ticket or pass as income to the official Pasted w agi, q's waESAe Mi 00 days • TrusmNed m FPPC, it w webvk Fundraising event An official may accept, for his or her own use, a single ticket (new) or other admission privilege to a specific fundraising event provided by a nonprofit or political organization holding its own fundraiser. 15 GIFT AND TRAVEL RESTRICTIONS Gifts of Travel Travel payments may be subject to gift limit restrictions and /or may be reportable GIFT AND TRAVEL RESTRICTIONS Travel Payment Exceptions Reimbursement for travel for the following is not subject to the $420 gift limit or reporting requirements: • Speeches or participation on a panel for official agency business, other than elected officials or officials specified in Gov. Code § 87200, who must report • Reimbursement provided by the official's government agency (compliance with agency's own policy required) • Travel paid for from campaign funds GIFT AND TRAVEL RESTRICTIONS Travel Payment Exceptions (cont'd) Travel payments not subject to the gift limit, but which may be reportable: • Reasonably necessary in connection with a business, hale, or Profession • Speech or participation on a panel inside U.S. misted to govrl purpose for elected officials and officials specified in Gov. Code § 87200 Travel that is reasonably related to a legislative or govemmental purpose, or to an issue of Stale, national or international policy AND is provided by a govemmen6 government agency, foreign government, public or private educational inslltution, or a 501 (c)( 3 ) non-profit or foreign equivalent E GIFT AND TRAVEL RESTRICTIONS Honoraria Ban O No honoraria may be accepted What is an honorarium? 'Any payment made in consideration for any speech give, article published, or attendance of any public or private conference, convention, meeting, social event, meal or a like gathering. MMEMMUMi GIFT AND TRAVEL RESTRICTIONS Honoraria Exceptions Not prohibited and not required to be disclosed on a Form 700, for example: • Returned honorarium • Honorarium donated to agency general fund • Honorarium made directly to a bona fide non -profit organization • Campaign contributions (but must be reported) PROHIBITION AGAINST USE OF PUBLIC RESOURCES FOR PERSONAL OR POLITICAL PURPOSES Local officers and employees may not use public funds for personal purposes, including political activity • Public Funds: Includes money as vrell as equipment, supplies, compensated staff lime, and use of telephone, computers and fax machines • Penalty: If misuse of public funds is more than incidental or minimal, it may be prosecuted as a felony crime and violators may be barred from holding office 17 MASS MAILING RESTRICTIONS Items mailed at public expense may not: Feature an elected officer Menton an elected officer if prepared in coordination with the elected officer MASS MAILING RESTRICTIONS Exceptions to Mass Mailing Restrictions • Letterhead • Press releases • Communications between government agencies • Intra- agency communication • Bills and legal notices • Telephone directory, organizational chart or similar roster ILLEGAL GIFTS OF PUBLIC FUNDS The California Constitution prohibits a legislative body from approving a gift of public funds to a private person or group. • Gift of public funds = Expenditure that does not serve a substantial public purpose 18 GOVERNMENT TRANSPARENCY LAWS ! ►: r ;tee: r GOVERNMENT TRANSPARENCY LAWS • Economic Disclosure Laws (Form 700) • Open Meeting Laws (The Ralph M. Brown Act) • Public Records Laws (Public Records Act) GOVERNMENT TRANSPARENCY LAWS Form 700 • Must be filed upon taking office, leaving office, and on an annual basis • Require disclosure of personal financial interests • Alert public officials to personal interests that might be affected • Help inform the public about potential conflicts of interest 19 GOVERNMENT TRANSPARENCY LAWS GOVERNMENT TRANSPARENCY LAWS The Ralph M. Brown Act "ALL MEETINGS OF THE LEGISLATIVE BODY OF THE LOCAL AGENCY SHALL BE OPEN AND PUBLIC AND ALL PERSONS SHALL BE PERMITTED TO ATTEND ANY MEETING EXCEPT AS OTHERWISE PROVIDED" (Gov. Code § 54953) GOVERNMENT TRANSPARENCY LAWS Meeting Defined • "Any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate on any item that is within the subiect matter iurisdiction of the legislative body or the local agency to which it pertains." 20 The Ralph M. Brown Act GOVERNMENT TRANSPARENCY LAWS Meeting Exceptions A "meeting" is NOT: — Individual contacts by members; — Attendance at a conference or open and public community meeting; — Attendance at a social or ceremonial function; or — Observing an open meeting of that body's standing committees. GOVERNMENT TRANSPARENCY LAWS Legislative Bodies Local Governing Body (ex: Board of Directors, City Council), including new y elected members. Commission or Committee (if created by ordinance, resolution or formal action of the legislative body). Permanent or temporary Decisionmaking or advisory 21 GOVERNMENT TRANSPARENCY LAWS EXCEPTION An ad hoc advisory committee consisting solely of less than a quorum of the legislative body is not subject to the Brown Act. GOVERNMENT TRANSPARENCY LAWS Serial meetings Legislative body may not reach a collective concurrence by direct communication, intermediaries, or technology Examples: - Daisy Chain - A calls B; B calls C; etc. - Email -"Reply all' - Hub and Spoke - Intermediaries (can be a person or a document) GOVERNMENT TRANSPARENCY LAWS Meeting - Location • Accessible to disabled individuals Inside the public agency's boundaries, unless: - No facility within boundaries - Complying with law or court order - Inspecting real or personal property - Multi- agency meeting in another jurisdiction - Meet with state or federal officials - Closed session with attorney on pending litigation - Video or teleconferencing 22 GOVERNMENT TRANSPARENCY LAWS Meeting - Regular Notice & Agenda 72 hours advance posting Time and location • Description of each business item • Alternate formats for disabled individuals • Public comment period • No discussion of non - agendized items (brief responses to questions okay) GOVERNMENT TRANSPARENCY LAWS Meeting - Special Notice & Agenda • Special Meetings - Called by presiding officer or mapnly - 24 hour posting /notice - Content same as regular agendas - Public comment only on agenda items - No consideration of non- agendized matters • Emergency - Imminent threat to public health or safely - t hour notice, but less if crippling disaster - Called by any member, content as necessary GOVERNMENT TRANSPARENCY LAWS Meeting- Closed Sessions Regular agenda requirements "Safe harbors" - Real estate negotiations - Pending litigation - Personnel - Labor negotiations - Public security Announcements of reportable actions in open session 23 Penalties and Remedies Criminal Action Where "action taken" in violation of Act and Where member intends to deprive public of information to which the member knows or has reason to know the public is entitled under this chapter, member is guilty of a misdemeanor Penalties and Remedies Civil Remedies • Injunctive Relief • Invalidation of Action • Notice to Cure • Attorney's Fees GOVERNMENT TRANSPARENCY LAWS 24 California Public Records Act (Gov. Code § 6250 at seq.) GOVERNMENT TRANSPARENCY LAWS California Public Records Act (Gov. Code § 6250 et seq.) The Public Records Act makes all non - exempt, state and local government agency records (including reasonably segregable, non - exempt portions of otherwise exempt records) in any form or medium subject to public inspection during office hours or copying upon payment of duplications costs. GOVERNMENT TRANSPARENCY LAWS What is a Public Record? "...any wrifing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." (Gov. Code § 6252(e)) GOVERNMENT TRANSPARENCY LAWS What Is A Public Record? (cont'd) ..any writing... Includes any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. (Gov. Code § 6252(f).) 25 GOVERNMENT TRANSPARENCY LAWS What is a Public Record? (Cont'd) "...information relating to the conduct of the public's business..." The mere custody of a writing by a public agency does not make it a'public record' under the Act. But if a record is kept by an officer because it is necessary or convenient to the discharge of official duties, it is a'public record.' GOVERNMENT TRANSPARENCY LAWS Duty to Assist • Assist the requester to identify records and information that are responsive to the request or to the purpose of the request, if staled • 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 GOVERNMENT TRANSPARENCY LAWS Public Records Exempt from Disclosure • Preliminary drafts, notes, or interagency and intra - agency memoranda • 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 attomeyclient privilege 26 GOVERNMENT TRANSPARENCY LAWS Other Resources Confer with legal counsel • FPPC Website: Economic Disclosure Fact Sheet • The Brown Act: Open Meetings for Legislative Bodies (2003) • Open & Public IV: A User's Guide to the Ralph M. Brown Act The People's Business, LOCC (2008) FAIR PROCESS REQUIREMENTS FAIR PROCESS REQUIREMENTS Fair Processes The Constitution, state law, and ffre common law all have a role in ensuring that public agencies operate fairly and avoid arbitrary decisions. The laws include: • Common law bias prohibitions • Due process requirements • Incompatible offices • Incompatible activities • Disqualification from participating in decisions affecting family members • Competitive bidding requirements 27 FAIR PROCESS REQUIREMENTS Common Law Prohibition Against Bias 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 No pre - determined, unchangeable positions for or against a particular party or individual FAIR PROCESS REQUIREMENTS Due Process Clause of 14th Amendment In quasi - judicial proceedings, officials should: (a) Act in a fair and impartial manner; (b) Apply legal standards to facts; and (c) Provide an opportunity to be heard and to rebut evidence FAIR PROCESS REQUIREMENTS Incompatible Offices A public officer who is appointed or elected to another public office automatically vacates the first office if the two are incompatible W INCOMPATIBLE ACTIVITIES A local agency officer and employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties (Gov. Code § 1126) Fair Processes Requirements Disqualification from Participating in Decisions Affecting Family Members Statutes and common law generally prohibit government officials from favoring or participating in decisions affecting family members or relations • Political Reform Act definition of financial interest FAIR PROCESS REQUIREMENTS Competitive Bidding Requirements The District must competitively bid District projects over $15,000 No project/bid splitting V VOODOO - 0M FAIR PROCESS REQUIREMENTS Definition of District Project "District project" Any construction, reconstruction, alteration, enlargement, renewal, or replacement of sewer facilities which the district is authorized to do, including, but not limited to, the furnishing of supplies or materials for any such work. Contact Us With Questions • Richard Pio Roda— rmorodaPmeversnave.com • Jennder Paught— ifauzhtPmeversnavecom 510 - 808 -2000 30