REGULAR CITY COUNCIL MEETING AGENDA
City Hall - Council Chambers
4381 Broadway St., Suite 201, American Canyon
October 1, 2024
6:30 PM
Tonight's mee&ng is a limited public forum. American Canyon promotes respec/ul and responsible behavior among its mee&ng par&cipants, whether they are present in person or remotely. Using offensive language or remarks that promote, foster, or perpetuate discrimina&on based on race, creed, color, age, religion, gender marital status, status regarding public assistance, na&onal origin, physical or mental disability or sexual orienta&on/gender iden&fica&on, as well as any other category protected by federal, state or local laws will not be tolerated. In the case of an occurrence, the speaker will be immediately disconnected from the microphone.
PUBLIC PARTICIPATION
City Council and other public mee"ngs will be conducted in person. This mee"ng is also available via Zoom, is broadcast live to residents on Napa Valley TV, on our website and on YouTube.
Zoom Link: Click here. Webinar ID: 862 3299 1024; Passcode: 12345.Phone in to Zoom: 408-638-0968 Oral comments, during the meeting: Oral comments can be made in person during Open and Closed Session or through Zoom in Open Session only. On Zoom use the "raise your hand" tool during any public comment period.
To avoid confusion, hands raised outside of Public Comment periods will be lowered.
Wri:en comments: Submit wri4en comments by the eComments link, located on the Mee"ngs & Agendas page of our website. eComments are available to council members in real "me. To allow for Council review of comments, eComments will close at 3:00 pm on the day of the meeting.
The above iden"fied measures exceed all legal requirements for par"cipa"on in public comment, including those imposed by the Ralph M. Brown Act. For more informa"on, please call the Office of the City Clerk at (707) 647-4369 or email [email protected].
AGENDA MATERIALS: City Council agenda materials are published 72 hours prior to the mee-ng and are available to the public via the City’s website at www.cityofamericancanyon.org.
AMERICANS WITH DISABILITIES ACT: The City Council will provide materials in appropriate alterna"ve formats to comply with the Americans with Disabili"es Act. Please send a wri4en request to City Clerk at 4381 Broadway, Suite 201, American Canyon, CA 94503 or by email to [email protected]. Include your name, address, phone number and brief descrip"on of the requested materials, as well as your preferred alternative format or auxiliary aid, at least three calendar days before the meeting. 5:30 P.M. – CLOSED SESSION
The mayor will call the meeng to order and conduct roll call. Council will immediately convene into Closed Session aer hearing any public comment on Closed Session items. At 6:30 p.m. the Council will reconvene into Open Session and then resume Closed Session at the end of the meeting to address outstanding items, if necessary.
Mayor: Leon Garcia
Vice Mayor: David Oro
Councilmembers: Mariam Aboudamous, Mark Joseph, Pierre Washington CITY COUNCIL MEETING AGENDA OCTOBER 1, 2024
1 CALL TO ORDER - CLOSED SESSION
ROLL CALL - CLOSED SESSION
PUBLIC COMMENTS - CLOSED SESSION ITEMS
This me is reserved for members of the public to address the City Council on Closed Session Items only. Comments must be made in person and are limited to 3 minutes. Comments for items on the Open Session agenda will be taken when the item is called in Open Session. Comments for Items not on the Closed Session or Open Session agenda will be heard during the Open Session Public Comment period.
MEETING RECESS - COUNCIL TO CONVENE IN CLOSED SESSION
5:30 P.M. CLOSED SESSION ITEMS
1. Conference with Legal Counsel – An&cipated Li&ga&on. Authorized pursuant to Government Code Section 54956.9 (d)(2). Three (3) Matters.
Recommendation:
2. Conference with Legal Counsel - Exis&ng Li&ga&on. Authorized pursuant to Government Code Section 54956.9(d)(1):
a. City of American Canyon v. City of Vallejo, et al. (Sacramento Superior Court Case No. 34-2022-00327471).
b. City of Vallejo v. City of American Canyon et al . (Sacramento County Superior Court Case No. 23WM000055).
c. City of Vallejo v. City of American Canyon et al . (Sacramento County Superior Court Case No. 24WM000078).
d. City of Vallejo v. City of American Canyon et al. (Marin County Superior Court Case No. CV0003752).
6:30 P.M. OPEN SESSION - REGULAR MEETING
CALL TO ORDER - COUNCIL TO RECONVENE IN OPEN SESSION
PLEDGE OF ALLEGIANCE
ROLL CALL - OPEN SESSION
REPORT ON CLOSED SESSION/CONFIRMATION OF REPORTABLE ACTION
PROCLAMATIONS AND PRESENTATIONS
3. Proclamation - Filipino Heritage Month
4. Proclamation - October 2024 National Code Compliance Appreciation Month
5. Proclamation - National Community Planning Month 2024 CITY COUNCIL MEETING AGENDA OCTOBER 1, 2024
2 PUBLIC COMMENTS - ITEMS NOT ON CLOSED SESSION OR OPEN SESSION AGENDA This me is reserved for members of the public to address the City Council on items that are not on the Closed Session or Open Session agenda and are within the subject ma(er jurisdicon of the City Council. Comments are limited to 3 minutes. Comments for items on the Open Session agenda will be taken when the item is called in Open Session.The City Council is prohibited by law from taking any acon on ma(ers discussed that are not on the agenda, and no adverse conclusions should be drawn if the City Council does not respond to public comment at this time.
AGENDA CHANGES
The Mayor and Council may change the order of the Agenda or request discussion of a Consent Item. A member of the Public may request discussion of a Consent Item by making that request during Public Comment.
CONSENT CALENDAR
6. Minutes of September 17, 2024
Recommendation: Approve the minutes of the Regular City Council mee"ng of September 17, 2024.
7. Report Upon Return from Closed Session
Recommendation: Approve the Report Upon Return from Closed Session for the City Council meeting of September 17, 2024.
8. Contract Amendment #3 with Robert Half Interna&onal Inc. for Temporary Staffing Services
Recommendation: Adopt a Resolu"on authorizing the City Manager to execute Amendment #3 to Agreement No. 2022-A148 with Robert Half International Inc.
PUBLIC HEARINGS
9. Oat Hill Multifamily Residential Major Modification
Recommendation: Consider a Resolu"on approving a Major Modifica"on to the Oat Hill Mul"family Residen"al Project Parcel A and B Design Permits located on the east side of Oat Hill south of Napa Junction Road (PL24-0009)
BUSINESS
10. City Council Code of Conduct and Governance Protocols Recommendation: Provide feedback on a draN City Council Code of Conduct and Governance Protocols
MANAGEMENT AND STAFF ORAL REPORTS
11. Wastewater Enterprise Update
MAYOR/COUNCIL COMMENTS AND COMMITTEE REPORTS
The Mayor and Council may comment on ma(ers of public concern and announce ma(ers of public interest; no collective council action will be taken.
CITY COUNCIL MEETING AGENDA OCTOBER 1, 2024
3 FUTURE AGENDA ITEMS
12. Future Agenda Items of Note
ADJOURNMENT
CERTIFICATION
I, Taresa Geilfuss, City Clerk for the City of American Canyon, do hereby declare that the foregoing agenda of the City Council was posted in compliance with the Brown Act prior to the meeting date. ______________________________________
Taresa Geilfuss, CMC, City Clerk
CITY COUNCIL MEETING AGENDA OCTOBER 1, 2024
4 CITY OF AMERICAN CANYON
PROCLAMATION
October 2024 is Filipino American Heritage Month
WHEREAS, in 2009, the United States Congress recognized October as Filipino American Heritage Month in the United States; and
WHEREAS, Filipino Americans are the second-largest Asian American group in the nation and the thirdlargest ethnic group in California; and WHEREAS, the celebration of Filipino American History Month in October commemorates the first recorded presence of Filipinos in the continental United States, which occurred on October 18, 1587, when “Luzones Indios” came ashore from the Spanish galleon Nuestra Senora de Esperanza and landed at what is now Morrow Bay, California; and
WHEREAS, through the development of these three institutions – Filipino American Studies (FAS), Filipino American National Historical Society (FANHS), and Filipino American History Month (FAHM) – we recognize how Filipino Americans have initiated collective, grassroots efforts to ensure that their voices are heard, that their experiences are recognized, and their histories are told; and WHEREAS, we acknowledge these major historical markers in our community, and we encourage Filipino Americans and their allies across the country to collectively celebrate Filipino American Heritage Month with these legacies in mind; and
WHEREAS, we recognize the many ways that Filipino Americans have made significant economic contributions and have other profound positive influences on our community through their strong commitment to family, faith, education, hard work, culture, and service; and WHEREAS, in acknowledging the many legacies created by Filipino Americans across the United States, and in American Canyon, we encourage our community members to be enriched by the cultural contributions of our Filipino-American friends and neighbors for many decades to come.
NOW, THEREFORE, BE IT RESOLVED that I, Mayor Leon Garcia, on behalf of the entire City Council, do hereby proclaim October 2024 as Filipino American Heritage Month in the City of American Canyon.
Dated: October 1, 2024 ________________________________ Leon Garcia, Mayor
5 CITY OF AMERICAN CANYON
PROCLAMATION
NATIONAL CODE COMPLIANCE APPRECIATION MONTH
OCTOBER 2024
WHEREAS, Code Enforcement Officers provide health, safety, and welfare to communities throughout the State of California by educating, and when necessary, enforcing local, state, and federal laws; and WHEREAS, Code Enforcement Officers have challenging and demanding roles and often do not receive recognition for their work to maintain and improve resident quality of life and business economic vitality; and WHEREAS, Code Enforcement requires extensive knowledge of building, zoning, housing, animal control, environmental, health, and life safety; and
WHEREAS, Code Enforcement Officers possess expertise and training in Code Enforcement certification, California Law Enforcement Telecommunications System certification, mediation, and conflict resolution; and WHEREAS, Code Enforcement Officers are often facilitate assistance to homebound and vulnerable residents in need; and
WHEREAS, Code Enforcement Officers frequently coordinate their efforts with building officials, law enforcement, fire safety, and legal personnel; and
WHEREAS, Code Enforcement Officers have a highly visible role in the communities they serve and respect individual’s lifestyle choices when explaining neighborhood preservation rules and regulations; and WHEREAS, Code Enforcement Officers often work nights, and weekends; sometimes under dangerous conditions to keep American Canyon residents and businesses safe from hazards; and WHEREAS, the American Association of Code Enforcement recognizes and honors Code Enforcement Officers and Professionals to bring awareness to the importance of Code Enforcement to the communities of the United States.
NOW, THEREFORE, THEREFORE, BE IT RESOLVED, that the City Council of the City of American Canyon hereby recognizes and expresses its appreciation for the dedication and service of our Code Enforcement Officers.
Dated: October 1, 2024
___________________________________
Leon Garcia, Mayor
6 CITY OF AMERICAN CANYON
PROCLAMATION
NATIONAL COMMUNITY PLANNING MONTH
OCTOBER 2024
WHEREAS, constant change affects all jurisdictions including the City of American Canyon; and WHEREAS, community planning provides a framework to enable all residents to work together to bring positive change with better choices for how people work and live; and WHEREAS, community planning facilitates proactive decision making to anticipate and address future challenges; and
WHEREAS, community planning identifies and balances competing interests within the community, ensuring that diverse viewpoints are considered and integrated into the planning process; and WHEREAS, community planning supports economic development by guiding long-term needs for infrastructure and public services which creates a stable and predictable environment for investment and growth; and
WHEREAS, community planning promotes sustainable practices and resilience, helping communities to adapt to environmental changes and reduce their ecological footprint; and WHEREAS, community planning provides a basis for informed decision-making by local governments, ensuring that policies and actions are aligned with the community’s long-term goals; and WHEREAS, October is designated throughout the United States of America as National Community Planning Month by the American Planning Association to remind and celebrate the contributions of sound planning.
NOW, THEREFORE, BE IT RESOLVED, that I, Mayor Leon Garcia, and the City Council of American Canyon, do hereby proclaim October 2024, as “Community Planning Month” in the City of American Canyon.
Dated: October 1, 2024
__________________________________________
Leon Garcia, Mayor
7 CITY OF AMERICAN CANYON
REGULAR CITY COUNCIL MEETING
ACTION MINUTES
September 17, 2024
4:00 P.M. – CLOSED SESSION
CALL TO ORDER - CLOSED SESSION
The City Council meeting was called to order at 4:07 p.m.
ROLL CALL - CLOSED SESSION
Present: Councilmember Mark Joseph, Councilmember Pierre Washington, Vice Mayor David Oro, Mayor Leon Garcia
Absent: None
Excused: Councilmember Mariam Aboudamous
PUBLIC COMMENTS - CLOSED SESSION ITEMS
Mayor Garcia called for public comments. Written comments: none. Oral comments: none. The public comment period was closed.
MEETING RECESS - COUNCIL TO CONVENE IN CLOSED SESSION
CLOSED SESSION ITEMS
1. Conference with Legal Counsel – Anticipated Litigation. Authorized pursuant to Government Code Section 54956.9 (d)(2). Two (2) Matters.
Action:
2. Conference with Legal Counsel - Existing Litigation. Authorized pursuant to Government Code Section 54956.9(d)(1):
a) City of American Canyon v. City of Vallejo, et al. (Sacramento Superior Court Case No. 34- 2022-00327471).
b) City of Vallejo v. City of American Canyon et al. (Sacramento County Superior Court Case No. 23WM000055).
c) City of Vallejo v. City of American Canyon et al. (Sacramento County Superior Court Case No. 24WM000078).
d) City of Vallejo v. City of American Canyon et al. (Marin County Superior Court Case No.
CV0003752).
8 3. Conference with Real Property Negotiators - Authorized Pursuant to Government Code Section 54956.8
a) Property: Northeast corner of Eucalyptus Drive and Greenwing. APNs: 058-030-016-000, 058-030-018-000; Agency negotiator: Jason Holley, City Manager; Under negotiation:
Price and terms of payment
b) Property Address: 25 Medeiros Lane (APN 058-270-001-000); Agency negotiator: Jason Holley, City Manager; Under negotiation: Price and terms of payment c) Property Address: 5750 South Kelly Road (APN's 057-090-065, 066 & 068) Agency negotiator: Jason Holley, City Manager; Under negotiation: Price and terms of payment. 6:30 P.M. OPEN SESSION - REGULAR MEETING
CALL TO ORDER - COUNCIL TO RECONVENE IN OPEN SESSION
The City Council meeting was called to order at 6:34 p.m.
PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was recited.
ROLL CALL - OPEN SESSION
Present: Councilmember Mark Joseph, Councilmember Pierre Washington, Vice Mayor David Oro, Mayor Leon Garcia
Absent: None
Excused: Councilmember Mariam Aboudamous
REPORT ON CLOSED SESSION/CONFIRMATION OF REPORTABLE ACTION A report on Closed Session and confirmation of reportable action was given by City Attorney William Ross.
PROCLAMATIONS AND PRESENTATIONS
4. Proclamation - Suicide Prevention Month
Mayor Garcia announced the Suicide Prevention Month proclamation. It was received by Prevention Director Jeni Olsen and Bilingual Prevention Specialist Arturo Garcia of MENTIS, Napa's Center for Mental Health Services.
5. Proclamation - National Recovery Month
Mayor Garcia announced the National Recovery Month proclamation. It was received by Assistant Deputy Director of Behavioral Health Nathan Hobbs, Napa County Health and Human Services, Behavioral Health Division.
9 6. Presentation - Napa County Mosquito Abatement District Council received a Napa County Mosquito Abatement District presentation from District Manager Wes Maffei.
PUBLIC COMMENTS - ITEMS NOT ON CLOSED SESSION OR OPEN SESSION AGENDA Mayor Garcia called for public comments. Written comments: none. Oral comments: Steve Reilly was called to speak; Bernice Newell was called to speak; Beth Marcus was called to speak. The public comment period was closed.
AGENDA CHANGES
There were no changes to the agenda.
CONSENT CALENDAR
Action: Motion to adopt the CONSENT CALENDAR made by Councilmember Pierre Washington, seconded by Vice Mayor David Oro, and CARRIED by roll call vote.
Ayes: Councilmember Mark Joseph, Councilmember Pierre Washington, Vice Mayor David Oro, Mayor Leon Garcia
Nays: None
Abstain: None
Excused: Councilmember Mariam Aboudamous
7. Minutes of September 3, 2024
Action: Approved the minutes of the Regular City Council meeting of September 3, 2024.
8. Report Upon Return from Closed Session
Action: Approved the Report Upon Return from Closed Session for the Regular City Council meeting of September 3, 2024.
9. City Investment Policy
Action: Adopted Resolution 2024-69 amending the City's Investment Policy.
10. Rancho Del Mar Paving and Utility Improvements Project Design Amendment Action: Adopted Resolution 2024-70 approving Amendment #1 (Agreement 2024-A138) to Agreement 2023-64 with Bennett Engineering Services for design services, increasing the contract amount $19,160, for a total contract amount not to exceed $553,182, in conjunction with the Rancho Del Mar Paving and Utility Improvements Project (TR24-0300).
11. Approve Excused Absence for Council Member Aboudamous.
Action: Adopted Minute Order 2024-08 approving excused absence for Council Member Aboudamous from June 4 to December 3,2024 and authorizing the regular compensation due to 10 Council Member Aboudamous for the City Council meetings, former County Water District Board meetings, and American Canyon Fire Protection District Board meetings during this time period.
PUBLIC HEARINGS
There were no public hearing items.
BUSINESS
12. Wastewater Capacity Fee Deferral for SDG Commerce 217 Warehouse Distribution Center Project
Council received a Wastewater Capacity Fee Deferral for SDG Commerce 217 Warehouse Distribution Center Project staff report from City Manager Jason Holley. Mayor Garcia called for public comments. Written comments: none. Oral comments: none. The public comment period was closed.
Action: Motion to adopt Resolution 2024-71 approving Wastewater Capacity Fee Deferral Agreement (Agreement 2024-A139) for the SDG Commerce 217 Warehouse Distribution Center Project (PL 21-0006) made by Vice Mayor David Oro, seconded by Councilmember Mark Joseph, and CARRIED by roll call vote.
Ayes: Councilmember Mark Joseph, Councilmember Pierre Washington, Vice Mayor David Oro, Mayor Leon Garcia
Nays: None
Abstain: None
Excused: Councilmember Mariam Aboudamous
13. Newell Open Space Improvements Project (PR13-0200)
Council received a Newell Open Space Improvements Project (PR13-0200) staff report from City Manager Jason Holley. Mayor Garcia called for public comments. Written comments: none. Oral comments: none.
Action: Motion to adopt Resolution 2024-72 amending the FY2024-25 Capital Budget and increasing the Project Budget from $354,235 to $610,133; awarding a construction contract (Agreement 2024-A140) to Globe Engineering Development in the amount of $401,534 and authorizing the Public Works Director to approve and execute Contract Change Orders in an aggregate amount not to exceed the Project Budget, in conjunction with the Newell Open Space Improvements Project (PR13-0200) made by Councilmember Mark Joseph, seconded by Vice Mayor David Oro, and CARRIED by roll call vote.
Ayes: Councilmember Mark Joseph, Councilmember Pierre Washington, Vice Mayor David Oro, Mayor Leon Garcia
Nays: None
Abstain: None
Excused: Councilmember Mariam Aboudamous
11 MANAGEMENT AND STAFF ORAL REPORTS
Council received oral updates from Parks & Recreation Director Alexandra Ikeda.
MAYOR/COUNCIL COMMENTS AND COMMITTEE REPORTS
The mayor and council members provided oral reports and announced items of community interest.
FUTURE AGENDA ITEMS
14. Future Agenda Items of Note
Action: Motion to add to a future agenda Foodware Ordinance made by Councilmember Mark Joseph, seconded by Councilmember Pierre Washington, and CARRIED by roll call vote.
Ayes: Councilmember Mark Joseph, Councilmember Pierre Washington, Vice Mayor David Oro, Mayor Leon Garcia
Nays: None
Abstain: None
Excused: Councilmember Mariam Aboudamous
ADJOURNMENT
The meeting was adjourned at 7:35 p.m.
CERTIFICATION
Respectfully Submitted,
_____________________________________
Taresa Geilfuss, City Clerk
12 SEPTEMBER 17, 2024 CITY COUNCIL MEETING
View
presentations,
agenda
packets and
meeting
details:
City Council
Community Update
Proclamations
Suicide Prevention Month: Proclamation
received by Prevention DirectorJeni Olsen and
Bilingual Prevention Specialist Arturo Garcia from
MENTIS, Napa’s Center for Mental Health Services
Recovery Month: Proclamation received by
Nathan Hobbs, the Assistant Deputy Director of
Behavioral Health at Napa County Health and
Human Services Behavioral Health Division
City Action
Adopted a Resolution approving the Wastewater
Capacity Fee Deferral Agreement for the SDG
Commerce 217 Warehouse Distribution Center
Project
Adopted a Resolution amending the FY 2024-25
Capital Budget, awarding a construction contract
to Globe Engineering Development and approving
the Public Works Director to approve and execute
Contract Change Orders for the Newell Open
Space Improvements Project
Oat Hill Apartment Project
Modifications
...and more!
Next time...
JoinourOctober 1
meetingtolearn
moreabout:
Presentations
Received a presentation from the Napa
County Mosquito Abatement District on
mosquite abatement
13 William D. Ross
David P. Schwarz
Kypros G. Hostetter
Christina M. Bellardo
Law Offices of
William D. Ross
400 Lambert Avenue
Palo Alto, California 94306
Telephone: (650) 843-8080
www.lawross.com
Los Angeles Office:
11420 Santa Monica Blvd
#25532
Los Angeles, CA 90025
File No: 199/6
September 24, 2024
VIA E-MAIL
The Honorable Leon Garcia, Mayor
and Members of the City Council
City of American Canyon
4381 Broadway, Suite 201
American Canyon, CA 94503
Re: Report Upon Return from Closed Session; Regular City Council Closed Session Meeting of the American Canyon City Council of September 17, 2024 Dear Mayor Garcia and Members of the City Council:
This communication sets forth reportable action, if any, of the City Council (“Council”) of the City of American Canyon (“City”), consistent with provisions of the Ralph M. Brown Opening Meeting Act (Government Code Section 54950, et seq.) resulting from the Closed Session of the Regular City Council Closed Session Meeting of September 17, 2024, consistent with Government Code Section 54957.1.
Mayor Garcia convened the Council in Open Session at 4:07 p.m. and after ascertained that there were no public comments on the matters agendized for Closed Session consideration and adjourned to Closed Session at 4:07 p.m.
There were two matters agendized for City Closed Session consideration:
1. Conference with Legal Counsel – Anticipated Litigation Authorized Pursuant to Government Code Section 54956.9(d)(2) Two (2) Matters
2. Conference with Legal Counsel – Existing Litigation
Authorized Pursuant to Government Code Section 54956.9(d)(1) a. City of American Canyon v. City of Vallejo, et al.
(Sacramento Superior Court Case No. 34-2022-00327471);
b. City of Vallejo v. City of American Canyon et al. (Napa County Superior Court Case No. 23WM000055)
[Giovannoni Project];
14 The Honorable Leon Garcia, Mayor
and Members of the City Council
September 24, 2024
c. City of Vallejo v. City of American Canyon et al.
(Sacramento County Superior Court Case No.
24WM000078) [Paoli/Watson Lane Annexation].
d. City of Vallejo v. City of American Canyon et al. (Marin County Superior Court Case No. CV0003752) [Measure K].
3. Conference with Real Property Negotiators - Authorized Pursuant to Government Code Section 54956.8
a. Property: Northeast corner of Eucalyptus Drive and
Greenwing. APNs: 058-030-016000, 058-030-018-000;
Agency negotiator: Jason Holley, City Manager; Under
negotiation: Price and terms of payment.
b. Property Address: 25 Medeiros Lane (APN 058-270-
001-000); Agency negotiator: Jason Holley, City
Manager; Under negotiation: Price and terms of
payment.
c. Property Address: 5750 South Kelly Road (APN's 057-
090-065, 066 & 068) Agency negotiator: Jason Holley,
City Manager; Under negotiation: Price and terms of
payment.
With respect to the two (2) matter considered under Closed Session Agenda Item No. 1., there was no reportable action under the common law attorney-client privilege and that provided by Government Code Section 54956.9(d)(2).
With respect to Closed Session Agenda Item No. 2.a., there was no reportable action under the common law attorney-client privilege and that provided by Government Code Section 54956.9(d)(1).
With respect to Closed Session Agenda Item No. 2.b., there was no reportable action under the common law attorney-client privilege and that provided by Government Code Section 54956.9(d)(1).
With respect to Closed Session Agenda Item No. 2.c., there was no reportable action under the common law attorney-client privilege and that provided by Government Code Section 54956.9(d)(1).
With respect to Closed Session Agenda Item No. 2.d., there was no reportable action under 15 The Honorable Leon Garcia, Mayor
and Members of the City Council
September 24, 2024
the common law attorney-client privilege and that provided by Government Code Section 54956.9(d)(1).
With respect to Closed Session Agenda Item No. 3.a., there was no reportable action under the provisions of Government Code Section 54956.8.
With respect to Closed Session Agenda Item No. 3.b., there was no reportable action under the provisions of Government Code Section 54956.8.
With respect to Closed Session Agenda Item No. 3.c., the Council authorized (4-0) a request for a due diligence period, except as indicated, there was no reportable action under the provisions of Government Code Section 54956.8.
Your Council concluded the Closed Session at 6:27 p.m.
In Open Session, it was indicated that a written report upon return from Closed Session consistent with Government Code Section 54957.1, would be prepared concerning the matters agendized for Closed Session.
This communication should be reviewed under the Consent portion of the Agenda of your next Regular or Special City Council Meeting.
Should you have questions concerning this Report, it may be taken off the Consent calendar when agendized in the future, or our office may be contacted in the interim.
Very truly yours,
William D. Ross
City Attorney
WDR:jf
cc: Jason B. Holley, City Manager
Maria Ojeda, Assistant City Manager
Taresa Geilfuss, City Clerk
16 CITY COUNCIL AGENDA
OCTOBER 1, 2024
STAFF REPORT
CONSENT
ITEM NUMBER: 8.
TITLE
Contract Amendment #3 with Robert Half International Inc. for Temporary Staffing Services
RECOMMENDATION
Adopt a Resolu1on authorizing the City Manager to execute Amendment #3 to Agreement No. 2022-A148 with Robert Half International Inc.
CONTACT
Maria Ojeda, Assistant City Manager
Scott Corey, Human Resources Officer II
BACKGROUND & ANALYSIS
In October 2022, the City entered into an agreement with Robert Half Interna1onal Inc. for temporary staffing services (the "Agreement") to assist with an an1cipated extended family leave absence within the Finance Department. The contract was entered with a maximum amount of $50,000 and an end date of June 30, 2023, under the City Manager's authority using previously budgeted funds.
In May 2023, addi1onal prolonged staff support was iden1fied due to a vacant posi1on in the Finance Department, and in the Parks and Recrea1on Department. The City Council authorized the City Manager to execute Amendment #1 to the Agreement.
In February 2024, the City Council authorized the City Manager to execute Amendment #2 to the Agreement aCer more staff support was u1lized in Finance and Parks and Recrea1on than ini1ally an1cipated, and staff support became unexpectedly necessary in the Maintenance and U1li1es Department and the Human Resources Division due to retirements.
Staff has iden1fied a need for con1nued staff support due to soCware implementa1on in Finance and an unfilled vacancy in the Human Resources Division. Extended medical or family based staff absences in various Departments have occurred, resul1ng in an immediate staffing solu1on that provides skilled staff quickly.
Staff requests authority to increase the total amount of the Agreement by $150,000 for a total contract not to exceed $403,400 through June 30, 2024.
17 COUNCIL PRIORITY PROGRAMS AND PROJECTS
Organizational Effectiveness: "Deliver exemplary government services."
FISCAL IMPACT
Appropriate funding was budgeted in the FY 2024-2025 Budget for this purpose in addi1on to funds available due to salary savings for Temporary Agency Services in other affected departments.
ENVIRONMENTAL REVIEW
15378(b) - The ac1on is not a "Project" subject to the California Environmental Quality Act ("CEQA") because it does not qualify as a "Project" under Public Resources Code Sec1ons 21065 and 21080 and in Section 15378(b) of Title 14 of the California Code of Regulations.
ATTACHMENTS:
1. Resolution - Robert Half
2. Exhibit A - Contract Amendment #3
18 RESOLUTION NO. 2024-__
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AMERICAN CANYON AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT #3 TO AGREEMENT NO. 2022-A148 WITH ROBERT HALF INTERNATIONAL INC.
WHEREAS, utilizing temporary staffing services agencies is a cost-effective way to supplement Regular and Temporary staffing during periods when sufficient City staff is unavailable due to anticipated extended absences or unanticipated staff turnover; and
WHEREAS, on October 5, 2022, the City entered into an Agreement for Temporary Staffing Services with Robert Half International Inc. (the “Agreement”), in an amount not to exceed $50,000 under the City Manager’s authority to provide staff services during an anticipated extended staff absence in the Finance Department; and
WHEREAS, on May 16, 2023, the Council authorized and the City Manager executed Amendment #1 to the Agreement increasing the total contract amount to $168,000 to address additional staff support needs in the Finance Department and the Parks and Recreation Department; and WHEREAS, on February 20, 2024, the Council authorized and the City Manager executed Amendment #2 to the Agreement increasing the total contract amount to $253,400 to address staff support needs in the Maintenance and Utilities Department and the Finance Department; and WHEREAS, temporary staff support was anticipated in the Finance Department but additional unexpected support needs were identified in the Human Resources Division; and WHEREAS, Amendment #3 to Agreement No. 2022-A148 would establish a total not to exceed amount of $403,400 through June 30, 2025.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of American Canyon does hereby authorize the City Manager to execute Amendment #3 to Agreement No. 2022-A148 with Robert Half International Inc., attached hereto as Exhibit “A”.
PASSED, APPROVED and ADOPTED at a regularly scheduled meeting of the City Council of the City of American Canyon held on the 1st day of October 2024, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
____________________________
Leon Garcia, Mayor
19 2
ATTEST: APPROVED AS TO FORM:
____________________________ _____________________________ Taresa Geilfuss, CMC, City Clerk William D. Ross, City Attorney 20 CITY OF AMERICAN CANYON AGREEMENT NO. 2024-____
AMENDMENT #3 TO AGREEMENT NO. 2022-A148 TO THE
CITY OF AMERICAN CANYON STANDARD AGREEMENT
FOR TEMPORARY STAFFING SERVICES WITH
ROBERT HALF INTERNATIONAL INC.,
RECITALS
1. The City of American Canyon (“CITY”) and Robert Half International Inc., have entered into an Agreement dated October 5, 2022.
2. The Agreement provides for amendments to perform specific tasks under a specific scope of services that may arise during the term of the agreement.
3. On May 16, 2023, the City executed Amendment #1 to extend the not-to-exceed amount of the contract to $168,000.
4. On February 20, 2024, the City executed Amendment #2 to extend the not-to-exceed amount of the contract to $253,400.
NOW, THEREFORE, CITY and ROBERT HALF INTERNATIONAL INC., agree as follows:
1.00 SERVICES AND COMPENSATION
ROBERT HALF INTERNATIONAL INC. agrees to provide services as listed in Attachment “A” to increase the contract amount for additional services in the amount of $150,000.00 for a total not to exceed contract amount of $ 403,400.00.
2.00 TIME OF PERFORMANCE
The services covered by this Amendment shall be performed or provided by June 30, 2025.
3.00 REMAINING PROVISIONS
All other terms of the October 5, 2022, Agreement remain in full force and effect.
Executed on __________________, 2024, at American Canyon, California.
CITY: ROBERT HALF INTERNATIONAL INC.:
By: ____________________________ By: __________________________ Jason B. Holley Sarah Cush
City Manager Vice President
21 CITY COUNCIL AGENDA
OCTOBER 1, 2024
STAFF REPORT
PUBLIC HEARING
ITEM NUMBER: 9.
TITLE
Oat Hill Multifamily Residential Major Modification
RECOMMENDATION
Consider a Resolu*on approving a Major Modifica*on to the Oat Hill Mul*family Residen*al Project Parcel A and B Design Permits located on the east side of Oat Hill south of Napa Junc*on Road (PL24-0009)
CONTACT
Brent Cooper, AICP, Community Development Director
BACKGROUND & ANALYSIS
The Oat Hill Mul*family Residen*al project is located on a landmark 20-acre hillside site with stunning views on the eastern slope of Oat Hill between Hess Road and the western terminus of Napa Junc*on Road. Visible from most areas of the city, the 2021-approved project features 291 market-rate residen*al units with two recrea*on buildings, swimming pools, and leasing offices. A photo simula*on showing the project on Oat Hill is included as A;achment 2. An aerial view is included as Attachment 3. A site plan is included as Attachment 4.
The approved project topography consists of two generally flat terraces ranging approximately 80 to 185 feet above mean sea level. Parcel A (the upper terrace) and Parcel B (the lower terrace) are separated by a steep landscaped hillside. An emergency vehicle access (EVA) road connects the two terraces. The upper terrace, Parcel A will feature a pedestrian path available to the public that takes advantage of the sweeping views. A graphic depicting the trail and views is shown in Attachment 5.
Envisioned by Rick Hess in 2020, the project design was established in connec*on with a legisla*ve Council decision to amend the General Plan and Zoning Designa*on from Industrial to Residen*al. A legisla*ve decision is one where the City Council is under no obliga*on to approve the project - the approval rests en*rely on the merits of the project. A table that lists all the 2021 City Council approvals is included as Attachment 6.
The project architecture is a Farmhouse style with dis*nguishing features such as a pitched roof, recessed pa*o areas and fiber cement board and ba;en accent on the third floor, three earth-tone color schemes with three exterior wall colors per color scheme. The recrea*on building and 22 accessory trash and mechanical buildings featured a standing seam roof.
The project was acquired by Russell Square Consul*ng in 2021, and they submi;ed several minor modifica*ons over the next few years, that in total, amounted to a significant change to the project.
In July 2024, staff rescinded all Minor Modifica*on approvals and current requests and consolidated them into a Major Modification.
A Major Modifica*on is considered by the original approval authority. In this case, the City Council approved the original project. The Planning Commission, in its role as advisor to the City Council, reviews Major Modifications and provides a recommendation.
The Planning Commission considered the Oat Hill Mul*family Residen*al Major Modifica*on on July 30, 2024, August 22, 2024, and September 26, 2024. The project was con*nued from July 30, 2024, to August 22, 2024, because the applicant proposed further project modifica*ons during the hearing. The August 22, 2024, mee*ng was con*nued to September 26, 2024, to provide *me for the applicant to provide alterna*ves to dele*ng two ground floor windows on the 15-plex apartment building and incorpora*ng lap siding elements onto the recrea*on and amenity buildings.
On September 26, 2024, the Planning Commission completed its public hearing and recommended the City Council approve fourteen Project Modifica*ons as described in the a;ached Resolu*on of Approval (Attachment 1).
Zoning Code Major Modification Standards
Chapter 19.45 of the Municipal Code sets forth procedures for a Major Modification.
A “Major Modifica*on," considered by the original decision-making authority (here the City Council), is a significant revision of a previously approved plan or permit (ACMC Sec*on 19.45.020(B)). The Major Modification approval criteria, or burden of proof, is listed below:
The modifica*on must substan*ally conform to the previously approved plan. If the change is substan*ve, it must be equivalent to the original project design, consistent with city design and development standards and policies.
The modifica*on may not create substan*ally different impacts from the previously approved project.
The modifica*on may not be materially detrimental to the public health, safety, or welfare, or to property or residents in the vicinity.
The modification must be consistent with general plan policies and exhibits.
The City Council has authority to consider any of these alternatives:
23 Agree with one or more modifications; or
Deny one or more modifications; or
Revise the modifications; or
Continue the hearing to a later date.
COUNCIL PRIORITY PROGRAMS AND PROJECTS
Community and Sense of Place: "Build on the strength of our local community to develop a clear 'sense of place' and establish our unique identity."
FISCAL IMPACT
N/A
ENVIRONMENTAL REVIEW
The City Council approved a Mi*gated Nega*ve Declara*on for the overall project in 2021 in conjunc*on with the General Plan Amendments, Rezoning, Design Permits, Airport Land Use Commission Override, and Tenta*ve Subdivision Maps. The scope of the Major Modifica*on falls within the 2021 environmental review because there are no changes to the project that create any new environmental impacts because the overall density of the project remains unchanged and amendments to apartment buildings and accessory recrea*onal building and amenity buildings are aesthetic in nature and support hillside stability.
ATTACHMENTS:
1. Reso Oat Hill Parcel A and B Design Permit Major Modification
2. Photosimulations
3. Aerial View
4. Site Plan
5. Public View Trail
6. City Council 2021 Oat Hill Residential Approvals
24 RESOLUTION 2024-XX
A RESOLUTION APPROVING A MAJOR MODIFICATION TO THE OAT HILL MULTIFAMILY
RESIDENTIAL PROJECT PARCEL A AND B DESIGN PERMITS LOCATED ON THE EAST SIDE OF OAT HILL SOUTH OF NAPA JUNCTION ROAD (FILE NO. PL24-0009)
WHEREAS, on September 21, 2021, the City Council approved the Oat Hill Multi-Family Residential Parcel A Design Permit PL20-0022 for 206 dwelling units on 13.6 acres (Resolution 2021-76) and Parcel B Design Permit PL20-0023 for 85 dwelling units on 7.3 acres (Resolution 2021-77); and WHEREAS, the project design was established in connection with a legislative Council decision to amend the General Plan and Zoning Designation from Industrial with a Commercial Overlay and Estate Residential to High Density Residential; and
WHEREAS, a legislative decision is one where the City Council is under no obligation to approve the project - the approval rests entirely on the merits of the project; and WHEREAS, subsequent to the City Council approval, the applicant, Russell Square Consulting, submitted several Minor Modification amendments and changes to construction plans; and WHEREAS, on July 5, 2024, after reflecting on all the existing and proposed changes since the 2021 Council approval, staff rescinded all past Minor Modifications and informed the property owner that all proposed modifications will be considered by the Planning Commission and City Council as a Major Modification application and process; and
WHEREAS, on July 30, 2024, the Planning Commission conducted a public hearing on the Parcel A and B Major Modification; and
WHEREAS, on July 30, 2024, the Planning Commission continued the public hearing to August 22, 2024 to because the applicant proposed further changes to the project; and WHEREAS, on August 7, 2024, the applicant submitted a comprehensive list of 14 proposed amendments to the Parcel A and B Design Permits; and
WHEREAS, on August 22, 2024, the Planning Commission continued the public hearing to September 4, 2024, to receive information from the applicant on alternatives to retain a proposal to delete two ground floor windows on the 15-plex apartment building, and alternatives to incorporate lap siding elements onto the recreation and amenity buildings; and
WHEREAS, the September 4, 2024 meeting was cancelled which continued the hearing to September 26, 2024; and
WHEREAS, on September 19, 2024, the applicant submitted alternatives to retain a proposal to delete two ground floor windows on the 15-plex apartment building, and alternatives to incorporate lap siding elements onto the recreation and amenity buildings; and 25 WHEREAS, on September 26, 2024, the Planning Commission conducted a public hearing and recommends the City Council approve a Major Modification to the Oat Hill Project Parcel A and B Design Permit as described in Exhibit A to this Resolution and conditions of approval; and WHEREAS, on October 1, 2024, the City Council conducted a public hearing and considered all the written and oral testimony presented at the public hearing in making its decision.
NOW, THEREFORE, BE IT RESOLVED that the City of American Canyon the City Council approves a Major Modification to the Oat Hill Project Parcel A and B Design Permit as depicted by the Planning Commission recommendation in Exhibit A which is incorporated by reference into this Resolution.
SECTION 1: CEQA
The City Council approved a Mitigated Negative Declaration for the overall project in 2021 in conjunction with the General Plan Amendments, Rezoning, Design Permits, Airport Land Use Commission Override, and Tentative Subdivision Maps. The scope of the Major Modification falls within the 2021 environmental review because there are no changes to the project that create any new environmental impacts because the overall density of the project remains unchanged and amendments to apartment buildings and accessory recreational building and amenity buildings are aesthetic in nature and support hillside stability.
SECTION 2: Design Permit Findings
A. A Major Modification application may be approved if all of the following findings are made:
(1) The modification is in substantial conformity with the previously approved plan or permit, or if the change is substantive, that the revised project is equivalent to the original project design concept in terms of consistency with city design and development standards and policies.
Proposed modifications to building elevations and exterior treatments provide an equivalent aesthetic appearance to the original approval. Additional retaining walls and larger retaining walls are required for hillside stability. Wall treatments with textured brick, textured and colored concrete, and painted concrete will help the walls blend into the hillside. Augmented landscaping also furthers reduction of the wall visibility.
(2) The modification will not create impacts substantially different from those of the previously approved project.
The proposed modifications do not increase the building height and bulk. Exterior treatments, landscaping, and hillside stability requirements are equivalent to the original approval as described in (1) above. The overall density of the project remains unchanged. (3) The granting of the modification will not be materially detrimental to the public health, safety, or welfare, or to property or residents in the vicinity.
26 Amendments to apartment buildings and accessory recreational building and amenity buildings are aesthetic in nature and do not result in any reduction in standards that could impact public health, safety or welfare. The addition of retaining walls and increases in height for some retaining walls reflect new information that is discovered during hillside grading. These retaining wall revisions and additions will ensure the project contours Oat Hill in a manner that will safely accommodate the proposed apartment project.
(4) The proposed modification is consistent with the policies and exhibits contained in the general plan.
The project design modification remains in compliance with the approved project which met Parcel A RH-1 design standards and the Parcel B MDR design standards.
SECTION 2. CONDITIONS OF APPROVAL
1. The applicant shall defend, indemnify, and hold harmless the City of American Canyon ("City"), its elected officials, officers, employees, attorneys, representatives, boards, commissions, consultants, volunteers and agents from and against all claims, actions, including actions to arbitrate or mediate, damages, losses, judgments, liabilities, expenses and other costs, or proceedings against the City, its elected officials, officers, employees, attorneys, representatives, boards, commissions, volunteers, or agents to attack, modify, set aside, void, or annul an approval, conditional approval, permit, entitlement, environmental document, environmental clearance, mitigation plan, or any other document or any of the proceedings, acts, or determinations taken, done, or made prior to granting of such approval, conditional approval, permit, entitlement, environmental clearance, environmental document, mitigation plan, or other documents, by the City, including, without limitation, an action against an advisory agency, appeal board, or legislative body within the applicable limitation period.
The obligation to defend, indemnify and hold the City harmless shall include the payment of all legal costs and attorney’s fees (including a third party award of attorney’s fees), arising out of, resulting from, or in connection with the City’s act or acts leading up to and including approval of any environmental document or mitigation plan granting approvals to the applicant, incurred on behalf of, or by, the City, its elected officials, officers, employees, representatives, attorneys, boards, commissions, volunteers and agents in connection with the defense of any claim, action, or proceeding challenging the entire or a portion of an approval, conditional approval, permit, entitlement or any other document of any related claim.
The obligation to defend, indemnify, and hold the City harmless shall include, but not be limited to, the cost of preparation of any administrative record by the City, staff time, copying costs, court costs, or attorney’s fees arising out of a suit or challenge contesting the adequacy of a permit, approval, conditional approval, entitlement, environmental document, mitigation plan, environmental clearance, or any other document or approval related to the applicant’s project.
The City will promptly notify the applicant of any claim, action, or proceeding and will cooperate fully in the defense. If the City fails to promptly notify the applicant of any claim, action, or proceeding, or the City fails to cooperate fully in the defense, the applicant shall not be responsible to defend, indemnify, or hold harmless the City.
27 In the event a legal challenge to a City permit, approval, conditional approval, environmental document, environmental clearance, mitigation plan, entitlement or any other document, proceeding, determination, or action related to the applicant’s project is successful, and an award of attorneys’ fees is granted against the City, the applicant shall be responsible to timely pay the full amount of such an award.
2. The applicant is responsible for paying all charges related to the processing of this discretionary case application within 30 days of the issuance of the final invoice or prior to the issuance of building permits for this project, whichever occurs first. Failure to pay all charges shall result in delays in the issuance of required permits or the revocation of the approval of this application.
3. Recommended plan modifications for Parcel A Design Permit PL20-0022 (Resolution 2021-76) and Parcel B Design Permit PL20-0023 (Resolution 2021-77) is incorporated into this Resolution as Exhibit A.
4. Parcel A and B CMU walls shall be painted with a weather-treated exterior paint (Sherwin Williams Virtual Taupe SW 7039).
5. Except for the CMU wall adjacent to 1000 Opus, all CMU walls shall be landscaped with shrubs that must grow to a height that screens the walls within five years from the landscape installation. If the CMU wall adjacent to 1000 Opus is visible from a public vantage point east of the project, the applicant shall also landscape the wall shrubs that must grow to a height that screens the walls within five years from the landscape installation.
6. All conditions of approval from Parcel A Design Permit PL20-0022 (Resolution 2021-76) and Parcel B Design Permit PL20-0023 (Resolution 2021-77) remain in effect.
7. Prior to the effective date of the Minor Modification Permit, the applicant and property owner shall sign the agreement to the conditions of approval. The form is available as Exhibit B.
PASSED, APPROVED and ADOPTED at a regularly scheduled meeting of the City Council of the City of American Canyon held on the 1
st day of October, 2024, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
____________________________
Leon Garcia, Mayor
28 ATTEST: APPROVED AS TO FORM:
_______________________________ _________________________________ Taresa Geilfuss, CMC, City Clerk William D. Ross, City Attorney Exhibit
A. Planning Commission Recommended Major Modifications
B. Applicant confirmation of conditions
29 30
31 32
33 34
35 Replace approved light fixture with the proposed fixture.
Approve increase in MSE wall height from 6-feet to 10-feet. 36 Approve new CMU walls with weather-proof paint and landscaping per conditions of approval in Resolution.
37 EXHIBIT B
Applicant Confirmation of Conditions of Approval
Oat Hill Parcel A and B Design Permits Major Modification (FILE NO. PL24-0009)
As shown by my signature below, I confirm that I understand and agree to abide by the conditions of approval included in the City Council Resolution dated October 1, 2024.
Applicant’s signature Date
Applicant’s name
Property Owner’s signature Date
Property Owner’s name
Please return signed confirmation to the City of American Canyon Community Development Department, 4381 Broadway, Suite 201, American Canyon, CA 94503
38 Proposed View from the Northeast Along SR 29
ATTACHMENT 2
Oat Hill Residential Photosimulations
39 Proposed View from the East Along SR 29
40 Proposed View from the East Along Theresa Avenue
41 42
Project Site Aerial View
ATTACHMENT 3
43 Project Site Plan
ATTACHMENT 4
44 Public View Trail
ATTACHMENT 5
45 46
ATTACHMENT 6
City Council Oat Hill Residential Approvals
• Resolution 2021-61 Mitigated Negative Declaration
• Resolution 2021-62 Napa County Airport Land Use
Commission Overrule
• Resolution 2021-63 Parcel A General Plan Amendment
• Resolution 2021-64 Parcel B General Plan Amendment
• Ordinance 2021-05 Parcel A Zone Change
• Ordinance 2021-06 Parcel B Zone Change
• Resolution 2021-76 Parcel A Design Permit
• Resolution 2021-77 Parcel B Design Permit
• Resolution 2021-78 Parcel A Tentative Subdivision Map • Resolution 2021-79 Parcel B Tentative Subdivision Map 47 CITY COUNCIL AGENDA
OCTOBER 1, 2024
STAFF REPORT
BUSINESS
ITEM NUMBER: 10.
TITLE
City Council Code of Conduct and Governance Protocols
RECOMMENDATION
Provide feedback on a draft City Council Code of Conduct and Governance Protocols
CONTACT
Jason Holley, City Manager
Taresa Geilfuss, City Clerk
Mark Joseph, Governance Ad-Hoc Subcommittee Member
David Oro, Governance Ad-Hoc Subcommittee Member
BACKGROUND & ANALYSIS
The City Council Code of Conduct and Governance Protocol was first established in 2007 and most recently updated in 2021.
The City Council appointed an Ad-Hoc Commi5ee (Oro/Joseph) to prepare a new version of the document. The Council reviewed this dra9 at your September 3 mee;ng. Based on Council input that night, an updated draft is included as Attachment 1.
The Code of Conduct and Governance Protocol is designed to establish standards of behavior and opera;onal procedures for council members, ensuring transparency, accountability, and ethical governance. Its primary purpose is to foster a professional and respec<ul environment, guiding council members in their interactions with each other, city staff, and the public.
The Code and Protocol outlines expectations for ethical conduct, including integrity, impartiality, and adherence to legal and procedural norms. Governance protocols cover mee;ng procedures, decision-making processes, and public engagement strategies, aiming to enhance the efficiency and effec;veness of municipal opera;ons. By se@ng clear standards and procedures, it helps maintain public trust and promotes a collaborative and responsible approach to local government.
Staff anticipates bringing formal approval of this Protocol at your Oct. 15 meeting. 48 COUNCIL PRIORITY PROGRAMS AND PROJECTS
Organizational Effectiveness: "Deliver exemplary government services."
FISCAL IMPACT
Not applicable
ENVIRONMENTAL REVIEW
15378(b) - The ac;on is not a "Project" subject to the California Environmental Quality Act ("CEQA") because it does not qualify as a "Project" under Public Resources Code Sec;ons 21065 and 21080 and in Section 15378(b) of Title 14 of the California Code of Regulations.
ATTACHMENTS:
1. Governance Protocols 2nd Council Draft 2024-10-01 with Appendices 49 CITY COUNCIL
CODE OF CONDUCT
AND
GOVERNANCE
PROTOCOLS
50 Governance Protocols 2nd Council Draft 2024-10-01 Page 2 10/01/24 Contents
PREFACE................................................................................................................................ 3 INTRODUCTION..................................................................................................................... 4 Purpose ....................................................................................................................................... 4 Relationship between the City Council “Code of Conduct and Governance Protocols” and City Council “Policies”. ....................................................................................................................... 4 Future Changes........................................................................................................................... 4 SECTION ONE: AMERICAN CANYON’S VISION, MISSION, AND VALUES.................................... 5 Our Vision.................................................................................................................................... 5 Our Mission................................................................................................................................. 5 Our Core Values – How We Do Business.................................................................................... 6 Our Strategic Values – How We Get Things Done...................................................................... 6 SECTION TWO: CODE OF CONDUCT........................................................................................ 7 Code of Conduct ......................................................................................................................... 7 Implementation, Compliance and Enforcement ........................................................................ 9 Statement Of Commitment ...................................................................................................... 10 SECTION THREE: ROLES, RESPONSIBILITIES AND RELATIONSHIPS.......................................... 11 City Council Roles and Responsibilities..................................................................................... 11 City Council Relationships......................................................................................................... 12 SECTION FOUR: GOVERNANCE............................................................................................ 15 Goals, Strategies and Key Initiatives......................................................................................... 15 Budgeting with Limited Resources ........................................................................................... 16 Ensure Accountability and Tracking Progress........................................................................... 16 Council Committees.................................................................................................................. 17 SECTION FIVE: MEETINGS .................................................................................................... 19 What is a “Public Meeting”?..................................................................................................... 19 City Council Meetings............................................................................................................... 20 Closed Session........................................................................................................................... 23 Open Session............................................................................................................................. 24 SECTION SIX: COMPENSATION............................................................................................. 27 SECTION SEVEN: ADMINISTRATIVE SUPPORT ....................................................................... 28 LIST OF APPENDICES....................................................................Error! Bookmark not defined. 51 Governance Protocols 2nd Council Draft 2024-10-01 Page 3 10/01/24
PREFACE
As this Code of Conduct and Governance Protocols (Code and Protocols) is read, it is hoped that a general philosophy of governance emerges: the public good is best served when the City Council and staff work together as a team; when they understand their roles and responsibilities; and when all sides understand that there is rarely a single right answer—often there is a continuum of options, from one extreme to the other. The City Council’s job, with input from staff, stakeholders and the public, is to decide where to land on that continuum.
This Code and Protocols is intended to apply to elected officials (i.e. City Council Members) as well as all City Council-appointees to boards, commissions and committees. The term “Council Member” or “Member” as used herein shall be construed to apply individually to Council Members and City Council-appointees. The term “City Council” as used herein shall be construed to apply collectively to the City Council and City boards, commissions and committees, as appropriate.
52 Governance Protocols 2nd Council Draft 2024-10-01 Page 4 10/01/24
INTRODUCTION
Purpose
This Code of Conduct and Governance Protocols (Code and Protocols) serves four specific and important goals:
Reflect Governance Philosophy. Articulate the City Council’s philosophy on governance, including its code of conduct, roles, responsibilities, and relationships, and how it conducts its business.
Commitment to Transparency. Ensure that the public can easily review and compare the City Council’s actions with its stated protocols and policies, demonstrating a commitment to transparency.
Training and Guidance. Serve as a training tool and guidance for new Council Members and serve as a reference document for the entire City Council when deliberating on current issues.
Basis for Review and Revision. Provide for future review and revisions, allowing future City Councils to examine these protocols and adapt them to evolving conditions.
Relationship between the City Council “Code of Conduct and Governance Protocols” and City Council “Policies”.
The Code and Protocols detail how the City Council governs and performs its duties as elected officials – essentially, “how the City Council collectively conducts business” and “how Council Members individually conduct themselves.”
In contrast, City Council “Policies” outline the entire City Council’s positions on various issues, from finance to customer service to economic development. An example list of common Policies is shown in the Appendix.
While the Code and Protocols are expected to remain consistent over time, they can be amended as necessary. City Council Policies, however, are expected to evolve more regularly in response to changing circumstances.
City Council Policies are further distinguished from Administrative Policies and Procedures which are proffered by the City Manager and not subject to City Council approval, provided they are consistent with the City Council’s protocols and policies.
Future Changes
The Code and Protocols are adopted by Ordinance and incorporated into the American Canyon Municipal Code (ACMC). They may be modified according to the process established by the Ordinance.
53 Governance Protocols 2nd Council Draft 2024-10-01 Page 5 10/01/24 SECTION ONE: AMERICAN CANYON’S VISION, MISSION, AND VALUES American Canyon’s Vision, Mission and Values listed below were by the City Council in 2013, after two years of community engagement. The City Council reconfirmed the Mission, Vision and Values in 2022 and 2023. The Community will change as it grows, and every 5-10 years, the City Council should re-examine the Vision, Mission and Values.
Our Vision.
The Vision Statement expresses future desire. It reflects what the Community wants to become. This Vision drives the work the City of American Canyon does, guides how business is done, and informs the priorities pursued.
Our Mission.
The Mission Statement expresses the purpose of the primary organization supporting the Community’s Vision, namely the City of American Canyon. It fundamentally defines what the organization stands for and what we do.
54 Governance Protocols 2nd Council Draft 2024-10-01 Page 6 10/01/24 The following core and strategic values express how the Community expects to be served by the City of American Canyon.
Our Core Values – How We Do Business
Fiscal Responsibility. We manage our resources wisely to ensure long-term financial stability and sustainability. Our decisions are driven by careful planning and prudent management to achieve optimal outcomes for our stakeholders.
Professional Excellence. We strive for the highest standards in our work, continuously improving our skills and knowledge. Our commitment to excellence ensures that we deliver superior results in every endeavor.
Transparency & Accountability. We operate with openness, providing clear and honest communication. We hold ourselves accountable for our actions, ensuring that our stakeholders can trust our processes and outcomes.
Customer Focus. Our customers are at the heart of everything we do. We are dedicated to understanding their needs and exceeding their expectations through exceptional service and innovative solutions.
Integrity. We conduct our business with the utmost honesty and ethical standards. Integrity guides our decisions and actions, fostering trust and respect with our clients, partners, and community.
Our Strategic Values – How We Get Things Done
Creativity and Innovation. We encourage creative thinking and embrace innovative solutions to stay ahead in a dynamic environment. Our culture of innovation drives us to explore new possibilities and improve our services continually.
Collaboration and Teamwork. We believe in the power of working together. By fostering a collaborative environment, we leverage diverse perspectives and talents to achieve our goals and deliver exceptional results.
Leadership. We lead by example, inspiring others through our actions and decisions. Our leadership is characterized by vision, courage, and a commitment to doing what is right.
Community Engagement. We actively engage with our community, building strong relationships and contributing positively to society. Our community involvement reflects our dedication to social responsibility and collective progress.
Results Oriented. We focus on delivering tangible results that drive success. Our approach is disciplined and goal-driven, ensuring that we achieve our objectives efficiently and effectively. 55 Governance Protocols 2nd Council Draft 2024-10-01 Page 7 10/01/24 SECTION TWO: CODE OF CONDUCT
Code of Conduct
To promote equitable, principled, and responsible governance at the local level, the City of American Canyon adopts the following Code of Conduct for Council Members:
1) Comply with the Law – City Council Members shall adhere to the legal requirements of the United States of America, the State of California, and the City of American Canyon while carrying out their official responsibilities. These requirements encompass, among other things, the United States and California Constitutions, laws and regulations pertaining to conflicts of interest, election campaigns, financial disclosures, employer obligations, and transparent government processes as well as city ordinances and policies. Members shall comply with both the explicit rules and the underlying principles of governmental operations. 2) Act in the Public Interest - The foremost responsibility of individuals representing American Canyon is the public interest. City Council Members shall prioritize the collective welfare of the community over any personal or private concerns. They will ensure equitable and impartial treatment for all individuals, claims, and matters presented to the City Council. 3) Personal Conduct – City Council Members must maintain the highest standards of professional and personal conduct, steering clear of any actions that might be seen as improper. They should abstain from engaging in abusive behavior, making personal accusations, or launching verbal assaults on the character or intentions of fellow Members, staff, or the public. As esteemed community representatives, Members are expected to exhibit a personal and professional demeanor that enhances the reputation of the legislative body and reflects positively on the entire City. Public office shall be used for the betterment of the community, rather than personal enrichment.
4) Respect for Process – City Council Members will perform their duties in accordance with the processes and rules of order established by the City Council governing the deliberation of public policy issues, meaningful involvement of the public, and implementation of policy decisions by City staff. The City Council acts as a collaborative decision-making body. Once the City Council, acting as a body, has reached a decision, individual Members will respect and support the collective decision, regardless of their individual vote on the matter. 5) Conduct During Public Meetings – City Council Members are prepared, listen courteously and attentively to all public discussions before the body, and focus on the business at hand.
Members shall refrain from interrupting other speakers, making personal comments not germane to the business of the body, or otherwise interfering with the orderly conduct of meetings. Public discussions and procedures shall be conducted transparently in an atmosphere of respect and courtesy. Members shall keep an open mind and consider all written and public testimony first, before making a decision. 56 Governance Protocols 2nd Council Draft 2024-10-01 Page 8 10/01/24 6) Ethics Training – City Council Members shall participate in ethics training promptly after assuming office and periodic thereafter as prescribed by law. Members shall provide the certificate of attendance to the City Clerk.
7) Policy Role of City Council – City Council Members will respect and adhere to the CouncilManager form of government. The City Council determines City policies with the advice, information, and analysis provided by the public, boards, commissions, committees and staff.
Members will not interfere with the administrative functions of the City or the professional duties of City staff.
8) Independence of Boards, Commissions and Committees - Preserving the autonomy of boards, commissions, and committees in providing unbiased advice during the public decision-making process is essential. City Council Members shall refrain from using their positions to inappropriately sway the deliberations or outcomes of board, commission, and committee proceedings and shall exhibit independence, impartiality, and fairness in their decisions and behaviors.
9) Positive Work-Place Environment – City Council Members will support the maintenance of a positive and constructive work-place environment for City employees and for citizens and businesses dealing with the City.
10) Staff Relations - All requests of City staff should be directed to the City Manager. All concerns or complaints regarding staff should be directed to the City Manager, unless the complaint relates to the City Manager. In this instance, the concern should be directed to the City Attorney for review.
11) To be Revised Based on legal research by City Attorney 12) Conflict of Interest – City Council Members shall refrain from acting upon conflicts of interest and in a manner prescribed by law, which generally requires Members:
a) Disclose their financial investments, real property holdings, income sources, and gifts. b) Refrain from leveraging their official positions to influence decisions involving financial interests or personal relationships.
c) Not accept any gift, grant or contract contingent upon a specific action by the City Council. d) Refrain from any investment or monetary interest in any contract with the City. e) Seek advice from the City Attorney and/or the City Manager prior to any conduct that may be consistent with this provision.
13) Incompatible Employment – City Council Members are prohibited from any private employment, or render services for private interest, when such employment or service is incompatible with proper discharge of their official duties or would tend to impair their independence of judgment or action in the performance of those duties. 57 Governance Protocols 2nd Council Draft 2024-10-01 Page 9 10/01/24 14) Disclosure of Confidential Information – City Council Members are prohibited from disclosing confidential information nor shall they use such information to advance their financial interests.
15) Ex-Parte Communications – City Council Members are expected to openly disclose substantive and pertinent information - including all ex-parte communications - they may have acquired from external sources unrelated to the public decision-making process. 16) Political Participation and Advocacy – City Council Members may engage in political activities.
However, if a Member chooses to adopt a stance on a political matter, they must proactively ensure the public is aware of the clear differentiation between their personal opinions and the City Council's positions. While Members may use their title while engaging in political activities, they must explicitly state that they are not representing the City nor the City Council. Moreover, Members will publicly respect and support collective City Council decisions, regardless of their individual vote or individual political stance on the matter.
Members shall represent the official policies or positions of the City Council to the best of their ability when designated as delegates for this purpose. 17) Use of Public Resources - Members are prohibited from utilizing public resources, such as City staff time, equipment, supplies, or facilities, for personal or political gain, or to support campaign activities for candidates or ballot measures, unless those resources are available to the public. Moreover, they are not permitted to use the City's name or logo to endorse any political candidate or business.
Implementation, Compliance and Enforcement
The Code of Conduct outlines standards of ethical conduct expected for City Council Members and is intended to be self-enforcing. Members are expected to have a thorough understanding of it and adhere to its provisions. Members bear the primary responsibility for ensuring these ethical standards are understood and upheld. The Code of Conduct will be integrated into the standard orientations for City Council candidates, applicants seeking positions on boards, commissions, and committees, as well as newly elected and appointed officials.
The Mayor, in consultation with the City Manager and City Attorney, will be responsible for addressing a City Council Member who violates the Code of Conduct. The Vice Mayor will be responsible for addressing the Mayor in the event of a violation of any of the above provisions.
If an informal discussion does not resolve the issue, a more formal approach may be considered.
Any City Council Member may seek to have another Member censured at a regular City Council meeting. The City Council may impose sanctions on a Member(s) whose conduct does not comply with the Code and Protocols, such as reprimand, formal censure, loss of seniority, or committee assignment. Prior to the imposition of any sanctions the City Council shall follow applicable due process procedures with respect to the affected Member. 58 Governance Protocols 2nd Council Draft 2024-10-01 Page 10 10/01/24 Statement Of Commitment
Members of the American Canyon City Council and the Council’s appointees to various commissioners and boards shall sign a Statement of Commitment, agreeing to uphold the Code of Conduct.
________________________________________________________________________ Name, Position Date
59 Governance Protocols 2nd Council Draft 2024-10-01 Page 11 10/01/24 SECTION THREE: ROLES, RESPONSIBILITIES AND RELATIONSHIPS City Council Roles and Responsibilities
Vision and Strategy. Effective organizations are proactive and anticipate issues before they escalate into crises. Organizational leaders must be able to see "the Big Picture." The City Council's primary role is to create a vision for the future and develop strategies to achieve it. In this capacity, City Council should rely on the technical expertise of staff and the input of the community. The City's General Plan is the appropriate document for articulating this vision and strategy.
Leadership and Service. Leadership and service are traditional roles of any elected body.
Community service and staying engaged with the public are critical elements. Symbolic gestures, such as proclamations or attendance at annual events, are important parts of the job. Equally important is leading by example. The public's perception of city government is often a reflection of its elected officials; City Council Members need to reflect this in their actions and statements.
Policies and Priorities. The City Council’s primary role is to establish policies and set priorities for city services and functions. This is often challenging due to limited funding, which makes it difficult to meet all goals.
In making decisions, the City Council relies on having various options to consider. Staff provide analysis and alternatives for deliberation, while input from the community and stakeholders ensures that decisions reflect community values. It’s also essential to weigh opportunity costs, as allocating resources to one priority limits funding for others.
Accountability and Oversight. The goal of accountability is to ensure success, rather than punish failure. The City Council needs to set standards and deadlines, define what success looks like, and hold staff accountable for achieving those standards and deadlines. Regular status reports are critical to track progress and develop strategies to correct any shortcomings.
Effective oversight requires a strong understanding of city services and the issues surrounding their delivery. City Council Members are expected to learn as much as they can about city programs and receive at least an annual report from the various City Departments.
The use of outside experts is encouraged. These technical experts can serve as a "second set of eyes" and may be effective in evaluating large or complex projects, potential legal conflicts, and other circumstances as warranted.
Ethical and Fiduciary Responsibilities. Ethical standards go beyond mere compliance with the law. The City Council needs to conduct itself in a manner that is above reproach. Additionally, the City Council must recognize its financial responsibility to the community. Residents, visitors, and businesses pay taxes and fees, often without the right to decline; therefore, ensuring that these funds are spent in the most efficient, productive, and equitable manner possible is one of the City Council's main responsibilities.
60 Governance Protocols 2nd Council Draft 2024-10-01 Page 12 10/01/24 Mayor’s Role. The Mayor is directly elected by the voters to serve as the head of the City Council.
The Mayor chairs the City Council meetings, is involved in setting the agenda with the City Manager, and often acts as the ceremonial leader of the community. Additionally, the Mayor may take on a leadership role beyond ceremonial duties, such as delivering an annual State of the City address or outlining the city's priorities for the upcoming year. In this capacity, the Mayor should collaborate with the rest of the City Council to set these priorities.
Vice-Mayor’s Role. The Vice-Mayor is selected by the rest of the City Council and generally serves for a 12-month period. The Vice-Mayor's primary role is to fulfill the duties of the Mayor in their absence. The Vice-Mayor is responsible for scheduling regular performance reviews of the City Manager and other officials reporting directly to the Council.
City Council Relationships
City Council and the City Manager. The relationship between the City Council and the City Manager is the most critical, insofar as the City Council's direction is achieved primarily through the City Manager. While the City Council sets policy and staff administer it, the distinction can often blur. For example, the City Council relies on staff for policy analysis and alternatives; the quality of this analysis influences the City Council deliberation and action. Similarly, the City Council needs a basic understanding of how city services and programs are implemented to provide proper oversight and ensure successful policy implementation.
The City Manager is the Chief Executive Officer of the City, responsible for overseeing the dayto-day operations and implementing the policies set by the City Council. The City Manager acts as a bridge between the City Council and staff, ensuring City Council directives are effectively executed and that City services run smoothly. Key responsibilities include:
Administration of City Departments: The City Manager supervises all city departments and staff, ensuring that they operate efficiently and deliver services effectively. This involves managing budgets, overseeing personnel, and coordinating activities across different departments.
Policy Implementation: The City Manager translates the policies and goals established by the City Council into actionable plans. This includes preparing detailed reports, recommending policy initiatives, and ensuring that City Council decisions are executed in accordance with legal and procedural requirements.
Budget Preparation and Management: The City Manager is responsible for preparing the City’s budget, working with finance staff to develop a financial plan that reflects the priorities of the City Council. This includes monitoring revenue and expenditures, ensuring fiscal responsibility, and making recommendations for budget adjustments as needed.
Advisory Role: The City Manager provides the City Council with expert advice and information to aid in decision-making. This involves conducting research, analyzing data, and offering recommendations on a wide range of issues affecting the City. 61 Governance Protocols 2nd Council Draft 2024-10-01 Page 13 10/01/24 Community Relations: Acting as a representative of the City, the City Manager engages with residents, businesses, and other stakeholders to address concerns, provide information, and foster positive relationships within the community.
Crisis Management: In times of emergency or crisis, the City Manager plays a key role in coordinating response efforts, managing resources, and communicating with the public and other agencies to ensure effective and timely resolution.
City Council and the City Attorney. The City Attorney provides legal counsel and representation for the City government. This position is essential for ensuring that the City’s operations and policies comply with legal standards and that the City is protected from legal risks. Key responsibilities include:
Legal Advice and Counsel: The City Attorney provides legal guidance to the City Council, City Manager, and various city departments on a wide range of issues such as municipal regulations, contracts, land use, and employment matters, ensuring that the City’s actions and decisions adhere to the law.
Drafting and Reviewing Legal Documents: The City Attorney is responsible for drafting and reviewing legal documents, including ordinances, resolutions, contracts, and agreements. This ensures that these documents are legally sound and protect the City’s interests.
Representation in Legal Matters: The City Attorney represents the City in legal proceedings, including lawsuits and administrative hearings. This involves preparing legal arguments, presenting cases, and negotiating settlements to safeguard the City’s legal and financial interests.
Compliance and Risk Management: The City Attorney helps the City comply with federal, state, and local laws, regulations, and ordinances. They also identify and mitigate potential legal risks, providing advice on how to avoid or address legal issues that may arise.
Training and Education: The City Attorney provides training and educational sessions to City officials and staff on legal issues relevant to their roles. This helps ensure that City employees are aware of legal requirements and best practices.
Public Records and Transparency: The City Attorney works with the City Clerk to ensure compliance with public records laws and transparency requirements, helping the City manage requests for public records and maintain open communication with the public.
Ethics and Conduct: The City Attorney provides guidance on ethical issues and conduct standards, helping to maintain integrity within City operations and addressing any allegations of misconduct.
City Council and Commissions. Commissions exist to help distribute the workload that would otherwise fall to the City Council. They are advisory to the City Council, which should rely on Commissions to study matters within their purview and make recommendations. Staff provide administrative and technical support to the Commissions as needed. 62 Governance Protocols 2nd Council Draft 2024-10-01 Page 14 10/01/24 At least one joint meeting between the City Council and each Commission should be scheduled annually, focusing on broad policy issues and working relationships rather than specific action items. Other joint meetings can be convened to address specific topics.
The City Council shall follow solicit candidates for Boards and Commissions in a manner consistent with State law (“Maddie Act”). Candidates who have participated in the leadership programs such as Citizen’s Academy and Leadership Napa Valley are preferred. Candidates will be screened by the City Council through a process that may be established and modified as appropriate. Individuals selected will serve at the City Council's pleasure, with the possibility of reappointment at the end of their terms.
City Council and the General Public. The City Council represents the best interests of the public, requiring active and engaged participation in the community. This also means that City Council actions may sometimes be unpopular, particularly regarding fiscal matters or land use decisions.
The City Council must provide a clear and consistent rationale for its decisions, ensure transparency in its actions and the data relied upon, and offer ample opportunity for public debate.
City Council and Outside Jurisdictions/Agencies. City Council Members serve on several outside agencies, generally commissions or committees that are countywide in nature. In these cases, City Council Members are expected to represent the best interests of the community, not their own self-interests. Members are responsible for reporting on the actions of the outside bodies on which they serve. Depending on the issue, a Member may request that a topic be scheduled for the full City Council to consider.
The City Council's goal is to establish positive and cooperative relationships with other jurisdictions. Either individually or collectively, the City Council should be involved in regional bodies such as the Association of Bay Area Governments (ABAG) and the League of California Cities (CalCities).
63 Governance Protocols 2nd Council Draft 2024-10-01 Page 15 10/01/24 SECTION FOUR: GOVERNANCE
Ensuring that the City is well run and addresses issues before they become problems is the essential responsibility of the City Council and staff. This is best accomplished by setting goals, strategies and key initiatives; efficiently allocating scarce resources; and tracking progress towards accomplishing those goals. In addition, City Council can delegate its responsibilities to committees and commissions.
Goals, Strategies and Key Initiatives
Setting Goals and Strategies is a primary City Council function. Goals represent actionable expressions in support of Community’s Vision, Mission and Values, while Strategies are concrete ideas to support the City Council’s Goals.
The image below expresses the hierarchy between the Community’s Vision, Mission, Values, the City Council’s Goals and Strategies, and the Key Initiatives and day-to-day tasks undertaken by staff.
64 Governance Protocols 2nd Council Draft 2024-10-01 Page 16 10/01/24 Goals. The City Council has the following goals, which are given equal weight and priority:
• Public Safety: Ensure that American Canyon remains a safe community. • Community and Sense of Place: Build on the strength of our local community to develop a clear sense of place and establish our unique identity. • Economic Development and Vitality: Attract and expand diverse business and employment opportunities.
• Outdoors and Recreation: Expand opportunities for use of outdoor recreation and an active lifestyle.
• Transportation: Improve the City’s transportation network to mitigate traffic and enhance the quality of life for the community.
• Infrastructure: Develop and upgrade infrastructure resources to support sustainable growth.
• Quality Services & Organizational Effectiveness: Deliver exemplary government. • Environmental Sustainability: Demonstrate leadership in environmental sustainability.
Strategies. Strategies are not measurable and do not have a finite conclusion but should have a 3 to 5-year horizon. Each goal should have between 2 and 5 strategies. Strategy development is coordinated between the City Council and staff.
Key Initiatives. Key Initiatives are specific actions achievable within a 12-to-24-month timeframe.
They have an identifiable start and finish, and in some instances, may be led by 3rd parties. Staff proposes a set of initiatives as part of a recurring process each year, and then tracks their implementation throughout the year, reporting back to City Council as necessary.
Although not expressly identified in the Protocols, the Strategies and Key Initiatives can be found in the “Strategic Work Plan” which is updated every 12 to 24 months.
Budgeting with Limited Resources
City resources will always be limited, so setting priorities is essential. The City Council should solicit input from the public, staff and other stakeholders in determining these priorities. Once priorities are set, the City Council should adopt a budget with sufficient staffing and resources.
Lower priorities can be deferred until later or when additional resources become available. This process ensures that priorities are more likely to be accomplished and helps avoid overloading staff with too many priorities. If a more critical issue arises, the City Council can adjust its priorities and timelines accordingly.
Ensure Accountability and Tracking Progress
As the Chief Executive Officer, the City Manager’s effectiveness is central to achieving Council goals and priorities. As such, evaluating the Manager’s performance (along with any other City Officials reporting directly to the City Council) is perhaps the single most important task of the City Council.
65 Governance Protocols 2nd Council Draft 2024-10-01 Page 17 10/01/24 Annual Performance Reviews. The City Council reviews the performance of all City Officials reporting to the Council (City Manager and City Attorney) annually. Regular "check-ins" should also be scheduled to ensure ongoing performance and alignment with goals. The review process should evolve over time, reflecting the incumbent's experience in their position. Initial reviews aim to confirm that the employee possesses the necessary skills, knowledge, and abilities.
Subsequent reviews should focus on the accomplishment of projects and priorities set during the previous review. The performance review process begins with a written review which is presented to the employee, followed by a general discussion between the City Council and the City Official.
A review document that ranks specific attributes based on general categories should be used.
This document will include an overall ranking and space for comments, allowing Members to provide examples supporting their rankings. Each Member will complete their own review, which will then be consolidated and presented to the employee.
The annual review should serve as the basis for determining the employee's compensation.
Salary increases will be based on the employees’ success in achieving their goals. Employees covered by an employment contract will follow these guidelines. However, if a conflict arises between the employment contract and these guidelines, the terms of the contract will prevail.
Monitoring Progress. The City Council should meet at least annually with staff to review the previous year's progress, adjust priorities as needed, and improve working relationships between City Council Members and between the City Council and staff. Part of this strategic planning should involve identifying the milestones of key initiatives in the upcoming year and a schedule to review their progress more frequently.
In addition, regular reports on key initiatives and capital projects should be added to the City Council Agenda, to provide both the City Council and the general public updates on progress made and issues that may need to be addressed by City Council action.
Council Committees
City Council Standing Committees. Standing Committees are comprised of two (2) City Council Members who make specific recommendations to the full City Council. Committee Members are responsible for reporting their ongoing activities during City Council meetings. Standing Committee meetings are coordinated by the City Manager and may be called by either Member assigned to the committee. The City Manager assigns staff to support Standing Committees.
Standing Committees are subject to public meeting requirements.
City Council Ad Hoc Committees. Ad Hoc Committees are comprised of two (2) City Council Members who make specific recommendations to the full City Council. Ad Hoc Committees are formed by the City Council on an “as needed” basis with a clearly defined purpose and term. Ad Hoc Committees are single-purpose, and meetings are held as needed. Once the Ad Hoc Committee has completed its work, it is disbanded. Committee Members are responsible for 66 Governance Protocols 2nd Council Draft 2024-10-01 Page 18 10/01/24 reporting their activities during City Council meetings. Ad Hoc Committee meetings are coordinated by the City Manager and may be called by either Member assigned to the committee. The City Manager assigns staff to support Ad Hoc Committees. Ad-Hoc Committees are not subject to public meeting requirements.
City Council and Citizen Advisory Bodies. The City Council may appoint one or more “citizen advisory bodies”. These boards, commissions and committees exist to help distribute the workload that would otherwise fall to the Council. They are advisory to the City Council, which should rely on these bodies to study matters within their purview and make recommendations.
Staff provide administrative and technical support to these bodies as needed. The City Manager will schedule regular “joint meetings” between the City Council and these bodies to focus on broad policy issues, work plans, and working relationships. The City Clerk will solicit candidates for these bodies, who will be screened by the City Council. Individuals selected on these bodies serve at the City Council's pleasure and may be removed at any time for any reason – including but not limited to - violations of the Code and Protocols. 67 Governance Protocols 2nd Council Draft 2024-10-01 Page 19 10/01/24 SECTION FIVE: MEETINGS
State law requires the City Council to conduct business and make decisions together as a group, rather than as individuals. Generally, the group is required to meet in a manner that is “open to the public” instead of “behind closed doors”. These “Public Meeting” requirements generally apply to citizen advisory bodies too, regardless of whether they are decision-making or advisory in nature.
What is a “Public Meeting” (aka the “Brown Act”)?
When a majority of the City Council gathers to hear, discuss or deliberate topics, a “meeting” occurs – regardless of whether the Members intended upon having a meeting. The City Council may only conduct lawful meetings and to be lawful, a meeting must be noticed, have an agenda, include public participation, and follow other procedural rules.
Importantly, meetings need not occur at the same time or place. For example, a private email from one City Council Member to the entire Council might (inadvertently) become a “meeting” if two other Members respond at a later time and date. However, since the procedural rules about notice and participation cannot be followed, this (email) meeting would not be lawful. This standard applies for all scenarios by which a majority of Members uses any communication technology (telephone, text message, e-mail, blog, social media, etc.) to hear, discuss or deliberate topics within the City Council’s purview.
In addition, interaction between individual City Council Members can (inadvertently) become meetings too. For example, a private email exchange from one Member to another could later become a meeting if one of the Members then forwards the email exchange to a 3rd Council Member, who then initiates a response and exchange back with that Council Member. In this case, a “serial meeting” can occur. Serial meetings are unlawful because there is no way to notice such meetings or to provide for public participation.
Something as simple as pressing "Reply All" to an email sent by City staff to all Members can inadvertently trigger such a serial meeting violation. For example, if your "Reply All" message tries to convince other Members to join your point of view on an issue could become unlawful because Members are considering an issue outside of the public's view.
State law also prohibits Members from using social media platforms to hold meetings. You may not respond to another Member’s social media posts regarding items in Council, which prohibition includes even a thumbs up or emoji indicating agreement or disagreement.
Although Members may attend a purely social gathering or attend conferences or seminars, they must take care not to discuss City business among themselves.
Persons with matters pending before City Council may approach individual Members to discuss matters in private. It is up that Members sole discretion whether to honor the request, but Members must remember they are acting in an official capacity if they do and must disclose the 68 Governance Protocols 2nd Council Draft 2024-10-01 Page 20 10/01/24 occurrence all private discussions to ensure the City Council has access to all resulting information.
There are civil remedies and criminal misdemeanor penalties for violations of the Brown Act. The civil remedies include injunctions against further violations, orders nullifying any unlawful action and orders determining the validity of any rule to penalize or discourage the expression of a Member. Criminal penalties may result if a person is found guilty of a wrongful deliberate intent to deprive the public of information to which it is entitled under the Brown Act.
The most effective approach to prevent these penalties is to hold the City Council’s meetings in a public forum, stick to the agenda items, and consult the City Attorney, City Manager or City Clerk if you have any uncertainties regarding whether an action might violate the Brown Act.
City Council Meetings
The purpose of City Council Meetings is to conduct City business. Matters not on the Agenda are not discussed. City Council Members prepare for City Council Meetings by reviewing the entire Agenda Packet and informing the City Manager of any questions, comments or concerns prior to the City Council Meeting. While City Council Meetings follow parliamentary procedures, they also maintain a natural, respectful flow, allowing for public input and reasonable deliberations.
Regular City Council Meetings. Regular meetings are held on the first (1st) and third (3rd) Tuesdays of the month. Closed Session starts at 5:30 PM, with Open Session beginning at 6:30 PM.
Meetings are adjourned by 10:00 PM unless extended by a majority vote.
Special City Council Meetings. Special meetings may be held at any date or time following a 24- hour notice by the Mayor or a majority of City Council Members. Only the matters in the notice may be considered.
Meeting Calendar. A calendar of next year’s Regular City Council Meetings is adopted by the City Council at the end of each calendar year. Additional Special City Council Meetings may be scheduled as needed throughout the year.
Attendance. City Council Members are expected to attend all Regular and Special City Council Meetings. Attendance is defined as being marked “present” during Roll Call and remaining present until the meeting is adjourned. Members who do not attend a City Council Meeting are deemed “absent”. The City Clerk is responsible for tracking Member attendance.
Excused Absences. To be eligible for an “Excused Absence” from a Regular City Council Meeting, the requesting City Council Member must notify the Mayor and City Manager at least 24 hours prior to Roll Call. To be eligible for an “Excused Absence” from a Special City Council Meeting, the requesting Member must notify the Mayor and City Manager prior to Roll Call. Assuming requisite prior notification occurs, the Mayor shall grant an Excused Absence without further inquiry. However, the Mayor may not grant more than four (4) Excused Absences per calendar year (per Member). After the fourth Excused Absence, the City Council must determine whether 69 Governance Protocols 2nd Council Draft 2024-10-01 Page 21 10/01/24 reasonable circumstances exist to grant any Member a fifth (5th) (or more) Excused Absence.
Upon being granted an Excused Absence, the requesting Member will be compensated in the usual manner provided they have been briefed by the Mayor or City Manager on the matters discussed during the Excused Absence.
Unexcused Absences. City Council Members who do not attend a City Council Meeting or fail to provide the required notice are deemed to be “Unexcused”. City Council Members are ineligible for compensation after three (3) or more Unexcused Absences in any calendar year.
Compensation will be withheld on a pro-rata basis each month the Council Member is deemed to have 4 or more Unexcused Absences in a Calendar Year. In addition to withholding compensation after three (3) or more Unexcused Absences, the Member may also be sanctioned by the City Council for violation of the Code and Protocols.
Teleconferencing. City Council Members are expected to attend all Regular and Special City Council Meetings in person. Notwithstanding this expectation, there may be instances where a Member chooses to attend a City Council Meeting remotely by phone or video conference (ie. “teleconferencing”). Attending a City Council Meeting remotely can impose a burden on staff and the City Council. Instances of teleconferencing are expected to be limited and a Member’s desire to attend planned out well in advance of the meeting. Procedures for remote City Council Meeting attendance are prescribed by State law and it is the remote-attending Member’s responsibility to ensure compliance with State law.
Quorum. A City Council majority constitutes a quorum, with motions passed 2-1 if only three Members attend. However, certain actions, such as adopting ordinances and approving payment orders, require three affirmative votes. If a majority is disqualified due to conflicts of interest, the City Council selects Members by lot or other impartial means to form a quorum.
Participation and Voting Required. A Member in attendance at a City Council meeting is required to participate in each agenda item and then vote when called upon by the City Clerk. If the Member believes they have a disqualifying conflict of interest, they must publicly explain the nature of their conflict and then remove themselves from the City Council Chambers prior to the item being considered so they will be considered to have abstained from voting. A detailed list of disqualifying conflicts of interest is shown in the Appendix. Importantly, having to make a difficult or unpopular decision is not a disqualifying conflict of interest or basis for abstention.
Rule of Necessity (“Legally Required Participation”). If a majority of the City Council shall be disqualified to vote on a matter by reason of actual or apparent conflict of interest, the City Council shall select by lot or other means of random selection, or by such other impartial and equitable means as the City Council shall determine, that number of its disqualified Members which, when added to the Members eligible to vote, shall constitute a quorum.
Those Members may vote but not discuss.
Minutes. “Action minutes” prepared by the City Clerk’s Office represent the official summary of the City Council’s actions. Video recordings supplement the minutes. However, when City 70 Governance Protocols 2nd Council Draft 2024-10-01 Page 22 10/01/24 Council action is not taken but direction to staff is provided, the specific direction is included in the minutes to avoid misunderstandings and ensure the direction is implemented.
Agenda-Setting Process. The City Clerk maintains a twelve-month rolling calendar of future agenda items of which the City Manager is generally responsible for coordinating and assigning the respective dates for those items. This calendar is available for review by City Council Members by request of the City Manager. Each City Council Meeting Agenda also includes a list of notable future items.
City Council-Requested Items. Members may request future agenda items. This first should be requested informally through consultation with the City Manager and then, if necessary, based on formal consensus of the Council.
Agenda Packet Preparation & Delivery. The agenda contains topics for consideration. The City Clerk, in consultation with staff, prepares a “packet” of information containing all the supporting documents for each agenda item (Agenda Packet). The Agenda Packet is delivered electronically to Members no later than 5:00 p.m. on Friday preceding the Tuesday meeting to which it pertains. The Agenda Packet is only provided in an electronic format. Once the Agenda Packet is distributed to the Members, it is made available to the public.
Agenda Posting. The City Clerk is responsible for posting regular meeting agendas at least 72 hours prior to the meeting. Agendas shall be physically posted on the bulletin board outside of City Hall and electronically posted at the Virtual City Hall. Agendas are also electronically delivered to those who have registered to receive them.
Agenda Order. The Mayor conducts the meeting in the order shown on the agenda or as otherwise modified by the City Council.
Meeting Decorum. To ensure proper decorum, the City Council enforces measures to minimize interruptions, such as requiring cellular phones and pagers to be turned off or set to vibrate.
Public input is time-limited and should occur prior to Council Member comment or deliberation.
Council Members are encouraged to be concise in their remarks. While at a City Council meeting, be mindful of electronic devices, such as smart phones, laptops and tablets. Do not use such devices to communicate with other Members, commissioners, Members of the public, or undertake ad hoc research while the City Council is considering a matter. Doing so results in parts of the decision-making process occurring outside of the public's view (and implies due process concerns for some City Council decisions).
Parliamentary Procedure. The City Council follows Rosenberg’s Rules of Order. The purpose of the rules of parliamentary procedure is to establish a framework for the orderly conduct of meetings. The Rules should be clear and user-friendly. Simple rules lead to wider understanding and participation. Complex rules create two classes: those who understand and participate; and those who do not fully understand and do not fully participate. So, the rules must be simple enough that the public is invited into the body and feels that it has participated in the process. 71 Governance Protocols 2nd Council Draft 2024-10-01 Page 23 10/01/24 Also, the Rules should enforce the will of the majority while protecting the rights of the minority.
The ultimate purpose of rules of procedure is to encourage discussion and to facilitate decision making by the body. In a democracy, the majority rules. The rules must enable the majority to express itself and fashion a result, while permitting the minority to also express itself, but not dominate, while fully participating in the process.
Closed Session
All City Council Meetings are open to the public. However, the City Council may hold “closed sessions”, from which the public may be excluded. Topics that may be discussed are limited to the following: personnel matters, property negotiations, labor negotiations, existing litigation, anticipated litigation and any other topics allowed by law.
Closed Session attendees consist of the City Manager, City Attorney, City Council and any other person deemed necessary by the participants to further the discussion of the items for consideration. Each Closed Session participant must independently determine for themselves whether their participation in Closed Session is appropriate or lawful, and reliance upon the City Attorney’s advice is insufficient justification.
Call to Order. The Mayor (or Vice-Mayor) calls the Closed Session to order at the appointed time.
In the absence of both, the meeting shall be called to order by the City Manager and those Council Members present shall proceed to select a “temporary presiding officer”.
Roll Call. Immediately after Call to Order, the City Clerk conducts a “roll call” of the Members present whose names that are recorded as “present” (i.e. in attendance.).
Public Comments. This time is reserved for the public to address the City Council on Closed Session items only. Comments must be made in person and are limited to 3 minutes. The City Clerk physically departs from the Closed Session at the conclusion of Public Comment.
Personnel Matters. The City Council may consider the appointment, employment, or dismissal of a public employee or to hear complaints or charges brought against such a person or employee.
The Council may also review the performance of City Officials reporting directly to the City Council.
Property Negotiations. The City Council may discuss the terms and conditions under which real property may be acquired or sold but the actual purchase agreement or contract must be approved in an open session.
Labor Negotiations. The City Council may discuss the terms and conditions for meeting the City’s obligations of negotiating in good faith with represented employees regarding wages, benefits, and working conditions.
Existing Litigation. The City Council may discuss existing legal matters to which the City is an actual party.
72 Governance Protocols 2nd Council Draft 2024-10-01 Page 24 10/01/24 Anticipated Litigation. The City Council may discuss legal matters in which the City could become a party; however, this exception must be narrowly construed to apply only to matters with specific facts and circumstances.
Threats Against the City. The City Council may discuss threats to the security of public buildings, essential public services - including water, drinking water, wastewater treatment, natural gas service, and electric service - or a threat to the public's right of access to public services or facilities.
Confidentiality. Matters discussed in Closed Session shall not be discussed outside of the Closed Session by any City Council Member or City Official attending the meeting. Members who violate this policy are subject to sanctions by the City Council. Sanctions may include, but are not limited to, removal of the City Council Member from other boards and commissions where the Member represents the City. This policy ensures that the City Council conducts sensitive discussions appropriately while maintaining transparency and accountability to the public where required.
Open Session
Call to Order. The Mayor (or Vice-Mayor) calls the meeting to order at the appointed time. In the absence of both, the meeting shall be called to order by the City Manager and those City Council Members present shall proceed to select a “temporary presiding officer”.
Pledge of Allegiance. The Mayor leads the Pledge of Allegiance.
Open Session Roll Call. Immediately after the Pledge, the City Clerk conducts a “roll call” of the Members present whose names are recorded as “present” (i.e. in attendance.) Report on Closed Session/Confirmation of Reportable Action. The City Attorney announces any reportable action taken by City Council during Closed Session.
Proclamations. The City Council issues proclamations to recognize, honor and/or celebrate various community interests. The City Council generally takes a photo with recipients immediately after presenting the proclamation. A calendar of next year’s Proclamations is adopted by the City Council at the end of each calendar year. Additional Proclamations may be scheduled as needed throughout the year.
Presentations. The City Council receives pertinent information from 3rd parties generally related to an area of interest.
Public Comments. City Council meetings are a limited public forum. Any person may address the City Council on any subject pertaining to City business, and which is not listed on the regular or closed session agendas. Generally, each person will be allowed up to three (3) minutes of time to address the City Council. One two-minute extension may be granted by the mayor at their discretion.
73 Governance Protocols 2nd Council Draft 2024-10-01 Page 25 10/01/24 American Canyon promotes respectful and responsible behavior among its meeting participants, whether they are present in person or remotely. Using offensive language or remarks that promote, foster, or perpetuate discrimination based on race, creed, color, age, religion, gender marital status, status regarding public assistance, national origin, physical or mental disability or sexual orientation/gender identification, as well as any other category protected by federal, state or local laws will not be tolerated. In the case of offensive language or remarks and in the sole discretion of the Mayor, a speaker may be immediately disconnected from the microphone.
Agenda Review and Changes. The City Council may vote to modify the order of the agenda, to expedite the business of the City or to accommodate Members of the audience.
Consent Calendar. Items of a routine or non-controversial nature shall be placed on the Consent Calendar. A brief description of the item and/or the action to be taken shall be included to provide a better understanding of the issue. Item on the Consent Calendar are approved as a group, with single motion, second and vote. Typical items include:
• Prior meeting minutes.
• Monthly or informational reports.
• Routine purchases or awards of contracts of an item already budgeted. • Actions approved in concept at a prior meeting.
Public Hearings. Generally, for legal purposes, certain items are heard as a public hearing, rather than as a Business Item. Public hearings will follow the noticing requirements as stipulated by applicable law. Public hearings are conducted in the following order:
1. Council Member Ex Parte disclosure
2. Staff review
3. Questions of staff by Council
4. Hearing opened by the mayor
5. Testimony from the applicant (if appropriate)
6. Testimony from the public
7. If desired, hearing closed.
8. Discussion by Council
9. Council action
Quasi-judicial hearings (such as when the Council is considering an appeal of a land use decision by the Planning Commission) shall be conducted in accordance with the principles of due process, and the City Attorney shall advise the City Council in this regard.
At any public hearing before the City Council, testimony of witnesses under oath may be requested by the City Council.
Business Items. Business Items are less formal than Public Hearings and will be introduced and summarized by the City staff. The appropriate departmental representative will be available to 74 Governance Protocols 2nd Council Draft 2024-10-01 Page 26 10/01/24 answer questions that may be asked by Members or the public. Business items are conducted in the following order:
1. Staff review
2. Questions of Staff by Council
3. Testimony from the Applicant (if appropriate)
4. Public comment period is opened.
5. When finished, public comment period is closed.
6. Discussion by Council
7. Action by Council by roll call vote
Management and Staff Oral Reports. Informational reports by staff not requiring formal action.
Mayor/City Council Comments and Committee Reports. Members are encouraged to submit a written report to the City Clerk for inclusion in the meeting packet. Alternatively, an oral update can be provided at this time.
Future Agenda Items. Future agenda items are reviewed and considered. New “Councilrequested” items are proposed by Member(s) through a motion and affirmative vote by the City Council majority. A log of future items will be maintained by the City Clerk and displayed on the agenda. The dates and prioritization of future agenda items is proposed by the City Manager subject to modification by direction of the City Council majority. 75 Governance Protocols 2nd Council Draft 2024-10-01 Page 27 10/01/24 SECTION SIX: COMPENSATION
Salary. City Council Members receive a salary as stipulated by State law which may be adjusted from time to time by the Legislature. Effective with the City Council sworn in on December 3, 2024, Members will receive a salary of $950 per month.
Cost of Living Increase. Effective the first full pay period in December 2024, and then annually each January beginning in 2026 and thereafter, City Council Members will receive a cost-of-living increase equivalent to the California Consumer Price Index of the prior 12 months up to maximum of 10%, provided however this increase shall not exceed the amount of cost-of-living increase receive by City employees in the General Bargaining Unit. Any cost-of-living increase must be approved by the City Council.
Payment Schedule. City Council Members are paid twenty-six (26) times per year.
Additional Payment. City Council Members sit defacto as the American Canyon Fire Protection District Board of Directors (Fire District) and receive compensation separately and directly from the Fire District. Although Members will consider matters related to the former American Canyon County Water District ("Water District") from time to time, they will receive no additional compensation.
Retirement and Medical Benefit. City Council Members are covered under the City’s PERS retirement program, which includes medical coverage. If a Member is vested in the City’s retirement program, they will be eligible for retiree medical insurance benefits.
Dental and Vision. City Council Members are eligible for the same dental and vision care coverage and benefits as the Management Team.
Deferred Compensation and Equipment Loan Programs. City Council Members are eligible to participate in the City’s Section 457 Deferred Compensation program and the City’s Computer Equipment Loan program.
Vehicle Stipend. City Council Members are eligible to receive an auto stipend. The amount and terms of use shall be set by Resolution and may be amended from time to time.
Telephone Stipend. City Council Members are eligible to receive a phone stipend. The amount and terms of use shall be set by Resolution and may be amended from time to time.
No “Cash in Lieu” of Benefits. City Council Members are not eligible for "cash-in lieu of" any benefits they have declined.
76 Governance Protocols 2nd Council Draft 2024-10-01 Page 28 10/01/24 SECTION SEVEN: ADMINISTRATIVE SUPPORT
General. The City Manager will ensure that routine matters, such as distributing City Council mail and providing clerical support, are handled as needed. Customized stationery will be provided for each City Council Member, recognizing that individual Members do not represent the full City Council. City resources, including funds, equipment (e.g., cell phone, laptop personal computer, small file storage), supplies (including letterhead), and staff time must only be used for authorized City of American Canyon activities and purposes. When in doubt, Membersshould contact the City Manager for advice before making any commitments.
Master Calendar. A calendar of events, functions, and meetings will be maintained and kept current by the City Clerk. This calendar will include functions, events, and regularly scheduled meetings attended by individual Council Members and will be distributed to the full City Council.
Request for Information. City Council Members may request information or research from the City Manager if the request can be completed in less than an hour. Often, the City Manager will delegate this request to staff. Requests anticipated to take more than one hour should be directed to the City Council during a City Council meeting under "Future Council Item." Requests for new information or policy direction will be brought to the full City Council at a Regular Meeting for consideration. All written reports will be copied to the full City Council.
Tickets to City Events. One ticket for each City Council Member will be provided for events hosted by the City or in which the City is a Member. Departments hosting City events will coordinate ticket distribution with the City Manager’s Office. The availability of tickets for events hosted by other organizations will be at the discretion of the organizing agency. When the City is a major sponsor of an event, staff will endeavor to include ticket availability in the sponsorship agreement or contract.
City Council Notification of Significant Incidents. The City Manager’s Office, in conjunction with the City’s public safety departments, will coordinate notifications to the City Council in conjunction with the City Communication Policy. Notifications will occur in the event of a natural disaster, riots, large-scale evacuation, gang activity involving murder, injury and hospitalization of a city employee while on the job, an officer-involved shooting, or a financial issue that could result in controversy or disgrace for the City of American Canyon. This will be done via email and/or telephone.
Business Cards and Name Tags. Members will be issued business cards to be used in the duties and functions of the office. Name tags will be issued to wear during meetings, events, or at any function where Members are representing the City in their role as a City Council Member. At the conclusion of a term, name tags and unused business cards shall be returned to the City Clerk.
Travel and Training. City Council Members follow the same policies as staff for travel for official business or for training and educational purposes. Members are responsible for making their own 77 Governance Protocols 2nd Council Draft 2024-10-01 Page 29 10/01/24 travel arrangements and accommodation and avoid unnecessary expenditures and negative public perception.
Technology. Each City Council Member is provided with a City-issued electronic tablet to facilitate their City Council work. The tablet is a valuable tool that will assist Members in staying connected and contribute to the success of their role, and the organization's goals. The tablet will be returned to the City Clerk upon the end of the Member’s service on the City Council. 78 APPENDIX A CONFLICT OF INTEREST (FORM 700)
79 An Overview of Conflicts of Interest
Under the Political Reform Act
May 2022
Contents
I. The Basic Prohibition................................................................................................ 2 II. Making, Participating in Making, or Attempting to Influence a Decision.................... 2 A. General Definitions................................................................................................ 2 B. Exceptions............................................................................................................. 3 III. Financial Interests ................................................................................................. 4 IV. Foreseeability of Financial Effect........................................................................... 5 A. Explicitly Involved .................................................................................................. 5 B. Not Explicitly Involved............................................................................................ 5 V. Materiality Standards ................................................................................................ 6 A. Business Entity Interests ....................................................................................... 6 B. Real Property Interests.......................................................................................... 7 C. Source of Income Interests.................................................................................... 9 D. Source of Gift Interests........................................................................................ 11 E. Interest in Personal Finances .............................................................................. 12 VI. The Public Generally Exception .......................................................................... 13 VII. Legally Required Participation............................................................................. 16 VIII. Segmentation ...................................................................................................... 17 IX. Disqualification Requirements ............................................................................. 18 Fair Political Practices Commission 1 Conflicts Overview May 2022
80 I. The Basic Prohibition
Government Code Section 87100 of the Political Reform Act (the “Act”)1 prohibits a public official at any level of state or local government from making, participating in making, or attempting to use the official’s position to influence a governmental decision in which the official knows or has reason to know the official has a financial interest.
Government Code Section 87103 provides that an official has a “financial interest” within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect on one or more of the official’s interests as identified and distinguishable from the decision’s effect on the public generally.
Taken together, these provisions of the Act prohibit an official from taking part in a decision if it is reasonably foreseeable that the decision would have a material financial effect on one or more of the official’s financial interests identified in Section 87103 distinguishable from the decision’s effect on the public generally.
II. Making, Participating in Making, or
Attempting to Influence a Decision
Regulation 18704 defines “making a decision,” “participating in a decision,” and “using official position to attempt to influence a decision” for purposes of the Act’s conflict of interest provisions. If an official has a disqualifying conflict of interest under Section 87100, the official is prohibited from making, participating in making, or attempting in any way to use the official’s official position to influence the decision.
A. General Definitions
Making a Decision: An official makes a decision if the official authorizes or directs any action, votes, appoints a person, obligates or commits the official’s agency to any course of action, or enters into any contractual agreement on behalf of the agency. (Regulation 18704(a).)
Participating in a Decision: An official participates in a decision if the official provides information, an opinion, or a recommendation for the purpose of affecting the decision without significant intervening substantive review. (Regulation 18704(b).) Using Official Position to Attempt to Influence a Decision: An official uses an official position to influence a decision if the official contacts or appears before: (1) any official in the official’s agency, or in an agency subject to the authority or budgetary control of the official’s agency, for the purpose of affecting a decision; or (2) any official in any other government agency for the purpose of affecting a decision, and the official purports to act within the official’s authority or on behalf of the official’s agency in making the contact. (Regulation 18704(c).)
Fair Political Practices Commission 2 Conflicts Overview May 2022
81 B. Exceptions
Regulation 18704(d) provides that “making, participating in, or using official position to influence a decision” do not include any of the following:
Ministerial: Actions that are solely ministerial, secretarial, or clerical. (Regulation 18704(d)(1).)
Appearances as a Member of the General Public: An appearance by an official as a member of the general public before an agency in the course of its prescribed governmental function if the official is appearing on matters related solely to the official’s personal interests, including interests in:
• Real property owned entirely by the official, members of the official’s immediate family, or the official and members of the official’s immediate family; • A business owned entirely by the official, members of the official’s immediate family, or the official and members of the official’s immediate family; or • A business over which the official, members of the official’s immediate family, or the official and members of the official’s immediate family solely or jointly exercise full direction and control. (Regulation 18704(d)(2).) Terms of Employment: Actions by an official relating to the official’s compensation or the terms or conditions of the official’s employment or consulting contract. However, an official may not make a decision to appoint, hire, fire, promote, demote, or suspend without pay or take disciplinary action with financial sanction against the official or the official’s immediate family, or set a salary for the official or the official’s immediate family different from salaries paid to other employees of the agency in the same job classification or position. (Regulation 18704(d)(3).)
Public Speaking: Communications by an official to the general public or media. (Regulation 18704(d)(4).)
Academic Decisions: Teaching decisions, including an instructor’s selection of books or other educational materials at the official’s own school or institution, or other similar decisions incidental to teaching; or decisions by an official who has teaching or research responsibilities at an institution of higher education relating to the official’s professional responsibilities, including applying for funds, allocating resources, and all decisions relating to the manner or methodology with which the official’s academic study or research will be conducted. (Regulation 18704(d)(5).) However, this exception does not apply to an official who has institution-wide administrative responsibilities as to the approval or review of academic study or research at the institution unrelated to the official’s own work. (Ibid.)
Architectural and Engineering Documents: Drawings or submissions of an architectural, engineering, or similar nature prepared by an official for a client to submit in a proceeding before the official’s agency if: (i) the work is performed pursuant to the official’s profession; and (ii) the official does not make any contact with the agency other Fair Political Practices Commission 3 Conflicts Overview May 2022
82 than contact with agency staff concerning the process or evaluation of the documents prepared by the official. (Regulation 18704(d)(6)(A).)
Also, an official’s appearance before a design or architectural review committee or similar body of which the official is a member to present drawings or submissions of an architectural, engineering, or similar nature prepared for a client if: (i) the committee’s sole function is to review architectural designs or engineering plans and to make recommendations to a planning commission or other agency; (ii) the committee is required by law to include architects, engineers, or persons in related professions, and the official was appointed to the body to fulfill this requirement; and (iii) the official is a sole practitioner. (Regulation 18704(d)(6)(B).)
Additional Consulting Services: Recommendations by a consultant regarding additional services for which the consultant or consultant’s employer would receive additional income if the agency has already contracted with the consultant, for an agreed upon price, to make recommendations concerning services of the type offered by the consultant or the consultant’s employer, and the consultant does not have any other economic interest, other than in the firm, that would be foreseeably and materially affected by the decision. (Regulation 18704(d)(7).)
III. Financial Interests
The first step in determining whether an official has a disqualifying conflict of interest under the Act is identifying the official’s financial interests with respect to the decision at issue. Section 87103 identifies the following financial interests which may give rise to an official’s disqualifying conflict of interest under the Act:
• A business entity in which the official has a direct or indirect investment worth $2,000 or more (Section 87103(a)); or in which the official is a director, officer, partner, trustee, employee, or holds any position of management (Section 87103(d)).
• Real property in which the official has an interest worth $2,000 or more. (Section 87103(b).)
• A source of income totaling $500 or more in value provided or promised to, or received by, the official within the 12 months prior to the time when the decision is made. (Section 87103(c).)
• A giver of a gift or gifts totaling $5002 or more in value provided or promised to, or received by, the official within the 12 months prior to the time when the decision is made. (Section 87103(e).)
• The official’s personal finances and those of “immediate family,” defined in Section 82029 as the spouse and dependent children. (Section 87103.) Fair Political Practices Commission 4 Conflicts Overview May 2022
83 IV. Foreseeability of Financial Effect
A. Explicitly Involved
A financial effect on a financial interest is presumed to be reasonably foreseeable if the financial interest is explicitly involved in the decision. (Regulation (18701(a).) An official’s financial interest is “explicitly involved” in a decision if the interest is a “named party in, or the subject of,” the decision, and an interest is the “subject of a proceeding” if the decision involves the issuance, renewal, denial, or revocation of any license, permit, other entitlement to, or contract with, the interest.3 Additionally, an official’s real property interest is explicitly involved in any decision affecting the real property as described in Regulation 18702.2(a)(1) through (6), discussed further below. (Ibid.) B. Not Explicitly Involved
When an official’s financial interest is not explicitly involved in a decision, the financial effect of the decision is reasonably foreseeable if the effect can be recognized as a realistic possibility and more than hypothetical or theoretical. The effect need not be likely to be reasonably foreseeable. (Regulation 18701(b).) Factors to be considered when determining if a decision’s effect on an official’s not explicitly involved interest is reasonably foreseeable include, but are not limited to, the following:
• The extent to which the occurrence of the effect is contingent upon intervening events (other than future governmental decisions by the official’s agency or an agency subject to the budgetary control of the official’s agency). (Regulation 18701(b)(1).)
• Whether the official should anticipate a financial effect on the financial interests at issue as a potential outcome under normal circumstances when using appropriate due diligence and care. (Regulation 18701(b)(2).) • Whether the official has an interest of the type that would typically be affected by the terms of the decision. (Regulation 18701(b)(3).)
• Whether the decision is of the type that would be expected to have a financial effect on businesses and individuals similarly situated to those businesses and individuals in which the official has a financial interest. (Ibid.) • Whether a reasonable inference can be made that the financial effects of the decision on the official’s financial interest might compromise an official’s ability to fulfill their duty to act in the best interests of the public. (Regulation 18701(b)(4).) • Whether the decision will provide or deny an opportunity, or create an advantage for one of the official’s financial interests. (Regulation 18701(b)(5).) Fair Political Practices Commission 5 Conflicts Overview May 2022
84 • Whether the official has the type of financial interest that would cause a similarly situated person to weigh the advantages and disadvantages of the decision on the official’s financial interest in formulating a position. (Regulation 18701(b)(6).) V. Materiality Standards
Regulation 18702(a) provides that the next step in the analysis is to determine if the decision’s reasonably foreseeable financial effect on the official’s financial interest is material. If the official’s interest is in:
• A business entity, then apply the materiality standards of Regulation 18702.1. (Regulation 18702(a)(1).)
• A real property, then apply the materiality standards of Regulation 18702.2. (Regulation 18702(a)(2).)
• A source of income, then apply the materiality standards of Regulation 18702.3. (Regulation 18702(a)(3).)
• A source of a gift or gifts, then apply the materiality standards of 18702.4. (Regulation 18702(a)(4).)
• Their personal finances or those of immediate family, then apply materiality standard of 18702.5. (Regulation 18702(a)(5).)
A. Business Entity Interests
Regulation 18702.1 sets forth the materiality standards applicable to a decision’s reasonably foreseeable financial effect on a business in which an official has an interest, and provides that the effect is material if any of the following standards is met:
• The business is explicitly involved in the decision, meaning that the business is “a named party in, or the subject of, the decision, including any decision in which the business:
Initiates the proceeding by filing an application, claim, appeal, or other request for action concerning the business with the official’s agency. (Regulation 18702.1(a)(1)(A).)
Offers to sell a product or service to the official’s agency. (Regulation 18702.1(a)(1)(B).)
Bids on, or enters into, a contract with the official’s agency, or is identified as a subcontractor on a bid or contract with the agency. (Regulation 18702.1(a)(1)(C).)
Is the named or intended manufacturer or vendor of any products to be purchased by the official’s agency with an aggregate cost of $1,000 in any 12- month period. (Regulation 18702.1(a)(1)(D).)
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85 Applies for a permit, license, grant, tax credit, exception, variance, or other entitlement from the official’s agency. (Regulation 18702.1(a)(1)(E).) Is the subject of any inspection, action, or proceeding under the regulatory authority of the official’s agency. (Regulation 18702.1(a)(1)(F).) Is subject to an action taken by the official’s agency that is directed at the entity. (Regulation 18702.1(a)(1)(G).)
• The decision may result in an increase or decrease of the business’s annual gross revenues, or the value of its assets and liabilities, in an amount equal to or more than:
$1,000,000; or
Five percent of the business’s annual gross revenues, and the increase or decrease is $10,000 or more. (Regulation 18702.1(a)(2).) • The decision may cause the business to incur or avoid additional expenses or to reduce or eliminate expenses in amount equal to or more than:
$250,000; or
One percent of the business’s annual gross revenues, and the increase or decrease is at least $2,500. (Regulation 18702.1(a)(3).) • The official knows or has reason to know that business has an interest in real property and:
The property is a named party in, or the subject of, the decision under Regulations 18701(a) and 18702.2(a)(1) through (6); or
There is clear and convincing evidence the decision would have a substantial effect on the property. (Regulation 18702.1(a)(4).)
Thus, if the decision’s reasonably foreseeable financial effect on an official’s business interest meets any of the four standards above, that effect is material, and the official is disqualified from taking part in the decision.
Small Shareholder Exception: Regulation 18702.1(b) sets forth the “Small Shareholder Exception,” which provides that a decision’s reasonably foreseeable financial effect on an official’s financial interest in a business is not material under Regulation 18702.1(a)(1) or (a)(4)(A) if both:
• The official’s only financial interest in the business is an “investment interest” under Section 87103(a) valued at $25,000 or less; and
• The official’s interest in the business is less than one percent of the business’s shares.
If the Small Shareholder Exception applies, the official is not disqualified.
B. Real Property Interests
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86 Regulation 18702.2 provides the materiality standards applicable to a decision’s reasonably foreseeable financial effect on real property in which an official has an interest as either an owner or lessee.
Explicitly Involved Real Property Interest: It is reasonably foreseeable a decision will have a material financial effect on an official’s interest in real property any time the interest is explicitly involved in the decision. Therefore, the decision’s reasonably foreseeable effect is material in any of the types of decisions described in Regulation 18702.2(a)(1) to (6), including a decision that:
• Involves the adoption of or amendment to a development plan or criteria applying to the property. (Regulation 18702.2(a)(1).)
• Determines the property’s zoning or rezoning, other than a zoning decision applicable to all properties designated in that category; annexation or deannexation; inclusion in or exclusion from any city, county, district, or local government subdivision or other boundaries, other than elective district boundaries. (Regulation 18702.2(a)(2).)
• Would impose, repeal, or modify any taxes, fees, or assessments that apply to the property. (Regulation 18702.2(a)(3).)
• Authorizes the sale, purchase, or lease of the property. (Regulation 18702.2(a)(4).)
• Involves the issuance, denial or revocation of a license, permit or other land use entitlement authorizing a specific use of or improvement to the property or any variance that changes the permitted use of, or restrictions placed on, the property. (Regulation 18702.2(a)(5).)
• Involves construction of, or improvements to, streets, water, sewer, storm drainage or similar facilities, and the property will receive new or improved services that provide a benefit or detriment disproportionate to other properties receiving the services. (Regulation 18702.2(a)(6).)
Not Explicitly Involved Real Property Interest: A decision’s reasonably foreseeable financial effect on an official’s interest in real property is material if it is of a type described in Regulation 18702.2(a)(7) through (8), (b) or (c), including a decision that:
• Involves property located 500 feet or less from the official’s property unless there is clear and convincing evidence that the decision will not have any measurable impact on the official’s property. (Regulation 18702.2(a)(7).) • Involves property located more than 500 feet but less than 1,000 feet from the official’s property, and the decision would change the official’s property’s:
development potential; income producing potential; highest and best use; character by substantially altering traffic levels, intensity of use, parking, view, privacy, noise levels, or air quality; or market value (Regulation 18702.2(a)(8)(A) through (E).)
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87 • Involves property located 1,000 feet or more from the property line of the official’s property if there is clear and convincing evidence the decision would have a substantial effect on the official’s property. (Regulation 18702.2(b).) • Involves property leased by the official and the decision will:
Change the termination date of the lease;
Increase or decrease the potential rental value of the property; Change the official’s actual or legally allowable use of the property; or Change the official’s use and enjoyment of the property. (Regulation 18702.2(c)(1) through (4).)
Real Property Interest 1,000 Feet or More from Property Involved in Decision: As mentioned above, Regulation 18702.2(b) sets forth a presumption that the financial effect of a decision involving property located 1,000 feet or more from the property line of the official’s property is not material. That presumption, however, may be rebutted with clear and convincing evidence the decision would have a substantial effect on the official’s real property interest.
Exceptions for Planning Objectives or Policy: A decision’s reasonably foreseeable financial effect on an official’s real property interest is not material, and therefore the official is not disqualified from the decision, if the decision solely concerns:
• Repairs, replacement or maintenance of existing streets, water, sewer, storm drainage or similar facilities. (Regulation 18702.2(d)(1).) • Adoption or amendment of a general plan, as defined in Regulation 18702.2(e)(2), if certain specified conditions are met. (See Regulation 18702.2(d)(2).)
Common Area Exception to the Definition of Interest in Real Property: Regulation 18702.2(e)(4) provides that an “interest in real property,” as defined in Section 82033, does not include “any common area as part of the official’s ownership interest in a common interest development as defined in the Davis-Stirling Common Interest Development Act (Civil Code Sections 4000 et seq.)”
C. Source of Income Interests
Regulation 18702.3 sets forth the materiality standards applicable to a decision’s reasonably foreseeable financial effect on a source of income to an official, and provides that the effect is material if any of the following criteria is met:
• The source is explicitly involved in the decision because it is “a named party in, or the subject of, the decision,” including a claimant, applicant, respondent, or contracting party. (Regulation 18702.3(a)(1).)
• The source is an individual and any of the following applies:
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88 The decision may affect the individual’s income, investments, or other assets or liabilities by $1,000 or more (excluding an interest in a business entity or real property). (Regulation 18702.3(a)(2)(A).)
The official knows or has reason to know that the individual has an interest in a business entity that will be financially affected under the materiality standards applicable to a business set forth in Regulation 18702.1. (Regulation 18702.3(a)(2)(B).)
The official knows or has reason to know that the individual: (i) has a real property interest and the property is explicitly involved in the decision; or (ii) there is clear and convincing evidence the decision would have a substantial effect on the property. (Regulation 18702.3(a)(2)(C).)
• The source is a nonprofit organization and any of the following applies:
The decision may result in an increase or decrease of the organization’s annual gross receipts, or the value of the organization’s assets or liabilities, in an amount equal to or more than: (i) $1,000,000; or (ii) five percent of the organization’s annual gross receipts and the increase or decrease is equal to or greater than $10,000. (Regulation 18702.3(a)(3)(A).) The decision may cause the organization to incur or avoid additional expenses or to reduce or eliminate expenses in an amount equal to or more than: (i) $250,000; or (ii) one percent of the organization’s annual gross receipts and the change in expenses is equal to or greater than $2,500. (Regulation 18702.3(a)(3)(B).)
The official knows or has reason to know that the organization has a real property interest and: (i) the property is explicitly involved in the decision; (ii) there is clear and convincing evidence the decision would have a substantial effect on the property. (Regulation 18702.3(a)(3)(C).)
• The source is a business that will be financially affected under the materiality standards applicable to a business set forth in Regulation 18702.1 (Regulation 18702.3(a)(4).)
• If there is a nexus between the decision and income received by the official or official’s spouse. Otherwise referred to as the nexus test, any reasonably foreseeable financial effect on an official’s source of income interest is material if the decision “will achieve, defeat, aid, or hinder a purpose or goal of the source and the official or the official’s spouse receive or is promised the income for achieving the purpose or goal. (Regulation 18702.3(b).) Exception for Retail Sales: Section 87103.5(a) provides that a retail customer of a business engaged in retail sales of good or services to the public generally is not a source of income to an official who owns a 10-percent or greater interest in the business if: the retail customers of the business constitute a significant segment of the public generally, and the amount of income received from an individual customer is not distinguishable from the amount of income received from its other customers.
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89 Section 87103.5(b) sets forth a similar retail sales exception for a jurisdiction with a population of 10,000 or less that is located within a county with 350 or fewer retail businesses.
For purposes of applying Section 87103.5, Regulation 18702.3(c) provides that the retail customers of a business entity constitute a significant segment of the public generally if the business is open to the public and provides goods or services to customers that comprise a broad base of persons representative of the jurisdiction. (Regulation 18702.3(c)(1).)
Income from an individual customer is not distinguishable from the amount of income received from other customers when the official is unable to recognize a significant monetary difference between the business provided by the individual customer and the other customers of the business. (Regulation 18702.3(c)(2).) An official is unable to recognize a significant monetary difference when the business:
• Is of the type that sales to any one customer will not have a significant impact on the business’s annual net sales; or
• Has no records that distinguish customers by amount of sales, and the official has no other information that the customer provides significantly more income to the business than an average customer. (Ibid.)
Income from a Government Entity: The materiality standards of Regulation 18702.3 do not apply where a government entity qualifies as a source of income as defined in Section 82030, including where an official is paid by the entity as a consultant or contractor. (Regulation 18702.3(d).) Under Regulation 18703(e)(7), an official with an interest in such an entity is disqualified from taking part in a decision only if there is a unique effect on the official. (Ibid.)
D. Source of Gift Interests
Regulation 18702.4 provides the materiality standards applicable to a decision’s reasonably foreseeable financial effect on the source of a gift to an official, and provides that the decision’s effect is material if:
• The source is explicitly involved in the decision because the source “is named or otherwise identified as the subject of the proceeding,” including a claimant, applicant, respondent, or contracting party. (Regulation 18702.4(a).) • The source is an individual that will be financially affected under the materiality standard applicable to a decision’s reasonably foreseeable financial effect on an official’s personal finances set forth in Regulation 18702.5 or the official knows or has reason to know that the individual has an interest in a business or real property that will be financially affected under the materiality standards provided in Regulation 18702.1 or 18702.2, respectively. (Regulation 18702.4(b)) Fair Political Practices Commission 11 Conflicts Overview May 2022
90 • The source is a nonprofit organization that will receive a measurable financial benefit or loss as a result of the decision or the official knows or has reason to know that the nonprofit has an interest in real property that will be financially affected under the materiality standards in Regulation 18702.2. (Regulation 18702.4(c).)
• The source is a business that will be financially affected under the materiality standards in Regulation 18702.1. (Regulation 18702.4(d).) E. Interest in Personal Finances
Regulation 18702.5(a) provides the materiality standard applicable to a decision’s reasonably foreseeable financial effect on an official’s personal finances, including those of immediate family. Also known as the personal financial effect rule, a reasonably foreseeable effect on the official’ personal finances is material if the decision may result in the official or the official’s immediate family receiving a financial benefit or loss of $500 or more in any 12-month period due to the decision.
Exceptions: Under Regulation 18702.5(b), however, a decision’s effect on an official’s personal finances and those of immediate family is not material if the decision would:
• Affect only the salary, per diem, or reimbursement for expenses the official or their immediate family member receives from a federal, state, or local government agency, unless the decision is:
To appoint (except as specified), hire, fire, promote, demote, suspend without pay or otherwise take disciplinary action with financial sanction against the official or their immediate family; or
To set a salary for the official or a member of their immediate family which is different from salaries paid to other employees of the government agency in the same job classification or position, or when the member of the official’s immediate family is the only person in the job classification or position. (Regulation 18702.5(b)(1).)
• Appoint the official to be a member of any group or body created by law or formed by the official’s agency for a special purpose. However, if the official will receive a stipend for attending meeting of the group or body aggregating $500 or more in any 12-month period, the effect is material unless the appointing body posts all of the following on its website:
A list of each appointed position and its term. (Regulation 18702.5(b)(2)(A).) The amount of the stipend for each appointed position. (Regulation 18702.5(b)(2)(B).)
The name of the official who has been appointed to the position. (Regulation 18702.5(b)(2)(C).)
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91 The name of any official who has been appointed to be an alternate for the position. (Regulation 18702.5(b)(2)(D).)
• Appoint the official to be an officer of the governing body of which the official is already a member (such as a decision to appoint a city councilmember to be the city’s mayor.) (Regulation 18702.5(b)(3).)
• Establish or change the benefits or retirement plan of the official or the official’s immediate family member, and the decision applies equally to all employees or retirees in the same bargaining unit or other representative group. (Regulation 18702.5(b)(4).)
• Result in the payment of any travel expenses incurred by the official or their immediate family while attending a meeting as an authorized representative of an agency. (Regulation 18702.5(b)(5).)
• Permit the official’s use of any government property, including automobiles or other modes of transportation, mobile communication devices, or other agencyprovided equipment for carrying out the official’s duties, including any nominal, incidental, negligible, or inconsequential personal use while on duty. (Regulation 18702.5(b)(6).)
• Result in the official’s receipt of any personal reward from their use of a personal charge card or participation in any other membership rewards program, so long as the reward is associated with the official’s approved travel expenses and is no different from the reward offered to the public. (Regulation 18702.5(b)(7).) Effect on Personal Finances and a Business or Real Property Interest: If a decision would have a reasonably foreseeable financial effect on a business or real property interest of an official, any related effect on the official’s personal finances is not considered separately, and the effect is only analyzed under the respective materiality standards for business and real property interests, i.e. Regulations 18702.1 and 18702.2. (Regulation 18702.5(c).)
VI. The Public Generally Exception
Under Section 87103, if a decision’s financial effect on an official’s financial interest is indistinguishable from the decision’s effect on the public generally, the official is not disqualified from taking part in the decision. Regulation 18703 sets forth the “Public Generally Exception.”
The General Rule: A decision’s financial effect on an official’s financial interest is indistinguishable from its effect on the public generally if the official establishes that a “significant segment” of the public is affected and the “effect on the official’s interest is not unique” compared to the effect on the significant segment. (Regulation 18703(a).) A “significant segment” of the public is defined as:
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92 • At least 25 percent of:
All businesses or nonprofit entities within the official’s jurisdiction; All real property, commercial real property, or residential real property within the official’s jurisdiction; or
All individuals within the official’s jurisdiction. (Regulation 18703(b)(1).) • At least 15 percent of residential real property within the official’s jurisdiction if the only interest the official has in the decision is the official’s primary residence. (Regulation 18703(b)(2).)
A unique effect on an official’s financial interest includes a disproportionate effect on:
• The development potential or use of the official’s real property, or the income producing potential of the official’s real property or business; • An official’s business or real property resulting from the proximity of a project that is the subject of a decision;
• An official’s interests in business entities or real properties resulting from the cumulative effect of the official’s multiple interests in similar entities or properties that is substantially greater than the effect on a single interest; • An official’s interest in a business or real property resulting from the official’s substantially greater business volume or larger real property size when a decision affects all interests by the same or similar rate or percentage; • A person’s income, investments, assets or liabilities, or real property if the person is a source of income or gifts to the official; and
• An official’s personal finances or those of immediate family. (Regulation 18703(c)(1)-(6).)
“Jurisdiction” means:
• The jurisdiction of the state or local government agency as defined in Section 82035;
• The designated geographical area the official was elected to represent; or • The area to which the official’s authority and duties are limited if not elected. (Regulation 18703(d).)
Specific Rules for Special Circumstances: Regulation 18703(e) also provides seven Specific Rules for Special Circumstances which govern the Public Generally Exception’s applicability in those special circumstances. Under these rules, a decision’s financial effect is deemed indistinguishable from its effect on the public generally if there is no unique effect on the official’s interest and the official establishes:
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93 • Public Services and Utilities: The decision sets or adjusts the amount of an assessment, tax, fee, or rate for water, utility, or other similar public services that is applied equally, proportionally, or by the same percentage to the official’s interest and other businesses, properties, or individuals subject to the assessment, tax, fee, or rate. However, an official is not permitted to take part in a decision that would impose the assessment, tax, or fee, or determine the boundaries of a property or who is subject to the assessment, tax, or fee. An official is only permitted to take part in setting or adjusting the assessment, tax, or fee amount, once other related decisions have already been made. (Regulation 18703(e)(1).)
• General Use or Licensing Fees: The decision affects the official’s personal finances as a result of an increase or decrease to a general fee or charge, such as parking rates, permits, license fees, application fees, or any general fee that applies to the entire jurisdiction. (Regulation 18703(e)(2).) • Limited Neighborhood Effects: The decision affects residential real property limited to a specific location, encompassing more than 50, or five percent, of the residential real properties in the official’s jurisdiction, and the decision establishes, amends, or eliminates ordinances that restrict on-street parking, impose traffic controls, deter vagrancy, reduce nuisance or improve public safety, provided the body making the decision gathers sufficient evidence to support the need for the action at a specific location. (Regulation 18703(e)(3).) • Rental Properties: The decision is limited to establishing, eliminating, amending, or otherwise affecting the respective rights or liabilities of tenants and owners of residential rental property, including a decision regarding a rent control ordinance or tenant protection measures, provided all of the following criteria are met:
The decision applies to all residential rental properties within the official’s jurisdiction other than those excepted by the Costa-Hawkins Rental Housing Act (Civil Code Sections 1954.50, et seq.). (Regulation 18703(e)(4)(A).) The official owns three or fewer residential rental units. (Regulation 18703(e)(4)(B).)
Only interests resulting from the official’s leasehold interest as a lessor of residential real property and the lessee or owner of the official’s primary residence are affected by the decision. (Regulation 18703(e)(4)(C).) • Required Representative Interest: The decision is made by a board or commission and the law that establishes the board or commission requires certain appointees have a representative interest in a particular industry, trade, or profession or other identified interest, and the public official is an appointed member representing that interest. This provision applies only if the effect is on the industry, trade, or profession or other identified interest represented. (Regulation 18703(e)(5).)
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94 • State of Emergency: The decision is made pursuant to an official proclamation of a state of emergency when required to mitigate against the effects directly arising out of the emergency. (Regulation 18703(e)(6).) • Governmental Entities: The decision affects a federal, state, or local government entity in which the official has an interest. (Regulation 18703(e)(7).) VII. Legally Required Participation
Section 87101 provides that the prohibition of Section 87100 does not prevent an official from making or participating in the making of a decision to the extent the official’s participation is legally required for the action or decision to be made. However, the existence of a tied vote does not make the disqualified official’s participation legally required.
No Alternative Source of Decision: Regulation 18705(a) provides that an official who is financially interested in a decision may establish that the official is legally required to make or to participate in the making of a decision within the meaning of Section 87101 only if there exists no alternative source of decision consistent with the purposes and terms of the statute authorizing the decision.
“Quorum” Defined: Regulation 18705(d) provides that a “quorum” is the minimum number of members required to conduct business. When the vote of a supermajority is required to adopt an item, a “quorum” is the minimum number of members needed to adopt the item.
Narrowly Construed: Regulation 18705(c) requires the regulation be narrowly construed, and specifically provides that the regulation shall not to be construed:
• To permit an official who is otherwise disqualified under Section 87100 to vote to break a tie. (Regulation 18705(c)(1).)
• To allow a member of any agency who is otherwise disqualified under Section 87100 to vote if a quorum can be convened of other members of the agency who are not disqualified, whether or not those other members are actually present at the time of the disqualification. (Regulation 18705(c)(2).) Random Means of Selection: Regulation 18705(c)(3) requires participation by the smallest number of officials with a conflict that are “legally required” for the decision to be made under Section 87101 and permits a “random means of selection” (e.g. drawing straws) to be used to select only the number of officials necessary to make the decision.
When an official is selected, that official is selected for the duration of the proceedings in all related matters until their participation is no longer legally required, or the need for invoking the exception no longer exists. (Regulation 18705(c)(3).) Fair Political Practices Commission 16 Conflicts Overview May 2022
95 Public Identification of an Otherwise Disqualified Official’s Financial Interests in a Decision: Regulation 18705(b) provides that when an official who has a financial interest in a decision is legally required to make or participate in making that decision, the official must state the existence of the potential conflict as follows:
• The official must disclose the existence of the conflict of interest and describe with particularity the nature of the official’s disqualifying financial interest or interests. This requirement is satisfied if the official discloses:
The type of financial interest or interests involved in the decision, and; Other specified information identifying the interest depending on the type of interest at issue.
• The official or another officer or employee of the agency must summarize the circumstances under which the conflict may arise.
• The official or another officer or employee of the agency must disclose the legal basis for the determination that there is no alternative source of decision.
Manner of Disclosure: The disclosures required by Regulation 18705(b) must be disclosed as follows:
• If the decision is made during an open session of a public meeting, the disclosures must be made orally before the decision is made; • If the decision is made during a closed session of a public meeting, the disclosures must be made orally during open session either before the body goes into closed session or immediately thereafter;
• If the decision takes place outside of a public meeting, the disclosures must be made in writing; and
• In all three circumstances immediately above, the disclosures must be made part of the public record, as specified. (Regulation 18705(b)(4).) VIII. Segmentation
Under the Act’s conflict of interest provisions, each governmental decision must be analyzed independently to determine if the decision will have a disqualifying effect on an official’s financial interest. (In re Owen (1976) 2 FPPC Ops. 77.) Accordingly, an agency may segment a decision in which an official has a disqualifying conflict of interest to allow the official to participate in associated decisions which would not have a disqualifying effect on the official’s interests under Regulation 18706.
Required Conditions for Segmentation: Regulation 18706(a) provides that an agency may segment a decision in which an official is financially interested, to allow the official Fair Political Practices Commission 17 Conflicts Overview May 2022
96 to participate in associated decisions in which the official is not financially interested, provided all the following conditions are met:
• The decision in which the official is financially interested can be broken down into separate decisions that are not inextricably interrelated to the decision in which the official has a disqualifying financial interest;
• The decision in which the official is financially interested is segmented from the other decisions;
• The decision in which the official is financially interested is considered first and a final decision is reached by the agency without the disqualified official’s participation in any way; and
• Once the decision in which the official is financially interested has been made, the official’s participation in associated decisions does not result in a reopening of, or otherwise financially affect, the decision from which the official was disqualified.
“Inextricably Interrelated”: Regulation 18706(b) provides that decisions are “inextricably interrelated” when the result of one decision will effectively determine, affirm, nullify, or alter the result of another decision.
Budget and General Plan Decisions Affecting Entire Jurisdiction: Regulation 18706(c) provides that once all separate decisions related to a budget or general plan affecting the entire jurisdiction have been finalized, the official may participate in the final vote to adopt or reject the agency’s budget or general plan.
IX. Disqualification Requirements
Section 87105 governs the recusal of a public official specified in Section 87200 from a decision from which the official has been disqualified. Subdivisions (a)(1)-(3) of that section require the disqualified official to: identify the potential conflict of interest to publicly identify the official’s financial interest or interests at issue; recuse from voting, discussing or attempting to influence the matter; and leave the room until after the matter is concluded. Subdivision (a)(4) excludes members of the Legislature from these recusal requirements.
Regulation 18707 provides further direction and guidance on the recusal requirements applicable to a public official specified in Section 87200 who is disqualified from a decision relating to an agenda item noticed for consideration at a public meeting subject to open meeting laws (i.e. the Bagley-Keene Act (Section 11120 et seq.) or the Brown Act (Section 54950 et seq.)).
Form and Content of Public Identification: The disqualified official must publicly identify each type of financial interest, identified in Section 87103, held by the official Fair Political Practices Commission 18 Conflicts Overview May 2022
97 that gives rise to the disqualifying conflict of interest. (Regulation 18707(a)(1).) The identification must be oral and part of the public record (Regulation 18707(a)(1)(B)), and provide the following information, as applicable:
• For a business interest: the name of the business, a general description of its activities, and any position held by the official. (Regulation 18707(a)(1)(A)(i).) • For a real property interest: the property’s address, assessor’s number, or identification that the property is the official’s personal residence. (Regulation 18707(a)(1)(A)(ii).)
• For a source of income interest: the name of the source of income. (Regulation 18707(a)(1)(A)(iii).)
• For a source of gift interest: the name of the source of gift. (Regulation 18707(a)(1)(A)(iv).)
• For all interests: the nature of the expense, liability, asset, or income affected. (Regulation 18707(a)(1)(A)(v).)
Timing: The public identification required by Regulation 18707(a)(1) must be made immediately prior to consideration of the agenda item. (Regulation 18707(a)(2).) • Partial absence from a meeting does not excuse the disqualified official’s public identification requirement. (Ibid.)
• If the official leaves a meeting in advance of an agenda item from which the official is disqualified, the official must provide the public identification required by Regulation 18707(a)(1) prior to leaving the meeting. (Regulation 18707(a)(2).) • If the official first joins a meeting after consideration of the agenda item, the official must provide the public identification immediately upon joining the meeting. (Ibid.)
Recusal and Leaving the Room: The disqualified official must recuse, leave the room after the public identification required by Regulation 18707(a)(1), and refrain from participation in the decision. (Regulation 18707(a)(3).) The disqualified official does not count toward achieving a quorum while the item is discussed. (Ibid.) • For an agenda item on a consent calendar (uncontested items), the official may remain in the room during the consent calendar. (Regulation 18707(a)(3)(A).) • If the official has a “personal interest” in the agenda item, as defined in Regulation 18704(d)(2) and wishes to speak or appear as a member of the general public, the official may leave the dais and speak or observe from the area reserved for members of the public after making the public identification required by Regulation 18707(a)(1) and recusing. (Regulation 18707(a)(3)(B).) Special Rules for Closed Session: The public identification required by Regulation 18707(a)(1) must be made orally during the open session before the body goes into Fair Political Practices Commission 19 Conflicts Overview May 2022
98 closed session and may be limited to a declaration that the official’s recusal is because of a conflict of interest under Section 87100. (Regulation 18707(a)(4).) The declaration must be made part of the official public record. (Ibid.) The official must not be present when the decision is considered in closed session or knowingly obtain or review a recording or any other non-public information regarding the decision. (Ibid.) Other Decisions: For a decision other than an agenda item involving a public official specified in Section 87200 (governed by Regulation 18707(a)), Regulation 18707(b) provides the following:
• If the official determines not to act because of a financial interest, the official’s determination may be accompanied by an oral or written disclosure of the interest.
• The official’s presence will not be counted toward achieving a quorum. • During a closed meeting of the agency, a disqualified official must not be present when the decision is considered, or knowingly obtain or review a recording or any other nonpublic information regarding the decision.
• An agency may adopt a local rule requiring the official to step down from the dais or leave the chambers.
Confidential Information: Regulation 18707(c) expressly provides that nothing in Regulation 18707 is intended to cause any disclosure that would reveal the confidences of a closed session or any other privileged information contemplated by law, including privileged information under Regulation 18740.
1 The Political Reform Act is contained in Government Code Sections 81000 through 91014. All statutory references are to the Government Code, unless otherwise indicated. The regulations of the Fair Political Practices Commission (the “Commission”) are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regulations. All regulatory references are to Title 2, Division 6 of the California Code of Regulations, unless otherwise indicated.
2 We note that the annual gift limit is adjusted biennially. The current gift limit is prescribed in Regulation 18940.2. The adjusted annual gift limit amount in effect for the period January 1, 2021, to December 31, 2022, is $520.
3 For an official’s interest in a business entity or real property, Regulation 18702.1(a) and Regulation 18702.2(a)(1)-(6), provide additional guidance for determining if the interest is explicitly involved.
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Fair Political Practices Commission
Contribution Limits: City and County Candidates1
Introduction
Pursuant to Assembly Bill 571 (Stats. 2019, Ch. 556, AB 571 Mullin), beginning January 1, 2021 a state campaign contribution limit will by default apply to city and county candidates when the city or county has not already enacted a contribution limit on such candidates. Along with the new campaign contribution limit, there are also other related provisions that formerly applied only to state level candidates that will now apply to city and county candidates. Please note that none of the provisions of AB 571 discussed in this fact sheet apply to candidates in cities or counties for which the city or county has enacted campaign contribution limits.
Current State Contribution Limit
The contribution limit that will now apply to city and county candidates pursuant to AB 571 is updated biennially for inflation. Contribution limits can be found in Regulation 18545(a)2 and on the FPPC website’s FPPC Regulations page. The default limit for contributions to city and county candidates subject to AB 571 for 2023-2024 is set at $5,500 per election.
Other Provisions Affecting City and County Candidates
Several other provisions will now apply to city and county candidates in jurisdictions that have not enacted campaign contribution limits, including the following:
· A candidate may not make a contribution over the AB 571 limit to another candidate in jurisdictions subject to the AB 571 limit with limited exceptions related to recall elections, legal defense funds and candidatecontrolled ballot measure committees. (See Regulation 18535 for more information.)
· A candidate that has qualified as a committee must establish a separate controlled committee and campaign bank account for each specific office. Candidates may not redesignate a committee for one election for another election.
· Candidates may transfer non-surplus campaign funds from one candidatecontrolled committee to another committee controlled by the same candidate for a different office if the committee receiving the transfer is for an elective state, county or city office. However, contributions transferred must be attributed and transferred using the “last in, first out” or “first in, first out” accounting method and 100
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shall not exceed the applicable contribution limit per contributor. If a candidate is seeking to transfer campaign funds from one controlled committee to another for the same office a candidate may carry over non-surplus campaign funds raised in connection with one election to pay for campaign expenditures incurred in connection with a subsequent election for the same office without attributing or using the “last in, first out” or “first in, first out” accounting method. (See Regulation 18536 for more information on the transfer and attribution of contributions and See Regulation 18537.1 for more information on carryover of contributions.)1
· Candidates may not personally loan to a candidate’s campaign an amount for which the outstanding balance exceeds $100,000. “Campaign” includes both the primary and general, or special and special runoff, elections. However, a candidate may loan each committee for a different office or term of office up to $100,000. A candidate may not charge interest on any such loan the candidate made to the candidate’s campaign. (See Regulation 18530.8 for more information.)
· Candidates may establish a committee to oppose the qualification of a recall measure and the recall election when the candidate receives a notice of intent to recall. Campaign funds raised to oppose the qualification of a recall measure and/or the recall election would not be subject to any campaign contribution limit under the Act. (See Regulation 18531.5 for more information.) · A candidate for local office may open a candidate-controlled general purpose ballot measure committee to oppose or support a measure being voted on. The committee must identify on its campaign statements and reports each measure for which an expenditure of $100 or more is made. (See Regulations 18421.8 and 18521.5 for more information.)
· Contributions after the date of the election may be accepted to the extent contributions do not exceed net debts outstanding from the election, and contributions do not otherwise exceed applicable contribution limits for that election. (See Regulation 18531.64 for more information.) 1 This fact sheet is informational only and contains only highlights of selected provisions of the law. It does not carry the weight of the law. For further information, consult the Political Reform Act and its corresponding regulations, advice letters, and opinions. 2 The Political Reform Act is contained in Government Code Sections 81000 through 91014. All statutory references are to the Government Code, unless otherwise indicated. The regulations of the Fair Political Practices Commission are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regulations. All regulatory references are to Title 2, Division 6 of the California Code of Regulations, unless otherwise indicated.1
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· Candidates are permitted to raise contributions for a general election before the primary election and may establish separate campaign contribution accounts for the primary and general so long as candidates set aside contributions and use them for the general or special general election as raised. If the candidate is defeated in the primary election or otherwise withdraws from the generalelection, the general election funds must be refunded to contributors on a pro rata basis less any expenses associated with the raising and administration of the general election contributions. (See Regulation 18531.2 for more information.) · Candidates that are currently in office that are running for reelection to the same seat in an election after January 1, 2021 may carry over campaign funds without attribution as mentioned above. Candidates running for a different office also do not need to do LIFO FIFO or attribution for the election immediately subsequent to the election prior to 2021 for which the money was raised. · Candidates must disclose cumulative totals of contributions received or made for each election on campaign statements. (See Regulation 18421.4 for more information.)
FAQs
A. If a city or county does not currently have contribution limits set within their ordinance would the state contribution limit be the default? Yes. The state contribution limit stated above would be the default contribution limit if the city or county ordinance is silent on whether there are contribution limits within that jurisdiction or if there is no city or county ordinance in place.
B. Is there a way for a city or county to adopt “no” contribution limits for city or county elective city and county offices?
Yes. A city or county may elect to have “no” contribution limits. To do so, it must explicitly state in the city or county ordinance that there are no limits on contributions. If it is explicit that the city or county has implemented “no” contribution limits, the state contribution limit will not apply as a default for that jurisdiction.
C. Can a city or county ordinance be less restrictive than the AB 571 limit (e.g., the city or county limit is set higher than the state limit)? Yes. A city or county can set contribution limits higher than the default state limit. 102
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D. If a city or county imposes contribution limits, is the Commissionresponsible for enforcing those limits?
No. The Commission will not regulate the administration or enforcement of the penalties. Cities or counties with existing limits or that adopt their own limits are not subject to the state limit and may impose their own penalties for violations.
E. If a city or county has voluntary contribution limits, but no mandatory contribution limits will the state limit be applicable? Yes. A city or county must enact mandatory contribution limits to avoid the state limit applying to elective city and county offices.
F. Does the default contribution limit also include judicial candidates? No. Elective city and county offices do not include judicial offices.
G. If a city or county has imposed contribution limits for particular city or county offices (e.g., Board of Supervisors), do those limits also apply to other positions such as the District Attorney or would the default state limit apply if a particular position is not specifically addressed by the city or county? The default state limit would apply to other positions for which the city or county has not set contribution limits. A city or county ordinance must explicitly state the city or county contribution limits and for which elective offices those limits will apply. A city or county may adopt a general provision implementing a contribution limit for all elective city and county offices in that jurisdiction. As noted above, a city or county may also adopt an ordinance that states the city or county is adopting no contribution limits for any offices to avoid the default state limit applying.
H. Does AB 571 apply to special district or school district elections? No. AB 571 applies only to city and county elections for offices that a city or county has not implemented its own contribution limit.
I. Does AB 571 apply to the office of County Superintendent of Schools or the office of County Board of Education?
AB 571 does apply to the office of County Superintendent of Schools because it is considered a “county” office. However, the office of County Board of Education is not subject to AB 571 because it’s not considered a “county” position.
J. Can candidates that are subject to the AB 571 contribution limit open an officeholder committee?
No. Officeholder committees are not permitted for candidates subject to the AB 103
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571 contribution limit. However, a candidate may use a committee for the officeholder’s future election for officeholder expenses. A candidate may also use existing funds in the election committee for current office for officeholder expenses.
K. Does the AB 571 contribution limit apply to debt retirement for the 2020 election?
No. For purposes of retiring debt, the contribution limit is the one that was applicable to that election. The Act did not impose a contribution limit on city and county candidates in 2020.
L. If a contribution was received for an election occurring after January 1, 2021, PRIOR to January 1, 2021, does this contribution count towards the new AB 571 contribution limit after January 1, 2021?
No. The Commission adopted a formal opinion on April 15, 2021 that states contributions made prior to the effective date of AB 571 are not aggregated with contributions made on or after the effective date of AB 571 for purposes of the new contribution limit. Therefore, if someone contributed up to or above the current limit to an AB 571 committee prior to January 1, 2021 the same person can give additional contributions to the same committee up to the AB 571 contribution limit on or after January 1, 2021.
M. If a contributor gave $10,000 in 2020 (prior to the AB 571 limit going into effect) to a committee for a 2022 primary election, what happens? The AB 571 contribution limit does not apply to contributions made prior to January 1, 2021 so a contribution of this amount is permissible.
N. Does the AB 571 contribution limit apply to political party committees and small contributor committees making contributions to candidates subject to the AB 571 limit?
Yes. Political parties and small contributor committees are only permitted to give contributions to candidates subject to the AB 571 in amounts up to the applicable AB 571 contribution limit for that candidate.
O. Does the AB 571 limit apply to county central committee candidates? No. AB 571 imposes a contribution limit on city and county elective offices when a local jurisdiction has not already done so. Local jurisdictions are prohibited from placing contribution limits on county central committee candidates; therefore, AB 571 is not applicable to those offices.
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P. If an election was held in November 2023, but resulted in the need for a run-off election to be held in February 2024, how would the contributions be treated under AB 571?
The run-off election is considered a new election. If a contributor gave any amount to an AB 571 candidate for the November 2023 election, the same contributor would still be permitted to contribute up to $5,500 (the AB 571 limit) to the same candidate for the February 2024 run-off election.
Q. An AB 571 candidate for city council would like to send out a request for contributions to their constituents. Do they need to include anything specific in the request?
Yes. A candidate that is subject to AB 571 must have the following information in the solicitation: the name of the controlled committee soliciting contributions, and the specific office for which those contributions will be used.
R. If an AB 571 candidate is the subject of a recall, is their committee to oppose the recall subject to contribution limits?
No. There are no contribution limits for a committee controlled by a candidate that is the subject of a recall that is formed to oppose the recall.
S. An AB 571 candidate has debts for an election held after January 1, 2021, may the candidate terminate their committee?
No. If a candidate-controlled committee has outstanding debts for an election held after January 1, 2021, they may not terminate without resolving or paying off the debt. When the committee has no net debts outstanding, the committee must be terminated within 24 months after the earliest of the date the candidate is defeated, leaves office, or the term of office for which the committee was formed ends, or, for withdrawn candidates no later than 24 months after the election from which the candidate withdrew. Please see Regulation 18404.1 for more on termination requirements for committees subject to AB 571.
T. If a local jurisdiction, which is subject to AB 571, passes a local campaign contribution ordinance, are the candidates still subject to AB 571? No. They would no longer be subject to AB 571.
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FPPC Ed. Pro. 086-11-2023 Page 7 of 7
Index of Regulations and Government Codes:
FPPC Regulations:
18404.1
18421.4
18421.8
18521
18521.5
18523.1
18530.2
18530.8
18531.2
18531.5
18531.61
18531.63
18531.64
18535
18536
18537.1
18545
18951
Government Code(s):
85301
85303
85304.5
85305
85306
85307
85315
85316
85317
85318
85702.5
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December 2023
2023/2024 Form
700 Statement of
Economic Interests
Reference
Pamphlet
California Fair Political Practices Commission
1102 Q Street, Suite 3050 • Sacramento, CA 95811
Email advice: [email protected]
Toll-free advice line: 1 (866) ASK-FPPC • (866) 275-3772 Telephone: (916) 322-5660 • Website: www.fppc.ca.gov
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• Who Must File ............................................................................................ Page 3 • Types of Form 700 Filings.......................................................................... Page 4 • Where to File .............................................................................................. Page 5 • When to File ............................................................................................... Page 6 • Terms & Definitions .................................................................................... Page 8 Contents
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Who Must File
1. Officials and Candidates Specified in Gov. Code
Section 87200 and Members of Boards and
Commissions of Newly Created Agencies
The Act requires the following individuals to fully disclose their personal assets and income described in Form 700, Statement of Economic Interests:
State Offices
• Governor
• Lieutenant Governor
• Attorney General
• Controller
• Insurance Commissioner
• Secretary of State
• Treasurer
• Members of the State Legislature
• Superintendent of Public Instruction
• State Board of Equalization Members
• Public Utilities Commissioners
• State Energy Resources Conservation and
Development Commissioners
• State Coastal Commissioners
• Fair Political Practices Commissioners
• State public officials (including employees and
consultants) who manage public investments
• Elected members of and candidates for the Board of
Administration of the California Public Employees’
Retirement System
• Elected members of and candidates for the Teachers’
Retirement Board
• Members of the High Speed Rail Authority
Other officials and employees of state boards,
commissions, agencies, and departments file Form 700 as described in Part 2 on this page.
Judicial Offices
• Supreme, Appellate, and Superior Court Judges
• Court Commissioners
• Retired Judges, Pro-Tem Judges, and part-time Court
Commissioners who serve or expect to serve 30 days
or more in a calendar year
County and City Offices
• Members of Boards of Supervisors
• Mayors and Members of City Councils
• Chief Administrative Officers
• District Attorneys
• County Counsels
• City Attorneys
• City Managers
• Planning Commissioners
• County and City Treasurers
• County and city public officials (including employees and consultants) who manage public investments
Members of Newly Created Boards and Commissions
Generally, such a member must file an assuming office
statement within 30 days as well as subsequent statements until the member’s position is designated in a conflict of interest code. See Regulation 18754.
2. State and Local Officials, Employees, Candidates,
and Consultants Designated in a Conflict of Interest
Code (“Code Filers”)
The Act requires every state and local government agency to adopt a unique conflict of interest code. The code lists each position within the agency filled by individuals who make or participate in making governmental decisions that could affect their personal economic interests.
The code requires individuals holding those positions
to periodically file Form 700 disclosing certain personal economic interests as determined by the code’s “disclosure categories.” These individuals are called “designated
employees” or “code filers.”
Obtain your disclosure categories from your agency – they are not contained in the Form 700. Persons with broad
decisionmaking authority must disclose more interests than those in positions with limited discretion. For example, you may be required to disclose only investments and business positions in or income (including loans, gifts, and travel payments) from businesses of the type that contract with your agency, or you may not be required to disclose real property interests.
In addition, certain consultants to public agencies may qualify as public officials because they make, participate in making, or act in a staff capacity for governmental decisions.
Agencies determine who is a consultant and the level of disclosure and may use Form 805.
Note: An official who holds a position specified in Gov. Code Section 87200 is not required to file statements under the conflict of interest code of any agency that has the same or a smaller jurisdiction (for example, a state legislator who also sits on a state or local board or commission).
Employees in Newly Created Positions of Existing Agencies An individual hired for a position not yet covered under an agency’s conflict of interest code must file Form 700 if the individual serves in a position that makes or participates in making governmental decisions. These individuals must
file under the agency’s broadest disclosure category until the code is amended to include the new position unless
the agency has provided in writing a limited disclosure requirement. The Form 804 may be used to satisfy this
requirement.
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Types of Form 700 Filings
Assuming Office Statement:
If you are a newly appointed official or are newly employed in a position designated, or that will be designated, in a state or local agency’s conflict of interest code, your assuming office date is the date you were sworn in or
otherwise authorized to serve in the position. If you are a newly elected official, your assuming office date is the date you were sworn in.
• Report: Investments, interests in real property, and
business positions held on the date you assumed the
office or position must be reported. In addition, income (including loans, gifts, and travel payments) received
during the 12 months prior to the date you assumed the
office or position.
For positions subject to confirmation by the State Senate or the Commission on Judicial Appointments, your
assuming office date is the date you were appointed or
nominated to the position.
• Example: Maria Lopez was nominated by the Governor
to serve on a state agency board that is subject to state Senate confirmation. The assuming office date is the
date Maria’s nomination is submitted to the Senate.
Maria must report investments, interests in real
property, and business positions she holds on that date, and income (including loans, gifts, and travel payments) received during the 12 months prior to that date.
If your office or position has been added to a newly
adopted or newly amended conflict of interest code, use the effective date of the code or amendment, whichever is applicable.
• Report: Investments, interests in real property, and
business positions held on the effective date of the
code or amendment must be reported. In addition,
income (including loans, gifts, and travel payments)
received during the 12 months prior to the effective date of the code or amendment.
Annual Statement:
Generally, the period covered is January 1, 2023,
through December 31, 2023. If the period covered by
the statement is different than January 1, 2023, through December 31, 2023, (for example, you assumed office
between October 1, 2022, and December 31, 2022 or
you are combining statements), you must specify the
period covered.
• Investments, interests in real property, business
positions held, and income (including loans, gifts, and travel payments) received during the period covered by
the statement must be reported. Do not change the
preprinted dates on Schedules A-1, A-2, and B unless
you are required to report the acquisition or disposition of an interest that did not occur in 2023.
• If your disclosure category changes during a
reporting period, disclose under the old category
until the effective date of the conflict of interest code amendment and disclose under the new disclosure
category through the end of the reporting period.
Leaving Office Statement:
Generally, the period covered is January 1, 2023,
through the date you stopped performing the duties of
your position. If the period covered differs from January 1, 2023, through the date you stopped performing the
duties of your position (for example, you assumed office between October 1, 2022, and December 31, 2022, or
you are combining statements), the period covered must
be specified. The reporting period can cover parts of two calendar years.
• Report: Investments, interests in real property, business positions held, and income (including loans, gifts, and travel payments) received during the period covered by
the statement. Do not change the preprinted dates on
Schedules A-1, A-2, and B unless you are required to
report the acquisition or disposition of an interest that did not occur in 2023.
Candidate Statement:
If you are filing a statement in connection with your
candidacy for state or local office, investments, interests in real property, and business positions held on the date of filing your declaration of candidacy must be reported.
In addition, income (including loans, gifts, and travel payments) received during the 12 months prior to the date of filing your declaration of candidacy is reportable. Do not change the preprinted dates on Schedules A-1, A-2, and B.
Candidates running for local elective offices (e.g., county sheriffs, city clerks, school board trustees, or water
district board members) must file candidate statements, as required by the conflict of interest code for the elected position. The code may be obtained from the agency of
the elected position.
Amendments:
If you discover errors or omissions on any statement,
file an amendment as soon as possible. You are only
required to amend the schedule that needs to be revised; it is not necessary to refile the entire form. The amended schedule(s) is attached to your original filed statement.
Obtain amendment schedules from the FPPC website at
www.fppc.ca.gov.
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Where to File
1. Officials Specified in Gov. Code Section 87200
(See Reference Pamphlet, page 3):
In most cases, the filing officials listed below will retain a copy of your statement and forward the original to the FPPC.
Filers Where to File
87200 Filers
State offices
Judicial offices
Retired Judges
County offices
City offices
Multi-County offices
Your agency
The clerk of your court
Directly with FPPC
Your county filing official
Your city clerk
Your agency
87200 Candidates
State offices
Judicial offices
Multi-County offices
County offices
City offices
Public Employees’
Retirement System
(CalPERS)
State Teachers’
Retirement Board
(CalSTRS)
County elections official with
whom you file your declaration
of candidacy
County elections official
City Clerk
CalPERS
CalSTRS
Note: Individuals that invest public funds for a city or county agency must file Form 700 with the agency. Unlike most other 87200 filers, the original statement will not be forwarded to the FPPC pursuant to Regulation 18753.
2. Code Filers — State and Local Officials,
Employees, Candidates, and Consultants
Designated in a Conflict of interest Code:
File with your agency, board, or commission unless
otherwise specified in your agency’s conflict of interest code. In most cases, the agency, board, or commission
will retain the statements.
Candidates for local elective offices designated in a conflict of interest code file with the elections office where the declaration of candidacy or other nomination documents
are filed.
3. Members of Newly Created Boards and
Commissions:
File with your agency or with your agency’s code reviewing body. See Regulation 18754.
State Senate and Assembly staff members file statements directly with the FPPC.
Exceptions:
• Elected state officers are not required to file statements under any agency’s conflict of interest code.
• Filers listed in Section 87200 are not required to file statements under any agency’s conflict of interest
code in the same jurisdiction. For example, a county
supervisor who is appointed to serve in an agency with
jurisdiction in the same county has no additional filing obligations.
4. Positions Not Yet Covered Under a Conflict of
interest Code
An individual hired for a position not yet covered under an agency’s conflict of interest code must file Form 700 if the individual serves in a position that makes or participates in making governmental decisions. These individuals must
file under the broadest disclosure category until the code is amended to include the new position unless the agency has provided in writing a limited disclosure requirement.
Agencies may use FPPC Form 804 for this disclosure.
Such individuals are referred to as “code filers.” See Regulation 18734.
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When to File
Assuming Office Statements:
Filer Deadline
Elected officials 30 days after assuming office
Appointed positions specified
in Gov. Code Section 87200
or
Members of newly created
boards and commissions
not covered by a conflict of
interest code
30 days after assuming office
or
10 days after appointment
or nomination if subject
to Senate or judicial
confirmation
Other appointed positions
(including those held by newlyhired employees) that are or will be designated in a conflict
of interest code
30 days after assuming office
(30 days after appointment or
nomination if subject to Senate
confirmation)
Positions newly added to a
new or amended conflict of
interest code
30 days after the effective
date of the code or code
amendment
Exceptions:
• Elected state officers who assume office in December
or January are not required to file an assuming office
statement, but will file the next annual statement due. • If you complete a term of office and, within 30 days, begin a new term of the same office (for example, you
are reelected or reappointed), you are not required to
file an assuming office statement. Instead, you will
simply file the next annual statement due.
• If you leave an office specified in Gov. Code Section 87200 and, within 45 days, you assume another
office or position specified in Section 87200 that has
the same jurisdiction (for example, a city planning
commissioner elected as mayor), you are not required
to file an assuming office statement. Instead, you will simply file the next annual statement due.
• If you transfer from one designated position to another designated position within the same agency, contact
your filing officer or the FPPC to determine your filing obligations.
• If a due date falls on a weekend or an official state holiday, the due date is the next regular business day.
Annual Statements:
1. 2.
Elected state officers (including members of the
state legislature, members elected to the Board of
Administration of the California Public Employees’
Retirement System and members elected to the
Teachers’ Retirement Board);
Judges and court commissioners; and
Members of state boards and commissions specified in
Gov. Code Section 87200:
File no later than Friday, March 1, 2024.
County and city officials specified in Gov. Code
Section 87200:
File no later than Tuesday, April 2, 2024.
3. Multi-County officials:
File no later than Tuesday, April 2, 2024.
4. State and local officials and employees designated in a conflict of interest code:
File on the date prescribed in the code (April 2 for most filers).
Exception:
If you assumed office between October 1, 2023, and
December 31, 2023, and filed an assuming office
statement, you are not required to file an annual statement until March 1, 2025, or April 1, 2025, whichever is
applicable. The annual statement will cover the day you assumed office through December 31, 2024.
Incumbent officeholders who file candidate statements
also must file annual statements by the specified
deadlines.
Late statements are subject to a late fine of
$10 per day per position up to $100 for each
day the statement is late.
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When to File - (continued)
Leaving Office Statements:
Leaving office statements must be filed no later than 30 days after leaving the office or position.
Exceptions:
• If you complete a term of office and, within 30 days, begin a new term of the same office (for example, you
are reelected or reappointed), you are not required to
file a leaving office statement. Instead, you will simply file the next annual statement due.
• If you leave an office specified in Gov. Code Section 87200 and, within 45 days, you assume another office
or position specified in Section 87200 that has the same jurisdiction (for example, a city planning commissioner elected as mayor), you are not required to file a leaving office statement. Instead, you will simply file the next annual statement due.
• If you transfer from one designated position to another designated position within the same agency, contact
your filing officer or the FPPC to determine your filing obligations.
Candidate Statements:
All candidates (including incumbents) for offices specified in Gov. Code Section 87200 must file statements no later than the final filing date for their declaration of candidacy.
Candidates seeking a position designated in a conflict of interest code must file no later than the final filing date for the declaration of candidacy or other nomination
documents.
Exception:
A candidate statement is not required if you filed an
assuming office or annual statement for the same
jurisdiction within 60 days before filing a declaration of candidacy or other nomination documents.
Late Statements:
Late statements should be submitted as soon as possible after the filing deadline, in the same manner and place as a timely filed statement.
The filing officer who retains originally-signed or
electronically filed statements of economic interests may impose on an individual a fine for any statement that is filed late. The fine is $10 per day up to a maximum of
$100. Late filing penalties may be reduced or waived under certain circumstances.
Persons who fail to timely file their Form 700 may be
referred to the FPPC’s Enforcement Division (and, in
some cases, to the Attorney General or District Attorney) for investigation and possible prosecution. In addition to the late filing penalties from the filing officer, a fine of up to $5,000 per violation may be imposed.
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Terms & Definitions
The instructions located on the back of each schedule
describe the types of interests that must be reported. The purpose of this section is to explain other terms used in Form 700 that are not defined in the instructions to the schedules or elsewhere.
Blind Trust: See Trusts, Reference Pamphlet, page 16.
Business Entity: Any organization or enterprise operated for profit, including a proprietorship, partnership, firm, business trust, joint venture, syndicate, corporation, or association. This would include a business for which you take business deductions for tax purposes (for example, a small business operated in your home). When reporting a business entity on the Form 700, do not use acronyms for the name of entity, unless it is one that is commonly
understood by the public.
Code Filer: An individual who has been designated in
a state or local agency’s conflict of interest code to file statements of economic interests.
An individual hired on or after January 1, 2023 for a
position not yet covered under an agency’s conflict of
interest code must file Form 700 if the individual serves in a position that makes or participates in making
governmental decisions. These individuals must file under the broadest disclosure category until the code is
amended to include the new position unless the agency
has provided in writing a limited disclosure requirement.
Agencies may use FPPC Form 804 for such disclosure.
See Regulation 18734.
Commission Income: “Commission income” means gross
payments of $500 or more received during the period
covered by the statement as a broker, agent, or
salesperson, including insurance brokers or agents, real estate brokers or agents, travel agents or salespersons, stockbrokers, and retail or wholesale salespersons, among others.
In addition, you may be required to disclose the names of sources of commission income if your pro rata share of the gross income was $10,000 or more from a single source
during the reporting period. If your spouse or registered domestic partner received commission income, you would
disclose your community property share (50%) of that
income (that is, the names of sources of $20,000 or more in gross commission income received by your spouse or
registered domestic partner).
Report commission income as follows:
• If the income was received through a business entity in which you and your spouse or registered domestic
partner had a 10% or greater ownership interest (or if
you receive commission income on a regular basis as
an independent contractor or agent), use Schedule A-2.
The “source” of commission income generally includes all parties to a transaction, and each is attributed the full value of the commission.
Examples:
• You are a partner in Jameson and Mulligan Insurance
Company and have a 50% ownership interest in the
company. You sold two American Insurance Company
policies to XYZ Company during the reporting period.
You received commission income of $5,000 from the
first transaction and $6,000 from the second. On
Schedule A-2, report your partnership interest in and
income received from Jameson and Mulligan Insurance
Company in Parts 1 and 2. In Part 3, list both American Insurance Company and XYZ Company as sources of
$10,000 or more in commission income.
• You are a stockbroker for Prince Investments, but you have no ownership interest in the firm. You receive
commission income on a regular basis through the
sale of stock to clients. Your total gross income from your employment with Prince Investments was over
$100,000 during the reporting period. On Schedule
A-2, report your name as the name of the business
entity in Part 1 and the gross income you have
received in Part 2. (Because you are an employee of
Prince Investments, you do not need to complete the
information in the box in Part 1 indicating the general description of business activity, fair market value, or nature of investment.) In Part 3, list Prince Investments and the names of any clients who were sources of
$10,000 or more in commission income to you.
• You are a real estate agent and an independent
contractor under Super Realty. On Schedule A-2,
Part 1, in addition to your name or business name,
complete the business entity description box. In
Part 2, identify your gross income. In Part 3, for each transaction that resulted in commission income to you
of $10,000 or more, you must identify the brokerage
entity, each person you represented, and any person
who received a finder’s or other referral fee for
referring a party to the transaction to the broker.
Note: If your pro rata share of commission income from
a single source is $500 or more, you may be required to disqualify yourself from decisions affecting that source of income, even though you are not required to report the
income. (See Reference Pamphlet, page 12.)
• If the income was received through a business entity in which you or your spouse or registered domestic
partner did not receive commission income on a
regular basis or you had a less than 10% ownership
interest, use Schedule C.
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Terms & Definitions - (continued)
Conflict of Interest: A public official or employee has a conflict of interest under the Act when all of the following occur:
• The official makes, participates in making, or uses their official position to influence a governmental decision; • It is reasonably foreseeable that the decision will affect the official’s economic interest;
• The effect of the decision on the official’s economic interest will be material; and
• The effect of the decision on the official’s economic interest will be different than its effect on the public generally.
Conflict of Interest Code: The Act requires every state and local government agency to adopt a conflict of interest code. The code may be contained in a regulation, policy statement, or a city or county ordinance, resolution, or other document.
An agency’s conflict of interest code must designate all officials and employees of, and consultants to, the agency who make or participate in making governmental decisions that could cause conflicts of interest. These individuals are required by the code to file statements of economic interests and to disqualify themselves when conflicts of interest occur.
The disclosure required under a conflict of interest code for a particular designated official or employee should include only the kinds of personal economic interests
they could significantly affect through the exercise of their official duties. For example, an employee whose duties are limited to reviewing contracts for supplies, equipment, materials, or services provided to the agency should be required to report only those interests they hold that are likely to be affected by the agency’s contracts for supplies, equipment, materials, or services.
Consultant: An individual who contracts with or whose
employer contracts with state or local government
agencies and who makes, participates in making, or acts in a staff capacity for making governmental decisions. The agency determines who is a consultant. Consultants may
be required to file Form 700. Such consultants would file under full disclosure unless the agency provides in writing a limited disclosure requirement. Agencies may use FPPC Form 805 to assign such disclosure. The obligation to
file Form 700 is always imposed on the individual who is providing services to the agency, not on the business or firm that employs the individual.
FPPC Regulation 18700.3 defines “consultant” as an
individual who makes a governmental decision whether to:
• Approve a rate, rule, or regulation
• Adopt or enforce a law
• Issue, deny, suspend, or revoke any permit, license,
application, certificate, approval, order, or similar
authorization or entitlement
• Authorize the agency to enter into, modify, or renew a contract provided it is the type of contract that requires agency approval
• Grant agency approval to a contract that requires
agency approval and to which the agency is a party, or
to the specifications for such a contract
• Grant agency approval to a plan, design, report, study, or similar item
• Adopt, or grant agency approval of, policies,
standards, or guidelines for the agency or for any of its subdivisions
A consultant also is an individual who serves in a staff capacity with the agency and:
• participates in making a governmental decision; or
• performs the same or substantially all the same duties for the agency that would otherwise be performed by an
individual holding a position specified in the agency’s conflict of interest code.
Designated Employee: An official or employee of a state or local government agency whose position has been
designated in the agency’s conflict of interest code to file statements of economic interests or whose position has
not yet been listed in the code but makes or participates in making governmental decisions. Individuals who contract with government agencies (consultants) may also be
designated in a conflict of interest code.
A federal officer or employee serving in an official federal capacity on a state or local government agency is not a designated employee.
Digital Signature: Under the Act and Commission
regulations, the Form 700s may be filed with a “digital signature,” which may be used to sign documents
electronically, if permitted by the filing officer. A digital signature is a type of certificate-based electronic signature that offers increased security to ensure the identity of the signer and prevent the alteration of documents after signing. For more information on how to use a digital
signature, please refer to the Filing with a Digital Signature Fact Sheet on the FPPC’s website.
For filing officers required to forward original statements filed via digital signature to the FPPC, the filing officer must verify the signature on the statement, and forward the
statement via email to the FPPC at [email protected].
Do not mail the FPPC a copy of a Form 700 with a digital signature affixed.
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Terms & Definitions - (continued)
Disclosure Categories: The section of an agency’s
conflict of interest code that specifies the types of personal economic interests officials and employees of the agency must disclose on their statements of economic interests.
Disclosure categories are usually contained in an appendix or attachment to the conflict of interest code. Contact your agency to obtain a copy of your disclosure categories.
Diversified Mutual Fund: Diversified portfolios of stocks, bonds, or money market instruments that are managed
by investment companies whose business is pooling
the money of many individuals and investing it to seek
a common investment goal. Mutual funds are managed
by trained professionals who buy and sell securities. A typical mutual fund will own between 75 to 100 separate securities at any given time so they also provide instant diversification. Only diversified mutual funds registered with the Securities and Exchange Commission under
the Investment Company Act of 1940 are exempt from
disclosure. In addition, Regulation 18237 provides an
exception from reporting other funds that are similar to diversified mutual funds. (See Reference Pamphlet, page
13.)
Elected State Officer: Elected state officers include
the Governor, Lieutenant Governor, Attorney General,
Insurance Commissioner, State Controller, Secretary
of State, State Treasurer, Superintendent of Public
Instruction, members of the State Legislature, members of the State Board of Equalization, elected members of the Board of Administration of the California Public Employees’ Retirement System and members elected to the Teachers’
Retirement Board.
Enforcement: The FPPC investigates suspected violations of the Act. Other law enforcement agencies (the Attorney General or district attorney) also may initiate investigations under certain circumstances. If violations are found,
the Commission may initiate administrative enforcement
proceedings that could result in fines of up to $5,000 per violation.
Instead of administrative prosecution, a civil action may be brought for negligent or intentional violations by the appropriate civil prosecutor (the Commission, Attorney
General, or district attorney), or a private party residing within the jurisdiction. In civil actions, the measure
of damages is up to the amount or value not properly
reported.
Persons who violate the conflict of interest disclosure provisions of the Act also may be subject to agency
discipline, including dismissal.
Finally, a knowing or willful violation of any provision of the Act is a misdemeanor. Persons convicted of a
misdemeanor may be disqualified for four years from the date of the conviction from serving as a lobbyist or running for elective office, in addition to other penalties that may be imposed. The Act also provides for numerous civil
penalties, including monetary penalties and damages, and injunctive relief from the courts.
Expanded Statement: In some circumstances, an official
or an employee who holds multiple positions subject to
filing obligations (for example, a city council member who also holds a designated position with a county agency,
board, or commission) may complete one expanded
statement for all those positions. The expanded statement must disclose all reportable interests for all jurisdictions and list all positions for which it is filed. The rules and processes governing the filing of an expanded statement are set forth in Regulation 18723.1.
Fair Market Value: When reporting the value of an
investment, interest in real property, or gift, you must disclose the fair market value – the price at which the item would sell for on the open market. This is particularly important when valuing gifts, because the fair market value of a gift may be different from the amount it cost the donor to provide the gift. For example, the wholesale cost of a bouquet of flowers may be $10, but the fair market value may be $25 or more. In addition, there are special rules for valuing free tickets and passes. Call or email the FPPC for assistance.
Gift and Honoraria Prohibitions
Gifts:
State and local officials who are listed in Gov. Code
Section 87200 (except judges – see below), candidates
for these elective offices (including judicial candidates), and officials and employees of state and local government agencies who are designated in a conflict of interest code were prohibited from accepting a gift or gifts totaling more than $590 in a calendar year from a single source in
2023-2024.
In addition, elected state officers, candidates for elective state offices, and officials and employees of state agencies are subject to a $10 per calendar month limit on gifts from lobbyists and lobbying firms registered with the Secretary of State.
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Honoraria:
State and local officials who are listed in Gov. Code
Section 87200 (except judges – see below), candidates
for these elective offices (including judicial candidates), and employees of state and local government agencies
who are designated in a conflict of interest code are
prohibited from accepting honoraria for any speech given, article published, or attendance at any public or private conference, convention, meeting, social event, meal, or like gathering.
Exceptions:
• Some gifts are not reportable or subject to the gift
and honoraria prohibitions, and other gifts may not
be subject to the prohibitions, but are reportable. For detailed information, see the FPPC fact sheet entitled
“Limitations and Restrictions on Gifts, Honoraria,
Travel, and Loans,” which can be obtained from your
filing officer or the FPPC website (www.fppc.ca.gov).
• The gift limit and the honorarium prohibitions do not apply to a part-time member of the governing board
of a public institution of higher education, unless the member is also an elected official.
• If you are designated in a state or local government
agency’s conflict of interest code, the gift limit and
honorarium prohibition are applicable only to sources
you would otherwise be required to report on your
statement of economic interests. However, this
exception is not applicable if you also hold a position listed in Gov. Code Section 87200 (See Reference
Pamphlet, page 3.)
• For state agency officials and employees, the $10
lobbyist/lobbying firm gift limit is applicable only to lobbyists and lobbying firms registered to lobby your
agency. This exception is not applicable if you are an
elected state officer or a member or employee of the
State Legislature.
• Payments for articles published as part of the practice of a bona fide business, trade, or profession, such as
teaching, are not considered honoraria. A payment for
an “article published” that is customarily provided in
connection with teaching includes text book royalties
and payments for academic tenure review letters. An
official is presumed to be engaged in the bona fide
profession of teaching if they are employed to teach at an accredited university.
Judges:
Section 170.9 of the Code of Civil Procedure imposes gift limits on judges and prohibits judges from accepting any honorarium. Section 170.9 is enforced by the Commission on Judicial Performance. The FPPC has no authority to
interpret or enforce the Code of Civil Procedure. Court commissioners are subject to the gift limit under the
Political Reform Act.
Income Reporting: Reporting income under the Act is
different than reporting income for tax purposes. The
Act requires gross income (the amount received before
deducting losses, expenses, or taxes, as well as income reinvested in a business entity) to be reported.
Pro Rata Share: The instructions for reporting income
refer to your pro rata share of the income received. Your pro rata share is normally based on your ownership
interest in the entity or property. For example, if you are a sole proprietor, you must disclose 100% of the gross
income to the business entity on Schedule A-2. If you own 25% of a piece of rental property, you must report 25% of the gross rental income received. When reporting your
community property interest in your spouse’s or registered domestic partner’s income, your pro rata share is 50%
of their income. You must also report the name of your spouse’s or registered domestic partner’s employer as the source of income, not the name of spouse or registered
domestic partner.
Separate Property Agreement: Generally, a public official is required to disclose their community property share of their spouse’s income. But, when a public official and their spouse have a legally separate property agreement (e.g., prenuptial agreement), the official is not required to report the spouse’s community property share of income, unless the funds are commingled with community funds or used to pay for community expenses or to produce or enhance the separate income of the official.
Note: This reporting exception does not apply to
investments and interests in real property. Even if a
public official and their spouse have a separate property agreement, the spouse’s investments and interests in real property must still be disclosed because the definitions of reportable investments and interests in real property include those held by the official’s immediate family
(spouse, registered domestic partner, and dependent
children). These definitions are not dependent on
community property law.
Income to a Business Entity: When you are required to
report sources of income to a business entity, sources
of rental income, or sources of commission income, you
are only required to disclose individual sources of income of $10,000 or more. However, you may be required to
disqualify yourself from decisions affecting sources of $500 or more in income, even though you are not required to report them.
Examples:
• Alice Ruiz is a partner in a business entity. Alice has a 25% interest. On Schedule A-2, Alice must disclose
25% of the fair market value of the business entity;
25% of the gross income to the business entity (even
though all of the income received was reinvested in
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the business and Alice did not personally receive any
income from the business); and the name of each
source of $40,000 or more to the business.
• Pat and Mark Johnson, a married couple, own Classic
Autos. Income to this business was $200,000. In
determining the amount to report for income on
Schedule A-2, Part 2, Mark must include Mark’s 50%
share ($100,000) and 50% of Mark’s spouse’s share
($50,000). Thus, Mark’s reportable income would
be $150,000 and Mark will check the box indicating
$100,001-$1,000,000. (See Reference Pamphlet, page
13, for an example of how to calculate the value of this investment and interest in real property.)
• Renee Smith is an employee of a private company.
Renee’s employer offers the option of receiving a
stipend in lieu of healthcare insurance provided by the employer. Since Renee Smith receives payments from
their employer instead of healthcare insurance, Renee
is required to report the gross income from the stipend payments. Renee would aggregate and report the total
gross income received from both their stipend and
salary on Schedule C.
You are not required to report:
• Salary, reimbursement for expenses or per diem, social security, disability, or other similar benefit payments received by you or your spouse or registered domestic
partner from a federal, state, or local government
agency
• A travel payment that was received from a nonprofit
entity exempt from taxation under Internal Revenue
Code Section 501(c)(3) for which you provided equal or
greater consideration, such as reimbursement for travel on business for a 501(c)(3) organization for which you
are a board member.
• Campaign contributions
• A cash bequest or cash inheritance
• Returns on a security registered with the Securities and Exchange Commission, including dividends, interest,
or proceeds from a sale of stocks or bonds unless the
purchaser can be identified.
• Redemption of a mutual fund
• Payments received under an insurance policy, such as
life insurance policy payments, including an annuity
• Interest, dividends, or premiums on a time or demand
deposit in a financial institution, shares in a credit union, an insurance policy, or a bond or other debt instrument issued by a government agency
• Your spouse’s or registered domestic partner’s income that is legally “separate” income so long as the funds
are not commingled with community funds or used to
pay community expenses
• Income of dependent children
• Automobile trade-in allowances from dealers
• Loans and loan repayments received from your
spouse or registered domestic partner, child, parent,
grandparent, grandchild, brother, sister, parent-inlaw, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin unless they were acting as an
intermediary or agent for any person not covered by
this provision
• Alimony or child support payments
• Payments received under a defined benefit pension
plan qualified under Internal Revenue Code Section
401(a)
• Any loan from a commercial lending institution made
in the lender’s regular course of business on terms
available to the public without regard to your official status
• Any retail installment or credit card debts incurred in the creditor’s regular course of business on terms available to the public without regard to your official status
• Loans made to others. However, repayments may be
reportable on Schedule C
• A loan you co-signed for another person unless you
made payments on the loan during the reporting period
Incentive Compensation: “Incentive compensation”
means income over and above salary that is either
ongoing or cumulative, or both, as sales or purchases of goods or services accumulate. Incentive compensation is calculated by a predetermined formula set by the official’s employer which correlates to the conduct of the purchaser in direct response to the effort of the official.
Incentive compensation does not include:
• Salary
• Commission income (For information regarding
disclosure of “commission income,” see Reference
Pamphlet, page 8.)
• Bonuses for activity not related to sales or marketing, the amount of which is based solely on merit or hours
worked over and above a predetermined minimum
• Executive incentive plans based on company
performance, provided that the formula for determining
the amount of the executive’s incentive income does
not include a correlation between that amount and
increased profits derived from increased business with
specific and identifiable clients or customers of the
company
• Payments for personal services which are not
marketing or sales
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Terms & Definitions - (continued)
The purchaser is a source of income to the official if all three of the following apply:
• the official’s employment responsibilities include
directing sales or marketing activity toward the
purchaser; and
• there is direct personal contact between the official and the purchaser intended by the official to generate sales or business; and
• there is a direct relationship between the purchasing activity of the purchaser and the amount of the incentive compensation received by the official.
Report incentive compensation as follows:
• In addition to salary, reimbursement of expenses, and other income received from your employer, separately
report on Schedule C the name of each person
who purchased products or services sold, marketed
or represented by you if you received incentive
compensation of $500 or more attributable to the
purchaser during the period covered by the statement.
• If incentive compensation is paid by your employer in a lump sum, without allocation of amounts to specific
customers, you must determine the amount of incentive
compensation attributable to each of your customers.
This may be based on the volume of sales to those
customers.
(See Regulations 18700.1 and 18728.5 for more
information.)
Investment Funds: The term “investment” no longer
includes certain exchange traded funds, closed-end funds, or funds held in an Internal Revenue Code qualified plan.
These non-reportable investment funds (1) must be bona
fide investment funds that pool money from more than 100 investors, (2) must hold securities of more than 15 issuers, and (3) cannot have a stated policy of concentrating
their holdings in the same industry or business (“sector funds”). In addition, the filer may not influence or control the decision to purchase or sell the specific fund on behalf of their agency during the reporting period or influence or control the selection of any specific investment purchased or sold by the fund. (See Regulation 18237.)
Investments and Interests in Real Property: When
disclosing investments on Schedules A-1 or A-2 and
interests in real property on Schedules A-2 or B, you must include investments and interests in real property held by your spouse or registered domestic partner, and those held by your dependent children, as if you held them directly.
Examples:
• Julia Pearson, spouse, and two dependent children
each own $600 in stock in General Motors. Because
the total value of their holdings is $2,400, Julia must disclose the stock as an investment on Schedule A-1.
• Pat and Mark Johnson, a married couple, jointly own
Classic Autos. Mark must disclose Classic Autos as
an investment on Schedule A-2. To determine the
reportable value of the investment, Mark will aggregate the value of each of their 50% interest. Thus, if the
total value of the business entity is $150,000, Mark
will check the box $100,001 - $1,000,000 in Part 1 of
Schedule A-2. (Also see Reference Pamphlet, page
12, for an example of how to calculate reportable
income.)
The Johnsons also own the property where Classic
Autos is located. To determine the reportable value of
the real property, Mark will again aggregate the value of each of their 50% interest to determine the amount to
report in Part 4 of Schedule A-2.
• Katie Lee rents out a room in their home. Katie
receives $6,000 a year in rental income. Katie will
report the fair market value of the rental portion of the residence and the income received on Schedule B.
Jurisdiction: Report disclosable investments and sources of income (including loans, gifts, and travel payments) that are either located in or doing business in your agency’s jurisdiction, are planning to do business in your agency’s jurisdiction, or have done business during the previous two years in your agency’s jurisdiction, and interests in real property located in your agency’s jurisdiction.
A business entity is doing business in your agency’s
jurisdiction if the entity has business contacts on a regular or substantial basis with a person who maintains a physical presence in your jurisdiction.
Business contacts include, but are not limited to,
manufacturing, distributing, selling, purchasing, or
providing services or goods. Business contacts do not
include marketing via the Internet, telephone, television, radio, or printed media.
The same criteria are used to determine whether an
individual, organization, or other entity is doing business in your jurisdiction.
Exception:
Gifts are reportable regardless of the location of the donor.
For example, a state agency official with full disclosure must report gifts from sources located outside of California. (Designated employees/code filers should consult their
disclosure categories to determine if the donor of a gift is of the type that must be disclosed.)
When reporting interests in real property, if your jurisdiction is the state, you must disclose real property located within the state of California unless your agency’s conflict of interest code specifies otherwise.
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For local agencies, an interest in real property is located in your jurisdiction if any part of the property is located in, or within two miles of, the region, city, county, district, or other geographical area in which the agency has jurisdiction, or if the property is located within two miles of any land owned or used by the agency.
See the following explanations to determine what your
jurisdiction is:
State Offices and All Courts: Your jurisdiction is the state if you are an elected state officer, a state legislator, or a candidate for one of these offices. Judges, judicial candidates, and court commissioners also have statewide jurisdiction. (In re Baty (1979) 5 FPPC Ops. 10) If you are an official or employee of, or a consultant to, a state board, commission, or agency, or of any court or the State Legislature, your jurisdiction is the state.
County Offices: Your jurisdiction is the county if you are an elected county officer, a candidate for county office, or if you are an official or employee of, or a consultant to, a county agency or any agency with jurisdiction solely within a single county.
City Offices: Your jurisdiction is the city if you are an elected city officer, a candidate for city office, or you are an official or employee of, or a consultant to, a city agency or any agency with jurisdiction solely within a single city.
Multi-County Offices: If you are an elected officer,
candidate, official or employee of, or a consultant to
a multi-county agency, your jurisdiction is the region, district, or other geographical area in which the agency has jurisdiction. (Example: A water district has jurisdiction in a portion of two counties. Members of the board are
only required to report interests located or doing business in that portion of each county in which the agency has
jurisdiction.)
Other (for example, school districts, special districts and JPAs): If you are an elected officer, candidate, official or employee of, or a consultant to an agency not covered
above, your jurisdiction is the region, district, or other geographical area in which the agency has jurisdiction.
See the multi-county example above.
Leasehold Interest: The term “interest in real property” includes leasehold interests. An interest in a lease on real property is reportable if the value of the leasehold interest is $2,000 or more. The value of the interest is the total amount of rent owed by you during the reporting period or, for a candidate or assuming office statement, during the prior 12 months.
You are not required to disclose a leasehold interest with a value of less than $2,000 or a month-to-month tenancy.
Loan Reporting: Filers are not required to report loans from commercial lending institutions or any indebtedness created as part of retail installment or credit card
transactions that are made in the lender’s regular course of business, without regard to official status, on terms available to members of the public.
Loan Restrictions: State and local elected and appointed public officials are prohibited from receiving any personal loan totaling more than $250 from an official, employee, or consultant of their government agencies or any government agency over which the official or the official’s agency has direction or control. In addition, loans of more than $250 from any person who has a contract with the official’s agency or an agency under the official’s control are prohibited unless the loan is from a commercial lending institution or part of a retail installment or credit card transaction made in the regular course of business on terms available to members of the public.
State and local elected officials are also prohibited from receiving any personal loan of $500 or more unless the
loan agreement is in writing and clearly states the terms of the loan, including the parties to the loan agreement, the date, amount, and term of the loan, the date or dates when payments are due, the amount of the payments, and the
interest rate on the loan.
Campaign loans and loans from family members are not
subject to the $250 and $500 loan prohibitions.
A personal loan made to a public official that is not being repaid or is being repaid below certain amounts will
become a gift to the official under certain circumstances.
Contact the FPPC for further information, or see the FPPC fact sheet entitled “Limitations and Restrictions on Gifts, Honoraria, Travel, and Loans,” which can be obtained from your filing officer or the FPPC website (www.fppc.ca.gov).
Original Statement: A statement containing either
a handwritten “wet” signature or a “secure electronic
signature” signed under the penalty of perjury and verified by the filer pursuant to Gov. Code Section 81004. A “secure electronic signature” means either (1) a signature submitted using an approved electronic filing system or (2) if permitted by the filing officer, a digital signature submitted via the filer’s agency email address. (See Regulations 18104 and 18757.)
Privileged Information: FPPC Regulation 18740 sets
out specific procedures that must be followed in order
to withhold the name of a source of income. Under this
regulation, you are not required to disclose on Schedule A-2, Part 3, the name of a person who paid fees or made payments to a business entity if disclosure of the name would violate a legally recognized privilege under California 120
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Terms & Definitions - (continued)
or Federal law. However, you must provide an explanation for nondisclosure, separately stating for each undisclosed person: the legal basis for the assertion of the privilege, facts demonstrating why the privilege is applicable, and that to the best of your knowledge you have not and
will not make, participate in making, or use your official position to influence a governmental decision affecting the undisclosed person in violation of Government Code
Section 87100. This explanation may be included with, or attached to, the public official’s Form 700.
We note that the name of a source of income is privileged only to a limited extent under California law. For example, a name is protected by attorney-client privilege only
when facts concerning an attorney’s representation of
an anonymous client are not publicly known and those
facts, when coupled with disclosure of the client’s identity, might expose the client to an official investigation or to civil or criminal liability. A patient’s name is protected by physician-patient privilege only when disclosure of
the patient’s name would also reveal the nature of the
treatment received by the patient. A patient’s name is
also protected if the disclosure of the patient’s name
would constitute a violation by an entity covered under the Federal Health Insurance Portability and Accountability Act (also known as HIPAA).
Public Officials Who Manage Public Investments:
Individuals who invest public funds in revenue-producing programs must file Form 700. This includes individuals who direct or approve investment transactions, formulate or approve investment policies, and establish guidelines for asset allocations. FPPC Regulation 18700.3 defines “public officials who manage public investments” to include the following:
• Members of boards and commissions, including
pension and retirement boards or commissions, and
committees thereof, who exercise responsibility for the management of public investments;
• High-level officers and employees of public agencies
who exercise primary responsibility for the management
of public investments (for example, chief or principal
investment officers or chief financial managers); and
• Individuals who, pursuant to a contract with a state
or local government agency, perform the same or
substantially all the same functions described above.
Registered Domestic Partners: Filers must report
investments and interests in real property held by, and sources of income to, registered domestic partners. (See Regulation 18229.)
Retirement Accounts (for example, deferred
compensation and individual retirement accounts
(IRAs)): Assets held in retirement accounts must be
disclosed if the assets are reportable items, such as
common stock (investments) or real estate (interests
in real property). For help in determining whether your investments and real property are reportable, see the
instructions to Schedules A-1, A-2, and B.
If your retirement account holds reportable assets, disclose only the assets held in the account, not the account
itself. You may have to contact your account manager to determine the assets contained in your account.
Schedule A-1: Report any business entity in which the
value of your investment interest was $2,000 or more
during the reporting period. (Use Schedule A-2 if you have a 10% or greater ownership interest in the business entity.) Schedule B: Report any piece of real property in which
the value of your interest was $2,000 or more during the reporting period.
Examples:
• Anaya Tiwari deposits $500 per month into the
employer’s deferred compensation program. Anaya
has chosen to purchase shares in two diversified
mutual funds registered with the Securities and
Exchange Commission. Because Anaya’s funds are
invested solely in non-reportable mutual funds (see
Schedule A-1 instructions), Anaya has no disclosure
requirements with regard to the deferred compensation
program.
• Earl James Jones has $6,000 in an individual
retirement account with an investment firm. The
account contains stock in several companies doing
business in his jurisdiction. One of the stock holdings, Misac Computers, reached a value of $2,500 during the
reporting period. The value of the investment in each of the other companies was less than $2,000. Earl must
report Misac Computers as an investment on Schedule
A-1 because the value of the stock in that company was
$2,000 or more.
• Adriane Fisher has $5,000 in a retirement fund that
invests in real property located in Adriane’s jurisdiction.
The value of Adriane’s interest in each piece of
real property held in the fund was less than $2,000
during the reporting period. Although this retirement
fund holds reportable assets, there is no disclosure
requirement because it did not have a $2,000 or
greater interest in any single piece of real property. If, in the future, the value of Adriane’s interest in a single piece of real property reaches or exceeds $2,000, it
will be required to be disclosed on Schedule B for that reporting period.
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Terms & Definitions - (continued)
Trusts: Investments and interests in real property held and income received by a trust (including a living trust) are reported on Schedule A-2 if you, your spouse or registered domestic partner, and your dependent children together
had a 10% or greater interest in the trust and your pro rata share of a single investment or interest in real property was $2,000 or more.
You have an interest in a trust if you are a trustor and:
• Can revoke or terminate the trust;
• Have retained or reserved any rights to the income or principal of the trust or retained any reversionary or
remainder interest; or
• Have retained any power of appointment, including the power to change the trustee or the beneficiaries.
Or you are a beneficiary and:
• Presently receive income (see Gov. Code Section
82030); or
• Have an irrevocable future right to receive income
or principal. (See FPPC Regulation 18234 for more
information.)
Examples:
• Sarah Murphy has set up a living trust that holds
Sarah’s principal residence, stock in several companies that do business in the jurisdiction, and a rental home in the agency’s jurisdiction. Since Sarah is the trustor and can revoke or terminate the trust, Sarah must disclose
any stock worth $2,000 or more and the rental home
on Schedule A-2. Sarah’s residence is not reportable
because it is used exclusively as a personal residence. • Chao Yee is listed as a beneficiary in a family’s trust.
However, Chao does not presently receive income
from the trust, nor an irrevocable future right to receive income or principal. Therefore, Chao is not required to disclose any assets contained in the family trust.
Blind Trusts:
A blind trust is a trust managed by a disinterested trustee who has complete discretion to purchase and sell assets held by the trust. If you have a direct, indirect, or beneficial interest in a blind trust, you may not be required to disclose your pro rata share of the trust’s assets or income.
However, the trust must meet the standards set out in
FPPC Regulation 18235, and you must disclose reportable assets originally transferred into the blind trust and income from those original assets on Schedule A-2 until they have been disposed of by the trustee.
Trustees:
If you are only a trustee, you do not have a reportable interest in the trust. However, you may be required
to report the income you received from the trust for
performing trustee services.
Wedding Gifts: Wedding gifts must be disclosed if they
were received from a reportable source during the period covered by the statement. Gifts valued at $50 or more are reportable; however, a wedding gift is considered a gift to both spouses equally. Therefore, you would count one-half of the value of a wedding gift to determine if it is reportable and need only report individual gifts with a total value of $100 or more.
For example, you receive a place setting of china valued at $150 from a reportable source as a wedding gift. Because the value to you is $50 or more, you must report the gift on Schedule D, but may state its value as $75.
Wedding gifts are not subject to the $590 gift limit ($590 in 2023-2024), but they are subject to the $10 lobbyist/
lobbying firm gift limit for state officials.
Privacy Information Notice
Information requested on all FPPC forms is used by the
FPPC to administer and enforce the Political Reform Act (Gov. Code Sections 81000-91014 and California Code of
Regulations Sections 18110-18997). All information
required by these forms is mandated by the Political
Reform Act. Failure to provide all of the information
required by the Act is a violation subject to administrative, criminal, or civil prosecution. All reports and statements provided are public records open for public inspection and reproduction.
If you have any questions regarding this Privacy Notice or how to access your personal information, please contact the FPPC at:
General Counsel
Fair Political Practices Commission
1102 Q Street, Suite 3050
Sacramento, CA 95811
(916) 322-5660
(866) 275-3772
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APPENDIX B - ETHICS (AB 1234)
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AB 1234 TEST 1 SELF-STUDY MATERIALS
AB 1234 Self-Study Materials
Part I: Financial Interests and Perks
AB 1234 requires elected and appointed officials to take two hours of ethics training if they receive compensation for their service or are reimbursed for their expenses.1 The ethics training requirement may also apply to agency employees designated by the agency’s legislative body.2 There are many ways to satisfy this requirement, including in-person training and self-study activities.
Moreover, like all ethics laws, AB 1234 is a floor, not a ceiling. Local officials can demonstrate their commitment to ethics in public service by going beyond AB 1234’s minimum requirements.
This self-study exercise is eligible for one hour of AB 1234 self-study credit (or half of the minimum requirement). To claim self-study credit, log on to www.ca-ilg.org/AB1234selfstudy, print out and take the test, mail it to the address indicated with the $37.50 processing fee. This fee covers grading the test, providing the correct answers (and explanations) and your proof of participation certificate.
Scope of This Self-Study Exercise
These materials cover the first two areas of ethics training required by AB 1234:
▪ Laws relating to personal financial gain by public officials (including bribery and conflict of interest laws); and
▪ Laws relating to office-holder perks, including gifts and travel restrictions, personal and political use of public resources and prohibitions against gifts of public funds. 3 It also covers ethics principles related to these laws and ethics in public service in general.
Self-study materials that cover governmental transparency and fair process laws may be found here: www.cailg.org/post/ab-1234-self-study.
Note that public service ethics laws are extraordinarily complex. The learning objective of both self-study and in-person AB 1234 training courses is to familiarize local officials with when they need to consult agency counsel, the Attorney General or the Fair Political Practices Commission about a given situation or course of action.
Moreover, the ethics laws and training requirements of AB 1234 are both minimum standards. Just because a course of action is legal doesn’t mean that it is ethical or that the public or media will perceive it to be so. Local officials are strongly encouraged to go beyond the minimum standards set forth in the law and participate in additional educational activities relating to their legal and ethical obligations as public servants.
Financial Gain
Key Concepts
The principle underlying the financial gain laws is that the possibility of personal financial gain or loss cannot be a factor in your decisions as a public official. The laws in this area are designed to promote the general 124
AB 1234 TEST 1 SELF-STUDY MATERIALS
ethical values of responsibility and trustworthiness. Public servants have a responsibility to act always in the public’s interest, and the public needs to be able to trust that they will.
Key Laws
The following laws are designed to avoid both the reality and the appearance of personal financial gain influencing public servants’ actions.
▪ Bribery. Requesting, receiving or agreeing to receive money in exchange for an official action is a crime.
Under the state’s criminal laws, a “bribe” includes anything of value; it also includes receiving “advantages.” 4The advantage can be a future one and need not involve the payment of money.5 ▪ Disqualification Based on Financial Interests. A public official may not make, participate in or influence a governmental decision that will have a foreseeable and material financial effect on the official, the official’s immediate family or any of the official’s economic interests.6 Note the breadth of the prohibition: it does not just apply to voting, but the entire process leading up to voting. ▪ Interests in Contracts Prohibited. A public official may not have a financial interest in any contract made by the board or body of which the official is a member.7 The law is very strict on this point. Such contracts are void—meaning that the public agency will not have to pay the official for the benefits provided to the agency under the contract.8 Under most circumstances, the prohibition cannot be avoided by disqualifying oneself from participating in the decision on the contract. ▪ Helping Prospective Employers. A public official may not influence agency decisions when the interests of a prospective employer are at stake.
9 This situation arises when someone is negotiating or has “any arrangement” concerning prospective employment with someone with business before the agency. ▪ Revolving Door. Elected officials and top-level managers cannot represent individuals or entities before their agencies for one-year after leaving office.
10 Note that some local agencies have adopted even more restrictive prohibitions. 125
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The “Leave the Room” Requirement
If you are disqualified from participating on a specific agenda item under the conflict of interest rules established by the Political Reform Act, you must:11
▪ At the meeting, publicly identify the financial interest or potential conflict of interest in sufficient detail to be understood by the public.
▪ Not attempt to influence the decision in any way (this includes pre-meeting discussions with staff or colleagues).
▪ Refrain from discussing or voting on the matter (you should ask the item to be considered separately if it is on the consent calendar).
▪ Leave the room until after the discussion, vote and any other disposition of the matter, unless the matter is on the consent calendar.
There are limited exceptions that allow a disqualified official to remain in the room and participate in the discussion as a member of the public when one’s “personal interests” are at stake. Consult with your agency attorney about what kinds of personal interests qualify.
Consequences of Missteps
The consequences of violating these requirements can be severe. They include criminal felony or misdemeanor prosecutions. Conviction can involve substantial fines, jail time and loss of office. Civil fines can also add up. For example, the administrative penalty for violation of the Political Reform Act is a fine of up to $5,000 per violation. In most instances, officials targeted for civil enforcement actions will pay tens of thousands of dollars in defense costs, significantly more in criminal cases.
There can also be other kinds of negative consequences. For example, if an official violates proscriptions against self-dealing relating to contracts, the official may have to refund amounts paid under the contract. If a decision is tainted by the participation of someone who should have disqualified him or herself, the decision is subject to invalidation.
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Financial Interests Affected by an Agency Decision:
When to Seek an Attorney’s Advice
Talk with your agency attorney when 1) an action by your public agency 2) may affect (positively or negatively 3) any of the following:
Income. Any source of income of $500 or more (including promised income) during the prior 12 months for you or spouse/domestic partner.
Real Property. A direct or indirect interest in real property of $2,000 or more that you or your immediate family (spouse/domestic partner and dependent children) have, including such interests as ownership, leaseholds (but not month-to-month tenancies) and options to purchase, especially when any of these are located within 500 feet of the subject of your decision.
Personal Finances. Your or your immediate family’s (spouse/domestic partner and dependent children) personal expenses, income, assets, or liabilities.
Gift Giver. A giver of a gift of $520 (for 2021-22) or more to you in the prior 12 months, including promised gifts.
Lender/Guarantor. A source of a loan (including a loan guarantor) to you.
Contract. You or a member of your family would have an interest (direct or indirect) in a contract with the agency.
Business Management or Employment. An entity for which you serve as a director, officer, partner, trustee, employee, or manager.
Business Investment. An interest in a business in which you or your immediate family (spouse/ domestic partner and dependent children) have a direct or indirect investment worth $2,000 or more.
Related Business Entity. An interest a business that is the parent, subsidiary or is otherwise related to a business if you:
▪ Have a direct or indirect investment worth $2,000 or more; or ▪ Are a director, officer, partner, trustee, employee, or manager.
Business Entity Owning Property. A direct or indirect ownership interest in a business entity or trust of yours that owns real property.
Campaign Contributor. A campaign contributor of yours (if you are sitting on an appointed decisionmaking body).
Other Personal Interests and Biases. You have important, but non-financial, personal interests or biases (positive or negative) about the facts or the parties that could prevent you from making a fair decision.
What Will Happen Next? Agency counsel will advise you whether 1) you can participate in the decision and, 2) if a contract is involved, whether the agency can enter into the contract at all. Counsel may suggest asking either the Fair Political Practices Commission or the State Attorney General to weigh in. Keep in mind the attorney’s duty is to promote compliance with the ethics laws, not try to find ways around them.
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Personal Advantages and Perks
Key Concepts
The principle underlying the “no perks” laws is that one’s status as a public servant and one’s access to public resources should not afford special privileges. There are two categories of “no perk” laws. One relates to perks that others provide public officials (for example, gifts). The other involves advantages that officeholders provide themselves (for example, use of public resources).
The laws in this area are designed to promote the general ethical values of fairness, responsibility and trustworthiness. For example, receipt of perks from others undermines the public’s trust that decision-makers are treating everyone who comes before them fairly and making decisions solely in the public’s interests.
When officeholders give themselves perks, the public’s trust that these officeholders are being careful and public-minded stewards of taxpayer resources is undermined. To the extent that some of these perks involve political advantages, they undermine the fairness of campaigns and elections.
Key Laws
Generally speaking, the “no perks” laws bar some transactions and require disclosure of others. The laws are complex and the following will help you “spot” the issue so you can consult agency counsel for further information about the rules in a given instance.
▪ Loans. Officials cannot receive loans from those within the agency12 or with whom the agency contracts (except for bank or credit card indebtedness made in the regular course of the company’s business).13 Personal loans over $500 from others must meet certain requirements (for example, be in writing, clearly state the date, amounts and interest payable).14
▪ Gifts. With certain exceptions, a public official must disclose most gifts of $50 or more on his or her Statement of Economic Interests and may not receive gifts from any one source that totals over $520 in a single year (for 2021-22).15 Gifts include meals, certain kinds of travel payments, and rebates or discounts to public officials not offered to others in the usual course of business.16 ▪ Travel Expenses from Non-Transportation Companies. Gifts of travel expenses (for example, airfare, lodging, meals and entertainment) from non-transportation companies are generally subject to the gift rules and must be reported on one’s Statement of Economic Interests as such. ▪ Travel Passes from Transportation Companies. State law strictly forbids elected and appointed public officials from accepting free or discounted travel from transportation companies.17 The penalty for violating the prohibition against accepting travel passes from transportation companies is severe--an immediate forfeiture of office.18
▪ Receiving Gratuities or Rewards. It is a crime to receive any kind of gratuity or reward for performing one’s duties.19
▪ Honoraria. State law regulates the degree to which public officials may receive payments for giving a speech, writing an article or attending a public or private conference, convention, meeting, social event, meal or similar gathering.20 Generally such payments—which are known as honoraria--are prohibited.
The notion is such communications are part of a public official’s service. 128
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▪ Personal Use of Public Resources. State law forbids public officials from using public resources for personal purposes.21 “Public resources” include such things as 1) staff time, 2) office equipment (telephones, fax machines, photocopiers, and computers), and 3) office supplies (stationery, stamps, and other items). “Personal” use of public resources includes activities that are for personal enjoyment, private gain or advantage.22 For example, asking a staff member to pick up your laundry or kids from daycare would be a violation. “Use” means the use of public resources that is substantial enough to result in a gain or advantage for the user and a loss to the local agency that can be estimated as a monetary value.23
▪ Expense Reimbursement. The general rule is that local agency officials may only be reimbursed for actual and necessary expenses.24 Cities, counties, and special districts that reimburse their elected and appointed officials must adopt expense reimbursement policies that specify the kinds of activities that will be reimbursable.25 Local agencies must use expense report forms and all expenses must be documented with receipts.26 These documents are public records subject to disclosure.27 ▪ Limits on Public Official Compensation. Typically, there is a legal limit on elected public official compensation levels, either in state or local law public officials, particularly elected ones, may only collect and retain such compensation that the law allows.
28 As protectors of the public purse, courts generally
take a strict approach to public official compensation limits.29 City and county officials typically receive a monthly salary for their service. Special district directors tend to be compensated by a daily stipend. With certain exceptions, this stipend compensates such directors for:
▪ A meeting of any “legislative body” as defined by the Brown Act ▪ A meeting of an advisory body
▪ Conference attendance or educational activities, including ethics training30 Agencies may compensate officials for attendance at other events as specified in a written policy adopted in a public meeting.31
▪ Use of Public Resources for Political Purposes. The same statutes that prohibit the use of public resources for personal benefit also prohibit the use of such resources for campaign purposes.32 The prohibition applies to campaigns to elect candidates and campaigns in support of or opposition to ballot measures.
▪ Mass Mailings at Public Expense. State law forbids sending mass mailings at public expense.33 State law defines “mass mailings” as including mailings that “feature an elected officer” by including their photograph or signature, or by singling out the officer by a manner in which their name appears in the document.34
▪ Gifts of Public Resources or Funds. California’s constitution forbids gifts of public funds. This prohibits, for example, paying for spouses, partners or family members to accompany public officials.35 It can also be an issue when a public agency contemplates charitable contributions.36 129
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▪ Soliciting Political Support from Agency Employees. Soliciting campaign funds from agency officers or employees is also unlawful,37 as is conditioning employment decisions on support of a person’s candidacy.38 Compensation decisions may not be tied to political support.39 ▪ Speak with your agency counsel about the specifics of these requirements as they may apply to your situation.
Consequences of Missteps
The consequences of violating the “no-perk” laws can also be severe. For example, the prohibitions against the personal use of public resources are punishable by a $1,000 per day fine plus three times the value of the resource used.40 Criminal penalties include a two to four year prison term and disqualification from office.41 Prosecution under the federal income tax evasion laws is also a possibility.42 Again, this does not include the costs of hiring defense lawyers, which can add up to tens of thousands of dollars, if not more.
Beyond the Minimum in Understanding Public Service Ethics Like all ethics laws, AB 1234 sets minimum standards. The enforcement mechanism for complying with AB 1234’s requirements relies on public scrutiny and media attention.
Records of officials’ compliance with AB 1234 (proof of participation certificates) are public records and must be maintained for at least five years.43 In addition to maintaining records on compliance with the minimum standards imposed by AB 1234, local agencies may also want to maintain records of any training and study local agency officials engaged in above and beyond AB 1234’s minimum requirements. This will enable those inquiring to ascertain the agency’s and individual’s full scope of commitment to understanding the ethical and legal obligations associated with public service.
Beyond the Law
Understanding and complying with public service ethics laws is a challenge. But the public expects even more of its public servants. Rather than making decisions purely on the fly, how can public officials maximize the likelihood that they will meet or exceed the public’s expectations for ethical conduct? To be considered successful as a public servant, one is encouraged to think in terms of ethical values not minimum standards. Some key values relating to public service include responsibility, trustworthiness, respect and fairness. Assess decisions you have to make against these standards.
In addition, you can ask yourself these kinds of questions:
▪ What decision, behavior or course of action will best promote the public’s trust in my leadership and that of my agency?
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▪ Would I want to read about a certain course of action on the front page of my local newspaper? ▪ How do I want to be remembered as a public official? What would make my family and parents proud as a legacy?
For example, even if you are not legally required to disqualify yourself from participating in a decision, you may want to voluntarily abstain from participating if you believe the public could reasonably question whether you could put personal relationships and interests aside in making a given decision.
Conclusion
Former British Prime Minister Benjamin Disraeli once observed “...that all power is a trust; that we are accountable for its exercise.” As extensive and complicated as they are, the above rules relating to public service ethics are a reflection of that overarching quest for accountability and trust.
For more information on these rules, go to www.ca-ilg.org/ethicslaws. For more information on ethics principles, please visit www.ca-ilg.org/ethicsprinciples.
References
1 Cal. Gov’t Code § 53235(a), (b).
2 Cal. Gov’t Code § 53234(c).
3 Cal. Gov’t Code § 53235(a), (b).
4 Cal. Penal Code § 7
5 Id. See also People v. Anderson, 75 Cal. App. 365 (1925). 6 See Cal. Gov’t Code §§ 87100 and following.
7 Cal. Gov’t Code § 1090.
8 Cal. Gov’t Code § 1092. Thomson v. Call, 38 Cal. 3d 633, 646 (1985) 9 Cal. Gov’t Code § 87407.
10 See Cal. Gov't Code §87406.3.
11 See Cal. Gov’t Code § 87105.
12 See Cal. Gov’t Code § 87460(a), (b).
13 See Cal. Gov’t Code § 87460(c), (d).
14 See Cal. Gov’t Code § 87461.
15 Cal. Gov’t Code §§ 87200, 87207, 89503; 2 Cal. Code Regs. § 18940.2 (The gift limit is modified every two years to reflect changes in the Consumer Price Index; the $520 (2021-22)
16 Cal. Gov’t Code § 82028(a).
17 See Cal. Const. art. XII, § 7 (“A transportation company may not grant free passes or discounts to anyone holding an office in this State . . .”). 18 See Cal. Const. art. XII, § 7 (“. . .acceptance of a pass or discount by a public officer . . . shall work a forfeiture of that office . . .”). 19 Cal. Penal Code § 70.
20 See Cal. Gov’t Code § 89501 (definition of honoraria). 21 See Cal. Penal Code § 424; Cal. Gov’t Code § 8314.
22 Cal. Gov’t Code § 8314(b)(1).
23 Cal. Gov’t Code § 8314(b)(4).
Disclaimer: Open meeting practices continue to evolve as the COVID-19 crisis continues and agencies use a wide range of technology to meet their needs. The information provided in this document is for general informational purposes only and is not intended to provide legal advice to any individual or entity. ILG urges you to consult with your own legal advisor before taking any action based on this information.
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24 Cal. Gov’t Code § 36514.5.
25 Cal. Gov’t Code § 53232.2(b).
26 Cal. Gov’t Code § 53232.3.
27 Cal. Gov’t Code § 53232.3(e).
28 For example, the salary of council members of general law cities is controlled by Government Code section 36516(a), which permits a city council to establish by ordinance a salary up to a ceiling determined by the city’s population. The electorate may approve a higher salary. Cal. Gov’t Code § 36516(b). A council member appointed or elected to fill a vacancy is compensated in the same amount as his or her predecessor. A directlyelected mayor may receive additional compensation with the consent of the electorate or by ordinance of the city council. Cal. Gov’t Code § 36516.1. See also Cal. Educ. Code §§ 1090 (county board of education compensation), 35120 (school board member compensation), 72425 (community college board member compensation).
29 Id.
30 Cal. Gov’t Code § 53232.1(a).
31 Cal. Gov’t Code § 53232.1(b).
32 Cal. Penal Code § 424; People v. Battin, 77 Cal. App. 3d 635 (1978) (successful criminal prosecution of county supervisor for misusing public funds for improper political purposes), superseded on other grounds by People v. Conner, 34 Cal. 3d 141 (1983). See also Cal. Gov’t Code § 8314 (“‘Campaign activity’ means an activity constituting a contribution as defined in Section 82015 or an expenditure as defined in Section 82025. ‘Campaign activity’ does not include the incidental and minimal use of public resources, such as equipment or office space, for campaign purposes, including the referral of unsolicited political mail, telephone calls and visitors to private political entities.”). 33 See Cal. Gov’t Code § 89001.
34 See Cal. Gov’t Code 89002
35 75 Cal. Op. Att’y Gen. 20 (1992) (finding paying a spouse’s expenses to a conference violates both Government Code section 1090 and constitutional prohibitions against gifts of public funds). See also 65 Cal. Op. Att’y Gen. 517, 521 (1982) (finding Government Code section 36514.5 does not authorize reimbursement of the expenses of any person other than a member of the city council). See also Albright v. City of South San Francisco, 44 Cal. App. 3d 866, 869-870 (1975). (unauthorized reimbursement is illegal gift). 36 See generally McQuillin, Municipal Corporations, § 39.25 (3d rev. ed. 1988) (“Appropriations to charitable or nonprofit associations, without consideration [something in return], cannot be made.”)
37 See Cal. Gov’t Code § 3205 (except for those communications to a significant segment of the public that happens to include fellow public officials and employees).
38 See Cal. Gov’t Code § 3204, which reads as follows: No one who holds, or who is seeking election or appointment to, any office or employment in a state or local agency shall, directly or indirectly, use, promise, threaten or attempt to use, any office, authority, or influence, whether then possessed or merely anticipated, to confer upon or secure for any individual person, or to aid or obstruct any individual person in securing, or to prevent any individual person from securing, any position, nomination, confirmation, promotion, or change in compensation or position, within the state or local agency, upon consideration or condition that the vote or political influence or action of such person or another shall be given or used in behalf of, or withheld from, any candidate, officer, or party, or upon any other corrupt condition or consideration. This prohibition shall apply to urging or discouraging the individual employee’s action. 39 ??
40 Cal. Gov’t Code § 8314(c)(1).
41 Cal. Penal Code § 424.
42 See 26 U.S.C. §§ 7201, 7203.
43 Cal. Gov’t Code § 53235.2.
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AB 1234 Self-Study Materials
Part II: Governmental Transparency and Fair Processes
AB 1234 requires elected and appointed officials to take two hours of ethics training if they receive compensation for their service or are reimbursed for their expenses.1 The ethics training requirement may also apply to agency employees designated by the agency’s legislative body.2 There are many ways to satisfy this requirement, including in-person training and self-study activities.
Moreover, like all ethics laws, AB 1234 is a floor, not a ceiling. Local officials can demonstrate their commitment to ethics in public service by going beyond AB 1234’s minimum requirements.
As a special service, the Institute for Local Government is offering this article for one hour of AB 1234 selfstudy credit (or half of the minimum requirement). To claim self-study credit, log on to www.cailg.org/AB1234selfstudy, print out and take the test, mail it to the address indicated with the $37.50 processing fee. This fee covers grading the test, providing the correct answers (and explanations) and your proof of participation certificate; it also supports the Institute’s work in the public service ethics area.
Scope of This Self-Study Exercise
This article covers half of the required areas of ethics, including:3 ▪ Governmental transparency laws, including financial disclosure laws and laws protecting the public’s right to participate in meetings and access public records (the Brown Act and Public Records Act); and ▪ Laws relating to fair processes, including common law bias, due process, incompatible offices, competitive bidding requirements for public contracts and disqualification from participation in decisions involving family members.
The self-study materials covering the other half of the areas of ethics training required by AB 1234 may be found here: www.ca-ilg.org/post/ab-1234-self-study.
Note that public service ethics laws are extraordinarily complex. The learning objective of both self-study and in-person AB 1234 training courses is to familiarize local officials with when they need to consult agency counsel, the attorney general or the Fair Political Practices Commission about a given situation or course of action.
Transparency Laws
The principle underlying governmental transparency laws is that the public trusts what it can observe.
Transparency law is intended to promote participatory democracy, moreover, the prospect that actions will be publicly known can be a deterrent against actions that might undermine public trust. Thus, the laws in this area are designed to promote the general ethical values of trustworthiness and responsibility.
There are two basic categories of transparency laws. One relates to activities of the individual official. For example, these laws require specified officials to periodically disclose their personal financial interests (so the public can assess whether those interests played a role in the official’s decisions). They also require officials to disclose campaign and charitable fundraising activities. 133
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The other kind of transparency laws requires governmental processes to be transparent to the public. These laws require that governmental decisions be made in public and that the public have the opportunity to weigh in on those decisions. They also require that most public records be open to public inspection.
This self-study exercise discusses both kinds of transparency laws.
Financial Disclosure Laws
There is an adage about one’s life being an open book. Nowhere is this truer than for public officials and their finances. The bottom line is that when you become a public official, the public gets to learn a great deal about your financial life. The voters created these disclosure requirements when they approved the Political Reform Act in 1974.4
The disclosure requirements apply to nearly every local elected official and department head. Members of commissions, boards, committees and other local agency bodies with significant decision-making authority are also subject to disclosure requirements. An agency may require additional staff positions to disclose their economic interests under the agency’s local conflict of interest code. Such employees are known as “designated employees.”
The following kinds of economic interests must be disclosed if they meet certain minimum thresholds:5 ▪ Sources of income;
▪ Interests in real property;
▪ Investments;
▪ Business positions; and
▪ Gifts
This disclosure is made on forms called both “Statements of Economic Interests” and “Form 700s.” Copies of these forms are generally provided by one’s agency. Interactive versions of the forms are available from the Fair Political Practices Commission website: www.fppc.ca.gov.
These forms must be completed 1) upon assuming office 2) on an annual basis while in office and 3) upon leaving office.
Charitable Fundraising
The disclosure laws are not limited to an official’s personal financial interests. There are extensive disclosure requirements relating to an official’s campaign fundraising activities.6 However, a sometimes-overlooked disclosure obligation relates to an official’s charitable fundraising activities. The theory is that the public has a right to know who is contributing to an elected official’s favorite charities and other causes.
The trigger occurs when an elected official gets someone to contribute $5,000 or more to a legislative, governmental or charitable cause during a calendar year, known as a behested payment.7 Within 30 days of reaching the $5,000 threshold, the elected official must file a report with the official’s agency (typically with the filing officer).
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Conducting the Public’s Business in Public
California’s open meeting laws8 provide legal minimums for local governmental transparency in decisionmaking. Decision-making bodies--which include the governing board as well as many committees and advisory bodies--must conduct their business in an open and public meeting to assure the public is fully informed about local decisions.9
The following are some key things to keep in mind:
▪ Meetings. A “meeting” is any situation involving a majority of the governing body in which business is transacted or discussed.
10 In other words, a majority of the governing body cannot talk privately about an issue before the body no matter how the conversation occurs, whether by telephone or e-mail or at a local coffee shop.11
▪ Serial Meetings. One thing to watch for is unintentionally creating a “serial” meeting—a series of communications that result in a majority of governing body members having conferred on an issue. For example, if two members of a five-member governing body consult outside of a public meeting (which is not in and of itself a violation) and then one of those individuals consults with a third member on the same issue, a majority of the body has consulted on the same issue. Note the communication does not need to be in person and can occur through a third party. For example, sending or forwarding e-mail can be sufficient to create a serial meeting, as can a staff member polling governing body members in a way that reveals the members’ positions to one another.12
▪ Permissible Gatherings. Not every gathering of governing body members is a problem. For example, a majority of the governing body may attend the same educational conference or a community meeting not organized by the local agency.13 Nor is attendance at a social or ceremonial event in and of itself a violation.14 The key rule to keep in mind is a majority of the governing body members cannot meet and discuss agency business except at an open and fully noticed public meeting. ▪ Closed Sessions. The open meeting laws include provisions for closed discussions under very limited circumstances.15 Because of the complexity of the open meeting laws, close consultation with an agency’s legal advisor is necessary to ensure that the requirements relating to and the limitations on closed sessions are observed.
The Public’s Right to Participate in Meetings
Another element of open meeting laws is the public’s right to address the governing body. A public official’s role is to both hear and evaluate these concerns. There are a number of basic rules that govern this right. ▪ Posting and Following the Agenda. The open meeting laws require that the public be informed of the time of and location and the issues to be addressed at each meeting.16 ▪ Agenda Descriptions. Each agenda item shall provide a description of the item sufficient enough to inform the community as to whether they should want to participate and/or be heard on the item. ▪ The Public’s Right to be Heard. Generally, every agenda must provide an opportunity for the public to address the governing body on any item of interest to the public within the body’s jurisdiction.17 If the 135
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issue of concern is one pending before the legislative body, the opportunity must be provided before or during the body’s consideration of that issue.18
▪ Reasonable Time Limits May Be Imposed. Local agencies may adopt reasonable regulations to ensure everyone has an opportunity to be heard in an orderly manner.19 The Public’s Right to Access Records
Copies of the agenda materials and other documents distributed to the governing body must also be available to the public.20 The public has the right to see any materials that are created as part of the conduct of the people’s business.21 These materials include any writing that was prepared, owned, used or retained by a public agency.22 They include documents, computer data, e-mails, facsimiles and photographs.23 The public may even have a right to access records such as texts and email messages on private devices and accounts used by a public official.24
Although there are exceptions to a public agency’s duty to disclose records, the safe assumption is virtually all materials involved in one’s service on the governing body--including e-mails--are public records subject to disclosure.
Fair Process Laws
Not surprisingly, fair process laws promote the ethical value of fairness. This is the notion that everyone has a right to be treated fairly by governmental processes, irrespective of who they are or whom they know. The public’s perception that decisions are made fairly is a key element of the public’s confidence and trust in government and individual public officials.
The Obligation to be a Fair and Unbiased Decision-Maker Although California statutes largely determine when public officials must disqualify themselves from participating in decisions, common law (judge-made) and some constitutional principles still require a public official to exercise his or her powers free from personal bias-including biases that have nothing to do with financial gain or losses.
In addition, constitutional due process principles require a decision-maker to be fair and impartial when the decision-making body is sitting in what is known as a “quasi-judicial” capacity. Quasi-judicial matters include variances, use permits, annexation protests, personnel disciplinary actions and licenses. Quasi-judicial proceedings tend to involve the application of generally adopted standards to specific situations, much as a judge applies the law to a particular set of facts.
For example, a court overturned a planning commission’s decision on due process grounds, concluding that a planning commissioner’s authorship of an article hostile to a project before the commission gave rise to an unacceptable probability of bias against the project, and that the commissioner should have disqualified himself from participating in the decision.25
Typically, having the official who may have exhibited bias disqualify himself or herself solves the problem.26 If the problem is not addressed though, the agency’s decision will be at risk of being overturned by the courts.27 The agency will have to conduct new proceedings free of the influence of the biased decision-maker.28 If the 136
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violation rises to the level of a denial of due process under constitutional law, the affected individual(s) may seek damages, costs and attorney fees.29
Finally, community relations—and the public’s views of an official’s responsiveness—are seriously undermined when it appears an official is not listening to the input being provided by the public. Even if you disagree with the views being offered, treat the speaker with the same respect you would like to be treated with if the roles were reversed. Moreover, at least one court has ruled that officials’ perceived inattentiveness during a hearing violated due process principles.30
Campaign Contributions and Bias
Generally, the ethics laws with respect to campaign contributions emphasize disclosure rather than disqualification. The emphasis on disclosure enables the public to assess for itself the degree an official could be influenced by campaign contributors who appear before the agency. Both financial and in-kind support must be disclosed.
However, under limited (and sometimes counterintuitive) circumstances, certain local agency officials must disqualify themselves from participating in proceedings regarding licenses, permits and other entitlements for use if the official has received campaign contributions of more than $250 during the previous twelve months from any party or participant.31 The restrictions apply if the official is sitting on an appointed (as opposed to elected) body.32
In addition, these officials are prohibited from receiving, soliciting or directing a campaign contribution of more than $250 from any party or participant in a license, permit or entitlement proceeding while the proceeding is pending and for three months after the contribution.33
Holding Multiple Public Offices
There is such a thing as too much public service; the law limits the degree to which public officials can hold multiple public offices. The reason is that, when one assumes a public office, one takes on responsibility to the constituents of that agency to put their interests first. When one occupies multiple offices in multiple agencies (for example, membership on the city council and serving on the board of another local agency), that job becomes more complicated, both legally and ethically, because of the possibility of conflicting loyalties.34 Offices are incompatible if there is a potential for any significant clash of duties or loyalties between the offices, or either officer exercises a supervisory, auditory or removal power over the other. The prohibition against the simultaneous holding of incompatible offices does not require the existence of an actual conflict between the offices. A potential for a significant clash between the two offices is sufficient to trigger the prohibition.35 Note there can be specific legislative exceptions to incompatible office rules.
Competitive Bidding Processes for Public Contracts
Public contracting laws—including those adopted at the local level—are designed to give all interested parties the opportunity to do business with the government on an equal basis. This keeps contracts from being steered to businesses or individuals because of political connections, friendship, favoritism, corruption or other factors. 137
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It also assures that the public receives the best value for its money by promoting competition among businesses so the public can receive the best deal.36
Many competitive bidding requirements are locally imposed, for example, by charter cities as part of their municipal affairs authority.37 State law also authorizes local agencies to adopt procedures for acquisition of supplies and equipment.38 Most of these purchasing ordinances require competitive bids for contracts in excess of designated dollar amounts.
For public works projects, state law defines when general law cities and counties must use competitive bidding.
For general law cities, public works projects over $5,000 are subject to the state’s competitive bidding requirements.39 For county projects, the threshold is based on population: $6,500 (counties with populations of 500,000 or over), $50,000 (counties with populations of 2 million or over) and $4,000 (all other counties).40 Note that it is a misdemeanor to split projects to avoid competitive bidding requirements.41 In order to give all interested parties an opportunity to do business with the agency and get the best price for the public, the agency has to publicize the opportunity. This is typically accomplished by publishing a notice inviting bids in a newspaper of general circulation that is printed or published in the jurisdiction, or if there is none, posting the notice in at least three public places in the jurisdiction.42 Trade publications can also be a helpful way to reach a wide segment of the contracting industry.
Decisions Involving Family Members
The Political Reform Act requires public officials to disqualify themselves from participating in decisions that will increase or decrease their immediate family’s expenses, income, assets or liabilities.43 “Immediate family” includes one’s spouse or domestic partner and dependent children.44 The notion is that it is very difficult for any person to be fair and unbiased when one’s family’s interests are concerned; it is, of course, also difficult for the public to perceive the official to be fair and unbiased about close family members.
Because of this, some jurisdictions have adopted additional restrictions on the hiring or appointing of relatives of public officials. These are known as anti-nepotism policies. It can be wise to avoid questions about family relationship by voluntarily not participating in decisions that affect family members, even if the law or local agency regulations allow you to participate.
Beyond the Law
At some point in your service as a public official, you will likely face two common types of ethical dilemmas:
▪ Personal Cost Ethical Dilemmas. This involves situations in which doing the right thing may or will come at a significant personal cost to you or your public agency. These also can be known as “moral courage” ethical dilemmas.45
▪ Right-versus-Right Ethical Dilemmas. This type of ethical dilemma involves those situations in which there are two conflicting sets of “right” values.46
Of course, some dilemmas are a combination of both: a conflict between competing sets of “right” values (rightversus-right) and a situation in which doing the right thing involves personal or political costs. 138
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Personal Cost Ethical Dilemmas
With these kinds of dilemmas, the costs can be political - such as the loss of political support or perhaps even one’s prospects for reelection. Or, the cost can be financial, for example a missed opportunity for financial gain or material benefits. Issues relating to the proper use of public resources fall into the “personal cost” type of ethical dilemma, in as much as these dilemmas typically involve whether one is going to forgo a tempting political or personal benefit. Finally, the cost can be more directly personal, as when one fears a particular course of action may jeopardize a friendship. In these situations, the answer is relatively simple. The bottom line is that being ethical means doing the right thing regardless of personal costs.
Right-versus-Right Ethical Dilemmas
Right-versus-right ethical dilemmas can be more difficult to resolve. An easy example, however, is when a political supporter urges you to do something that conflicts with your own best sense of what will serve your community’s interests. In this dilemma, there is a conflict between your responsibility to do what is in the public’s best interest and your loyalty to your political supporter. Responsibility and loyalty are both bona fide ethical values.
The key is, as a public servant, the ethical value of responsibility (and the responsibility to do what is in the public’s best interest) trumps the ethical value of loyalty. This is when thinking about the public’s perception of the right thing to do can be a useful dilemma-resolution strategy.
Conclusion
In politics, there is a great temptation to engage in ends/means thinking in which one is tempted to conclude that good or desirable ends justify the means. As both Dr. Martin Luther King, Jr. and Gandhi have observed, the means are the end in a democracy and good ends cannot come from questionable means.
Public officials are stewards of the public’s trust in both their institutions and their leaders. Central to that trust is a fair and open process. Conscientious attention to laws and principles of fair and open government will help you as a leader pursue both good means and good ends.
Resources for Further Information
For more information about ethics laws and principles, check out the following resources:
▪ California Attorney General Publications: www.caag.state.ca.us/publications/index.htm (click on ‘‘ethics’’) ▪ Fair Political Practices Commission Publications: http://www.fppc.ca.gov/index.php?id=226 ▪ Institute for Local Government Ethics Resource Center: www.ca-ilg.org/trust Disclaimer: Open meeting practices continue to evolve as the COVID-19 crisis continues and agencies use a wide range of technology to meet their needs. The information provided in this document is for general informational purposes only and is not intended to provide legal advice to any individual or entity. ILG urges you to consult with your own legal advisor before taking any action based on this information.
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References
1 Cal. Gov’t Code § 53235(a), (b).
2 Cal. Gov’t Code § 53234(c).
3 Cal. Gov’t Code § 53234(d)(3), (4).
4 This is a requirement of the Political Reform Act. See generally Cal. Gov’t Code §§ 87200 and following. 5 See Cal. Gov’t Code §§ 87200-87210; 2 Cal. Code Regs. §§ 18723-18740. 6 See generally Cal. Gov’t Code §§ 84100 and following; 2 Cal. Code Regs. §§ 18401 and following. 7 See Cal. Gov’t Code § 82015(b)(2)(B)(iii).
8 See generally Cal. Gov’t Code §§ 54950 and following (for cities, counties, special districts and school districts); Cal. Educ. Code §§ 72121 and following (for community college district governing boards). 9 See Cal. Gov’t Code 54952.2(a); Cal. Gov’t Code § 54954.2(a). 10 Cal. Gov’t Code § 54952.2(a).
11 Cal. Gov’t Code § 54952.2(b); Cal. Educ. Code § 72121. 12 Cal. Gov’t Code § 54952.2.
13 Cal. Gov’t Code § 54952.2(c)(2).
14 Cal. Gov’t Code § 54952.2(c)(5).
15 See Cal. Gov’t Code § 54954.5; Cal. Educ. Code § 71122. 16 Cal. Gov’t Code § 54954.2(a): Cal. Educ. Code § 72121. 17 Cal. Gov’t Code § 54954.3(a); Cal. Educ. Code § 72121.5. 18 Cal. Gov’t Code § 54954.3(a).
19 Cal. Gov’t Code § 54954.3(b); White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990). 20 Cal. Gov’t Code § 54957.5.
21 See generally Cal. Gov’t Code §§ 6250 and following. 22 Cal. Gov’t Code § 6252(d).
23 Cal. Gov’t Code § 6252(e).
24 City of San Jose vs. Superior Court of the County of Santa Clara, 2 Cal. 5th 608 (2017) 25 Nasha v. City of Los Angeles, 125 Cal. App. 4th 471 (2004). 26 See Fairfield v. Superior Court, 14 Cal. 3d 768 (1975); Mennig v. City Council, 86 Cal. App. 3d 341 (1978). 27 See generally Cal. Civ. Proc. Code § 1094.5.
28 See Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1152 (1996) (requiring council to rehear an appeal from the planning commission’s decision and provide a fair hearing).
29 See 42 U.S.C. §§ 1983, 1988.
30 See Lacy Street Hospitality Service v. City of Los Angeles, 22 Cal. Rptr. 3d 805 (2004) (depublished 2005 Daily Journal D.A.R. 84). This case may not be cited as precedent and is provided here only as an illustration. 31 Cal. Gov’t Code § 84308.
32 See Cal. Gov’t Code § 84308(a)(3); 2 Cal. Code Regs. § 18438.1. 33 See Cal. Gov’t Code § 84308(b).
34 See Cal. Gov’t Code § 1126.
35 People ex rel. Chapman v. Rapsey, 16 Cal. 2d 636, 641-642 (1940) 36 See Cal. Pub. Cont. Code § 100.
37 Smith v. City of Riverside, 34 Cal. App. 3d 529 (1973). 38 Cal. Gov’t Code §§ 54201 and following.
39 Cal. Pub. Cont. Code §§ 20160-20162.
40 Cal. Pub. Cont. Code §§ 20120-20123.
41 Cal. Pub. Cont. Code § 20163.
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42 See, e.g., Cal. Pub. Cont. Code § 20164.
43 See 2 Cal. Code Regs. § 18703.5.
44 Cal. Gov’t Code § 82029; 2 Cal. Code Regs. § 18229.
45 See Rushworth M. Kidder, Moral Courage: Taking Action When Your Values Are Put to the Test (William Morrow, 2005). 46 See Rushworth M. Kidder, How Good People Make Tough Choices: Resolving the Dilemmas of Ethical Living (Simon and Schuster, 1995) 13-49. 141
APPENDIX C- BROWN ACT AND TELECONFERENCE MEETING REQUIREMENTS 142
Open & Public VI
A GUIDE TO THE RALPH M. BROWN ACT
REVISED JANUARY 2024
Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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ii OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT
ACKNOWLEDGEMENTS
ACKNOWLEDGMENTS
Cal Cities thanks the following individuals for their work on this publication:
Brown Act Committee
Tracy M. Noonan, Committee Chair
City Attorney, Thousand Oaks
Amy Ackerman
Town Attorney, Corte Madera; Renne Public Law Group
Sheri Damon
City Attorney, Seaside
Christopher Diaz
City Attorney, Colma and Hillsborough
Best Best & Krieger LLP
Megan J. Marevich
Assistant City Attorney, Mountain View
Javan N. Rad
Chief Assistant City Attorney, Pasadena
Prasanna W. Rasiah
City Attorney, San Mateo
Sujata Reuter
Chief Assistant City Attorney, Santa Clara
Robert Schultz
Attorney
Frank A. Splendorio
City Attorney, Atwater and Plymouth
Best Best & Krieger LLP
Osa Wolff
City Attorney, Orinda
Shute, Mihaly & Weinberger LLP
Cal Cities Staff
Sheri Chapman, General Counsel
Alison Leary, Senior Deputy General Counsel
Janet Leonard, Executive Assistant, Legal Services
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REVISED JANUARY 2024
Open & Public VI
A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS.................................................5 CHAPTER 2: LEGISLATIVE BODIES............................................................11 CHAPTER 3: MEETINGS............................................................................17 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION ..............29 CHAPTER 5: CLOSED SESSIONS ...............................................................41 CHAPTER 6: REMEDIES ............................................................................55 145
2 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT
TABLE OF CONTENTS
TABLE OF CONTENTS
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS............................................... 5 The right of access ...................................................................................................................6 Broad coverage ........................................................................................................................6 Narrow exemptions .................................................................................................................7 Public participation in meetings ..............................................................................................7 Controversy..............................................................................................................................8 Beyond the law — good business practices............................................................................8 Achieving balance ....................................................................................................................9 Historical note ..........................................................................................................................9 CHAPTER 2: LEGISLATIVE BODIES ........................................................... 11 What is a “legislative body” of a local agency? .....................................................................12 What is not a “legislative body” for purposes of the Brown Act? .........................................14 CHAPTER 3: MEETINGS ...........................................................................17 Brown Act meetings...............................................................................................................18 Six exceptions to the meeting definition...............................................................................18 Collective briefings.................................................................................................................21 Retreats, trainings, and workshops of legislative bodies.......................................................21 Serial meetings.......................................................................................................................22 Informal gatherings ................................................................................................................24 Technological conferencing ...................................................................................................25 Location of meetings..............................................................................................................26 CHAPTER 4: AGENDAS, NOTICES, AND PUBLIC PARTICIPATION.............. 29 Agendas for regular meetings................................................................................................30 Mailed agenda upon written request.....................................................................................31 Notice requirements for special meetings ............................................................................32 Notices and agendas for adjourned and continued meetings and hearings ........................32 Notice requirements for emergency meetings .....................................................................33 Notice of compensation for simultaneous or serial meetings ..............................................33 Educational agency meetings ................................................................................................33 Notice requirements for tax or assessment meetings and hearings....................................33 146
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Non-agenda items..................................................................................................................34 Responding to the public .......................................................................................................35 The right to attend and observe meetings ............................................................................36 Records and recordings .........................................................................................................37 The public’s right to speak during a meeting ........................................................................38 CHAPTER 5: CLOSED SESSIONS ..............................................................41 Agendas and reports..............................................................................................................42 Litigation.................................................................................................................................43 Real estate negotiations ........................................................................................................45 Public employment ................................................................................................................46 Labor negotiations .................................................................................................................47 Labor negotiations — school and community college districts ............................................48 Other Education Code exceptions .........................................................................................48 Joint powers authorities.........................................................................................................48 License applicants with criminal records ..............................................................................49 Public security........................................................................................................................49 Multijurisdictional law enforcement agency .........................................................................49 Hospital peer review and trade secrets.................................................................................49 Other legislative bases for closed session.............................................................................50 Who may attend closed sessions ..........................................................................................50 The confidentiality of closed session discussions .................................................................51 CHAPTER 6: REMEDIES .......................................................................... 55 Invalidation of action taken....................................................................................................56 Declaratory relief to determine whether past action violated the act..................................57 Civil action to prevent future violations.................................................................................57 Costs and attorney’s fees ......................................................................................................58 Misdemeanor penalties..........................................................................................................58 Voluntary resolution...............................................................................................................59 147
4 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT 148 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT 5 5 Chapter 1
IT IS THE PEOPLE’S BUSINESS
The right of access.............................................................................................................. 6 Broad coverage ................................................................................................................... 6 Narrow exemptions ............................................................................................................ 7 Public participation in meetings ......................................................................................... 7 Controversy......................................................................................................................... 8 Beyond the law — good business practices ...................................................................... 8 Achieving balance............................................................................................................... 9 Historical note..................................................................................................................... 9 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT 149 6 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT
CHAPTER 1: IT IS THE PEOPLE’S BUSINESS
The right of access
Two key parts of the Brown Act have not changed since its adoption in 1953. One is the act’s initial section, declaring the Legislature’s intent:
“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”1
The people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition 59, amending the California Constitution to include a public right of access to government information:
“The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”2 The Brown Act’s other unchanged provision is a single sentence:
“All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”3 That one sentence is by far the most important of the entire Brown Act. If the opening is the soul, that sentence is the heart of the Brown Act.
Broad coverage
The Brown Act covers members of virtually every type of local government body, elected or appointed, decision-making or advisory. Some types of private organizations are covered, as are newly elected members of a legislative body, even before they take office.
Similarly, meetings subject to the Brown Act are not limited to face-to-face gatherings. They also include any communication medium or device through which a majority of a legislative body discusses, deliberates, or takes action on an item of business outside of a noticed meeting. They include meetings held from remote locations by teleconference or videoconference.
Chapter 1
IT IS THE PEOPLE’S BUSINESS
PRACTICE TIP: The key to the
Brown Act is a single sentence.
In summary, all meetings shall
be open and public except
when the Brown Act authorizes
otherwise.
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New communication technologies present new Brown Act challenges. For example, common email practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act, as can participation by members of a legislative body in an internet chatroom or blog dialogue. Social Media posts, comments, and “likes” can result in a Brown Act violation.
Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions, and some state legislatures have banned the practice. On the other hand, widespread video streaming and videoconferencing of meetings has greatly expanded public access to the decision-making process.
Narrow exemptions
The express purpose of the Brown Act is to ensure that local government agencies conduct the public’s business openly and publicly. Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.4
Generally, public officials should think of themselves as living in glass houses, and that they may only draw the curtains when it is in the public interest to preserve confidentiality. Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself.
The Brown Act, however, is limited to meetings among a majority of the members of multimember government bodies when the subject relates to local agency business. It does not apply to independent conduct of individual decision-makers. It does not apply to social, ceremonial, educational, and other gatherings as long as a majority of the members of a body do not discuss issues related to their local agency’s business. Meetings of temporary advisory committees — as distinguished from standing committees — made up solely of less than a quorum of a legislative body are not subject to the Brown Act.
The law does not apply to local agency staff or employees, but they may facilitate a violation by acting as a conduit for discussion, deliberation, or action by the legislative body. 5 The law, on the one hand, recognizes the need of individual local officials to meet and discuss matters with their constituents and staff. On the other hand, it requires — with certain specific exceptions to protect the community and preserve individual rights — that the decision-making process be public. Sometimes the boundary between the two is not easy to draw.
Public participation in meetings
In addition to requiring the public’s business to be conducted in open, noticed meetings, the Brown Act also extends to the public the right to participate in meetings. Individuals, lobbyists, and members of the news media possess the right to attend, record, broadcast, and participate in public meetings. The public’s participation is further enhanced by the Brown Act’s requirement that a meaningful agenda be posted in advance of meetings, by limiting discussion and action to matters listed on the agenda, and by requiring that meeting materials be made available.
Legislative bodies may, however, adopt reasonable regulations on public testimony and the conduct of public meetings, including measures to address disruptive conduct and limits on the time allotted to each speaker. For more information, see chapter 4.
PRACTICE TIP: Think of the
government’s house as being
made of glass. The curtains may
be drawn only to further the
public’s interest. A local policy
on the use of laptop computers,
tablets, and smart phones during
Brown Act meetings may help
avoid problems.
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Controversy
Not surprisingly, the Brown Act has been a source of confusion and controversy since its inception.
News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation. They often suspect that closed sessions are being misused.
Some public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately, such as why a particular person should not be appointed to a board or commission. Many elected officials find the Brown Act inconsistent with their private business experiences. Closed meetings can be more efficient; they eliminate grandstanding and promote candor. The techniques that serve well in business — the working lunch, the sharing of information through a series of phone calls or emails, the backroom conversations and compromises — are often not possible under the Brown Act.
As a matter of public policy, California (along with many other states) has concluded that there is more to be gained than lost by conducting public business in the open. Government behind closed doors may well be efficient and businesslike, but it may be perceived as unresponsive and untrustworthy.
Beyond the law — good business practices
Violations of the Brown Act can lead to invalidation of an agency’s action, payment of a challenger’s attorney fees, public embarrassment, even criminal prosecution. But the Brown Act is a floor, not a ceiling, for conduct of public officials. This guide is focused not only on the Brown Act as a minimum standard, but also on meeting practices or activities that, legal or not, are likely to create controversy. Problems may crop up, for example, when agenda descriptions are too brief or vague, when an informal gettogether takes on the appearance of a meeting, when an agency conducts too much of its business in closed session or discusses matters in closed session that are beyond the authorized scope, or when controversial issues arise that are not on the agenda.
The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.6 Rather than simply restate the basic requirements of the Brown Act, local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act does not provide full guidance. As with the adoption of any other significant policy, public comment should be solicited.
A local policy could build on these basic Brown Act goals:
A legislative body’s need to get its business done smoothly. The public’s right to participate meaningfully in meetings, and to review documents used in decision-making at a relevant point in time.
PRACTICE TIP: Transparency
is a foundational value for
ethical government practices.
The Brown Act is a floor, not a
ceiling, for conduct.
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A local agency’s right to confidentially address certain negotiations, personnel matters, claims, and litigation.
The right of the press to fully understand and communicate public agency decision-making.
A detailed and comprehensive public meeting and information policy, especially if reviewed periodically, can be an important element in maintaining or improving public relations. Such a policy exceeds the absolute requirements of the law — but if the law were enough, this guide would be unnecessary. A narrow legalistic approach will not avoid or resolve potential controversies. An agency should consider going beyond the law and look at its unique circumstances to determine if there is a better way to prevent potential problems and promote public trust. At the very least, local agencies need to think about how their agendas are structured in order to make Brown Act compliance easier. They need to plan carefully to make sure public participation fits smoothly into the process.
Achieving balance
The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings. The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide. It calls for openness in local government, yet should allow government to function responsively and productively.
There must be both adequate notice of what discussion and action are to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents.
The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings.
In the end, implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process, yet not stifle government officials and impede the effective and natural operation of government.
Historical note
In late 1951, San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings. State law had long required that business be done in public, but Harris discovered secret meetings or caucuses were common. He wrote a 10-part series titled “Your Secret Government” that ran in May and June 1952.
Out of the series came a decision to push for a new state open-meeting law. Harris and Richard (Bud) Carpenter, legal counsel for the League of California Cities, drafted such a bill and Assembly Member Ralph M. Brown agreed to carry it. The Legislature passed the bill, and Governor Earl Warren signed it into law in 1953.
The Ralph M. Brown Act, known as the Brown Act, has evolved under a series of amendments and court decisions, and has been the model for other open-meeting laws, such as the Bagley-Keene Act, enacted in 1967 to cover state agencies.
Assembly Member Brown is best known for the open-meeting law that carries his name. He was elected to the Assembly in 1942 and served 19 years, including the last three years as Speaker. He then became an appellate court justice.
PRACTICE TIP: The Brown Act
should be viewed as a tool
to facilitate the business of
local government agencies.
Local policies that go beyond
the minimum requirements
of law may help instill public
confidence and avoid problems.
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Updates to this publication responding to changes in the Brown Act or new court interpretations are available at https://www.calcities.org/home/resources/open-government2. A current version of the Brown Act may be found at https://leginfor.legislature.ca.gov.
ENDNOTES
1 Cal. Gov. Code, § 54950.
2 Cal. Const., Art. 1, § 3, subd. (b)(1).
3 Cal. Gov. Code, § 54953, subd. (a).
4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the State’s Constitution adopted by Proposition 59 in 2004. California Const., Art. 1, § 3, subd. (b)(2). 5 Cal. Gov. Code, § 54952.2, subds. (b)(2) and (c)(1); Wolfe v. City of Fremont (2006) 144 Cal.App.4th 533.
6 Cal. Gov. Code, § 54953.7.
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LEGISLATIVE BODIES
What is a “legislative body” of a local agency? ................................................................ 12 What is not a “legislative body” for purposes of the Brown Act? .................................... 14 155
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CHAPTER 2: LEGISLATIVE BODIES
The Brown Act applies to the legislative bodies of local agencies. It defines “legislative body” broadly to include just about every type of decision-making body of a local agency.1 What is a “legislative body” of a local agency?
A “legislative body” includes the following:
The “governing body of a local agency” and certain of its subsidiary bodies; “or any other local body created by state or federal statute.”2 This includes city councils, boards of supervisors, school boards, and boards of trustees of special districts. A “local agency” is any city, county, city and county, school district, municipal corporation, successor agency to a redevelopment agency, district, political subdivision, or other local public agency.3 A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.4 The California Attorney General has opined that air pollution control districts and regional open space districts are also covered.5 Entities created pursuant to joint powers agreements are also local agencies within the meaning of the Brown Act.6
Newly elected members of a legislative body who have not yet assumed office must conform to the requirements of the Brown Act as if already in office.7 Thus, meetings between incumbents and newly elected members of a legislative body, such as a meeting between two outgoing members and a member-elect of a five-member body, could violate the Brown Act.
Q. On the morning following the election to a five-member legislative body of a local agency, two successful candidates, neither an incumbent, meet with an incumbent member of the legislative body for a celebratory breakfast. Does this violate the Brown Act?
A. It might, and absolutely would if the conversation turns to agency business. Even though the candidates-elect have not officially been sworn in, the Brown Act applies.
If purely a social event, there is no violation, but it would be preferable if others were invited to attend to avoid the appearance of impropriety.
Chapter 2
LEGISLATIVE BODIES
PRACTICE TIP: The prudent
presumption is that an advisory
committee or task force is
subject to the Brown Act. Even
if one clearly is not, it may want
to comply with the Brown Act.
Public meetings may reduce the
possibility of misunderstandings
and controversy.
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Appointed bodies — whether permanent or temporary, decision-making or advisory — including planning commissions, civil service commissions, and other subsidiary committees, boards, and bodies. Volunteer groups, executive search committees, task forces, and blue ribbon committees created by formal action of the governing body are legislative bodies. When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group, the resulting body may be subject to the Brown Act. In one reported case, a city council created a committee of two members of the city council and two members of the city planning commission to review qualifications of prospective planning commissioners and make recommendations to the council. The court held that their joint mission made them a legislative body subject to the Brown Act.
Had the two committees remained separate and met only to exchange information and report back to their respective boards, they would have been exempt from the Brown Act.8 Standing committees of a legislative body, irrespective of their composition, which have either (1) a continuing subject matter jurisdiction or (2) a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body.9 Even if it comprises less than a quorum of the governing body, a standing committee is subject to the Brown Act.
For example, if a governing body creates committees on budget and finance or on public safety that are not limited in duration or scope, those are standing committees subject to the Brown Act. Further, according to the California Attorney General, function over form controls. For example, a statement by the legislative body that the advisory committee “shall not exercise continuing subject matter jurisdiction” or the fact that the committee does not have a fixed meeting schedule is not determinative.10 “Formal action” by a legislative body includes authorization given to the agency’s executive officer to appoint an advisory committee pursuant to agency-adopted policy.11 A majority of the members of a legislative body may attend an open and public meeting of a standing committee of that body, provided the members who are not part of the standing committee only observe.12 For more information, see chapter 3.
The governing body of any private organization either (1) created by the legislative body in order to exercise authority that may lawfully be delegated by such body to a private corporation, limited liability company, or other entity or (2) that receives agency funding and whose governing board includes a member of the legislative body of the local agency appointed by the legislative body as a full voting member of the private entity’s governing board.13 These include some nonprofit corporations created by local agencies.14 If a local agency contracts with a private firm for a service (for example, payroll, janitorial, or food services), the private firm is not covered by the Brown Act.15 When a member of a legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body, the board will not be subject to the Brown Act. Similarly, when the legislative body appoints someone other than one of its own members to such boards, the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding.16
PRACTICE TIP: It can be difficult
to determine whether a
subcommittee of a body falls
into the category of a standing
committee or an exempt
temporary committee. Suppose a
committee is created to explore
the renewal of a franchise or a
topic of similarly limited scope
and duration. Is it an exempt
temporary committee or a
nonexempt standing committee?
The answer may depend on
factors such as how meeting
schedules are determined, the
scope of the committee’s charge,
or whether the committee exists
long enough to have “continuing
jurisdiction.”
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Q. The local chamber of commerce is funded in part by the city. The mayor sits on the chamber’s board of directors. Is the chamber board a legislative body subject to the Brown Act?
A. Maybe. If the chamber’s governing documents require the mayor to be on the board and the city council appoints the mayor to that position, the board is a legislative body. If, however, the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not.
Q. If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria, is the board of the organization a legislative body? A. Yes. But if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. Certain types of hospital operators. A lessee of a hospital (or portion of a hospital) first leased under Health and Safety Code subsection 32121(p) after Jan. 1, 1994, which exercises “material authority” delegated to it by a local agency, whether or not such lessee is organized and operated by the agency or by a delegated authority.17 What is not a “legislative body” for purposes of the Brown Act? A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose, that is not perpetual, and that will be dissolved once its specific task is completed is not subject to the Brown Act.18 Temporary committees are sometimes called ad hoc committees, a term not used in the Brown Act. Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency, such as traffic congestion.19
Groups advisory to a single decision-maker or appointed by staff are not covered. The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others. A committee advising a superintendent of schools would not be covered by the Brown Act. However, the same committee, if created by formal action of the school board, would be covered.20
Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee?
A. No, because the committee has not been established by formal action of the legislative body.
Q. During a meeting of the city council, the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance. The city manager forms the committee and appoints its members; the committee is instructed to direct its recommendations to the city manager. Does the Brown Act apply to this committee?
A. Possibly, because the direction from the city council might be regarded as a formal action of the body, notwithstanding that the city manager controls the committee. 158
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Individual decision-makers who are not elected or appointed members of a legislative body are not covered by the Brown Act. For example, a disciplinary hearing presided over by a department head or a meeting of agency department heads is not subject to the Brown Act since such assemblies are not those of a legislative body.21 Public employees, each acting individually and not engaging in collective deliberation on a specific issue, such as the drafting and review of an agreement, do not constitute a legislative body under the Brown Act, even if the drafting and review process was established by a legislative body.22
County central committees of political parties are also not Brown Act bodies.23 Legal counsel for a governing body is not a member of the governing body, therefore, the Brown Act does not apply to them. But counsel should take care not to facilitate Brown Act violations by members of the governing body.24
ENDNOTES
1 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1127. 2 Cal. Gov. Code, § 54952, subds. (a) and (b).
3 Cal. Gov. Code, § 54951; Cal. Health & Saf. Code, § 34173, subd. (g) (successor agencies to former redevelopment agencies subject to the Brown Act). But see Cal. Ed. Code § 35147, which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules.
4 Torres v. Board of Commissioners of Housing Authority of Tulare County (1979) 89 Cal.App.3d 545, 549- 550.
5 71 Ops.Cal.Atty.Gen. 96 (1988); 73 Ops.Cal.Atty.Gen. 1 (1990). 6 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.
App.4th 354, 362.
7 Cal. Gov. Code, § 54952.1.
8 Joiner v. City of Sebastopol (1981) 125 Cal.App.3d 799, 804-805. 9 Cal. Gov. Code, § 54952, subd. (b)
10 79 Ops.Cal.Atty.Gen. 69 (1996).
11 Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 793. 12 Cal. Gov. Code § 54952, subd. (c)(6).
13 Cal. Gov. Code, § 54952, subd. (c)(1). Regarding private organizations that receive local agency funding, the same rule applies to a full voting member appointed prior to February 9, 1996, who, after that date, is made a nonvoting board member by the legislative body. Cal. Gov. Code § 54952, subd. (c)(2).
14 Cal. Gov. Code, § 54952(c)(1)(A); International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 300; Epstein v. Hollywood Entertainment Dist. II Business Improvement District (2001) 87 Cal.App.4th 862, 876; see also 85 Ops.Cal.Atty.Gen. 55 (2002).
15 International Longshoremen’s and Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 300 fn. 5.
16 “The Brown Act, Open Meetings for Local Legislative Bodies,” California Attorney General’s Office (2003), p. 7.
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17 Cal. Gov. Code, § 54952, subd. (d).
18 Cal. Gov. Code, § 54952, subd. (b); see also Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Cal.4th 821, 832. 19 Taxpayers for Livable Communities v. City of Malibu (2005) 126 Cal.App.4th 1123, 1129. 20 56 Ops.Cal.Atty.Gen. 14, 16-17 (1973).
21 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870, 878-879. 22 Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1513. 23 59 Ops.Cal.Atty.Gen. 162, 164 (1976).
24 GFRCO, Inc. v. Superior Court of Riverside County (2023) 89 Cal.App.5th 1295, 1323; Stockton Newspapers, Inc. v. Redevelopment Agency of the City of Stockton (1985) 171 Cal.App.3d 95, 105 (a series of individual telephone calls between the agency attorney and the members of the body constituted a meeting).
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MEETINGS
Brown Act meetings ......................................................................................................... 18 Six exceptions to the meeting definition.......................................................................... 18 Collective briefings............................................................................................................ 21 Retreats, trainings, and workshops of legislative bodies ................................................. 21 Serial meetings ................................................................................................................. 22 Informal gatherings........................................................................................................... 24 Technological conferencing .............................................................................................. 25 Location of meetings ........................................................................................................ 26 161
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The Brown Act only applies to meetings of local legislative bodies. It defines a meeting as “any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate, or take any action on any item that is within the subject matter jurisdiction of the legislative body.”1 The term meeting is not limited to gatherings at which action is taken but includes deliberative gatherings as well. A hearing before an individual hearing officer is not a meeting under the Brown Act because it is not a hearing before a legislative body.2
Brown Act meetings
Brown Act meetings include a legislative body’s regular meetings, special meetings, emergency meetings, and adjourned meetings.
“Regular meetings” are meetings occurring at the dates, times, and location set by resolution, ordinance, or other formal action by the legislative body and are subject to 72- hour posting requirements.3
“Special meetings” are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act’s notice requirements for special meetings and are subject to 24-hour posting requirements.4 “Emergency meetings” are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.5 “Adjourned meetings” are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment, with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.6
Six exceptions to the meeting definition
The Brown Act creates six exceptions to the meeting definition:7 Individual contacts
The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on their own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff, or a colleague.
Individual contacts, however, cannot be used to do in stages what would be prohibited in one step. For example, a series of individual contacts that leads to discussion, deliberation, or action among a majority of the members of a legislative body is prohibited. Such serial meetings are discussed below.
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Conferences
The second exception allows a legislative body majority to attend a conference or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body.
Among other things, this exception permits legislative body members to attend annual association conferences of city, county, school, community college, and other local agency officials, as long as those meetings are open to the public. However, a majority of members cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within their local agency’s subject matter jurisdiction.
Community meetings
The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern. A majority cannot discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the legislative body’s subject matter jurisdiction. Under this exception, a legislative body majority may attend a local service club meeting or a local candidates’ night if the meetings are open to the public.
“I see we have four distinguished members of the city council at our meeting tonight,” said the chair of the Environmental Action Coalition. “I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?”
The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not; hence, members should exercise caution when participating in these types of events.
Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign. Three of the five agency members are up for reelection and all three participate. All of the candidates are asked their views on a controversial project scheduled for a meeting to occur just after the election. May the three incumbents answer the question?
A. Yes, because the chamber of commerce, not the city, is organizing the debate. The city should not sponsor the event or assign city staff to help organize or run the event. Also, the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates. Finally, incumbents participating in the event should take care to limit their remarks to the program set by the chamber and safeguard due process by indicating they will keep an open mind regarding specific applications that might come before the council.
Q. May the three incumbents accept an invitation from the editorial board of a local paper to all candidates to meet as a group and answer questions about and/or debate city issues?
A. No, unlike the chamber of commerce event, this would not be allowed under the Brown Act because it is not an open and publicized meeting. 163
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Other legislative bodies
The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of (1) another body of the local agency and (2) a legislative body of another local agency.8 Again, the majority cannot discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within their subject matter jurisdiction. This exception allows, for example, a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission.
Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to, however, to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation. Further, aside from the Brown Act, there may be other reasons, such as due process considerations, why the members should avoid giving public testimony, trying to influence the outcome of proceedings before a subordinate body, or discussing the merits with interested parties.
Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento. Must this activity be noticed as a meeting of the body?
A. No, because the members are attending and participating in an open meeting of another governmental body that the public may attend.
Q. The members then proceed upstairs to the office of their local assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public?
A. Yes, because the entire body may not meet behind closed doors except for proper closed sessions. The same answer applies to a private lunch or dinner with the assembly member.
Standing committees
The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body, provided that the legislative body members who are not members of the standing committee attend only as observers (meaning that they cannot speak or otherwise participate in the meeting, and they must sit where members of the public sit).9 Q. The legislative body establishes a standing committee of two of its five members that meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she?
A. She may attend, but only as an observer; she may not participate.
Q. Can the legislative body establish multiple standing committees with partially overlapping jurisdiction?
A. Yes. One result of this overlap in jurisdiction may be that three or more of the members of the legislative body ultimately end up discussing an issue as part of a standing committee meeting. This is allowed under the Brown Act provided each standing committee meeting is publicly noticed and no more than two of the five members discuss the issue at any given standing committee meeting.
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Social or ceremonial events
The final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion. Once again, a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the legislative body.
Nothing in the Brown Act prevents a majority of members from attending the same football game, party, wedding, funeral, reception, or farewell. The test is not whether a majority of a legislative body attend the function, but whether business of a specific nature within the subject matter jurisdiction of the body is discussed. As long as no such business is discussed, there is no violation of the Brown Act.
Grand Jury Testimony
In addition, members of a legislative body, either individually or collectively, may give testimony in private before a grand jury.10 This is the equivalent of a seventh exception to the Brown Act’s definition of a “meeting.”
Collective briefings
None of these exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing. Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and agenda requirements. Staff may provide written briefings (e.g., staff updates, emails from the city manager, confidential memos from the city attorney) to the full legislative body, but apart from privileged memos, the written materials may be subject to disclosure as public records as discussed in chapter 4.
Retreats, trainings, and workshops of legislative bodies Gatherings by a majority of legislative body members at the legislative body’s retreats, study sessions, trainings, or workshops are subject to the requirements of the Brown Act. This is the case whether the gathering focuses on long-range agency planning, discussion of critical local issues, satisfying state-mandated ethics training requirements, or team building and group dynamics.11
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Q. The legislative body wants to hold a team-building session to improve relations among its members. May such a session be conducted behind closed doors? A. No, this is not a proper subject for a closed session, and there is no other basis to exclude the public. Council relations are a matter of public business.
Serial meetings
One of the most frequently asked questions about the Brown Act involves serial meetings. At any one time, such meetings include only a portion of a legislative body, but eventually they comprise a majority. The Brown Act provides that “[a] majority of the members of a legislative body shall not, outside a meeting … 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.”12 The problem with serial meetings is the process, which deprives the public of an opportunity for meaningful observation of and participation in legislative body decision-making.
The serial meeting may occur by either a “daisy chain” or a “hub and spoke” sequence. In the daisy chain scenario, 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. The hub and spoke process involves at least two scenarios. In the first scenario, Member A (the hub) sequentially contacts Members B, C, D, and so on (the spokes) until a quorum has been contacted. In the second scenario, a staff member (the hub), functioning as an intermediary for the legislative body or one of its members, communicates with a majority of members (the spokes) one by one for discussion, deliberation, or a decision on a proposed action.13 Another example of a serial meeting is when a chief executive officer (the hub) briefs a majority of members (the spokes) prior to a formal meeting and, in the process, information about the members’ respective views is revealed.
Each of these scenarios violates the Brown Act.
A legislative body member has the right, if not the duty, to meet with constituents to address their concerns. That member also has the right to confer with a colleague (but not with a majority of the body, counting the member) or appropriate staff about local agency business. An employee or official of a local agency may engage in separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”14 The Brown Act is violated, however, if several one-on-one meetings or conferences lead to a discussion, deliberation, or action by a majority. In one case, a violation occurred when a quorum Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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of a city council, by a letter that had been circulated among members outside of a formal meeting, directed staff to take action in an eminent domain proceeding.15 A unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act.16 Such a memo, however, may be a public record.17 The phone call was from a lobbyist. “Say, I need your vote for that project in the south area. How about it?”
“Well, I don’t know,” replied Board Member Aletto. “That’s kind of a sticky proposition. You sure you need my vote?”
“Well, I’ve got Bradley and Cohen lined up and another vote leaning. With you, I’d be over the top.”
Moments later, the phone rings again. “Hey, I’ve been hearing some rumbles on that south area project,” said the newspaper reporter. “I’m counting noses.
How are you voting on it?”
The lobbyist and the reporter are facilitating a violation of the Brown Act. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members’ positions by asking, “You sure you need my vote?” The prudent course is to avoid such leading conversations and to caution lobbyists, staff, and news media against revealing such positions of others.
The mayor sat down across from the city manager. “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items. Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.”
Agency employees or officials may have separate conversations or communications outside of an open and noticed meeting “with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body.”18 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion, deliberation, or action taken among the majority of the legislative body. “Thanks for the information,” said Council Member Kim. “These zoning changes can be tricky, and now I think I’m better equipped to make the right decision.” “Glad to be of assistance,” replied the planning director. “I’m sure Council Member Jones is OK with these changes. How are you leaning?” “Well,” said Council Member Kim, “I’m leaning toward approval. I know that two of my colleagues definitely favor approval.”
PRACTICE TIP: When briefing
legislative body members,
staff must exercise care not to
disclose other members’ views
and positions.
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The planning director should not disclose Jones’ prospective vote, and Kim should not disclose the prospective votes of two colleagues. Under these facts, there likely has been a serial meeting in violation of the Brown Act.
Q. Various social media platforms and websites include forums where agency employees and officials can discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act?
A. Yes, because it is a technological device that may serve to allow for a majority of members to discuss, deliberate, or take action on matters of agency business.
Q. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting. Is this an illegal serial meeting? A. No, the Brown Act expressly allows a majority of a body to call a special meeting, though the members should avoid discussing the merits of what is to be taken up at the meeting.
Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the “reply all” option that may inadvertently result in a Brown Act violation. Staff should consider using the “bcc” (blind carbon copy) option when addressing an email to multiple members of the legislative body and remind recipients not to “reply all.” Social media should also be used with care. A member of the legislative body cannot respond directly to any communication on an internet-based social media platform that is made, posted, or shared by any other member of the legislative body. This applies to matters within the subject matter jurisdiction of the legislative body. For example, if one member of a legislative body “likes” a social media post of one other member of the same body, that could violate the Brown Act, depending on the nature of the post.19
Finally, electronic communications (such as text messaging) among members of a legislative body during a public meeting should be discouraged. If such communications are sent to a majority of members of the body, either directly or through an intermediary, on a matter on the meeting agenda, that could violate the Brown Act. Electronic communications sent to less than a majority of members of the body during a quasi-judicial proceeding could potentially raise due process concerns, even if not per se prohibited by the Brown Act. Additionally, some legislative bodies have rules governing electronic communications during meetings of the legislative body and how their members should proceed if they receive a communication on an agenda item that is not part of the record or not part of an agenda packet.
Informal gatherings
Members of legislative bodies are often tempted to mix business with pleasure — for example, by holding a post-meeting gathering. Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act.20 A gathering at which a quorum of the legislative body discusses matters within their jurisdiction violates the Brown Act even if that gathering occurs in a public place. The Brown Act is not satisfied by public visibility alone. It also requires public notice and an opportunity to attend, hear, and participate.
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Thursday at 11:30 a.m., as they did every week, the board of directors of the Dry Gulch Irrigation District trooped into Pop’s Donut Shoppe for an hour of talk and fellowship. They sat at the corner window, fronting on Main and Broadway, to show they had nothing to hide. Whenever he could, the managing editor of the weekly newspaper down the street hurried over to join the board.
A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues — which might be difficult. This kind of situation should be avoided. The public is unlikely to believe the board members could meet regularly without discussing public business. A newspaper executive’s presence does not lessen the potential for a violation of the Brown Act.
Technological conferencing
Except for certain non-substantive purposes, such as scheduling a special meeting, a conference call including a majority of the members of a legislative body is an unlawful meeting. But in an effort to keep up with modern technologies, the Brown Act specifically allows a legislative body to use any type of teleconferencing to meet, receive public comment and testimony, deliberate, or conduct a closed session.21 While the Brown Act contains specific requirements for conducting a teleconference, the decision to use teleconferencing is entirely discretionary with the body. No person has a right under the Brown Act to have a meeting by teleconference.
Teleconference is defined as “a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.”22 In addition to the specific requirements relating to teleconferencing, the meeting must comply with all provisions of the Brown Act otherwise applicable.
The Brown Act contains the following teleconferencing requirements:23 Teleconferencing may be used for all purposes during any meeting. At least a quorum of the legislative body must participate from locations within the local agency’s jurisdiction.
Additional teleconference locations may be made available for the public. Each teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room number, as may be applicable. Agendas must be posted at each teleconference location, even if a hotel room or a residence. Each teleconference location, including a hotel room or residence, must be accessible to the public and have technology, such as a speakerphone, to enable the public to participate The agenda must provide the opportunity for the public to address the legislative body directly at each teleconference location.
All votes must be by roll call.
Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C., to New York. May she? A. She may not participate or vote because she is not in an open, noticed, and posted teleconference location.
Until Jan. 1, 2026, teleconferencing may also be used on a limited basis where a member indicates their need to participate remotely for “just cause” (e.g., childcare or a contagious illness) or due to “emergency circumstances” (e.g., a physical or family medical emergency).
This teleconferencing option has extremely detailed requirements, and careful review is needed. If the City experiences a technical issue that prevents members of the public from viewing the meeting and/or offering comments virtually, then no further action can be taken until the technical issue is resolved.24
The use of teleconferencing to conduct a legislative body meeting presents a variety of issues beyond the scope of this guide to discuss in detail.
Therefore, before teleconferencing a meeting, legal counsel for the local agency should be consulted.
Location of meetings
The Brown Act generally requires all regular and special meetings of a legislative body, including retreats and workshops, to be held within the boundaries of the territory over which the local agency exercises jurisdiction.25
An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following:26
Comply with state or federal law or a court order, or attend a judicial conference or administrative proceeding in which the local agency is a party. Inspect real or personal property that cannot be conveniently brought into the local agency’s territory, provided the meeting is limited to items relating to that real or personal property.
Q. The agency is considering approving a major retail mall. The developer has built other similar malls and invites the entire legislative body to visit a mall outside the jurisdiction. May the entire body go?
A. Yes, the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason. The field trip must be treated as a meeting and the public must be allowed to attend. Participate in multiagency meetings or discussions; however, such meetings must be held within the boundaries of one of the participating agencies, and all of those agencies must give proper notice.
Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries, or meet at its principal office if that office is located outside the territory over which the agency has jurisdiction.
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Meet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction. Meet in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility.
Visit the office of its legal counsel for a closed session on pending litigation when to do so would reduce legal fees or costs.27
In addition, the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques, interview candidates for school district superintendent, or interview a potential employee from another district.28 A school board may also interview members of the public residing in another district if the board is considering employing that district’s superintendent.
Similarly, meetings of a joint powers authority can occur within the territory of at least one of its member agencies, and a joint powers authority with members throughout the state may meet anywhere in the state.29
Finally, if a fire, flood, earthquake, or other emergency makes the usual meeting place unsafe, the presiding officer can designate another meeting place for the duration of the emergency. News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.30 State law has also allowed for virtual meetings under certain emergency situations.31
ENDNOTES
1 Cal. Gov. Code, § 54952.2, subd. (a).
2 Wilson v. San Francisco Municipal Railway (1973) 29 Cal.App.3d 870. 3 Cal. Gov. Code, § 54954, subd. (a).
4 Cal. Gov. Code, § 54956.
5 Cal. Gov. Code, § 54956.5.
6 Cal. Gov. Code, § 54955.
7 Cal. Gov. Code, § 54952.2, subd. (c).
8 Cal. Gov. Code, § 54952.2, subd. (c)(4).
9 Cal. Gov. Code, § 54952.2, subd. (c)(6). See 81 Ops.Cal.Atty.Gen. 156 (1998). 10 Cal. Gov. Code, § 54953.1.
11 “The Brown Act,” California Attorney General (2003), p. 10. 12 Cal. Gov. Code, § 54952.2, subd. (b)(1).
13 Stockton Newspapers, Inc. v. Redevelopment Agency of the City of Stockton (1985) 171 Cal.App.3d 95. 14 Cal. Gov. Code, § 54952.2, subd. (b)(2).
15 Common Cause v. Stirling (1983) 147 Cal.App.3d 518.
16 Roberts v. City of Palmdale (1993) 5 Cal.4th 363.
17 Cal. Gov. Code, § 54957.5, subd. (a).
18 Cal. Gov. Code, § 54952.2, subd. (b)(2).
19 Cal. Gov. Code, § 54952.2, subd. (b)(3).
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20 Cal. Gov. Code, § 54952.2; 43 Ops.Cal.Atty.Gen. 36 (1964). 21 Cal. Gov. Code, § 54953, subd. (b)(1).
22 Cal. Gov. Code, § 54953, subd. (b)(4).
23 Cal. Gov. Code, § 54953. Until Jan. 1, 2024, the legislative body could use teleconferencing “during a proclaimed state of emergency” by the Governor in specified circumstances, and teleconference locations were exempt from certain requirements, such as identification in and posting of the agenda. 24 Cal Gov. Code, § 54953, subd. (f) (which will become Govt. §54953(e) as of Jan. 1, 2024). 25 Cal. Gov. Code, § 54954, subd. (b).
26 Cal. Gov. Code, § 54954, subd. (b)(1)-(7).
27 94 Ops.Cal.Atty.Gen. 15 (2011).
28 Cal. Gov. Code, § 54954, subd. (c).
29 Cal. Gov. Code, § 54954, subd. (d).
30 Cal. Gov. Code, § 54954, subd. (e).
31 Cal. Gov. Code, § 54953, subd. (e) (exp. January 1, 2026). 172
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AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Agendas for regular meetings .......................................................................................... 30 Mailed agenda upon written request ............................................................................... 31 Notice requirements for special meetings ....................................................................... 32 Notices and agendas for adjourned and continued meetings and hearings ................... 32 Notice requirements for emergency meetings ................................................................ 33 Notice of compensation for simultaneous or serial meetings ......................................... 33 Educational agency meetings........................................................................................... 33 Notice requirements for tax or assessment meetings and hearings............................... 33 Non-agenda items............................................................................................................. 34 Responding to the public .................................................................................................. 35 The right to attend and observe meetings ....................................................................... 36 Records and recordings .................................................................................................... 37 The public’s right to speak during a meeting ................................................................... 38 173
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Chapter 4
AGENDAS, NOTICES, AND PUBLIC PARTICIPATION
Effective notice is essential for an open and public meeting.
Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting.
Agendas for regular meetings
Every regular meeting of a legislative body of a local agency — including advisory committees, commissions, or boards, as well as standing committees of legislative bodies — must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed.
The agenda must be posted at least 72 hours before the regular meeting in a location “freely accessible to members of the public.”1 The courts have not definitively interpreted the “freely accessible” requirement. The California Attorney General has interpreted this provision to require posting in a location open and accessible to the public 24 hours a day during the 72-hour period, but any of the 72 hours may fall on a weekend.2 This provision may be satisfied by posting on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.3 While posting an agenda on an agency’s internet website will not, by itself, satisfy the “freely accessible” requirement since there is no universal access to the internet, an agency has a supplemental obligation to post the agenda on its website if (1) the local agency has a website and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body or (b) has members that are compensated, with one or more members that are also members of a governing body.4
Q. May the meeting of a governing body go forward if its agenda was either inadvertently not posted on the city’s website or if the website was not operational during part or all of the 72-hour period preceding the meeting?
A. At a minimum, the Brown Act calls for “substantial compliance” with all agenda posting requirements, including posting to the agency website.5 Should website technical difficulties arise, seek a legal opinion from your agency attorney. The California Attorney General has opined that technical difficulties that cause the website agenda to become inaccessible for a portion of the 72 hours preceding a meeting do not automatically or inevitably lead to a Brown Act violation, provided the agency can demonstrate substantial compliance.6 This inquiry requires a fact-specific examination of whether the agency or its legislative body made “reasonably effective efforts to notify interested persons of a public meeting” through online posting and other available means.7 The Attorney General’s opinion suggests that this examination would include an evaluation of how long a technical problem persisted, the efforts made to correct the problem or otherwise ensure that the public was informed, and the actual effect the problem had on public 174
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awareness, among other factors.8 For these reasons, obvious website technical difficulties might not require cancellation of a meeting, provided that the agency meets all other Brown Act posting requirements and the agenda is available on the website once the technical difficulties are resolved.
The agenda must state the meeting time and place and must contain “a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.”9 For a discussion of descriptions for open and closed-session agenda items, see chapter 5. Special care should be made to describe on the agenda each distinct action to be taken by the legislative body, while an overbroad description of a “project” must be avoided if the “project” is actually a set of distinct actions, in which case each action must be listed separately on the agenda.10 For example, the listing of an "initiative measure” alone on an agenda was found insufficient where the agency was also deciding whether to accept a gift from the measure proponent to pay for the election.11 Q. The agenda for a regular meeting contains the following items of business:
• Consideration of a report regarding traffic on Eighth Street. • Consideration of a contract with ABC Consulting.
Are these descriptions adequate?
A. If the first is, it is barely adequate. A better description would provide the reader with some idea of what the report is about and what is being recommended. The second is not adequate. A better description might read, “Consideration of a contract with ABC Consulting in the amount of $50,000 for traffic engineering services regarding traffic on Eighth Street.”
Q. The agenda includes an item entitled City Manager’s Report, during which time the city manager provides a brief report on notable topics of interest, none of which is listed on the agenda.
Is this permissible?
A. Yes, as long as it does not result in extended discussion or action by the body.
A brief general description may not be sufficient for closed-session agenda items. The Brown Act provides safe harbor language for the various types of permissible closed sessions.12 Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges.
Mailed agenda upon written request
The legislative body, or its designee, must mail a copy of the agenda or, if requested, the entire agenda packet, to any person who has filed a written request for such materials. These copies shall be mailed at the time the agenda is posted or upon distribution to all, or a majority of all, of the members of the legislative body, whichever occurs first. If the local agency has an internet website, this requirement can be satisfied by emailing a copy of, or website link to, the agenda or agenda packet if the person making the request asks for it to be emailed. Further, if requested, these materials must be made available in appropriate alternative formats to persons with disabilities.
PRACTICE TIP: Putting together a
meeting agenda requires careful
thought.
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A request for notice is valid for one calendar year and renewal requests must be filed following January 1 of each year. The legislative body may establish a fee to recover the cost of providing the service. Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting.13
Notice requirements for special meetings
There is no express agenda requirement for special meetings, but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed. Written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation and each radio and television station that has requested such notice in writing. This notice must be delivered at least 24 hours before the time of the meeting by personal delivery or any other means that ensures receipt.
The notice must state the time and place of the meeting as well as all business to be transacted or discussed. It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda, that is, with a brief general description. Some items must appear on a regular, not special, meeting agenda (e.g., general law city adoption of an ordinance or consideration of local agency executive compensation).14 As noted above, closed session items should be described in accordance with the Brown Act’s safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.
The special meeting notice must also be posted at least 24 hours prior to the special meeting using the same methods as posting an agenda for a regular meeting: at a site that is freely accessible to the public, and on the agency’s website if (1) the local agency has a website and (2) the legislative body whose meeting is the subject of the agenda is either (a) a governing body or (b) has members that are compensated, with one or more members that are also members of a governing body.15
Notices and agendas for adjourned and continued meetings and hearings A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.16 If no time is stated, the meeting is continued to the hour for regular meetings. Whoever is present (even if they are less than a quorum) may so adjourn a meeting; if no member of the legislative body is present, the clerk or secretary may adjourn the meeting.
If a meeting is adjourned for less than five calendar days, no new agenda need be posted so long as a new item of business is not introduced.17 A copy of the order of adjournment must be posted within 24 hours after the adjournment, at or near the door of the place where the meeting was held.
A hearing can be continued to a subsequent meeting. The process is the same as for continuing adjourned meetings, except that if the hearing is continued to a time less than 24 hours away, a copy of the order or notice of continuance must be posted immediately following the meeting.18 176
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Notice requirements for emergency meetings
The special meeting notice provisions apply to emergency meetings, except for the 24-hour notice.19 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting, and all telephone numbers provided in that written request must be tried. If telephones are not working, the notice requirements are deemed waived. However, the news media must be notified as soon as possible of the meeting and any action taken.
News media may make a practice of having written requests on file for notification of special or emergency meetings. Absent such a request, a local agency has no legal obligation to notify news media of special or emergency meetings — although notification may be advisable in any event to avoid controversy.
Notice of compensation for simultaneous or serial meetings A legislative body that has convened a meeting and whose membership constitutes a quorum of another legislative body, may convene a simultaneous or serial meeting of the other legislative body only after a clerk or member of the convened legislative body orally announces (1) the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the meeting of the other legislative body; and (2) that the compensation or stipend is provided as a result of convening the meeting of that body.20 No oral disclosure of the amount of the compensation is required if the entire amount of such compensation is prescribed by statute and no additional compensation has been authorized by the local agency. Further, no disclosure is required with respect to reimbursements for actual and necessary expenses incurred in the performance of the member’s official duties, such as for travel, meals, and lodging.
Educational agency meetings
The Education Code contains some special agenda and special meeting provisions.21 However, they are generally consistent with the Brown Act. An item is probably void if not posted.22 A school district board must also adopt regulations to make sure the public can place matters affecting the district’s business on meeting agendas and can address the board on those items.23
Notice requirements for tax or assessment meetings and hearings The Brown Act prescribes specific procedures for adoption by a city, county, special district, or joint powers authority of any new or increased tax or assessment imposed on businesses.24 Although written broadly, these Brown Act provisions do not apply to new or increased real property taxes or assessments, as those are governed by the California Constitution, Article XIIIC or XIIID, enacted by Proposition 218. At least one public meeting must be held to allow public testimony on the tax or assessment. In addition, there must also be at least 45 days notice of a public hearing at which the legislative body proposes to enact or increase the tax or assessment. Notice of the public meeting and public hearing must be provided at the same time and in the same document. The public notice relating to general taxes must be provided by newspaper publication.
The public notice relating to new or increased business assessments must be provided through a 177
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mailing to all business owners proposed to be subject to the new or increased assessment. The agency may recover the reasonable costs of the public meetings, hearings, and notice.
The Brown Act exempts certain fees, standby or availability charges, recurring assessments, and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.25 As a practical matter, the Constitution’s notice requirements have preempted this section of the Brown Act.
Non-agenda items
The Brown Act generally prohibits any action or discussion of items not on the posted agenda.
However, there are three specific situations in which a legislative body can act on an item not on the agenda:26
When a majority decides there is an “emergency situation” (as defined for emergency meetings).
When two-thirds of the members present (or all members if less than two-thirds are present) determine there is a need for immediate action, and the need to take action “came to the attention of the local agency subsequent to the agenda being posted.” This exception requires a degree of urgency. Further, an item cannot be considered under this provision if the legislative body or the staff knew about the need to take immediate action before the agenda was posted. A new need does not arise because staff forgot to put an item on the agenda or because an applicant missed a deadline. When an item appeared on the agenda of, and was continued from, a meeting held not more than five days earlier.
The exceptions are narrow, as indicated by this list. The first two require a specific determination by the legislative body. That determination can be challenged in court and, if unsubstantiated, can lead to invalidation of an action.
“I’d like a two-thirds vote of the board so we can go ahead and authorize commencement of phase two of the East Area Project,” said Chair Lopez. “It’s not on the agenda. But we learned two days ago that we finished phase one ahead of schedule — believe it or not — and I’d like to keep it that way. Do I hear a motion?”
The desire to stay ahead of schedule generally would not satisfy “a need for immediate action.” Too casual an action could invite a court challenge by a disgruntled resident.
The prudent course is to place an item on the agenda for the next meeting and not risk invalidation.
“We learned this morning of an opportunity for a state grant,” said the chief engineer at the regular board meeting, “but our application has to be submitted in two days. We’d like the board to give us the go-ahead tonight, even though it’s not on the agenda.”
A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process:
PRACTICE TIP: Subject to very
limited exceptions, the Brown
Act prohibits any action or
discussion of an item not on the
posted agenda.
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First, make two determinations: (1) that there is an immediate need to take action
and (2) that the need arose after the posting of the agenda. The matter is then
placed on the agenda.
Second, discuss and act on the added agenda item.
Responding to the public
The public can talk about anything within the jurisdiction of the legislative body, but the legislative body generally cannot act on or discuss an item not on the agenda. What happens when a member of the public raises a subject not on the agenda?
While the Brown Act does not allow discussion or action on items not on the agenda, it does allow members of the legislative body, or its staff, to “briefly respond” to comments or questions from members of the public, provide a reference to staff or other resources for factual information, or direct staff to place the issue on a future agenda. In addition, even without a comment from the public, a legislative body member or a staff member may ask for information, request a report back, request to place a matter on the agenda for a subsequent meeting (subject to the body’s rules or procedures), ask a question for clarification, make a brief announcement, or briefly report on their own activities.27 However, caution should be used to avoid any discussion or action on such items.
Council Member Jefferson: I would like staff to respond to Resident Joe’s complaints during public comment about the repaving project on Elm Street.
Are there problems with this project?
City Manager Frank: The public works director has prepared a 45-minute PowerPoint presentation for you on the status of this project and will give it right now.
Council Member Brown: Take all the time you need; we need to get to the bottom of this. Our residents are unhappy.
It is clear from this dialogue that the Elm Street project was not on the council’s agenda but was raised during the public comment period for items not on the agenda. Council Member Jefferson properly asked staff to respond; the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted, the city manager should have stated that it would be placed on the agenda for the next meeting. Otherwise, both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda. 179
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The right to attend and observe meetings
A number of Brown Act provisions protect the public’s right to attend, observe, and participate in meetings.
Members of the public cannot be required to register their names, provide other information, complete a questionnaire, or otherwise “fulfill any condition precedent” to attending a meeting.
Any attendance list, questionnaire, or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may attend whether or not they fill it out.28 No meeting can be held in a facility that prohibits attendance based on race, religion, color, national origin, ethnic group identification, age, sex, sexual orientation, or disability, or that is inaccessible to the disabled. Nor can a meeting be held where the public must make a payment or purchase in order to be present.29 This does not mean, however, that the public is entitled to free entry to a conference attended by a majority of the legislative body.30 While a legislative body may use teleconferencing in connection with a meeting, the public must be given notice of and access to the teleconference location. Members of the public must be able to address the legislative body from the teleconference location.31 Action by secret ballot, whether preliminary or final, is flatly prohibited.32 All actions taken by the legislative body in open session, and the vote of each member thereon, must be disclosed to the public at the time the action is taken.33 Q. The agenda calls for election of the legislative body’s officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk, who would announce the results. Is this voting process permissible? A. No. The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward — or even counterproductive — does not justify a secret ballot.
The legislative body may remove persons from a meeting who willfully interrupt or disrupt proceedings.34 Ejection is justified only when audience members actually disrupt the proceedings,35 or, alternatively, if the presiding member of the legislative body warns a person that their behavior is disruptive and that continued disruption may result in their removal (but no prior warning is required if there is a use of force or true threat of force).36 If order cannot be restored after ejecting disruptive persons, the meeting room may be cleared. Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting. The legislative body may establish a procedure to readmit an individual or individuals not responsible for the disturbance.37
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Records and recordings
The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting. Except for privileged documents, those materials are public records and must be made available upon request without delay.38 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.39 Q. In connection with an upcoming hearing on a discretionary use permit, counsel for the legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? A. No. The memorandum is a privileged attorney-client communication.
Q. In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public?
A. Yes. The memorandum has been distributed to the majority of the legislative body, relates to the subject matter of a meeting, and is not a privileged communication.
A legislative body may discuss or act on some matters without considering written materials. But if writings are distributed to a majority of a legislative body in connection with an agenda item, they must also be available to the public. A nonexempt or otherwise non-privileged writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose, and the agendas for all meetings of the legislative body must include the address of this office or location.40 The location designated for public inspection must be open to the public, not a locked or closed office. Alternatively, the documents can be posted on the city's website for public review if statutory requirements are met.41
A writing distributed during a meeting must be made public:
At the meeting if prepared by the local agency or a member of its legislative body. After the meeting if prepared by some other person.42 This requirement does not prevent assessing a fee or deposit for providing a copy of a public record pursuant to the California Public Records Act except where required to accommodate persons with disabilities.43
Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the California Public Records Act; however, it may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency.44 The agency may impose its ordinary charge for copies that is consistent with the California Public Records Act.45
In addition, the public is specifically allowed to use audio or videotape recorders or still or motion picture cameras at a meeting to record meetings of legislative bodies, absent a reasonable finding by the body that noise, illumination, or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.46
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Similarly, a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise, illumination, or obstruction of view would persistently disrupt the proceedings.47
The public’s right to speak during a meeting
Every agenda for a regular meeting must allow members of the public to speak on any item of interest, as long as the item is within the subject matter jurisdiction of the legislative body. Further, the public must be allowed to speak on a specific item of business before or during the legislative body’s consideration of it.48
Q. Must the legislative body allow members of the public to show videos or make a PowerPoint presentation during the public comment part of the agenda, as long as the subject matter is relevant to the agency and is within the established time limit? A. Probably, although the agency is under no obligation to provide equipment.
Moreover, the Brown Act, as well as case law, prevents legislative bodies from prohibiting public criticism of policies, procedures, programs, or services of the agency or the acts or omissions of the legislative body itself.49 However, this prohibition does not provide immunity for defamatory statements.50
Q. May the presiding officer prohibit a member of the audience from publicly criticizing an agency employee by name during public comments?
A. No, as long as the criticism pertains to job performance.
Q. During the public comment period of a regular meeting of the legislative body, a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech?
A. There is no case law on this subject. Some would argue that purely campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a). Others take the view that the speech must be allowed under paragraph (c) of that section where relevant to the governing of the agency and an implicit criticism of the incumbents’ performance of city business.
The legislative body may adopt reasonable regulations, including a limit on the total time permitted for public comment and a limit on the time permitted per speaker.51 Such regulations should be enforced fairly and without regard to speakers’ viewpoints. The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary. For example, the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matter.52
The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a regular (but not special) public meeting if all interested members of the public had the opportunity to PRACTICE TIP: Public speakers
cannot be compelled to give
their name or address as a
condition of speaking. The clerk
or presiding officer may request
speakers to complete a speaker
card or identify themselves for
the record but must respect a
speaker’s desire for anonymity.
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speak on the item before or during its consideration, and if the item has not been substantially changed.53
Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body.54
ENDNOTES
1 Cal. Gov. Code, § 54954.2, subd. (a)(1).
2 78 Ops.Cal.Atty.Gen. 327 (1995).
3 88 Ops.Cal.Atty.Gen. 218 (2005).
4 Cal. Gov. Code, §§ 54954.2, subd. (a)(1) and 54954.2, subd. (d). 5 Cal. Gov. Code, § 54960.1, subd. (d)(1).
6 99 Ops.Cal.Atty.Gen. 11 (2016).
7 North Pacifica LLC v. California Coastal Commission (2008) 166 Cal.App.4th 1416, 1432.
8 99 Ops.Cal.Atty.Gen. 11 (2016).
9 Cal. Gov. Code, § 54954.2, subd. (a)(1).
10 San Joaquin Raptor Rescue v. County of Merced (2013) 216 Cal.App.4th 1167 (legislative body’s approval of California Environmental Quality Act [CEQA] action [mitigated negative declaration] without specifically listing it on the agenda violates the Brown Act, even if the agenda generally describes the development project that is the subject of the CEQA analysis). See also GI Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814 (depublished) (Brown Act requires CEQA finding of exemption to be listed on agenda items that are projects under CEQA). 11 Hernandez v. Town of Apple Valley (2017) 7 Cal.App.5th 194. 12 Cal. Gov. Code, § 54954.5.
13 Cal. Gov. Code, § 54954.1.
14 Cal. Gov. Code, §§ 36934; 54956, subd. (b).
15 Cal. Gov. Code, § 54956, subds. (a) and (c).
16 Cal. Gov. Code, § 54955.
17 Cal. Gov. Code, § 54954.2, subd. (b)(3).
18 Cal. Gov. Code, § 54955.1.
19 Cal. Gov. Code, § 54956.5.
20 Cal. Gov. Code, § 54952.3.
21 Cal. Edu. Code, §§ 35144, 35145, and 72129.
22 Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196. 23 Cal. Edu. Code, § 35145.5
24 Cal. Edu. Code, § 54954.6
25 See Cal. Const. Art. XIIIC, XIIID; Cal. Gov. Code, § 54954.6, subd. (h). 26 Cal. Gov. Code, § 54954.2, subd. (b).
27 Cal. Gov. Code, § 54954.2, subd. (a)(2); Cruz v. City of Culver City (2016) 2 Cal.App.5th 239 (sixminute colloquy on non-agenda item with staff answering questions and advising that matter could be placed on future agenda fell within exceptions to discussing or acting upon non-agenda items). 183
40 OPEN & PUBLIC VI: A GUIDE TO THE RALPH M. BROWN ACT
28 Cal. Gov. Code, § 54953.3.
29 Cal. Gov. Code, § 54961, subd. (a); Cal. Gov. Code, § 11135, subd. (a). 30 Cal. Gov. Code, § 54952.2, subd. (c)(2).
31 Cal. Gov. Code, § 54953, subd. (b).
32 Cal. Gov. Code, § 54953, subd. (c).
33 Cal. Gov. Code, § 54953, subd. (c)(2).
34 Cal. Gov. Code, §§ 54957.9, 54957.95.
35 Norse v. City of Santa Cruz (9th Cir. 2010) 629 F.3d 966 (silent and momentary Nazi salute directed toward mayor is not a disruption); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800 (city council may not prohibit “insolent” remarks by members of the public absent actual disruption); but see Kirkland v. Luken (S.D. Ohio 2008) 536 F.Supp.2d 857 (finding no First Amendment violation by mayor for turning off microphone and removing speaker who used foul and inflammatory language that was deemed as "likely to incite the members of the audience during the meeting, cause disorder, and disrupt the meeting”).
36 Cal. Gov. Code, § 54957.95.
37 Cal. Gov. Code, § 54957.9.
38 Cal. Gov. Code, § 54957.5.
39 Cal. Gov. Code, § 54957.5, subd. (d).
40 Cal. Gov. Code, § 54957.5(b); see also Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1. 41 Cal. Gov. Code § 54957.5.
42 Cal. Gov. Code, § 54957.5, subd. (c).
43 Cal. Gov. Code, § 54957.5, subd. (d).
44 Cal. Gov. Code, § 54953.5, subd. (b).
45 Cal. Gov. Code, § 54957.5, subd. (d).
46 Cal. Gov. Code, § 54953.5, subd. (a).
47 Cal. Gov. Code, § 54953.6.
48 Cal. Gov. Code, § 54954.3, subd. (a).
49 Cal. Gov. Code, § 54954.3, subd. (c); Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3d 800. 50 Cal. Gov. Code, § 54954.3, subd. (c).
51 Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150 (public comment time limit of three minutes for each speaker did not violate First Amendment).
52 Cal. Gov. Code, § 54954.3. subd. (b); Chaffee v. San Francisco Public Library Commission (2005) 134 Cal.App.4th 109; 75 Ops.Cal.Atty.Gen. 89 (1992).
53 Cal. Gov. Code, § 54954.3, subd. (a); Preven v. City of Los Angeles (2019) 32 Cal.App.5th 925. 54 Cal. Gov. Code, § 54954.3, subd. (a).
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CLOSED SESSIONS
Agendas and reports......................................................................................................... 42 Litigation............................................................................................................................ 43 Real estate negotiations ................................................................................................... 45 Public employment........................................................................................................... 46 Labor negotiations ............................................................................................................ 47 Labor negotiations — school and community college districts ....................................... 48 Other Education Code exceptions.................................................................................... 48 Joint powers authorities ................................................................................................... 48 License applicants with criminal records ......................................................................... 49 Public security................................................................................................................... 49 Multijurisdictional law enforcement agency .................................................................... 49 Hospital peer review and trade secrets ........................................................................... 49 Other legislative bases for closed session ....................................................................... 50 Who may attend closed sessions ..................................................................................... 50 The confidentiality of closed session discussions............................................................ 51 185
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CHAPTER 5: CLOSED SESSIONS
A closed session is a meeting of a legislative body conducted in private without the attendance of the public or press. A legislative body is authorized to meet in closed session only to the extent expressly authorized by the Brown Act.1
As summarized in chapter 1 of this guide, it is clear that the Brown Act must be interpreted liberally in favor of open meetings, and exceptions that limit public access (including the exceptions for closed session meetings) must be narrowly construed.2 The most common purposes of the closed
session provisions in the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city’s position in litigation or compromising the privacy interests of employees).
Closed sessions should be conducted keeping those narrow purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be discussed in public. However, there is no prohibition in putting overlapping exceptions on an agenda in order to provide an opportunity for more robust closed session discussions. As an example, a city council cannot give direction to the city manager about a property negotiation during a performance evaluation exception. However, if both real property negotiation and performance evaluation exceptions are on the agenda, those discussions might be conducted.
Similarly, a board of police commissioners cannot meet in closed session to provide general policy guidance to a police chief, even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.3
In this chapter, the grounds for convening a closed session are called “exceptions” because they are exceptions to the general rule that meetings must be conducted openly. In some circumstances, none of the closed session exceptions applies to an issue or information the legislative body wishes to discuss privately. In these cases, it is not proper to convene a closed session, even to protect confidential information. For example, although the Brown Act does authorize closed sessions related to specified types of contracts (e.g., specified provisions of real property agreements, employee labor agreements, and litigation settlement agreements),4 the Brown Act does not authorize closed sessions for other contract negotiations.
Agendas and reports
Closed session items must be briefly described on the posted agenda, and the description must state the specific statutory exemption.5 An item that appears on the open meeting portion of the agenda may not be taken into closed session until it has been properly put on the agenda as a Chapter 5
CLOSED SESSIONS
PRACTICE TIP: Some problems
over closed sessions arise
because secrecy itself breeds
distrust. The Brown Act does
not require closed sessions and
legislative bodies may do well
to resist the tendency to call a
closed session simply because
it may be permitted. A better
practice is to go into closed
session only when necessary.
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closed session item or unless it is properly added as a closed-session item by a two-thirds vote of the body after making the appropriate urgency findings.6 The Brown Act supplies a series of fill-in-the-blank sample agenda descriptions for various types of authorized closed sessions that provide a “safe harbor” from legal attacks. These sample agenda descriptions cover license and permit determinations, real property negotiations, existing or anticipated litigation, liability claims, threats to security, public employee appointments, evaluations and discipline, labor negotiations, multijurisdictional law enforcement cases, hospital boards of directors, medical quality assurance committees, joint powers agencies, and audits by the California State Auditor’s Office.7
If the legislative body intends to convene in closed session, it must include the section of the Brown Act authorizing the closed session in advance on the agenda, and it must make a public announcement prior to the closed session discussion. In most cases, the announcement may simply be a reference to the agenda item.8 The legislative body must take public comment on the closed session item before convening in a closed session.
Following a closed session, the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present. The timing and content of the report vary according to the reason for the closed session and the action taken.9 The announcements may be made at the site of the closed session, as long as the public is allowed to be present to hear them.
If there is a standing or written request for documentation, any copies of contracts, settlement agreements, or other documents finally approved or adopted in closed session must be provided to the requestor(s) after the closed session if final approval of such documents does not rest with any other party to the contract or settlement. If substantive amendments to a contract or settlement agreement approved by all parties requires retyping, such documents may be held until retyping is completed during normal business hours, but the substance of the changes must be summarized for any person inquiring about them.10
The Brown Act does not require minutes, including minutes of closed sessions. However, a legislative body may adopt an ordinance or resolution to authorize a confidential “minute book” be kept to record actions taken at closed sessions.11 If one is kept, it must be made available to members of the legislative body, provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest.12 A court may order the disclosure of minute books for the court’s review if a lawsuit makes sufficient claims of an open meeting violation.
Litigation
The Brown Act expressly authorizes closed sessions to discuss what is considered pending litigation.13 The rules that apply to holding a litigation closed session involve complex, technical definitions and procedures. Essentially, a closed session can be held by the body to confer with, or receive advice from, its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is, or could become, a party.14 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body’s conferring with its own legal counsel and required support staff.15 For example, it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body, a representative of an adverse party, and a mediator.16 PRACTICE TIP: Pay close
attention to closed session
agenda descriptions. Using
the wrong label can lead
to invalidation of an action
taken in closed session if not
substantially compliant.
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The California Attorney General has opined that if the agency’s attorney is not a participant, a litigation closed session cannot be held.17 In any event, local agency officials should always consult the agency’s attorney before placing this type of closed session on the agenda in order to be certain that it is being done properly.
Before holding a closed session under the pending litigation exception, the legislative body must publicly state the basis for the closed session by identifying one of the following three types of matters: existing litigation, anticipated exposure to litigation, or anticipated initiation of litigation.18 Existing litigation
Q. May the legislative body agree to settle a lawsuit in a properly noticed closed session without placing the settlement agreement on an open session agenda for public approval? A. Yes, but the settlement agreement is a public document and must be disclosed on request. Furthermore, a settlement agreement cannot commit the agency to matters that are required to have public hearings.19
Existing litigation includes any adjudicatory proceedings before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party. The legislative body may meet under these circumstances to receive updates on the case from attorneys, participate in developing strategy as the case develops, or consider alternatives for resolution of the case. Generally, an agreement to settle litigation may be approved in closed session. However, an agreement to settle litigation cannot be approved in closed session if it commits the city to take an action that is required to have a public hearing.20
Anticipated exposure to litigation against the
local agency
Closed sessions are authorized for legal counsel to inform the legislative body of a significant exposure to litigation against the local agency, but only if based on “existing facts and circumstances” as defined by the Brown Act.21 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. In general, the “existing facts and circumstances” must be publicly disclosed unless they are privileged written communications or not yet known to a potential plaintiff. If an agency receives a documented threat of litigation, and intends to discuss that matter in closed session, the record of a litigation threat must be included in the body’s agenda packet.22
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Anticipated initiation of litigation by the local agency A closed session may be held under the exception for the anticipated initiation of litigation when the legislative body seeks legal advice on whether to protect the agency’s rights and interests by initiating litigation.
Certain actions must be reported in open session at the same meeting following the closed session.
Other actions, such as when final approval rests with another party or the court, may be announced when they become final and upon inquiry of any person.23 Each agency attorney should be aware of and make the disclosures that are required by the particular circumstances.
Real estate negotiations
A legislative body may meet in closed session with its negotiator to discuss the purchase, sale, exchange, or lease of real property by or for the local agency. A “lease” includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative body’s negotiator on price and terms of payment.24 Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues, such as site design, architecture, or other aspects of the project for which the transaction is contemplated.25
Q. May other terms of a real estate transaction, aside from price and terms of payment, be addressed in closed session?
A. No. However, there are differing opinions over the scope of the phrase “price and terms of payment” in connection with real estate closed sessions. Many agency attorneys argue that any term that directly affects the economic value of the transaction falls within the ambit of “price and terms of payment.” Others take a narrower, more literal view of the phrase.
The agency’s negotiator may be a member of the legislative body itself. Prior to the closed session, or on the agenda, the legislative body must identify its negotiators, the real property that the negotiations may concern,26 and the names of the parties with whom its negotiator may negotiate.27 After real estate negotiations are concluded, the approval and substance of the agreement must be publicly reported. If its own approval makes the agreement final, the body must report in open session at the public meeting during which the closed session is held. If final approval rests with another party, the local agency must report the approval and the substance of the agreement upon inquiry by any person as soon as the agency is informed of it.28 “Our population is exploding, and we have to think about new school sites,” said Board Member Jefferson.
“Not only that,” interjected Board Member Tanaka, “we need to get rid of a couple of our older facilities.”
“Well, obviously the place to do that is in a closed session,” said Board Member O’Reilly. “Otherwise we’re going to set off land speculation. And if we even mention closing a school, parents are going to be in an uproar.” 189
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A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites — which must be identified at an open and public meeting.
Public employment
The Brown Act authorizes a closed session “to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee.”29 The purpose of this exception — commonly referred to as the “personnel exception” — is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body; thus, it is restricted to discussing individuals, not general personnel policies.30 The body must possess the power to appoint, evaluate, or dismiss the employee to hold a closed session under this exception.31 That authority may be delegated to a subsidiary appointed body.32 An employee must be given at least 24 hours’ notice of any closed session convened to hear specific complaints or charges against them. This occurs when the legislative body is reviewing evidence, which could include live testimony, and adjudicating conflicting testimony offered as evidence. A legislative body may examine (or exclude) witnesses,33 and the California Attorney General has opined that, when an affected employee and advocate have an official or essential role to play, they may be permitted to participate in the closed session.34 The employee has the right to have the specific complaints and charges discussed in a public session rather than closed session.35 If the employee is not given the 24-hour prior notice, any disciplinary action is null and void.36
However, an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation. The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges, which are more akin to accusations made against a person.37 Q. Must 24 hours’ notice be given to an employee whose negative performance evaluation is to be considered by the legislative body in closed session? A. No, the notice is reserved for situations where the body is to hear complaints and charges from witnesses.
Correct labeling of the closed session on the agenda is critical. A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.38 An incorrect agenda description can result in invalidation of an action and much embarrassment.
For purposes of the personnel exception, “employee” specifically includes an officer or an independent contractor who functions as an officer or an employee. Examples of the former include a city manager, district general manager, or superintendent. Examples of the latter include a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer.
PRACTICE TIP: Discussions of
who to appoint to an advisory
body and whether or not to
censure a fellow member of the
legislative body must be held in
the open.
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Elected officials, appointees to the governing body or subsidiary bodies, and independent contractors other than those discussed above are not employees for purposes of the personnel exception.39 Action on individuals who are not “employees” must also be public — including discussing and voting on appointees to committees, debating the merits of independent contractors, or considering a complaint against a member of the legislative body itself.
The personnel exception specifically prohibits discussion or action on proposed compensation in closed session except for a disciplinary reduction in pay. That means, among other things, there can be no personnel closed sessions on a salary change (other than a disciplinary reduction) between any unrepresented individual and the legislative body. However, a legislative body may address the compensation of an unrepresented individual, such as a city manager, in a closed session as part of a labor negotiation (discussed later in this chapter), yet another example of the importance of using correct agenda descriptions.
Reclassification of a job must be public, but an employee’s ability to fill that job may be considered in closed session.
Any closed session action to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held. That report must identify the title of the position, but not the names of all persons considered for an employment position.40 However, a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies, if any, are exhausted.41
“I have some important news to announce,” said Mayor Garcia. “We’ve decided to terminate the contract of the city manager effective immediately.
The council has met in closed session, and we’ve negotiated six months’ severance pay.”
“Unfortunately, that has some serious budget consequences, so we’ve had to delay phase two of the East Area Project.”
This may be an improper use of the personnel closed session if the council agenda described the item as the city manager’s evaluation. In addition, other than labor negotiations, any action on individual compensation must be taken in open session.
Caution must be exercised not to discuss in closed session issues, such as budget impacts in this hypothetical, beyond the scope of the posted closed session notice.
Labor negotiations
The Brown Act allows closed sessions for some aspects of labor negotiations. Different provisions (discussed below) apply to school and community college districts.
A legislative body may meet in closed session to instruct its bargaining representatives, which may be one or more of its members,42 on employee salaries and fringe benefits for both represented (“union”) and unrepresented employees. For represented employees, it may also consider working conditions that by law require negotiation. For the purpose of labor negotiation closed sessions, an “employee” includes an officer or an independent contractor who functions as an officer or an employee, but independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception.43
PRACTICE TIP: The personnel
exception specifically prohibits
discussion or action on
proposed compensation in
closed session except for a
disciplinary reduction in pay.
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These closed sessions may take place before or during negotiations with employee representatives. Prior to the closed session, the legislative body must hold an open and public session in which it identifies its designated representatives.
During its discussions with representatives on salaries and fringe benefits, the legislative body may discuss available funds and funding priorities, but only to instruct its representative. The body may also meet in closed session with a conciliator who has intervened in negotiations. 44 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party. The report must identify the item approved and the other party or parties to the negotiation.45 The labor closed sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees.
Labor negotiations — school and community college districts Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply. The entire board, for example, may negotiate in closed sessions.
Four types of meetings are exempted from compliance with the Rodda Act:
1. A negotiating session with a recognized or certified employee organization.
2. A meeting of a mediator with either side.
3. A hearing or meeting held by a fact finder or arbitrator.
4. A session between the board and its bargaining agent, or the board alone, to discuss its position regarding employee working conditions and instruct its agent.46 Public participation under the Rodda Act also takes another form.47 All initial proposals of both sides must be presented at public meetings and are public records. The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal. In addition, new topics of negotiations must be made public within 24 hours. Any votes on such a topic must be followed within 24 hours by public disclosure of the vote of each member.48 The final vote must be in public.
Other Education Code exceptions
The Education Code governs student disciplinary meetings by boards of school districts and community college districts. District boards may hold a closed session to consider the suspension or discipline of a student if a public hearing would reveal personal, disciplinary, or academic information about the student contrary to state and federal pupil privacy law. The student’s parent or guardian may request an open meeting.49
Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees, or gifts from donors who prefer to remain anonymous.50 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.51
PRACTICE TIP: Prior to the closed
session, the legislative body
must hold an open and public
session in which it identifies its
designated representatives.
PRACTICE TIP: Attendance by the
entire legislative body before a
grand jury would not constitute
a closed session meeting under
the Brown Act.
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Joint powers authorities
The legislative body of a joint powers authority may adopt a policy regarding limitations on disclosure of confidential information obtained in closed session, and may meet in closed session to discuss information that is subject to the policy.52 License applicants with criminal records
A closed session is permitted when an applicant who has a criminal record applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license. The applicant and the applicant’s attorney are authorized to attend the closed session meeting. If the body decides to deny the license, the applicant may withdraw the application. If the applicant does not withdraw it, the body must deny the license in public, either immediately or at its next meeting. No information from the closed session can be revealed without consent of the applicant, unless the applicant takes action to challenge the denial.53
Public security
Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings; essential public services, including water, sewer, gas, or electric service; or to the public’s right of access to public services or facilities over which the legislative body has jurisdiction. Closed session meetings for these purposes must be held with designated security or law enforcement officials, including the Governor, Attorney General, district attorney, agency attorney, sheriff or chief of police, or their deputies or agency security consultant or security operations manager.54 Action taken in closed session with respect to such public security issues is not reportable action.
Multijurisdictional law enforcement agency
A joint powers agency formed to provide law enforcement services (involving drugs; gangs; sex crimes; firearms trafficking; felony possession of a firearm; high technology, computer, or identity theft; human trafficking; or vehicle theft) to multiple jurisdictions may hold closed sessions to discuss case records of an ongoing criminal investigation, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases.55 The exception applies to the legislative body of the joint powers agency and to any body advisory to it. The purpose is to prevent impairment of investigations, to protect witnesses and informants, and to permit discussion of effective courses of action.56 Hospital peer review and trade secrets
Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals under other provisions of law:57
1. A meeting to hear reports of hospital medical audit or quality assurance committees or for related deliberations. However, an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing.
2. A meeting to discuss “reports involving trade secrets” — provided no action is taken. 193
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A “trade secret” is defined as information that is not generally known to the public or competitors and that (1) “derives independent economic value, actual or potential” by virtue of its restricted knowledge; (2) is necessary to initiate a new hospital service or program or facility; and (3) would, if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit.
The provision prohibits use of closed sessions to discuss transitions in ownership or management, or the district’s dissolution.58 Other legislative bases for closed session
Since any closed session meeting of a legislative body must be authorized by the Legislature, it is important to review the Brown Act carefully to determine if there is a provision that authorizes a closed session for a particular subject matter. There are some less frequently encountered topics that are authorized to be discussed by a legislative body in closed session under the Brown Act, including a response to a confidential final draft audit report from the Bureau of State Audits,59 consideration of the purchase or sale of particular pension fund investments by a legislative body of a local agency that invests pension funds,60 hearing a charge or complaint from a member enrolled in a health plan by a legislative body of a local agency that provides MediCal services,61 discussions by a county board of supervisors that governs a health plan licensed pursuant to the Knox-Keene Health Care Services Plan Act related to trade secrets or contract negotiations concerning rates of payment,62 and discussions by an insurance pooling joint powers agency related to a claim filed against, or liability of, the agency or a member of the agency.63 Who may attend closed sessions
Meetings of a legislative body are either fully open or fully closed; there is nothing in between.
Therefore, local agency officials and employees must pay particular attention to the authorized attendees for the particular type of closed session. As summarized above, the authorized attendees may differ based on the topic of the closed session. Closed sessions may involve only the members of the legislative body and only agency counsel, management and support staff, and consultants necessary for consideration of the matter that is the subject of closed session, with very limited exceptions for adversaries or witnesses with official roles in particular types of hearings (e.g., personnel disciplinary hearings and license hearings). In any case, individuals who do not have an official or essential role in the closed session subject matters must be excluded from closed sessions.65
Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No, attendance in closed sessions is reserved exclusively for the agency’s advisors.
PRACTICE TIP: Meetings are
either open or closed. There is
nothing “in between.”64
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The confidentiality of closed session discussions
The Brown Act explicitly prohibits the unauthorized disclosure of confidential information acquired in a closed session by any person present, and offers various remedies to address breaches of confidentiality.66 It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those discussions. One court has held that members of a legislative body cannot be compelled to divulge the content of closed session discussions through the discovery process.67 Only the legislative body acting as a body may agree to divulge confidential closed session information. With regard to attorney-client privileged communications, the entire body is the holder of the privilege, and only the entire body can decide to waive the privilege.68 Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications, agency attorneys and the Attorney General long opined that officials have a fiduciary duty to protect the confidentiality of closed session discussions. The Attorney General issued an opinion that it is “improper” for officials to disclose information regarding pending litigation that was received during a closed session,69 though the Attorney General has also concluded that a local agency is preempted from adopting an ordinance criminalizing public disclosure of closed session discussions.70 In any event, in 2002, the Brown Act was amended to prescribe particular remedies for breaches of confidentiality. These remedies include injunctive relief and, if the breach is a willful disclosure of confidential information, disciplinary action against an employee and referral of a member of the legislative body to the grand jury.71 The duty of maintaining confidentiality, of course, must give way to the responsibility to disclose improper matters or discussions that may come up in closed sessions. In recognition of this public policy, under the Brown Act, a local agency may not penalize a disclosure of information learned during a closed session if the disclosure (1) is made in confidence to the district attorney or the grand jury due to a perceived violation of law; (2) is an expression of opinion concerning the propriety or legality of actions taken in closed session, including disclosure of the nature and extent of the illegal action; or (3) is information that is not confidential.72 The interplay between these possible sanctions and an official’s First Amendment rights is complex and beyond the scope of this guide. Suffice it to say that this is a matter of great sensitivity and controversy.
“I want the press to know that I voted in closed session against filing the eminent domain action,” said Council Member Chang.
“Don’t settle too soon,” reveals Council Member Watson to the property owner, over coffee. “The city’s offer coming your way is not our bottom line.” The first comment to the press may be appropriate if it is a part of an action taken by the city council in closed session that must be reported publicly.73 The second comment to the property owner is not. Disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency.
PRACTICE TIP: There is a strong
interest in protecting the
confidentiality of proper and
lawful closed sessions.
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ENDNOTES
1 Cal. Gov. Code, § 54962.
2 Cal. Const. , Art. 1, § 3.
3 61 Ops.Cal.Atty.Gen. 220 (1978); but see Cal. Gov. Code, § 54957.8 (multijurisdictional law enforcement agencies are authorized to meet in closed session to discuss the case records of ongoing criminal investigations and other related matters).
4 Cal. Gov. Code, § 54957.1.
5 Cal. Gov. Code, § 54954.5.
6 Cal. Gov. Code, § 54954.2.
7 Cal. Gov. Code, § 54954.5.
8 Cal. Gov. Code, §§ 54956.9, 54957.7.
9 Cal. Gov. Code, § 54957.1, subd. (a).
10 Cal. Gov. Code, § 54957.1, subd. (b).
11 Cal. Gov. Code, § 54957.2.
12 Hamilton v. Town of Los Gatos (1989) 213 Cal.App.3d 1050; 2 Cal. Code Regs. § 18707. 13 But see Roberts v. City of Palmdale (1993) 5 Cal.4th 363 (protection of the attorney-client privilege alone cannot by itself be the reason for a closed session). 14 Cal. Gov. Code, § 54956.9; Shapiro v. Board of Directors of Center City Development Corp. (2005) 134 Cal.App.4th 170 (agency must be a party to the litigation). 15 82 Ops.Cal.Atty.Gen. 29 (1999).
16 Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471. 17 “The Brown Act,” California Attorney General (2003), p. 40. 18 Cal. Gov. Code, § 54956.9, subd. (g).
19 See e.g., Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785; Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172. 20 Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172. 21 Cal. Gov. Code, § 54956.9, subd. (e).
22 Fowler v. City of Lafayette (2020) 46 Cal.App.5th 360. 23 Cal. Gov. Code, § 54957.1.
24 Cal. Gov. Code, § 54956.8.
25 Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904. See also 93 Ops.Cal.Atty.Gen. 51 (2010) (redevelopment agency may not convene a closed session to discuss rehabilitation loan for a property already subleased to a loan recipient, even if the loan incorporates some of the sublease terms and includes an operating covenant governing the property); 94 Ops.Cal.Atty.Gen. 82 (2011) (real estate closed session may address form, manner, and timing of consideration and other items that cannot be disclosed without revealing price and terms).
26 73 Ops.Cal.Atty.Gen. 1 (1990).
27 Cal. Gov. Code, §§ 54956.8, 54954.5, subd. (b).
28 Cal. Gov. Code, § 54957.1, subd. (a)(1).
29 Cal. Gov. Code, § 54957, subd. (b).
30 63 Ops.Cal.Atty.Gen. 153 (1980); but see Duvall v. Board of Trustees (2000) 93 Cal.App.4th 902 (board may discuss personnel evaluation criteria, process and other preliminary matters in closed session but only if related to the evaluation of a particular employee). 196
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31 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 85 Ops.Cal.Atty.Gen. 77 (2002).
32 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165; 80 Ops.Cal.Atty.Gen. 308 (1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session. 33 Cal. Gov. Code, § 54957, subd. (b)(3).
34 88 Ops.Cal.Atty.Gen. 16 (2005).
35 Morrison v. Housing Authority of the City of Los Angeles (2003) 107 Cal.App.4th 860. 36 Cal. Gov. Code, § 54957, subd. (b); but see Bollinger v. San Diego Civil Service Commission (1999) 71 Cal.App.4th 568 (notice not required for closed session deliberations regarding complaints or charges when there was a public evidentiary hearing prior to closed session). 37 78 Ops.Cal.Atty.Gen. 218 (1995); Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672; Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876; Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87.
38 Moreno v. City of King (2005) 127 Cal.App.4th 17.
39 Cal. Gov. Code, § 54957.
40 Gillespie v. San Francisco Public Library Commission (1998) 67 Cal.App.4th 1165. 41 Cal. Gov. Code, § 54957.1, subd. (a)(5).
42 Cal. Gov. Code, § 54957.6.
43 Cal. Gov. Code, § 54957.6, subd. (b); see also 98 Ops.Cal.Atty.Gen. 41 (2015) (a project labor agreement between a community college district and workers hired by contractors or subcontractors is not a proper subject of closed session for labor negotiations because the workers are not “employees” of the district).
44 Cal. Gov. Code, § 54957.6; 51 Ops.Cal.Atty.Gen. 201 (1968). 45 Cal. Gov. Code, § 54957.1, subd. (a)(6).
46 Cal. Gov. Code, § 3549.1.
47 Cal. Gov. Code, § 3540.
48 Cal. Gov. Code, § 3547.
49 Cal. Edu. Code, § 48918; but see Rim of the World Unified School District v. Superior Court (2003) 104 Cal.App.4th 1393 (Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings).
50 Cal. Edu. Code, § 72122.
51 Cal. Edu. Code, § 60617.
52 Cal. Gov. Code, § 54956.96.
53 Cal. Gov. Code, § 54956.7.
54 Cal. Gov. Code, § 54957.
55 McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.
App.4th 354.
56 Cal. Gov. Code, § 54957.8.
57 Cal. Gov. Code, § 54962.
58 Cal. Health and Saf. Code, § 32106.
59 Cal. Gov. Code, § 54956.75.
60 Cal. Gov. Code, § 54956.81.
197
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61 Cal. Gov. Code, § 54956.86.
62 Cal. Gov. Code, § 54956.87.
63 Cal. Gov. Code, § 54956.95.
64 Ops.Cal.Atty.Gen. 34 (1965)
65 82 Ops.Cal.Atty.Gen. 29 (1999); 2022 WL 1814322, 105 Ops. Cal.Atty.Gen. 89 (2022). 66 Cal. Gov. Code, § 54963.
67 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 327. See also Cal. Gov. Code, § 54963. 68 Roberts v. City of Palmdale (1993) 5 Cal.4th 363.
69 80 Ops.Cal.Atty.Gen. 231 (1997).
70 76 Ops.Cal.Atty.Gen. 289 (1993).
71 Cal. Gov. Code, § 54963.
72 Cal. Gov. Code, § 54963.
73 Cal. Gov. Code, § 54957.1.
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REMEDIES
Invalidation of action taken .............................................................................................. 56 Declaratory relief to determine whether past action violated the act............................. 57 Civil action to prevent future violations............................................................................ 57 Costs and attorney’s fees ................................................................................................. 58 Misdemeanor penalties .................................................................................................... 58 Voluntary resolution.......................................................................................................... 59 199
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A violation of the Brown Act can lead to invalidation of the agency’s action, payment of a challenger’s attorney fees, public embarrassment, and even criminal prosecution. As explained below, a legislative body often has an opportunity to correct a violation prior to the filing of a lawsuit. Compliance ultimately results from regular training and a good measure of self-regulation on the part of public officials.
This chapter discusses the remedies available to the public when that self-regulation is ineffective.
Invalidation of action taken
Any interested person, including the district attorney, may seek to invalidate certain actions of a legislative body on the grounds that they violate the Brown Act.1 The following actions cannot be invalidated:
Those taken in substantial compliance with the law. No Brown Act violation is found when the given notice substantially complies with the Brown Act, even when the notice erroneously cites the wrong Brown Act section but adequately advises the public that the legislative body will meet with legal counsel to discuss potential litigation in closed session.2
Those involving the sale or issuance of notes, bonds, or other indebtedness, or any related contracts or agreements.3
Those creating a contractual obligation, including a contract awarded by competitive bid for other than compensation for professional services, upon which a party has in good faith relied to its detriment.4
Those connected with the collection of any tax.5
Those in which the complaining party had actual notice at least 72 hours prior to the regular meeting or 24 hours prior to the special meeting, as the case may be, at which the action is taken.6
Before filing a court action seeking invalidation, a person who believes that a violation has occurred must send a written “cure or correct” demand to the legislative body. This demand must clearly describe the challenged action and the nature of the claimed violation. This demand must be sent within 90 days of the alleged violation, or within 30 days if the action was taken in open session but in violation of Section 54954.2, which requires (subject to specific exceptions) that a legislative body may act only on items posted on the agenda.7 The legislative body then has up to 30 days to cure and correct its action.8 The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and, if so, consider correcting the action to avoid the costs of litigation. If the legislative body does not act, any lawsuit must be filed within the next 15 days.9
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Although just about anyone has standing to bring an action for invalidation,10 the challenger must show prejudice as a result of the alleged violation.11 An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an action.12 Declaratory relief to determine whether past action violated the act Any interested person, including the district attorney, may file a civil action to determine whether a past action of a legislative body constitutes a violation of the Brown Act and is subject to a mandamus, injunction, or declaratory relief action.13 Before filing an action, the interested person must, within nine months of the alleged violation of the Brown Act, submit a “cease and desist” letter to the legislative body clearly describing the past action and the nature of the alleged violation.14 The legislative body has 30 days after receipt of the letter to provide an unconditional commitment to cease and desist from the past action.15 If the body fails to take any action within the 30-day period or takes an action other than an unconditional commitment, the interested person has 60 days to file an action.16
The legislative body’s unconditional commitment must be approved at a regular or special meeting as a separate item of business and not on the consent calendar.17 The unconditional commitment must be substantially in the form set forth in the Brown Act.18 No legal action may thereafter be commenced regarding the past action.19 However, an action of the legislative body in violation of its unconditional commitment constitutes an independent violation of the Brown Act, and a legal action consequently may be commenced without following the procedural requirements for challenging past actions.20
The legislative body may rescind its prior unconditional commitment by a majority vote of its membership at a regular meeting as a separate item of business not on the consent calendar. At least 30 days written notice of the intended rescission must be given to each person to whom the unconditional commitment was made and to the district attorney. Upon rescission, any interested person may commence a legal action regarding the past actions without following the procedural requirements for challenging past actions.21
Civil action to prevent future violations
The district attorney or any interested person can file a civil action asking the court to do the following:
Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body.
Determine the applicability of the Brown Act to actions or threatened future action of the legislative body.
Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law.
Compel the legislative body to audio-record its closed sessions.22 PRACTICE TIP: A lawsuit to
invalidate must be preceded by
a demand to cure and correct
the challenged action in order
to give the legislative body
an opportunity to consider its
options. The Brown Act does not
specify how to cure or correct
a violation; the best method
is to rescind the action being
complained of and start over, or
reaffirm the action if the local
agency relied on the action and
rescinding the action would
prejudice the local agency.
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It is not necessary for a challenger to prove a past pattern or practice of violations by the local agency in order to obtain injunctive relief. A court may presume when issuing an injunction that a single violation will continue in the future when the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.23 A court may not compel elected officials to disclose their recollections of what transpired in a closed session.24 Upon finding a violation of the Brown Act pertaining to closed sessions, a court may compel the legislative body to audio record its future closed sessions.25 In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session, a court may upon motion of the plaintiff review the audio recording if it finds there is good cause to think the Brown Act has been violated and make public a certified transcript of the relevant portion of the closed session recording.26 Costs and attorney’s fees
A plaintiff who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act’s civil remedies may seek court costs and reasonable attorney’s fees. Courts have held that attorney’s fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.27 When evaluating how to respond to assertions that the Brown Act has been violated, elected officials and their lawyers should assume that attorney’s fees will be awarded against the agency if a violation of the Brown Act is proven.
An attorney’s fee award may only be directed against the local agency and not the individual members of the legislative body. If the local agency prevails, it may be awarded court costs and attorney’s fees if the court finds the lawsuit was clearly frivolous and lacking in merit.28 Misdemeanor penalties
A violation of the Brown Act is a misdemeanor if (1) a member of the legislative body attends a meeting where action is taken in violation of the Brown Act, and (2) the member intends to deprive the public of information that the member knows or has reason to know the public is entitled to.29 “Action taken” is not only an actual vote but also a collective decision, commitment, or promise by a majority of the legislative body to make a positive or negative decision.30 If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty.
A violation occurs for a tentative as well as final decision.31 In fact, criminal liability is triggered by a member’s participation in a meeting in violation of the Brown Act — not whether that member has voted with the majority or minority, or has voted at all.
As with other misdemeanors, the filing of a complaint is up to the district attorney. Although criminal prosecutions of the Brown Act are uncommon, district attorneys in some counties aggressively monitor public agencies’ adherence to the requirements of the law.
Some attorneys and district attorneys take the position that a Brown Act violation may be pursued criminally under Government Code section 1222.32 There is no case law to support this view.
If anything, the existence of an express criminal remedy within the Brown Act would suggest otherwise.33
PRACTICE TIP: Attorney’s fees
will likely be awarded if a
violation of the Brown Act is
proven.
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Voluntary resolution
Successful enforcement actions for violations of the Brown Act can be costly to local agencies. The district attorney or even the grand jury occasionally becomes involved. Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body and its members. It is in the agency’s interest to consider re-noticing and rehearing, rather than litigating, an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were
satisfied.
Overall, agencies that regularly train their officials and pay close attention to the requirements of the Brown Act will have little reason to worry about enforcement.
ENDNOTES
1 Cal. Gov. Code, § 54960.1. Invalidation is limited to actions that violate the following sections of the Brown Act: section 54953 (the basic open meeting provision), sections 54954.2 and 54954.5 (notice and agenda requirements for regular meetings and closed sessions), 54954.6 (tax hearings), 54956 (special meetings), and 54596.5 (emergency situations). Violations of sections not listed above cannot give rise to invalidation actions, but they are subject to the other remedies listed in section 54960.1. 2 Castaic Lake Water Agency v. Newhall County Water District (2015) 238 Cal.App.4th 1196, 1198. 3 Cal. Gov. Code, § 54960.1(d)(2).
4 Cal. Gov. Code, § 54960.1(d)(3).
5 Cal. Gov. Code, § 54960.1(d)(4).
6 Cal. Gov. Code, § 54960.1(d)(5).
7 Cal. Gov. Code, § 54960.1, subds. (b), (c)(1).
8 Cal. Gov. Code, § 54960.1, subd. (c)(2).
9 Cal. Gov. Code, § 54960.1, subd. (c)(4).
10 McKee v. Orange Unified School District (2003) 110 Cal.App.4th 1310, 1318-1319. 11 Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 556, 561. 12 Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1116-17, 1118. 13 Cal. Gov. Code, § 54960.2, subd. (a); Senate Bill No. 1003, Section 4 (2011-2012 Session). 14 Cal. Gov. Code, § 54960.2, subds. (a)(1), (2).
15 The legislative body may provide an unconditional commitment after the 30-day period. If the commitment is made after the 30-day period, however, the plaintiff is entitled to attorneys’ fees and costs. Cal. Gov. Code, § 54960.2, subd. (b).
16 Cal. Gov. Code, § 54960.2, subd. (a)(4).
17 Cal. Gov. Code, § 54960.2, subd. (c)(2).
Photo credit: Courtesy of the City of West
Hollywood. Photo by Jon Viscott.
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18 Cal. Gov. Code, § 54960.2, subd. (c)(1).
19 Cal. Gov. Code, § 54960.2, subd. (c)(3).
20 Cal. Gov. Code, § 54960.2, subd. (d).
21 Cal. Gov. Code, § 54960.2, subd. (e).
22 Cal. Gov. Code, § 54960, subd. (a).
23 California Alliance for Utility Safety and Education (CAUSE) v. City of San Diego (1997) 56 Cal.App.4th 1024; Common Cause v. Stirling (1983) 147 Cal.App.3d 518, 524; Accord Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904, 916 and fn.6.
24 Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 334-36. 25 Cal. Gov. Code, § 54960, subd. (b).
26 Cal. Gov. Code, § 54960, subd. (c).
27 Los Angeles Times Communications, LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal.
App.4th 1313, 1327-29 and cases cited therein.
28 Cal. Gov. Code, § 54960.5.
29 Cal. Gov. Code, § 54959. A misdemeanor is punishable by a fine of up to $1,000 or up to six months in county jail, or both (California Penal Code section 19). Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959. However, at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949. 30 Cal. Gov. Code, § 54952.6.
31 61 Ops.Cal.Atty.Gen. 283 (1978).
32 California Government Code section 1222 provides that “[e]very wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision is made for the punishment of such delinquency, is punishable as a misdemeanor.” 33 The principle of statutory construction known as expressio unius est exclusio alterius supports the view that section 54959 is the exclusive basis for criminal liability under the Brown Act. 204
205
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Law Offices of
William D. Ross
A Professional Corporation
File No.199/6
ATTORNEY-CLIENT
PRIVILEGED COMMUNICATION
VIA E-MAIL
TO: City of American Canyon Legislative
and Advisory Bodies
DATE: March 6, 2023
FROM: William D. Ross, City Attorney
David Schwarz, Deputy City Attorney
CC: Jason B. Holley, City Manager
Maria Ojeda, Assistant City Manager
Taresa Geilfuss, City Clerk
RE: AB 2449 Refresher – Brown Act Procedures for Teleconferencing This is an attorney-client privileged communication which supplements our November 1, 2022 memorandum to the City Council, summarizing changes in state law that modified the Brown Act’s teleconferencing procedures.
On February 28, 2023, Governor Newsom rescinded the COVID-19 state of emergency that had been in effect for nearly three years. Because of this, the City of American Canyon (City) and other public agencies can no longer utilize the AB 361 teleconferencing procedures that were used during the pandemic.
AB 361 provided broad authority for public agencies to use video conferencing platforms, like Zoom or Microsoft Teams, to conduct public meetings where members of the public and the agency’s legislative/advisory councils and commissions could meet either entirely or partially remotely. However, AB 361 requires an ongoing state of emergency as declared by the Governor, so will therefore not be available unless or until a future state of emergency affecting the City is declared (i.e., pandemic, flood, wildfire, etc.).
However, beginning January 1, 2023, newly enacted legislation, AB 2449 became effective providing a more rigid/restrictive than AB 361, but is still more flexible than the Brown Act’s “traditional” rules on teleconferencing. Stated differently, AB 2449 is a “middle ground” between the traditional rules and AB 361. AB 2449 will be in effect until January 1, 2026, and may be extended by future legislation.
AB 2449’s procedures, outlined below, can be used by any and all of the City’s legislative and advisory bodies when they hold public meetings, including the City Council, Planning Commission, Parks and Community Services Commission, and the Open Space, Active Transportation and Sustainability Commission, as well as the Board of Directors for the American Canyon Fire Protection District.
207
City of American Canyon Legislative
and Advisory Bodies
March 6, 2023