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1 RiversideCA.gov
1 RiversideCA.gov
UPDATE TO SB 1439 -
POLITICAL REFORM ACT AMENDMENTS
Office of the City Attorney
June 13, 2023
RiversideCA.gov
2 • Government Code (GC) § 81000 et seq. (“Political Reform Act”) was a ballot measure passed in 1974 to regulate
campaign finance, lobbying activity, and conflicts of interest. • Amended several times in the 1970s and 1980s.
• GC § 84308 (“Levine Act”) was adopted in 1982 to prevent “pay for play.” Before this law was added to the Act, some appointed officers solicited contributions from applicants for government approvals and then voted on decisions affecting such applicants. GC § 84308 set a contribution limitation applicable to members of boards and commissions.
BACKGROUND
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3 • Effective January 1, 2023, Senate Bill (SB) 1439
amended GC § 84308.
• Expands the rules to local government (including city) officers who are directly elected by voters.
• Extends the prohibition, on officers accepting,
soliciting, or directing a contribution over $250 from a party or participant, from 3 to 12 months after a final decision in a proceeding.
– Campaign contributions covered by GC § 84308.
WHAT CHANGED?
RiversideCA.gov
4 • GC § 84308 imposes two main limitations on certain agency officers participating in proceedings involving a license, permit, or entitlement for use:
– An officer may not accept, solicit, or direct a contribution over $250 from a party or participant in a license, permit, or other entitlement-for-use proceeding for a period of 12 months after a final decision is made in the proceeding.
– If an officer “willingly or knowingly” accepted a contribution of over $250 from a party or participant within 12 months before a proceeding, the officer must disclose that fact on the record, and may “not make, participate in making, or in any way attempt to use the officer’s officer position to influence the decision” in the proceeding.
GC § 84308 (“LEVINE ACT”) BASIC LIMITS
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5 • Proceedings for “licenses, permits or other entitlements for use” includes:
business, profession, trade and land-use licenses/permits; and entitlements for use such as entitlements for land use, contracts (other than competitively bid, labor or personal employment contracts), and franchises. • “Party:” Any person who files an application for, or is the subject of, a proceeding involving a license, permit, or other entitlement for use. • “Participant:” Any person who is not a party but who actively supports or opposes a particular decision in a proceeding involving a license, permit or other entitlement for use and who has a financial interest in the decision. – A person actively “supports or opposes a particular decision in a proceeding” if that person lobbies in person the officers or employees of the agency, testifies in person before the agency, or otherwise acts to influence officers of the agency.
DEFINITIONS
RiversideCA.gov
6 • “Cure” options in GC § 84308:
- An officer may participate in a future proceeding, if the officer refunds the violating contribution within 30 days from the time the officer knows, or should have known, about both the contribution and the proceeding involving a license, permit or entitlement for use. - An officer may cure a past violation if the officer returns the contribution within 14 days of accepting, soliciting, or directing the contribution during the 12 months after a final decision is rendered in the proceeding.
- This post-violation cure is only available if the officer did not knowingly and willfully accept, solicit or direct the contribution. - The officer needs to maintain a record of such cure.
GC § 84308 CURE OPTIONS
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7 • All contributions by covered donors are aggregated
for purposes of the over $250 restriction and recusal
requirements.
• Does not apply to the Legislature, Board of
Equalization, State constitutional officers, and the
judicial branch.
MORE DETAILS
RiversideCA.gov
8 • Opinion No. O-22-002 (“Kendrick Opinion”), Dec 22, 2023, concluded:
– There is no “lookback” period for local elected officers for their actions before the January 1, 2023 effective date of the amendment. – An officer is not barred from participating in a proceeding involving a license, permit, or other entitlement for use based on contributions received before January 1, 2023.
– An officer is not barred from receiving a contribution based on the officer’s participation in a licence, permit, or other entitlement for use proceeding so long as the officer’s participation occurred before January 1, 2023.
• (The opinion was in response to specific questions posed by the League of California cities, on behalf of an El Cajon city councilmember, rather than directed at all local agencies.)
FPPC OPINION MEMO
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9 • GC § 11180 et seq. / 91001 et seq. authorizes investigations and civil prosecutions.
• CA Attorney General (GC § 91000)
• District Attorneys (GC § 91000)
• Fair Political Practices Commission
– FPPC Regulations 18438.1 - 18438.8
– Opinion No. O-22-002 (“Kendrick Opinion”), Dec 22, 2023 – Reminder Letter to County Counsels/City Attorneys, Apr 27, 2023.
– Enforcement Division – administrative or civil actions involving warnings or fines up to $5,000 per violation.
ENFORCEMENT AGENCIES
RiversideCA.gov
10 • Recent case adjudicated in Sacramento Superior Court: Family Business Association of California et al. v. FPPC, filed Feb 22, 2023. • Plaintiffs also included CA Retailers Association, CA Business Properties Association, CA Business Roundtable, Sacramento Regional Builders Exchange, and CA Manufacturers and
Technology Association.
• Plaintiffs alleged free speech infringements and an
unconstitutional amendment to the Political Reform Act. • On May 26, 2023, after cross-motions for judgment on the pleadings, the court denied Plaintiffs’ motion in its entirety, and entered judgment in favor of Defendant FPPC.
RECENT JUDICIAL CHALLENGE
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