SOUTH GATE CITY COUNCIL
SPECIAL MEETING AGENDA
Monday, December
4, 2023 at
5:00 p.m.
SOUTH GATE COUNCIL CHAMBERS
8650 CALIFORNIA AVE
SOUTH GATE, CA 90280
DIAL-IN-NUMBER: 1 (669) 900-6833
MEETING ID: 845 1026 5555
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Call to Order/Roll Call
CALL TO ORDER:
Maria del Pilar Avalos, Mayor
ROLL CALL:
Yodit Glaze, City Clerk
City Officials
MAYOR CITY CLERK
Maria del Pilar Avalos Yodit Glaze
VICE MAYOR CITY TREASURER
Gil Hurtado Jose De La Paz
COUNCIL MEMBERS CITY MANAGER
Joshua Barron Robert Houston Maria Davila
Al Rios
CITY ATTORNEY
Raul F. Salinas
1 Meeting Schedule
The regular meetings of the City Council are held on the second and fourth Tuesday of each month, closed session business will usually commence at 5:30 p.m., when scheduled, and general business session will commence at 6:30 p.m.
Brown Act
Agendas are drafted to accurately state what the legislative body is being asked to consider. The legislative body can take action on "all items" listed on the agenda and be in compliance with the open meeting laws. Under the Brown Act, no action may be taken on a matter unless it is listed on the agenda, or unless certain emergency or special circumstances exist. The governing body may direct staff to investigate and/or schedule certain matters for consideration at a future meeting.
City's Vision Statement
We envision a thriving, safe and inclusive community where everyone has the opportunity to access exceptional services, education and support to be resilient and live full, vibrant lives.
Public Communications
Public Comments on agenda items are limited to three (3) minutes. All comments are to be addressed directly to the Agency Members not to the members of the public.
Meeting Compensation Disclosure
Pursuant to Government Code Section 54952.3: Disclosure of compensation for meeting attendance by City Council Members is $790 monthly regardless of the amount of meetings.
Closed Session: (ATTY)
1. CONFERENCE WITH LEGAL COUNSEL – PENDING LITIGATION
Pursuant to Government Code Section 54956.9(a), 54954.9(b)(3)(C)
a. NR Development v. City of South Gate
b. Edward Huffman v. City of South Gate (WCAB)
c. Aurelia Enache v. City of South Gate
d. Esteban Hernandez v. City of South Gate; County of Los Angeles, et al.
Documents:
Closed Session Memorandum 120423.pdf
Open Session Agenda
1. Receive and file a presentation on SB 1439 (Glazer) and any relevant Fair Political Practices Commission (FPPC) rules related to this law which became effective January 1, 2023
The City Council will receive and file a presentation by the City Attorney on SB 1439 (Glazer) and any relevant Fair Political Practices Commission (FPPC) rules related to this law which became effective January 1, 2023. The City Council may or may not have 2 additional requests for possible follow-up by the City Attorney's Office relating to future City Council agenda items. (ATTY)
Documents:
Item 1 Report 120423.pdf
Special Meeting Adjournment
I, Yodit Glaze, City Clerk, certify that a true and correct copy of the foregoing Meeting Agenda was posted on November 30, 2023, at 12:05 p.m., as required by law.
Yodit Glaze
City Clerk
GENERAL NOTICE TO THE PUBLIC
The City Council adopted new rules relating to the conduct of the public meetings, proceedings, and business in the City of South Gate on July 12, 2022, (Resolution 2022-38-CC) and go into effect on August 1, 2022. Resolution #2022-38-CC is available at the City Clerk’s Office.
MEETING SCHEDULE
Regular meetings of the City Council are held on the second and fourth Tuesday of each month, closed session meetings will commence at 5:30 p.m. unless posted otherwise on its agenda. The regular City Council meetings will commence at 6:30 p.m. Agendas are available at the following locations:
City Clerk
Office,
Public Notice Boards at City Hall, and on the
City’s web page at https://www.cityofsouthgate.org
The Public can sign up to receive automatic notices of postings of agendas for the City Council or any other Commission or Board of the City of South Gate. Visit the City webpage and click on the Agenda & Minutes icon. That will take you the page where an individual can enter their email in the “Email Updates” box to register.
PUBLIC COMMENT/PARTICIPATION
Any person may request to address a legislative body during a public meeting. The Presiding Officer will call upon those present in the Council Chambers first. After all speakers in the Chambers have spoken, the Presiding Officer will call upon those participating via zoom or teleconference.
Speakers are limited to three (3) minutes on any item listed on the agenda, including public hearings.
Under Comments from the Audience portion, speakers are also limited to a single three (3) minutes time limit. Comments from the Audience is initially limited to 45 minutes at each meeting. Any speaker still wishing to speak, that did not speak, will have an addition Comments from the Audience opportunity after the last business item is finished. The Presiding Officer may extend the time limit as long as there is no objection from the City Council as a body.
To ensure that the public is able to participate, the City provides the opportunity to submit their comments in person, virtually, email, phone call, mail and any other method which may become 3 available. Methods of participation may be subject to change during other such times when a State of Emergency, Health Order or State Executive Order limits in-person participation.
CURFEW
In absence of a motion duly adopted by majority vote of the City Council, the Presiding Officer may adjourn the City Council meetings at 10:30 p.m. The Presiding Officer may ask the City Council if any agenda items listed should be continued or dealt with during the meeting. For those items to be continued, the City Council can direct the item be placed on the next City Council agenda or the current meeting may be adjourned to a time certain at which time the meeting shall be reconvened as an Adjourned Regular Meeting of the City Council and action upon the published agenda continued.
STAFF REPORTS
As a general rule, staff reports. or other written documentation are prepared/organized with respect to each item of business listed on the agenda. Meeting agendas and staff reports are available at least 72- hours prior to the scheduled regular City Council meeting and a minimum of 24-hours prior to a Special City Council meeting. There are times when the City Council receives written material. revised material after the posting of agendas, these materials are become a public record and will be available for public view within 72-hours after the meeting in which they were received. Those materials and any other public document can be inspected in the City Clerk's Office located at 8650 California Avenue, South Gate.
SERVICES TO FACILITATE ACCESS TO PUBLIC MEETINGS
In compliance with the American with Disabilities Act, if you need special assistance to participate in the City Council Meetings, please contact the Office of the City Clerk. Notification 48 hours prior to the City Council Meeting will enable the City to make reasonable arrangements to assure accessibility. For further information, please contact the Office of the City Clerk at (323) 563-9510 or via email at [email protected]
.
4 MEMORANDUM
CITYMANAGER'S OFFICE
NOV 30 2023
TO:
FROM:
DATE:
Chris Jeffers, City Manager
Raul F. Salinas, City Attorne4S @
November 30, 2023
SUBJECT: CLOSED SESSION ITEMS FOR THE SPECIAL CITY COUNCIL MEETING OF DECEMBER 4, 2023
The following itetrfs should be listed on the Closed Session Agenda for the Special City Council Meeting of the City of South Gate on December 4, 2023, at 5:00 p.m.:
CONFERENCE WITH LEGAL COUNSEL - PENDING LITIGATION Pursuant to Government Code Section 54956.9(a), 54954.9(b)(3)(C) NR Development v. City of South Gate
Edward Huffi'nan v. City of South Gate (WCAB)
Aurelia Enache v. City of South Gate
Esteban Hernandez v. City of South Gate; County of Los Angeles, et al.
If you have any questions, please do not hesitate to contact this office iini'nediately. 5 CITYMANAGER'S OFFICE Item No. 1
NOV 29 2023
City of South Gate
CITY COUNCIL
AGENJDA B,N.LL
City Attorney:
Raul F. Salinas
Manager:
Je.(fers
SUBJECT: REVIEW OF LEVINE ACT AND ITS DISCLOSURE AND RECUSAL REQUIREMENTS UPON LOCAL OFFICIALS AS APPLIED IN SB 1439 (GLAZER) PURPOSE: For the City Attorney to present an overview of SB 1439 (Glazer) which extends certain disclosure and recusal requirements upon local officials relating to an official proceeding before the agency involving the license, permit, or use entitlements.
RECOMMENDED ACTION: The City Council will receive and file a presentation by the City Attorney on SB 1439 (Glazer) and any relevant Fair Political Practices Commission (FPPC) rules related to this law which became effective January 1, 2023. The City Council may or may not have additional requests for possible follow-up by the City Attorney's Office relating to future City Council agenda items.
FISCAL IMPACT: There are no financial impacts as this is an overview of SB 1439 (Glazer) and the potential impacts there may be upon any local elected or appointed officers, alternates, and candidates for elective office.
ANALYSIS: In 2022, the California Legislature passed Senate Bill (SB) 1439 (Glazer), a bill that amended Section 84308 of the Political Reform Act. SB 1439 applied what is known as the Levine Act (1982) to local officials where it previously had only applied to State elected and appointed officials. The changes took effect on January 1, 2023. SB 1439 provides that local elected officials, including city council members, are now required to "conflict out" of certain proceedings involving persons that made contributions to their respective political campaigns.
The statute also prohibits officials from accepting, soliciting, or directing contributions exceeding $250 from a party to or participant in proceeding, or their agents, while such a proceeding is pending and for 12 months after the final decision in the proceeding On June 15, 2023, the FPPC adopted new and amended regulations to clari:[y some of the questions raised by public agencies as to how to implement SB 1439. The FPPC continues to review and make refinements to the regulations relating to SB 1439 and will likely continue as exact cases arise in which questions will be asked as to the applicability SB 1439 to particular situations.
1 6
Currently, the FPPC has determined that SB 1439 does not apply to contributions made or received, or proceedings paiticipated in, prior to January 1, 2023, to local elected officials. The FPPC has also created a definition of ceitain key definitions to assist local officials.
Definition of "Pending" Proceeding. The FPPC created a context-specific approach to determine when a proceeding is "pending" for purposes of the Levine Act. With respect to officers, a proceeding is considered "pending" when (1) the decision is before the officer (for members of the goveining body, this includes when the item is placed on the agenda for discussion or decision at a public meeting of the body) or (2) it is reasonably foreseeable the decision will come before the officer and the officer knows or has reason to know the decision is within the jurisdiction of the agency.
With respect to a party or participant, a proceeding is "pending" once the entitlement for use decision is within the jurisdiction of the agency (e.g., once the application has been filed). This means parties and paiticipants must refrain from making contributions exceeding $250 to an officer, once an application has been filed with the agency, even though the decision has not yet come before the officer. However, officers would not be at risk of violating the Levine Act by accepting a contribution from a party or participant in instances where the officer does not know or have any reason to know about the proceeding
The FPPC has also developed a definition of "la'iows or has reason to know." Under the Levine Act, when an officer knows or has reason to la'iow that a participant has a financial interest in a proceeding, the officer is prohibited from accepting, soliciting, or directing a contribution exceeding $250 from the participant. Likewise, an officer is prohibited from taking part in a proceeding if, within the preceding 12 months, the officer has willingly or knowingly received a contribution exceeding $250 from a party or party's agent, or participant's agent if the officer knows or has reason to la'iow of the participant's financial interest in the decision.
The FPPC has clarified that an officer knows or has reason to know of a participant's financial interest in a decision only if the officer has actual knowledge of the financial interest, or the participant reveals facts in written or oral statement during the proceeding before the officer that make the person's financial interest apparent.
While all relevant facts should be considered, an officer aware of the following facts has reason to know of a participant's potential financial interest and may not take part in the proceeding if the officer has received a disqualifying contribution from that participant or participant's agent:
1. The participant has an interest in property within 500 feet of the real property at issue in the proceedings
2. The participant has an economic interest in a business entity that may see a significant increase or decrease in customers as a result of the proceeding.
3. The participant has a business relationship with the applicant that may result in additional services provided to the applicant.
2 7
An officer does not know or have reason to know of a participant's financial interest in a decision solely as a result of the participant identifying an economic interest located in the general vicinity of a business entity or real property at issue in the proceeding (Amended Regulation 18438.7.).
The FPPC has provided details as to when an officer is considered to have "willfully or knowingly received a contribution," and has clarified that an officer without actual knowledge of the contribution from a party or participant does not have reason to know of the contribution based solely on the fact that the contribution was reported as required by law (Amended Regulation 18438.7.).
Regarding "learning of a contribution during a meeting," an officer who learns of a participant's financial interest or contribution during the proceeding must disclose the contribution prior to any further participation in the meeting. The officer may still take part in the proceeding if the officer discloses the disqualifying contribution on the record, confirms that it will be returned within 30 days following the time the officer knew or should have known about the contribution, and the contribution is returned within that timeframe (Amended Regulation 18438.7.).
Regarding "paities' obligation to disclose contributions," on the date a party to a proceeding files an application or other request initiating the proceeding, the party must disclose the amount of any contribution(s) made within the preceding 12 months and the names of the contributors. For a contribution made during any stage of the proceeding, the party must disclose the contribution within 30 days of making the contribution, or on the date on which the party makes its first appearance before or communication with the agency regarding the proceeding following the contribution, whichever is earliest (Amended Regulation 18438.7.).
How does the FPPC define an "officer?" The FPPC revised the definition of "officer of the agency" to provide that an "officer" is an individual who may make, participate in making, or attempt to influence a decision in the proceeding or who exercises authority over officers who may do so. The definition specifically includes an individual who is a candidate for elected office or who has been a candidate for elected office in the 12 months prior to the decision. This means that the Levine Act applies to an officer even if the officer has already lost the election (Amended Regulation 18438.1.).
The FPPC has clarified that a person acting as the representative of a party or participant in a proceeding must also be compensated in order to be considered an "agent" for purposes of the Levine Act (Amended Regulation 18438.5.).
The FPPC has also provided guidance on "aggregation" of contributions. So, contributions made by a party and a party's agent, or a participant and a participant's agent, are aggregated for purposes of the Levine Act's $250 limit. The FPPC clarified the rules regarding aggregation, and specifically excluded uncompensated officers on nonprofit organizations from the aggregation requirement (Amended Regulation 18438.5.).
Finally, "legally required participation" rules still apply to the exception of officers otherwise disqualified under the Levine Act (Regulation 18705.). 3 8
It should be noted that the FPPC will likely continue to address their regulations concerning this matter in the future so items discussed today may still cliange in the future or new elements become effective upon officers.
ATTACHMENTS: A. FPPC Manual - Parties, Participants, Agents, and Section 84308 B. Proposed Adoption of Section 84308 Regulations Implementing SB 1439 - including Executive Summaiy
C. League of California Cities - Pay to Play No More? Levine Act (SB 1439)
D. Levine Act Disclosure Form - Samples from various cities E. PowerPoint Presentation
9 a
Is A@d
.1 0 :
CONTENTS
ATTACHMENT A
Introduction 2
A. What is a "Proceeding Involving a License, Permit, or Other Entitlement for Use"?.. 3 B. Am I a "Party," "Participant," or "Agent"') 4
1. Parties........................... ................. ............................................................................................. ...............4
2. Participants...... ............................................... ..... ...... ...............................................----------------------4
3. Agents....................................... ........................................ ..................................................... ..............5 C. Who Qualifies as an "Officer of an Agency"';' 7 D. When is an Entitlement Proceeding "Pending"7 8
E. How is the $250 Limit Calculated? 9
F. What Are My Responsibilities If I Have Made Greater Than $250 in Contributions Within the Past 12 Months? 10
1. Prohibition on Further Contributions During a 12-Month Period.......................................................... .........10
2. Disclosure .......... ........ .... ......... ......... ......... ............................................................................... ...... 11 G.FrequentlyAskedQuestions 12
Fair Political Practices Commission 1 Parties, Participants, Agents, and Section 84308 October 2023
10 INTRODUCTION
Section 84308 is a California law aimed at preventing "pay-to-play practices," in part, by prohibiting parties, participants, and their respective agents in a proceeding involving a license, permit, or other entitlement for use (collectively referenced as a "entitlement for use proceeding" or "proceeding") from contributing more than $250 to an officer of the agency the proceeding is before during a 1 2-month period. The prohibition applies to any 12-month period while the proceeding is pending and for 12 months Following the date a final decision is rendered in the proceeding.
Additionally, in an entitlement for use proceeding, a party-but not a participant- is required to disclose any contributions exceeding an aggregate $250 that the party and their agents have made to an officer of the agency within the preceding 12 months.
When it was first enacted in 1982, Section 84308 applied to appointed members of boards and commissions who were running for elective office. (Stats. 1982, ch. 1049 § I ("Levine Act").) However, effective January 1, 2023, the Legislature expanded the scope of its prohibitions to apply to agencies whose members are directly elected by voters and extend the prohibitions from 3 months to 12 months after the final decision in a proceeding. (Stats. 2022, ch. 848 § I ("SB 1439").) The following is a step-by-step guide to help you determine:
@ What is a "proceeding involving a license, permit, or other entitlement For use"?
@ Am I a "party," "participant," or "agent"?
* Who qualifies as an "officer of an agency"?
* When is the proceeding "pending"?
* How is the $250 limit calculated?
Frequently Asked Questions are also addressed.
Fair Political Practices Commission 2 Parties, Participants, Agents, and Section 84308 October 2023
11 A. WHAT IS A "PROCEEDING INVOLVING A LICENSE,
PERMIT, OR OTHER ENTITLEMENT FOR USE"?
Section 84308 defines the term "license, permit, or other entitlement for use" to mean "all business, professional, trade, and land use licenses and permits and all other entitlements for use, including all entitlements for land use, all contracts (other than competitively bid, labor, or personal employment contracts), and all franchises." The term "entitlement for use" is not defined by Section 84308.The overall scheme and purpose of Section 84308 suggests that the types of proceedings which should be covered by Section 84308 are those in which specific, identiTiable persons are directly affected or in which there is a direct substantial financial impact upon the participants. The California courts have examined the term "entitlement for use" in other contexts. These decisions provide useful guidance; however, interpretation of the Act is not necessarily limited by interpretation of other laws. Below is a list of proceedings FPPC staff have previously advised are entitlement for use proceedings. (See, e.g., Velasquez Advice Letter, No. 1-23-065; Quadri Advice Letter, No. A-02-096; Washington Advice Letter, No. 1-91-521.)
Examples of Entitlement for Use Proceedings
* Building and development permits
* Charter school petitions
* Conditional use permits
* Contracts generally, including
small purchase order agreements,
unless an exception applies
* Public street abandonments
* Private development plans
* Professional license revocations
* Rezoning of specific real estate
parcels
* Event Permits
* Rulemaking procedures affecting a
particular industry where only a
small number of businesses are
affected
* Special district formation
proceedings involving the creation
of a special use or benefit to the
persons in the district
* Tentative subdivision and parcel
maps
* Zoning variances
Note: Section 84308 does not cover proceedings in which general policy decisions or rules are made or where the interests affected are many and diverse.
Fair Political Practices Commission 3 Parties, Participants, Agents, and Section 84308 October 2023
12 B. AM IA "PARTY," "PARTICIPANT," OR "AGENT"?
1. Parties
Section 84308 defines "party" as "any person who files an application for, or is the subject of, a proceeding involving a license, permit, or other entitlement for use." In general, if you applied for a permit, license or for a right to use property in a particular way (for example, a short-term vacation rental application) that requires the agency's discretionary approval, you will qualify as a party in an entitlement for use proceeding.
2. Participants
Section 84308 defines "participant" as any person who is not a party but who actively supports or opposes a particular decision in an entitlement for use proceeding and who has a financial interest in the decision.
In general, you will qualify as a participant if you have a financial interest in the proceeding and you communicate with an officer or employee of the agency for the purpose of influencing a decision in the proceeding.
Note: You would not qualify as a "participant" based on communications made to the public outside of the proceeding, such as publishing an op-ed in a local newspaper or protesting outside of a government building.
Participant Example I
You send a letter to the City Council regarding an entitlement for use proceeding. If you have a financial interest in the proceeding, you qualify as a participant.
Participant Example 2
You make a public comment regarding an entitlement for use proceeding during a public meeting. If you have a financial interest in the proceeding, you qualify as a participant.
Participant Example 3
You write an op-ed article, published in the local paper, in support or opposition of a particular outcome in an entitlement for use proceeding. Even if you have a financial interest in the proceeding, as long as you do not communicate directly with the officer or agency regarding the proceeding, you do not qualify as a participant.
Fair Political Practices Commission 4 Parties, Participants, Agents, and Section 84308 October 2023
13 Participant Example 4
You protest outside of City Hall before an entitlement for use proceeding is held, yelling and chanting that the City Council should vote "no" on the underlying project.
Because the communication is made in a public setting outside of the proceeding itself, you do not qualify as a participant based on your protesting.
Financial Interests
Central to many of the above examples is the question of whether you have a "financial interest" in the proceeding such that you may qualify as a "participant." In general, you are considered to have a "financial interest" for purposes of Section 84308 if it is reasonably foreseeable the proceeding, or a governmental decision within the proceeding, would have a material financial effect on one or more of your economic interests. Relevant economic interests include your interests in business entities, real property, sources of income, sources of gifts, and personal finances.
Determining whether you have a financial interest in a proceeding or particular governmental decision can be a complex matter. For this reason, if you have participated or are continuing to take part in an entitlement for use proceeding and you are not sure whether you have a financial interest in the decision, you should contact the FPPC for assistance. If you have a financial interest in the proceeding, such that you qualify as a "participant" for purposes of Section 84308, you are prohibited from contributing more than $250 to an officer of the agency while the proceeding is pending and for 12 months thereafter. More information on financial interests and when a financial interest is "material" can be found in our "Officers and Section 84308" Guide.
3. Agents
A person is your "agent" (as a party or padicipant) in an entitlement for use proceeding if the person:
@ Represents you for compensation; and
@ Appears before or otherwise communicates with the governmental agency for the purpose of influencing the pending proceeding.
Note: An individual will qualify as an agent only if the individual's communication with an agency is for the purpose of influencing the pending proceeding. An individual whose communications with an agency are not made for the purpose of influencing the proceeding is not considered an agent, even if the individual receives compensation from a party or participant.
Fair Political Practices Commission 5 Parties, Participants, Agents, and Section 84308 October 2023
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15 C. WHO QUALIFIES 4S AN "OFFICER OF AN AGENCY"?
Section 84308 defines "officer" as "any elected or appointed officer of an agency, any alternate to an elected or appointed officer of an agency, and any candidate for elected office in an agency." In general, the term "officer of an agency" encompasses any individual who:
(1) Is appointed, elected, or is an employee of the agency who is also running for office; and
(2) May make, participate in making, or attempt to use their official position to influence a decision in the entitlement for use proceeding, or exercises authority or budgetary control over the agency of officers who may do so.
As a party, participant, or agent thereof, you are prohibited from contributing more than $250 in the aggregate to an officer of an agency during a 12 month period while the proceeding is pending and for 12 months after the final decision in the proceeding.
Officer Example 1
You have submitted a building permit application to the City Planning Commission.
Because the City Council exercises authority or budgetary control over the Planning Commission, you are not only prohibited from contributing more than $250 to a member of the Planning Commission who is running for elective office while the proceeding is pending and for 12 months thereafter, but that prohibition also applies to contributions made to members of the City Council as "officers of the agency," as well as certain City officials who are also running for elective office and have decision- making authority with respect to the proceeding.
Officer Example 2
You are negotiating with City representatives regarding the City's potential purchase of a parcel of land you own. While the proceeding is pending, you contribute $500 to a candidate for City Council. Although the candidate meets the definition of "officer," they do not meet the more specific definition of "officer of an agency," to whom you are prohibited to contribute more than $250 to while an entitlement for use proceeding is pending. Accordingly, your contribution of $500 does not violate Section 84308.
However, if the candidate won their election and your $500 contribution occurred within the preceding 12 months, the new City Councilmember would be prohibited from taking part in the proceeding if it was still pending before the City Council.
Fair Political Practices Commission 7 Parties, Participants, Agents, and Section 84308 October 2023
16 D. WHEN IS AN ENTITLEMENT PROCEEDING
"PENDING"?
For a party or party's agent, or a participant or participant's agent, an entitlement for use proceeding is "pending" when it is before the jurisdiction of the agency for its decision or other action.
In other words, for a party and party's agent, an entitlement for use proceeding is considered pending the moment the proceeding is initiated, most ofien triggered by the party's filing of an application with the agency.
Note: As described above, in order to be considered a "participant," an individual has to have a financial interest in the entitlement for use proceeding and have communicated with an officer or employee or the agency For the purpose of influencing the proceeding. Accordingly, although an entitlement for use proceeding may have already been initiated by, say, a party's filing of an application, an individual other than a party or the party's agent is not prohibited from contributing more than $250 in the aggregate until afterthey qualify as a participant or participant's agent.
Pending Proceeding Example 1
You file an application with the City Parks Department to host a large, ticketed event at a City park. The application will initially be considered and decided by the Parks Department, but a denial by the Parks Department may be appealed to the City Council. For you, the project is pending with respect to the City Parks Department, and with respect to the City Council.
Pending Proceeding Example 2
Continuing the above example, suppose the Parks Department denies your application, but you decide not to appeal the decision to the City Council. Although you have privately decided not to appeal the decision, no "final decision" has been reached during the period in which the Parks Department's decision may still be appealed. Accordingly, the proceeding is still considered pending with respect to the City Council for purposes of Section 84308.
Fair Political Practices Commission 8 Parties, Participants, Agents, and Section 84308 October 2023
17 E. How IS THE $250 LIMIT CALCULATED?
Section 84308's prohibition on contributions exceeding $250 over a 12 month period refers to the aggregate value of contributions made over that time period. For example, you are not permitted to contribute a total of $1,000 to an officer in a 12 month period simply by making four $250 contributions.
Knowing the aggregate value of contributions you have made to an officer of an agency over a 1 2-month period is important for purposes of: (1 ) avoiding a violation of Section 84308 by contributing more than $250 during a 12-month period; and (2) if you are a party, ensuring contributions over $250 made in the preceding 12 months are properly disclosed.
To determine whether you have contributed more than $250 as a party or participant during a 1 2-month period, you must aggregate the following:
(1 ) All contributions you have made;
(2) All contributions made by your agent during the shorter of: (A) the previous 12- month period; or (B) the period beginning on the date you first hired the agent as either a paid employee, contractor, or consultant.
(3) All contributions made by an individual, other than an uncompensated officer of a non-profit organization, required to be aggregated with contributions made by you and your agent under Section 82015.5 of the Political Reform Act.
Section 82015.5
Section 82015.5 provides:
* If you direct or control an entity's contributions, the entity's contributions shall be aggregated with contributions made by you; and any other entity whose contributions that individual directs or controls.
* If two or more entities make contributions that are directed or controlled by a majority of the same persons, the contributions of those entities shall be aggregated.
@ Contributions made by entities that are majority owned by you shall be aggregated with your contributions, as well as the contributions of all other entities majority owned by you, unless those entities act independently in their contribution-making decisions.
In practice, Section 8201 5.5's aggregation rules will most frequently come into play when you make a contribution in your personal capacity, and make another contribution through a business that you direct or control.
Fair Political Practices Commission 9 Parties, Participants, Agents, and Section 84308 October 2023
18 Aggregation Example
You contributed $100 [o a Planning Commissioner's campaign committee on January 1, the day before you submitted a building permit application to the planning commission. On February 1, you contributed another $50 to the campaign committee, but did so through your business. On March 1, you hired an attorney to represent you and, that same day, your attorney submitted a letter in support of your application to the Planning Commission. Your attorney had previously contributed $IOO to the Planning Commissioner's campaign committee on February 1, before she became your agent. On April I your attorney contributes another $50 to the Planning Commissioner's campaign committee. For purposes of aggregation, the relevant contributions are:
* January1:Yourpersonal$l00contribution
@ February 1 : Your business's $50 contribution
* April 1 : Your agent's $50 contribution
In total, your aggregate contribution to the Planning Commissioner is $200 and does not need to be disclosed. Although your agent also donated another $100 to the Commissioner's campaign committee on February 1, that contribution was made before she became your agent and, consequently, is not aggregated with your contributions. Accordingly, you (and those whose contributions are aggregated with yours, including your agent) may contribute an additional $50 within a 12-month period, but any more than that during the 1 2-month period would violate Section 84308 and must be disclosed.
F. WHAT ARE MY RESPONSIBILITIES IFI HAVE MADE
GREATER THAN $250 IN CONTRIBUTIONS WITHIN THE
PAST 12 MONTHS?
1. Prohibition on Further Contributions During a 12-Month Period Section 84308 prohibits parties, participants, and their agents from"mak[ing] a contribution of more than two hundred fifty dollars ($250) to any officer of [the agency the entitlement for use proceeding is before] during the proceeding and for 12 months following the date a final decision is rendered by the agency in the proceeding." Each contribution beyond the $250 limit may constitute a separate violation of this provision. Accordingly, if you have already violated Section 84308 by contributing more than $250 to an officer during a 12-month period while a proceeding is pending and for 12 months thereafter, you should be aware that additional contributions in violation of Section 84308 may carry additional penalties.
Fair Political Practices Commission 10 Parties, Participants, Agents, and Section 84308 October 2023
19 2. Disclosure
If you are a party to an entitlement for use proceeding and your aggregate contribution to an officer of the agency over the past 12 months is greater than $250, you are required to disclose the contribution as follows:
* Timing:
o Contributions Made Before Pending Proceeding: If you made the contribution before the proceeding is pending, you must make the disclosure on the date you file your application or otherwise initiate the proceeding (Note: you do not violate Section 84308 by making a contribution greater than $250 during the 12 months preceding an entitlement for use proceeding, but such contributions must still be disclosed);
o Contributions Made Pending Proceeding: If you made a contribution exceeding $250 while the proceeding is pending (in violation of Section 84308), you are required to disclose that contribution within 30 days of making the contribution, or the date on which you make your first appearance before or communication with the agency regarding the proceeding following the contribution, whichever is earliest. o Agents: If an agent of yours makes an appearance before or communicates with the agency subsequent to your previous disclosure, you or the agent must disclose the agent's identity or'i the date of the agent's first appearance or communication with the agency following your disclosure. @ Contents: The disclosure must include:
o The amount contributed by you, your agent, and those required to be aggregated with your contributions under Section 82015.5 within the preceding 12 months; and
o The name(s) of the contributor(s).
* Form: Neither Section 84308 nor its related regulations specify the exact form disclosure must take beyond the requirements discussed in the "Disclosure" section above. Given the wide variety of agencies and jurisdictions Section 84308 applies to, disclosure may take different forms. Your disclosure must be made "on the record of the proceeding," and, if applicable, conform to the format specified by the agency. This may include, for example, noting the contribution on your application or submitting a separate form to accompany your application.
Note: While a party to a proceeding is required to follow the disclosure procedure described above, a participant in a proceeding does not have any disclosure requirements. However, a participant is still prohibited from contributing more than $250 while the proceeding is pending and for 12 months thereafter.
Fair Political Practices Commission 11 Parties, Participants, Agents, and Section 84308 October 2023
15 20
G. FREQUENTLY ASKED QUESTIONS
1. What are the potential consequences for violating Section 84308? As with most provisions of the Political Reform Act, a violation of Section 84308 may result in a civil action brought by the FPPC For an amount up to five thousand dollars ($5,000) per violation.
The Political Reform Act also provides that, as a criminal matter, any person who knowingly or willingly violates any provision of the Act is guilty of a misdemeanor and subject to a fine of up to the greater of ten thousand dollars ($1 0,000) or three times the amount the person unlawfully contributed upon conviction for each violation.
2. What is the best way to know if I have a financial interest in an entitlement for use proceeding?
If you are a party in an entitlement for use proceeding, Section 84308's requirements and prohibitions automatically apply to you. The relevance of a "financial interest" in an entitlement for use proceeding is only relevant to determining whether an individual qualifies as a "participant" for purposes of Section 84308.
If you have participated, or would like to participate in an entitlement for use proceeding but are unsure of whether you may qualify as a "participant," under Section 84308, you should contact the FPPC with any questions. As a general rule, however, you have a financial interest in an entitlement for use proceeding if it is reasonably foreseeable the proceeding, or a governmental decision that is a part or the proceeding, would have a material financial effect on an economic interest of yours, such as a business interest, a real property interest, or a source of income. You may also find it helpful to review our guide on Officers and Section 84308, available on our website (https://www.fppc.ca.gov/learn/pay-to-play-limits-and-prohibitions.html), as it contains a more detailed discussion regarding the determination of financial interests for Section 84308 purposes. Additional information on conflicts of interest may be found at https://www.fppc.ca.gov/learn/conflicts-of-interest-rules.html.
3. If I am a party or qualify as a participant in an entitlement for use proceeding, does the $250 limit include contributions made by my spouse? In general, spouses' contributions are not aggregated for purposes of disqualification under Section 84308, except in the following two scenarios:
(1 ) Where the proceeding involves property or a business that is owned jointly by the spouses; or
(2) Where the spouse is acting as the agent of the party or participant spouse.
Fair Political Practices Commission 12 Parties, Participants, Agents, and Section 84308 October 2023
21 4. If my employer is a party in an entitlement for use proceeding, am I prohibited from contributing more than $250 to an officer of the agency? Are my contributions aggregated with my employer's contributions? In most cases, the fact that your employer is a party in a proceeding will not impact your ability to contribute more than $250 to an officer of the agency the proceeding is pending before. The mere Tact that you are an employee of a company does not mean you also qualify as a party, participant, or agent; rather, additional circumstances would have to apply.
@ Parties: In order to be treated as a party based on the fact that your employer is a party-and therefore have your contributions aggregated with your employer's-you would have to be more than merely a "rank-and-file" employee.
Rather, you would have to be an individual who directs or controls your employer's campaign contributions or be the majority owner of the company. @ Agents: To be considered an agent based on your employer's status as a party, as discussed above, you would have to: (1 ) represent your employer for compensation; and (2) appear before or otherwise communicate with the governmental agency for the purpose of influencing the pending proceeding.
Example: if you felt strongly about the proceeding and decided to submit a public comment in support of your employer's application in a proceeding-but did so in your personal capacity rather than as an employee as a part of your job-you would not qualify as an "agent" on the basis of your employment and communication with the agency, but you still qualify as a . * Participants: If you communicate with an officer or agency for the purpose of influencing a proceeding, but do not do so as an agent, you may qualify as a participant. As discussed above, you will generally qualify as a participant in situations where: (1 ) you communicate with the agency or an officer of the agency for purposes of influencing the proceeding; and (2) you have a financial interest in the proceeding-that is, where the proceeding would have a reasonably foreseeable, material financial effect on your source of income.
In the ordinary context where your employer is a business entity or non-profit orqanization, a proceeding will be considered to have a reasonably foreseeable, material financial effect on the entity or organization if the entity/organization is a party in the proceeding.
5. Does Section 84308 apply the same way to non-profit organizations as it does to businesses?
In general, Section 84308 applies the same to non-profit organizations as it does to businesses and any other entity or individual. A non-profit organization may be subject to the $250 limit if the organization qualifies as a party, participant, or agent of a Fair Political Practices Commission 13 Parties, Participants, Agents, and Section 84308 October 2023
22 party or participant. Similarly, as discussed in Question 4 above, officers and employees of a non-profit organization are not subject to Section 84308 unless the officers or employees themselves qualify as parties, participants, or agents.
The one distinction between Section 84308's treatment of non-profit organizations compared to other entities is that the contributions of a non-profit officer whose contributions would ordinarily be aggregated with contributions by the non-profit pursuant to Section 82015.5 (see discussion above) are not aggregated if the non-profit officer is uncompensated.
6. What if the entitlement for use proceeding lasts longer than one year? Am I prohibited from contributing more than $250 even if the proceeding extends to, say, two or three years?
Section 84308's $250 contribution limit applies to any 12-month period before, during, and immediately after an entitlement for use proceeding. In the event that a proceeding extends longer than 12 months, a party, participant, or agent would not violate Section 84308 by making an additional contribution, as long as the total contribution within the preceding 12 months was $250 or less.
For example, if on January 1, 2023, a party filed an application for an entitlement that would eventually be considered by the city council and, that same day, the party contributed $250 to each city councilmember, then on January 1, 2024, the party would be permitted to contribute an additional $250 to each city councilmember and would not be required to disclose those contributions.
Re-framing the above example, suppose the party contributed only $150 to each councilmember on January 1, 2023, then contributed an additional $'lOO to each councilmember on July 1, 2023. On January 1, 2024, the party would be permitted to contribute an additional $150, not $250 as in the above example. This is because the $100 contribution from July 1, 2023 occurred within the preceding 12 months. If the party contributed $150 on January 1, 2023, and $IOO on July 1, 2023, the party would be permitted to contribute another $250 on July 1, 2024, because at that point the party would not have made any contribution within the preceding 12 months.
7. What if it has been less than 12 months since I made a contribution in 2022? Do contributions made in 2022 count toward the $250 limit? Under Regulation 18438, Section 84308's provisions, as amended by SB 1439 and effective as of January 1, 2023, do not apply to contributions received prior to that date. Accordingly, if you made a contribution to an elected official in 2022, that contribution does not implicate Section 84308's prohibitions and requirements (e.g., a party is not required to disclose a $250+ contribution that occurred in 2022).
Fair Political Practices Commission 14 Parties, Participants, Agents, and Section 84308 October 2023
23 8. May I contribute $250 to one committee controlled by a candidate and also contribute $250 to another committee controlled by the same candidate? The $250 limit applies to each candidate, not each committee, such that a party, participant, or agent may not donate more than $250 across all of an officer's controlled committees.
9. Are project labor agreements establishing the terms and conditions of employment for workers on certain projects considered exempt "labor contracts" under Section 84308?
Yes. A "labor contract" is defined as "a contract or agreement reached through collective bargaining or with a representative group regarding the salary, benefits, or terms and conditions under an employment or retirement policy for employees or retirees, including a project labor agreement entered into under Public Contract Code Section 2500."
10. If a union representative provides public comment in support or in opposition of a governmental decision and indicates the decision will have a financial impact on its members, is the union considered a "participant"? To be a "participant," a person or entity (including a non-profit organization) must have a financial interest in the proceeding. A non-profit organization such as a union does not necessarily have a financial interest in a proceeding solely because it would be beneficial to the organization's members. Rather, the proceeding would need to have a reasonably foreseeable, material financial effect on the organization itself. The relevant standards for determining a reasonably Foreseeable, material financial effect on a non- profit organization are:
* Change in Receipts: 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: $1,000,000; or five percent of the organization's annual gross receipts and the increase or decrease is equal to or greater than $1 o,ooo.
@ Change in Expenses: 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: $250,000; or one percent of the organization's annual gross receipts and the change in expenses is equal to or greater than $2,500. @ Impact on Real Property: The official knows or has reason to know that the organization has an interest in real property and: the property is a named party in, or the subject of, the decision; or there is clear and convincing evidence the decision would have a substantial effect on the property.
Accordingly, unless it is reasonably foreseeable that a non-profit organization would experience any of the above financial effects (e.g., the union's receipt of union dues increases by $1,000,000 as a result of the increased union wages caused by a Fair Political Practices Commission 15 Parties, Participants, Agents, and Section 84308 October 2023
24 government contract), the non-profit organization will not qualify as a "participant" and an officer is not prohibited from receiving more than $250 from the organization advocating for or against a particular decision in an entitlement proceeding.
Fair Political Practices Commission 16 Parties, Participants, Agents, and Section 84308 October 2023
2(325
ATT ACHMENT B
STATE OF CALIFORNIA
FAIR POLITICAL PRACTICES COMMISSION
1102 Q Street o Suite 3o5o a Sacramento, CA g58n
(g s 6) 3 22-5 6 6 o - Fax ( g s 6 ) 3 2 2 - 0 8 8 6
To: Chair Miadicli, Commissioners Baker, Wilson, and Wood From: Dave Bainbridge, General Cormsel
Kevin Cornwall, Commission Corinsel
Subject: Proposed Adoption of Section 84308 Regulations Implementing SB 1439 Date: June 5, 2023
Executive Summary
On September 29, 2022, the Governor signed SB 1439 into law. SB 1439 amends Section 84308 of the Political Reform Act and the amendments took effect on Januaiy 1, 2023. Section 84308 places limitations on certain public officials' ability to take part in licensing, pernnitting, and other rise entitlement proceedings when a party or participant in the proceediiig has contributed more than $250 to the official; the statute also prohibits officials from receiving contributions exceeding $250 during such a proceeding and for a defined period after a final decision in the proceeding. SB 1439 broadens the scope of Section 84308 to apply to local elected officials wlien serving in a position directly elected by the voters and extends the period in which a post-proceeding contiibution of more than $250 is prohibited from three months after the final decision to 12 months after the final decision.
At the February 2023 Commission meetiixg, proposed regulations were presented to provide necessary Commission rules for the implementation and application of SB 1439. The proposed regulations generated significant interest and feedback from the regulated community. hi April, staff conducted an Interested Persons ("IP") meetii'ig to obtain additional input from the public regarding the revised regulatory language prior to consideration for adoption. Staff received several helpful written and oral comments prior to and during the IP meeting and has made several revisions to the proposed regulations to address many of the comments and incorporate suggestions. For the reasons discussed below, staff recommends the Commission adopt the proposed regulations.
Background
Previously, Section 84308 provided, in relevant pait, that an officer is prohibited from taking part in a license, peimit, or other entitlement for use proceeding if the officer has received a contibution in excess of $250 witliin the preceding 12 months. The officer was also prohibited from accepting a contribution in excess of $250 during the proceeding and for three months following the date a final decisioi'i is rendered in the proceeding. However, these requirements did not apply to local elected officials when taking part in a decision before the agency to which the official was directly elected. The prohibition only applied to officers on appointed boards and 26 commissions who also happened to be candidates for an elective position. For example, an appointed planning commissioner who was also a candidate for a school board corild not take part in a permit proceeding before the plaru'iing commissioner if the applicant gave a contribution in excess of $250 to the officer's campaign for school board.
After taking effect on Januaiy 1, Section 84308 has been broadened and now applies to local elected officials regardless of whether the decision at issue is before the agency to which the official is elected or another agency on which the official sei'ves. Also, the period in which contributions in excess of $250 are prohibited following a final decision is extended from three months to 12 months. In addition to expanding the reach of the law, SB 1439 also reorganizes some of Section 84308's subdivisions, i'iecessitating the 'iipdating of any regulations referencing those subdivisions.
In anticipation of tliese changes, the FPPC has received numerous questions from the regulated community regarding how Section 84308 will apply, as amended. Staff has also consulted with the League of California Cities (CalCities) to identify common concerns and questions tlu'oughorit the regulated community. Some of those questions were addressed in the Kendrick Opinion, No. 0-22-002, issued in December 2022, but many questions and concerns raised tmorigh public comments were oritside the scope of the reqriested opinion. Accordingly, staff prepared several regulatory amendments for the Comtnission's consideration with the goal of supplementing the Commission's opinion and clarifying Section 84308's application.
Tlmoughorit the regulatory process, staff lias received a significant number of qriestions and comments regarding SB 1439, Section 84308, and the proposed regulations pertaining to Section 84308. In many cases, tlie inprit received was particularly detailed, focused on specific issues, and highlighted some of the challenges implementation of SB 1439 may present for governmental agencies and officers. Accordingly, staff has attempted to not only explain the reasoning behind the proposed regulations, but also how it addresses much of the feedback from the priblic.
Proposed Regulatory Actions
Adopt Regrdation 18438 - Application of Government Code Section 84308 Proposed Regulation 18438 worild specify that Section 84308's amended provisions do not apply to contributions made or received, or proceedings participated in, prior to January 1, 2023. As discussed at the February Commission meeting, this would essentially codify tlie Commission's Kendrick Opinion, No. 0-22-002. The Coinmission could eventually repeal the regulation once it is no longer necessary.
hi a letter submitted prior to the February Commission meeting, CalCities expressed the concern that the proposed language "currently reads as a broad amnesty provision for any violation of Section 84308 that occun'ed prior to January 1, 2023." Accordingly, staff has updated the proposed language of Regulation 18438 to better reflect the intended application.
Ahead of the IP meeting, CalCities also recommended that old versions of the regulations be kept on orir website for officials who are still subject to the prior version of Section 84308. 2 22 27
Staff agrees this worild be helpful and plans to maintain copies of the regulations cui'rently in effect on a separate webpage until no longer necessary.
Amend Regulation 18438.1 - Officers and Agencies Under Government Code Section 84308 Section 84308(a) defines several terms used throughout the statute, including "agency" and "officer." Regulation 18438. l fiarther defines these teri'ns, inchiding clarifying wlien officers of an exempt agency are exempt from a proceeding, defining the term "officer of an agency" to include candidates concurrently serving in a decisionmaking governmental position, and defining "constitutional officers.
Since presenting Regulation 18438. l at the Februai'y meeting, staff has further revised subdivision (a) and proposes removing subsections (1) and (2), given that those sections previously applied in the context of former Section 84308 exempting local elected officials.
However, it is no longer necessary to specify the circumstances in which an exemption applies to an entire goveriiing body of an agency as opposed to a subgroup within tl'iat body, as officers are subject to Section 84308 regardless of whether they are acting as a complete body or subgroup of the governing body.
Staff also proposes re-organizing and restating Regulation 18438. l 's exception relating to members of the Goveriior's Cabinet into subdivision (b). Previorisly, staff proposed removing this exception, finding insufficient support in the statutory language for current Regulation 18438. l 's exclusion of Cabinet members from the definition of "officer." In researching and considering tlie exception more, however, staff believes the intent of the exception was likely related to tlie understanding that members of the Governor's Cabinet, when acting in that capacity, are operating as an extension of the Governor, a statutorily exempted "constitutional officer."
Staff has also revised the proposed language defining "officer of an agency" to inchide those who "[hlave decisionmaking authority witli respect to the proceeding involving a license, peimit, or other entitlement for rise and is also a candidate for elected office or has been a candidate within the 12 months prior to the govertqmental decision at issue." (Emphasis added.) This is intended to clarify that Section 84308 applies even in the scenario where an officer has already lost an election.
Staff also proposes defining "officer of an agency" to refer to either: (1) officers who may make, take part in making, or attempt to use their official position to influence a decision in the license, permit or other entitlement for use proceeding; or (2) officers who exercise authority or budgetary control over the agency of officers who may do so. This worild ensure that a wide range of officers are encompassed within the scope of Section 84308, which the Legislature intended to broaden. However, it worild also exclude officers wholly unrelated to a proceeding, who the Legislatiire likely did not intend to prevent parties and participants from making contributions to. For example, if a participant lias taken part in an entitlement for use proceeding before a city plaru'iing commission, the participant would understandably be prohibited from contributing to a planning commissioner while the proceeding is pending. However, a participant may want to make a contribution to a member of the city's library board, an office wholly unrelated to and whose officers have no influence or control over the planning commission 3 23 28
proceeding. Becarise the planning commissioner and librai'y board member are both officers of the city, they could both be interpreted as "officers of the agency" for prirposes of Section 84308, but it seems unlikely the Legislature intended Section 84308 to apply in such a sweeping manner, particularly in the context of large local jurisdictions. Accordingly, staff proposes defining the term "officer of an agency" to avoid such an application.
Additionally, following the postponement of the May 2023 Commission Meeting, staff liad the opportunity to discuss the proposed regulations with legal staff at the Los Angeles County Metropolitan Transportation Authority ("LA Metro") and the Los Angeles Corinty Counsel's Office. Responding to a reqriest for clarification on whether the "officer" definition's reference to "head of an agency" was intended to inchide department and division lieads, staff revised the proposed language to specify that "officer" inctudes the chief exectitive (such as a chief executive officer or city manager) of a state agency, or county, city, or district of any kind.
This clarifies tliat department heads are not officers of an agency subject to Section 84308 unless they qrialify as a candidate for elective office.
Finally, staff proposes amending Regulation 18438.1 to define "constihitional officer." Section 84308(a)(3) exempts "constitutional officers" from its scope of the term "agency," but does not expressly define the term "constitutional officer." As discussed prior to the February Commission meeting, staff believes the analysis by the Attorney General, faced with a similar question, is sound and recommends adopting a similar definition. (See 82 0ps.Cal.Atty.Gen. 172 (1999).) However, in further researcliing the issue, staff also identified the Superintendent of Public Instruction as an additional elected state office recognized in the California Constitution and, consequently, recommends including the position in the regulatory definition of "constitutional officer."
Amend Regvdation 18438.2 - Proceedings Under Section 84308 Whether and how Section 84308's provisions apply to a party, paiticipant, or officer largely depend on the point at wliich a proceeding is considered "pending." For example, Section 84308(b) prohibits an officer from accepting, soliciting, or directing a contribution of more than $250 from a party while a proceeding involving a license, permit, or other entitlement for use involving the party is "pending." Similarly, rinder Section 84308(e)(2), a party is proliibited from contributing to an officer of an agency more than $250 while the proceeding is "pending before any agency." Accordingly, Regulation 18438.2 specifies the circumstances in which a proceeding is considered "pending."
In their letter submitted for tlie February Commission meetii'ig, CalCities noted that "proceeding" was not sufficiently defined and recommended that FPPC regulations clearly define the term to avoid confusion. The California Political Attorneys Association also noted that the regulations did not address what constitutes a "license, permit, or other entitlement for rise" under Section 84308(a)(5). Commission staff has also received questions on whether certain contracts qualify as a "labor contract," and what constitutes a "competitively bid contract," for purposes of Section 84308's exceptions. Conseqriently, the revised version of Regulation 18438.2 aims to address these questions and concerns and describe with greater specificity the types of proceedings that constitute a "proceeding involving a license, peimit or other entitlement for use."
4 24 29
With respect to "competitively bid contracts," the proposed definition is consistent witli prior Commission advice letters interpreting the phrase to apply to contracts where the agency is required to select the lowest qualified bidder. (See, e.g., Collins Advice Letter, No. A-20-138.) For the sake of providing greater specificity than simply referring to "qrialified" bidders, staff proposes language similar to language used in the Public Contract Code and the Department of General Services' State Contracting Mamial-that is, requiring "competitively bid contracts" be awarded to a responsible bidder with the lowest responsive bid. (See Cal. Pub. Contract Code Sections 1103, 10182, 10301, 20162; see also Department of General Services, State Contracting Manual, "Determining Responsive Bid and Responsible Bidder - 1404.2," available online.) The language is also similar to language rised in many municipal codes. (See Eel River Disposal & Resource Recovery, Ii?C. v. County of Hvmqboldt (2013) 221 Cal.App.4th 209, 233-234 (writing, regarding the technical meaning of the phrase "competitive bidding" in the context of public procurement, "[v]it-tually all arithorities on government procurement and priblic contract law define the competitive sealed bidding process employed by the Corinty in tliis case as oi'ie in which 'the award is made to the responsible bidder having the lowest responsive bid. "').) After speaking with LA County Counsel and LA Metro, staff revised the proposed definition to claiify that a competitively bid contract is a contract required by law to be awarded to the lowest responsible bidder with a responsive bid, not simply any contract awarded to the lowest bidder.
As drafted, Regulation 18438.2 would clarify that a "proceeding involving a license, pei'mit, or other entitlement for use" is a proceeding involving an entitlement for rise that is either (1) applied for by the party, (2) formally or informally reqriested by tlie party; or (3) a contract between the agency and the party or a franchise granted by the agency to the party, except for those types of contracts exempted rinder Section 84308. While subdivisions (a)(l) and (a)(2) would often involve overlap, staffs intent was to encompass scenarios where, for example, an agency, rather than a party, initiated a proceeding, but thereafter and during the proceeding the party makes a request for an entitlement for rise.
Since the February Commission meeting, staff has also revised the proposed language that would define the term "pending." Prior to the IP meeting, staff had prepared two options for the Commission's consideration, largely based on feedback we had received from the regulated community. Options 1 and 2 present two approaches to defining "pending" that would result in significantly different applications of Section 84308. After considering the varioris cornrnents received prior to and during the IP meeting, staff has drafted a third option, intended to address the concerns raised with respect to both Options 1 and 2.
Option 1
Under Option 1, a proceeding worild be considered "pending" if the decision was before the officer for the officer's consideration, or if it is reasonably foreseeable the decision will come before the officer in the officer's decisionmaking capacity and the officer knows or has reason to know the application has been filed or the issue is otherwise within the agency's jurisdiction for its determination.
Option l proposes a greater divergence from the current regulatory language, which provides (in summaiy) that an entitlement for rise proceeding is "pending before" an agency when: (1 ) the application lias been filed; (2) the matter has been submitted to the officers of the 5 25 30
agency for their decision; and (3) the decision will not be prirely ministerial. In contrast to these provisions, Option 1 would instead require either that the decision is before the officer for the officer's consideration or that it is reasonably foreseeable the decision will come before the officer in the officer's decisionmaking capacity and the officer laiows or has reason to know that the issue is within the jririsdiction of the agency for its determination. In other words, under Option 1, a proceeding would not be considered "pending," for putposes of triggering Section 84308 and its restrictions related to contributions exceeding $250, in instances where a governmental decision is neither before the officer for the officer's consideration nor where it is not reasonably foreseeable the decision will come before the officer or the officer does not know or have reason to laiow of the proceeding.
While Option l represents a more substantial departure from the current regulatory language, it is aimed at addressing the new reality that with Section 84308's broadened scope, ceitain agencies have such large jurisdictions involving varioris depaitments and divisions within those departments that, in certain instances, an officer may be part of the same overall "agency" that an application has been submitted to, but has no practical reason or way of knowing of the application. Previously, this was not a significant issue because Section 84308's exemption of local elected officers effectively meant that proceedings involving licenses, permits, and other entitlements for use triggered Section 84308 considerations for a much smaller pool of officers more closely associated with tlie application.
Now that Section 84308 applies to local elected officers as well, it complicates application of that approach. Although many such officers corild conceivably become involved in an application at some point in its procedural history, that is not always the case, nor do such officers necessarily have a realistic way of cross-referencing eveiy application submitted to the various departments within the agency, particularly when dealing with large agencies such as counties or large cities. For example, ahead of the IP meeting, the Tulare County Administrative Office expressed preference for Option 1, writing:
In contrast to Option 2, Option I provides a brighter line for when a matter is likely to be heard by the particular officer or board. This is becarise a matter can be within the jurisdiction of the without being within the jurisdiction of the officer.
For example, when a Planning Commission decision is appealed to the Board of Supervisors, the Clerk receives the appropriate infonnation regarding the parties and participants and can forward that to the members of the Board of Supei'visors, long before the agenda item is scheduled to be heard. But many matters witliin tlie jurisdiction of the County which might be heard by the Plaruiing Commission are never heard by the Board of Supervisors, either because they are resolved at the staff level witli no involvement by any board, or becarise the Plaiuiing Commission decision is not appealed to the Board of Supetavisors Under Option 2, the Board of Supervisors worild be required to know wlien every development application is filed with the department in order to la'iow whether an item "within the jurisdiction of the Corinty" has been filed. 6 26 31
(Emphasis in original.)
Option 2
Under Option 2, an officer would be prohibited from participating in or voting on a matter if they have received a contribution in excess of $250 from a party, participant, or agent within the 12 months prior to a vote on tlie matter or while the matter is pending before an agency (i.e., not just pending before the officer).
Ahead of the IP meeting, Califomia Common Carise commented in support of Option 2 and explained its concerns aborit perceived deficiencies with Option 1, writing :
For example, [under Option 1] a special interest entity seeking a waste management contract could make a contribution of over $250 to a city corincilmember after submitting a proposal to the city's public works department, knowing that the city's processes are such that it will be over one year before the proposal gets to the city council. Similarly, parties for large development projects, which can take well over 12 months to receive final approval, could ingratiate themselves to councilmembers or other [elected officers] and candidates by giving them large campaign contributions with the knowledge that their project is not likely to come before the councilmembers or other [elected officers] and candidates for at least a year.
Consequently, Common Cause argued that "Option 2 worild prevent exploitation of the law that could occur rmder Option One."
Staff agrees that becarise Option 2 would more broadly define the term "pending," and therefore apply in a greater number of instances, Option 2 would potentially prevent a greater number of "pay-to-play" practices compared to Option 1. However, this is counterbalanced by legitimate concerns regarding the logistical difficulties of such an approach, which could lead to violations of Section 84308 despite some officers' best intentions and efforts. For example, a member of the Los Angeles County Board of Supervisors corild receive $25 per month from the owner of a company that has submitted a building permit application to the County Building Department and have no practical way of identifying a prohibited contribution because (l) the issue has not come before the Supervisor; (2) the contributions are of a relatively small value that the Supervisor worild not typically be aware of the contributions offhand; and (3) even if the Supervisor was aware of a permit application submitted to the Corinty Building Department by a constniction company, tlie Supervisor may not reasonably be aware of the identity of the owner of the construction company, such that the Supervisor could reject or return a contribution by tlie owner in time to avoid violating Section 84308.
While the above example illustrates some of the logistical issues officers could face with respect to a single contributor, the difficulties could be compounded when considering the volume of proceedings going on in a city, corinty, or other local government agency at a given time. Ahead of the IP meeting, the Santa Clara County Corinsel wrote; Option 2-whicli omits any mention that an officer must know of a proceeding for it to be deemed "pending," would be virtually impossible for priblic agencies to administer. If, as Option 2 contemplates, a proceeding were deemed "pending" 7 27 32
merely when an application for a license, pei'mit, or other entitlement for use is filed, or an issue is otherwise "within the jurisdiction of the agetzcy" generically (and not "the officer" more specifically), Santa Clara's officers could be charged with obsei'ving the Levine Act's restrictions with respect to thorisands of small transactions that never come before them for decision, and that, in the ordinary course of business, they do not know or have occasion to learn about. Along with its practical unworkability, this option worild be inconsistent with Santa Clara's rinderstanding of the Levine Act's legislative intent that an officer tust have knowledge of a proceeding pending before the agency. (Emphasis in original.)
Option 3
In reviewing the various priblic comments received regarding Options 1 and 2, the primary concenis seem to be defining the ternn pending "pending" in a manner tliat: (1) is feasible to implement and adhere to; and (2) is effective in curbing "pay-to-play" practices as intended by the Legislature. Recognizing the valrie in both of these considerations, staff drafted Option 3 to address these concenis.
Option 3 worild significantly differ from Options I and 2 by defining the term "pending" with a context-specific approach, rather than attempting to find a "one size fits all" solution.
Many of the comments staff received regarding Options I and 2 focused on what conduct is reasonable based on what is known, or should be laiown, by an officer, party, participant, or agent, at the time. The difficulty with applying a standard that applies the same to all of these individuals, however, is that it does not take into accorint the fact that knowledge of a proceeding, and contributions made throrighout tl'iat proceeding, is largely asyrnmetric. In other words, a Los Angeles County Supervisor might not have reason to know about a particular building permit application recently submitted to the Corinty Building Department, but the party wlio submitted the application, or tlie participant wlio by definition lias already taken part in tlie proceeding, certainly does.
Witli the above in mind, Option 3 would define a proceeding as "pending" based on the context. Option 3 worild define proceeding as "pending" for a party or participant similar to Option 2-that is, once the entitlement for use decisioi'i is within the jurisdiction of the agency (e.g., once the application has been filed). Consequently, to borrow Common Cause's example, a special interest entity seeking a waste management contract worild be prohibited from making a contribution of over $250 to a city corincilmember after submitting a proposal to the city's public works department, despite knowing that the city's processes are such that it will be over one year before the proposal gets to the city corincil.
With respect to officers, Option 3 would define a proceeding as "pending" in the same way as Option 1 -in short, when (l) the decision is before the officer or (2) it is reasonably foreseeable the decision will come before the officer and the officer knows or has reason to know the decision is within the jurisdiction of the agency. 8 28 33
In combination, Option 3 worild mean paities and paiticipants would refrain from making contributions exceeding $250 to an officer, even in instances where a decision has not yet come before the officer. However, officers would not be at risk of violating Section 84308 by accepting a contribution from a paity or paiticipant in instances where the officer does not know or have any reason to laiow about tlie proceeding. In effect, this worild prevent a greater number of "pay-to-play" contributions, similar to Option 2, but would also take into consideration the circumstances in which an officer has reason to know about a proceeding and avoid potentially infeasible diversions of goveriment resources for the prirposes of tracking contributions and proceedings regarding decisions that may never come before the officer.
For the above reasons, although Options 1 through 3 each represent reasonable interpretations of Section 84308, staff recommends Option 3 as the sotution that offers the greatest, logistically feasible protection against "pay-to-play" practices.
AmendRegulation 18438.3 -Ageids UnderSection 84308
Under Section 84308, the same rules regarding a party or participant's contributions exceeding $250 apply to tl'ie contributions of an agent of the party or participant. For example, a party and the party's agent could each permissibly contribute $100 to an officer in a proceeding, for an aggregate contribution of $200, but they would be prohibited from each contibuting $150, as the aggregate $300 contribution would exceed the $250 amorint Section 84308 peimits.
Although Section 84308 defines tlie ternns "party" and "participant," it does not attempt to define the term "agent." Regulation 18438.3 fills that gap and defines the term for purposes of Section 84308.
As discussed during the Febiuary Commission meeting, staff proposes amending subdivision (a)'s definition of "agent" to clarify that it inctudes only persons who represent the party or participant in the proceeding, through methods such as appearing before or otherwise communicating with the goveintnental agency, that qrialify as "agents" for prirposes of Section 84308.
Following the February Coiui'nission meeting, staff has furtl'ier revised subdivision (a)'s language to expressly require that the person acting as the representative of a paity or participant in a proceeding also be compensated in order to constitute an agent. Staff believes this more accurately reflects the Legislature's intent to apply Section 84308 to those with a financial interest in the proceeding, as opposed to, say, those who simply volunteer to help a party or paiticipant.
After the IP meeting, staff fuither revised subdivision (a)'s language to reqriire that, to qualify as an agent, an individual's commauiications with an agency be "for the purpose of influencing" the proceeding, rather than merely "in connection with" the proceeding. This worild help clarify that solely non-persuasive communications, such as a law firm assistant forwarding a communication by an attoniey, do not qualify an individual as an agent. Staff also proposes new subdivision (c), which would further define communications "for tlie purpose of influencing" for purposes of the regulation and worild specify that certain communications involving objective data are not considered "for the purpose of influencing" a proceeding. 9 29 34
Most recently, LA County Counsel and LA Metro requested the proposed definition of "agent" be revised to refer to a "pending proceeding," as opposed to a "proceeding" generally, to harmonize with the proposed language in other regulations that make reference to "pending proceedings." In considering the reqriest, staff concluded that reference to a "pending proceeding" in tlie definition of "agent" worild not have a substantive impact on the circumstances in which an individual is considered an agent and, consequently, has included the suggested language for the sake of consistency throrighout the proposed regulations.
Staff also proposes reorganizing a portion of current subsection (a) into a separate subsection and removing current subsection (b), as aggregation will be fully addressed in Regulation 18438.5, discussed below.
Amend Regvdation 18438.4 - Participants Under Section 84308 Section 84308(a)(2) defines the teim "participant" as "any person who is not a paity but wlio 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... ." The same subdivision fiuther explains that "[a] person actively supports or opposes a paiticrilar 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." Regulation 18438.4 fiirther clarifies who constitutes a participant by defining the terms "lobbies in person," "testifies in person before the agency," and "otherwise acts to influence officers of the agency."
At the Febiuary meeting, the Commission suggested that Regulation 18438.4-which currently refers to communications made "directly, either in person or in writing," shorild be revised to also incorporate teleconferences, given their prevalence today. The Coinmission also noted that communications made "in writing" would fit more appropriately into the regulation's definition of "otherwise acts to influence," rather than its definition of "lobbies in person," given that "lobbying in person" typically implies face-to-face, ratlier than written, communication.
Staff lias revised Regulation 18438.4 accordingly. Rather than amend the regulation to specifically refer to teleconferences, staff proposes removing the references to communicating directly "in person or in writing," such that the regulation's definition of "lobbies in person" would simply encompass direct comrmuiication generally, and a person worild "otherwise act to intuence" an officer when they communicate in some other manner for the purpose of influencing the decision in a proceeding.
Finally, in response to Common Carise's suggested clarification, staff has revised subdivision (c)(l) to refer to communications with an "officer or employee of the agency," rather than just an "employee of tlie agency."
Amend Re4zulation 18438.5 -0gregated Contributions Under Section 84308 As noted above, contributions made by a party and a party's agent, or a participant and a participant's agent, are aggregated for purposes of Section 84308's $250 limit. Regulation 18438.5 establishes and clarifies requirements relating to aggregation. 10 30 35
Because ctuarent Regulations 18438.3 and 18438.5 both contain provisions relating to aggregation of contributions, staff proposes amending Regulation 18438.5 to lay orit the aggregation process more succinctly and within a single regulation.
Since the February meeting, staff has revised the proposed language to better clarify tlie aggregation process. Prior to the February Cornrnission meeting, the Commission also received a comment from CalCities recornrnending that the previously proposed language be revised to claiify the relevant period in which contributions made by an agent are to be aggi-egated with those made by a party or participant. Staff agrees with the need for clarification. Conseqriently, staff proposes defining the period as the shorter of eitlier the previoris 12 month period or "the period beginning on the date the paity or participant first hired the agent as either a paid employee, contractor, or consultant."
At the IF meeting, staff also received a comment from attoiney Lacey Keys suggesting the proposed language be fiirther amended to harmonize with Section 82015.5-the statute in the Act addressing aggregation of contributions generally. Staff agrees the regulation would benefit from this change and has amended the proposed language to clarify Section 82015.5 applies to contributions by parties, participants, and their agents, with the exception of uncompensated officers of nonprofit organizations. Tlie Commission received several comments prior to the Febntary meeting raising concems about Section 84308's potential impact on non-profit volunteers, including board members, who do not have a financial interest in entitlement for use proceedings. The Legislative l'iistoiy indicates the Legislature was concerned witli pay-to-play or quid pro quo practices. In the context of volunteer nonprofit board members who do not stand to personally gain as a result of a governmental decision outcome, staff agrees that treating their contributions as the directors and controllers of the nonprofit as equivalent to contributions by the nonprofit does not reflect or fiirther the prirposes of Section 84308. Accordingly, staff has included the aforementioned language excepting uncompensated officers from the aggregation process.
Since tlie IP Meeting, staff has also revised Regulation 18438.5 to inchide a new subdivision (b), which would clarify that an officer does not violate Section 84308(b)-(d) by accepting, soliciting, or directing a contribution from an individual or entity required to be aggregated under Section 82015.5 where: (1) the party, participant, or agent lias not disclosed the contribution and (2) the officer does not otheiwise laiow the contribution tust be aggregated pursuant to Section 82015.5 and Regulation 18438.5. Staff has received multiple comments expressing concern about an officer's ability to immediately identify contributions that sliould be aggregated in circumstances where the officer does not have reason to ki'iow aborit a contributor's connection to a party, participant, or agent. In many cases, complex corporate struchires, company names, organizational charts, and other obstacles may impede an officer's ability to adhere to Section 84308, despite their best efforts. The proposed subdivision is intended to avoid circumstances in which an officer violates Section 84308 by accepting a contribution the officer had no reason to suspect was impei'i'nissible or in any way related to a proceeding pending before them. Staff is also proposing amending Regulation 18438.8 to specify parties are required to disclose all contributions required to be aggregated under Section 82015.5.
Thus, an officer worild not violate Section 84308 by accepting a contribution from a related business entity prior to knowing of the relationship between the entity and the party or participant. Once the officer lcnows of the relationship, the officer would be prohibited from any 11 36
additional contributions and would also have the opportiinity to retui'n the poition of any the contribution exceeding $250 or recuse themselves from the proceeding.
Amend Regulation 18438. 6 - Solicitation, Direction, and Receipt of Contributions Under Section 84308
As noted above, while a proceeding is pending and for 12 months thereafter, an officer is prohibited from receiving, soliciting, or directing a contribution exceeding $250 from a party to the proceeding or a participant if the officer knows or has reason to ki'iow the participant has a financial interest in the proceeding. Likewise, paities and paiticipants are prohibited from making such a contribution during the same period. Regulation 18438.6 defines when a person "makes" and when an officer "accepts," "receives," "solicits," or "directs" a contribution.
Ahead of the February meeting, the Commission received a comn'ient from Tyler Bonanno-Curley, the Manager of Govertaiment Affairs for the City of Long Beach, expressing ruicertainty as to wliether the Levine Act applies to officeholder accounts, given that such accounts were not referenced in Regulation 18438.6. Currently, Regulation 18438.6 simply refers to contributions made to a person's "own candidacy or own controlled committee." CalCities also recommended amending the proposed regulatory language becarise the scope of the phrase "coi'nunittee controlled by the officer" was unclear. Staff has revised the proposed language for Regulation 18438.6 to clarify that the teim "controlled committee" incorporates various types of committees, including officeliolder controlled corni'nittees formed pursuant to Section 85316(b) and Regulation 18531.62-that is, the "officeholder accounts" Mr. Bonaru'io- Curley was referring to.
Additionally, as suggested by Commissioner Wood, references to "an officer or candidate" have been revised to simply refer to "an officer," given that the term "officer" is defined by Section 84308 to include candidates.
Staff also proposes amending Regulation 1 8438.6(b)'s definition of "solicits" to include scenarios where an officer or candidate directs a candidate to request a contribution to any other candidate, public official, or committee aside from the candidate's own. This amendment would bring Regulation 18438.6 in line with Section 84308(b)'s statutory text, which prohibits an official from accepting, soliciting, or directing contributions exceeding $250 from parties or participants on behalf of any candidate for office or committee. Since the Febniary meeting, staff has revised tlie proposed language to state the standards more succinctly. Staff has also incorporated Common Carise's recorninendation that the standard for soliciting not be limited to "personal[] requests" made "either orally or in writing." Staff agrees that such language could lead to looplioles in how an officer requests a contribution from a party or paiticipant and eliminating the specification that a solicitation be made "orally or in writing" worild be consistent with staffs proposed amendment to Regulation 18438.4-that is, applying the provisions to communications generally, rather than needing to specify, for instance, whether the regulation prohibits solicitations made by teleconference.
The proposed amendments would also revise the definition of "directs" to apply to scenarios in which an officer solicited the contribution made to a candidate or committee other than the officer's own. Finally, staff proposes reorganizing current subdivision (b)-defining 12 37
"making" a contribution-to subdivision (e) with clarification that the term specifically peitains to Section 84308(e)(2).
Repeal and Adopt Regulation 18438. 7 - Prohibitions an.d Disqualification Under Government Code Section 84308
Under Section 84308(b), when an officer knows or has reason to know tl'iat a participant lias a financial interest in a proceeding, tlie officer is prohibited from accepting, soliciting, or directing a contribution exceeding $250 from the paiticipant. Likewise, an officer is prohibited from taking part in a proceedii'ig if, within the preceding 12 months, the officer has williiigly or la'iowingly received a contribution exceeding $250 from a party or party's agent, or paiticipant or participant's agent if the officer knows or has reason to laiow of the participant's financial interest in the decision. Additionally, an officer is permitted to retum an otherwise disqualifying contribution if, within 30 days from the time the officer knows, or should have known, about tlie contribution and the proceeding. Regulation 18438.7 specifies when an officer has reason to know of a participant's financial interest, whei'i the officer ki'iows or shorild have known about a proceeding, and when the officer knows or should have known aborit a contribution.
Staff's proposed language for Regulation 18438.7 presents several changes both to the current regulatory language and the language proposed at the Februaryy meeting. Given the extent of proposed changes to the current regulatory language, staff proposes repealing and adopting the regulation, rather than amending it.
Three of the primai'y concerns Commission staff has heard expressed regarding SB 1439 are uncertainty in: (1) determining who qualifies as a "participant" for disqrialification purposes; (2) understanding an officer's duties regarding determining an individual's potential financial interests; (3) understanding an officer's duties regarding recusal once a disqualifying financial interest has been deten'nined. Staff has amended Regulation 18438.7 to address these concenis.
Proposed subdivision (a) provides the standards by which an officer is considered to know or have reason to know that a participant has a financial interest in a proceeding. At the February meeting, staff proposed language detailing various types of facts that officers should consider in determining whether they know or have reason to know of a participant's financial interest. However, tliis riltimately resulted in a somewliat ruiwieldy regulation that could inn the risk of unintentionally suggesting that factors not specified in what was intended as a non- exharistive list do not need to be considered by officers. Accordingly, staff has revised the proposed language to clarify that officers must consider all relevant facts known to them at the time of the decision, while stating in a more succinct fashion certain broad types of facts that officers sl'iorild consider.
In addition to the broad requirement of considering all known, relevant facts, staff is also proposing language in subdivision (a)(2) that would essentially establish certain "bright line" rules that would define circumstances in whicli an officer is deemed to liave reason to know of a participant's financial interest and consequently may not take part in a proceeding unless additional infornnation known to the officer establishes clear and convincing evidence it is not reasonably foreseeable the decision will l'iave a material financial effect 011 tlie participant's 13 33 38
economic interests. Tl'iis is vei'y similar to the approacli the Commission has taken with conflict of interest regulations.
Similar language was inctuded in a draft of the regulation discussed at the IP meeting, but public comments indicated that staff's intent was not effectively conveyed. The purpose of establishing bright line standards for these paiticular scenarios is that Section 84308 prohibits officers from accepting contributions exceeding $250 'fi-om paiticipants where the officer has reason to know of tlie paiticipant's financial interest in the decision. Ii'i staff's experience with conflicts of interest, the scenarios included in subdivision (a)(2) are instances that frequently and consistently indicate a financial interest in a decision in the absence of clear and convincing evidence to the contrary. Accordingly, while these are not the only instances in wliich an officer may have "reason to know" about a paiticipant's financial interest, they are clear examples in which an officer should be deemed to have "reason to know" of an interest in the absence of clear and convincing evidence to the contrary.
Proposed subdivision (b),"Willful or Knowing Receipt of a Contribution," reorganizes current subdivision (c) and would further establish that an officer willfully or knowingly receives a contribution when the officer is aware of certain facts that should prompt the officer to investigate whether the party or paiticipant has made a contribution exceeding $250 within the previoris 12 montlis.
Under subdivision (b%2), staff has proposed two options for tlie Commission's consideration. The Commission may want to consider adopting one or both options, as they are not mutually exclusive. Option 1 would provide that an officer, lacking actual knowledge of a contribution, does not have "reason to la'iow" of a contribution based solely on the fact that the contribution was previously reported under the Act's reporting provisions. Option 2 would state that an officer does have reason to la'iow of a contribution previously reported under the Act's reporting provisions made by a party in a proceeding noticed on an agenda for a priblic meeting before the body or board or, for officers not on a body or board, where the proceeding is otlierwise before the officer in the officer's decisionmaking capacity.
Option 1 is intended to address the idea that although a contribution by a party or participant may have been properly reported in the officer's campaign statements, an officer cannot reasonably be expected to commit each contribution to memory. For example, when an individual comments during a priblic meeting for the first time and establishes themselves as a participant with a financial interest, an officer just learning of tliis participant's involvement in the proceeding caru'iot reasonably be expected to immediately know that the participant contributed $300 to the officer's campaign seven months ago. This is particularly true given that Section 84308 does not require participants and their agents to disclose their contributions, as the statute requires of paities and tlieir agents. However, an alternative solution would be for officers to maintain a list of contributors that the officers can refer to during proceedings, which they could use to cross-reference with parties, participants, and agents who take part in the proceeding.
Option 2 is intended to address the idea that although Section 84308 requires parties and their agents to disclose their contributions exceeding $250, officers should not solely rely on that 14 34 39
reqriirement for pru'poses of taking pait in or recusing themselves from a proceeding. In the instance where an officer has received notice of a party's involvement in a proceeding ahead of a public meeting, the officer has adequate opportunity to determine whether that party has n'iade a disqrialifying contribution under Section 84308.
Recognizing the prospect of cross-referencing contributor lists in real-time during public meetings corild pose logistical challenges that might interfere with effective goveinance and officers' efforts to adhere to Section 84308's reqriirements, staff recorninends adopting both Options 1 and 2.
In proposed subdivision (c), staff proposes more clearly establishing tlie standards under which an officer can rehirn a contribution. Currently, Regulation 18438.7(b) establishes when an officer "knows, or shorild have known, about a proceeding pending before the agency...." However, under Section 84308, this fact is only relevant in the context of the officer's ability to return a contribution. Accordingly, staff proposes the language presented in subdivision (c),"Return of Contribution," to clarify the relevant standards for returning a contribution. The proposed language would also clarify that an officer may returii a contribution from a participant prior to the officer knowing or having reason to know that the participant has a financial interest in tlie proceeding.
In subdivision (d), staff proposes establishing a standard by which an otherwise disqrialified officer can take part in a proceeding prior to returning a contribution rinder certain conditions. Staff has revised the proposed language such that it would allow an officer to take part in a decision at a public meeting if they: (l) have known, or should have known, about the contribution and proceeding 'for fewer than 30 days; (2) disclose the disqrialifying contribution and confirm the return will occur within 30 days from the time the officer laiew, or shorild have known, about the contribution and proceeding; and (3) the contribution is, in fact, returned witl'iin that timeframe.
Proposed subdivision (d) contrasts with a provision proposed at the February Commission meeting, which worild liave provided the officer with two working days to return the contribution, similar to another regulatory provision pertaining to the return of certain gifts.
After additional review of the statutory language and consideration of public comments, liowever, staff proposes tying in this provision to the general 30-day retiun timeline rinder Section 84308(d)(1), which does not expressly reqriire tliat a contribution be returned prior to the officer taking part in the proceeding, as long as it is retui'ned within the 30 day timeframe.
Regulation 18438.8-Disclosure UnderSection 84308
Section 84308(c) requires that an officer who has received a contribution exceeding $250 from a party, participant, or agent thereof, within the preceding 12 months disclose that fact on the record of the proceeding and recuse themselves from taking part in the proceeding. Likewise, Section 84308(e)(1) requires that a party disclose on the record of the proceeding any contribution exceeding $250 made by the party or the party's agent witliin the preceding 12 months. Regulation 18438.8 clarifies the disclosure process. 15 35 40
At the Febi'iiaiy Commission meeting, staff proposed non-substantive amendments to Regulation 18438.8. However, comments received prior to and during the meeting, including those made by CalCities, highlighted the need to address circumstances where an officer learns of a contribution during, rather than prior to, an entitlement for use proceeding. Accordingly, staff has amended subdivisions (a) and (b) in recognition of such circumstances allowing an officer to make the necessaiy disclosure after leai'ning of a contribution during a meeting but prior to contimiing to take part in the proceeding. Staff also recommends amending the requirement so that, where no public meeting is held, disclosrires be made in "the agency's official records." This is similar to language rised with respect to disclosures made rinder Section 1090 and also responds to a reqriest made by priblic comment suggesting that the current language, "the written record of the proceeding," is ruinecessarily ambiguoris.
As discussed above, staff has further amended the proposed language to specify that parties are reqriired to disclose all contributions required to be aggregated under Section 82015.5.
Staff believes this requirement is appropriate, as contributions by related entities are treated as contributions by the party and Section 84308(e)(1) requires parties to disclose any contribution exceeding $250 made witl'iin tlie preceding 12 months by the party or the party's agent. Further, parties are in a better position to determine tlie contributions that must be aggregated due to access to infornnation related to coiporate structure, control, ownership, etc. that may not be readily available to officers.
After discussing the issues with LA Cormty Cormsel and LA Metro, staff has also revised Regulation 18438.8 to provide that disclosure may be made by the officer or an employee of the agency on behalf of the officer and such disclosure may be made orally or in writing at a meeting, such as a list of relevant contributions provided as part of a meeting agenda. Given the wide range of agencies and the tuameroris differences between them (e.g., jurisdiction size, meeting process, meeting length), staff believes the amendment is appropriate, as the regulation would still ensure disclosure is provided and transparency is maintained, but worild provide flexibility that would allow meetings to run effectively and efficiently.
Staff also proposes removing subdivision (c) and inserting the relevant disclosure requirements for officers and parties into subdivisions (a) and (b), respectively.
Regvdation 18705 - Legallv Required Participation
Section 87101 provides that "Section 87100 does not prevent any public official from making or participating in the making of a governmental decision to the extent the official's participation is legally required for the action or decision to be made." Regulation 18705 provides the standards in which an otherwise disqualified official is permitted to take part in a decision because the official's participation is legally reqriired. Because disqualification under Section 84308 is premised on an official's disqualification based on a party or participant's financial interest under Section 87100, staff proposes amending Regulation 18705 to encompass disqualifications under Section 84308.
As discussed at the February Coinmission meeting, staff proposes amending Regulation 18705 to apply to pertnit officials to take part in decisions they would otherwise be disqualified 16 36 41
from taking pait in where their paiticipation is legally reqriired. Since the Febiuai'y meeting, staff has revised the proposed language in respoi'ise to a comment by CalCities pointing orit that, in instances where an officer becomes aware, during a meeting, of a contribution that requires disclosure, an officer may not feasibly be able to provide the previorisly proposed details regarding the contribution. Staff agrees and has revised the proposed language to reqriire the provision of more basic details regarding the contribution, which would still provide adeqriate disclosure and allow others to obtain additional details regarding the contributions.
For the same reasons discussed with respect to Regulation 18438.8, staff also proposes amending Regulation 18705 to provide that disclosrire in the context of legally required participation may be made by tlie officer (referred to as "official" or "priblic official" here, &ie to the broader scope of the regulation) or an employee of the agency on behalf of the officer, and may be made orally or in writing.
Education and Outreach Efforts
Upon adoption of tlie regulations, Commission staff will update the Section 84308 fact sheet, as well as other educational materials. Staff also plan on creating a comprehensive Section 84308 training and offering the training to goveriiment agencies and officials. Staff will also distribute the amended regulation to interested parties via tlie Newly Adopted, Amended or Repealed Regulations email list and update the "Newly Adopted, Amended or Repealed Regulations" page on the Commission's website.
Conclusion
Since first discussing the proposed regulations at the February Commission meeting, and after additional discussion at the IP meeting l'ield in April and Law and Policy Committee meeting in May, staff has taken into consideration the questions, comments, concen'is, and recommendations of the regulated community and interested persons, as well as the Commission's feedback. Staff has endeavored to incorporate this input into the text of the proposed regulatory language for the puiposes of implementing, interpreting, and making specific the Legislature's intent in amending Section 84308. Staff also recognizes and has addressed many of the regulated community's concerns, both technical and practical, with respect to the changes broright on by SB 1439. Staff recommends the Commission adopt the proposed regulations, notwithstanding any additional revisions the Commission may elect to make. Staff thanks the regulated community for the significant level of feedback received throrighout the regulatory process, and is prepared to answer any qriestions the Commission may have.
Attachment
* RegulationPacket(Regulationsl8438-18438.8, 18705)
17 37 42
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, California Code of Regulations.)
§ 18438. Application of Government Code Section 84308. (a) The proliibitions and reqriirements of Section 84308, as effective Januaiy 1, 2023, do not apply to proceedings participated in, or contritutions made to or accepted, solicited, or directed by an officer piior to Januaiy 1, 2023.
(b) Proceedings participated in, or contributions made to or accepted, solicited, or directed by, an officer as defined by foriner Section 84308, prior to January 1, 2023, shall be subject to former Section 84308 and related regulations applicable at the time of the proceeding or when the contribution was made to or accepted, solicited, or directed by the officer.
Credits
NOTE: Authority cited: Section 83112, Goveinment Code. Reference: Section 84308, Governrnent Code.
HISTORY
1. New section filed filed 7-13-2023; operative 8-12-2023 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing prirsuant to Fair Political Practices Commission v. Office ofAdministratisie Law, 3 Civil CO 10924, Califoriiia Court of Appeal, Third Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act nilemaking reqriirements and not subject to procedural or substantive review by OAL) (Register 2023, No. 28). For prior history, see Register 95, No. 17. 1 38 43
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, California Code of Regulations.)
§ 18438.1. Officers and Agencies Under Government Code Section 84308. (a) The officers of an agency exempted by Section 84308(a)(3) are exempted only from proceedings before the exempted agency.
(b) Members of tlie Govei'nor's Cabinet, wlien acting in the capacity of agency secretary advising or consulting the Governor's Office, are officers of the Governor's Office and exempt from Section 84308. The member is not exempted from proceedings before the member's agency or other governing body not otherwise exempted.
(c) "Alternate" as rised in Section 84308(a%4) means any person designated to serve as an officer of an agency who has served at least once in the preceding three months, or who knows or has reason to know will serve as an officer of the agency in the next three months. (d) An officer of an agency inctudes only those persons who may make, participate in making, or in any way attempt to rise their official position to influence a decision in the license, permit, or entitlement for rise proceeding, or who exercise authority or budgetary control over the agency of officers who may do so, and:
(1) Serve in an elected position, including any official appointed to an elected position due to an interim vacancy or an election otherwise canceled because the official was the sole candidate for the position;
(2) Serve as a member of a board or coi'iunission;
(3) Serve as the cl'iief executive of a state agency or coru'ity, city or district of any kind; or 1 39 44
(4) Have decisionmaking arithoiity witli respect to the proceeding involving a license, perinit, or otlier entitlement for rise and is also a candidate for elected office or has been a candidate for elected office in the 12 months prior to the proceeding. (e) "Constitutional officer" means the Governor, Lieutenant Govei'nor, Attorney General, Controller, Insurance Coininissioner, Secretaiy of State, State Treasurer, and Superintendent of Public Instiuction.
CREDITS
NOTE: Authority cited: Section 83112, Governrnent Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thiitieth day thereafter (Register 83, No. 5).
2. Amendment filed 3-12-84; effective thirtieth day thereafter (Register 84, No. 11).
3. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
4. Editorial correction of section lieading filed 5-6-85; effective thirtieth day thereafter (Register 85, No. 19).
5. Amendment of subsections (c) and (d)(2) filed 5-12-2021 ; operative 6-11-2021 prirsuant to Cal. Code Regs., tit. 2, section 1 8312(e). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office ofAdministrative Law, 3 Civil CO10924, Califoniia Cowt of Appeal, Third Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rrilemaking reqriirements and not subject to procedural or substantive review by OAL) (Register 2021, No. 20).
6. Amendment filed 7-13-2023; operative 8-12-2023 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing prirsuant to Fair Political Practices 2 40 45
Commission v. Office of Administrative Law, 3 Civil CO10924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act iulemaking reqriirements and not subject to procedural or substantive review by OAL) (Register 2023, No. 28). 3 46
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, Califori'xia Code of Regulations.)
§ 18438.2. Proceedings Under Government Code Section 84308. (a) A "proceeding involving a license, peri'nit or other entitlement for use" means any proceeding to grant, deny, revoke, restrict, or modify a license, permit or other entitlement for rise, that does not solely involve purely ministerial decisions and is:
(l) Applied for by the party;
(2) Foi'inally or informally reqriested by the party; or (3) A contract between the agency and the party or a francliise granted by the agency to the party, other than a contract that is competitively bid, a labor contract, or a personal employment contract. For purposes of this provision:
(A) "Competitively bid contract" means a contract reqriired by law to be awarded to the lowest responsible bidder witli a responsive bid, or, if the sriccessfiil bidder refuses or fails to execute the contract, to the next lowest bidder with a responsive bid. "Responsible bidder" means a bidder wlio has demonstrated the attribute of trustwortliiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the contract. "Responsive bid" means a bid that indicates compliance without material deviation from the requirements of tlie solicitation and the terms and conditions of the proposed contract. (B) A "labor coiitract" is a contract or agreement reached throrigli collective bargaining or witli a representative grorip regarding tlie salary, benefits, or teims and conditions under an employment or retirement policy for employees or retirees, including a project labor agreement entered under Public Contract Code Section 2500.
1 42 47
(C) A "personal employment contract" is a contract for employment, including the tertns and conditions of employment, between the agency and an agency employee. (D) Except as provided in subdivision (a%3%A), a contract between tl'ie agency and an independent contractor is neitlier a labor agreement nor personal employment contract. (b) "Pending." A proceeding involving a license, petmit, or otlier entitlement for use lias commenced and is considered pending only rinder tlie following circumstances:
(l) For an officer, a proceeding involving a license, permit, or other entitlement for use is pending when:
(A) Tlie decision is before the officer for the officer's consideration. If the officer is a member of a governing body, this includes any item placed on the agenda for discussion or decision at a public meeting of the body; or
(B) The officer la'iows or has reason to know a proceeding involving a license, permit or other entitlement for use is before the jurisdiction of the agency for its decision or other action, and it is reasonably foreseeable the decision will come before the officer in the officer's decisionmaking capacity.
(2) For a party or party's agent, or a participant or participant's agent, a proceeding involving a license, peimit or other entitlement for use is pending when it is before the jurisdiction of tlie agency for its decision or other action.
Credits
NOTE: Authority cited: Section 83112, Goveriunent Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5). 2 43 48
2. Amendment filed l 1-10-83; effective thirtieth day thereafter (Register 83, No. 46).
3. Ainendment filed 2-22-85; effective thirtietli day thereafter (Register 85, N. 8).
4. Amendment filed 7-13-2023; operative 8-12-2023 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Sribmitted to OAL for filing and printing prirsuant to Fair Political Practices Commission v. Office ofAdministratisie Law, 3 Civil CO 10924, California Court of Appeal, Third Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rrilemaking requirements and not subject to procedural or substantive review by OAL) (Register 2023, No. 28). 3 44 49
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, California Code of Regulations.)
§ 18438.3. Agents Under Government Code Section 84308. (a) A person is the "agent" of a party to, or a paiticipant in, a pending proceeding involving a license, perinit or other entitlement for rise only if tlie person represents that party or participant for compensation and appears before or otherwise cominunicates with the goveini'nental agency for tlie pu'pose of influencing the pending proceeding. (b) If an individual acting as an agent is also acting as an employee or member of a law, architectural, engineering or consulting fii'm, or a similar entity or corporation, both the entity or corporation and the individual are "agents."
(c) "Communication with the governmental agency for tlie p'iupose of infhiencing the proceeding" does not include:
(l) Drawings or submissions of an architectural, engineering, or similar nature prepared by a person for a client to submit in a proceeding before the agency if:
(A) The work is performed pursuant to the person's profession; and (B) Tlie person does not make any contact with the agency other than contact witli agency staff concerning the process or evaluation of the documents prepared by the official; or (2) Purely technical data or analysis provided to an agency by a person who does not otherwise engage in direct communication for the prirpose of influencing the proceeding.
CREDITS
NOTE: Autliority cited: Sectioi'i831l2, Goverimient Code. Reference: Section 84308, Gover'ent Code.
1 45 50
HISTORY
1. Amendment filed 2-22-85; effective tliirtietli day thereafter (Register 85, No. 8).
2. Editorial correction of Reference cite (Register 95, No. 17).
3. Amendment of subsection (b) filed 4-26-95; operative 4-26-95 pursuant to Goveiument Code section 1 1343.4(d) (Register 95, No. 17).
4. Ainendment filed 5-12-2021; operative 6-11-2021 prirsuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing pirsuant to Fair Political Practices Coinmission l). Office of Administrative Law, 3 Civil CO10924, California Corirt of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2021, No. 20).
5. Amendment filed 7-13-2023; operative 8-12-2023 prirsuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing pursuant to FairPoliticalPractices Commission v. Office of Adininistrative Law, 3 Civil CO10924, California Corirt of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2023, No. 28). 2 46 51
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, Califoinia Code of Regulations.)
§ 18438.4. Participants Under Government Code Section 84308. (a) A person "lobbies in person" when the person communicates directly with an officer of an agency for the pru'pose of intuencing the decision in a proceeding. (b) A person "testifies in person" wlien the person testifies or makes an oral statement before an agency during a proceeding on a license, pei'mit or otlier entitlement for use for the pui'pose of influencing the decision of the agency. (c) A person "otherwise acts to influence" officers of an agency when, for the prirpose of influencing the decision in a proceeding:
(l) The person communicates with an officer or employee of the agency in a maru'ier not otherwise specified in subdivision (a) or (b); or (2) The person's agent lobbies or testifies in person or othei'wise communicates with officers or employees of the agency.
(d) A person does not lobby, testify or otherwise act to influence the officers or employees of an agency by communications made to the public, other than those made in the proceedings before the agency.
CREDITS
NOTE: Autliority cited: Section 83112, Goveinment Code. Reference: Section 84308, Govenu'nent Code.
HISTORY
1. New section filed 1-26-83; effective tliirtietli day thereafter (Register 83, No. 5).
2. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8). 1 47 52
3. Amendment of subsections (a)-(c) filed 5-12-2021; operative 6-11-2021 prirsuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Qfftce qfAdininistratisieLaw, 3 Civil CO10924, Califoniia Corirt of Appeal, Third Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act iulemaking reqriirements and not subject to procedural or substantive review by OAL) (Register 2021, No. 20).
4. Ainendment filed 7-13-2023; operative 8-12-2023 prirsuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing pursuant to Fair Political Practices Commission v. Office qfAdiniiqistratisie Law, 3 Civil CO10924, Califoinia Court of Appeal, Third Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act i'iilemaking reqriirements and not subject to procedural or substantive review by OAL) (Register 2023, No. 28). 2 48 53
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, Califoiania Code of Regulations.)
§ 18438.5. Aggregated Contributions Under Government Code Section 84308. (a) To deteimine whetlier a contribution of more than $250 lias been made by a party or participant during a 12-month period, the following shall be aggregated. (l) All contributions made by the party or paiticipant; (2) All contributions made by an agent of the party or participant during the shorter of:
(A) The previous 12-month period; or
(B) The period beginning on the date tlie party or participant first hired tlie agent as either a paid employee, contractor, or consultant.
(3) All contributions made by an individual, other than an rincompensated officer of a nonprofit organization, or entity reqriired to be aggregated with the party or participant and any agent of the party or participant rinder Section 82015.5. (b) An officer has no reason to know a contribution from an individual or entity is reqriired to be aggregated with a contribution from the party or participant and any agent of the party or participant, and does not violate Section 84308 as a resrilt of the contribution from the individual or entity if, at the time of the potential violation, both the following criteria are met:
(l) The party, paiticipant, or agent has not disclosed the contribution on the record of the proceeding; and
(2) The officer does not otlierwise know facts establisliing tliat the contribution must be aggregated prirsriant to Section 82015.5 and this regulation.
CREDITS
1 49 54
NOTE: Authority cited: Section 83112, Goventment Code. Reference: Sections 82015.5, 84308, Government Code.
HISTORY
1. New section filed 5-26-2006; operative 6-25-2006. Sribmitted to OAL for filing prirsuant to FairPoliticalPractices Commission v. Office ofAdministrative Law, 3 Civil CO10924, California Corirt of Appeal, Third Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 21). For prior history of section 18438.5, see Register 85, No. 8.
2. Editorial correction removing erroneoris HISTORY 2 (Register 2014, No. 39).
3. Amendment filed 9-25-2014; operative 9-25-2014. Submitted to OAL for filing pursuant to FairPoliticalPractices Coinmission v. Office ofAdministrative Law, 3 Civil CO10924, California Corirt of Appeal, Tird Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only sribject to 1974 Administrative Procedure Act rulemaking reqriirements and not sribject to procedural or substantive review by OAL) (Register 2014, No. 39).
4. Amendment of subsection (a) filed 9-14-2020; operative 10-14-2020 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing prirsuant to Fair Political Practices Commission v. Office of Administratisie Law, 3 Civil CO10924, Califoriiia Couit of Appeal, Tliird Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act nilemaking requirements and not subject to procedural or substantive review by OAL) (Register 2020, No. 38).
5. Aniendment of section and NOTE filed 7-13-2023; operative 8-12-2023 prirsuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing prirsuant to Fair 2 50 55
Political Practices Commission si. Office of Administrative Law, 3 Civil CO10924, Califomia Court of Appeal, Tliird Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act iulemaking reqriirements and not subject to procedural or substantive review by OAJ.) (Register 2023, No. 28). 3 51 56
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, Califotania Code of Regulations.)
§ 18438.6. Solicitation, Direction, and Receipt of Contributions Under Government Code Section 84308.
(a) A person "makes" and an officer "accepts" or "receives" a contrituition only if the contribution is for the officer's campaign or controlled coininittee, inclriding, but not limited to:
(1) Campaign committees;
(2) Ballot measure coi'iunittees;
(3) Legal defense funds;
(4) Officeholder Controlled Committees formed pursuant to Section 85316(b) and Regulation 18531.62; and
(5) Recall committees.
(b) An officer "solicits" a contribution only if the officer laiows or has reason to know that the person being solicited for a contribution is a party or agent of a party, or is a participant or agent of a participant, and:
(1) The officer reqriests a contribution for any campaign or committee, including those not controlled by tl'ie officer;
(2) The agent of the officer, with the officer's laiowledge, requests a contribution for tlie officer's campaign or controlled committee; or
(3) The agent of the officer, at the direction of the officer, reqriests a contribution for any other campaign or coinmittee.
(c) An officer "directs" a contribution only if tlie officer solicits a person for a contribution to a campaign or committee and:
1 52 57
(1) Tlie officer knows or has reason to know tl'ie person is a paity, participant, or agent of a party or participant; and
(2) Tlie person makes the contribution to tlie campaign or committee. (d) Notwitlistanding subsections (b) and (c), an officer does not solicit or direct a contribution by making a reqriest in a mass mailing sent to members of the public, to a priblic gatliering, or priblished in a newspaper, on radio or TV, or in any otl'ier mass media.
Aa'i officer does not "solicit" or "direct" a contribution solely because the officer's name is printed with other names on stationery or a letterliead rised to reqriest contributions.
CREDITS
NOTE: Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thiitieth day tl'iereafter (Register 83, No. 5).
2. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
3. Amendment of subsections (b)-(c%l) and (d)-(e) filed 5-12-2021; operative 6-11-2021 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing pursuant to FairPoliticalPractices Commission l). Office ofAdministrative Law, 3 Civil CO10924, Califoi'iiia Court of Appeal, Tird Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking reqriirements and not subject to procedtiral or substantive review by OAL) (Register 2021, No. 20).
4. Ainendment filed 7-13-2023; operative 8-12-2023 prirsuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil CO10924, Califonnia Court of Appeal, Third 2 53 58
Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedriral or substantive review by OAL) (Register 2023, No. 28). 3 54 59
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, Califoi'nia Code of Regulations.)
§ 18438.7. Prohibitions and Disqualification Under Section 84308. (a) Knowledge of a Financial Interest. An officer knows or lias reason to know that a participant has a financial interest in a decision only if the officer has actual laiowledge of the financial interest, or tlie participant reveals facts in written or oral statements during the proceeding before the officer that make the person's financial interest apparent. (1) In determining whether facts revealed by a participant in written or oral statements before the officer have made the participant's financial interest apparent, all relevant facts la'iown by tlie official at tl'ie time of the decision tnust be considered including, but not limited to, the specificity witli wl'iich the participant has described their economic interests, the potential for a material financial effect on those interests as a result of tl'ie decision, and tlie likelihood of such a financial effect.
(2) Notwithstanding subdivision (a)(l), an official aware of any of the following facts has reason to know of a participant's potential financial interest, and may not take part in the proceeding if the participant and the participant's agent have contributed more than two hundred fifty dollars ($250) to the official within the preceding 12 months:
(A) The participant has an interest in property located within 500 feet of the real property at issue in the proceeding;
(B) The participant lias an economic interest in a business entity that may see a significant increase or decrease in customers as a result of the proceeding; or (C) Tlie participant has a business relationship with tlie applicant tliat may result in additional services provided to the applicant.
1 55 60
(3) An officer with reason to know of a paiticipant's financial interest as specified in subdivision (a)(2) may take part in the proceeding if clear and convincing evidence known by tl'ie officer establishes it is not reasonably foreseeable the decision will have material financial effect on tl'ie participant's interests.
(4) An officer does not know or have reason to know of a participant's financial interest in a decision solely as a result of the participant identifying an economic interest located in the general vicinity of a business entity or real properq at issue in the proceeding. (b) Willful or Knowing Receipt of a Contribution. For pui'poses of Section 84308(c), an officer may not make, participate in making, or in any way attempt to rise the officer's official position to influence the decision if the officer willfully or knowingly received a contribution from a party, or participant with a financial interest, in the proceeding. (l) An officer willfully or laiowingly received a contribution if:
(A) The officer has actual knowledge of the contribution; (B) The contribution has been disclosed by the party prirsuant to Section 84308(e) and Regulation 18438.8; or
(C) Tlie officer is aware of facts establishing other reasons to know of the contribution incliiding, but not limited to:
(i) The party, participant, or another person has otherwise infonned the officer that a contribution or contributions liave been made to the officer; (ii) The paity or participant lias previorisly made two or more contributions of more than $250 to the officer;
(iii) Tl'ie officer personally solicited the party or participant for a contribution; or (iv) The officer personally accepted a contribution from the party or participant. 2 56 61
(2) An officer, witliout actual knowledge of a contribution from a party or participant witli a financial interest, does not have reason to know of the contribution based solely on the fact that the contribution was previorisly repoited rinder Chapter 4 or 5 of the Act.
Aa'i officer has reason to know of a contribution by a party previorisly repoited under Chapter 4 or 5 of the Act in a proceeding noticed on an agenda for a priblic meeting before the body or board or, for officers not on a body or board, where the proceeding is otherwise before the officer in the officer's decisionmaking capacity.
(3) As rised above, the phrase "make, participate in making, or in any way attempt to rise the officer's official position to influence the decision" has the same meaning as specified in Regulation 18704.
(c) Retiun of Conti'ibution. For putposes of Section 84308(d)(1), an officer can return a contribution if:
(1) The contribution was received from a party prior to the officer knowing or having reason to know that a proceeding involving the party had commenced. For pirposes of this provision, an officer serving 011 a goveniing body or board knows or has reason to know a proceeding involving the party has commenced if the proceeding has been noticed on tlie agenda for a priblic meeting of the body or board; or
(2) The contribution was received from a participant prior to the officer laiowing or having reason to laiow that tlie participant had a financial interest in tlie proceeding. (d) Taking Part in Proceeding prior to Return of Contribution. An officer serving on a goveniing body or board, otherwise disqrialified ruider Section 84308 from taking part in a proceeding, may take part in tlie proceeding prior to retuniing tlie contribution if all of the following criteria are met:
3 57 62
(1) Tlie decision is made at a public meeting of the governing body or board; (2) The officer has known or sliould have known aborit the contribution and proceeding for fewer tlian 30 days;
(3) After learning of the contribution or proceeding and prior to taking pait in any fiirtlier discussion or decision, the officer discloses the fact of the disqrialifying contribution on the record of the proceeding, as required by Section 84308(c), and confiims that the return will occur within 30 days from the time tl'ie officer la'iew, or should have la'iown, about the contribution and proceeding; and
(4) The contribution is rehirned within that timeframe.
CREDITS
NOTE: Authority cited: Section 83112, Government Code. Reference: Section 84308, Government Code.
HISTORY
1. New section filed 1-26-83; effective thiitieth day thereafter (Register 83, No. 5).
2. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
3. Amendment of subsection (a)(2) filed 5-12-2021; operative 6-11-2021 prirsuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing pursuant to FairPolitical Practices Cominission v. Office ofAdininistratisie Law, 3 Civil CO10924, California Corut of Appeal, Tliird Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2021, No. 20).
4. Repealer and new section filed 7-13-2023; operative 8-12-2023 prirsuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing pursuant to FairPolitica7 4 58 63
Practices Coinmission v. OfJfzce ofAdministrativeLaw, 3 Civil CO10924, California Corut of Appeal, Third Appellate District, nonpublislied decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking reqriirements and not subject to procedtiral or substantive review by OAL) (Register 2023, No. 28).
5. Editorial conection replacing incorrectly filed text of subsection (b)(2) (Register 2023, No. 34).
5 59 64
(Regulations of the Fair Political Practices Commission, Title 2, Division 6, Califori'iia Code of Regulations)
§ 18438.8. Disclosure Under Government Code Section 84308. (a) An officer who is reqriired by sectioi'i 84308(c) to disclose the receipt of a contribution shall disclose any disqualifying contribution the officer knows of or has reason to laiow of, either orally or in writing, on the priblic record at the begiru'iing of a public meeting in a proceeding involving the license, pertnit, or other entitlement for use, if a meeting is held.
However, in tlie circumstance where the officer leari'is of tlie contribution during the priblic meeting, the officer shall make the disclosure on the priblic record prior to contimiing to take part in tlie proceeding. If there is no priblic meeting, wi'itten disclosure shall be entered into the agency's official records. The officer, or an employee of tlie agency on behalf of the officer, shall disclose that tlie officer has received contributions from a party, participant, or agent of a party or participant, greater than $250 within the preceding 12 montl'is and the name(s) of the contributor(s).
(b) Any party to a proceeding pending before an agency shall disclose on the record of the proceeding tlie names of any persons whose contributions are reqriired to be aggregated, if the person has made a contritnition to any officer of the agency. The party shall disclose the amount of the contribution(s) made within the preceding 12 months and the names of the contributors, inctuding contributions made by an iiidividual reqriired to be aggregated with the party or tlie party's agent under Section 82015.5. Tlie party shall make the disclosure:
(l) On tlie date tlie party files tlie application or otlier request initiating tl'ie proceeding. (2) For a contribution made at any stage during tlie proceeding, within 30 days of making the contribution, or tlie date all which the party makes its first appearance before or 1 60 65
communication with tlie agency regarding the proceeding following tlie contribution, whichever is earliest.
(3) If an agent of a party makes an appearance before or cort'ummication with tlie agency subseqrient to tlie party's disclosure, tlie party or agent must disclose the agent's identity on tl'ie date of the agent's first appearance before or coinmtuiication with the agency following the party's disclosrire.
CREDITS
NOTE: Aritliority cited: Section 83112, Govei'iment Code. Reference: Section 84308, Governrnent Code.
HISTORY
1. New section filed 1-26-83; effective thiitieth day thereafter (Register 83, No. 5).
2. Amendment filed 2-22-85; effective thirtieth day thereafter (Register 85, No. 8).
3. Amendment of section and NOTE filed 5-26-2006; operative 6-25-2006. Submitted to OAL for filing prirsuant to Fair Political Practices Commission v. Qffice of Adn'iinistratisie Law, 3 Civil CO10924, Califomia Corirt of Appeal, Tliird Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act taulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2006, No. 21).
4. Amendment filed 7-13-2023; operative 8-12-2023 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing pursuant to Fair Political Practices Cominission v. Office ofAdministrative Law, 3 Civil CO10924, Califonxia Court of Appeal, Tliird Appellate District, nonpriblished decision, April 27, 1992 (FPPC regulations only subject to 1974 2 61 66
Administrative Procedure Act iulemaking reqriirements and not subject to procedtiral or substantive review by OAL) (Register 2023, No. 28). 3 62 67
(Regulations of tlie Fair Political Practices Commission, Title 2, Division 6, Califoi'nia Code of Regulations)
§ 18705. Legally Required Participation.
(a) A public official who has a financial interest in a decision or has received a disqrialifying contribution under Section 84308 may establish that the official is legally reqriired to make or to participate in the making of a governmental decision witliin the meaning of Section 87101 only if tl'iere exists no alternative sorirce of decision consistent with the prirposes and teims of the statiite authorizing the decision.
(b) Wlienever a public official wlio has a financial interest in a decision or has received a disqrialifying contribution under Section 84308 is legally reqriired to make or to participate in making sucli a decision, the official, or an employee of the agency on belialf of the official, shall state the existence of the potential conflict as follows:
(1) The official or employee shall disclose the existence of the conflict and describe with particularity the nature of tl'ie economic interest. "Particularity" as used in tliis regulation shall be satisfied if the official or employee discloses:
(A) whether the conflict involves an investment, business position, interest in real property, or the receipt of income, loan, gift, or contribution; (B) if the interest is an investment, the name of the business entity in which each investment is held; if tl'ie interest is a business position, a general description of the business activity in wliicli the business entity is engaged; if the interest is real property, the address or another indication of the location of the property, unless the property is tlie official's principal or personal residence, in which case tlie official or employee shall disclose this fact. For income, loans or gifts, the official or employee shall disclose the person or entity tliat is the source. For 1 63 68
contributions, the official or employee shall disclose that tlie official has received contributions from a party or paiticipant greater than $250 within the preceding 12 months and the name of the party or participant wlio made the contributions.
(2) Tlie official or employee shall give a suiuinary description of tlie circrimstances rinder whicli tlie official believes the conflict may aiise. (3) Either tlie official or employee shall disclose the legal basis for concluding that there is no alternative sorirce of decision.
(4) The disclosrires reqriired by this regulation shall be made in the following manner:
(A) If the goveinrnental decision is made during an open session of a priblic meeting, tlie disclosures shall be made either orally or in writing before tl'ie decision is made, by either the official or employee. The information contained in tlie disclosrires shall be made part of the official public record either as a part of the mimites of the meeting or as a writing filed with the agency. Tlie wiiting shall be prepared by the official or employee ai'id shall be placed in a public file of tlie agency within 30 days after the meeting; or (B) If the governn'iental decision is made driring a closed session of a public meeting, the disclosures shall be made eitl'ier orally or in writing during tl'ie open session either before the body goes into closed SeSSion or immediately after the closed session. The infoi'ination contained in tlie disclosures shall be made part of the official priblic record eitlier as a pait of the i'ninutes of the meeting or as a writing filed with the agency. The writing shall be prepared by the official or employee and shall be placed in a public file of the agency witliin 30 days after tlie meeting; or (C) If the governinent decision is made or participated in otlier tlian during tlie open or closed session of a public meeting, the disclosures sliall be made in wi-iting and made part of the official public record, either by tlie official or employee. The writing shall be filed with the 2 64 69
official's appointing authority or supervisor and shall be placed in a public file within 30 days after the official makes or participates in the decision. Where tlie official has no appointing authority or supervisor, the disclosure(s) shall be made in writing and filed with the agency official who maintains the records of the agency's statements of economic interests, or other designated office for the maintenance of such disclosrires, witliin 30 days of the making of or participating in the decision.
(c) Tl'iis regulation shall be construed nai'rowly, and shall:
(1) Not be construed to permit an official, wlio is otherwise disqrialified under Section 87100 or Section 84308, to vote to break a tie.
(2) Not be construed to allow a member of any public agency, who is otherwise disqrialified under Section 87100 or Section 84308, to vote if a qriotum can be convened of otl'ier members of the agency who are not disqualified under Section 87100 or Section 84308, wlietlier or not such other members are achially present at tlie time of the disqrialification. (3) Require participation by the smallest number of officials with a conflict that are "legally reqriired" in order for the decision to be made. A random means of selection shall be used to select only the mamber of officials needed. When an official is selected, tlie official is selected for tlie diration of the proceedings in all related matters until the official's paiticipation is no longer legally reqriired, or the need for invokiiig the exception no longer exists. (d) For prirposes of this section, a "quorum" shall constitute the minimum tuimber of members required to conduct business and when tlie vote of a supermajority is required to adopt an item, tlie "qriorum" sliall be that minimum mu'nber of members needed for tl'iat adoption.
COMMENT: Nothing in tlie provisions of sribsection (b)(4%B) is intended to cause an agency or official to reveal the confidences of a closed session contemplated by law. For example, rinder 3 65 70
the Brown Act (Sections 54950 et seq.) a city corincil may enter a closed session to discuss personnel matters and need not priblicly disclose tlie name of tlie employee who is the subject of the meeting. (Section 54957.) Tliis regulation does not require a city council person wlio is legally reqriired to participate in that closed session to disclose tliat employee's name when the corincil member makes the record required by tl'iis regulation.
Credits
NOTE: Authority cited: Section 83112, Goveri'iment Code. Reference: Sections 81002, 81003, 84308 and 87101, Governinent Code.
HISTORY
1. New section filed 1-24-78; effective thirtieth day thereafter (Register 78, No. 4).
2. Amendment filed 6-4-82; effective tl'iirtieth day thereafter (Register 82, No. 23).
3. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Goveriment Code section 11380.2 and title 2, California Code of Regulations, section 1 8312(d) and (e) (Register 98, No. 48).
4. Editorial correction of HISTORY 3 (Register 2000, No. 25).
5. New subsection (b%l) designator, repealer of subsection (c%l), and subsection renun"ibering filed 1-17-2001; operative 2-1-2001. Submitted to OAL for filing pru-suant to Fair Political Practices Con'imission v. Office ofAdministrative Law, 3 Civil CO10924, Califoniia Corirt of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking reqriirements) (Register 2001, No. 3).
6. Ai'nendment filed 10-l 1-2005; operative 11-10-2005 (Register 2005, No. 41 ).
7. Arnendment of section heading and section filed 2-2-2015; operative 3-4-2015 prirsuant to title 2, section 18312(e)(1) of the Califoriiia Code of Regulations. Submitted to OAL for filing and 4 66 71
printing pirsuant to Fair Political Practices Commission v. Office ofAdministratisie Law, 3 Civil CO10924, California Corirt of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Adininistrative Procedure Act i'ulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2015, No. 6).
8. Cliange witliorit regulatory effect renumbering fon'ner section 18705 to section 18702 and renumbering fonner section 18708 to section 18705, including amendment of section, filed 4-27- 2015. Submitted to OAL for filing prirsuant to Fair Political Practices Commission v. Qffice of Administrative Law, 3 Civil CO10924, California Court of Appeal, Tliird Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only sribject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2015, No. 18).
9. Amendment of subsections (a)-(b), (b)(2) and (c)(3) filed 5-12-2021; operative 6-11-2021 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing pursuant to FairPoliticalPractices Commission v. Ofjfice ofAdministrativeLaw, 3 Civil CO10924, Califoriiia Corirt of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act i'iilemaking requirements and not subject to procedural or substantive review by OAL) (Register 2021, No. 20).
10. Amendment of section and NOTE filed 7-13-2023; operative 8-12-2023 prirsuant to Cal.
Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing and printing prirsuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil CO10924, Califoniia Corirt of Appeal, Tliird Appellate District, nonpriblished decision, April 27, 1992 (FPPC 5 67 72
regulations only subject to 1974 Administrative Procedure Act iulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2023, No. 28). 6 68 73
ATT ACHMENT C
LEAGUE OF
CALIFORNIA
CITIES
Pay to Play No More? Levine Act
(SB 1439)
Friday, Sept. 22, 2023
Robert Fabela, City Attorney, Anaheim
Amanda B. Freeman, Senior Deputy City Attorney, Fresno Rebecca L. Moon, Senior ASsistant City Attorney, Sunnyvale
DISCLAIMER
This publication is provided for general information only ond is not offered or intended as /ego/ adv/ce. Readers should seek the advice of an attorney when confronted with legal issues and attorneys shou/d perform on independent evaluation of fhe issues ro/sed in fhese materials. The Leogue of California Cities does not review these maferials for @ontent ond has no view one way or another on the analysis conWned in the mafer/a/s.
Copyright @ 2023, League of California Cities. All rights reserved.
This i:iaper, or parts thereof, may not be reproduced in any form without express written permission from the League or CaliforniaCities. Forfurtherinformo+ion,con+actfheLeagueofCaliforniaCi+iesat1400KStree+,4+hFloor,Socrarnento, CA 95814. Telephone: (916) 658-8200.
League of California Cities City Attorneys Programing, 2023 Annual Conference and Expo SAFE Credit Union Convention Center, Sacramento, CA
eg 74
Pay to Play No More? The Levine Act (SB 1439)
Amanda Freeman, Senior Deputy City Attorney, City of Fresno Rebecca Moon, Senior Assistant City Attorney, Sunnyvale Robert Fabela, City Attorney, Anaheim
League of California Cities Annual Conference, September 2023 2 70 75
In 1982, the Los Angeles Times reported that several California Coastal Commissioners had received large campaign donations from persons with applications pending before them." The Times' investigation revealed a pattern of questionable - if not shocking - conduct that included directly contacting applicants with pending projects to request donations for political campaigns, accepting donations From attorneys and consultants who regularly represented applicants, and soliciting donations from successful applicants after voting to approve their projects. This scandal led to the enactment of the Levine Act (AB 1040), which added Government Code 84308 to the Political Reform Act of 1974. The purpose of the Levine Act is to prevent officials from using their authority as government officials to demand campaign contributions from applicants, a practice known as "pay to play."
As originally enacted, the Levine Act's restrictions only applied to members of appointed boards and commissions, excluding city councilmembers and county supervisors in their elected roles, as opposed to any appointed roles they may have had (such as on LAFCO). This changed on January "1, 2023, as a result of SB 1439, which expanded the reach of the Levine Act to local elected officials such as city councilmembers, special district board members, and school board members even when acting in their elected roles.
State Senator Steve Glazer (D-Contra Costa County) introduced SB 1439 with the support of the government watchdog organization California Common Cause and other advocates of public accountability. Supporters of the legislation cited recent "pay to play" scandals in cities such as Los Angeles2 and Huntington Park.3 Under the Levine Act as amended by SB 1439:
@ Officers of an agency are prohibited from accepting, soliciting, or directing campaign contributions over $250 from any party to, or participant in, a proceeding involving a license, permit, contract, or entitlement for use ("proceeding") before their agency.4 This includes contributions from parties and their agents, and from those with a financial interest in the matter (and their agents) who merely participate in a proceeding, as by speaking at a Council meeting. The prohibition applies while the proceeding is pending and for 12 months following a final decision, when the officer knows or has reason to know the party has a financial interest in the proceeding (such as owning a home nearby). (Gov. Code, § 84308, subd. (b).) This prohibition impacts fundraising for a year after the decision. 1 Coastal Commission Seats Used as Fundraising Base, Los Angeles Times (March 12, 1980), p, 4, https://www.newspapers.com/imaqe/385326358 jpaywall].
2 Zahniser, Downtown L.A. developer donated $50,000 before pivotal vote involving high-rise project, records show, Los Angeles Times (Feb. 7, 2019), at https://www.latimes.com/local/lanow/Ia-me-developer- donations-onni-20 1 90207-story.html jas of Aug. 15, 2023]. 3 Cabrera and Patel, Hefty Contracts for Campaign Contributors in Huntington Park, KCET (July 26, 2021 ), at https://www.kcet.orq/news-community/hefty-contracts-for-campaign-contributors-in-huntington-park jas of Aug.15, 2023].
4 "License, permit, or other entitlement for use," includes all business, professional, trade, and land use licenses and permits and all other entitlements for use, and all entitlements for land use, all contracts (other than competitively bid, labor, or personal employment contracts), and all franchises. (Gov. Code § 84308(a).)
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* An officer who received a campaign contribution of more than $250 from a party or participant, or their agents, in the past 12 months may be disqualified From participating in that proceeding. The disqualification depends on whether the officer "knowingly and willfully" accepted a contribution from a party, or if they accepted a contribution knowing the donor was a participant with a financial interest in the decision. (Gov. Code § 84308(c).) Additionally, an officer who received a contribution greater than $250 in the preceding 12 months from a party or participant to the proceeding must disclose that fact on the record. (Gov. Code, F3 84308, subd. (c).)
* Parties to and participants in a proceeding must disclose on the record if they made contributions over $250 within the prior 12 months to any officer of the agency and are prohibited from making contributions to any officer of the agency while the proceeding is pending and for 12 months after the date a final decision is rendered. (Gov. Code § 84308, subd. (e).)
Who is Subject to SB 1439? State and local agency "officers," including any elected or appointed officers, alternates, chief executive officers, and candidates for elective office.
This includes members of city councils, county and special district boards, and appointed boards. The law does not apply to courts, the judicial branch, or the governor's cabinet members. (Cal. Code Regs., tit. 2, § 18438.1.)
Curinq a violation. If an officer receives a contribution that will otherwise require disqualification under Section 84308, they may participate if they return the contribution within 30 days from the time they know or should know about (1 ) the contribution and (2) the proceeding. (Gov. Code § 84308, subd. (d)(l ).) Additionally, an officer who accepts, solicits, or directs a contribution of more than $250 during the 12 months affer the date a final decision may cure the violation by returning the contribution or the portion exceeding $250 within 14 days, but only if they did not knowingly and willfully accept, solicit, or direct the prohibited contribution, and the officer's controlled committee (or the officer if none) must maintain records of the cure. (Gov. Code § 84308, subd. (d)(2).) FPPC Requlations. The California Fair Political Practices Commission (FPPC) revised the regulations applicable to Section 84308, effective August 12, 2023. Key clarifying provisions include:
* Dates. The amendments to the Levine Act do not apply to proceedings participated in or contributions made or accepted, solicited, or directed by an officer prior to January 1, 2023, if the officer was not already subject to the Levine Act. (Cal. Code Regs., tit. 2, § 18438.) This regulation codifies the FPPC's Kendrick opinion (No. 0-22-002, December 22, 2022). As noted below, Senator Glazer objects to this conclusion and has asked the Attorney General to opine otherwise, but that may not occur by the end of 2023, when the point should be moot. * "Proceedings." A "proceeding" includes any proceeding to grant, deny, revoke, restrict, or modify a license, permit or other entitlement for use that does not solely involve purely ministerial decisions, and is applied for by the party; formally or informally requested by the party; or involves a franchise or contract other than 4 72 77
competitively bid, labor, and personal employment contracts. (Cal. Code Regs., tit. 2, § 18348.2.)
* "Pending" proceedings. For officers, a decision is "pending" once it is before the officerfor consideration, such as an item placed on the agenda of a public meeting, or when it is reasonably foreseeable the decision will come before the officer and the officer knows or has reason to know the decision is within the jurisdiction of the agency (as when an office has notice that a formal land use application has been submitted to the agency which must come before his or her board). For a party or participant, a proceeding is pending when it is before the jurisdiction or the agency for its decision, such as when an application is filed. (Cal. Code Regs., tit. 2, § 18348.2.)
* "Officer of the agency." An "officer" is an individual who: 1) may make, participate in making, or attempt to influence a decision in the proceeding or who exercises authority over officers who may do so, and: 2) serves in an elected position (including those appointed to a vacancy); is an appointed member of a board or commission; is a candidate for elected office or was a candidate for office in the 12 months before the proceeding; or is the chief executive of a county, city, or district. (Cal. Code Regs., tit. 2, § 18438.1(d).) This means a candidate who lost an election remains subject to the Levine Act prohibitions for a year if they have decisionmaking authority over a proceeding (like a Planning Commissioner who continues to serve after an unsuccessful run for Council). * "Agent" of a party or participant. A person is the agent of a party to, or a participant in, a pending proceeding only if the person represents the party or participant for compensation and appears before or otherwise communicates with the agency for the purpose of influencing the pending proceeding. (Cal. Code Regs., tit. 2, § 18348.3.)
When an officer "knows or has reason to know" a participant has a financial interest. An officer knows or has reason to know of a participant's financial interest in a decision only if the officer has actual knowledge of the financial interest, or theparticipant reveals facts in written or oral statements during the proceeding before the officer that make the person's financial interest apparent.
All relevant facts known by the officer at the time of the proceeding should be considered.
The regulation creates three rebuttable presumptions. An officer is deemed to know of a participant's potential financial interest when they are aware a participant has: an interest in real property within 500' of the project; an economic interest in a business entity that may see a significant increase or decrease in customers as a result of the proceeding; or a business relationship with the applicant that may result in additional services provided to the applicant. (Cal. Code Regs., tit. 2, § 18438.7(a)(2).) The above notwithstanding, an officerdoes not knowor have reason to know of a participant's financial interest in a decision solely as a result of the participant identifying an economic interest located in the general vicinity of 5 73 78
a business entity or real property at issue in the proceeding. (Cal. Code Regs., tit. 2, § 18438.7(a)(4).)
* Accepting, receiving, soliciting, and directing contributions. An officer "accepts" or "receives" a contribution when the contribution is made to the officer's own campaign or any committee controlled by the officer. An officer "solicits" or "directs" a contribution by requesting contributions to any other campaign or controlled committee, not just their own. Note that a "controlled committee" can include not just campaign committees but also ballot measure committees, legal defense funds, recall committees, and officeholder controlled committees. The regulation includes exceptions for fundraising requests through mass mailings or mass media, as well as speaking at public events. Also, an officer does not solicit or direct a contribution solely because the officer's name is printed with other names on stationery or letterhead used to request contributions. (Cal. Code Regs., tit. 2, § 18438.6.)
* Aggregating contributions. All contributions made by a party or participant must be aggregated with contributions made by their agents during the prior 12 months or from the date the agent was hired as a paid employee, contractor, or consultant, whichever is shorter. For example, if Party A contributes $75 in April 2023, and Party A's agent contributes $176 in June 2023, the recipient of the $251 campaign contribution would be limited by the Levine Act until June 2024. The party or participant's contributions must also be aggregated with contributions by individuals (other than an uncompensated officer of a non-profit organization), or entities required to be aggregated with the party, participant, or agent under Government Code § 82015.5. (Cal. Code Regs., tit. 2, § 18438.5.) * Disclosures. An officer must disclose receipt of a disqualifying contribution on the record at the beginning of the public meeting involving the proceeding. If an official learns of a contribution during a proceeding, they must disclose the contribution on the record before participating further in the proceeding. (2 CCR § 18438.8.) The official may continue to participate in the proceeding if the official has known or should have known about the contribution and proceeding for fewer than 30 days, discloses the disqualifying contribution on the record of the public meeting, confirms the contribution will be returned within 30 days of when the official knew or should have known about the contribution, and the contribution is returned within that time. (Cal. Code Regs., tit. 2, §§ 18438.7, 18438.8.) * Willful or knowing receipt of a contribution. An officer who "willfully or knowingly received" a contribution from a party or participant with a financial interest may not participate in or influence the decision. Willful or knowing receipt includes when the officer has actual knowledge or the contribution, when the contribution is disclosed by the party or participant at the proceeding (as required by Government Code section 84308(e)), or when the officer is aware of other facts establishing reason to know of the contribution (such as being informed by another person a contribution has been made, a history of two or more prior donations over $250 from the party or participant, the officer's personal solicitation of a contribution from the party, etc.). However, an officer without actual knowledge of 6 74 79
the contribution from a party or participant does not have reason to know of the contribution based solely on the fact that the contribution was reported as required by law. (Cal. Code Regs., tit. 2, §18438.7.)
* Legally required participation. Officials who would otherwise be disqualified from engaging in a proceeding can participate if their participation is legally required, in the same manner as when a conflict exists due to a financial interest. (Cal. Code Regs., tit. 2, § 18703.) Also, see the FPPC's Granda informal advice letter addressing how legally required participation applies to strong mayors, discussed further below.
FPPC Letters. Since 1982, the FPPC has issued over 200 formal and informal advice letters related to the Levine Act. The database of letters on the FPPC website is an important starting point for research."' Although the law has been expanded to cover local elected officials, the fundamental requirements and prohibitions have not changed. In addition, the FPPC has fielded many questions in 2023 from elected officials. Recent letters include the following:
* Contracts are proceedings, regardless of value. Contracts are considered entitlement for use proceedings for purposes of Section 84308 regardless of value.
Small contracts, including purchase orders, are subject to Section 84308's provisions. Charter school petitions, which are contracts, are subject to Section 84308. Labor contracts, such as collectively bargained project labor agreements, are expressly exempted from Section 84308. (FPPC Valesquez informal advice letter, No. 1-23-065, May 9, 2023; see also Cal. Code Regs., tit. 2, § I8348.2(a)(3)(B).)
* Strong mayors and legally required participation. The legally required participation exception likely applies to strong mayors exercising approval or veto powers. Examining Affordable Hous. Alliance v. Feinstein (1986)179 Cal.App.3d 484 and its progeny, the Granda letter clarified that San Diego's strong mayor may participate in a proceeding despite receiving a disqualifying contribution in the preceding 12 months because of his charter-granted veto and approval powers.
However, the mayor may not solicit, receive, or direct contributions exceeding $250 while a proceeding is pending or for a year after, and is required to disclose the contribution. (FFPC Granda informal advice letter, No. 1-23-102, July 12, 2023.) * Applicability to candidates. The FPPC applied Regulation 18438.1 to clarify that a candidate for elected office is not an "officer of the agency" subject to the restrictions of Section 84308 unless they have decisionmaking authority with respect to a proceeding in the Titus formal advice letter (No. A-23-'103, published June 27, 2023).
Outstanding questions. While the FPPC's amended regulations provide some clarity, ambiguities remain. For example, what is an "informal request" triggering a proceeding? 5 https://www.fppc.ca.gov/advice/advice-opinion-search.html 7 75 80
Does a right to appeal a lower level decision to City Council (e.g., from Planning Commission) make it "reasonably foreseeable" that the decision will come before the City Council? Would an individual who complains about a project's impact on home values in a community with high rates of home ownership mean an officer "knows or has reason to know" that individual is a participant with a financial interest in a proceeding? If your agency encounters such questions, cities may benefit from a request for formal advice from the FPPC.
Senator Glazer, the author of SB 1439, also requested an opinion from the Attorney General addressing whether the disclosure and recusal provisions of SB 1439 apply to contributions made before January '1, 2023. As of the drafting of this paper the Attorney General has not issued an opinion. Since Senator Glazer's request, the revised FPPC regulations and its formal Kendrick opinion both expressly addressed the question in the negative.
Leqal challenqe to SB 1439. The Family Business Ass'n v. FPPC (Sac. Superior Court Case #34-2023-00335169) challenge to SB 1439 on constitutional grounds was unsuccessful; the Sacramento Superior Court granted a motion for judgment on the pleadings rejecting all of the plaintiff's arguments on May 25, 2023. Appeal was due by August 16, 2023, and no appeal is on the Court of Appeal's or trial court's docket as of late August when this paper is written.
Practice ideas.
@ Include a field in staff report templates indicating whether Section 84308 applies (see City of Anaheim staff reports as an examp(e).
* Include a reminder on meeting agendas about applicability of Section 84308 or add a standing agenda item for officers' and participants' disclosures. * Require applicant to disclose contributions when they submit their applications - e.g., include a disclosure section on templates to list campaign contribution over $250 to a decisionmaker in the prior twelve months. @ Include a provision in forms of contracts to alert contracting parties to this statute.
As agencies implement SB 1439, we encourage proactive training for officers to help them understand the expanded Levine Act. The Institute for Local Government recently held a webinar on the topic; the video presentation is available here: https://www.ca- ilq.org/post/lunch-and-learn-californias-new-campaiqn-contribution-requlations-what- local-qovernments-need .
8 76 81
ATT ACHMENT D
CITY OF
LONGBEACH DRAFT
LEVINE ACT DISCLOSURE ST ATEMENT
California Government Code Section 84308, commonly referred to as the "Levine Act," prohibits any Long Beach City Councilmember, the Mayor, and Commissioner ("City Officer") from participating in any action related to a proceeding if they receive any political contributions totaling more than $250 within the previous twelve months, while a proceeding is pending, and for 12 months following the date a final decision in a proceeding concerning a license, permit, entitlement, franchise or, contract (collectively "license, permit, or contract") has been made, from the person or company awarded the said license or contract. The Levine Act also requires a City Officer that has received such a contribution to disclose the contribution on the record of the proceeding.
City Officers are listed at the following sites:
* The Mayor and Councilmembers - https://www.longbeach.qov/officials/ @ Harbor Commissioners - https://polb.com/commission
* Water Commissioners - https://Ibwater.orq/about-us/current-water-commissioners/ * Planning Commissioners - https://www.lonqbeach.qov/mayor/action/commissions/ * Parks and Recreation Commissioners - https://www.longbeach.qov/mayor/action/commissions/ Board of Examiners, Appeals, and Condemnation - https://www.longbeach.gov/mayor/action/commissions/ * Cultural Heritage Commission - https://www.lonqbeach.qov/mayor/action/commissions/ * Long Beach Community Investment Company - https://www.lonqbeach.gov/Ibds/hn/lbcic/ Proposers are responsible for accessing these links to review the names prior to answering the following questions.
1. Haveyouoryourcompany,oranyagentonbehalfofyouoryourcompany,madeanypolitical contributions of more than $250 to any City Officer in the 12 months preceding the date of the submission of your proposals or the anticipated date of any City Council, Board, or Commission action related to this license, permit, or contract? @YES @NO
IF yes, please identify the City Officer(s):
COLB Levine Act Statement Page 1 of 2
77 82
2. Do you or your company, or any agency on behalf of you or your company, anticipate or plan to make any political contribution of more than $250 to any City Officer in the 12 months following any City Council, Board, or Commission action related to this license, permit, or contract?
gYES gNO
If yes, please identify the City Officer(s):
Answering yes to either of the two questions above does not preclude the City of Long Beach from awarding a license, permit, or contract to your firm or any taking any subsequent action related to the said license, permit, or contract. It does, however, preclude the identified City Officers from participating in any actions related to this license, permit, or contract.
Date Signature of authorized individual
Type or write name of authorized individual
Type or write name of company
COLB Levine Act Statement Page 2 of 2
78 83
DRAFT
Attachment G: California Levine Act Statement
California Levine Act Statement
California Government Code Section 84308, commonly referred to as the "Levine Act," prohibits any City/County Association of Governments of San Mateo County (C/CAG) Board Member from participating in any action related to a contract if he or she receives any political contributions totaling more than $250 within the previous twelve months, and for three months following the date a Tina! decision concerning the contract has been made, from the person or company awarded the contract. The Levine Act also requires a member of the C/CAG Board who has received such a contribution to disclose the contribution on the record of the proceeding.
Alist of C/CAG Board members can be found at https://ccaq.ca.qov/committees/board- of-directors-2/. Proposers are responsible for accessing this link to review the names prior to answering the following questions.
1. Have you or your company, or any agent on behalf of you or your company, made any political contributions of more than $250 to any C/CAG Board Member in the 12 months preceding the date of the submission of your proposals or the anticipated date of any Board action related to this contract?
YES NO
If yes, please identify the Board Member(s):
2. Do you or your company, or any agency on behalf of you or your company, anticipate or plan to make any political contribution of more than $250 to any C/CAG Board Member in the three months following any Board action related to this contract?
YES NO
If yes, please identify the Board Member(s):
Answering yes to either or the two questions above does not preclude the C/CAG from awarding a contract to your firm or any taking any subsequent action related to the contract. It does, however, preclude the identified Board Member(s) from participating in any actions related to this contract.
Date Signature of authorized individual
Type or write name of authorized individual
Type or write name of company
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DocuSign Envelope ID: 01 E891 F9-B7D5-4B94-AF75-A4A31 3ABO353 DRAFT
LEVINE ACT DISCLOSURE FORM
Completed form submited to the County of Santa Clara is a pgiblic record.
When This Form Must Be Completed
This form tnust be completed (1) by tlie party to a contract with the County of Santa Clara ("County") (or that party's agent) at the time the party submits a response to a Reqriest for Proposals or other competitive solicitation, enters into contract negotiations with the County, or executes a contract with the County, whichever is earliest, or (2) by a party to a license, permit, or other entitlement proceeding before the Corinty at the time the party (or their agent) submits the license, permit, or entitlement application to the County. The requirement to submit this form applies where a party (or that party's agent) has contributed more than $250 to a member of the Board of Supervisors, or to the Assessor, District Attorney, or Sheriff (each an "Other Elected County Officer"), within the 12 months prior to the proceeding.
The party (or their agent) must submit a supplemental form if they make any new reportable contributions while the contract, license, permit, or other entitIement is being considered.
The party (or their agent) must also use this form if they need to correct any previously submitted form.
Background on the Levine Act Disclosure Requirement for Parties to a Proceeding California Government Code section 84308 ("Levine Act") requires a party to a proceeding involving a license, permit, or other entitlement, inchiding all contracts other than competitively bid, labor, or personal employment contracts, to disclose any contribution of more than $250 that the party (or their agent) has made to a member of the Board of Supervisors or any Other Elected County Officer within the prior 12 months. The Levine Act also prohibits, during the proceeding and for 12 months following a final decision, a party (or their agent) from making a contribution of more than $250 to any member of the Board of Supervisors or to any Other Elected County Officer who may participate in the proceeding.
Fair Political Practices Commission regulations also require certain contributions to be combined when determining whether the $250 threshold has been reached, including those made by a party (or their agent) and those made by cextain other individuals or entities (see California Code of Regulations title 2, section 18438.5, effective July 20, 2023, for more detail).
Parties are solely responsible for completing this foim accurately. If you are uncertain about whether you are required to report or combine a contribution, please consult with yorir attomey.
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80 85
[)ocuSign Envelope ID: 01E891F9-B7D5-4B94-AF75-A4A313ABO353
COUNTY OF SANTA CLARA LEVINE ACT DISCLOSURE FORM DATE FORM COMPLETED:
TITtE OR SHORT DESCRIPTION OF PROCEEDING:
DATE OF BOARD OF SUPERVISORS MEETING WHEN PROCEEDING WILL BE CONSIDERED (if la'iown and if applicalrle):
IS THIS A SUPPLEMENT TO A PREVIOUSLY SUBMITTED LEV ACT DISCLOSURE FORM FOR THE PROCEEDING? YES NO
DATE OF PREVIOUSLY S{JBMITTED FORM:
IS THIS A CORRECTION TO A PREVIOUSLY SUBMITTED LEVINE ACT DISCLOSURE FORM FOR THE PROCEEDING? YES NO
DATE OF PREVIOUSLY S{JBMITTED FORM:
EXPLANATION OF CORRECTION:
CONTRIBUTIONS
Name of Board Member or Other Elected County Officer Receiving Contribution:
Submit separate forms for any contributions inade to other Board Members or Other Elected Cogmty Officers.
Only one Board Member or Other Elected County Officer may be listed per form, Complete the table below with all contributions made by the party, their agent, and any person or entity with whom contributions must be aggregated. If you have more than five contributions to repoit, please submit a supplemental fortn.
Name of Party Name of Person or Entity Making
Contribution
Date of
Contribution
Amount of
Contribution
1. 2.
3. 4.
5. Total Contributions 0.00
By signing below, I certify under penalty of perjuiy that the statements made herein are true and correct and that the paity or agent I represent will comply with California Governrnent Code section 84308.
Date Signature of Party or Agent Representative
Name of Party or Agent Representative
81 86
Levine Act
City of South Gate Contract Award Process
m'4'Todd II s% ADo
87 Levine Act Disdosure
o California Government Code (§ 84308, commonly referred to as the "Levine Act," precludes an Officer of a local government agency from participating in the award of a contract if he or she receives any political contributions totaling more than $250 in the 12 months preceding the pendency of the contract award, and for three months following the final decision, from the person or company awarded the contract.
88 Slide 2
RSO Put the highlighted text on a separate slide. Need a visual that has the donation in the center like the wheel of a hub. Then have a spoke which identifies (1) Officer, (2) Officer on behalf of any other officer, (3) a candidate for office, or on (4) behalf of any committee. So 4 spokes like below. Just make it prettier.
I
Salinas, Rail F., 2023-09-30TOO'08:17.751
MBO O I gave you two slide options for the visual. The second slide allows the visual to be larger without the copy, but maybe you'll want the visual along with the copy.
Munholland, Bobbi, 2023-09-30T12:23:01.478
RSI Let's have slides that include definitions: One slide per definition:
Party
Participant
Agency
Officer
License
Contribution
Salinas, Raul F, 2023-09-30TOO'11'37.350
RSI 0 See email dated 9/23 from me.
Salinas, Raul F., 2023-09-30TOO:12:12 208
RSI 1 Let's have another slide that has as a heading: Disclosure Obligations by the Party Ming the Contribution In this slide lets copy Government Code 84308 (d) as follows:
"A party to a proceeding before an agency involving a license, permit or other entitlement for use, shall disclose on the record of the proceeding" any contribution made of an amount more than $250 within last 12 months
No contributions can be made within 3 months after the decision.
Salinas, Raal F., 2023-09-30TOO'16'35.784
MB1 2 New slides added. The PDF also included License, permit or other entitlement for use, but it wasn't in your 89 Slide 2 (Continued)
list above. I added it, but I can delete it, too.
I added new slide for the code with heading, Disclosure Obligations by the Party Ming the Contribution. "the" contribution didn't make sense to me so I deleted it. Want me to add it back? Munholland, Bobbi, 2023-09-30T12'26:43.073
90 Levine Act Disdosure
a This prohibition applies to
contributions to the Officer, or
received by the Officer on behalf of
any other Officer, or on behalf of
any candidate for office or on behalf
of an mmittee. The Levine ActY CO
also requires disclosure of such
contributions by a party to be
awarded a specified contract.
Officer
91 Leyine Act
Disclosure
Officer
92 Party
- Any person who files an application for, or is the subject of, a proceeding involving a license, permit, or other entitlement for use. 93 Participant
a 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, as described in Article 1 (commencing with Section 87100) of Chapter 7. A person actively supports or opposes a particular decision in a proceeding if he or she 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.
94 Agency
a An agency as defined in Section 82003 except that it does not include the courts or any agency in the judicial branch of government, local governmental agencies whose members are directly elected by the voters, the Legislature, the Board of Equalization, or constitutional officers.
However, this section applies to any person who is a member of an exempted agency but is acting as a voting member of another agency. 95 Officer
- Any elected or appointed officer of an agency, any alternate to an elected or appointed officer of an agency, and any candidate for elective office in an agencys
96 License Permit or Other Entitlement for Use
a An business, professional, trade and land use licenses and permits and all other entitlements for use, including all entitlements for land use, an contracts (other than competitively bid, labor, or personal employment contracts), and all franchises.
97 Slide 9
MBO Is this slide needed?
Munholland, Bobbi, 2023-09-30T12:28'42 817
98 Contribution
a Includes contributions to candidates and committees in federal, state, or local elections.
99 Disclosure Obligations by the Party Ming Contribution Government Code 84308 (d) as foLlows:
o "A party to a proceeding before an agency involving a license, permit or other entitlement for use, shan disclose on the tecord of the proceeding" any contribution made of an amount more than $250 within last 12 months.
- No contributions can be made within 3 months after the decision. 100
Disclosure Statement #1
a Have you or your company, or any agent on behalf 6f you or your company, made any political contributions of more than $250 to the City of South Gate Mayor, Vice Mayor or any Council Member in the 12 months preceding the date of the issuance of this request for proposal or request for qualifications?
101
Disclosure Statement #2
- Do you or your company, or any agency on behalf of you or your company, anticipate or plan to make any political contributions of more than $250 to the City of South Gate Mayor, Vice Mayor or any Council Member in the three months foLlowing the award of the contract?
a If yes, please identify the South Gate City Council Member(s):
102
Result
- Answering yes to either of the two questions does not preclude South Gate City Council from awarding a contract to your firm. It does, however, preclude the identified Council Member(s) from participating in the contract award process for this contract.
103
Slide 14
MBO Would you like a slide that signifies end of presentation? Munholland, Bobbi, 2023-09-30T12'3246765
104