(The meeting is virtual)
SPECIAL CITY COUNCIL AGENDA - ORIENTATION
Tuesday, January 17, 2023, 2:00 p.m.
Community Services Building
440 Civic Center Plaza
Richmond, CA 94804
Members
Claudia Jimenez, Councilmember District 6
Eduardo Martinez, Mayor at Large
Melvin Willis, Councilmember District 1
Gayle McLaughlin, Councilmember District 5
Doria Robinson, Councilmember District 3
Cesar Zepeda, Councilmember District 2
Soheila Bana, Councilmember District 4
Link to City Council Agendas/Packets
http://www.ci.richmond.ca.us/4157/City-ofRichmond-Council-Meetings Register to receive notification of new agendas, etc.
http://www.ci.richmond.ca.us/list.aspx
CORONAVIRUS DISEASE (COVID-19) ADVISORY
PURSUANT to the Governor of the State of California’s Assembly Bill 361 and in the interest of the public health and safety, attendance at the City of Richmond City Council meeting will be limited to Council members, essential City of Richmond staff, and members of the news media. Public comment will be confined to items appearing on the agenda and will be limited to the methods provided below.
How to watch the meeting from home:
KCRT – Comcast Channel 28 or AT&T Uverse Channel 991.
Livestream online at http://www.ci.richmond.ca.us/3178/KCRT-Live2.
Public comment may be submitted by mail, eComment, email and/or Zoom video conference in the manner that follows, provided that no member of the public may submit more than one verbal comment per agenda item.
Via eComments: eComments are available once an agenda is published. Locate the meeting in "upcoming meetings" and click the comment bubble icon. Click on the item you wish to comment on. eComments can be submitted when the agenda is published and until the conclusion of public comments for the agenda item. eComments can be viewed by the City Council and members of the public as they are submitted.
Email your comment to [email protected] should you have difficulty submitting an eComment during a meeting.
Via email: to [email protected] by 12:00 p.m. the day of the meeting.
Emails MUST contain in the subject line 1) public comments – agenda item #__ [include the agenda item number]. All such email with correctly labeled subject lines will be posted on-line and emailed to the City Council before the meeting is called to order. Email received after 12:00 p.m. will be posted on-line following the meeting as part of the supplemental materials attached to the meeting minutes.
Via Zoom by video conference: for Open Session and City Council: Please click the link below to join the webinar:
https://zoom.us/j/99312205643?pwd=MDdqNnRmS2k4ZkRTOWhlUldQOUF1Zz09 Passcode: ccmeeting
By iPhone one-tap: US: +16699006833,,99312205643# or +13462487799,,99312205643# By Telephone: Dial (for higher quality, dial a number based on your current location): US: +1 669 900 6833 or +1 346 248 7799 or +1 253 215 8782 or +1 312 626 6799 or +1 929 205 6099 or +1 301 715 8592 Webinar ID: 993 1220 5643
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To comment by phone: you will be prompted to “Raise Your Hand” by pressing “*9” to request to speak when Public Comment is asked for. When called upon, you will be asked to unmuted by pressing *6. After the allotted time, you will then be re-muted. Instructions of how to raise your hand by phone are available at:
https://support.zoom.us/hc/en-us/articles/201362663 -Joining-a-meeting-by-phone. **
**The mayor will announce the agenda item number and open public comment when appropriate.
The City cannot guarantee that its network and/or the site will be uninterrupted. To ensure that the City
Council receives your comments, you are strongly encouraged to submit your comments in writing in advance of the meeting.
AB 361 Procedures in the Event of Technical Difficulties: In the event the meeting broadcast is disrupted, or if a technical issue on the agency's end disrupts public participation, the legislative body board cannot take any further action on the agenda until the technical issue is resolved.
Properly labeled public comments will be considered a public record, put into the official meeting record, available after the meeting as supplemental materials, and will be posted as an attachment to the meeting minutes when the minutes are posted: http://www.ci.richmond.ca.us/Archive.aspx?AMID=31.
Accessibility for Individuals with Disabilities:
Upon request, the City will provide for written agenda materials in appropriate alternative formats, or disability-related modification or accommodation, including auxiliary aids or services and sign language interpreters, to enable individuals with disabilities to participate in and provide comments at/related to public meetings. Please submit a request, including your name, phone number and/or email address, and a description of the modification, accommodation, auxiliary aid, service or alternative format requested at least two days before the meeting. Requests should be emailed to [email protected] or submitted by phone at 510-620-6513, ext. 9, or 510-620-6509. Requests made by mail to City Clerk’s Office, City Council meeting, 450 Civic Center Plaza, Richmond, CA 94804 must be received at least two days before the meeting. Requests will be granted whenever possible and resolved in favor of accessibility.
Effect of Advisory on In-person public participation: During the pendency of assembly Bill 361, the language in this Advisory portion of the agenda supersedes any language contemplating in-person public comment.
Unless otherwise noted in an agenda description, all actions taken by the Council include a determination that CEQA does not apply (i.e., the action is not a project and therefore exempt from CEQA).
Disclaimer: The City Clerk's Office translates agendas to enhance public access. Translated agendas are provided as a courtesy and do not constitute legal notice of the meeting or items to be discussed. In case of discrepancy, the English agenda will prevail.
Pages
A. SPECIAL MEETING OF THE RICHMOND CITY COUNCIL/ORIENTATION 2:00 p.m.
B. ROLL CALL
C. NEW BUSINESS
C.1 City Council Orientation 5
RECEIVE a City Council orientation presentation and handbook from City staff – City Manager/City Clerk/City Attorney (Shasa Curl/Pam Christian/Dave Aleshire 510-620-6512).
D. PUBLIC COMMENT - LIMITED TO ITEM C.1 ONLY
E. ADJOURNMENT
January 17, 2023
City Manager's Office
DATE: January 17, 2023
TO: Mayor Martinez and Members of the City Council
FROM:
Shasa Curl, City Manager
Pam Christian, City Clerk
Dave Aleshire, City Attorney
Subject:
City Council Orientation
FINANCIAL IMPACT: N/A
PREVIOUS COUNCIL
ACTION:
N/A
STATEMENT OF THE
ISSUE:
The City Council Orientation Handbook and presentation
has been prepared by staff as a reference to help elected officials in carrying out the duties and responsibilities of public office.
RECOMMENDED ACTION:
RECEIVE a City Council orientation presentation and
handbook from City staff – City Manager/City Clerk/City Attorney (Shasa Curl/Pam Christian/Dave Aleshire 510-
620-6512).
DISCUSSION:
The City of Richmond operates under the council–manager form of government. Under this form, residents elect a governing body, including a chief elected official, such as a mayor, to adopt legislation and set policy. The governing body then hires a manager or administrator with broad executive authority to carry out those policies (International City/County Management Association, 2019).
AGENDA
REPORT
January 17, 2023
Richmond’s Mayor is elected at-large, and six (6) council members are elected by district to serve four-year terms. The City Council serves as the policy-making body of the City of Richmond (City of Richmond Charter Article 3 – The Council and Article 3A – The Mayor). Furthermore, the City Council is responsible for reviewing and approving the annual budget, establishing long and short-term objectives and priorities, and for hiring and conducting performance evaluations for the City Manager, City Clerk, and City Attorney (City of Richmond Charter Article 3 Sections 9 – The Council). Working with City departments and staff, the City Manager implements and operationalizes policies created and adopted by the City Council, in addition to overseeing the City’s day-to-day operations of the City (City of Richmond Charter Article 4 – Duties of Officers).
With the November 2022 election certified, Richmond is welcoming three (3) new council members and a new Mayor. City staff members have thoughtfully prepared a City Council Orientation presentation and handbook which is designed to provide new and existing members with information regarding the following:
Overview of City Council roles and responsibilities
Outline of ethical and legal parameters related to their working relationships Information regarding the responsibilities of City staff members Presentation regarding operating frameworks to ensure they are clearly understood
The orientation handbook (Attachment 1) is divided into the following five (5) sections:
1. City of Richmond Overview and Contacts
2. City Council Agenda Process and Administrative Support
January 17, 2023
3. Meeting Procedures and Mandatory Council Trainings
4. Municipal Finance and Budgeting
5. City-Wide Guiding Documents
City staff members are here to support, guide, and execute the vision of the City Council and ensure we fulfill the goals set on behalf of the community. Together we will provide efficient municipal services that are responsive to local needs and expectations.
DOCUMENTS ATTACHED:
Attachment 1 – City Council Orientation Handbook
Attachment 2 – Presentation
DRAFT City Council Orientation
January 17, 2022, at 2:00 PM
Agenda and Table of Contents
Tab Document Title Department Contacts
City of Richmond Overview and Contacts
1 Introductions City Manager’s Office – Shasa Curl
City Clerk’s Office – Pamela Christian
City Attorney’s Office – Dave Aleshire
2 City of Richmond Charter City Attorney’s Office – Dave Aleshire 3 Information on Council-Manager
Form of Government
City Manager’s Office – Shasa Curl
4 City of Richmond Organizational
Chart
City Manager’s Office – Shasa Curl
5 City of Richmond Key Staff and
Emergency Operations Center
(EOC) Contact Information
City Manager’s Office – Shasa Curl
6 Administrative Calendar City Manager’s Office – Patrick Seals
City Council Agenda Process & Administrative Support
7 City Council References and
Support, Council Meeting
Technical Guidelines
City Clerk’s Office/Council Liaison – Pamela
Christian/Trina Jackson-Lincoln
8 Appointments to City and
Regional Boards, Commissions,
Committees, etc.
City Clerk’s Office – Pamela Christian
9 Agenda Item Process for
Councilmembers (Agenda
Report and Resolution
Template)
City Clerk’s Office/Council Liaison – Pamela
Christian/Trina Jackson-Lincoln
10 Travel and Training
Reimbursement Requests
Finance/Council Liaison –
Nickie Mastay/Trina Jackson-Lincoln
11 Councilmember Benefits
Summary
Human Resources – Sharrone Taylor
Meeting Procedures and Mandatory Council Trainings
12 City Council Rules of Procedure
and Order
City Clerk’s Office – Pamela Christian
DRAFT City Council Orientation
January 17, 2022, at 2:00 PM
13 City Attorney’s Office Overview City Attorney’s Office – Dave Aleshire/Shannon Moore
Municipal Finance and Budgeting
14 Readings on Understanding
Municipal Financing
Internal Services/Finance – Nickie Mastay
15 Adopted FY 2022-2023
Operating Budget & 5 – Year
Capital Improvement Plan
Internal Services/Finance – Nickie Mastay
16 State Audit Corrective Action
Plan
City Manager’s Office/Internal
Services/Internal Services – Shasa
Curl/Nickie Mastay
17 Budget Calendar Internal Services/Finance – Nickie Mastay 18 Guiding Fiscal Policy Internal Services/Finance – Nickie Mastay City-Wide Guiding Documents
19 General Plan 2030 Community Development Department – Hector Rojas
20 Richmond Race and Equity
Initiative (GARE)
Council Liaison - Trina Jackson-Lincoln
21 Health in All Policies (HiAP) City Manager’s Office/Economic Development – Gabino Arredondo
22 Climate Action Plan City Manager’s Office/Economic
Development/Environmental Initiatives –
Samantha Carr
23 Richmond Community Survey City Manager’s Office – LaShonda White 24 Fee Waiver & Partnership Policy City Manager’s Office – LaShonda White
DRAFT City Council Orientation
January 17, 2022, at 2:00 PM
Key Dates & Next Steps
Event Date Location Department & Contact Person
Human Resources
Onboarding
01/10/2023 -
01/13/2023
City Hall, Human
Resources, 3rd
Floor
To schedule or for inquiries, contact:
Human Resources – Sharrone
Taylor,
[email protected],
(510) 620-6803
IT Equipment 01/10/2023 -
01/13/2023
City Hall, Human
Resources, 1st
Floor
To schedule or for inquiries, contact:
Information Technology – Sue
Hartman,
[email protected]
(510) 620-6874
Mid-Year Presentations,
Departmental Overviews
01/17/2023
01/24/2023
02/07/2023
2/21/2023
2/28/2023
Council
Chamber
City Manager’s Office – Shasa Curl,
[email protected],
(510) 620-6512
Internal Services – Nickie Mastay,
[email protected],
(510) 620-6609
League of CA Cities City
Council Training
01/18/2023 -
01/20/2023
Sacramento, CA To schedule or for inquiries, contact:
Council Liaison – Trina Jackson-
Lincoln,
[email protected],
(510) 620-6581
City Council Strategic
Planning Process
Pending Pending City Manager’s Office – Shasa Curl,
[email protected],
(510) 620-6512
Tab 1
Introductions
450 Civic Center Plaza, Richmond, CA 94804-1630
Telephone: (510) 620-6512 Fax: (510) 620-6542 www.ci.richmond.ca.us
Honorable Mayor Martinez and City Councilmembers:
This handbook is a guide for easy reference as you begin your tenure as elected officials for the City of Richmond. To support you in your new role, this reference guide is tailored to help you navigate various aspects of Richmond City government.
Thank you for your pledge to serve the Richmond community and for working collaboratively with staff to address your district’s needs as well as the needs of all within Richmond. We view our joint and future work as an opportunity to improve the lives of Richmond residents for generations to come.
If you have questions, please feel free to contact any of us to receive clarification or assistance.
Shasa Curl, City Manager
Tab 2
City of Richmond
Charter
Tab 3
Information on
Council-Manager
Form of
Government
What it is, how it works, and
the benefits to your community
Council-Manager
Form of Government
INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION
777 N. Capitol St NE, Ste. 500, Washington, DC 20002
202.962.3680 | 202.962.3500 (f) | icma.org
THE ROLE OF THE MAYOR OR CHIEF ELECTED
OFFICIAL
Typically, the mayor or board chairperson in a council- manager community is a voting member of the governing
body who may be either directly elected, as in 69 percent of council-manager communities, or who is selected by and from among their colleagues on the governing body. The mayor or chairperson is the public face of the community who presides at meetings, assigns agenda items to committees, facilitates communication and understanding between elected and
appointed officials, and assists the governing body in setting goals and advocating policy decisions.
THE ROLE OF ELECTED OFFICIALS
Under the council-manager form, the elected officials (e.g. the council or board) are the legislative body and the community’s policy makers. Power is centralized in this body, which approves the budget and adopts local laws and regulations, for example.
The elected officials also focus on the community’s big-picture goals, such as community growth and sustainability.
The elected officials hire a professional city, town, or county manager based on that person’s education, experience, skills, and abilities and NOT on their political allegiances. The elected officials supervise the manager’s performance, and if that person is not responsive and effective in their role, the elected officials have the authority to remove her or him at any time.
THE MANAGER’S ROLE
The manager is an at-will employee who can be fired by a majority of the elected officials, consistent with local laws or any employment agreements. This person
• • Prepares a budget for the governing body’s consideration. • • Recruits, hires, supervises, and terminates government staff. • • Serves as the governing body’s chief advisor by providing complete and objective information about local
operations, discussing options, offering an assessment
of the long-term consequences of decisions, and making
policy recommendations.
• • Carries out the policies established by the governing body.
WHAT ROLE DO RESIDENTS PLAY?
Under council-manager government, local governments often actively engage and involve their residents in community decision making. Residents can guide their community by serving on boards and commissions, participating in visioning and strategic planning sessions, and designing community- oriented local government services.
Key Roles in Council-Manager Government
For more information, contact
icma.org/contactus
@ICMA ICMAorg
T o lean more about professional
local government management, visit
icma.org/professional-local-government-management
City of Tampa, Florida
City of Cedar Park, T exas
What is the council-manager form of government?
The council-manager form is the most popular structure of government in the United States among municipalities with populations of 2,500 or more. It is one of several ways in which U.S. municipalities and counties can organize.
Under this form, residents elect a governing body—
including a chief elected official, such as a mayor or board chairperson—to adopt legislation and set policy. The
governing body then hires a manager or administrator with broad executive authority to carry out those policies and oversee the local government’s day-to-day operations.
What’s so special about the council-manager form
of government?
Born out of the U.S. progressive reform movement at the turn of the 20th century, the council-manager form was
created to combat corruption and unethical activity within local government by promoting nonpolitical management
that is effective, transparent, responsive, and accountable.
The council-manager form of government recognizes
the critical role of elected officials as policy makers, who focus on mapping out a collective vision for the community and establishing the policies that govern it. The form also recognizes the need for a highly-qualified individual who is devoted exclusively to the delivery of services to residents.
Think about the structure used by many corporations, in which the board of directors hires an experienced CEO, who is granted broad, executive authority to run the organization.
While these boards establish the company’s overall policy direction, the CEO oversees implementation of that policy.
What types of communities use the council-manager
form of government?
Today more than 120 million people in the U.S. live in
municipalities that operate under the council-manager form.
Fifty-four percent of the more than 4,300 U.S. municipalities with populations of 10,000 or more use the form, as do
59 percent of the 347 municipalities with populations greater than 100,000. More than 800 counties also employ a
similar system.
How can council-manager government benefit
my community?
• • Flexibility—The council-manager form can adapt to local needs and demands. While governing bodies in some
council-manager communities are elected at large, for
example, others are elected by district or by a combination of an at-large-and-by-district system to respond to local needs. • • Clearly Defined Roles—Under the council-manager form, there is a clear distinction between the administrative role of the manager and the political and policy roles of the governing body, lead by the mayor. The day-to-day
operations of the local government organization reside
with the appointed manager, allowing elected officials
to devote their time and energy to policy development
and the assessment of the effectiveness of those policies within the community.
• • A Roadmap for Success—The council-manager form is
the system of local government under which professional management is most likely to succeed. Under this system, professional managers can focus on service delivery, policy implementation, and performance management and can
align the local government’s services with the values,
mission, and policy goals defined by the community and
elected officials.
How do we know that council-manager
government works?
• • The Equipt to Innovate Initiative—a framework of
seven essential elements that define high-performance
government and empower innovation—found in 2017 that
top-performing cities in all but one element employed the council-manager form of government. In 2018, the study’s overall top performer was also council-manager.
VOTERS
GOVERNING BODY
MANAGER
DEPARTMENT HEADS
The Council-Manager Form
• • Two-thirds of Moody’s Aaa-bond-rated communities are run by professional local government managers, and many operate under the council-manager form of government.
• • An IBM Global Business Services report titled “Smarter, Faster, Cheaper” found that cities that operate under
the council-manager form of government are nearly 10
percent more efficient than those that operate under the mayor-council form.
• • The National Civic League, America's oldest advocate for community democracy, has endorsed council-manager
government through its Model City Charter since 1915.
• • The majority of communities recognized since 2013 with the National Civic League’s coveted All-America City Award have been council-manager.
Does it cost more for a community to adopt the
council-manager form and hire a professional
manager?
Many local governments have reduced their overall costs after hiring a professional manager. Savings can come
from decreased operating costs, increased efficiency and productivity, improved revenue collection, and effective use of technology. The economic health of the community may also benefit from the implementation of improved business development and retention strategies.
How can my community adopt the council-manager
form of government?
Methods vary from state to state, but most communities
can adopt council-manager government through a charter, local ordinance, state enabling law, or by voter referendum.
For information on how your community can adopt council- manager government, contact your state municipal league, state and local government association, or association
of counties. You can find contact information for these organizations at icma.org/state-localgovassns or ncl.org/ state-municipal-leagues.
Once my community adopts council-manager
government, how do we hire a professional manager?
The vacancy is often announced in Leadership Matters,
ICMA’s weekly e-newsletter; through the ICMA Job Center at icma.org/job-center; and through state league publications, and qualified candidates are invited to apply. Elected officials may also hire an executive recruitment firm to assist them with the selection process. Interested parties may apply directly to the governing body or to the recruitment firm, which reviews the applications and interviews qualified candidates. ICMA makes no recommendations regarding
candidates. Additional information on hiring a professional local government manager is available in ICMA’s Recruitment Guidelines Handbook. Visit icma.org/documents/recruitment- guidelines to download a copy.
What kind of educational and on-the-job experience do
professional local government managers generally have?
Sixty-five percent of managers surveyed by ICMA
indicated that they had earned a master’s (usually in public administration, business, or public policy), or other advanced degree. Survey respondents also said that they had spent an average of more than 20 years working in the local
government management profession.
What is ICMA and why is membership in that
organization important?
ICMA, the International City/County Management Association, is the professional and educational “home” for more than 12,000 appointed managers and administrators serving cities, towns, counties, other local governments, and regional entities in 40 countries throughout the world.
In addition to gaining access to valuable resources and lifelong professional development opportunities, appointed local government managers who are members of ICMA are
bound by its Code of Ethics, which commits members to a set of ethical standards of honesty and integrity that go beyond those required by the law. This stringently enforced code specifies 12 ethical principles of personal and professional conduct, including dedication to good government. For more information, visit icma.org/ethics.
Finally, through its Voluntary Credentialing Program,
ICMA recognizes individual members who are qualified by a combination of education and experience, adherence to high standards of integrity, and an assessed commitment to lifelong learning and professional development. ICMA members who meet these requirements may earn designation as an ICMA Credentialed Manager. For more information
on ICMA’s Voluntary Credentialing Program, visit icma.org/ voluntary-credentialing-program-overview.
Tab 4
City of Richmond
Organizational
Chart
People of Richmond
People of Richmond
Mayor and City Council
Mayor and City Council
City Manager
City Manager
Director of Public Works
Director of Public Works
Richmond Rent Board
Richmond Rent Board
Confidential
Investigative Appeals
Officer
(Police Commission)
Confidential
Investigative Appeals
Officer
(Police Commission)
City Clerk
City Clerk
City Attorney
City Attorney
Executive
Assistant
Executive
Assistant
Deputy City Manager
Community Services
Deputy City Manager
Community Services
Director of Economic
Development
Director of Economic
Development
Deputy City Manager
Internal Services
Deputy City Manager
Internal Services
Business
Development
Business
Development
Richmond Housing
Authority
Richmond Housing
Authority
Environmental &
Health Initiatives
Environmental &
Health Initiatives
Real Estate
Real Estate
Library
Library
Recreation
Recreation
Employment &
Training
Employment &
Training
Engineering and
Capital Improvement
Program (CIP)
Engineering and
Capital Improvement
Program (CIP)
Building Maintenance
Building Maintenance
Water Resource
Recovery
Water Resource
Recovery
Fleet
Fleet
Maintenance and
Abatement
Maintenance and
Abatement
Parks Maintenance
Parks Maintenance
Finance
Finance
Human Resources
Human Resources
Information
Technology
Information
Technology
Office of
Neighborhood Safety
Office of
Neighborhood Safety
ECIA Grant
Administration
ECIA Grant
Administration
Rent Program
Rent Program
Rev. 1.3.2023
Arts & Culture
Arts & Culture
Port
Port
Chief of Police
Chief of Police
Patrol
Patrol
Traffic
Traffic
Investigations
Investigations
Administration and
Support
Administration and
Support
Director of Community
Development
Director of Community
Development
Planning
Planning
Building
Building
Code Enforcement
Code Enforcement
Housing Policy
Housing Policy
RDA Successor
Agency
RDA Successor
Agency
Chief of Fire
Chief of Fire
Fire Prevention
Fire Prevention
Emergency Services
Emergency Services
Emergency
Operations
Emergency
Operations
Training
Training
Administration and
Support
Administration and
Support
Transportation
Transportation
Department of
Children and Youth
Department of
Children and Youth
Special Projects
Special Projects
Tab 5
Key Staff and Emergency
Operations Center Contact
Information
1.6.23 TITLE / DEPARTMENT NAME EMAIL ADDRESS PHONE ADDRESS City Attorney Dave Aleshire [email protected] 620-6509 450 Civic Center Plaza City Clerk Pamela Christian [email protected] 620-6513 450 Civic Center Plaza City Manager Shasa Curl [email protected] 620-6512 450 Civic Center Plaza Chief of Fire Angel Montoya [email protected] 307-8031 440 Civic Center Plaza Chief of Police Bisa French [email protected] 621-1802 1701 Regatta Boulevard Deputy City Manager, Internal
Services Nickie Mastay [email protected] 620-6602 450 Civic Center Plaza Deputy City Manager,
Community Services LaShonda White [email protected] 620-6512 450 Civic Center Plaza Director of Community
Development Lina Velasco [email protected] 620-6706 450 Civic Center Plaza Director of Economic
Development Nannette Beacham [email protected] 621-1306 450 Civic Center Plaza Director of Finance Delmy Cuellar [email protected] 620-6790 450 Civic Center Plaza Director of Information
Technology Sue Hartman [email protected] 620-6970 450 Civic Center Plaza Director of Public Works Daniel Chavarria [email protected] 620-5478 450 Civic Center Plaza
CITY OF RICHMOND
RICHMOND, CA 94804
E OC Director *
E S F #5 Management
E S F #14-L /T R ec overy
1. C ity Manager S hasa C url
2. F ire C hief Angel Montoya (R F D)
3. P olice C hief Bisa F rench (R P D)
P lanning & Intelligence S ection C hief*
1. L ina V elasco
2. C hris C astanchoa (Deputy S ection C hief)
3. E va Mann
L ogistics S ection C hief*
E S F #7-R es ourc es
E S F #17-V olunteer Mgmt.
1. R anjana Maharaj
2. S harrone T aylor
3. S ue Hartman
Operations S ection C hief*
1. Dept. F ire C hief Aaron Osorio (R F D)
2. C apt. Albert Walle; TBD (R P D)
3. Daniel C havarria (P W Dir.) ; R obert Armijo (Dept. P W Dir.) F inance & Administration S ection C hief*
E S F #7-R es ourc es
E S F #17-Donations Mgmt.
1. Delmy C uellar
2. Antonio Banuelos
3. Mubeen Qader
S afety Officer*
1. Nickie Mastay
2. L t. J ohn L opez (R P D)
3. F ire E xecutive T eam
L egal Officer*
1. S hannon Moore
2. Alan C ohen
3. J ames Atencio
P ublic Information Officer*
E S F #15 P ublic Information
1. C apt. M. S tonebraker, P olice P IO
2. Battalion C hief R ico R incon
3. F ire E xecutive T eam**
E OC C oordinator
(OE S Manager)*
1. F ire OE S Manager
2. F ire E xecutive T eam**
3. F ire E xecutive T eam
L iaison Officer*
1. L aS honda White
2. G . Arredondo
3. I. L ozano
L aw E nforcement Branch Dir.
E S F #13-L aw E nforcement
E S F #16 E vacuation
1. C apt. A. Walle
2. L t. E . Bashan
3. L t. D. Decious
F ire Branch Director
E S F #4-F irefighting
E S F #9-S A R
E S F #10-HazMat
1. T raining BC
2. On-Duty BC
3. F ire E xecutive T eam
P ublic Works (DIMO) Branch
Director
E S F #3-P ublic Works & E ng.
1. D. C havarria (P W Dir.)
2. R . Armijo (Dept. P W Dir.)
3.R . C helemedos
C oroner: C apt. M. S tonebraker
E vacuation/ Warning: On Duty
Dist. L t.
Investigations: L t. .E . Barragan
L E Mutual Aid: L t. C . Dean; OD
C apt/L t.
F ire S uppression:
Battalion C hief
Medical/Health: F ire C apt.;
Battalion C hief
S earch & R escue: R escue F ire
C aptain
F ire Investigations: F ire
Marshal/F ire P revention
C onstruction: TBD
S treets & R oadways: Hugo Mendoza; R ob C helemedos
Wastewater: M.P helps; B. Harms
Utilities: C . Hughes (E S F #12-Utilities )
C are & S helter: R . Maharaj; H. L attell; T . P orter; T . K isseh (E S F #6-MC S )
AF N C oordination: L aura Marquez, (TBD)
P arks: G . Hardesty; T . Nesbit, J . Moreno, M. Maltagliati P ort: L . Z hou
S ituation S tatus Unit*
1. C hristopher L arsen
2. Hector L opez
3. Hector R ojas
Documentation Unit*
1. I K uan C hoi
2. S oco Montore
3. P amela
C hristian/Ursula
DeL oa/J asuara
C astaneda
Damage Assessment
Unit
1. L eonard Williams
2. Dewayne T aylor
3. G autam Manandhar
Advance P lanning
Unit
1. R oberta F eliciano
2. Andrea Villarroel
3. L ydia E lias
R ecovery Unit
1. Maggie C hoi
2. K evin Tisdell
3. Brenda McNeil
Demobilization Unit
1. Wylendia E astman
2. J amie J enkins
3. C harice Duckworth
T echnical S pecialists
1. G eorge K abaivanov
2. R oberta F eliciano
3. R andall Narron
T ransportation Unit
E S F #1-T rans portation
1. L ori R eese-Brown
2. Denee E vans
T echnology S ystems
Unit L eader*
E S F #2 C ommunic ations
1. S ue Hartman
2. Henry L ei
3. S andi Wong
R esources Unit*
1. R ob C helemedos
2. Dee K arnes
3. TBD
Information: H. L ei
C ommunications (P ublic)*: R . L ee; C . Wimmer
C ommunications (Internal)*: M. Harrison, J . Hill,
A. Vitangcol
C omputers*: H. L ei; E . T am, J . Hill
P ersonnel Unit
1. C atherine S elkirk
2. K risti F lorence
3. J essica S omera
F acilities Unit*
1. K hary C lyburn
2. R HA
3. David Batiste
C ost R ecovery
Unit
1. A. Banuelos
2. L . Dela C ruz
3. A. Delgado
C ompensation/
C laims Unit
1. L . Marquez
2. E . C arty
3. L . Melgarejo
Time Unit
1. J . C hak
2. S . Williams
3. R . Navarro
C ost Analysis Unit
1. Vrenesia Ward
2. Bert J ones
3. R honda J ackson
P urchasing Unit*
1. Ofelia Alvarez
2. P . McK enzie
3. A. Banuelos
C ity of R ichmond ? E OC Organization
01/12/2023
Mayor
C ouncil Members
P rocurement Unit
1. O. Alvarez
2. P . McK enzie
3. TBD
* E OC P artial Activation P ositions. When a single incident requires centralized coordination of resources, staff fulfilling the positions with an * may be called in to staff the E OC via "One C all Now" and/or Nixle.
E xternal Agencies:
American R ed C ross,
E BMUD , P G E , V eolia
WC C US D , Other
Agency P artners
Management S ection
(C ommand
S taff)
V eronica Duarte de C astro
G eneral S taff
G eneral S taff
** F ire E xecutive T eam: F ire C hief,
Deputy F ire C hief, Battalion C hiefs
Tab 6
Administrative
Calendar
City of Richmond, CA ADMINISTRATIVE CALENDAR
Month Title Department/Division Lead
JANUARY
Mid-Year Budget Entry City of Richmond (CoR) City Manager's Office Mid-Year Budget Richmond Housing Authority (RHA) Finance Cost Allocation Plan Finance
AB 1234 (Ethics Training) City Attorney's Office
Fee Waivers and Partnership Report (Recreation) CSD - Recreation Department of Finance (DoF) Housing Unit Change Form Survey Community Services 6th Cycle Housing Element Update Adoption Hearing Community Development Fire Permit Fees Schedule Fire
FEBRUARY
Mid-Year Budget Adoption (CoR) Finance
Mid-Year Budget Adoption (RHA) Finance
Annual Budget Entry
PG & E Quarterly Update City Manager's Office
Green-Blue New Deal Update City Manager's Office
Annual Recognized Obligation Payment Schedule (ROPS) (Oversight Board approved) submission due Community Development
MARCH
Annual Budget Entry Finance
Mid-Term Financial Audit Finance
Master Fees Schedule Finance
Impact Fees Finance
Sanctuary City Ordinance Finance
Office of Neighborhood Safety - Annual Report CSD - ONS General Plan Annual Progress Report Approval Community Development Housing Element Annual Progress Report Community Development New Environmental Justice Element and Safety Element
Amendments Adoption Hearing Community Development
1 of 4
City of Richmond, CA ADMINISTRATIVE CALENDAR
Month Title Department/Division Lead
APRIL
Annual Budget Adoption City Manager's Office
Mid-Term Financial Audit Finance
Master Fee Schedule Finance
Impact Fees Finance
Sanctuary City Ordinance Finance
Form 700 - Statement of Economic Interest (FPPC) Filings Due City Clerk's Office General Plan Annual Progress Report Due Community Development Housing Element Annual Progress Report Due Community Development DOF Approval of FY Year ROPS for incorporation into City FY Budget Community Development Payments Received by City of Levied Special Assessments (40%) Community Development MAY
Annual Budget Adoption City Manager's Office
Mid-Term Financial Audit Finance
Master Fees Schedule Finance
Impact Fees Finance
Sanctuary City Ordinance Finance
Pension Tax Override Finance
Payments Received by City of Levied Special Assessments (5%) Community Development Emergency Operations Center (EOC) Readiness Training Fire JUNE
Annual Budget Adoption City Manager's Office
Pension Tax Override Finance
Design Review Board and Planning Commission Officer Elections Community Development JULY
Port Tariff Renewal Port Operations
Levy of Property & Business Improvement District (PBID) City Manager's Office 2 of 4
City of Richmond, CA ADMINISTRATIVE CALENDAR
Month Title Department/Division Lead
AUGUST
Fee Waivers and Partnership Report (Recreation) CSD - Recreation IT Inventory of Equipment (Network, Desktop, and Mobile Devices Information Technology County records Assessment/Levy on properties, adding amount to the upcoming year's tax roll Community Development
SEPTEMBER
Conflict of Interest Code Adoption City Attorney's Office
OCTOBER
Year-End Annual Financial Audit Finance
Single Audit (Grants) Finance
RFCY Baseline Report City Manager's Office
ECIA Annual Report Community Services
Open Enrolment - Medical/FSA/Transit Benefits Human Resources Deadline to submit prior period adjustment to ROPS
NOVEMBER
Year-End Annual Financial Audit Finance
Single Audit (Grants) Finance
Conflict-of-Interest Code Adoption City Attorney's Office RFCY Baseline Report City Manager's Office
ECIA Annual Report Community Services
Giving Tuesday (Tuesday After Thanksgiving) and Annual Charitable Giving Launch Human Resources
California State Library Report CSD - Library
Triennial California Building Standards Code Adoption (next cycle will be 2025)
Triennial California Fire Code Adoption (Next 2025) Fire 3 of 4
City of Richmond, CA ADMINISTRATIVE CALENDAR
Month Title Department/Division Lead
DECEMBER
Year-End Annual Financial Audit Finance
Single Audit Grants Finance
Mid-Year (RHA) Housing Authority
Levy of Special Assessments for Fines and Cost Related to Unpaid Administrative Citations, Nuisance Abatements and Foreclosure Ordinance Fines Community Development
Annual ROPS budget submitted to Council for approval for submittal Oversight Board Community Development
Payments Received by City of Levied Special Assessments (55%) Community Development Solid Waste Rate Update City Manager's Office
Hazardous/Material, EMT/Paramedic, and Rescue Certification (Yearly) Fire
Incident Command System (ICS) and National Incident Management System (NIMS) Courses Certification/Recertification (Biannual) Fire 4 of 4
Tab 7
City Council
References and
Support, Council
Meeting Technical
Guidelines
City Council References and Support
Working Onsite
The Vice Mayor and City Councilmembers are provided individual offices located at 440 Civic Center Plaza #110. The offices are fully equipped with a desktop computer, office landline, desk and file cabinet.
Access ID Badges will be provided by Information Technology. The badge will provide access to the City Council Suite, Council Chambers 24/7 and other City Offices during regular business hours.
Working Offsite
• Outlook Remote Access Link:
https://www.office.com/
Note: Use your city Outlook login and password to access your email account • Accessing voicemails
• Dial 510-620-6500
• Press #
• Enter your extension number (xxxx)
• Dial your password (xxxx) followed by #
Hard Copy Mail
Mail received via the US Postal Service and interoffice mail will be placed in your office inbox.
City Council Conference Room
To reserve the conference room, please contact Janice Featherstone, Office Aide or Trina Jackson-Lincoln.
Administrative Support:
Trina Jackson-Lincoln, City Council Liaison, is available to provide administrative support to the Richmond City Council. Ms. Jackson-Lincoln manages the City Council Office and supervises City Council staff.
Please contact Ms. Jackson-Lincoln regarding office supplies, assistance with scheduling meetings, and preparing documents for the City Council meeting agenda.
Additional information will be provided regarding available administrative support.
The vice mayor serves as the department head and approving official for the City Council Office. Responsibilities of the vice mayor will be provided upon appointment by the City Council.
Conference, Training and Meetings Allocation:
Each councilmember was allocated up to $2,500 for the 2022-2023 FY for expenses related to travel and city business related meetings.
Please contact staff in the City Council Office regarding conference attendance. The allocation for the fiscal year will be used to cover conference expenses and reimbursements. City Council Staff will provide the appropriate form for reimbursement requests.
Newly elected mayors and councilmembers are advised to attend the League of California Cities academy for newly elected officials in Sacramento from January 18-20, 2023.
https://www.calcities.org/education-and-events/event/2023/01/18/default-calendar/new-mayors-and- council-members-academy-2023
City Council Technical Support
The Information Technology Department provides technical assistance for the City Council and departments. Emails can be sent to [email protected] directly.
City Council Meeting Technical Support
Prior to each agenda, a calendar invitation will be sent with instructions on how to logon to the Closed and Open Sessions.
The City Clerk compiles and posts the City Council agenda on the Thursday prior to the scheduled meeting. An email similar to the snapshot below is sent to the City Council and staff once the agenda has been posted to the City of Richmond website.
Sample City Council Meeting Agenda Notification Email
Mayor and Council blind copied.
The agenda/packet for the Tuesday, November 15, 2022, Regular City Council Meeting is available on the web. Follow the link below to view. A copy of the agenda is attached for your convenience.
http://www.ci.richmond.ca.us/4157/City-of-Richmond-Council-Meetings
*CLOSED SESSION BEGINS AT 2:00 P.M.
*SPECIAL RICHMOND HOUSING AUTHORITY BEGINS AT 6:25 P.M. *RICHMOND CITY COUNCIL BEGINS AT 6:30 P.M.
Pamela Christian, City Clerk
City of Richmond
450 Civic Center Plaza, Richmond, CA 94804
Office: (510) 620-6513, Ext. 9
Website: www.ci.richmond.ca.us/cityclerk
ZOOM GUIDELINES FOR CITY COUNCIL MEETINGS
• Internet bandwidth is most important for zoom meetings. Please make sure to have sufficient internet access from your remote location. If internet access is not sufficient, you may consider participating from your City Council Offices. • Please check your remote professional settings including lighting and background. This will improve the zoom meeting from looking too grainy or blurred. It is preferred that you not use a virtual background image.
• Your image may improve by having a comfortable seat so the camera can focus on your face in a stable position focusing on the headshot (upper body) in the middle of the screen.
• Your background during the virtual meeting is important. Having a bookshelf and or picture on the wall can make the Council Members image look more professional. Clutter in the background can make the image distracting.
• Wearing business attire is important. A business suit is preferred. • If needed you may want to consider a new webcam, speaker, supplemental lighting, and or headset. (The City can help you with this).
Zoom Guidelines:
Please make sure you are in an area near your internet connection and your Zoom app has been downloaded.
Make sure you are in a professional setting and turn off any background sound.
Once you have joined on a computer or mobile device, the following will help you navigate in Zoom:
Microphone: is Muted, is Un-Muted
Please mute your microphone and keep it muted anytime you are not speaking. Turn off the TV and radio, put your cell phone on silence, and close the door to the room while you are in the meeting.
Video setting should be turned on. Please make sure you are in a professional setting while the video camera is on.
Sharing and Chat features should not be used.
Tab 8
Appointments to City
and Regional Boards,
Commissions, and
Committees, etc.
2021 Appointments to Regional Committees, Ad Hoc Committees and Liaison Positions
Council Appointments 6/29/2021, City Council Meeting – Item H-1
Mayor: Tom Butt
Vice Mayor: Demnlus Johnson
Councilmembers: Nathaniel Bates, Melvin Willis, Eduardo Martinez, Gayle McLaughlin, Demnlus Johnson, Claudia Jimenez
Boards, Commissions and Committee Liaisons:
Arts and Culture Commission: Willis
Citizens Police Review Commission:
Jimenez
Commission on Aging: McLaughlin
Design Review Board: Butt
Economic Development Commission:
Johnson
Historic Preservation Commission: Butt
Housing Advisory Commission: McLaughlin
Human Rights and Human Relations
Commission: McLaughlin
Library Commission: Martinez
Personnel Board: Johnson
Planning Commission: Butt
Public Art Advisory Committee: Willis
Recreation and Parks Commission: Willis
Richmond-Shimada Friendship
Commission: Bates
Richmond-Zhoushan Friendship
Commission: Johnson
Richmond-Regla Friendship Committee:
Martinez
Richmond Youth Council: Johnson
Urban Forest Advisory Committee:
Martinez
Workforce Development Board: Bates
Liaison positions DO NOT necessitate attending any or all the meetings.
City of Richmond Ad Hoc Committees
NURVE Policy Ad Hoc Committee
Members: Martinez
Alternate: Bates
ECIA Environmental and Community Investment Ad Hoc Committee Members: Jimenez, Willis
Alternate: Johnson
Regional Committees
West Contra Costa Integrated Waste Management Authority (RecycleMore) Members: Bates, McLaughlin, Willis
Alternate: Martinez
West County Agency
(JPA between the City of Richmond and the West County Wastewater District) Members: Martinez, Bates
Alternate: Jimenez
Association of Bay Area Governments (ABAG) Representative Members: Butt
Alternate: Martinez
East Bay Regional Parks
Members: Martinez and Butt
Alternate: Johnson
Gilman Street Sport Complex
Members: Martinez
Alternate: Willis
League of CA Cities East Bay Division
Members: Johnson
Alternate: Martinez
League of CA Cities Voting Representative
Members: Butt
Alternate: Martinez
MCE Clean Energy Representative
Members: Butt
Alternate: Johnson
North Richmond Mitigation Fee Joint Committee
Members: Martinez, Johnson, and Bates
Alternate: Willis
West Contra Costa Transportation Advisory Committee (WCCTAC) Members: Butt, Johnson and Martinez
Alternate: Willis
West Contra Costa Unified School District Liaison (WCCUSD) Members: Martinez
Tab 9
Agenda Item Process
for Councilmembers
(Agenda Report and
Resolution Template)
City Council Agenda Items:
Please use the attached template to complete an Agenda Report for agenda items. The deadline for councilmembers to submit agenda items is by noon on the Wednesday before the desired City Council meeting. If the completed agenda report and supporting documentation are not submitted by the deadline, the item may be pushed to the next City Council meeting. It is strongly recommended that placeholders are submitted with as much lead time as possible. This provides an opportunity for staff to review, prepare and ask questions of the item sponsor(s), if necessary.
(insert date of meeting)
Department
(Use the draw down menu by clicking on the word Department and select City Council or the appropriate department)
DATE: [Enter the date of the meeting. Not the date the report was created.]
TO: Mayor0DUWLQH] and Members of the City Council
FROM:
(List all relevant/responsive staff
persons - Sponsors)
Name, Title and Department
Subject:
(This will appear on the agenda)
[Should be a short sentence or phrase for filing purposes if you want similar subjects filed together].
FINANCIAL IMPACT: SPELL OUT HOW MUCH THIS ACTION WILL COST AND WHETHER THE COST IS INCLUDED IN THE BUDGET. IF IT IS
NOT IN THE APPROVED BUDGET, A BUDGET ADJUSTMENT
MUST BE PART OF THIS SECTION, INCLUDING THE SOURCE
OF FUNDS… EXAMPLE:
“This action extends the term of the contract from January 30, 2006 to December 31, 2006 and increases the contract amount by $10,000, from $20,000 to $30,000. This expenditure is included within the approved fiscal year 2004 – 2005 budget, XYZ project/program”.
If there is no financial impact related to the item, indicate there is no financial impact in this section. Do not leave the yellow highlight on the report in any of the sections. It will show on the action agenda.
PREVIOUS COUNCIL
ACTION:
(List all dates items were heard or
council action took place)
[INDICATE WHETHER OR NOT THIS ITEM HAS BEEN BEFORE A
SUBCOMMITTEE OF THE COUNCIL OR THE CITY COUNCIL
AND, IF SO, WHEN, AND WHAT THE RECOMMENDATION OR
ACTION WAS. IF THERE WAS NO PREVIOUS ACTION, THEN
STATE NONE OR LEAVE BLANK]
AGENDA REPORT
*Instructions*
REPORT
(insert date of meeting)
STATEMENT OF THE
ISSUE:
[A concise sentence or brief paragraph , explaining the purpose of the item]
RECOMMENDED ACTION:
(This will appear on the agenda)
This should state what the sponsor is requesting of the City Council.
[Action word] Accept, Adopt, Amend, Approve, Authorize, Commend, Consider, Direct, Discuss, Review…
DISCUSSION:
ANALYZE THE SITUATION; GIVE REASONS FOR RECOMMENDATIONS; INCLUDE OTHER ALTERNATIVES AND WHY THEY WERE NOT RECOMMENDED. IF
APPLICABLE,
PROVIDE CONCISE HISTORICAL NARRATIVE ON HOW WE GOT TO THIS POINT,
INCLUDING COUNCIL ACTIONS AND DIRECTIVES
DOCUMENTS ATTACHED:
(Resolutions, Reports, Maps, etc. or state None)
Attachment 1 –
Attachment 2 –
(insert date of meeting)
Department
DATE: Click or tap to enter a date.
TO: Mayor _______ and Members of the City Council
FROM:
(List all relevant/responsive staff
persons)
Name, Title and Department
Subject:
(This will appear on the agenda)
Click here for Subject
FINANCIAL IMPACT: Click or tap here to enter text.
PREVIOUS COUNCIL
ACTION:
(List all dates items were heard or
council action took place)
Click or tap here to enter text.
STATEMENT OF THE
ISSUE:
Click or tap here to enter text.
RECOMMENDED ACTION:
(This will appear on the agenda)
APPROVE.
DISCUSSION:
AGENDA
REPORT
(insert date of meeting)
DOCUMENTS ATTACHED:
Attachment 1 – Original Contract
Attachment 2 – Amendment to the Contract
Reso. No. XX-20
RESOLUTION NO. XX- 20
RESOLUTION OF THE COUNCIL OF THE CITY OF RICHMOND, CALIFORNIA, AUTHORIZING, APPROVING ETC.…
WHEREAS, xxx, and
WH
EREAS, xxx.
NOW, THEREFORE, BE IT RESOLVED that …..
**********************
I certify that the foregoing resolution was passed and adopted by the Council of the City of Richmond at a regular meeting thereof held Month DD, 2020, by the following vote:
AYES:
NOES:
ABSTENTIONS:
ABSENT:
PAMELA CHRISTIAN
CLERK OF THE CITY OF RICHMOND
(SEAL)
Approved:
THOMAS K. BUTT
Mayor
Approved as to form:
TERESA STRICKER
City Attorney
State of California }
Count
y of Contra Costa : ss.
City of Richmond }
I
certify that the foregoing is a true copy of Resolution No. XX-20, finally passed and adopted b
y the City Council of the City of Richmond at a regular meeting held on Month DD, 2020.
Pamela Christian, Clerk of the City of Richmond
Tab 10
Reimbursement
Requests
City of Richmond
Administrative Policy (AP) Manual
TRAVEL/TRAINING
EXPENSE REPORT FOR REIMBURSEMENT
Exhibit AP 508-1 6/11/2021
www.irs.gov
Date of
Payment
Day of Trip
(please
choose or
enter)
Account String Description
Method of
Payment (please
choose or enter)
# of Miles
(attach roundtrip
internet map &
receipts)
Expense Type
(please choose
or enter)
Receipt Amount
(do not include mileage
here)
TOTAL # OF
MILES
RECEIPT
SUBTOTAL
MILEAGE $
(calculated)
GRAND TOTAL
DATE:
DATE:Department Director Signature:
The above is approved for payment.
Employee Signature:
All expenses, including meals, must be within the guidelines described in the City of Richmond AP Manual.
Expenses without attachments will not be reimbursed.
All City of Richmond required documentation, which includes original itemized receipts for reimbursable expenses, must be attached to this Travel/Training Expense Report for Reimbursement and submitted within ten (10) business days of return from travel/training.
I certify this Travel/Training Expense Report for Reimbursement as true and correct to the best of my knowledge and belief, and I have not previously received payment and/or credit for the items described on this form.
Return Travel Date (flight, drive, etc.): COR assigned location (address):
Current Mileage Rate available at: Travel/Training number of days:
Beginning date (personal travel): End date (personal travel):
Department:
To (Date): Location of Trip:
Travel Date to Event (flight, drive, etc.): Purpose of Trip:
Portion of travel extended for personal reasons must be paid with personal funds separately from CalCard (rental car on separate contract, hotel, meals, etc.) and is not reimbursable. Please enter below the beginning date and end date for the portion of this travel that was for personal reasons.
Employee Vendor #: Employee Name:
Office Phone: Title:
Dates of Event - From (Date):
City of Richmond
Administrative Policy (AP) Manual
INTERNATIONAL TRAVEL/TRAINING
EXPENSE REPORT FOR REIMBURSEMENT
Exhibit AP 508-4 7/1/15
www.fiscal.treasury.gov
Date of
Payment
Day of Trip
(please
choose or
enter)
Account String Description
Method of
Payment (please
choose or enter)
Expense
Type (please
choose or
enter)
Country
Receipt
Amount
Foreign
exchange rate
for date of
receipt
US Dollar
Amount
SUBTOTALS
GRAND
TOTAL
DATE:
DATE:
Employee Vendor #: Employee Name:
Office Phone: Title:
COR assigned location (address):
Dates of Event -From (Date): Department:
To (Date): Location of Trip:
Department Director Signature:
I certify this International Travel/Training Expense Report for Reimbursement as true and correct to the best of my knowledge and belief
, and I have not previously received payment and/or credit for the items described on this form.
All expenses, including meals, must be within the guidelines described in the City of Richmond AP Manual.
All City of Richmond required documentation, which includes original itemized receipts for reimbursable expenses, must be attached to this International Travel/Training Expense Report for Reimbursement and submitted within ten (10) business days of return from travel/training.
Expenses without attachments will not be reimbursed.
Employee Signature:
The above is approved for payment.
Foreign Exchange Rate available at: Travel/Training number of days:
Portion of travel extended for personal reasons must be paid with personal funds separately from CalCard (rental car on separate contract, hotel, meals, etc.) and is not reimbursable. Please enter below the beginning date and end date for the portion of this travel that was for personal reasons.
Beginning date (personal travel): End date (personal travel):
Travel Date to Event (flight, train, etc.) Purpose of Trip:
Return Travel Date (flight, train, etc.):
Tab 11
Councilmember
Benefits Summary
6/26/2020 1 | P a g e
City of Richmond,
California
Mayor and City Council
SALARY
Mayor Salary 3,875.00/month
Council Member Salary 1,402.50/month
STIPEND
Each Council member shall receive a stipend of $30.00 for attendance at the following meetings:
Richmond Housing Authority meeting $30.00/meeting
Richmond Redevelopment Agency meeting $30.00/meeting
CAR ALLOWANCE
Mayor and Vice Mayor $350.00 per month
Council Member $300.00 per month
TRAVEL
To conserve City of Richmond resources and keep expenses within community standards for public officials, expenditures shall adhere to the guidelines of Resolution 127 -17. In the event that expenses are incurred which exceed these guidelines, the cost borne or reimbursed by the City of Richmond will be limited to the costs that fall within the guidelines.
When considering the annual budget, the City Council shall consider appropriating sufficient funds to cover estimated expenses covered by the Richmond City Council Expense and Expenditure Policy.
BENEFITS
Employee Benefits Provided by the City of Richmond
California Public Retirement System (CalPERS)
Each retired member of the City Council shall receive the same retiree medical benefits as those provided to Executive Management, with the exception that each member of the City Counci l may elect enrollment in a non -CalPERS medical plan and receive reimbursement for medical payments made to such plan. The benefit provided herein shall apply to all medical premiums made on or after January 1, 2007.
MEDICAL
Each member of the City Council shall have the option of joining the C alPERS. The employee portion of the CalPERS contribution shall b e paid by the Council Member. If the Council Member elects to join CalPERS, they become eligible to enroll in the City’s CalPERS Medical Insurance Plan.
DENTAL/VISION
City contributes total cost of vision premium for member and eligible family member(s).
For further information, please refer to the following City of Richmond Ordinances Ordinance 14-07
Ordinance 24-07
Ordinance 32-07
Tab 12
City Council Rules of
Procedure and Order
1 CITY OF RICHMOND
City Council Rules
of
Procedure and Order
Adopted by City Council Resolution No. 61-13
Effective: June 18, 2013
Amended April 22, 2014
Amended October 21, 2014
Amended July 27, 2021
Amended November 23, 2021
Amended January 18, 2022
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Richmond that the following rules of the City Council shall govern all proceedings of the City Council therein described, subject to the exception and deviations provided for in such rules.
BE IT FURTHER RESOLVED, that the Council shall review its Rules of Procedure in March of each even numbered year.
2 Table of Contents
SECTION PAGE
I. Officers’ Responsibilities 4
II. Meetings 4
III. Conducting Meetings 5
IV. Order of Business 8
V. Agenda Preparation 11
VI. Procedural Matters 13
3 DEFINITIONS
Councilmembers: All elected members of the City Council including the mayor.
4 I. Officers’ Responsibilities
A. Duties of Mayor At City Council Meetings
The mayor shall preside at the meetings of the Council and shall preserve strict order and decorum at all regular and special meetings of the Council. The mayor shall state every question coming before the Council and announce the decision of the Council on all subjects, and decide all questions of order. The mayor has final say on all rules, subject to being overturned by a majority of the City Council.
B. Duties of Councilmembers at City Council Meetings
Promptly at the hour on the date of each regular and special meeting, the members of the Council shall take their regular stations in the Council Chambers and the business of the Council shall be taken up for consideration and disposition pursuant to Article III of the City Charter.
II. Meetings
A. Regular Meetings
(1) Regular meetings of the Council of the City of Richmond shall be held on the first and third Tuesdays of the month provided that, if any Tuesday falls on a legal holiday, the meeting shall be held on the following Tuesday at the same hour. Any future regular or special meeting may be canceled by a vote of a majority of the members of the City Council during a regular or special meeting. (2) Regular meetings held on the first and third Tuesdays of the month should be reserved for items requiring Council action.
(3) The evening session of regular City Council meetings shall begin at 6:30 p.m or as otherwise posted.
(4) Regular meetings of the City Council shall adjourn by 11:00 p.m. unless the time of adjournment is extended by the consent of a majority of the City Council. Any motion to extend the meeting beyond 11:00 p.m. shall include a list of specific agenda items to be discussed or approved and shall specify the order these items shall be handled. If a meeting continues past 11:00 p.m., it shall end at 11:30 p.m. 11:30 shall be the firm end-time of the meeting, unless by a 2/3 vote the City Council suspends the rules and then votes affirmatively to extend past 11:30
B. Fourth Tuesday Meetings As Needed
The Council may hold regular meetings on the fourth Tuesday of the month as needed.
Study sessions, presentations, proclamations, commendations, time-sensitive items, and items expected to take more than an hour will be scheduled at that meeting. If possible, agenda items anticipated to be lengthy should appear as the first item on the agenda.
Study for Action sessions may result in a City Council motion that provides policy direction to staff.
C. Closed Sessions
A closed session may be held at any regular or special meeting for any purpose authorized by the Brown Act. Council actions shall be governed by the Brown Act.
Public comment shall be received in open session prior to a closed session. To ensure strict compliance with the Brown Act, the City Attorney, or the City Attorney’s designee, shall be the individual who reports out in public session any reportable action taken during closed session, and any other information from closed session authorized to be disclosed by a majority vote of the City Council.
D. Special Meetings
Special meetings may be called at any time by the mayor or by a majority of the City
5 Council in accordance with Government Code Section 54956. The call and notice of such special meeting shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such special meeting by the City Council.
E. City Council Recess Periods
The City Council recess period shall begin the first Tuesday in August, and reconvene the first Tuesday following the week of Labor Day.
During any recess period, the city manager is authorized to take such ministerial actions for matters of operational urgency including such emergency actions as are necessary for the immediate preservation of the public peace, health or safety, as would normally be taken by the City Council during the period of recess, except for those duties specifically reserved to the Council by the Charter. This authority extends throughout the period of recess established by the City Council.
The city manager shall make a full and complete report to the City Council at its first regularly scheduled meeting, following the period of recess, of actions taken by the city manager pursuant to this section, at which time the City Council may make such findings as may be required and confirm said actions of the city manager.
III. Conducting Meetings
A. Rosenberg Rules of Order
Rosenberg's Rules of Order, as published by the League of California Cities, shall be the parliamentarian rules of order for City Council meetings except for the exceptions described in Section VI, B Procedural Matters 5-7.
B. Quorum Call
During the course of the meeting, should the Chair note a Council quorum is lacking, the Chair shall call this fact to the attention of the city clerk. The city clerk shall issue a quorum call. If a quorum has not been restored within three minutes of a quorum call, the mayor may call for a recess of up to 30 minutes in order to establish a quorum or he/she may adjourn the meeting.
C. Decorum and Discussion by Council members
While the Council is in session, the members must preserve order and decorum. A Councilmember shall not, by conversation or other actions, delay, interrupt the proceedings or the peace of the Council nor disturb any member while speaking, nor refuse to obey the orders of the Council, or the presiding officer, except as otherwise herein provided. Councilmembers shall use discretion and leave the Chamber to discuss items before the City Council with members of the audience.
Councilmembers are prohibited from using a cell phone or pager during a meeting, except for urgent matters, to avoid disruption and also to avoid a perception of a Brown Act violation.
All Councilmembers shall maintain a professional decorum during business meetings of the City Council. All members should adhere to the City of Richmond’s Code of Ethics.
Councilmembers shall limit their questions to staff and other presenters to actual questions, rather than statements.
Councilmember’s comments and questions will be limited to 5 minutes per item.
After each Councilmember has had a turn, the Council may vote on a non- debatable motion to have additional rounds of discussion also limited to 5 minutes
6 per Councilmember. For important issues, each Councilmember will be allowed two “special considerations” per meeting. Each “special consideration” will allow a Councilmember an additional 5 minutes on a topic.
D. Manner of Addressing the City Council in-person - Time Limit
(1) Anyone who desires to address the City Council on items appearing on the agenda must complete and file a pink speaker’s card with the city clerk prior to the City Council’s consideration of the item. Once the city clerk has announced the item and discussion has commenced, no person shall be permitted to speak on the item other than those persons who have submitted their names to the city clerk. Speakers will be called when the item is announced for discussion. Each speaker will be allowed two (2) minutes to address the City Council on items listed on the agenda.
(2) Unless otherwise permitted by a majority of the City Council, once the discussion of the agenda item has commenced, no person shall be permitted to speak on the item other than those persons who have submitted their names to the City Clerk. Unless otherwise waived by a majority of the City Council any person addressing the City Council on any item on the agenda shall be limited to a maximum of two (2) minutes.
(3)The city clerk shall call the speakers in groups of seven to sit directly behind the speaker podium. The person shall approach the microphone, state his/her name and city of residence in an audible tone of voice for the records. All remarks shall be addressed to the City Council as a body and not to any member thereof.
Manner of Addressing the City Council – Virtual or by phone
(4) To comment by video conference, click on the Participants button at the bottom of your screen and select the “Raise Your Hand” button to request to speak when Public Comment is being asked for. Speakers will be called upon in the order they select the “Raise Your Hand” feature. When called upon, press the unmute button. After the allotted time, you will then be re-muted.
(5) To comment by phone, you will be prompted to “Raise Your Hand” by pressing “*9” to request to speak when Public Comment is asked for. When called upon, you will be asked to unmuted by pressing *6. After the allotted time, you will then be re-muted.
E. Decorum by Public
No person shall engage in disorderly behavior that actually disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting. Such behavior may include but is not limited to shouting, making disruptive noises, such as boos or hisses, creating or participating in a physical disturbance, calling out or speaking out of turn or in violation of applicable rules, refusing to modify conduct after being advised by the presiding officer that the conduct is disrupting the meeting or disobeying any other lawful order of the presiding officer, speaking on an issue that is not within the jurisdiction of the City Council, speaking on an item at a time not designated for discussion by the public of that item, continuing to speak after the allotted speaker time has expired, causing an immediate threat to public safety, preventing or attempting to prevent others who have the floor from speaking, preventing others from observing the meeting, entering into or remaining in an area of the meeting room that is not open to the public, or approaching the Council table without consent. Any message to or contact with any member of the Council while the Council is in session shall be through the City Clerk.
F. Enforcement of Decorum
Any law enforcement officer on duty or whose service is commanded by the presiding officer shall be Sergeant-at-Arms of the Council meetings. He/she, or they, shall carry out all orders and instructions given by the presiding officer for the purpose of maintaining order and decorum at the Council meetings.
7 The rules of conduct shall be enforced in the following manner:
a) Call to order and warning to desist. Whenever practicable, the presiding officer shall give a warning to the person who is breaching the rules of conduct to be orderly and to comply with the rules of conduct. A second warning shall also be given when practicable. A warning need not be given when it would not be effective under the circumstances, including when, for example, the disturbance is such that the warning cannot be heard above the noise, or the person’s conduct immediately threatens public safety (such as throwing of objects or specific threats of harm and the apparent, present ability to carry out such threats). b) Order barring person from that same meeting. A person who engages in disorderly behavior shall be barred from the remainder of that same council meeting by the presiding officer when that person continues the disorderly behavior after receiving a warning at that meeting (and a second warning when practicable) to desist. Such behavior is willful disruption that actually disrupts the orderly conduct of the meeting.
G. Brown Act Requirements for Council Action
The Council shall not take action on any item that has not been published on the agenda of the meeting and posted in accordance with Chapter 4 of the Brown Act. Any item not on the agenda shall not be considered unless the item can be considered by the City Council pursuant to Government Code Section 54954.2(b), The Ralph M. Brown Act (Attached as Section B, Government Code Section 54950-54963, in the Index of this Policy).
H. Requests for Technical Assistance and/or Reports
During Council consideration of an item any member can request staff to provide technical assistance, develop a report, initiate staff research, or respond to requests for information or service. All such responses to these requests become a matter of Public Record.
A Councilmember may request research on any item being considered. Any Councilmember may ask staff to provide information when such a request would only require a reasonable amount of time to accomplish, as determined by the city manager. A request for information being considered that requires an extensive amount of staff time must be approved by the majority of the Councilmembers. Staff shall not spend any time or money pursuing initiatives that are contrary to existing public policy without first requesting and receiving direction from a majority of the City Council.
City staff has the same obligation to respond to Councilmembers’ requests for information as requests from the public pursuant to Chapter 2.40 of the Richmond Municipal Code (RMC).
I. Recordings of Meetings
All meetings of the City Council (except closed sessions) shall be open to the media and may be recorded by tape, radio, television, or photography by a member of the public, provided such recordings do not interfere with the orderly conduct of the meetings and do not (because of noise, illumination, or obstruction of view) constitute a persistent disruption of the proceedings.
J. Campaigning at Meetings
City Council chambers during City Council meetings are a campaign-free zone. Election of individuals to the Council or other office is not within the Council’s subject matter jurisdiction, and speakers may not campaign for or against candidates for office at Council meetings. Ballot measures, on the other hand, are within the jurisdiction of the Council and may be discussed; and speakers may criticize the City’s policies, programs, services or acts or omissions of the Council or its members. The following are examples of permissible comments: “Vote for Measure A”, “Vote against Measure D”, “The streets are filled with potholes”, “The Council is doing a poor job”, “Councilmember Smith is a lousy councilmember.” The following comments are examples of impermissible comments outside of the City’s subject matter jurisdiction: “Vote for Smith”, “Vote against Smith”.
8 IV. ORDER OF BUSINESS
A. Pledge of Allegiance to the Flag – in person meeting
At the beginning of each Richmond City Council meeting, the Pledge of Allegiance will be recited by the City Council and the audience.
B. Call to Order - Presiding Officer
The mayor, or in the mayor’s absence, the vice mayor, shall take the chair precisely at the hour appointed by the meeting and shall immediately call the Council to order.
Upon the arrival of the mayor, the vice mayor shall immediately relinquish the chair at the conclusion of the business presently before the Council. In the absence of the two officers specified in this section, the Councilmember present with the longest consecutive period of Council service shall preside.
C. Roll Call
Before proceeding with the business of the City Council, the city clerk shall call the roll of the members of the City Council and the names of those present and absent shall be entered in the minutes.
D. Scheduling of Items
As a courtesy to the public, to the extent possible, the City Council agenda will include estimated times for agenda items to be heard for items that are of considerable public interest. If a time certain appears on the Council agenda, in no event will the agenda item be heard or discussed before its estimated time. The business of the City Council at its regular meetings on the first and third Tuesdays of the month shall be taken up for consideration and disposition in the order set forth below and as published by the city clerk, except that with the concurrence of a majority of the City Council matters may be taken up out of order:
a. Roll Call
b. Statement of Conflict of Interest
9 c. Agenda Review
d. Presentation, Proclamations and Commendations (if required for timeliness) Presentations, proclamations and commendations shall be limited to three (3) items per meeting and a maximum of five (5) minutes for each item, unless otherwise permitted by the mayor. Unless items are deemed to be time sensitive by the mayor, presentations proclamations and commendations should be limited to the City Council meeting on the fourth Tuesday. Each Councilmember shall be limited to thirty (30) minutes of Presentations and Proclamations each ½ year, with sixty (60) minutes allocated for the mayor for each ½ year/.
e. Report from City Attorney for final decision made, and non-confidential discussions held, during Closed session
f. Report from the City Manager
g. Abatement Report from the Public Works Director – First Tuesday meeting h. Report from Implementation Sub-Committee for Reimagining Task Force – Third Tuesday meeting
i. Recent Crime Report by the Police Chief – Fourth Tuesday meeting j. Open Forum for Public Comments (public comment for items that remain on the Consent Calendar and Items f, g, h, and i, listed above, may be heard under Open Forum).
k. Consent Calendar (including approval of minutes, resolutions that are non- controversial, and second reading of ordinances).
l. Public Hearings
m. Budget Session
n. New Business – (including Council as a Whole items, resolutions that require discussion, and ordinances that do not require a public hearing)
o. Reports of Officers: Standing Committee Reports, Reports from Mayor/Council members/Staff, and Referrals to Staff
p. Adjournment
E. Open Forum for Public Comments – in person
Individuals who would like to address the City Council on matters not listed on the agenda may do so under Open Forum. All speakers must complete and file a pink speaker’s card with the City Clerk prior to the commencement of Open Forum. The amount of time allotted to individual speakers shall be determined based on the number of persons requesting to speak during this item. The time allocation for each speaker will be as follows: 15 or fewer speakers, a maximum of 2 minutes; 16 to 24 speakers, a maximum of 1 and one-half minutes; and 25 or more speakers, a maximum of 1 minute.
Speakers are asked to give their name and city of residency prior to making their public comment. To expedite the public comment period, the City Clerk will announce the name of the speakers in groups of seven and state the procedure for speakers.
The mayor or meeting chair may refer a subject to staff or other resources for factual information or for action, if appropriate.
10 F. Reading of Minutes
Unless the reading of the minutes of the City Council meeting is requested by a majority of the City Council, such minutes may be approved without reading if the city clerk has previously furnished each member of the City Council with a copy thereof. Minutes of previous City Council meetings shall be distributed to the Councilmembers and posted on the City’s website 72 hours prior to the next City Council meeting.
G. Consent Calendar
The mayor, any member of the City Council, the city manager, the city attorney or the city clerk may recommend that items appearing on the agenda be placed on the consent calendar for action by the City Council. All items placed on the consent calendar shall appear together on the agenda with the recommendation as to the action to be taken by the City Council with respect to such item. All items placed on the consent calendar that have been approved by a Standing Committee shall appear together on the agenda with the recommendation and the vote of the Standing Committee. Upon the motion of any member of the City Council, all items placed upon the consent calendar may be acted upon together, and each shall be deemed to have received the action recommended.
H. Removal of Item From Consent
Procedures for Removing Items from the Consent Calendar: Members of the public who request to remove an item from the consent calendar must first discuss the item with a staff member by phone or a back-and-forth email discussion, and state the name of the staff member when requesting removal of the item from the consent calendar.
Any member of the City Council who would like to remove an item from the consent calendar must notify the appropriate staff person and the City Clerk’s Office prior to the meeting. Although members of the City Council are encouraged to ask questions and share concerns with staff ahead of the meeting, they are not required to do so.
The Clerk’s Office must be informed of any requests to remove items from the Consent Calendar.
Items removed from the Consent Calendar shall be placed at the end of the agenda for consideration.
I. Public Hearings
The order of proceeding where there is a public hearing (non-appeal items) item before the City Council shall be as follows:
(1) Staff Report
(2) Questions from the Council
(3) Open Public Hearing
(4) Public Speakers, alternating from a speaker in favor and a speaker opposing
(5) Close Public Hearing
(6) Clarification questions to staff
(7) City Council discussion and vote (discussion may include questions by Council)
11 Where the public hearing involves (an appeal) of an item to the City Council, the order of proceeding shall be as follows:
(1) Staff Report
(2) Questions from the Council
(3) Open Public Hearing
(4) Appellant's statement *
(5) Principal opponent’s statement *
(6) Public Speakers, alternating from a speaker in favor and a speaker opposing*
(7) Appellant’s rebuttal (two minutes)
(8) Opponent’s rebuttal (two minutes)
(9) Close Public Hearing
(10) Clarification questions to staff or technical questions to applicants.
(11) City Council discussion and vote (discussion may include questions by Council)
* Note: The appellant and the principal opponent addressing the City Council shall be limited to a maximum of eight (8) minutes each and all other persons addressing the City Council shall be limited to a maximum of three (3) minutes.
The City Council by an affirmative vote of a majority of its members may make appropriate adjustments in the amount of time given to make presentations during public hearings depending upon the unique circumstances of a given public hearing.
*Note: Public speakers, alternating from a speaker in favor of the appeal to a speaker opposed to the appeal, to a speaker taking no position. Speakers shall have three minutes to address the City Council.
J. Reports of Officers
Members of the City Council and City staff shall limit their reports to matters concerning attendance at a meeting, conference, event or activity, reminder of upcoming events, m eetings or other activities, or update on p reviously reported information. Service complaints or requests for services by the City Council shall not be reported but shall be directed to the City Manager prior to or following the City Council meeting for appropriate action.
K. Items Not Completed
Any items not completed at a regularly scheduled Council meeting shall be continued to the next regular business meeting or study session meeting (respectively), or by a majority (quorum) vote of the Council to an adjourned regular meeting. Items carried over from a previous meeting shall be scheduled as the first order of business within the appropriate category if possible.
V. Agenda Preparation
For purposes of this section, the terms listed herein shall be defined as follows:
A. Definitions
1. Agenda Item means an item placed on the agenda for a vote of the Council by a
12 Councilmember, the city manager, city attorney, and city clerk.
Agenda items shall have a staff report, including the following:
(a) The name of the legislative body that will take action on the item;
(b) A Statement of the Issue that adequately informs the public of the subject matter and general nature of the item or report and action requested;
(c) Staff Recommendation reviewed and approved by
the City Manager; (d) Fiscal Impacts of the
recommendation;
(e) A description of the current situation and its effects; (f) Background information as needed;
(g) Explanation for the recommendation;
(h) Person or persons to contact for further information, with telephone number;
(i) If the author of any report believes additional background information, beyond the basic report, is necessary to Council understanding of the subject, the staff report will describe the attachments included. The staff report and its attachments will be included in the published agenda packet and available for City Council and public review on the City Clerk’s Office webpage.
2. “Agenda” means the compilation of the descriptive titles of agenda items with the required action stated submitted to the City Clerk.
3. “Packet” means the agenda and all the staff reports.
B. Submission of Agenda Items
The placement of any item on any regular or special meeting agenda shall be limited to the following: (1) the mayor or any member of the City Council; (2) the city manager; (3) the city attorney; and (4) the city clerk. To place an item on the agenda, a member of the City Council must submit the item to the City Council staff liaison or to the city clerk, in the absence of the Council liaison, no later than 12 noon on Wednesday, one week prior to the Tuesday regular meeting. The Council will endeavor to submit agenda items that require staff work earlier than the deadline stated above. The Mayor’s Office staff is responsible to submitting mayor-sponsored items to the agenda by 12 noon on Wednesday, one week prior to the Tuesday regular meeting.
Items placed on the agenda by the City Council shall remain on the agenda and will not be removed without the approval of the Councilmember requesting the item be placed on the agenda.
The mayor, city manager, city clerk, and city attorney shall meet to review the draft agenda as compiled by the city clerk and set the final agenda.
C. Committee Review of Certain Items
If it is determined either after or prior to Council consideration of an issue, that the issue requires an in-depth review, a detailed analysis, further debate, discussion or other consideration, this agenda item may be referred to a City Council standing committee or to the full City Council as a study session. Following the committee meeting or study session, the recommendations regarding the items may be placed on a regular or special meeting agenda for consideration by the City Council or placed on a future committee meeting agenda for additional discussion. In order for the full City Council to be engaged in policy issues, an item may not be retained by the committee for more than two (2) months without concurrence of a majority of the City Council. Committees should eventually refer all items to the Council for consideration whether or not a committee recommendation has been reached.
13 D. Scheduling Public Hearings Mandated by State, Federal, or Local Statute
The City Clerk may schedule a public hearing at an available time and date in those cases where State, Federal or Local statute mandates the City Council hold a public hearing.
E. Packet Preparation and Posting
1. Preparation of the Packet
The city clerk shall prepare the packet, which shall include the agenda plus all its corresponding duplicated agenda items. No item shall be considered if not included in the packet, with the exception of a correction or supplement to an item already included in the packet or an item deemed an urgency by the city attorney because of the following circumstances:
a. The subject meets the criteria of “Emergency.”
b. There is a need to take immediate action and that the need for action came to the attention of the City subsequent to the posting of the agenda as required by law.
2. Distribution and Posting of Agenda
The city clerk shall post each agenda of the City Council regular meeting at least72 hours in advance of the meeting and shall post each agenda of a special meeting at least 24 hours in advance of the meeting on the official outside enclosed bulletin board of City Hall, at the website, on KCRT (City channel station), and at a location that is available to the public 24 hours a day. The city clerk shall maintain proof of posting each agenda.
The City Clerk shall also post agendas of all City Council and Standing Committee meetings on the City’s website.
Copies shall also be available free of charge in the lobby of City Hall.
F. Distribution of the Packet
1. 72 or 24 hours prior to said meeting, the City Council agenda/packet shall be available on the City’s webpage.
2. Matters listed on the printed agenda but for which supporting documentation is not received by the City Council prior to said meeting as part of the agenda packet, shall not be discussed or acted upon. In cases where the good of the City outweighs the lack of time for citizen review or Councilmember evaluation of an item, the Council by a vote of a quorum of the members may waive this rule.
VI. Procedural Matters
A. Motions to Be Stated By Chair
When a motion is made, it shall be stated by the Chairperson or the City Clerk before debate or discussion.
B. Motions Not Open To Debate
Rosenberg’s Rules of Order states that when the following motions are made, the Chair must call for an immediate vote without debate:
14 1. Motion to Adjourn
2 Motion to Recess
3. Motion to fix adjournment
4. Motion to table
5. Motion to limit debate a.k.a “Call the question” requires a majority vote.
6. Motion to close nominations requires a majority vote
7. Motion to object to consideration; this prevents debate on an item and requires a majority vote
C. Rules of Debate
(1) Presiding Officer May Debate. The presiding officer may debate from the chair, subject only to such limitations of debate as are by these rules imposed on all members, and shall not be deprived of any of the rights and privileges as a member of the Council by reason of his/her acting as the presiding officer.
2) Getting the Floor - Improper References to be Avoided. Every member desiring to speak shall address the Chair, and upon recognition by the presiding officer, shall confine himself/herself to the question under debate.
3) Interruptions. A member, once recognized, shall not be interrupted when speaking unless it is to call him/her to order, or as herein otherwise provided. If a member, while speaking, be called to order, he/she shall cease speaking until the question of order be determined, and, if in order, he/she shall be permitted to proceed.
4) Privilege of Closing Debate. The Councilmember moving the adoption of an ordinance or resolution shall have the privilege of closing the debate. When a motion to call a question is passed, the Councilmember moving adoption of an ordinance, resolution or other action shall have three minutes to conclude the debate.
5) Suspension of the Rules (as per Rosenberg’s Rules) requires a 2/3 vote of the Council.
6) Repeal or Amendment of Action Requiring a Vote of a Quorum, Two-Thirds, or Greater of Council. Any ordinance or resolution which is passed and which, as part of its terms, requires a vote of a quorum, two-thirds or more of the Council in order to pass a motion pursuant to such an
ordinance or resolution, shall require the vote of the same percent of the Council to repeal or amend the ordinance or resolution.
D. Motion to Table
A motion to table shall preclude all amendments or debate of the subject under consideration. If the motion shall prevail, the consideration of the subject may be resumed only upon a motion of a member voting with the majority and with consent a majority of the members present.
E. Addressing the Council After Motion Made
When a motion is pending before the Council, no person other than a Councilmember shall address the Council without first securing the permission of the Mayor or Meeting Chair to do so.
F. Continuance of Items
At the Mayor’s sole discretion, the mayor may continue any item placed on a regular meeting agenda for a period of up to two weeks. The Council may override an action taken by the mayor to continue an item by the affirmative vote of a majority of the Council (Article III-A, Section 1 (e), Charter of the City of Richmond).
Tab 13
City Attorney’s Office
Overview
Councilmember
Orientation Guide
CITY ATTORNEY’S OFFICE
2 NEW COUNCILMEMBER
ORIENTATION GUIDE
TABLE OF CONTENTS
1. INTRODUCTION TO THE CITY ATTORNEY’S OFFICE
2. SUMMARY OF BROWN ACT AND COMMON LEGAL ISSUES FOR
COUNCILMEMBERS
❖ Brown Act
❖ Agendas
❖ Action Taken by a Legislative Body
❖ Meetings
❖ Public Participation
❖ Closed Sessions
❖ Penalties for Failing to Comply with the Brown Act
❖ Conflicts of Interest Under Political Reform Act of 1974 ❖ Conflicts of Interest in the Making of Contracts
❖ Incompatible Offices
❖ Parliamentary Procedures
3. PERSONAL LIABILITY FOR ACTS OF OFFICERS AND EMPLOYEES OF THE CITY
4. CONFLICTS OF INTEREST LAWS
5. ETHICS LAW PRINCIPLES FOR PUBLIC SERVANTS:
KEY THINGS TO KNOW
6. FINANCIAL MANAGEMENT FOR ELECTED OFFICES:
QUESTIONS TO ASK
7. UNDERSTANDING THE BASICS OF PUBLIC SERVICE ETHICS
8. ROSENBURG’S RULES OF ORDER
3 CONTACT US:
City Attorney
David J. Aleshire, City Attorney
Office: (510) 620-6509
Email: [email protected]
Secretary: Karen R. Becker
Email: [email protected]
Shannon Moore, Chief Assistant City Attorney
450 Civic Center Plaza
Richmond, CA 94804
Office: (510) 620-6505
Email: [email protected]
James Atencio, Senior Assistant City Attorney
450 Civic Center Plaza
Richmond, CA 94804
Office: (510) 620-6504
Email: [email protected]
Alan Cohen, Senior Assistant City Attorney
450 Civic Center Plaza
Richmond, CA 94804
Office: (510) 620-6709
Email: Alan_cohen@ci. richmond.ca.us
Stephanie Vollmer, Deputy City Attorney
450 Civic Center Plaza
Richmond, CA 94804
Office: (510) 620-6506
Email: [email protected]
Administrative Support: Crystal Shanklin
Direct: (510) 620-6510
Email:Crystal_Shanklin@ci. richmond.ca.us
Zena Battle
Direct: (510) 620-5501
Email: [email protected]
SUMMARY OF BROWN ACT AND COMMON
LEGAL ISSUES FOR COUNCILMEMBERS
OVERVIEW OF BROWN ACT, CONFLICTS OF INTERESTS,
INCOMPTABILE OFFICES AND PARLIAMENTARY PROCEDURES
City of Richmond
David J. Aleshire, City Attorney
October 2022
This overview memorandum provides a summary of the Brown Act ( “Open Meeting Law” ), conflicts of i nterest under the Political Reform Act and in contracts, incompatible o ffices, and parliamentary procedures. Many of the issues discussed (especially conflicts of interest) can be potentially complex. Specific situations may be unique and require individualized analysis. Please refer to detailed memorandum entitled “Conflict of Interest Laws” from City Attorney’s Office for further details on, and a more robust discussion of, conflicts of interest laws discussed in this summary. Your city attorney is available to answer any legal questions or concerns you may have.
A. BROWN ACT - “OPEN MEETING LAW” (Government Code § 54950 et seq.)
1. The Brown Act requires all meetings of legislative bodies and advisory bodies to be open and public, including meetings of:
a. City Council.
b. Commission and committee bodies.
c. Bodies created by formal action to provide an advisory role and/or exercise authority delegated by the legislative body.
d. Note: Also applies to elected officials before they actually assume office. e. Note: Does not apply to (i) bodies of less than a quorum of the legislative body intended to play an advisory role or (ii) meetings of individual members of a legislative body with staff or meetings of staff generally.
2. Agendas:
a. An agenda must include all matters to be transacted or discussed, including topics to be discussed in closed session.
b. No action may be taken if an item is not on the agenda (unless it i s an emergency item).
c. Each item on the agenda must include a brief description, sufficient to inform the public of the nature of each item of business, which allows the
Summary of Brown Act and
Common Legal Issues for Councilmembers
City of Richmond
David J. Aleshire, City Attorney
October 2022
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public to determine whether to participate. Closed session item descriptions have specified formats. (See #6 below for more on closed session items.) d. Each agenda must be conspicuously posted 72 hours prior to the meeting in a place readily accessible to public. Special or emergency meetings agendas do not require 72-hour notice. (See #4(h-i) below.)
e. Each agenda must include a reasonable period of time for public comment before or during consideration of an agenda item, although there is no requirement to allow separate public comment immediately before each specific item. Comments can also be made on items of interest to the public and within the subject matter jurisdiction of the agency. f. The legislative body may add an item to the agenda when the immediate need to act arose subsequent to the posting of the agenda and if there is a 2/3 vote of the body or a unanimous vote if less than 2/3 of the body are present.
g. No discussion may be had of any item not on agenda except: a brief response to statements or questions from members of public; asking questions for clarification; providing refer ence to staff or other resources for factual information; requesting staff to report at subsequent meeting on any matter; or directing staff to place a matter on a future agenda.
3. Action taken by a legislative body:
a. Includes a collective decision, or a promise to make one, by a quorum. b. Includes an actual vote by a quorum upon a motion, proposal, resolution, ordinance, or order.
c. No preliminary or final action may be taken by secret ballot on public agenda items.
4. Meetings:
a. A meeting takes place if a quorum of the legislative body receives information on, discusses, or deliberates on any item on which the body may legally act.
b. Includes communication by email, phone, texting, fax, or similar means to develop a collective concurrence as to action to be taken. c. Serial and rotating meetings or polling are prohibited, but social gatherings are permitted if the business of the legislative body is not discussed. d. Does not include (with conditions) a quorum in attendance at a conference open to public or at public meetings organized by a person or agency other than the local agency to address a topic of local concern. e. Must generally be held within the boundaries of the agency, i.e., “retreats” not permitted.
Summary of Brown Act and
Common Legal Issues for Councilmembers
City of Richmond
David J. Aleshire, City Attorney
October 2022
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f. A regular meeting may be adjourned to a specified new date, place, and time. If the new meeting date is within 5 days, no new agenda posting is required.
g. Regular meetings with place and time must be provided by ordinance, resolution, or bylaws.
h. A special meeting must be called by the presiding officer or a majority of members with 24-hour notice to all media requesting such notice, written notice to each member and notice to the public.
i. Emergency meetings may be called when a quorum determines that an emergency severely impairs pu blic health and safety. One-hour notice of the meeting must be given to media.
j. Remote attendance at meetings is allowed only under one of the following circumstances (and certain procedural details apply):
(1) During a declared state of emergency, where the Council has approved by a majority vote that meeting in person would be a threat to public safety. Must be renewed every 30 days (sunsets January 1, 2024); or, (2) One or more members of the Council (but less than a quorum) have “just cause” for not attending the mee ting in person (childcare or family caregiving need, contagious illness, physical or mental disability need, or travel while on official public business) and such absence is limited to no more than 2 meetings per year (effective January 1, 2023); or, (3) One o r more members of the Council (but less than a quorum) experience an emergency circumstance (a physical or family medical emergency that prevents in -person attendance) and such absence is limited to less than 3 consecutive months or 20% of regular meetings (effective January 1, 2023); or,
(4) One or more members of the Council may appear remotely if properly noticed on the agenda and the remote location is open and accessible to the public. At least a quorum shall participate within the boundaries of the City.
5. Public Participation:
a. Any member of the public may attend an open meeting. The legislative body cannot require an attendee to provide his name or address or impose other conditions on attendance or public comment.
b. The agency may not prohibit public critici sm of policies, procedures, programs, services, acts, or omissions of the agency.
c. The public may record the proceedings by video, film, or audiotape, unless the body finds that the recording constitutes a persistent disruption through noise, illumination, obstruction of view, etc.
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d. An individual or group may be removed from a meeting only if a warning has been given and the disruption is such that it impedes the orderly conduct of the meeting.
6. Closed Sessions:
a. Closed sessions are meetin gs conducted in private without the attendance of the public or press.
b. Closed sessions may only be conducted when authorized by law. c. Most common reasons for closed session meetings:
• Pending Litigation:
o Adjudicatory proceeding.
o Initiation of litigation - when a case has been filed against the agency, or when the agency has decided or is deciding to initiate a lawsuit , or when litigation has been formally initiated.
o Exposure to litigation - applies only under specified circumstances.
• Real property negotiations - the agenda description must identify the property involved, the parties negotiating, and the general issues. • Labor negotiations.
• Personnel matters.
d. The agency’s available funds, funding priorities, or budget may not be discussed in closed session.
e. Requirements for closed session meetings:
• 72-hour notice should be provided for regular closed sessions. • The agenda description must be in a specific format and the item must be announced in open session, in advance of the closed session. • Immediately after the closed session, the legislative body must reconvene in open session and make any required disclosure. • The legislative body may designate someone to keep minutes during a closed session meeting.
7. Penalties for failing to comply with the Brown Act:
a. It is a misdemeanor to take action on an item with the intent to deprive the public of information.
b. Injunction, mandamus, and declaratory relief are available to cure Brown Act violations.
c. A decision made in violation of the Brown Act may be voided.
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October 2022
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d. A person alleging a Brown Act violation must demand corrective action within 90 days from the date that the action was taken, or within 30 days if the action was taken in open session but in violation of agenda requirements. e. A challenged action will not be upheld if a person challenging notice provisions had actual notice at the appropriate time.
8. Note: Emails or other writings containing information relating to the conduct of the public’s business are public records. Other types of public records generally include:
a. All writings distributed to the legislative body by any person in connection with matter subject to discussion or action at a public meeting. b. Final documents approved in closed session.
c. Any tape or film record of an open meeting made by or at the direction of the legislative body.
B. CONFLICTS OF INTEREST UNDER POLITICAL REFORM ACT OF 1974 (Government Code § 81000 et seq.)
1. Each agency must adopt Conflict of Interest Code.
a. The code must list all officers who must report (those making or influencing decisions).
b. The code must include the following disclosure categories:
• Real property income, investments, and business interests.
2. Statements of economic interest must be filed pursuant to Code: file when you enter office, annually, and when leaving office.
3. Generally, the Political Reform Act prohibits a public official from participating in or attempting to use influence to affect decisions which affect financial interests. a. Procedure. If a public official has a disqualifying interest, then she or he must, immediately prior to the consideration of the matter:
i. publicly identify the financial interest that gives rise to the conflict; ii. recuse herself or himself from discussing and/or voting on the matter; and
iii. leave the room until after the discussion, vote, or other disposition of the matter.
* If an official leaves a meeting in advance of the agenda item in which the official is disqualified, the official must publicly identify the agenda item and the financial interest prior to leaving the meeting. * An official first joining a meeting after the consideration of an agency item in which the official is disqualified must publicly identify the agenda item and the financial interest immediately upon joining the meeting.
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b. Acting as Member of the General Public. The official may, however, make a public appearance before the body or board as a member of the general public, but only to represent herself or himself on matters related solely to the official’s personal interests.
c. “Legally Required” Exception. There is an exception to the general rule that allows a public official to participate if her or his participation is “legally required.” This exception is narrowly construed and applies only if there is no alternative source of decision. This exception may not be used simply to break a tie amongst non -conflicted members and may not be used if a quorum of non-conflicted members may be convened. The FPPC provides detailed procedures that must be followed for the “legally required” exception to apply, and it is advised that you should seek counsel from your city attorney before application of this procedure.
4. A conflict of interest will exist if the official has an economic interest in the decision and all the following occur:
a. It is reasonably foreseeable that the decision will affect the Councilmember’s economic interest.
b. The effect of the decision on the Councilmember’s economic interest will be material.
c. The effect of the decision on the Councilmember’s economic interest will be distinguishable from its effect on the public generally. * There are extensive rules and statutes that govern application of above rules.
Councilmembers are encouraged to confer with city attorney when reviewing a potential conflict of interest in a decision.
5. Five basic types of economic interests (includes personal and immediate family):
a. Business Entity. A public official has an economic interest in a business entity in which he or she has a direct or indirect investment worth $2,000 or more; and, a public official has an economic interest in a business entity in which he or she is a director, officer, partner, trustee, employee, or holds any position of management.
b. Real Property. A public official has an economic interest in real property in which he or she has a direct or indirect interest of $2,000 or more. • An interest in property , within 500 feet or less of the property which is the subject of the decision , is considered to be materially affected, unless there is clear and convincing evidence the decision will not have any measurable impact on the official's property. • An interest in property, located more than 500 feet but less than 1,000 feet from the property which is the subject of the decision , is considered to be materially affected if the decision impacts the
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property’s development potential, income producing potential, and a list of other factors.
• An interest in property, located 1,000 feet or more from the property which is the subject of the decision, is presumed not to be material. Presumption may be rebutted with clear and convincing evidence decision would have a substantial effect on the official's property.
c. Income. A public official has an economic interest in any source of income which aggregates to $500 or more within 12 months prior to the decision. d. Gifts. A public official has an economic interest in any source of gifts to him or her if the gifts aggregate to $520 or more within 12 months prior to the decision.
e. Personal Finances. A public official has an economic interest in a personal measurable financial benefit or loss for him or her (including expenses, income, assets, or liabilities), as well as those of immediate family.
6. Campaign Contributions (effective January 1, 2023 ; for further analysis and discussion - and potential immediate applicability of these new laws to Councilmembers - please see more detailed memorandum from City Attorney’s Office entitled “Conflict of Interest Laws”).
a. Campaign Contributions When Council Decision Pending and Afterwards.
A councilmember cannot accept a campaign contribution of more than $250 from any party or participant (or agent) with a financial interest in City proceeding involving a license, permit, or other entitlement, while proceeding is pending before City Council for decision, and for 12 months after the decision. A violation , after a Council decision is made , can be cured under certain conditions, if contribution returned within 14 days. b. Campaign Contributions 12 Months Before Council Decision . If a councilmember has received a campaign contribution in an amount greater than $250 in the 12 months prior to a decision involving a license, permit, or other entitlement, from a party or participant (or agent) with a financial interest in the decision, then that councilmember cannot participate in the decision. Disclosure at the council meeting required. Participation permitted if contribution returned within 30 days from when the councilmember knows, or should have known, about the contribution and the proceeding.
7. Penalties for violation:
a. Misdemeanor.
b. Removal from office.
c. Decision voidable.
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8. If it is unclear whether a conflict exists, the FPPC will provide a letter opinion.
9. Advise the city attorney of potential conflict early enough to allow the city attorney to provide adequate advice.
C. CONFLICTS OF INTEREST IN THE MAKING OF CONTRACTS (Government Code § 1090)
1. Prohibits a government officer or employee acting in his or her official capacity, from making a contract, or participating in the making of a contract, in which he or she is financially interested. Virtually any involvement in the contract -making process is considered participation in the making of a contract.
2. Financial interests presumptively include:
• Landlord or tenant of contracting party
• Attorney or agent of contracting party
• Supplier of goods or services to the contracting party • Note: A public official has not only his or her own financial interests in a contract but also that of a spouse where he or she stands in the shoes of the spouse for purposes of Section 1090.
3. An officer or employee shall not be a purchaser at any sale or a vendor in any purchase made in his or her official capacity.
4. No conflict of interes t for “remote interests” and “non -interests.” However, the officer or employee must still disclose the financial interest, abstain from influencing the contract -making process, and note the interest in the legislative body’s official records.
5. A disclosure of the conflict does not cure the conflict.
6. The contract will be void and unenforceable and the official will be subject to:
• Criminal and civil penalties
• Potential disgorgement of any consideration received or property acquired in the transaction (Example: Thompson v. Call (1985) 38 Cal.3d 633 [City able to retain title to parcel of land sold and councilmember liable to city for the amount of the purchase price from the sale ($258,000) plus interest]).
• Willful violation of Section 1090 may be punished as a felony.
D. INCOMPATIBLE OFFICES (Common Law Doctrine & Government Code § 1099)
1. Common law doctrine prohibits a single official from holding two public offices with potential overlap in the functions and responsibilities of the two offices.
2. Offices include elected and appointed offices as established by municipal code.
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3. Under Government Code § 1099, incompatibility includes:
• Conflicting supervisory authority.
• Possibility of a significant clash of duties or loyalties between the offices.
4. Remedy: Removal from the first office, of the two offices, assumed.
E. PARLIAMENTARY PROCEDURES
Rosenberg’s Rules of Order (Attached)
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Personal Liability for Acts of Officers and Employees of the City I. INTRODUCTION
As a new member of the City Council , you may be concerned about the extent of your personal liability, as a councilmember, for acts taken by the council or by advisory committee s and City employees. Therefore, we are providing you with a general overview of both state and federal law without reference to any particular set of circumstances.
II. CALIFORNIA GOVERNMENT TORT CLAIMS ACT
From the earliest days of California ’s legal history, public officers and employees have been held personally liable in damages for injuries suffered through malfeasance, omission, or neglect in the performance of their duties. 1 A broad exception to the rule of official liability is the doctrine of offici al immunity for discretionary action. In Lipman v. Brisbane Elementary School District (1961) 55 Cal.2d 224, the Court stated that:
“Because of important policy considerations, the rule has become established that government officials are not personally l iable for their discretionary acts within the scope of their authority even though it is alleged that their conduct was malicious.”2
This statement is an accurate representation of California law as it existed at the time of the Lipman decision. The policy consideration for this immunity is said to be that:
“The subjection of officials, the innocent as well as the guilty, to the burden of a trial and to the danger of its outcome would impair their zeal in the performance of their functions, and it is bett er to leave the injury unredressed than to subject honest officials to the constant dread of retaliation.”3 To paraphrase Judge Learned Hand, it is impossible to know whether the claim is well - founded until the case has been tried. Thus, to require publi c officials to incur the risk of trial would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.4
1 See, e.g., Lick v. Maddin (1868) 36 Cal. 208.
2 35 Cal.2d at 229.
3 Id
4 Gregories v. Biddle (2d Cir. 1949) 177 F.2d 579, 581.
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In 1963, the California legislature enacted the California Tort Claims Act in response t o the decision of Muskopf v. Corning Hospital District (1961) 55 Cal.2d 211, which is the companion case of the Lipman decision. The effect of the Tort Claims Act was to abolish all common law actions against governments and government officials and emplo yees as they existed prior to the date of enactment and to establish an entirely statutory procedure for claims against public entities, officials and employees. Government Code Section 820 provides that, except as otherwise provided by statute, a public employee is liable for injury caused by his act or omission to the same extent as a private person. The most significant portion of this statement is the “except as otherwise provided by statute. ” The legislature has substantially adopted the discretionary immunity doctrine as set forth in the Lipman case, as well as various other grounds of immunity for governmental officials and employees.
The following is a review of the provisions of the California Tort Claims Act as they pertain to the acts of officers and employees of governmental entities.
1. Execution or Enforcement of Laws.
Government Code Section 820.4 states that a public employee is not liable for his acts or omissions when exercising due care in the execution or enforcement of any law. Nothin g in this section exonerates a public employee from liability for a false arrest or false imprisonment. Note that the exclusion of false arrest or imprisonment does not preclude the application of other immunity statutes which may be applicable.
2. Acting Under Authority of Law.
Government Code Section 820.6 states that if a public employee acts in good faith, without malice, and under the apparent authority of an enactment that is found to be unconstitutional, invalid or inapplicable, he is not liable for an injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable. Due care is not required for the application of this immunity ; “good faith, without malice” is required. This immun ity is somewhat broader than that previously contained in Government Code Section 1955 which applied only to actions pursuant to unconstitutional statutes.
3. Vicarious Liability.
Government Code Section 820.9 states that councilmembers are not vicariously liable for injuries caused by the act or omission of the public entity or advisory body. However, nothing in this section exonerates an official from liability for injury caused by that individual ’s own wrongful conduct.5 Vicarious liability is a device a court may use to impute liability upon one
5 For example, although an elected or appointed official has the same right anyone else has to alert City code enforcement staff about possible code violations, if complaints from a public offici al can be deemed to have produced a legal action of “singling out ” one business or property owner without reasonable justification, the City can be sued for selective enforcement of its laws.
In McClure v. City of Long Beach (2004), a jury awarded a busine ss owner $22.5 million as a result of selective enforcement of municipal codes which resulted in the closing of the business. In the McClure case,
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for the wrongful conduct of another. For example, an employer can be held vicariously liable for the action of his employees in certain circumstances. This section does not allow liability to be imputed to a councilmember for the acts or omissions of the council or other advisory bodies.
4. Adoption of or Failure to Adopt an Enactment.
Government Code Section 821 states that a public employee is not liable for an injury caused by his adoption of or failure to adopt an enactment or by his failure to enforce an enactment. This section is a continuation of a common law doctrine of immunity as set forth in Martelli v. Pollock (1958) 162 Cal.A pp.2d 655; city c ouncilmember immu ne from action as councilmember.
5. Actions, re: Permits, Licenses, Etc.
Government Code Section 821.2 states that a public employee is not liable for an injury caused by his issuance, denial, suspension or revocation of or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where he is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.
6. Inspections.
Government Code Section 821.4 states that a public employee is not liable for injury caused by his failure to make an inspection or by reason of making an inadequate or negligent inspection of any property other than the property of the public entity employing the public employee, for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.
7. Malicious Prosecution.
Government Code Section 821.6 states that a public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.
councilmembers, in response to complaints from neighbors, urged code enforcement staff to issue citations an d correction notices to Ms. McClure, who was engaged in the business of operating 6 -bed homes for Alzheimer ’s patients. When Ms. McClure went out of business she filed a lawsuit alleging her civil rights were violated due to selective enforcement.
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8. Entry on Property.
Government Code Section 821.8 states that a public employee is not liabl e for an injury arising out of his entry upon any property where such entry is expressly or impliedly authorized by law. Nothing in this section exonerates a public employee from liability for an injury proximately caused by his own negligent or wrongful act or omission.
9. Money Stolen from Custody.
Government Code Section 822 states that a public employee is not liable for money stolen from his official custody. Nothing in this section exonerates a public employee from liability if the loss was sustained as a result of his own negligent or wrongful act or omission.
10. Misrepresentation.
Government Code Section 822.2 states that a public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation is negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.
11. Discretionary Acts.
Government Code Section 820.2 states that except as otherwise provided by statute, a public employee is not l iable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion is abused. This is basically a restatement of pre -existing California law, as n oted above. Examples of statutes providing for liability, even though discretionary authority may be exercised, are as follows:
a. Dangerous conditions of public property. (Government Code §840.2); b. Willful acts of disaster workers and owners of shelter s or aid stations. (Civil Code §1714.5); and
c. Misrepresentation involving actual fraud or actual malice. (Government Code §822.2).
Government Code Section 820.2 ’s grant of immunity is perhaps the most significant grant of immunity in the Tort Claims Ac t. The most authoritative statement on the distinction between discretionary and ministerial acts is contained in the California Supreme Court case Johnson v. State (1968) 69 Cal.2d 782. The Johnson court made clear that the distinction is controlled principally by the concept of separation of power. The basic purpose of immunity is the assurance of judicial abstention in areas where the responsibility for basic policy decisions has been committed to coordinate branches of government. The Court believed that any wider judicial review would place the Court in the unseemly position of determining the propriety of decisions expressly entrusted to a branch of government and, moreover, the potential that such review might affect the body’s decision-making process.
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The mere classification of an act as discretionary will not provide immunity, however, if the injury results from the negligence of the employee in performing the act rather than from the exercise of the discretion vested in him. 6 For example, in Johnson, the Court held certain state employees liable for their failure to warn a foster mother of a youth ’s propensity for vicious and homicidal behavior when the youth was placed with the foster mother for foster care by the California Youth Authority. T he Court found that the basic policy decision to parole the boy was a discretionary policy consideration entrusted by statute to the California Youth Authority and that the Youth Authority could not be held liable for this decision. The Court further held, however, that in implementing this policy, the state employees acted in such a manner as to constitute a classic case for the imposition of tort liability and that , in view of their negligent performance of the policy as established, the employees were s ubject to liability to the foster mother.
Concurrent with all of the above -listed immunities is the right to be defended and indemnified by the public entity for judgments, compromises, or settlements arising out of an act or omission occurring in the scop e of employment as an employee of the public entity. 7 While this indemnification provision specifically excludes that part of a claim or judgment for punitive or exemplary damages, a 1985 amendment provides for some relief by authorizing a public entity to pay the punitive or exemplary damages part of a judgment if the governing body finds all of the following:
a. The judgment is based on an act or omission of an employee or former employee acting within the course and scope of his or her employment as an employee of the public entity.
b. At the time of the act giving rise to the liability, the employee or former employee acted, or failed to act, in good faith, without actual malice and in the apparent best interests of the public entity.
c. Payment of the claim or judgment would be in the best interests of the public entity.
6 Accord, McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252. 7 Gov. Code § 825.
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III. LEGISLATIVE ACT IMMUNITY
Members of local legislative bodies have complete immunity from liability based on their legislative acts.8 In Kuzinich, an adult entertainment operator sued the county and its board of supervisors claiming violations of his constitutional rights. After the adult entertainment operator’s use permit had expired the county board of supervisors directed their county counsel to file an action to enjoin the operati on of the adult entertainment businesses and adopted , as an emergency measure , an amendment to the zoning ordinances which made the adult business unlawful in the areas they were operating. The federal court of appeals found that immunity existed in regar ds to the passing of the zoning amendment, as a legislative act. The court also considered the board ’s direction to county counsel to initiate a lawsuit an executive act, rather than legislative, giving the board qualified, rather than absolute, immunity.9 The Court in Shoultes v. Laidlaw (6th Cir. 1989) 886 F.2d 114, 117 -118 provides an explanation of the policy basis for this immunity. In Shoultes, a council adopted a zoning ordinance restricting the location of “adult” bookstores and entertainment. T he adult bookstore operator was cited for code violations and fined for violating the ordinance. On appeal, a state court held the ordinance invalid because it had been adopted without following the applicable statutory procedures. The adult bookstore op erator sued the council and mayor under 42 U.S.C.
Section 1983.
The Shoultes court adopted the Supreme Court’s view in Tenney v. Brandlove (1951) 341 U.S. 367, that legislators should not be deterred from “uninhibited discharge of their legislative duty,” especially at the local lawmaker level. 10 The Shoultes court reasoned that the threat of liability might be an even greater deterrent to service at the local level, where the rewards of pay and prestige are generally less than at the federal or state level.11 In sum, councilmembers are completely immune for those actions considered to be legislative acts.
IV. FEDERAL -- CIVIL RIGHTS ACT PROCEEDINGS
The Federal Civil Rights Act, 42 U.S.C. Section 1983, is a powerful legislative remedy (which provides for injun ctive relief as well as compensatory and punitive damages) enacted by Congress for the protection of certain rights “secured by the Constitution and laws ” against infringement by the States.
8 Kuzinich v. County of Santa Clara (9th Cir. 1983) 689 F.2d 1345. 9 Id at 1350.
10 Shoultes, supra, 866 F.2d at p.117.
11 Ibid.
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Section 1983 states:
“Every person who, under color of any sta tue, ordinance, regulation, custom or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Prior to the United States Supreme Court decision in Monell v. New York City Dept. of Soc. Serv. (1978) 436 U. S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, municipalities were not subject to suit in a 42 U.S.C. Section 1983 Civil Rights action.12 However, the Supreme Court in Monell held:
“Local governing bodies . . . can be sued directly under Section 1983 for monetary, declaratory, or injunctive relief where [the] action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the Section 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other Section 1983 `person, ’ by the very terms of t he statute, may be sued for constitutional deprivations visited pursuant to governmental `custom ’ even though such a custom has not received formal approval through the body’s official decision-making channels.”13 The question of immunity was addressed in Owen v. City of Independence (1980) 445 U.S. 622, where the United States Supreme Court held that municipalities have no immunity from damages liability resulting from constitutional violations.14 However, at the same time, the Owen court emphasized the ma intenance of a qualified good faith immunity for public officials to avoid an undue chilling effect on the exercise of their decision-making responsibilities.15 As more case decisions are rendered, the contours of liability and immunity under Section 1983 continue to be defined. For example, the landmark decision of Parratt v. Taylor (1981) 451 U.S. 527, requires consideration of the adequacy and availability of remedies under state law before deciding whether a deprivation of life, liberty or property violates due process of law. The decisions of the United States Supreme Court also underscore the significance of a considered inquiry into the purpose and history of the Civil Rights Act, as well as presen t public policy considerations.16
12 Monroe v. Pape (1961) 365 U.S. 167.
13 Monell, 436 U.S. at 690, 56 L.Ed.2d at 635.
14 Id at 657.
15 Id at 653-654.
16 See Smith v. Wade (1983) 461 U.S. 30; Briscoe v. Lattue (1983) 460 U.S. 325; Newport v.
Fact Concerts, Inc. (1981) 453 U.S. 247, 258; Imbler v. Pachtman (1976) 424 U.S. 409, 417.
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The good faith immu nity defense as applied to public officials and employees was qualified in Harlow v. Fitzgerald (1982) 457 U.S. 800. In Harlow, the qualified immunity under the good faith defense was judged according to an objective standard viewed in two parts:
1. Whether the applicable law that the defendant public official purportedly violated was clearly established at the time of the incident;
2. If the law was clearly established, the defendant must then prove; a. That he was not aware of such law and therefore of t he impropriety of his actions; and
b. That the average person in his situation would not have known of such law and therefore that such actions were wrong.
If a defendant public agency or employee fails to establish either of these facts, a good faith defense will fail. The import of the Harlow decision is that a defendant does not have to raise the good faith defense unless the court has found that the relevant law was clearly established when the incident occurred.17
Hundreds of cases have utilized the Ha rlow standard since its inception in 1982.
Examples of such decisions are:
1. Whisenant v. Yuam (4th Cir. 1984) 739 F.2d 160 -- Good faith of police officers and prison officials was no defense to claim that they were deliberately indifferent to pretrial detainee’s serious medical needs where law requiring adequate medical attention is clearly established.
2. Alexander v. Polk (E.D. Pa. 1983) 572 F. Supp. 605(aff ’d by 750 F.2d. 250) -- City officials were protected by qualified immunity from liability in their personal capacities for denial of due process and statutory notice to recipients of benefits under a supplemental food program where issues of entitlement and notice requirements under the priority program were issues of first impression.
(See also Mitchell v. Forsyth (1985) 86 L.Ed.2d 411; U.S. v. Leon (1984) 82 L.Ed.2d 677.) Exhaustion of state remedies is not a prerequisite to bringing an action under Section 1983.18 Additionally, in California, a Section 1983 action is cognizable in state court as well as federal court.19 Notably, neither state governmental tort immunities 20 nor state claims statutes 21
17 Heslip v. Lobbs (E.D. Ark. 1982) 554 F.Supp. 694.
18 Patsy v. Board of Regents (1982( 457 U.S. 496.
19 See Martinez v. California (1980) 444 U.S. 277, 283, fn. 7; Kreutzer v. County of San Diego (1984) 153 C.A.3d 62, 69; Novick v. City of Los Angeles (1983) 148 C.A.3d 325, 330; Bach v. County of Butte (1983) 147 C.A.3d 554, 560.
20 Martinez v. California, supra, 444 U.S. at 284, fn. 8; Guillory v. County of Orange (9th Cir. 1984) 731 F.2d 1379, 1382; Fenton v. Groveland Community Servs. Dist. (1982) 135 C.A.3d 797, 808.
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apply to federal civil rights actions. State courts look to federal law to determine whether the conduct in question is actionable under Section 1983.22 V. FEDERAL -- SHERMAN ANTI-TRUST ACT
Anti-competitive acts of a municipality can give rise to liability under the Sherman Anti- Trust Act. In Parker v. Brown (1943) 317 U.S. 341, the United States Supreme Court created a “state action exception. ” “The basis of the State action exception is the free market principles embodied by the Sherman Anti -Trust Act must give way to the countervailing principles rooted in federalism . . . that states must be free to act upon local concerns, even if these actions have anti-competitive results. ”23 This exception was later expanded to protect municipalities in Community Communications Co. v. City of Boulder (1982) 455 U.S. 40, 51 -52. In Boulder, the Supreme Court held that anti-competitive acts of a municipality that wou ld normally give rise to liability under the Sherman Anti -Trust Act are shielded if the municipality acted pursuant to a “clearly articulated and affirmatively expressed ” state policy to displace competition with regulation.
Therefore, a municipality shoul d not take anti -competitive actions unless the California Legislature has both authorized the municipal action and intended to displace competition with regulation.
The Local Government Anti -Trust Act of 1984 (15 U.S.C. § 34) prevents federal anti- trust claimants from recovering compensatory damages, treble damages, or costs of attorney s’ fees from any local government or from any local government official or employee acting in an official capacity who is found guilty of an anti -trust violation, effectively restricting municipal anti-trust liability to declaratory and injunctive relief.
21 May v. Enomoto (9th Cir. 1980) 633 F.2d 164, 167.
22 Bach v. County of Butte, supra, 147 C.A.3d at 561.
23 Boone v. Redevelopment Agency of City of San Jose (9th Cir. 1988) 841 F.2d 886, 890.
Personal Liability for Acts of Officers and Employees of the City
01337.0001/842826.1
VI. CRIMINAL SANCTIONS
Governmental officials and employees are, of course, not immune from prosecution for criminal acts committed in the course of official duties or otherwise . The following code provisions specifically relate to actions by governmental officials or employees.
Penal Code Section 182 provides that it is the crime of criminal conspiracy to conspire to commit any act injurious to the public health, to public mora ls, or to pervert or obstruct justice, or the due administration of the law.
Government Code Section 3060 authorizes the prosecution of a public officer for willful or corrupt misconduct in office. The penalty on conviction is removal from office.
Government Code Section 91000 provides that it is a misdemeanor for any person to knowingly or willfully violate any provision of the Political Reform Act. 24 The Political Reform Act prohibits participation in decisions in which the decisionmaker has a financ ial interest and requires disclosure of a decision -maker’s financial interests. A permissible penalty for each violation under this provision is a fine of up to the greater of ten thousand dollars ($10,000.00) or three times the amount the person failed t o report properly or unlawfully contributed, expended, gave or received. Among the civil penalties for violation of this Act is rendering void any affected decision and a $2,000 fine.25
24 Gov. Code § 81000, et seq.
25 See Gov. Code § 91005.5.
i
CONFLICTS OF INTEREST LAWS
Political Reform Act, Campaign Contributions,
Disclosure Statements, Govt. Code § 1090
and AB 1234 Ethics Training
City of Richmond
David J. Aleshire, City Attorney
October 2022
**The Political Reform Act and underlying FPPC regulations are complex, and each situation is unique and requires individualized analysis. This memorandum is meant as an overview of the regulations to help public official s identify potential financial conflic ts of interests. This paper only provides a summary and is not meant to provide legal advice. Specific questions should be directed to your City Attorney or your personal attorney for a determination of the materiality of a potential conflict of interest well in advance of when a decision needs to be made.
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
ii
TABLE OF CONTENTS
I. INTRODUCTION…………………………………………………………………….....1
II. THE POLITICAL REFORM ACT………………………………………………...…..2
A. DISQUALIFICATION……………………………………….…………….……3
1. General Rule………………………………………………………………3
2. Analysis……………………………………………………………………3
i. Step One: Is it reasonably foreseeable that the governmental decision will have a financial effect on any of the public official’s financial interests?...........................................................................4 ii. Step Two: Will the reasonably foreseeable financial effect be material?...........................................................................................5 (a) Financial Interest in a Business Entity…………………….6
(b) Financial Interest in Real Property……………...…….…..6
(c) Financial Interest in a Source of Income………...….…….7 (d) Financial Interest in a Source of Gift……………….……..8
(e) Financial Interest in a Personal Financial Effect.…...…….8 iii. Step Three: Can the public official demonstrate that the material financial effect on the public official’s financial interest is indistinguishable from its effect on the public generally?...............9 iv. Step Four: Is the public official making, participating in making, or in any way attempting to use his or her official position to influence a governmental decision? ………………………………………..10
B. WHAT TO DO IF DISQUALIFICATION…………………………………...10
1. Procedure………………………………………………………………...10
2. Acting as Member of the General Public………………………………...11
3. “Legally Required” Exception…………………………………………...11
C. CAMPAIGN CONTRIBUTIONS.…………………………………………….11
D. DISCLOSURE STATEMENTS…………………………………….…………13
1. Who Must File and When………………………………………………..13
2. What Must Be Disclosed…………………………………………....…...13
i. Real Property Investments……………………………………….14
ii. Income, Gifts and Honorarium…………………………………..14
III. CONTRACTUAL CONFLICTS OF INTEREST (GOVERNMENT CODE SECTION 1090)………………………………………………………….……….….....14
IV. AB 1234 TRAINING………………………………………………………………...…15
V. CONCLUSION…………………………………………………………………………16
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
1 CONFLICT OF INTEREST LAWS
I. INTRODUCTION
California has a number of laws that affect the role of a public official. For example, some laws require a public official to abstain from participating in certain decisions because of a financial interest that official may have in the outcome of that decision. Some laws prohibit a contract between public agencies and businesses in which a public official has an ownership interest. Also, some laws prohibit officials from holding more than one public office.
The purpose of this paper is to give you a broad overview of some of these laws to better prepare officials and future officials when they are confronted with situations that might pose such issues, which can generally be described as conflicts of interest. This paper does not attempt to provide any specific advice for a specific situation. If you believe that you might have a potential conflict of interest, you should immediately contact your City Attorney or private counsel to request an analysis of your specific situation. Also, the Fair Political Practices Commission (“FPPC”) may give you guidance on such issues.
You should also be aware that the opinion of the City Attorney or your personal attorney that no conflict exists and that you may participate in a matter does not immunize you from action by the FPPC or your local district attorney if such agencies determine that a conflict exists.
In some instances – especially those dealing with potential conflicts of interest involving real property interests – a conflict analysis may require a factual as well as a legal analysis. The factual analysis could include an appraisal of property to determine if the proposed decision would have a material impact on your property and would thus preclude you from participating or voting on that decision. The factual analysis could also involve an investigation of the business entity in which you may have an interest and the effect of the decision on that entity.
The detailed analysis necessary in many cases cannot be provided if you disclose a potential conflict immediately before or during a meeting. In such cases you will most likely be advised not to participate until a proper analysis can be comp leted. The FPPC can provide written advice regarding conflicts of interest which, if followed, will provide immunity from prosecution. 1 However, this process typically takes a significant time to complete.
Therefore, it is essential that if you believe you might have a conflict and desire advice, you should advise your City Attorney or private counsel as soon as possible in advance of the time a matter will be considered so that an appropriate investigation and legal analysis can be made.
1 The FPPC also operates a telephone advice line (1-866-ASK-FPPC or 866-275-3772) and can be emailed at [email protected]. While the advice given by FPPC advisors through this service cannot immunize an official from prosecution, the genera l guidance provided may be useful in assessing potential conflicts of interest. The FPPC also maintains a helpful website at www.fppc.ca.gov.
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
2 In addition, do not assume that the City Attorney’s office is familiar with all of the specific facts of your personal financial situation, including all of your investments and those of your immediate family, or your relationships with individuals who may be connected with the project or matter that is being considered.
You should disclose all of this information to your counsel at the earliest possible time prior to consideration of the item so that proper advice can be provided for your specific situation.
Conflicts of interest are analyzed under two distinct sets of statutory regulations.
The first is contained in the Political Reform Act of 1974 (Government Code section 87100 and following) referred to herein as the “PRA” or the “Act,” which regulates all of the official actions of a public official.
The second set of statutes is Government Code sections 1090-1097, which regulate public officials whenever they negotiate or make contracts on behalf of the City.
II. THE POLITICAL REFORM ACT
The Politic al Reform Act addresses conflicts of interest through the disclosure of potential conflicts of interest and the prohibition of participation in the making of decisions which are actual conflicts of interest.
In addition to the provisions of the PRA found in the Government Code, the FPPC has adopted detailed regulations implementing the PRA that are set forth in Title 2, Division 6 of the California Code of Regulations at Sections 18110-18998 (the “FPPC Regs.”).2 The California Attorney General, the FPPC, and the local district attorneys are empowered to enforce the PRA through civil liability and civil penalties as well as criminal sanctions.3 Although the penalties for violations of various provisions of the Act vary, civil penalties are generally based upon the amount of money or value of a gift or contribution not reported, and can be as high as $10,000 or three times the amount not reported, whichever is greater. 4 Generally, criminal violations of the Act are prosecuted as misdemeanors. If convicted, an elected official is generally barred from running for office or acting as a lobbyist for a period of four years.5 Because good faith may sometimes be relevant in determining criminal and civil liability, it is particularly important to seek advice whenever a potential problem appears.6
2 References to FPPC Regulations will be indicated by the following: “FPPC Regs. § ___”; all other references are to the Government Code unless otherwise noted. 3 Sections 91000 and 91001.
4 Section 91000.
5 Sections 91000 and 91002.
6 Section 91001(c).
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
3 A. DISQUALIFICATION
1. General Rule
The Political Reform Act provides that:
“No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.”7 A public official has a financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect distinguishable from its effect on the public generally on the official, a member of his or her immediate family, or on any economic interest.8
2. Analysis
The Act prohibits any public official from making , participating in making, or in any way attempting to use his or her official position to influence a governmental decision in which he or she knows or has reason to know he or she has a financial interest. 9 The FPPC has adopted extensive regulations to assist with determining whether a public official has a conflict of interest under the Act. The four steps (FPPC Regs. §18700(d)) used by the FPPC for analysis are:
1. Is it reasonably foreseeable that the governmental decision will have a financial effect on any of the public official’s financial interests?
2. Will the reasonably foreseeable financial effect be material?
3. Can the public official demonstrate that the material financial effect on the public official’s financial interest is indistinguishable from it s effect on the public generally?
4. Is the public official making, participating in making, or in any way attempting to use his or her official position to influence a governmental decision? A conflicts analysis under the FPPC regulations answers each of tho se questions in turn, before proceeding to the next step. For example, if it is not reasonably foreseeable the governmental decision will have a financial effect on a public official’s financial interest, then there is no need to proceed to Step Two of the analysis.
Each of those steps is discussed in more detail, but the FPPC regulations provide certain definitions that are required to effectively engage in the four-step analysis. The FPPC regulations “apply only
7 Section 87100.
8 Section 87103.
9 Section 87100.
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
4 to public officials and only to governmenta l decisions that have a financial effect.” 10 “Public official” is defined broadly to include “every member, officer, employee, or consultant of a state or local government agency ,” (with a few exception) .11 “Governmental decision” is defined as “any action taken by a government agency that has a financial effect on any person other than the governmental agency.”12 Finally, “financial effect” is defined as “an effect that provides a benefit of monetary value or provides, prevents, or avoids a detriment of monetary value.”13 i. Step One: Is it reasonably foreseeable that the governmental decision will have a financial effect on any of the public official’s financial interests?
Categories of “financial interests” (these include financial interests of any member of his or her immediate family) are: (1) a business entity with a direct or indirect investment worth at least $2,000, or a business entity in which the public official is a director, officer, partner, trustee, employee or holds any position of management; (2) real property with a direct or indirect interest of at least $2,000 ; (3) a source of income amounting to at least $500 within 12 months before a decision is made ; ( 4) a source of gifts amounting to at least $ 520 within 12 months before a decision is made (through December 2022 - the gift amount is proposed by the FPPC to adjust to $590 starting January 1, 2023 ); and, (5) the publi c official’s personal finances (including immediate family) including expenses, income, assets, or liabilities.14 The clearest way for this step to be met is if the financial interest is the subject of a governmental decision that is before the official or the official’s agency. 15 In that case it is clearly reasonably foreseeable that the decision could have a financial effect on the financial interest.
Examples of a financial interest being the subject of a proceeding include the issuance, renewal, approval, denial, or revocation of any license, permit, or other entitlement to, or contract with, the financial interest, and includes any governmental decision affecting an interest in real property. 16 The analysis becomes more complicated if a financial interest is not explicitly involved in the decision.
A financial effect does not need to be likely to be considered reasonably foreseeable. Rather, it must only be a “realistic probability and more than hypothetical or theoretical.” 17 The FPPC regulations include a non -exhaustive list of factors which should be considered in determining whether a financial effect is reasonably foreseeable:
10 FPPC Regs. §18700(b).
11 FPPC Regs. §18700(c)(1).
12 FPPC Regs. §18700(c)(4).
13 FPPC Regs. §18700(c)(5).
14 Section 87100; FPPC Regs. §18700(c)(6)(A-F)
15 FPPC Regs. §18701(a).
16 Ibid.
17 FPPC Regs. §18701(b)
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
5 (1) The extent to which the occurrence of the financial effect is contingent upon intervening events.
(2) Whether the public official should anticipate a financial effect on his or her financial interest as a potential outcome under normal circumstances when using appropriate due diligence and care.
(3) Whether the public official has a financial interest that is of the type that would typically be affected by the terms of the governmental decision or whether the governmental decision is of the type that would be expected to have a financial effect on businesses and individuals similarly situated to those business es and individuals in which the public official has a financial interest. (4) Whether the financial effect of the governmental decision on the public official’s financial interest might compromise an official’s ability to act in the best interests of the public.
(5) Whether the governmental decision will provide or deny an opportunity, or create an advantage or disadvantage, for one of the official’s financial interests. (6) Whether the public official has the type of financial interest that would cause a similarly sit uated person to weigh the advantages and disadvantages of the governmental decision on their financial interest in formulating a position.18 If the answer to the Step One question is “No,” then there is no disqualifying conflict of interest under the Act. If the answer is “Yes,” then the analysis must proceed to Step Two. ii. Step Two: Will the reasonably foreseeable financial effect be material? Determining whether a reasonably foreseeable financial effect is material is the heart of a conflict of interest analysis under the PRA and is also the most complicated step. The FPPC regulations have a different standard for determining whether a financial effect is “material” for each of the five specified types of financial interests. The five categories of financial interests are financial interests in: (1) a business entity; (2) real property; (3) a source of income; (4) a source of gifts; and (5) the public official’s personal finances, or the personal finances of a member of his or her immediate family.19 These materiality standards are detailed and complex, and this memorandum provides an overview of the various standards. If any of these financial interests are implicated in a decision, whether you believe it to be material or not, we recommend seeking advice fro m the City Attorney or your private counsel.
18 Ibid.
19 FPPC Regs. §18702(a).
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
6 (a) Financial Interest in a Business Entity
A financial interest in a business entity is materially affected if the business entity is subject to proceedings by the official’s agency. This includes when: (1) the bus iness entity initiates the proceeding (by filing an application, claim, appeal, or other request for action concerning the entity with the official's agency) in which the governmental decision will be made; (2) bids on, or enters into, a contract with the agency, or is identified as a subcontractor on a bid or contract with the agency; (3) offers to sell products or services to the agency ; (4) is the named or intended manufacturer or vendor of any products to be purchased by the agency with an aggregate cos t of $1,000 or more in any 12 -month period ; (5) a pplies for a permit, license, grant, tax credit, exception, variance, or other entitlement from the agency ; (6) i s the subject of any inspection, action, or proceeding under the regulatory authority of the a gency; or (7) i s subject to an action taken by the agency that is directed at the entity.20
A financial interest in a business entity is materially affected if the governmental decision may result in an increase or decrease of the entity's annual gross revenues, or the value of the entity's assets or liabilities, in an amount equal to or more than: (1) $1,000,000; or (2) Five percent of the entity's annual gross revenues and the increase or decrease is at least $10,000.21 A financial interest in a business entity is also materially affected if the governmental decision may cause the entity to incur or avoid additional expenses or to reduce or eliminate expenses in an amount equal to or more than: (1) $250,000; or (2) One percent of the entity's annual gross revenues and the change in expenses is at least $2,500.22
Concerning real property, a financial interest in a business entity is materially affected if the official knows or has reason to know that the business entity has an interest in real property and:
(1) there is clear and convincing evidence the decision would have a substantial effe ct on the property; or (2) the property is a named party in, or the subject of, the decision under FPPC Regs. §§18701(a) and 18702.2(a)(1) through (6).23
(b) Financial Interest in Real Property
A financial interest in real property is materially affected when the relevant governmental decision:
(1) involves the adoption of or amendment to a development plan or criteria affecting the property; (2) determines the real property’s zoning or rezoning (other than a zoning decision applicable to all properties designated in that category), annexation or de-annexation, or inclusion or exclusion from a jurisdiction; (3) involves taxes, fees, or assessments that affect the real property; (4) authorizes the sale, purchase, or lease of the property; (5) involves the issuan ce, denial, or revocation of a land use entitlement; or (6) involves construction of, or improvements to, streets, water, sewer, storm drainage or similar facilities, and the parcel will receive new or improved
20 Ibid.; FPPC Regs. §18702.1(a).
21 Ibid.
22 Ibid.
23 Ibid.
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
7 services that provide a benefit or detriment disproportionate to other properties receiving the services.24
Concerning the location of real property, a financial interest in real property is materially affected when the relevant governmental decision: (1) involves property located 500 feet or less from the property line of the parcel unless there is clear and convincing evidence that the decision will not have any measurable impact on the official's property; or (2) involves property located more than 500 feet but less than 1,000 f eet from the property line of the parcel, and the decision would change the parcel ’s: (a) development potential; ( b) income producing potential; (c) highest and best use; (d) character by substantially altering traffic levels, intensity of use, parking, vi ew, privacy, noise levels, or air quality; or (e) market value.25 The financial effect of a governmental decision on a parcel of real property in which an official has a financial interest involving property 1,000 feet or more from the property line of the official's property is presumed not to be material. This presumption may be rebutted with clear and convincing evidence the governmental decision would have a substantial effect on the official's property.26
Concerning the leasing of real property, t he r easonably foreseeable financial effects of a governmental decision on any real property in which a governmental official has a leasehold interest as the lessee of the property is material only if the governmental decision will: (1) change the termination date of the lease; (2) increase or decrease the potential rental value of the property; (3) change the official’s actual or legally allowable use of the property; or (4) impact the official's use and enjoyment of the property.27
Exceptions from these regulations include: (1) a governmental decision solely concerning repairs, replacement, or maintenance of existing streets, water, sewer, storm drainage, or other improvements28; or (2) the adoption or amendment of a general plan that is not initiated by the public official, identifies only planning objectives or policies, and requires further implementing action by the public official’s agency.29
(c) Financial Interest in a Source of Income
There are two main tests for a disqualifying financial interest in source of income, both applicable, being identifying the specific source and the “nexus test.” As for specific source 30 of income, the reasonably foreseeable financial effect of a governmental decision on an official's financial interest in a source of income is material if any of the following
24 FPPC Regs. §18702.2(a)
25 Ibid.
26 FPPC Regs. §18702.2(b)
27 FPPC Regs. § 18702.2(c)
28 FPPC Regs. §18702.2(d)(1).
29 FPPC Regs. §18702.2(d)(2).
30 FPPC Regs. §18702.3(a)
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
8 criteria are met: (1) the source is a named party in, or the subject of, the decision including a claimant, applicant, respondent, or contracting party; or (2) the source is an individual and: (a) The decision may affect the individual's income, investments, or other assets or liabilities (other than an interest in a business entity or real property) by $1,000 or more, or (b) 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 in FPPC Regs. §18702.1, or (c) The official knows or has reason to know that the individual has an interest in real property and: (i) The property is a named party in, or the subject of, the decision as defined in FPPC Regs. §§18701(a) and 18702.2(a)(1) through (6), or (ii) There is clear and convincing evidence the decision would have a substantial effect on the property; or (3) the source is a nonprofit organization and one of the f ollowing applies: (a) 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, (b) 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, (c) The official knows or has reason to know that the organization has an interest in real property and: (i) The pr operty is a named party in, or the subject of, the decision under FPPC Regs. §§18701(a) and 18702.2(a)(1) through (6), or (ii) There is clear and convincing evidence the decision would have a substantial effect on the property; or (4) The source is a business entity that will be financially affected under the materiality standards in FPPC Regs. §18702.1.
The “nexus test” 31 is that any reasonably foreseeable financial effect on a source of income to a public official or the official’s spouse 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 receives or is promised the income for achieving the purpose or goal. There are some limited exception s in FPPC Regs. §18702.3(c-d).
(d) Financial Interest in a Source of Gift
A public official has a financial interest in the sources of gifts he or she receives. This financial interest is materially affected when the source is a named party or otherwise identified as the subject of the gov ernmental proceedings, is a member of the official’s immediate family, is an individual that has an interest in a business entity or real property that will be affected under the regulations for those interests, is a nonprofit that will be financially affected under the materiality standards applied to a nonprofit source of income interest in FPPC Regs. §18702.3 , or the source is a business entity that will be affected under the standards governing business entities.32 (e) Financial Interest in a Personal Financial Effect
A public official has a financial interest in the effects of a governmental decision on his or her personal finances, as well as the personal finances of his or her immediate family. As a general
31 FPPC Regs. §18702.3(b)
32 FPPC Regs. §18702.4.
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
9 rule, this financial interest is m aterially affected if the decision may result in the official or the official's immediate family member receiving a financial benefit or loss of $500 or more in any 12-month period due to the decision.33 FPPC Regs. §18702.5(b) has a few exceptions.
If the answer to Step Two is “No”, and the financial effect is not material, then there is not a disqualifying conflict of interest under the Act. If the answer is “Yes,” then the analysis must proceed to Step Three.
iii. Step Three: Can the public official demonstrat e that the material financial effect on the public official’s financial interest is indistinguishable from its effect on the public generally? A reasonably foreseeable material effect on a public official’s financial interests does not create a conflict under the Act if the effect on the official’s interest is indistinguishable from its effect on the public generally.34 The effect is indistinguishable from the effect on the public generally if the official establishes that a significant segment of the public is affected, and the effect on his or her financial interest is not unique.35
“Significant segment of the public” is defined as at least 25 percent of all business or non -profit entities, real property, or individuals within the jurisdiction.36 A unique effect on a public official’s financial interest includes a disproportionate effect on: (1) the development potential or use of the official’s real property or on the income producing potential of the official’s real property or business entity; (2) an official’s business entity or real property resulting from the proximity of a project that is the subject of a decision; (3) 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; (4) an official’s interest in a business entity 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; (5) a person’s income , investments, assets or liabilities, or real property if the person is a source of income or gifts to the official; or (6) an official’s personal finances or those of his or her immediate family.37 There are also specific rules for certain circumstances, including public services and utilities, general use or licensing fees, limited neighborhood effects, rental properties, required representative interests, states of emergency, and governmental entities.38
33 FPPC Regs. §18702.5.
34 FPPC Regs. §18703(a).
35 Ibid.
36 FPPC Regs. §18703(b).
37 FPPC Regs. §18703(c).
38 FPPC Regs. §18703(e).
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
10 If the answer to Step Three is “Yes,” and the effect on the public official is indistinguishable from the effect on the general public, then there is no disqualifying conflict of interest under the Act. If the answer is “No,” then the analysis must continue to Step Four. iv. Step Four: Is the public official making, participating in making, or in any way attempting to use his or her official position to influence a governmental decision?
If the analysis has proceeded to this final step, and it is reasonably foreseeable that the governmental decision will have a material effect on a financial interest of the public official, then the official cannot make, participate in making, or attempt to use his or her position to influence the government decision.
A public official “makes” a governmental decision if the official authorizes or directs any action, votes, appoints a person, obligates or commits his or her agency to any course of action, or enters into any contractual agreement on behalf of his or her agency. 39 A public official “participates in making” a govern mental decision if the official provides information, an opinion, or a recommendation for the purpose of affecting the decision without significant intervening substantive review. 40 An official can “influence” a governmental decision by contacting or appearing before any official in his or her own agency, or any other agency under the purview of the agency, for the purpose of affecting a governmental decision, or by purporting to make such contact or appearance on behalf of his or her own agency.41 There are exceptions to this step in the analysis, including for ministerial actions, appearances by the official as a member of the general public if the official is appearing on matters related solely to the official ’s personal interests (including real propert y owned entirely, or a business entity either owned entirely or fully controlled), actions by the official relating to his or her terms and conditions of employment, and comments made by the official to the general public or media.42 If the answer to Step Four is “Yes,” then the public official has a disqualifying interest under the Act.
B. WHAT TO DO IF DISQUALIFICATION
1. Procedure
If a public official has a disqualifying interest, then he or she must, immediately prior to the consideration of the matter: (1) publicly identify the financial interest that gives rise to the conflict,
39 FPPC Regs. §18704(a).
40 FPPC Regs. §18704(b).
41 FPPC Regs. §18704(c).
42 FPPC Regs. §18704(d).
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
11 (2) recuse himself or herself from discussing and/or voting on the matter, and (3) leave the room until after the discussion, vote, or other disposition of the matter.43 If an official leaves a meeting in advance of the agenda item in which the official is disqualified, the official must publicly identify t he agenda item and the financial interest prior to leaving the meeting.44
An official first joining a meeting after the consideration of an agency item in which the official is disqualified must publicly identify the agenda item and the financial interest immediately upon joining the meeting.45
2. Acting as Member of the General Public
The official may, however, make a public appearance before the body or board as a member of the general public, but only to represent himself or herself on matters related solely to the official’s personal interests (including real property owned entirely, or a business entity either owned entirely or fully controlled).46
3. “Legally Required” Exception
There is an exception to this general rule that allows a public official to participate if his or her participation is “legally required.”47 This exception is narrowly construed, and applies only if there is no alternative source of decision.48 This exception may not be used simply to break a tie amongst non-conflicted members49, and may not be used if a quorum of non -conflicted members may be convened.50 The FPPC provides detailed procedures that must be followed for the “ legally required” exception to apply, and we advise that you should seek counsel from your City Attorney before application of these procedures.
C. CAMPAIGN CONTRIBUTIONS
Since 1982, the Levine Act has imposed campaign contribution prohibitions upon certain municipal officials like planning commissioners - but it has not (until now) been applied to councilmembers.
Senate Bill 1439 (signed on September 29, 2022; effective January 1, 2023), through amendment of Section 84308 of the PRA, extends these prohibitions to councilmembers, makes changes to the
43 FPPC Regs. §18707.
44 FPPC Regs. §18707(a)(2).
45 Ibid.
46 FPPC Regs. §18704(d)(2).
47 FPPC Regs. §18705.
48 FPPC Regs. §18705(a).
49 FPPC Regs. §18705(c)(1).
50 FPPC Regs. §18705(c)(2).
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
12 affected contribution window, and adds a circumstance in which a violation may be cured . In summary, SB 1439 provides as follows:
1. If an official knows or has reason to know that a party/participant (or agent thereof) has a financial interest in a proceeding involving a “license, permit, or other entitlement,” then the official cannot accept, solicit, or direct a contribution of more than $250 from any party/participant (or agent thereof) while a proceeding is pending before the agency (e.g., before a city council for decision) and for 12 months (originally 3 months) after the decision. This includes any contribution on the official’s own behalf, or on behalf of any other official, or on behalf of any candidate for office/committee.
2. If an official has willfully/knowingly received a contribution in an amount greater than $250 in the 12 months prior to a decision involving a license , permit, or other entitlement in which they know or have reason to know that the party/participant (or agent thereof) has a financial interest in the decision, then the official cannot participate in the decision. This fact would also have to be disclosed on the record of the proceeding. However, participation may be permitted if the contribution is returned within 30 days from the time the official knows, or should have known, about the contribution and the proceeding.
3. A party to a proceeding involving a license, permit, or other entitlement for use must disclose on the record of the proceeding any contribution in an amount of more than $250 made within the preceding 12 months by the party or the party’s agent.
4. A party (or agent thereof) to a proceeding before an agency involving a license, permit, or other entitlement for use may not contribute more than $250 to an official while the proceeding is pending and for 12 months (originally 3 months) after the decision.51 The term “license, permit, or other entitlement” includes entitlements for land use, business licenses/permits, franchises, and contracts (except competitively bid, labor, or personal employment contracts). A violation of these prohibitions is a misdemeanor. The FPPC has further oversight and may also impose fines.
Additionally, certain violations may be cured. If a local elected official accepts, solicits, or directs a prohibited contribution within 12 months after a decision, then the violation can be cured if the contribution (or portion in excess of $250) is returned within 14 days of accepting, soliciting, or directing the contribution, whichever comes latest, and, further, if the local elected official did not knowingly/willfully accept, solicit, or direct the prohibited contrib ution. Records of this cure action must also be kept.
Since SB 1439 does not come into effect until January 1, 2023, the prohibition on accepting contributions in an amount greater than $250 during or after a proceeding/decision is arguably not currently applicable at least up until December 31, 2022. For example, if an official participated in a proceeding on December 6, 2022, then they will arguably be able to accept contributions in
51 Section 84308.
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City of Richmond
David J. Aleshire, City Attorney
October 2022
13 excess of $250 up until December 31, 2022. However, an official’s ability to participate in proceedings occurring on or after January 1, 2023, may be affected by contributions in excess of $250 made during the prior 12 months. For example, if an official accepted such a contribution on December 6, 2022, then they will arguably not be able to participate in a proceeding on January 1, 2023, and would, further, be required to disclose the contribution on the record.
Nevertheless, given the newness of SB 1439, the impact of these changes during this interim period is unclear. As such, the conservative approach is to treat SB 1439 as currently applicable to ensure continuity until further clarification is provided (e.g., from the FPPC). The FPPC has adopted regulations under pre-SB 1439 law, but they will likely update these regulations in order to provide further guidance.
D. DISCLOSURE STATEMENTS
1. Who Must File and When
City councilmembers, candidates for the city council, planning commissioners, the city man ager, the city treasurer, the city attorney, public officials who manage public investments and anyone else so required by the City’s Conflict of Interest Code must file conflict of interest disclosure statements, known officially as a “Statement of Economic Interests.”52 Elected officials and most appointed officials must file an “assuming office statement” within thirty (30) days after assuming office. 53 Thereafter, an annual Statement of Economic Interests must be filed no later than April 1 of each year.
The time period covered by each annual statement is January 1 through December 31. If an office is assumed between October 1 and December 31, and an assuming office statement is filed, then the annual Statement of Economic Interests need not be filed until one year later than would otherwise be required.54 Officials must file a final disclosure statement covering the period since the official’s prior statement within 30 days after leaving office.55 The purpose of these filings is to alert public of ficials about their own economic interests and potential areas of conflict in relation to their duties. The filings also provide information to members of the public who may desire to monitor official actions for any conflicts.
2. What Must Be Disclosed
The FPPC provides all forms required for disclosing economic interests. These forms include detailed instructions on filling out the form and on the types of interests which must be disclosed.
Generally, the statements require two types of information:
52 Section 87200.
53 Section 87202.
54 FPPC Regs. Section 18723.
55 Section 87204.
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
14 i. Real Property and Investments
All statements must disclose direct and indirect interests in real property located in the City worth over $2,000, excepting the family residence.56 If a property interest is worth more than $2,000, the filer must disclose the name, address and general description or nature of the investment or interest in the real property.57
ii. Income, Gifts and Honorarium
All sources of income aggregating at least $500 (or $50 or more of value if the income was a gift) must be disclosed on the annual and leaving office statements, regardless of whether the money was earned inside or outside the City.
All gift income exceeding $50 must be disclosed by amount and d ate of receipt. 58 If the gift is made from the donor through a middleman to the official, then the donor must disclose his or her identity to the official and the official must name both the donor and intermediary on his or her statement.59
Under Governme nt Code sections 89501 and 89502, all officials subject to the disclosure requirements are prohibited from accepting any honorarium (e.g., the payment for speeches or attendance at public or private events) unless the income is for services which are custo marily provided in connection with the practice of a bona fide business or profession.
NOTE: The rules and regulations relating to disclosure statements are governed by the Government Code and FPPC Regulations. This paper is only meant to provide basic information and your City Attorney or your personal attorney should be consulted if you have any specific questions regarding such disclosure statements.
III. CONTRACTUAL CONFLICTS OF INTEREST (GOVERNMENT CODE SECTION 1090)
Government Code section 1090 prohibits City officers and employees from having financial interests in contracts made by them or by any board or body of which they are members. The term “contract” is used very broadly, however, and applies to any agreement between the City and another party whether written or oral and whether formal or informal.60 Although Section 1090 is otherwise much narrower than the PRA, it does cover some different interests than the PRA and,
56 Sections 87206 and 87103; FPPC Regs. Section 18730.
57 Section 87206.
58 Section 87207(4).
59 Section 87210.
60 In 2002, Attorney General made a broad application of 1090. It found 1090 to apply where a staff member was negotiating a development agreement and the staff member’s spouse was an independent contractor on retainer with the developer (doing community out reach) even though the spouse would not work on the particular project. See Attorney General Opinion No. 01 -601 (March 6, 2002).
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
15 in any situation, a person must act in a manner that satisfies the requirements of both the PRA and Section 1090.
For example, if a member of an agency that authorizes a contract has a financial interest in the contract, the member may avoid a violation of the PRA by abstaining from participation in the decision, but such a bstention will not avoid a violation of Section 1090 unless there is an authorized exception to the statute.
Section 1090 applies in two basic situations. First, if the financially interested City officer or City employee is a member of a board or other bo dy that actually approves the contract (e.g., the city council), the potential conflict prohibits the City from entering into the proposed contract, regardless of whether or not the officer participates in or abstains from the actual decision. Second, if a staff member has a financial interest in a contract with the City, there is a conflict only if that staff member actually participates in the making of the contract. In either case, if such a contract is made, the City (or the other party to the contract) may void it.61 An exception to Section 1090, set forth in Section 1091, provides that “remote” interests in a contract do not create a conflict if the officer or employee (1) discloses his or her financial interest, (2) abstains from any participation in the making of the contract, and (3) the legislative body authorizes the contract in good faith by a sufficient vote without counting the vote of the party with a remote interest. Section 1091 is essentially a laundry list of what constitutes a “remote” interest and such list should be consulted on a case by case basis. Similarly, Section 1091.5 sets forth a number of additional situations where an officer or employee is “deemed” not to have a prohibited interest in a contract.
IV. AB 1234 TRAINING
As a loca l elected official who will be compensated and reimbursed for your service, you are required to take two hours of training in ethics - better known as AB 1234 training (named after Assembly Bill 1234). AB 1234 training will cover general ethics principles relating to pu blic service and ethics laws.
“Ethics laws” are defined as including:
Laws relating to personal financial gain by public officials (including bribery and conflict of interest laws);
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; Governmental transparency laws, including financial disclosure requirements and open government laws (the Brown Act and Public records Act); and
61 Section 1092.
Conflicts of Interest Laws
City of Richmond
David J. Aleshire, City Attorney
October 2022
16 Law relating to fair processes including fair contracting requirements, common law bias requirements and due process.
AB 1234 mandates that you receive this training within one year of starting your service and then receive the training every two years after that. Upon completion of your training, you will receive proof of participation. The City Clerk's office will keep your proof of participation on file as a public record subject to disclosure for at least five years.
V. CONCLUSION
The four-step checklist for conflict analysis (on page three of this paper) is very general in nature but should provide a guideline for all public officials to use in determining the basic issues involved as to whether or not a disqualification is required under the Political Reform Act and/or FPPC regulations. Each item on the checklist, however, has numerous issues which need to be addressed in order to make a thorough analysis of any given fact situation.
We hope the above discussion provides a helpful guide to the general requirements of California’s conflict of interest laws. It should again be stressed that this paper is not intended to answer any specific questions with regard to such laws for a specific situation. Therefore, should any specific questions arise, or should you have any questions regarding any issues discussed in this paper, please do not hesitate to contact your City Attorney or personal attorney.
INSTITUTE FOR LOCAL GOVERNMENT 1400 K STREET, SUITE 205, SACRAMENTO, CA 95814 WWW.CA-ILG.ORG Note that the following are not statements of law, but rather principles the law is designed to achieve. The goal in providing this list is to identify the kinds of issues addressed by public service ethics laws. If an issue arises for you under these principles, public officials should consult agency counsel.
ETHICS LAW PRINCIPLES
PERSONAL FINANCIAL GAIN
Generally speaking, public officials:
Cannot request, receive or agree to receive
anything of value or other advantages in exchange
for a decision.
Must disclose their financial interests to the public. Must disqualify themselves from participating in
decisions that may affect (positively or negatively)
their financial interests in a material way.
Cannot have a financial interest in a contract made
by their agency.
Cannot be involved in agency decisions affecting
a potential future employer once the official and
employer each have expressed an interest in a
professional relationship.
Cannot receive compensation to lobby their
agency for one year following their departure from
the agency.
PERK ISSUES: INCLUDING COMPENSATION,
USE OF PUBLIC RESOURCES AND GIFTS
Generally speaking, public officials:
Receive limited compensation for their service to
the public.
Cannot receive compensation for speaking, writing
an article or attending a conference.
May be reimbursed for only those activities and
necessary expenses allowed in the agency’s
expense reimbursement policies.
Cannot use public agency resources (money, travel
expenses, staff time and agency equipment) for
personal or political supplies or purposes.
Cannot send or be featured in mass mailings at
public expense.
Cannot make gifts of public resources or funds.
Must disclose gifts they receive from each
single source that has given gifts worth $50 or
more in a single calendar year through the Form
700 process.
May not receive gifts worth a total of $520
(2021-22 amount) from a single source in a single
calendar year. Note: this amount changes every
two years.
May only accept free trips and travel expenses
under limited circumstances.
May not accept free or discounted transportation
from transportation companies.
May not use campaign funds for personal benefits
not directly related to a political, legislative or
governmental purpose.
Ethics Law Principles for Public Servants:
KEY THINGS TO KNOW
INSTITUTE FOR LOCAL GOVERNMENT 1400 K STREET, SUITE 205, SACRAMENTO, CA 95814 WWW.CA-ILG.ORG
TRANSPARENCY
Generally speaking, public officials must:
Disclose their economic interests when they take
office, annually while they are in office and when they leave office. These economic interests can include:
sources of income, property owner ship, investments,
certain family mem
bers’ interests, business interests,
loans, contracts and gifts received.
Disclose information about who has agreed to donate
significant resources ($5,000 or more) to legislative,
governmental or c
haritable purposes at an elected
official’s request.
Disclose campaign contributions and abide by
applicable limits.
Conduct the public’
s business in open and publicized
meetings, except for the limited circumstances when
the law allows closed sessions.
Allow the public
to participate in meetings and listen
to the public’s views before making decisions.
Allow public inspection of documents and records
generated, owned, used or retained by public
agencies, except when non-disclosure is specifically
authorized by law.
Disclose gifts given to the public agency and how
they are ultimately used.
FAIR PROCESS AND MERIT-BASED
DECISION-MAKING
Generally speaking, public officials:
Cannot receive loans from other staff, officials or
contractors, and must disclose and comply with
certain requirements for loans from others.
Cannot engage in vote-trading.
Have a responsibility to ensure fair and competitive
agency contracting processes.
Cannot participate in quasi-judicial proceedings in
which they have a bias with respect to the parties
or facts.
Must conduct public hearings in accordance with fair
process principles.
Cannot participate in decisions that will benefit their immediate family (spouse/domestic partner and
dependent children).
Cannot simultaneously hold certain other public
offices or engage in other outside activities that
would subject them to conflicting loyalties.
Cannot participate in entitlement proceedings—such
as those regarding land use permits—involving
campaign contributors (does not apply to elected
bodies).
Cannot solicit campaign contributions of more than
$250 from permit applicants while an application
is pending and for three months after a decision (if
sitting on an appointed body).
Cannot directly solicit agency employees for political support or donations for their political causes.
Cannot retaliate against whistleblowers who report
improper government activities.
KEY CONCEPTS
A public agency’s decision should be based solely on what best serves the public’s interests.
The law is aimed at the perception, as well as the reality, that a public official’s personal interests may influence a decision. Even the temptation to act in one’s own interest could lead to disqualification, or worse.
Having a conflict of interest does not imply that a public official has done anything wrong; it just means that the official has financial or other disqualifying interests.
Violating the conflict of interest laws could lead to
monetary fines and criminal penalties for public officials, and may lead to proceedings to remove the official from office. Don’t take that risk.
ETHICS LAW PRINCIPLES
INSTITUTE FOR LOCAL GOVERNMENT 1400 K STREET, SUITE 205, SACRAMENTO, CA 95814 WWW.CA-ILG.ORG
BASIC RULE
A public official may not participate in a decision —
including trying to influence a decision — if the official has financial or, in some cases, other strong personal interests in that decision. When an official has an interest in a contract, the official’s agency may be prevented from even making the contract.
WHEN TO SEEK ADVICE FROM
AGENCY COUNSEL
The rules are very complex. A public official should talk with agency counsel early and often and when an action
by the public agency may affect (positively or negatively) any of the following:
Income. Any source of income of $500 or more (including promised income) during the prior 12 months to the official or official’s spouse/domestic partner.
Immediate Family. The official’s spouse/domestic partner and dependent children.
Business Management or Employment. An entity for
which the official serves as a director, officer, partner, trustee, employee or manager.
Real Property. A direct or indirect interest in real property of $2,000 or more that the official or official’s immediate family has, including such interests as ownership,
leaseholds (but not month-to-month tenancies) and options to purchase.
Gift Giver. A giver of one or more gifts worth a total of $520 (2021-22) or more to the official in the prior 12
months, including promised gifts.
Lender/Guarantor. A source or guarantor of a loan to the official.
Personal Finances. The official or official’s immediate family’s personal expenses, income, assets or liabilities.
Contract. A contract that the agency is considering entering into, in which the official or a member of the official’s immediate family may have an interest (direct or indirect).
Business Investment. An interest in a business that the official or the official’s immediate family have a direct or indirect investment worth $2,000 or more.
Related Business Entity. An interest in a business that is the parent, subsidiary, or is otherwise related to a business in which the official:
Has a direct or indirect investment worth $2,000 or
more; or
Is a director, officer, partner, trustee, employee or manager.
Business Entity Owning Property. Real property owned
by a business entity or trust of the official.
Campaign Contributor. A campaign contributor of the
official (applies to appointed decision-making bodies only).
Other Personal Interests and Biases. The official has
important, but non-financial, personal interests or biases (positive or negative) about the facts or the parties that could cast doubt on the official’s ability to make a fair decision.
WHAT WILL HAPPEN NEXT?
Agency counsel will advise the official whether 1) the
official may 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 California Attorney General’s Office regarding their opinion about the potential conflict.
EVEN IF IT’S LEGAL, IS IT ETHICAL?
The law sets only minimum standards. Officials should
ask themselves whether members of the public will
question whether the officials are acting solely in the public’s interest. If even a perceived conflict exists, officials should consider excusing themselves voluntarily from that particular decision-making process.
ETHICS LAW PRINCIPLES
The Institute for Local Government is the nonprofit
education affiliate of the League of California
Cities, the California State Association of Counties
and the California Special Districts Association.
Its mission is to promote good government at the
local level.
ILG
’s current program areas include:
Leadership and Governance
Public Engagement
Sustainable and Resilient Communities
Workforce and Civics Education
© 2022 by The Institute for Local Government All
rights reserved.
CONTACT US:
1400 K Street, Suite 205
Sacramento, CA 95814
www.ca-ilg.orgINSTITUTE FOR LOCAL GOVERNMENT 1400 K STREET, SUITE 205, SACRAMENTO, CA 95814 WWW.CA-ILG.ORG BEYOND THE LAW:
Ethics and Values
Ethics is what one ought to do in a given situation.
It’s the kind of conduct that would make the world a
better place if everyone engaged in it.
The law provides only minimum standards for
ethical conduct. Just because a course of action is
legal doesn’t mean it is right.
What one ought to do is typically tied to a series of values:
» Trustworthiness
» Respect
» Responsibility
» Compassion
» Loyalty
» Fairness
ILG developed a Good Governance Checklist to help local officials identify ways they can go above and beyond legal requirements to promote public trust and confidence. To access the checklist visit: www.ca-ilg.org/goodgovernance.
AB 1234 TRAININGS
California law requires local officials to periodically receive training on public service ethics laws and principles (AB 1234). ILG offers trainings and self-test options to help local officials comply with this law.
ILG offers two, one-hour self-study exercises as an option for local officials to satisfy AB 1234 requirements. Find out more at: www.ca-ilg.org/ab1234selfstudy.
ILG can also come to your community to train your local officials and staff. Contact ILG at [email protected] for more information on how to schedule an ethics
workshop.
ILG is grateful to the following firms for making this
document possible in 2022:
Best Best & Krieger
Burke Williams & Sorensen, LLP
Colantuono Highsmith & Whatley, PC
Hanson Bridgett LLP
Kronick Moskovitz Tiedmann & Girard
Liebert Cassidy Whitmore
Renne Public Law Group
Richards, Watson & Gershon
ETHICS LAW PRINCIPLES
LOCAL GOVERNMENT 101
Financial Management for Elected Officials:
Questions to Ask
Inside: Key Things to Know About
• Local Agency Financial Policies
• Budget Creation and Monitoring
• Financial Reporting
• Long-Term Financial Planning
• Cash Management and Investments
• Capital Financing & Debt Management
• Purchasing and Contracting Practices
• Finance Terminology (Glossary)
Financial Management for Elected Officials January 2013
Institute for Local Government www.ca-ilg.org 2
Introduction
One of an elected official’s most important responsibilities is oversight of agency finances.
Local agency finance can be complex. In addition, local agencies face significant financial constraints in California; this includes revenue instability due to state budget decisions and economic factors, state-mandated activities and procedural restrictions on raising new revenues.
What can elected officials do to exercise the kind of careful fiscal stewardship over taxpayer resources that the community expects?
This guide provides a series of tips and questions to assist elected officials in performing this important function. In reviewing these ideas, it is important to keep in mind that local agencies vary by size, complexity of operation, and scope of activities. As a result, some of the questions and practices described may not make sense for every local agency. For example, as a budget and accounting matter, some agencies perform one function and may therefore have one “fund.” Others may have multiple funds.
This guide is a starting point for conversations between local elected officials and staff. The ultimate goal is to help make sure that everyone is playing their necessary and proper roles as informed and responsible stewards of scarce public agency resources.
Where to Find What
Introduction ................................................................................................. 2 Local Agency Financial Policies and Practices ........................................... 3 Budget Creation and Monitoring ................................................................. 7 Financial Reporting and Accounting.......................................................... 12 Looking Ahead: Long-Term Financial Planning ......................................... 14 Cash Management and Investments ......................................................... 15 Capital Financing and Debt Management ................................................. 17 Purchasing and Contracting Practices ...................................................... 19 Brief Glossary of Financial Management Terms ....................................... 21 Endnotes .................................................................................................. 29
Financial Management for Elected Officials January 2013
Institute for Local Government www.ca-ilg.org 3
Local Agency Financial Policies and Practices
Financial policies can provide a solid foundation for sound public agency fiscal practices.
Adopted by the governing body, such policies provide:
• A means through which the governing body can communicate its collective policy judgments and goals to staff, the public and others.
• Direction to staff and standards against which current practices can be measured, and proposals for changes in practices can be evaluated.
Ratings agencies (who assess local agencies’ credit for borrowing) also look at local agencies’ financial policies; well-crafted polices can mean higher rating grades which can translate into lower borrowing costs.
Questions to Ask
Financial Policies
• Does the agency have written financial policies?
• If so, what do they cover? See sidebar on next page for a checklist of possible topics.
• How often does the governing body review them?
• With respect to each policy, is it clear who is responsible for implementing that policy?
• What procedures does management use to make staff aware of such policies? What training does staff receive to allow them to competently implement such policies?
• How does the agency monitor compliance with such policies?
Financial Practices
• Are agency accounting policies and procedures documented in writing?
• What kinds of practices does the agency use (sometimes referred to as “internal controls”) to make sure that the agency has systems for cross checks to minimize the risk of mistakes or maximize the likelihood that misconduct is detected?
• Does agency financial staff participate in relevant professional organizations to keep abreast of developments in the field and best practices?
Financial Management for Elected Officials January 2013
Institute for Local Government www.ca-ilg.org 4
• Are agency financial staff familiar with and do they adhere to the codes of ethics applicable to their professions? For example, both the California Society of Municipal Finance Officials1 and the California Municipal Treasurers Association2 have codes of ethics.
Financial Planning Policies.3
• Budget Policy. Such a policy commits to a
balanced operating budget (and defines what
that is) and requires that decision-makers be
alerted when deviations are either planned or
otherwise occur.
• Long-Range Planning. Such a policy
supports financial analysis and strategies to
assess the long- term implications of current
and proposed capital improvement needs,
cost of services, operating budgets, budget
policies, cash management and investment
policies, program and assumptions. For
example, a capital improvement plan enables
the agency details the agency’s plans and
relative priorities for making improvements
to and replacing capital facilities (a process
that normally takes years to complete).
4 Checklist of
Financial Policy Topics5
Local agencies have various—and various
levels—of financial policies. Some policies
relate to big picture, strategic topics (for
example, budget policy, long-range planning
and debt policy); others are very specific and
practical policies (for example, credit card
policies and expense reimbursement).
Having a range of policies (from big picture to
practical and operational) helps an agency to
chart a wise course financially and avoid
operational missteps. Whether a specific
policy makes sense given the nature and scope
of an agency’s operations will vary.
• Asset Inventory. Such a policy requires an up-to-date listing of all major capital assets including. The policy can also require an assessment of asset condition and a plan for replacing assets (sometimes referred to as a “capital plan”). The definition of what constitutes a “major” asset is established by local policy, as is the determination of how often the inventory is to be updated.
• Long-Range Planning for Pension and Other Post-Employment Benefit Costs. Such a policy analyzes how the agency will meet the future costs of agency employee pensions and other employee benefit obligations.
• Reserve and Other Fund Balances. Such a policy enables decision-makers to maintain a prudent level of resources to protect against a need to reduce service levels or increase revenues due to revenue shortfalls or unpredicted one-time expenses. Specific kinds of reserves can also enable an agency to set aside moneys to replace assets (for example, fleet replacement reserves).
Financial Management for Elected Officials January 2013
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Revenue Policies.6 These policies help decision-makers understand and manage revenue flows.
• Revenue Diversification. Such a policy encourages a diversity of revenue sources to protect the agency against fluctuations in individual sources, such as sales taxes, which can rise and fall dramatically with the general economy.
• User Fees and Charges. Such policies establish the extent to which users of agency services are expected to cover the cost of providing the service and how those costs are determined. Note that most fees may only be used for the purposes for which they were collected and may not exceed the cost of providing the service for which the fee is charged.
7 Such policies also can provide for regular review of fee levels and calculation methods to assure that the agency meets its objectives relating to cost-recovery on an ongoing basis.
• One-Time and Unpredictable Revenues. A goal of such a policy is to encourage the use of one-time or unplanned revenues for one-time needs or reserve replenishment rather than for ongoing expenses.
• Limited Purpose Revenues. By law or policy, certain revenues must be spent for specific purposes (for example, proceeds from special taxes). This policy explains which funds are restricted and why, limits their use to those purposes, and explains how the agency tracks their use to ensure the funds are spent only on permissible expenses.
Expense Policies.
8 These policies enable decision-makers to manage and monitor how the agency incurs expenses.
• Financial Reporting. Financial reports compare actual expense levels (and revenue levels) to those predicted in the agency’s budget. This policy specifies the content and frequency (for example, quarterly) of these reports to decision-makers and the public.
• Debt Financing. This kind of policy allows an agency to specify when it can use debt for either short- or long-term needs. The policy also establishes what levels of debt and debt service payments are appropriate for the agency. It can also be a tool for complying with ongoing disclosure requirements associated with the agency’s debt and monitoring compliance with those requirements.
• Expense Reimbursement. Such policies determine the circumstances under which elected officials and staff may be reimbursed for expenses incurred in the course of their service to the agency. This includes setting limits on certain kinds of expense levels (for example, meals and hotel rates) according to community standards. Policies also specify the kind of documentation that must be provided to demonstrate that the expense was incurred in compliance with the policy before an expense will be reimbursed. Agency counsel should review the policy for compliance with AB 1234 and other state laws. 9
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• Credit and Purchase Card Use Policies. The practice of issuing credit cards to agency officials and staff is increasingly rare because of the potential for misuse, either accidentally or intentionally. It can however, be useful to have one or more agency credit cards to make travel arrangements and the like. Some agencies also use purchase cards.
A policy specifies controls to prevent misuse of such cards. 10 • Petty Cash Policies. Such a policy provides guidelines and accountability mechanisms for day-to-day cash handling by the agency and its departments.
Cash Management and Investments. State law requires agencies to adopt an investment policy specifying how the agency may invest funds not needed for the agency’s immediate and short- term needs.
11 Such a policy allows the governing body to establish and keep current the agency’s investment philosophy and risk tolerance. Although well-defined policies are more than a list of allowed investments,12 such policies should be reviewed by agency counsel to make sure that the agency’s investments and practices conform with state law.13
Purchasing/Procurement. These policies determine the processes the agency uses in determining with whom it does business (including under what circumstances contracts are competitively bid) and which staff have decision-making responsibility in that area. Such policies also typically specify how the opportunity to do business with the agency is to be announced, with the goal being to reach
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Budget Creation and Monitoring
Budgets are an agency’s tool for linking near-term goals with the resources available to achieve them, while keeping in mind long-term goals and resources and how the agency’s annual budget fits into its capital plan. Budgeting typically involves:
1. Establishing goals and priorities for the agency;
2. Allocating resources according to those goals and priorities; and
3. Comparing actual expenses and revenues to those estimated in the current budgeted expenses, making adjustments during the course of the budget year as necessary.
As important of a function as budgeting is, decision-makers may find that their options are limited in determining how the agency’s monies are actually spent. The limitations may result from legal restrictions on how funds may be used, matching funds issues (that will result in loss of revenues if the agency does not spend a certain amount), and state mandates.
Budgets play the following roles:
• Financial Plan. The budget document shows where agency revenues come from and how they are used. It demonstrates an agency's ability to meet recurring expenses with recurring revenues. As the fiscal year proceeds, there may need to be adjustments in the agency’s financial plan—the role of el ected officials is to understand why such adjustments were necessary and what steps were taken to avoid having to make these adjustments.
• Communications Tool. The document also is an opportunity to explain to decision-makers, the news media, staff and the public:
What the agency does and why;
How the agency is organized to deliver programs and services;
The kinds of programs, services and activities planned for the budget period and what kinds of costs are involved;
Key fiscal issues facing the agency; and
How the agency assesses the efficiency and effectiveness of agency efforts (see also note on performance measurement on page 11).
• Yardstick. Once adopted, local officials and others can use budget numbers as a reference against which to compare expenditures and revenues throughout the year. As such, the budget provides an ongoing financial management tool to make sure the agency spends within its means and balances expenses against revenues.
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The budget document should be easily understood by the average member of the community. To help make this happen, financial information can be presented a variety of ways (including text, tables and charts). Including performance measures in the budget document can help the public see the relationship between costs and benefits.
Because of the public information role the budget document serves, the Government Finance Officers Association recommends that budget documents be shared via the agency’s website. 14 Questions to Ask
Role of Governing Body Members
• Do governing body members have a clear understanding of their role in the budget process?
• Do governing body members have a meaningful opportunity to shape major goals and objectives before the preliminary budget is prepared (for example, in budget workshops conducted sufficiently in advance of the preliminary budget’s preparation)?
• Do governing body members feel like they
have been given an opportunity to understand
and react to key decision points within a
preliminary budget (versus being subjected to
a long, random presentation about numbers)?
General Questions about the
Numbers in the Budget
• What are the budget’s underlying
assumptions (examples of key assumptions
include population changes, projected case
loads or service demands, state and federal
funding, construction activity, utilities costs,
service demands, inflation, and interest
rates)? Are these assumptions realistic?
What are the potential sources of uncertainty
and risks regarding these assumptions?
• Does the budget explain the projections for
the most significant general fund revenue
sources? (These probably account for close
to a large percentage of total general fund
revenues.)
• For agencies providing social services, how
are caseload and benefit costs forecast and
managed?
Budgets Don’t Tell
the Whole Story
Operating budgets and financial reports do
not address many important issues that
decision-makers must consider. For
example, they do not:
• Show postponed or avoided costs (for
example, deferred maintenance on
facilities or infrastructure)
• Use of one-time or expiring revenue
sources.
• Indicate changes in purchasing power
due to inflation or deflation.
• Measure the decline or depreciation of
infrastructure (like roads, bridges and
sewer lines) and public facilities (like
buildings and parks).
Local officials may wish to ask staff to
provide an analysis of how these variables
affect the agency’s ability to deliver
services and facilities.
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• Does the budget summarize major expenses:
o By function or program tied to areas of public service(s) or facilities the agency provides?
o By category? (Examples include capital expenses, debt service, and operating expenses like staffing, contract services, and supplies).
o By fund type? (Examples include the general fund and various enterprise funds, if the agency has special funds).
• Is the budget balanced by one-time fixes or is there a sustainable long-term funding strategy (this is also an issue to be addressed in the agency’s long-term financial planning documents, see page 14)?
• Does the budget clearly show the beginning and ending balances in each fund (fund balances)?
• Is the general fund budget balanced (in other words, are there enough projected revenues to fund estimated expenses)?
• Does the budget use one-time revenues only for one-time expenses (rather than ongoing expenses)?
• Does any fund have a deficit (in other words, is it projected to spend more than it brings in)? Why? Is it the deficit temporary or permanent?
• What are the most significant changes since last year’s adopted budget?
• With respect to the agency’s general fund, how is the fund balance projected to change?
o How are other funds’ fund balances projected to change?
o How will any resulting changes affect the agency’s compliance with its reserve policies?
• Does the budget compare actual expenses and revenues from past years so decision-makers and the public can understand how the agency’s budgeted numbers compared to reality?
• Does the budget show changes in the agency's overall financial condition? What measures of financial condition does it use?
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Local Agency Budgeting:
Resources for Further
Information
Government Finance Officers
Association, Recommended Budget
Practices: A Framework for
Improved State and Local
Budgeting (1998), available at
www.gfoa.org/services/dfl/budget/
RecommendedBudgetPractices.pdf
Institute for Local Government, A
Local Official's Guide to Public
Engagement in Budgeting (2010),
available at
www.ca-ilg.org/public-
engagement-best-
practices/engaging-public-
budgeting.
• How does the agency’s budget compare with other
agencies in the geographic area (both for the next
fiscal year and the trend over the past five years)?
o If there are differences, what are they and what
factors account for the differences? (For
example, are other agencies using different
assumptions and why?)
o Is the agency’s budget dependent on any other
agencies, in terms of revenues (or
expenditures)?
o Are the other agencies planning changes that
should affect the agency’s assumptions?
• Where is the agency in terms of constitutional
limits on state and local spending? (In 1979 the
California voters in 1979 approved a ballot
measure
15 that limited the growth in state and local
spending to a formula tied to increases in
population and inflation. Finance professionals
sometimes refer to this as the “Gann Limit” named after the ballot measure’s sponsor. Local voters can approve an increase in the formula, for a period of up to years. 16)
• If changes to the budget prove necessary during the fiscal year, why are those adjustments necessary? What steps were taken to avoid having to make mid-year changes? What steps can be taken to avoid such changes in the future?
Personnel-Related Questions
• What procedures does the agency use to forecast and manage projected personnel expenses?17 When do labor agreements expire?
• How does the agency set its salary and benefit levels or ranges?
o Are there salary-setting guidelines available for positions within the agency? Has the agency considered and followed them?18
o Does the agency research and consider salaries and benefits other agencies provide for positions with similar responsibilities in the agency’s geographic area?
o How are changes in compensation determined? For unrepresented employees not subject to a memorandum of understanding, are changes based on an annual goal-setting and performance review process? What other variables does the agency consider (overall agency fiscal health, public perception, relationship to other agencies’ practices, etc.)?
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o Note: If the agency uses employment contracts, carefully consider the potential future fiscal impacts of automatic contract renewals, automatic increases in compensation, and provisions linking compensation increases to third-party contracts. These may hamper the agency’s abilities to control its costs in the future.
• Are position vacancies monitored (including length of each vacancy), to determine if salary savings can be achieved, if position actually required, or if service levels are suffering?
• What is the status of the agency’s funding for pension and other post employment benefits liabilities?
Public Information and Transparency
• What processes will the agency use to inform the public about budget issues? What mechanisms will there opportunities will be provided for public input on budget challenges and priorities?
Are the agency’s budget and supporting documents made available on the agency’s website?19
Note about Performance Measurement
“Performance measurement” (which is sometimes known by other names) enables an organization to assess its performance against organizational goals. This can occur as part of the budgeting process or as part of general management practices involving assessing the degree to which an organization’s activities and priorities are aligned with pursuit of an organization’s mission and strategy. Under either approach, the Government Finance Officers’ Association recommends that performance measurement be linked to budget decision-making. See http://www.gfoa.org/downloads/budgetperfmanagement.pdf
More specifically, performance measurement is a management tool for systematically collecting clearly defined data regarding the effectiveness and efficiency of service delivery. The initial questions for elected officials to ask are:
1) Whether and how the agency uses performance measurement to assess its activities, 2) If the organization uses performance measurement, how is the resulting data analyzed and used in management decision-making (including decisions on allocating resources), and 3) How are those results communicated to elected officials and the community? There are a number of good sources on performance measurement for public agencies, including the International County-City Management Association (ICMA— icma.org/en/results/center_for_performance_measurement/home and the Government Finance Officers
Association (GFOA –
www.gfoa.org/index.php?Itemid=250&id=479&option=com_content&task=view).
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Some Financial Warning Signs
• Operating expenses exceeding revenues
by more than five percent during the year
• Large mid-year variances in budgeted
revenues and expenditures versus actual
• Inadequate or late financial reports
• Depletion of reserves to balance budget,
for example if the reserves fall below ten
percent of operating costs.
• Outstanding loans between funds at the
end of the fiscal year
• Expenses exceeding revenues for two
consecutive years, with the second year’s
deficit being larger than the first year’s
• Debt service exceeds 10 percent of
current revenues
• Increase in debt service as percentage of
operating budget each year
• Qualified auditor’s opinions
• Reports of internal control weaknesses
from the agency’s auditors with no
corresponding plan to address (or
repeated reports of such weaknesses
from year to year)
• Large turnover in staff responsible for
monitoring financial status
Financial Reporting and Accounting
Financial reports are an essential oversight tool. There are two basic kinds of financial reports:
• Interim Reports. These include monthly reports, quarterly reports and mid-year budget reviews.
• Annual Reports. Well-managed public agencies typically prepare a report at the end of the year explaining revenues and expenditures levels.
In addition, local agencies that receive federal or
other grant moneys may be subject to specific
funder financial reporting requirements.
20 Good interim reporting identifies important trends
in time for local officials to act on them before
serious problems arise. Audited financial reports
alert governing body members if there are
irregularities in financial practices and financial
reporting. Both kinds of reports require a solid
financial information system to track revenues and
expenditures and provide that information to
decision-makers.
Questions to Ask
Interim Reporting
• What kind of reports do agency managers
receive? What do they do with them?
• How often do elected officials receive interim
financial reports? Does staff review the
information in these reports with local
officials?
• Do the reports provide meaningful information
that gives local officials an accurate portrayal
of the agency’s current financial picture to
date?
• Do the reports compare expectations with
actual results? Do they discuss key variances
between the two?
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• Are there adverse patterns?
• Does staff have a plan to address problem areas?
• Are there inconsistencies or conflicting trends?
• Do the reports identify areas of uncertainty or risk in any forecasts contained in the reports?
• Do the reports frequently contain surprises (unexpected developments)?
Annual Reporting
• Are the annual financial reports prepared by a certified public accountant, in accordance with generally accepted accounting principles? Are these reports audited by an outside or independent auditor?
• Have all the required disclosures, for example, those required by the Governmental Accounting Standards Board (GASB—sometimes pronounced “gaz -bee”) been made?
• How long has the outside or independent auditor been auditing the agency? Does the agency periodically change auditors every few years to provide a fresh view of the agency’s financial practices and reports?
• What is the relationship between the auditor and both the agency staff and the governing body? Is the auditor getting the information he or she needs in a timely manner? Is communication open and encouraged?
• Are the audited annual financial reports timely—within six months after year -end?
• Should the agency have an audit committee to select and supervise the work of the outside or independent auditor?21
• Are the auditors' opinions “unqualified?” (An “unqualified” opinion means that the auditor concludes the agency followed all accounting rules and that its financial reports present an accurate picture of the agency's financial condition. A qualified opinion is a significant warning sign that demands attention from the governing body.)
• Does the auditor prepare a transmittal letter that clearly and concisely describes the agency's fiscal status?
• Does the auditor issue a letter to the governing body reporting on the agency’ internal controls?
• Does the agency follow the “Award for Excellence in Financial Reporting” guidelines of the Government Finance Officers Association?
22 If not, why not?
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Looking Ahead: Long-Term Financial Planning
• Why Do Fiscal Forecasts? Forecasting helps the agency think about the factors affecting the agency's fiscal health (and what can and cannot be done about them). Forecasting also helps elected officials, staff and the community understand the long- term fiscal challenges and opportunities they face, as well as possible advance warning of future uncertainties (for example, voter initiatives and state budget decisions).
• Recognize Limitations. Circumstances change and assumptions become outdated. Clearly stating the agency’s assumptions in making a forecast encourages the review, and re- evaluation of those assumptions, when necessary.
Questions to Ask
• Does the agency periodically prepare and / or update a long-term fiscal forecast?
• If so, does the forecast take into account key variables relating to revenues and expenses? Variables include demographic factors like changes in population and case loads. They can include economic factors like inflation, new construction, property values and the overall business climate (which can affect sales taxes). Other external factors can include legislative developments and court decisions. Projected costs related to pension obligations and labor agreements are another potential variable.
• Does the forecast reach clear conclusions about what these variables mean for the agency’s future revenues and expenses?
• Does the forecast also identify areas of risk and uncertainty that may limit the degree to which the agency can rely on the forecast?
• To what extent are the results of the forecast shared with decision-makers, the news media and the public?
• What level of detail do decision-makers want to receive regarding the agency’s long-term financial planning? (Some governing bodies will want fairly detailed information whereas others will want bigger picture information. There is not a right level of detail – the goal is to give governing body members the level of detail that makes them comfortable.)
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Cash Management and Investments
Sometimes, public agencies have funds on hand that are being held for longer-term needs. These may be invested in a variety of bonds (but not stocks), notes and other instruments allowed by state law.
The governing body’s role is to be a wise steward of the public’s resources. The objectives in managing public funds are, in priority order:
1. Safety (the likelihood that the agency will get all its money back)
2. Liquidity (the agency’s ability to withdraw funds on short notice)
3. Yield (the interest or other return on the investment)
In light of these objectives, prudent public agency investment managers never seek to earn maximum returns on the agency's portfolio at the expense of safety or liquidity. This would expose the agency to an unacceptable level of too much risk.
Instead, they focus on seeking to earn a reasonable rate of return on the agency's investments, while preserving capital in the overall portfolio and meeting the cash flow needs of the agency.
There are funds that specialize in investing public agency funds; the Local Agency Investment Fund (LAIF) of the State Treasurer’s office and CalTrust are examples.
Questions to Ask
• What oversight procedures does the agency use for its investments? Who is responsible for the day-to-day supervision of the agency’s investment activities? If that authority has been delegated to the agency’s treasurer, has that authority been delegated annually as required by law?23
• If that authority has been contracted out, who is responsible for oversight?
• What is the agency's investment policy? Is it understandable? Does the governing body review it annually as the law requires?
24 • Do governing body members receive and review periodic investment reports? 25 Do these
reports include an analysis of cash flow needs?
• Are the investment reports clear and understandable? (A lack of clarity can be a sign of problems or undue investment complexity.)
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• Do the reports show numerous investments and transactions? Why? (Many public agencies do not have portfolios that justify “active” management with lots of sales, purchases and trades.)
• Are the agency’s investments diverse or are the agency’s assets invested in just a few places?
• Do the agency’s policies allow investments in derivatives or other potentially high-risk instruments? Does that agency have any such high risk investments?
• Are any bank holdings over the FDIC insurance limit (which may vary from bank to bank) and do such depositories otherwise comply with state and federal standards to provide security for public agency deposits?
26
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Capital Financing and Debt Management
Debt financing is neither a “bad” nor a “good”—it is simply a tool for achieving community goals. However, debt does come at the price of costs of issuance and interest charges, as well as the obligation to make regular loan payments and conform to market disclosure and terms of the debt instruments on an ongoing basis.
27 Allowing these payments to become a dominant part of the agency’s budget limits the agency’s ability to respond to unplanned expenses.
Debt financing is usually appropriate for:
• Temporary Short-Term Cash Flow Issues. An agency may need to bridge cash flow gaps while waiting to receive key revenues (like property taxes in December and franchise fees in April). The agency may cover these gaps by issuing “tax” or “revenue” anticipation notes (sometimes known by the acronym “TRANs”). In this case, any amount borrowed must generally be paid back within a year.
• Long-Term Improvements. Debt financing is also appropriate for truly high-priority, one- time improvements – when it makes sense for current taxpayers to share the cost with those who will benefit 20 or 30 years in the future. By contrast, borrowing for ongoing operational expenses or short-term capital needs is inadvisable. The length of the debt should never exceed the useful life of the debt-financed asset.
Any agency’s ability to borrow and repay debt capacity is limited. Amounts borrowed for today’s project are funds that cannot be borrowed tomorrow. Amounts required for debt repayment in the future are funds that will not be available for other programs and services.
Recognizing the significance of the decision to incur long-term debt for a public agency, California’s constitution requires the public voters to approve debt 28 that would be repaid from
future general fund revenues.29 While there are a number of exceptions to this requirement (including the special fund doctrine for revenue bonds30 and an exception for financing leases), the constitutional principle is important to keep in mind. Incurring debt obligates the community into the future and reduces financial flexibility. Accordingly, the benefits of doing so should outweigh these costs.
31 Questions to Ask
• Does the agency have a multi-year capital improvement plan? (Having such a plan enables decision-makers to consider key factors like project priorities, debt capacity and what role fees will play in financing).
o If the agency has such a plan, is it realistic? If not, what steps are necessary to make it realistic?
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o If an agency has such a plan, what does the plan not include? For example, does it assume that new development will bear the costs of capital improvements necessitated by that development? If so, the plan should so state.
o Does the multi-year capital improvement plan include specific information about how future maintenance costs will be paid for? It’s not wise to build an asset the agency cannot afford to maintain.
• Does the agency have clear capital financing and debt management policies? Who is responsible for implementing and monitoring compliance with these policies?
o Do these policies provide decision criteria for when incurring debt is appropriate?
o Do these policies address what type of debt financing is appropriate (for example, a) variable versus fixed rates, and b) are interest rate swap agreements allowable and under what circumstances?)
o Do these policies address protection of credit quality?
o Do these policies address debt capacity?
o Do these policies address costs/benefits of risk examinations for proposed debt?
o Do these policies address who is on the agency’s financing team and how consultants like bond counsel, financial advisors, trustees, assessment engineers and underwriters are selected? Are the selection criteria being followed?
o Do these policies address disclosure to and relations with debt rating agencies?
o Do these policies address who is responsible for conformance with bond covenants (obligations the agency agrees to as part of bond financing) on an ongoing basis?
• Does the agency have a debt advisory committee? If so, does the membership of the committee include representatives from the local community?
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Purchasing and Contracting Practices
Procurement policies and practices enable an agency to promote maximum value and economy for the agency’s constituents through fair and competitive processes. The goal underlying such policies is to select vendors and service providers using processes in ways that minimize opportunities for favoritism and that provide for competitive pricing. For service providers, the task also involves assessing whether the provider’s skills best meet the agency’s needs.
Purchasing presents a number of ethical and legal hazards for local officials, despite what can be a relatively small impact on overall agency spending. This is because missteps can undermine the public’s overall confidence in the agency’s financial practices. For more information, see www.ca-ilg.org/post/fair-procurement
.
For public works projects, state law generally defines when local agencies must use competitive bidding.
32 Questions to Ask
• What steps does the agency use to have a fair, open and competitive purchasing process?
• Does the agency’s purchasing process explain the respective roles of staff and elected officials in that process?
• Have employees involved in the purchasing process received training or informational materials on the importance of both the appearance and substance of fairness in the procurement process?
• Are the purchasing rules straightforward enough so that everyone who has a part in implementing them understands the underlying goals and key rules? One element of clarity can be having separate policies depending on the nature of the purchase (for example, one for goods, one for services and another for public works projects).
• If the agency has a decentralized purchasing system (in other words, if purchase are made separately by different departments), does the agency have clear organization-wide standards and guidelines?
• Does the agency take advantage of cooperative purchasing opportunities with other public agencies?
• Does the agency have policies in place to comply with applicable prevailing wage requirements? These are especially common for vehicles and other big-ticket items.
• Would increased reliance on “just-in-time” deliveries that eliminate large inventories and warehouse systems be useful for the agency?
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• Does the agency have policies in place for the proper disposal of surplus property? How has staff been made aware of such policies?
• Is the agency alert to and actively monitor contract terms for cost escalators and automatic renewals that can cause increases that can cause the agency to lose control of costs?
• Are staff responsible for purchasing decisions required to file annual disclosure statements relating to economic interests and gift receipt (known as “Form 700s”)?
Limits on Agency Expenses/
Proper Uses of Public Resources
Invariably, there are more worthy uses for public funds than there are funds available. Deciding how limited public resources will be allocated is a key responsibility of elected officials, although it is important to acknowledge that decision-makers may have less discretion than one might expect in deciding how public monies are spent.
That being said, the law imposes some basic restrictions on how public resources may be used.
For example, any use of public resources must serve the needs of the agency’s constituents.
California’s Constitution expresses this principle by prohibiting “gifts” of public funds by the Legislature, general law cities, and agencies created by state statute;33 some city charters also contain this restriction. Agency counsel can provide guidance on the issue of what constitutes an impermissible gift of public funds. An example, however, is a payment to another public agency for their purposes, with no benefit flowing back to the donor agency’s constituents.34
Along similar lines, personal or political uses of public resources also are not allowed.35 This prohibition applies to not only public money, but also to anything paid for with public money (for example, agency equipment, supplies and staff time). An example of how this prohibition applies is that public resources may not be used for advocacy efforts on ballot measures. (For more information, see www.ca-ilg.org/BallotMeasureLegalIssues). Elected officials should ask how staff and newly elected officials are made aware of these restrictions.
Finally, local agencies must adopt expense reimbursement policies for elected and appointed officials.36 Agency counsel should review the policy for compliance with state law. Most agencies have adopted expense reimbursement policies for staff as a matter of sound practice.
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Brief Glossary of Financial Management Terms
Note: The following glossary is designed to help non-finance experts understand some of the terminology used in public agency financial management. Public agency financial management frequently involves terms that are unfamiliar to non-experts, the definitions of which also involve other unfamiliar terms. The definitions and explanations offered below sometimes sacrifice technical accuracy in order to promote a general understanding of what a term means.
The Institute for Local Government encourages those that wish absolute technical accuracy to consult additional sources.
Accounting Standards Generally accepted accounting principles (sometimes referred to by the acronym GAAP) published by the
Governmental Accounting Standards Board (sometimes
referred to by the acronym GASB) that guide local and
state agencies’ recording and reporting of financial
information. The standards establish such guidelines as when transactions are recognized and annual financial
report content.
Accrual Basis Accounting An accounting method in which revenues (or income) are entered into the accounting system when they are payable (even though the money may not have been received yet), and expenses are recognized when the commitment to pay
is made (even though no payment may have occurred yet).
Compare with Cash Basis Accounting.
Bond An interest-bearing promise to repay a specified sum of money borrowed (known as the principal amount) by a
specified date. See also “General Obligation Bonds.”
CalTRUST A joint powers authority created by public agencies to provide a safe and convenient method for public agencies to pool their assets for investment purposes.
Capital Budget A spending plan for improvements to or acquisition of land, facilities, and infrastructure. The capital budget balances revenues and expenditures, specifies the sources of revenues, and lists each project or acquisition.
Capital Improvement Program (CIP) The section in the agency’s budget for capital improvement projects, such as street or park
improvements, building construction, and various kinds of major facility maintenance.
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Capital Outlay Spending that results in the acquisition of or addition to the agency’s land, buildings, equipment, machinery,
vehicles, and the like to provide services to the community (sometimes these are referred to as “fixed assets”). .
Cash Basis Accounting An accounting method in which revenues are entered into the agency’s accounting system when the cash is received and spending is entered into the system when the agency makes a payment. To comply with generally accepted
accounting principles, local agencies must use accrual
basis accounting, rather than cash basis. Compare with
"Accrual Basis of Accounting."
Construction / Development Tax A tax imposed on development and/or the availability or use of public agency services. See also “Development
Impact Fees.”
Contingency In budgets, an amount that is set aside to meet unforeseen circumstances.
Debt Financing Issuing bonds and other kinds of debt instruments to finance agency activities in service to the public.
Debt Service Annual principal and interest payments an agency owes on money that it has borrowed.
Debt Service Funds One or more funds in an agency accounting system established to track payments made to repay principal and interest on debt.
Development Impact Fees Amounts charged in connection with land development to pay for facilities or services that will be needed to serve the new development that are tied to the proportionate
costs of providing those facilities or services to that development.
Enterprise Fund A separate fund used to account for services supported primarily by service charges. An example would be a
solid waste fund supported by charges solid waste service receivers pay.
Entitlement Program A benefit program in which funding is allocated according to eligibility criteria. All persons or agencies must meet the criteria specified by federal or state laws in order to receive the benefit.
Estimated Revenue The amount of revenue the agency expects receive during a fiscal year.
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Expenditure An amount paid for goods and services associated with the provision of public services, including payments for debt retirement and capital outlays.
Fee A charge for the cost of providing a particular service.
Public agency fees may not exceed the estimated
reasonable cost of providing the particular service or
facility for which the fee is charged, plus overhead.
Fines, Forfeitures and Penalties Revenues received and/or bail monies forfeited upon when an individual is convicted of a misdemeanor or
municipal infraction.
Full Faith and Credit When a local agency uses debt financing, more specifically general obligation bonds, it makes a pledge to bondholders the agency will use all available funds to
meet the agency’s obligation to repay bondholders.
Full-Time Equivalent (FTE)/Staff Year The number of hours per year that a full-time employee is expected to work. If there are two workers, each of whom works half that number of hours per year, the two workers together equal one full-time equivalent or one staff year.
Fund A self-balancing set of accounts. For agencies with more complex budgets, accounting information is organized
into funds, each with separate revenues, expenditures, and fund balances.
Fund Balance Difference between the assets (revenues and other resources) and liabilities (amounts spent or committed to) of a particular fund.
General Fund Fund used to account for all financial resources except those accounted for in another fund (for example,
enterprise or grant funds). Usually, the general fund is the largest fund in a local agency.
General Obligation (G.O.) Bonds A form of debt in which the agency pledges its “full faith and credit” to collect enough money each year to repay the amount borrowed plus interest.
General Tax A tax imposed for general governmental purposes, the proceeds of which are deposited into the general fund. An agency must comply with certain procedural requirements to impose, increase or extend a general tax, including
securing approval of the tax by majority vote of the
electorate. See also “special tax.”
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Generally Accepted Accounting Principles
(GAAP)
Uniform minimum standards used by state and local
agencies for financial recording and reporting which have been established by the Governmental Accounting
Standards Board (sometimes referred to by the acronym
GASB).
Governmental Accounting Standards
Board (GASB) –
The body that sets accounting standards for governmental entities at the state and local levels.
Grant A payment of money from one entity to another for a specified purpose, activity or facility. Generally, grants do not have to be repaid by the recipient, as long as the
recipient uses the funds for the promised purposes,
activities or facilities.
Intergovernmental Revenue Revenues from other public agencies in the form of grants, entitlements, shared revenues or payments in lieu of taxes.
Investment Earnings Revenue earned from the investment of public funds.
Licenses and Permits These represent the agency’s permission to engage in certain kinds of activities. Local agencies often charge fees designed to reimburse local agency for costs of
regulating activities being licensed, such as licensing of animals, bicycles, etc.
Lien A claim on assets, especially property, for the payment of taxes or utility service charges.
Liquidity The ability to convert a security into cash promptly with minimum risk of principal.
Local Agency Investment Fund (LAIF) A special investment fund in the state treasury into which local agencies may deposit money for investment.
Maintenance of Effort (MOE) A requirement often imposed as a condition of receiving certain kinds of funding, that the agency maintains a
certain level of spending. The goal of such requirement is to have the funding being provided increase the level of spending on the program (and conversely, avoid having
the extra funding be used to replace existing spending).
Mandate A state of federal requirement that local agencies perform a task in a particular way or perform a task to meet a
particular standard, often without providing the revenues to do so.
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One-Time Expenditures A term used to differentiate routine, ongoing costs within a given budget from non-recurring costs that will not be repeated in future years. A capital expenditure can be a one-time expenditure (although an agency may need to
evaluate whether the agency will incur maintenance or
replacement costs. This category may also include single- year appropriations for special purposes.
Other Post Employment Benefits (OPEB) A pension is a form of “post-employment benefit,” that is, a benefit an employee receives after their service to the agency ends. Other forms of such benefits can include
health insurance and other health-related benefits provided to former employees.
Performance Measures Indicators used in the budget to show items such as 1) the amount of work accomplished, 2) the efficiency with
which tasks were completed, and 3) the effectiveness of a program. Such indicators can help the public understand what public agency spending accomplishes.
Portfolio The collection of investments held by a local agency.
Prevailing Wage The basic hourly rate paid on public works projects to a majority of workers engaged in a particular craft,
classification or type of work within the locality and in the nearest labor market area (if a majority of such workers are paid at a single rate). Prevailing wage laws require all bidders to use the same wage rates when bidding on a
public works project.
Principal The original amount of a bond or debt (sometimes also referred to as “face” or “par value”), not including accrued interest.
Program Revenues Income generated by programs and/or dedicated to offset the program’s costs.
Rating Letters and numbers used by rating agencies to express their assessment of the likelihood of a bond or debt being repaid.
Rating Agencies Firms that evaluate the likelihood bonds or debts will be repaid by assigning ratings to those bonds or debts. A
bond rating is often the single most important factor
affecting the interest cost on bonds. There are three major rating agencies for municipal bonds: Moody's
Investors Service, Standard & Poor's, and Fitch Ratings.
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Realignment Actions taken by the State of California in 1991 and 2011 to restructure the state-county fiscal relationship by
making certain health, social service, criminal justice, and mental health service programs county responsibilities, and providing some funding to help pay for the new
responsibilities.
Rents Revenues received through the rental of public properties to private parties such as convention space and library facilities.
Reserve Amounts set aside to provide a funding source for extraordinary or unforeseen expenses or revenue
shortfalls. Sometimes also referred to as “fund
balance(s)” to reflect multiple agency funds. See also definition of “fund.”
Revenue Income received by the local agency. For more
information on sources of county and city revenues, see Institute for Local Government, Understanding the Basics of County and City Revenues (2008), available at
www.ca-
ilg.org/revenueguide.
Revenue Bonds A form of debt in which the agency pledges the income received from the operation of the facilities being financed with the debt to repay the amounts borrowed plus interest.
Salaries and Benefits Salaries includes the compensation paid to full-time, part- time, temporary, and extra-help employees, including
overtime, vacation pay, sick leave pay and any type of
premium pay. Benefits include the agency's share of the costs for health, dental, life insurance, retirement, Social Security and Workers’ Compensation.
Sales Tax A tax imposed on the total retail price of merchandise sold by a retailer.
Secured Roll A list containing all assessed property secured by land subject to local taxation
Securities Pieces of paper (sometimes referred to as “instruments”) that represent financial value. Examples include bonds and stocks.
Service Charges Amounts charged to cover the cost of providing services to individuals or companies.
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Short-Term Financing Methods Techniques used for many purposes, such as meeting anticipated cash flow deficits, interim financing of a
project, and project implementation. Using these
techniques involves issuance of short-term notes.
Special Revenue Fund Funds used to account for proceeds from specific revenue sources that are legally restricted as to how the revenues may be spent. A special revenue fund must have a
separate budget adopted annually.
Tax and Revenue Anticipation Notes
(TRANS)
A short term loan that local agencies use to even out cash flow during the year. The loans take the form of a debt (“note”) that is secured by anticipated tax and other
revenue collections.
Tax Base The objects or transactions to which a tax is applied (for example parcels of property, retail sales, etc.). State law or local ordinances define the tax base and the objects or transactions exempted from taxation.
Tax Rate The amount of tax applied to the tax base. The rate may flat, incremental or a percentage of the tax base, or any other reasonable method.
Total Appropriations and Total Revenues The consolidation of all revenues and expenditures for all funds. The purpose is to report accurately the full amount of governmental revenues and expenditures for the budget period
Use Tax A tax imposed on the use or storage of tangible personal property when sales tax is not paid. See also “sales tax.” User Fee Fees charged for the use of a public service or program.
An example is fees charged to participants in recreation programs. User fees for property-related services are
referred to as property-related fees.
Utility Rate A category of user fee paid by the user of utility services.
Utility Users Tax Tax imposed on the consumer (residential and/or commercial) of any combination of electric, gas, cable
television, water, and telephone services.
Vehicle License Fee (VLF) Annual registration fee imposed on vehicles.
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Williamson Act and Open Space
Subvention
Officially known as the California Land Conservation Act of 1965, a law that allows local agencies to enter into contracts with private landowners to restrict specific
parcels of land to agricultural or related open space use. In return, landowners receive property tax assessments which are much lower than normal because they are based upon
farming and open space uses as opposed to full market
value. The program contemplates local agencies receive
an annual subvention of forgone property tax revenues
from the state.
Yield The total amount of revenue an agency expects to receive from a tax, determined by multiplying the tax rate by the tax base. Also, the annual rate of return on an investment, expressed as a percentage of the investment.
Financial Management for Elected Officials January 2013
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Endnotes
1 The California Society of Municipal Finance Official Code of Ethics can be found at:
http://www.csmfo.org/index.cfm?fuseaction=Detail&CID=4&NavID=154 .
2 The California Municipal Treasurers Association Code of Ethics can be found at: http://www.cmta.org/?page=4 . 3 GFOA Recommendations: Adoption of Financial Policies, with cross references to National Advisory Council on State and Local Budgeting (NACSLB), http://www.gfoa.org/downloads/budgetAdoptionofFinancialPolicies.pdf .
4 See GFOA website with long-term financial planning resources:
http://www.gfoa.org/index.php?option=com_content&task=view&id=360&Itemid=186 .
5 GFOA Recommendations: Adoption of Financial Policies, with cross references to National Advisory Council on State and Local Budgeting (NACSLB), http://www.gfoa.org/downloads/budgetAdoptionofFinancialPolicies.pdf .
6 GFOA Recommendations: Adoption of Financial Policies, with cross references to National Advisory Council on State and Local Budgeting (NACSLB), http://www.gfoa.org/downloads/budgetAdoptionofFinancialPolicies.pdf.
7 See, for example, Cal. Gov’t Code § 66016.
8 GFOA Recommendations: Adoption of Financial Policies, with cross references to National Advisory Council on State and Local Budgeting (NACSLB), http://www.gfoa.org/downloads/budgetAdoptionofFinancialPolicies.pdf .
9 See Cal. Gov’t Code § 53232.2(b) (“If a local agency reimburses members of a legislative body for actual and necessary expenses incurred in the performance of official duties, then the governing body shall adopt a written policy, in a public meeting, specifying the types of occurrences that qualify a member of the legislative body to receive reimbursement of expenses relating to travel, meals, lodging, and other actual and necessary expenses.”).
See also http://www.leginfo.ca.gov/calaw.html
for additional information on what such policies must include.
10 See GFOA Best Practices: Purchasing Cards, http://www.gfoa.org/downloads/PurchasingCardFINAL.pdf for suggested practices for preventing and detecting abuse.
11 See Best Practices for Treasury Management, Government Finance Review (April 2000), available at http://www.gfoa.org/downloads/CASHTreasuryapr00.pdf. The California Municipal Treasurers’ Association offers sample investment policies at http://www.cmta.org/?page=39.
12 Back to Basics: Making the Case for Investment Policies, Government Finance Review (August 2002) available at http://www.gfoa.org/downloads/CASHInvestPol0802.pdf.
13 See Cal. Gov’t Code §53600 and following (note that an agency is not required to authorize the full range of all investments allowed by state law). See also http://www.leginfo.ca.gov/calaw.html for specific statutory language.
14 GFOA Recommended Best Practice: Using Websites to Improve Access to Budget Documents and Financial Reports (2003), http://www.gfoa.org/downloads/caafr-budgets-to-websites.pdf . See also http://www.gfoa.org/downloads/websitepresentation.pdf.
15 See Cal. Const. art. XIIIB (added by Proposition 4 on the 1979 ballot and sometimes referred to as the “Gann Limit” after the ballot measure’s leading proponent). See also Cal. Gov’t Code § 7900 and following.
16 Cal. Const. art. XIIIB, § 4.
17 See GFOA Recommended Best Practice: Managing the Salary and Wage Budgeting Process (2010), http://www.gfoa.org/downloads/GFOA_ManagingtheSalaryandWageBudgetingProcessBP.pdf .
Financial Management for Elected Officials January 2013
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18 See, e.g., League of California Cities City Manager Compensation Guidelines, available at http://www.cacities.org/UploadedFiles/LeagueInternet/91/911307cc-e899-43cb-ba97-7d28bf20640c.pdf
19 GFOA Recommended Best Practice: Using Websites to Improve Access to Budget Documents and Financial Reports (2003), http://www.gfoa.org/downloads/caafr-budgets-to-websites.pdf . See also http://www.gfoa.org/downloads/websitepresentation.pdf.
20 See Single Audit Act Amendments of 1996, OMB Circular A-133, the OMB Circular Compliance Supplement and Government Auditing Standards, http://www.whitehouse.gov/omb/financial_fin_single_audit.
21 GFOA Recommendation: Audit Committees (2008),
http://www.gfoa.org/downloads/caafrAudit_Committee_revised.pdf.
22 Available at http://www.gfoa.org/downloads/GENERALPURPOSECHECKLIST.pdf .
23 See Cal. Gov’t Code § 53607.
24 See Cal. Gov’t Code § 53646(a).
25 See Cal. Gov’t Code §§ 53607, 53646(b).
26 See Cal. Gov’t Code § 53630 and following.
27 GFOA Recommendation: Understanding Your Continuing Disclosure Obligations for Debt (2010), http://www.gfoa.org/downloads/GFOA_understandingcontinuingdisclosureBP.pdf .
28 Cal. Const. art. XVI, § 18(a) (“No county, city, town, township, board of education, or school district, shall incur any indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters of the public entity voting at an election to be held for that purpose, except that with respect to any such public entity which is authorized to incur indebtedness for public school purposes, any proposition for the incurrence of indebtedness in the form of general obligation bonds for the purpose of repairing, reconstructing or replacing public school buildings determined, in the manner prescribed by law, to be structurally unsafe for school use, shall be adopted upon the approval of a majority of the voters of the public entity voting on the propositi on at such election; nor unless before or at the time of incurring such indebtedness provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and to provide for a sinking fund for the payment of the principal thereof, on or before maturity, which shall not exceed forty years from the time of contracting the indebtedness.”) Note that subdivision (b) goes on to provide for additional details relating to school debt.
29 See Rider v. City of San Diego, 18 Cal.4th 1035, 1045 (1998).
30 See, for example, California Housing Finance Agency v. Elliott, 17 Cal. 3d 575, 587 (1976).
31 See generally, GFOA Recommendation: Debt Management Policy (1995 and 2003), http://www.gfoa.org/downloads/debt-management-policy.pdf .
32 For county projects, the threshold for complying with state law relating to public work contracts and bidding procedures is based on population: counties with populations of 500,000 or more ($6,500); counties with populations of 2 million or more ($50,000); and all other counties ($4,000). See Cal. Pub. Cont. Code §§ 20120- 20123. See also Cal. Pub. Cont. Code § 20390- 20409 (relating to work on county roads). For general law cities, public works projects worth more than $5,000 are subject to the state’s competitive bidding requirements. Cal. Pub Cont. Code §§ 20160-20162. The state’s Public Contract Code also has various competitive bidding requirements for special districts based on the kind of district. See Cal. Pub. Cont. Code §§ 20190- 20381.
Financial Management for Elected Officials January 2013
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Note that it is a misdemeanor to split projects to avoid competitive bidding requirements. See, e.g., Cal. Pub. Cont.
Code §§ 20123.5, 20163.
33 Cal. Const. art. XVI, § 6.
34 See, for example, Golden Gate Bridge & Highway Dist. v. Luehring, 4 Cal. App. 3d 204 (1970).
35 See Cal. Gov’t Code § 8314; Cal. Penal Code § 424. See also Cal. Gov’t Code § 54964.
36 See Cal. Gov’t Code § 53232.2(b) (“If a local agency reimburses members of a legislative body for actual and necessary expenses incurred in the performance of official duties, then the governing body shall adopt a written policy, in a public meeting, specifying the types of occurrences that qualify a member of the legislative body to receive reimbursement of expenses relating to travel, meals, lodging, and other actual and necessary expenses.”).
See also http://www.leginfo.ca.gov/calaw.html
for additional information on what such policies must include.
Financial Management for Elected Officials January 2013
Institute for Local Government 32
www.ca-ilg.org
Copyright © 2013 by the Institute for Local Government
Generous support for this publication
provided by:
Aleshire & Wynder, LLP
Best Best & Krieger
Burke Williams & Sorensen, LLP
Hanson Bridgett LLP
Kronick Moskovitz Tiedemann & Girard
Liebert Cassidy Whitmore
Meyers Nave
Renne Sloan Holtzman Sakai LLP
Richards, Watson & Gershon
San Diego Gas and Electric / The Gas Company
Southern California Edison
Financial Management for Elected Officials January 2013
Institute for Local Government 33
www.ca-ilg.org
Acknowledgments
Special thanks to the following individuals whose expertise contributed to the 2010 version of this publication:
Laura Allen, City Manager, Town of Colma
Bob Clary, Administrative Services Officer,
Community Services, County of Sutter
Michael G. Colantuono, Colantuono &
Levin, PC
Michael Coleman, Fiscal Policy Advisor,
League of California Cities
Diane Dillon, Supervisor, Napa County
James N. Fincher, County Counsel, County
of Merced
Mike Garvey, ICMA Senior Advisor
Rick Haffey, County Administrator, County
of Nevada
Jean Hurst, Legislative Representative,
California State Association of Counties
Peter J. Kampa, SDA, General Manager,
Tuolumne Utilities District
Dan Kaplan, Finance Director, Social
Services Agency, County of Alameda
Marlene Kelleher, Finance Manager, Vista
Irrigation District
James Marta CPA ARM, Principal, James
Marta & Company
Chris Marx, County Debt Officer, County
Executive's Office, County of Sacramento
James Morales, Executive Analyst, County
of San Bernardino
Donna Mooney, Senior Assistant City
Attorney, City of Alameda
Randy Murphy, Deputy Director of
Operations, Department of Planning &
Public Works, County of Glenn
Staff from the City of Newport Beach
Kenneth Rozell, Deputy City Attorney, City
of Merced
Catherine Shaw, Management Analyst,
County Administrative Office, County of
San Benito
Bill Statler, Director of Finance and
Information Technology (retired), City of
San Luis Obispo
Ed Tewes, City Manager, City of Morgan
Hill
Hubert "Hub" Walsh, County Supervisor,
County of Merced
Steve Walsh, Principal Administrative
Analyst, County Administrator’s Office,
County of Alameda
Nancy Watt, Chief Executive Officer,
County of Napa
Len Wood, President, Len Wood and
Associates, Rancho Palos Verdes
All decisions about the final content and formatting of this publication were made by the Institute for Local Government.
Financial Management for Elected Officials November 2012
Institute for Local Government 34
www.ca-ilg.org
About the Institute for Local Government
The Institute for Local Government promotes good government at the local level with practical, impartial and easy-to-use resources
for California communities.
The Institute is the research and education affiliate for the California State Association of Counties and the League of California Cities.
The Institute’s current program areas include:
Local Government 101
Public Engagement
Public Service Ethics
Sustainability
© 2010 by the Institute for Local Government
1400 K Street, Suite 205
Sacramento, CA 95814
916.658.8208
www.ca-ilg.org
Understanding the Basics of
The Institute’s current program areas include:
» Sustainable Communities
» Public Engag
ement
» Ethics and T ranspar
ency
» Local Gov
ernment Basics
» Collaboration and P
artnerships
The Institute is grateful to the following firms for
their commitment to public service ethics:
Aleshire & Wynder LLP
Best Best & Krieger LLP
Burke Williams & Sorensen, LLP
Hanson Bridgett
Liebert Cassidy Whitmore
Meyers Nave Riback Silver & Wilson, PLC
Murphy Austin Adams Schoenfeld LLP
Richards Watson & Gershon
Renne Sloan Holtzman Sakai LLP
Special thanks to the following individuals whose
time and effort contributed to this publication:
Jeff Ballinger, Partner, Best Best and & Krieger
Ruben Duran, Partner, Best Best & Krieger
Martin Gonzalez, Executive Director,
Institute for Local Government
Amit Katzir, Associate, Liebert Cassidy Whitmore
Michael Martello,
Institute for Local Government Volunteer
Colin Roberts, JD, Institute for Local Government
Alysha Stein-Manes, Associate, Liebert Cassidy Whitmore Scott Tiedemann, Managing Partner,
Liebert Cassidy Whitmore
Gary Winuk, Managing Attorney, Kaufman Legal Group
All final decisions about the content, tone and
formatting of this publication were made by the
Institute for Local Government.
Understanding the Basics of Public Service Ethics
© 2016 by the Institute for Local Government
1400 K Street, Suite 205
Sacramento, CA 95814
(916) 658-8208 www.ca-ilg.org
The Institute for Local Government is the nonprofit research affiliate of the League of California Cities, the California State Association of Counties, and the California Special Districts Association. Its mission is to promote good government at the local level.
Understanding the Basics of
Public Service Ethics Laws
CONTENTS
Chapter 1: Introduction 1
What Is an Ethics Law? ....................................................................................................................................................1 Understanding California Ethics La
ws .........................................................................................................................2 The Ke
y Laws to Know ..................................................................................................................................................... 3 Law
s as Minimum Standards ......................................................................................................................................... 3 The Limits of this Inf
ormation ........................................................................................................................................4 Endnotes ............................................................................................................................................................................4
Chapter 2: Personal Financial Gain Laws 5
Receiving Special Favors or Money for Official Actions ...........................................................................................8 Basic Rules .................................................................................................................................................................8 Penalties .....................................................................................................................................................................8 California La
w Penalties ...................................................................................................................................8 Federal P
enalties ......................................................................................................................................................9 Disqualification Based on Financial Int
erests Under the Political Reform Act ................................................... 11 Basic Rules ................................................................................................................................................................ 11 Political R
eform Act – The Four Step Conflict of Interest T est .............................................................................. 13 Identifying Ec
onomic Issues ......................................................................................................................................... 15 What Kinds of Ec
onomic Interests Are a Concern? ....................................................................................... 15 Real P
roperty Interests ......................................................................................................................................... 16 The “P
ublic Generally” Analysis ......................................................................................................................... 17 What Happens if an Official is Disqualified? ................................................................................................... 18 General Rule ..................................................................................................................................................... 18 Effect of Disqualification ............................................................................................................................... 18 Penalties ................................................................................................................................................................... 19 Political R
eform Act Penalties....................................................................................................................... 19 Effect on Agency and Those Affected by ................................................................................................... 19 Agency’
s Decision ........................................................................................................................................... 19
Interests in Agency Contracts Barred ....................................................................................................................... 20 Basic Rules .............................................................................................................................................................. 20 FPPC Jurisdiction ov
er Section 1090 Questions ............................................................................................. 21 Exc
eptions to Rules ................................................................................................................................................22 Non-Inter
est Exception ..................................................................................................................................22 Remote Int
erest Exception ...........................................................................................................................22 Limited Rule of Nec
essity .....................................................................................................................................23 Penalties ...................................................................................................................................................................23 Criminal Penalties ...........................................................................................................................................23 Effect on Contr
act ...........................................................................................................................................23 Employment-R
elated Restrictions ...............................................................................................................................24 Basic Rules ...............................................................................................................................................................24 Penalties ...................................................................................................................................................................24 Endnotes and A
dditional Information ........................................................................................................................25
Chapter 3: Perk Issues, Including Compensation, 27
Use of Public R
esources, and Gift Laws
Compensation Issues .................................................................................................................................................... 29 Basic Rules .............................................................................................................................................................. 29 Counties .................................................................................................................................................................. 29 Special Districts .................................................................................................................................................... 29 Cities ......................................................................................................................................................................... 31 Chart
er Cities ................................................................................................................................................... 31 General La
w Cities .......................................................................................................................................... 31 Local Agency Chief Ex
ecutives and Staff .........................................................................................................32 Special Issue: Speaking and Other F
ees ............................................................................................................33 Basic No-Honoraria Rule ..............................................................................................................................33 Exceptions t
o No-Honoraria Rules ..............................................................................................................33 Penalties ...................................................................................................................................................................33 Reimbur
sement of Expenses ....................................................................................................................................... 34 Basic Rules .............................................................................................................................................................. 34 When May Expenses Be R
eimbursed? ...................................................................................................... 34 Pr
ocess Requirements ................................................................................................................................... 34 Amounts ........................................................................................................................................................... 34 Penalties ...................................................................................................................................................................35 California La
w Penalties ................................................................................................................................35 Federal La
w Penalties .....................................................................................................................................35