California's Open
Meeting Laws and
Ethics Requirements
Training for Public Officials
in Compliance with
AB 1234
October 26, 2023
Presented by:
Glen R. Googins, City Attorney and
Elizabeth Klotz, Assistant City Attorney
Welcome
and "Lay of the Land"
• What this is and what it isn't
• Training Basics
• What is AB 1234 and Why do we Care?
• AB 1234 Housekeeping
2 Presentation Outline
I. Ethics Principles -- Santa Clara Code of Ethics and Values II. Conflicts of Interest Laws
Financial, Contractual, Campaign Contributions, When Leaving Office III. Perquisites and Temptations of Office
Gift Limits, Honoraria Ban, Loans, Use of Public Funds, Mass Mailing and Transportation-Related restrictions, Bribery
Intermission
IV. Government Transparency Laws
Form 700, Brown Act, Public Records Act
V. Fair Process Laws
Common Law Bias, Due Process, Incompatible Offices, Competitive Bidding, Anti-Nepotism
VI. Closing Remarks/Award Ceremonies
3 I. Ethics Principles
4 Ethics Defined
• From the Greek "ethos" meaning "character"
• Now commonly understood to mean the beliefs or ideals that characterize a community, nation, or ideology
• For our purposes: the laws and guiding principles that govern and encourage good conduct by public officials
and employees
5 Ethics Challenges
Public Perception
6 Ethics Challenges
Human Nature
“The church is close, but the
road is icy. The tavern is far,
but I will walk carefully.”
-Russian Proverb
7 Ethics Challenges
The World Is Complicated
--Sometimes what it means to "do the right thing"
is obvious . . . and sometimes it's not
--There are A LOT OF RULES and it’s not always
easy to understand how and when they apply to any
given situation.
--And yet, this is not an excuse . . .
8 Santa Clara's Code Of Ethics
and Values
• Long history: From 2000 until today
• In its own words: "designed to provide, clear, positive statements of ethical behaviors reflecting the core values of the community."
• Broad application: Applies to the Mayor, the City Council, all Boards and Commission members, volunteers and all City staff. • More "Guiding Principles" than a "Formal Set of Rules" 9
Code of Ethics and Values
Guiding Principles
• Eight Guiding Principles of Ethics and Values.
• Elected, appointed, employed and volunteer "public
officials" in all their public dealings are called on to be:
– Ethical
– Professional
– Service-Oriented
– Fiscally Responsible
– Organized
– Communicative
– Collaborative
– Progressive
10 Code Of Ethics and Values
Ethical Behavior "In Practice"
Provides Examples of What Constitutes Ethical Behavior
Trustworthy - acting with the utmost integrity and moral courage. Truthful - do what I say I will do and am dependable. Impartial Decisions - free of bribes, unlawful gifts, narrow political interests, and financial and other personal interests that impair my independence of judgment or action.
Fair - distributing benefits and burdens according to consistent and equitable criteria.
Equal opportunities and due process to all parties in matters Respect for persons, confidences, and confidential information Use of title(s) when conducting official City business, for information purposes, or as an indication of background 11 Code Of Ethics and Values
Values "In Practice"
Professional - apply knowledge and expertise to the work with the City Service-Oriented – friendly, receptive, courteous to everyone, care for the needs of the public and City
Fiscally Responsible - prudent consideration of financial impacts and long -term financial needs of the City
Organized - act in efficient manner, making decisions and recommendations based upon research and facts
Communicative – convey the City’s care for and commitment to tit citizens , engage in effective two-way communication.
Collaborative – act in cooperative manner with groups and other individuals in a spirit of tolerance and understanding
Progressive - proactive, innovative approach to setting goals and conducting the City’s business 12
Code of Ethics and Values
Additional Materials
• Code of Ethics and Values
• Behavioral Standards for Code of Ethics and Values (for both Council and Boards & Commissions)
• “Pocket Card” on Living Our Values and Being “At Our
Best” Every Day
• Candidate Guide to Building Public Trust
• Living Our Values
www.santaclaraca.gov/our-city/government/governance/ethics-values 13 Code of Ethics and
Values
Practice
Tips
• Review Santa Clara's Code
of Ethics and Values
Documents
• Incorporate these
principles into your day-to
-day conduct as a public
servant
• Always place the public’s
interest above your own
14 II. Conflicts of Interest
15 1. FINANCIAL CONFLICTS OF INTEREST
(Political Reform Act)
2. CONTRACTUAL CONFLICTS OF INTEREST
3. CAMPAIGN CONTRIBUTION CONFLICTS OF
INTEREST (New Area!)
4. CONFLICTS OF INTEREST WHEN LEAVING OFFICE
Political Reform Act
Financial Conflicts of Interest
Government Code section 87100, et seq.
• Officials should perform duties solely in the public’s interest, not to further their own financial interests. • General Rule: Public officials shall not make, participate in making, or attempt to influence a governmental
decision in which they or their immediate family have a financial interest.
• If there is a disqualifying conflict, recusal is required 16 Financial Conflicts of Interest
Who is a Public Official?
• A Public Official is every
– Member
– Officer
– Employee
– And certain consultants of a state or local agency
Government Code section 82048
17 Financial Conflicts of Interest
What Does It Mean To Have a Role In a
Governmental Decision?
• Making
– authorizing, directing, voting on, or committing the agency to the decision
• Participating in Making
– providing info, opinions, or a recommendation for the purpose of affecting the decision
• Attempting to Influence
– contacting any official in the agency for the purpose of affecting a decision or contacting another agency on behalf of your agency 18 Financial Conflicts of Interest
What Is a Financial Interest?
• Financial interests include:
– Business Entity: if over $2,000 interest or management position – Real Property: if over $2,000 interest (or within 500 feet of subject of decision)
– Source of Income: if over $500 within 12 months of decision – Source of Gifts: if over $500 within 12 months of decision – Personal Financial Effects: personal incomes, expenses, assets, or liabilities of the official or immediate family
– Campaign Contributions: if to Councilmembers or certain Commission members in excess of $250 within 12 months*
19 Financial Conflicts of Interest
FPPC Four-Part Test
• The FPPC has created a four-part test to determine if a conflict exists:
– Is it “reasonably foreseeable” that the decision will have a financial effect on any of the public official’s financial interest? If NO, there is no conflict. If YES, proceed to Step 2. [Reasonably foreseeable is defined in Regulation 18701] – Will the reasonably foreseeable financial effect be material? If NO, there is no conflict. If YES, proceed to Step 3. [Materiality standards are found in Regulation 18702]
– Can the public official demonstrate that the material financial effect on the public official’s financial interest is indistinguishable from the effect on the public generally? If YES, then there is no conflict. If NO, then there is a conflict, and the public official must not participate unless an exception applies. [Public generally is defined in Regulation 18707]
– Does an exception apply? 20
Financial Conflicts of
Interest
Practice Tips
– Know your financial interests
– Ask yourself whether the decision
impacts (in any way) your
financial interests
– If a conflict exists, do not
participate in, discuss, or
influence the decision. Disclose
the basis for recusal and leave the
room.
– When in doubt, seek legal advice
and consider recusal
21 Contractual Conflicts of Interest
Government Code section 1090
• Core Principle: Government Code section 1090 prohibits self-dealing in government contracts
• General Rule: A public official may not make or
participate in making a contract in their official capacity if they have a financial interest
• Consequences: If a public official who has a financial interest "makes" a contract, the contract is void and
penalties apply.
22 Contractual Conflicts of Interest
How 1090 Applies – In General
• Govt Code 1090 applies to officials, members/officers, employees, and sometimes consultants.
• When Govt Code 1090 applies to a legislative body
member, the entire body is precluded from entering into the contract unless an exception applies.
• For employees and advisory body members, full
abstention and recusal is usually sufficient.
23 How 1090 Applies (cont'd)
• Applies to all types of contracts
• Making a contract includes more than just voting on it • Financial interest is broadly defined
– Direct or indirect
– Positive or negative
– Exception for remote interest in certain cases
• Fact specific – seek legal advice
• Limited Rule of Necessity
24 Contractual Conflicts of Interest
Contractual Conflict of
Interest
Practice Tips
• Ask yourself whether you will
personally gain from any
contract you are working on
or being asked to approve
• If personal gain possible,
seek legal advice (this can be
a tricky area)
25 Campaign Contributions – New
Area
• Prior to January 1, 2023, campaign contributions not treated as "financial interests" for elected officials (SB 1439)
• Now, both Councilmembers and Commissioners prohibited from participating in a decision if received a campaign contribution from party or participant to the decision in excess of $250 within prior 12 months*
• Also prohibited from accepting a campaign contribution from party or participant in excess of $250 for 12 months after decision • Councilmember or Commissioner must return contribution or disclose campaign contribution conflict and recuse.
26 Conflict of Interest -
Campaign Contributions
Practice Tips
• Practice Tips for
Current/Aspiring Elected
Officials:
– Review the agenda for potential
conflicts that might arise from
campaign contributions
– Be vigilant for participants who
have a financial interest and
advocate for or against the
decision
– Seek legal advice (this is a new
area!)
27 Conflict of Interest - When Leaving Office
• One-Year Prohibition on Lobbying
– GC § 87406.3 prohibits Elected Officials and City Managers for a period of one year after leaving office from representing any other person, for compensation, by appearing before or communicating with their former agency to influence the decision of the agency in an administrative or legislative action – SCCC § 2.145.030 - provides a similar prohibition for City Officials, Board and Commission members and designated City employees • No Influencing Decisions Related to Prospective Employers – GC § 87407 prohibits public official from making participate in making, or using their official position to influence, any governmental decision directly relating to any person with whom they are negotiating, or has any arrangement concerning prospective employment
28 Conflict of Interest -
When Leaving Office
Practice Tips
• Be aware that after leaving office,
for one year, both state and local
lobbying prohibitions apply
• When participating in any City
business or decision, you should
not be seeking a future
employment relationship with the
person or party before you
29 Conflict of Interest - Hypothetical
Scenarios
• 1. Planning Commissioner Kinda Torn is scheduled to vote on a development project on a property owned by her sister. Can the Planning Commission member vote on the decision to approve the development? What if the Planning Commission member's sister, Ima Mooch, had been living with her rent free up until 6 months prior to the vote? • 2. The City is considering building a park on City property across the street from a Councilmembers home. Can the Councilmember vote on the decision to build the park? What if the Park was 800 feet away from the Councilmember’s backyard? • 3. The City Council is voting on a contract to install solar panels on City facilities. A Councilmember who co-owns the solar company recuses herself from participating or voting to approve the contract, and the contract is awarded. Is the contract valid? • 4. Ben Boogins served as City Attorney for the City of Cohiba from June 2018 - July 2022. In September 2023, a cigar store owner asks Ben to represent the business in its tobacco license revocation hearing before the City’s hearing officer. Can Mr. Boogins represent the cigar store owner? Should he?
30 III. PERQUISITES AND
TEMPTATIONS OF OFFICE
31 1. Gift Limits/Disclosure Requirements
2. Behests
3. Honoraria
4. Misuse of Public Funds
5. Mass Mailings
6. Travel/Lodging
7. Loans
8. Bribery
Gift Limits/Disclosure
Govt. Code Section 89503 et seq.
• In General: While the receipt of gifts by public officials is not prohibited outright, state law imposes limitations on gifts and disclosure requirements
• Purpose: discourage undue influence on public officials due to the receipt of gifts
32 Gift Limits/Disclosure
What is a Gift?
• Any payment or other benefit provided to an official that confers a personal benefit for which the official does not provide goods or services of equal or greater value
• Includes a rebate or discount in the price of anything unless the rebate or discount is made in the regular course of business to members of the public
33 Gift Limits/Disclosure
Value Limits
• There is a limit on the value of gifts you may receive from any one source
• Current limit: $590 in any 12-month period (rolling)
• If you accept gifts in excess of $590 from a single source:
– You have violated the Political Reform Act and are subject to civil and criminal penalties
– You are deemed to have a disqualifying economic interest in any matter involving the gift giver and you may not participate in such matter
34 Gift Limits/Disclosure
Disclosure Requirements
• If you are a "designated public official," state law requires you to keep track of--and disclose in an annual report--gifts you have received in your capacity as a public official
• Designated Public Official defined as local elected officers or candidates and employees designated in the Conflict-of-Interest Code • Designated public officials must report all gifts received from a single source in 12-month reporting period on Form 700 if aggregate value of gift(s) is $50 or more
• FPPC has a gift tracking app that filers can use (stores data locally on your phone so that you can later enter it into your Form 700) – www.fppc.ca.gov
Gift Limits/Disclosure
Gift Exceptions (Not a Gift)
• Gifts returned, donated, or reimbursed within 30 days • Gifts from family members or inheritance
• Admission to a paid event where the official makes a speech • Admission to a paid event where the official performs a ceremonial role • Informational material
• Gifts of home hospitality provided to the official
• Two tickets to a political or 501(c)(3) organization fundraiser provided by the organization
• Personalized plaques or trophies valued at less than $250 • Campaign Contributions (special rules apply)
For other examples/details, see California Code of Regulations Section 18942
36 Gift Limits/Disclosure
Gifts Not Subject to $590 Limit
• Wedding gifts
• Some gifts of travel within the United States
(including travel within California)
• More information later regarding special
rules for travel gifts
37 • Applies to all City Employees (not
elected or appointed officials)
• Acceptance of gifts and favors in
the course of, or related to, an
individual's employment with the
City is strongly discouraged.
• No employee shall accept gifts or
favors exceeding $20 or more in
value (in aggregate) from any one
source during a calendar year if
the gift/favor is connected to
employment.
38 City Manager Directive
(CMD) 67 – Gifts and
Favors
Local Rule Alert
Gifts
Practice Tips
• Be wary of gifts and the "appearance of
impropriety"
• Keep track of gifts to facilitate and assure
accurate reporting. FPPC Gift Tracking
App:
fppc.ca.gov/Form700/gift-tracking-app.html
• Assume a higher value. If close to limit,
decline or return. If close to reporting
requirement, disclose it.
• If you discover something you forgot,
amend your Form 700.
• City employees: Don't violate
stricter CMD 67 gift limits
39 Behests
Government Code section 84224
• A “behest" occurs when a person donates for charitable, governmental, or legislative purposes on behalf of or in response to a solicitation by an elected official
• Disclosure required
– When solicited by an elected official
– Donor makes payments totaling $5,000 or more in a calendar year – Elected officials must disclose on Form 803 and file paper with the City Clerk within 30 days of donor's payment
40 Honoraria
Government Code section 89502
• “Honorarium”: any payment for a speech, article published, or mere attendance at an event such as conference or meeting • Elected Officials, Candidates for Elective Office, Planning Commissioners, the City Manager, and the City Finance Director shall not accept any honorarium
• A "designated employee" (see City Clerk’s website) shall not accept an honorarium from any source if the employee would be required to report the receipt of income or gifts on their Form 700
• Exceptions—for certain specified professions and charitable donations • Can give back or donate to City within 30 days to avoid violation 41 Misuse or Unlawful Gifts of Public Funds
• Under state law it is unlawful to use public resources for personal or campaign purposes
– Public resources include money, equipment, supplies, compensated staff time, use of telephones, computers, fax machines, etc.
– Violations may be charged as felonies or misdemeanors; violators may be fined, sent to jail, and/or barred from holding public office
– See California Penal Code section 424 and Government Code section 8314 • Local Rule Alert: Santa Clara Code of Ethics and Values, Guiding Principle Fiscally Responsible
– Demonstrate concern for the proper use of City assets (e.g., personnel, time, property, equipment, funds) and follow established procedures.
Bottom Line: All public funds should be used for public purposes 42 Mass Mailings – In General
Government Code section 89001
43 • “Mass Mailings” by an elected official using public funds are prohibited. • Mass mailings are defined as:
1. Tangible item delivered, by any means, to a person’s residence, place of business, or post office box;
2. Where the tangible item either:
• Features an elected officer affiliated with agency which produces or sends the mailing; OR • Includes the name, office, photograph, or other reference to an elected official with the agency that produces or sends the mailing;
3. Where all or any portion of the cost is paid for with public monies; AND
4. More than 200 substantially similar items are sent in a single month Note: No current FPPC rule prohibits mass transmission of electronic communications.
But still must be aware of prohibitions on use of office/public funds for political purposes in Penal Code § 424 and Govt. Code § 8314.
Permitted Mass Mailings Except When Sent 60
Days Before an Election
SB 45/Government Code section 89003
• Sixty 60 days before an election an Elected Official cannot provide as a mass mailing the following:
– An item where the Elected Official’s name appears in letter head (including roster type listing) or logo on stationary or forms, including “For Your Information” or “Compliments of” cards or stamps
– An announcement of a meeting or event that:
• Is sent to the Elected Official’s constituents, related to Elected Official’s duties, held by the Elected Official, and which the Elected Official plans to attend • That is an official agency event or meeting where the agency is proving the use of a facility or financial support
– A business card
44 Travel, Lodging, & Expense Reimbursement
Government Code section 89506
• General Rule:
– Payment for travel, lodging, and reimbursement for expenses are considered gifts under state law subject to reporting requirements and limits. • Exceptions:
– Payment from another state, local, or federal agency or non-profit as part of the employee’s official duties for education, training, interagency programs of purposes – Travel expense reimbursements where travel is for official agency business and reimbursements are paid by the agency
– A payment for travel that constitutes a lawful and reported (as required) campaign contribution
– Payment from another government agency or non-profit to reimburse travel where the official is giving a speech or presentation
45 Travel Gifts from Transportation
Companies Prohibited
Cal. Const. Art. XII section 7
• California Constitution prohibits gifts of travel to certain public officials by transportation companies (dates back to days of California Southern Pacific Railroad’s activities in 1900’s) – Prohibition does not apply to employees
– Applies to interstate or foreign carriers
– Applies regardless if travel is for personal or official business • Violation will result in forfeiture of office
46 Loans
• All Form 700 Filers must disclose loans received from other persons
• Loans from commercial banks, lending institutions, or from close family members do not have to be disclosed
• Loans over $250 from other City employees, or from parties with whom the City contracts are prohibited
• A personal loan over $500 to an elected official must be in writing and set forth key terms
• Practice Tip: Avoid loans from people or companies with City business 47
Bribery
Penal Code Section 68
• Bribery is the act of requesting, accepting, or agreeing to receive money or any other consideration in exchange for one's vote or action on any matter.
• It is a felony under both state and federal law.
• Under state law, the crime of bribery can result in prison time (2-4 years), fines, the loss of one's public office, a ban on holding future public office. May also result in loss of retirement benefits (PEPRA). • Convictions under federal law can result in prison time of up to 15 years.
48 Perquisites of Office - Hypothetical Scenarios
• 1. The City contracts with an insurance carrier to provide liability insurance for the City and its employees. The insurance carrier holds an annual client appreciation day at Disneyland and reaches out to offer City’s insurance manager a ticket valued at $500 for the experience. Under state law, can the insurance manager accept the ticket?
• 2. A jewelry shop makes a limited-edition be-jeweled Santa Clara lapel pin. The owner reaches out to the mayor and council to offer them the first opportunity to purchase the pins at a discount. Can they purchase the item? What if the lapel pin were of nominal value? • 3. On a workday afternoon, a Fire Deputy learns a mountain bike he’d had his eye on is available to purchase at a local store, but only one is left and his car won’t fit it. He asks the Fire Chief if he can help him out by picking up the bike in the Chief’s rarely used City-issued truck and transporting it to the Deputy’s home in Hayward as soon as possible. Can the Fire Chief do this? • 4. A Councilmember is running for re-election. His campaign manager comes by City offices to check in and offers to send mass campaign emails with the Councilmember’s picture to constituent voters from the Councilmember’s office computer while the Councilmember is in meetings. Is this prohibited? What if they were doing this after-hours?
49 INTERMISSION
50 IV. GOVERNMENT
TRANSPARENCY LAWS
1. Form 700 Disclosures
2. Brown Act
3. Public Records Act
4. Local Rules
51 Form 700 - Disclosure Requirements
Government Code Section 87200
• Public Officials (elected and appointed officials & certain employees) are required to disclose specified financial information
• Filed on a Form 700 – Statement of Economic Interests • The Form 700 must be completed and filed with City Clerk when assuming office, annually, and upon leaving office (NetFile - www.netfile.com/agency/csc/)
• Form 700 filings are Publicly available on the City’s Website 52 Form 700 Disclosure
Disclosure Categories
• Employees in positions that involve making or participating in the making of City decisions that may foreseeably have a material effect on the employee’s or employee’s family’s financial interest are listed on “Designated Employees” for purposes of the Political Reform Act
• Each “Designated Employee” must file a Form 700 that includes the disclosure categories associated with their position
• Resolution 21-8939 contains Santa Clara’s Conflict of Interest Code – 5 Disclosure Categories
– Updated Designated Employee and Categories list can be found on the City Clerk’s website and your individualized categories are identified when you log into your NetFile account • Our local Conflict of Interest Code must be amended when new positions are created or position responsibilities are changed, but at a minimum, must be reviewed every two years
53 Form 700 Disclosure
Reporting Requirements
• Depending upon the public official’s designated categories, some or all of the following must be reported:
– Income (except govt. income)
– Real Property (except primary residence)
– Investments
– Business Positions
– Loans (except institutional loans)
– Gifts ($50 or more from a single source in calendar year) – Travel Payments
– Business entity ownership - 10% interest or greater
Rules can be complex. Consult Form Instructions or FPPC for guidance (http://fppc.ca.gov/) 54
Form 700 Disclosure
Advice and Trainings
55 • Form 700 Instructions Pretty Helpful
• If unclear Consult with City Clerk/City Attorney's Office Note: We can share our thoughts and steer you to available information, but can't provide you with personal legal advice
• For training and other resources: Check out the FPPC
website for training opportunities:
fppc.ca.gov/learn.html
Form 700 Disclosure
Reportable and Non-Reportable Interests
56 The Brown Act
• Authored by Ralph M. Brown, an
Assemblyman from Turlock, CA
• Enacted by the California State Legislature
in 1953 in an effort to safeguard the
public's ability to obtain access to and
participate in local government meetings
and deliberations
• Originally a 686-word statute
• Now Contained in California Government
Code §§54950-54963 57
Brown Act
Core Principles
• Local "legislative bodies" can only deliberate and take actions at public meetings
• Public must be notified in advance of all meetings and matters to be considered
• Public must be given access to information and
opportunity to provide input to decision-makers
• Exceptions are limited
58 Brown Act
What are "Legislative Bodies"
• Applies to all local “legislative bodies”
and their members
– City Councils and County Boards
– Boards, Commissions, and Committees
– Sub-Committees of a legislative body, with
limited exceptions
– Regional Boards (e.g., VTA and NCPA)
– BIDs and PBIDs per Streets and Highway
Code (e.g. SCTID)
• Does not govern conduct of City staff
59 Brown Act
What is a "Meeting"?
• Any congregation of a majority of the members of a
"legislative body" at the same time and place to hear,
discuss or deliberate an issue in the subject matter
jurisdiction of the body
• No action is required; mere discussions qualify
• Includes informal gatherings, with or without public
attendance or City sponsorship
60 Brown Act
What is a Meeting (Continued)
• Other forms of communication constituting a “meeting” include:
– Writings: Written communication, including e-mails,
between a majority of the members
– Intermediary Communications: communications
between employees or agents on behalf of a majority of
members
– Serial Communications: a chain of communications
between members resulting in a quorum of members
contacted
61 Brown Act
Serial Meeting Examples
62 Brown Act
Meeting Exceptions
• Not a “meeting” if a majority of members attend:
– Conference open to the public
– Open and publicized meeting of a local group
– Open, noticed meeting of another legislative body
– Social or ceremonial event
– Open, noticed meeting of a standing committee (but can’t participate)
• Gray area: seek legal advice first
– Often advisable to notice the meeting or limit attendance to less than majority
• Quorum still can’t discuss city business 63
Brown Act
Meeting Exceptions (continued)
• Memoranda from City Manager or City Attorney to
all City Council Members
• Communications for purposes of calling a special
meeting or setting an agenda
• Individual contacts or conversations between less
than a majority of members and members of the
public
64 Brown Act
Communications
Practice Tips
• Councilmembers/Board Members: when
talking to a colleague about City business,
check first who else they've spoken with
• Beware of “intermediary”
communications between employees or
agents on behalf of a majority of the
members - staff members should exercise
care not to disclose members’ views and
positions to other members
• If staff needs to communicate with
members by email, it is a good practice to
“BCC” the members so that a member
doesn’t inadvertently violate the Brown
Act with a “reply all”
65 Brown Act
Meeting Agendas
• Purpose of the Agenda: To inform the public
what will be discussed at the meeting so they can
determine whether to monitor or participate in
the meeting.
66 Brown Act
Agenda Requirements -- Notice
• Post in advance of the meeting
– 72 hours for a Regular Meeting
– 24 hours for a Special Meeting
• Post and mail to those who requesting
• Post prominently on the internet (and make
searchable)
67 The Brown Act
Agenda Content
• Indicate location and time
• Contain a description of items to be discussed
• The Brown Act requires that agenda item titles fully describe the issue or action to be discussed and/or taken
– The title generally does not need to be longer than 20 words – It should be clear to a member of the public what will be discussed and what is sought regarding the item (approval, direction, acceptance, etc.)
68 The Brown Act
Agenda Title Examples
69 Sufficient? Better?
Discuss Downtown Precise Plan Presentation of and Possible Action on Downtown Precise Plan to Change Land
Uses and Development Standards in
Area Bordered by Fenton, Lafayette,
Madison, Homestead
FY 23/24 Budget Amendments Action on Proposed Amendments to the FY 23/24 Budget to Increase the City
Attorney’s Budget by $3,000,000
The Brown Act
Qualified Location
• Must be held within the jurisdictional boundaries of the City, unless a specific exemption applies:
– Comply with a law or court order
– Inspect property outside of city
– Multiagency meeting
– No meeting facility within the jurisdiction
– Meeting with federal/state officials on a legislative or regulatory issue – A facility outside of the City, which is the topic of discussion – Closed session at legal counsel’s office regarding pending litigation when it would reduce legal fees or costs
• Location must be ADA accessible.
• Remote participation by both members of the legislative body and the public now allowed subject to certain requirements
70 The Brown Act
What You Can Talk About at
Meetings
• Only items listed and clearly described on timely
posted agenda can be discussed or acted upon
• If any question about adequacy of description,
better not
to act
71 The Brown Act
Remote Meetings
• Standard Rule for teleconferencing (Govt. Code Section § 54953(b)) • COVID Rules: During height of COVID , Governor's emergency order allowed local legislative bodies to hold public meetings remotely • AB 361: can hold remote meetings when state of emergency exists (sunsets Jan 1, 2024)
• AB 2449 (Jan 1, 2023): long-term permission to hold hybrid meeting in specified circumstances (member "emergency" or other "just cause") – Restriction on number of times member can attend remotely in a year – Quorum of body must be in person
– Two-way audio visual or two-way phone and live webcasting required Additional legislation proposed for this year regarding remote meetings
72 The Brown Act
What You Cannot Talk About at
Meetings
• Cannot consider, discuss, deliberate or act on matters not on the agenda • Otherwise, only appropriate action is to refer item to staff and/or for consideration on a future agenda
• Brief response, question or statement o.k.
• Limited Exceptions:
– Emergency Majority vote determines an “emergency” exists; (e.g. crippling natural disaster, terrorist act, or major work stoppage); or – Urgency Two-thirds (4 of 5) vote determines the need to take immediate action exists and agency knowledge of need arose after the agenda was posted 73 The Brown Act
Sub-Committees
• The Brown Act generally applies to all boards, commissions, committees, sub-committees and other bodies created by
charter, resolution or formal action of a legislative body • Applies whether the body is permanent or temporary, advisory or decision making
• Limited Exception – A true “Ad Hoc” Subcommittee
– Comprised solely of less than a quorum of the members of the appointing body; and
– Does not have continuing jurisdiction over a particular subject matter
– Cannot have members of other legislative bodies or other 3rd parties
– Limited duration: ideally 6 months or less
• Staff created Citizen/Business Committees also exempt • Many gray areas. Seek City Attorney advice
74 The Brown Act
Closed Session Exception
• The Act limits what can be discussed behind closed doors to specified topics and circumstances
– License/Permit Determination for rehabbed criminal (§54956.7) – Real Property Negotiations – Price and Terms (§54956.8) – Existing Litigation [§54956.9(a)]
– Anticipated Litigation [54956.9(b)]
– Liability Claims (§54956.95)
– Threat to Public Safety/Services [54957(a)]
– Public Employee Appointment/Employment/Performance
Evaluation/Discipline/Dismissal/Release [54957(b)]
– Labor Negotiations (§54957.6)
• Seldom used by (or appropriate for) Board and Commissions 75 The Brown Act
Closed Session Confidentiality
• Confidential information obtained during closed
session cannot be disclosed outside the session
– Includes City negotiating positions in real estate, labor talks, and City vulnerabilities or settlement positions in litigation
• Only a majority vote of the legislative body can
authorize disclosure
• Penalties for unauthorized disclosure include referral to the grand jury, injunctive relief, and disciplinary
action
• Reporting Out: Obligation to report out "final"
decisions of the Council. Includes substance of
decision and the vote. 76
The Brown Act
Rights of the Public
• Attend, observe, and speak at meetings
• Attend and speak without being required to give identifying information • Record the meeting with audio or video and take pictures • Review agendas and other documents distributed to a majority of the board (must generally be available to the public at the same time, with exceptions) • If requested in writing, have the agenda or agenda-related documents be mailed to them
• Obtain a copy of audio or video of the meeting
• Criticize or complain about the legislative body, members of the legislative body, or City actions, processes or procedures
• Limits apply, but First Amendment rights must be respected 77 The Brown Act
Public Comment
• Regular Meeting
– Agenda Items: Comment must be allowed; reasonable time limits can be adopted by local agency. Current City Council time limit: 2 minutes. – Non-agenda items: Agenda must provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public within its purview
• In Santa Clara, this is done under "Public Presentations“ • Rules Apply:
– No action or discussion can occur
– Can refer to staff for information; request a report back; request item be placed on future agenda
– Current City Council time limit: 3 minutes
– Note: Boards and Commissions 78
The Brown Act
Public Comment (continued)
• Special Meeting
– Must allow comment on agenda items
– Comment on non-agenda items is permissible but not
required
• Special Rule for Non-English Speakers
– As of January 1, 2017, AB1787 now requires twice the allotted time be provided for translation for non-English speakers unless simultaneously translation equipment is available 79 The Brown Act
Social Media Risks
• Increased risk of Serial Meetings
• Increased risk of bias “pre-determination“ and due-
process violations
• Emails, texts, tweets or posts during meetings can
deny public access to decision making process
• Brown Act applies, but no case law exists to clarify
how and when
80 The Brown Act
Social Media – Legal Limits on
Communications
• AB 992 approved by Governor Newsom on Sept. 18, 2020
amends the Brown Act to address social media
• Went into effect January 1, 2021.
• Provides first statutory guidance in a challenging, evolving area
81 The Brown Act
Social Media –
Allowed Communications
• Under AB 992, a public official may communicate on
social media to:
– (1) Answer questions,
– (2) Provide information to the public, or
– (3) Solicit information from the public regarding a matter within the legislative body’s subject matter jurisdiction*
82 The Brown Act
Social Media –
Prohibited Communications
• A public official may NOT
--use any social media platform to “discuss among themselves” official business, OR --respond directly to any communication on social media regarding a matter within the subject matter jurisdiction of the legislative body that is made, posted, or shared by another member of the legislative body
Note: Although a single contact between one public official and another normally would not constitute a serial meeting, AB 992 prohibitions go further Example: posting a comment or emoji in response to another public official’s Facebook post about an agency issue (assuming both serve on the same legislative body).
83 The Brown Act
Social Media – Legal Limits on "Public"
Platforms
• Applies to all internet-based social media platforms that are “open and accessible to the public” :
– Members of the general public able to access and participate in platform free of charge
– No approval needed by platform (or a person or entity other than platform) to access
– Cannot be blocked from participating (except for violation of rules/terms of service)
• Applies to comments, re-tweets, likes, dislikes, smiley faces, sad faces, screenshots, re-posting
• Facebook, Twitter, blogs, Instagram, Reddit, SnapChat, TikTok (and more)
84 The Brown Act
Social Media -- Good Post/Bad Post
• Good: “City Council will consider Silicon Valley Power rate adjustments at our January 9th meeting. Please
come and share your views!”
• Not so good: “Gold-Digger LLC’s proposal to dam Stevens Creek and build a panning for gold theme park is absurd and violates environmental laws! Please join me and the Council majority in opposing their Project application at a our January 9th meeting!”
85 Brown Act
Social Media --The First Amendment
• A public official may violate a constituent's First Amendment right by blocking certain constituents’ comments on a public social media page that is related to the official’s duties
• If a public official has a public social media page that is used to communicate with the public or to inform constituents about information related to the jurisdiction, the public social media page is “related to the official’s duties”
– All comments and non-verbal reactions (“likes”, for example) either need to be allowed or universally disabled
86 The Brown Act
Violations/Consequences
• Civil Remedies
– Can be brought by any interested person or DA
• Invalidation Action: to void past acts
• Injunctive or Declaratory Relief: to prevent future violations – Procedural requirements allow opportunity to cure and correct action taken – Costs and attorneys’ fees may be awarded against agency; City may recover fees if lawsuit is frivolous.
• Criminal Penalties
– Member may be subject to misdemeanor penalties if:
– Attends meeting at which action taken violates the Act; and – Intends to deprive public of information
• Loss of public trust
87 The Brown Act
Practice
Tips
• Avoid sharing info about another council/committee/commission member’s views
• Do not direct or cc emails to a quorum or more of your council/board colleagues, or “reply all” on city business
• Refrain from public statements (including use of social media) that state final positions on matters pending before you
• Review Agendas in advance of meeting and think about Brown Act parameters
• Don’t discuss items not on agenda; instead, refer them to staff for future discussions with consensus of your board
• Don’t forget to allow for public input (apply rules even-handedly) • Don't go into Closed Session without advice and presence of the City Attorney
• When in doubt, don’t act
• If unclear, seek advice from City Attorney’s office--in advance whenever possible
• Avoid interactions and advocacy on social media on pending actions before your board
88 Public Records Act - Core
Principles
Gov. Code §§ 7920.000 et seq. (formerly Gov. Code §§ 6250 et seq.) • The public has the right to see records related to the conduct of public business
• Government must maintain and be prepared to provide
public records in a timely manner
• What constitutes a public record is broadly defined
89 Public Records Act
What is a Public Record?
• Defined specifically in applicable statutes, City business practices, or policies
• In the absence of specific legal definition, a record is the document or information generated as the final output of a business process or business decision
• A record can be in any format: either physical or electronic, structured or unstructured; and will be retained in accordance with the City’s Record Retention Schedule
• City business conducted on private devices or accounts is subject the PRA and such records must be kept and disclosed (San Jose Case) 90 Public Records Act
What is Not a Public Record?
• Not all information is public or disclosable; exemptions may include:
– Private information about individuals (e.g., personally identifiable information, taxpayer information, medical information, etc.) – Personal information about employees
– Drafts or working copies or transitory documents or notes – Details about security of critical infrastructure (e.g., electrical, water, or sewer facilities, computer networks)
– Privileged documents (i.e. attorney-client privilege) – Deliberative Process: Records may also be exempt; example RFP – Balancing of competing interests' public benefit of disclosure v. need or rights to privacy (GC 6255)
91 Public Records Act
Responsiveness Required
• A response (not necessarily the records) must be provided within 10 days of request.
• Additional time may be allowed in certain circumstances • Additional duties include:
– Provide record more quickly if you can
– Help requester formulate effective request
– Explain why records withheld
– Can charge reasonable copy fees before providing records, but inspection is free
– Can’t charge for staff time unless creating a record that doesn’t exist and requester agrees in advance
92 Public Records Act
Practice Tips
• Be prepared to promptly disclose
records if requested
• Communicate carefully, especially
in emails
• Search every place a record is
reasonably likely to be located
• Document your search
• It’s best not to use a private
accounts/devices to conduct City
business.
• If you do, such records must be kept
and disclosed 93
• Applies to elected officials, City Manager, City
Attorney, Assistant/Deputy City Managers,
Department Heads and designated managers.
• All noninternal city-related appointments,
meetings, public events, speaking engagements,
meetings with citizens, developers, union reps,
consultants and lobbyist must be included on City
calendar.
• Noninternal Appointments must disclose specific
details including name, title, organization, and
statement of the issues discussed.
• Calendars are a public record and certain officials
are required to publish their calendars monthly.
94 SCCC 2.160.010 –
Calendars to be
Maintained
Local Rule
Alert
Government Transparency Laws
Hypothetical Scenarios
• Petra Oleum is a designated Form 700 filer on the SVP Resource Advisory Committee and a partner in a business entity with her sibling, each with a 50% partner with the silbigng n the business. The business provides energy facility consulting services throughout Southern California. Does she need to report that on her Form 700? What other issues does this situation present?
• Olden Gray has $36,000 in an individual retirement account with an investment firm. The account contains stock in several companies doing business in the City. One of the stock holdings, AARP Computers, Inc., reached a value of $2,500 during the reporting period.
Does Olden need to report that on his Form 700?
• Ezra Chatty, a recently sworn in Santa Clara Planning Commissioner, sent a private email to Ernie and Oscar, two experienced Planning Commissioners, asking questions about Oscar’s controversial Car Wash project on their agenda to be considered at a public hearing the following week. To keep everyone in the loop, Ms. Chatty bcc’d the Mayor, the City Manager and the City Attorney. Is Ms. Chatty’s email to Ernie considered a meeting under the Brown Act? What other issues do you see?
95 Government Transparency Laws
Hypothetical Scenarios
• At a regular meeting of the City Council, during Council comments, Councilmember High Stakes, proposes amendments to the City Code to allow for Sports Bars with NFL betting parlors. Councilmember Moral Outrage declares the proposal “repugnant,” but Councilmember Compromise convinces a majority of the group to form an Ad Hoc Subcommittee to study the idea further and report back to Council. Has the City Council violated the Brown Act? Any other issues? • In the City of Tumult, Parks and Rec Commission Ken Census wants to conduct a team-building session to improve relations among its members and develop a common vision on how to handle confidential ethics complaints filed anonymously with a request for confidentiality. May such a session be conducted in Closed Session?
• Lotta E. Mailer, a new member of the City’s Historic Landmarks Commission, sends out an email to all other members inquiring as to their availability for a special meeting to discuss possible changes to the City’s Historic Preservation policies. 4 of 7 members respond with “reply all” emails including possible dates. Has the Brown Act been violated? 96 Government Transparency Laws
Hypothetical Scenarios
• During a Council Meeting in Kodachrome CA, Shudder Bugg, a member of the public, was asked to refrain from taking pictures because her camera flash kept distracting staff and the Council. Ms. Bugg refused and was ordered removed from chambers. Was her removal consistent with the Brown Act? • The City of Bigtime owns and operates a small, but busy airport. People who are unhappy with the noise from the airport file noise complaints. The airport seeks to expand operations. A resident who supports the expansion files a Public Records Act request asking for copies of all complaints, including the names and addresses of those that complained. The City denies the request. Did the City act properly under the PRA?
• Bill Ding in the City’s planning department has been reviewing an EIR for a major Pickle Ball stadium project on the City’s "Anything's Possible Park." The Tennis is Better Society (TBS), which strongly opposes the Project, has made a request under the PRA for all communications between City staff and the Project applicant related to the Project. Mr. Ding has been texting with the applicant’s primary Engineer, Sally Forth, about a whole host of Project related issues, interspersed with communications about each other’s families, vacation plans and favorite places to get Malasadas. He declines to provide the texts in response to the PRA request because they were made on his personal phone and include personal matters. Is he right? 97 IV. FAIR PROCESS LAWS
98 1. Common Law Bias
2. Due Process
3. Competitive Bidding
4. Nepotism
Common Law Bias
• Common law is law established by judicial rulings (as opposed to statutes) • Prohibits actions or involvement by public officials in a matter where there is a high likelihood that their personal interests could be placed above their duty of loyalty to the public
• Typical “personal interests” include financial interests (that may not be covered by the PRA), or the material involvement of, or potential impact upon a close family member, close friend, or affiliated group • Example: A Planning Commissioner's daughter is seeking a Conditional Use Permit for a new car wash business. The daughter is grown (not a dependent) and the Planning Commissioner has no financial interest in the business. The Planning Commissioner should still recuse herself 99 Common Law Bias
Required Analysis
100
Subjective and Objective
Components
• What you think and feel about the potential
for divided loyalty?
• What might a reasonable observer think?
Factors to Consider
• How material is the interest?
• How close is the relation?
• Is there an appearance of impropriety that
should be avoided?
The Importance and the Challenge of the Concept of
Appearance of Impropriety
101
--To preserve the public’s confidence in the integrity and impartiality of the conduct of the City’s business, public officials should avoid even the appearance of impropriety --At the same time, you've been elected or appointed to make decisions and/or do your job; if you feel like you are not being influenced by personal interests, why should you remove yourself from that duty?
Due Process Rights
• Concept originates in the U.S. Constitution
– U.S. Constitution Amend XIV, section 1: “No state shall deprive any person of life, liberty, or property without due process of law”
• In practice, people seeking government
permits/approvals or objecting to government action
against their rights or property entitled to:
1) Notice
2) Opportunity to be heard
3) Fair and impartial decision-maker 102
Due Process
Quasi-Judicial Hearing
Requirements
• In General
– Due process requirements apply in many circumstances, but particularly where "quasi-judicial" determinations are being made – Involves acting as a trier of fact-like a jury in applying rules to a particular fact situation
– Examples include:
• Administrative hearing in an appeal of a Code Enforcement Case • Planning Commission or City Council decision on a
Development Use Permit
103
Due Process
Quasi-Judicial
Hearing Requirements
• City satisfies notice and opportunity to be heard requirements through various provisions in its City Code
--(See, for example, rules for applications and hearings on land use permits in SCCC Chapter 18.110]
• Other "common law" requirements to assure "impartial" and fair" decision making include:
--Decision makers should not advocate for and express
a position prior to the hearing (i.e., no "pre-
commitment")
--Decisions based only on "evidence in the record"
--Disclosure of "ex-parte" communications
104
Due Process
Other Local Requirements
• Multiple requirements throughout the Charter and the Code • Examples include:
– Rules for adopting resolutions and ordinances [Charter Sections 713 and 808]
– Civil Service Hearings [Charter Section 1011]
– Rules for Administrative Citations [SCCC Chapter 1.10] 105
Competitive Bidding
Requirements
• Most state and local governments require some level of competitive bidding
• Competitive bidding generally requires that the contracting agency:
– Widely publicize the contract opportunity
– Provide same information to everyone
– Apply evaluation criteria consistently
• Public Works Contracts go to lowest responsive, responsible bidder • City contracting rules contained in Charter Section 1310 and SCCC Chapter 2.105
106
Competitive Bidding Requirements - Public Works
Exceptions
• City council may enter into emergency public works contracts by motion passed by at least four affirmative votes and containing a declaration of facts in order to preserve life, health, or property.
• City council may declare and determine that the public work in question may be better or more economically by City with its own forces after adoption of a resolution by at least four affirmative votes.
Charter Section 1310
107
Competitive Bidding Requirements – Products/Services
Exceptions
• Emergency Purchases: Emergency situations involving the threatening of lives, property, or welfare of the people or property • Public Agency Purchases: Purchase, acquire, or contract for the purchase of supplies or services from any public or governmental body • Cooperative purchases: Purchase directly from vendors pursuant to formal bidding processes that names the City either by name or categorically as a third-party beneficiary of the bidding process • Sole source: Only one source exists for services as determined by documented research and can be validated
Santa Clara City Code Chapter 2.105
108
Incompatible Offices
Government Code section 1099
• Prohibits a person from simultaneously holding two public offices that are "incompatible" (GC 1099)
• First step: Are there two public offices?
– Regulated Offices are generally Elected or Appointed
– Employment with a Public Agency is not an "office" for these purposes • Second step: Are the two offices incompatible?
– Standard: Where one office exercises supervisory, auditing or removal power over the other.
– Consequences for Violation: Immediate forfeiture of first office 109
Incompatible Activities
Government Code section 1126
• General Rule. A local agency officer or employee shall not engage in any employment or activity for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a local agency officer or employee (GC 1126)
• Local Agency Control of Specifics. A local agency may define what is prohibited and establish rules for review and approval of outside activities by employees.
• Elected Official Exempt. Rule does not apply to elected officers (GC 1126) Question: Should a Purchasing Employee moonlight as a “RFP consultant" at a business that bids on contracts within Santa Clara County? 110
Nepotism
• Nepotism is a form of common law bias based on familial relationship • Generally, should not participate in matters which involve family members
• City Charter (Section 802) expressly prohibits any person related to the City Manager by blood or by marriage from being eligible for office or employment in the City.
• CMD 33 Employment of Relatives contains City nepotism prohibitions that apply to City employees
111
Concluding Thoughts
112
Resources – City
• Ethics Program
www.santaclaraca.gov/ourcity/government/governance/ethics- values
• Council Policies
www.santaclaraca.gov/our-city/government/governance/council- policy-manual
• City Manager Directives
113
Resources – Brown Act
• Attorney General Website:
www.ag.ca.gov/publications/brownact2003.pdf
• League of California Cities Publication: “Open & Public V: A Guide to the Ralph M. Brown Act”:
www.cacities.org/resources/publications
• Contact City Attorney or City Clerk
[email protected]
[email protected]
114
Resources – Political Reform Act
• Fair Political Practices Commission (FPPC):
www.fppc.ca.gov
• California Attorney General:
www.oag.ca.gov
• Institute for Local Government:
www.ca-ilg.org/AB1234Compliance
115
Closing "Ceremonies"
• Awards
• AB 1234 Participants: Please stop by the desk in the
entryway to sign your certificate of participation as you exit the Council Chambers
• Questions: If you have questions after the training,
please feel free to contact City Attorney staff or City Clerk staff
• Public Comment
• Adjournment
116