The Levine Act
(Gov. Code Sec. 84308)
Rebecca Moon, OCA
City Council, Feb. 6, 2024
2City of Sunnyvale – The Levine Act – Feb. 6, 2024
What is the Levine Act?
Overview
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The Calif. Coastal Commission: 1980
• Always voted in favor of their contributors’
projects;
• Contacted applicants after the hearing to
request more donations.
Los Angeles Times, Mar. 12, 1980
• Three Coastal Commissioners regularly contacted
applicants who had pending projects to request campaign donations for themselves and other politicians’ campaigns; • Took contributions from attorneys and consultants who represented applicants;
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The Levine Act (1982)
Gov. Code Sec. 84308
• Aimed at “pay to play” corruption
↪ i.e., trading campaign contributions for votes
• Originally applied only to appointed board & comm.
members, including elected officials when serving on
another board (e.g. LAFCO).
• SB 1439 (2022, Glazer)
• Closed the loophole for local elected officials
• Statute effective Jan. 1, 2023
• New FPPC regs. 18438-18438.8
• FPPC webpage: https://www.fppc.ca.gov/learn/pay-
to-play-limits-and-prohibitions.html
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Levine Act in a Nutshell
• Fundraising ban
While a proceeding is “pending“ & for 12 mos. after final decision, cannot accept, solicit, or direct a contribution over $250 from a party, participant with a financial
interest, or their agents.
• Disclosure & recusal obligations
Officer must disclose contributions over $250 received in previous 12 mos. from a party, participant, or their agent. Must recuse unless cure is available.
For Officials:
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Levine Act in a Nutshell
• Contribution ban
Parties, participants, & their agents cannot contribute more than $250 during the proceeding and for 12 mos.
after final decision.
• Disclosure obligations
Party/agent must disclose contributions over $250 on the record of the proceeding.
Participants have no duty to disclose.
For Parties and Participants:
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Many words in the Levine Act have special meaning
Definition of Terms
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Who is an “Officer” in the Levine Act?
Officer = An individual who may make, participate in
making, or attempt to influence a decision or exercises authority or budgetary control over those who do.
Specifically:
Elected officials (except judges & the Calif. Leg.)
Members of appointed boards and commissions
The chief executive of an agency
Any official with decision-making authority who
was a candidate for elected office in 12 months
prior to the decision.
Gov. Code 84308(a)(4), FPPC Reg. 18438.1
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Who is a “Party” or “Participant”?
Party = a person who files an application or is subject to a proceeding.
Participant:
o A person with a financial interest in the decision, and o Actively supports or opposes the decision by:
Lobbying (direct communication for purposes of
influencing)
Testimony or public comment during a proceeding
Other communications to the agency for purpose
of influencing a proceeding.
Gov. Code 84308(a)
FPPC Reg. 18438.4
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Who is an “Agent”?
Agent:
A person who for compensation represents a party or
participant in a pending proceeding and
Appears before or otherwise communicates with the
agency for purposes of influencing the pending
proceeding.
• Agents include consultants, law firms, architects,
engineers, and other entities who work for parties or
participants:
Both individual and employer are considered “agents”
Limited exceptions for submittal of architectural,
engineering, purely technical data or analysis.
FPPC Regs. 18438.3, 18438.4
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What is a “Proceeding”?
Proceeding = 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:
o Is applied for, or formally or informally requested by the party
- or -
o Is a franchise or contract
Except for competitively bid, labor, and personal
employment contracts (as defined in the reg).
Gov. Code 84308(a)(5)
FPPC Reg. 18438.2(a)
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What is a “Pending” Proceeding?
Pending =
The decision is before the officer for their
consideration including any item placed on the
agenda at a public meeting;
- or -
The officer knows or has reason to know that a
“proceeding” is “before the agency” for decision or
action and it is
reasonably foreseeable it will come
before the officer in their decision-making capacity.
FPPC Reg. 18438.2(b)
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What Contributions Are Covered?
Contributions over $250 that an officer accepts, solicits, or directs to:
The officer’s own campaign or controlled committee,
OR, to another candidate’s campaign or controlled
committee.
• Accepting, soliciting, directing
Accept = contribution is made to the campaign or
controlled committee
Solicit = asking for a contribution
Direct = contribution is asked for and subsequently made FPPC Regs. 18438.5, 18438.6
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What is a “Controlled Committee”?
Controlled Committees = controlled directly or indirectly by the candidate or officeholder and may include:
Campaign committees
Ballot measure committees
Legal defense funds
Officeholder controlled committees
Recall committees
“Indirect” control means that the candidate, officeholder, or their agent has significant influence on the
committee’s actions.
FPPC Reg. 18438.6
Gov. Code 82016
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Aggregation of Contributions
• Party/participant’s contributions will be aggregated with contributions by their agent in previous 12 mos. or from the date agent was hired as a paid employee, contractor or consultant (whichever is shorter)
• Other aggregation rules also apply (Gov. Code 82015.5) Individual + entity they direct and control
Two or more entities directed and controlled by a majority of the same persons
Majority owner of an entity and all other entities that are majority owned by that person unless the entities make
independent decisions
FPPC Regs. 18438.5, 18438.6
FPPC Reg. 18428
See FPPC Campaign Disclosure Manual
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What is required? What are the options?
Disclosure, Recusal, and Cure
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When Is Disclosure & Recusal Required?
• Prior to rendering decision, an officer must disclose the receipt of any contribution over $250 from a party,
participant, or agent in the previous 12 months.
• Disclosure must be made on the record of proceeding.
• Recusal is required if the officer:
“Willfully or knowingly” received the contribution;
Received a contribution from a participant or their
agent and had “reason to know” of the participant’s
financial interest.
Gov. Code 84308(c)
FPPC Regs. 18438.7, 18438.8
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What is “Willful and Knowing” Receipt of a
Contribution?
• Actual knowledge of the contribution; or
• Party disclosed the contribution; or
• Other facts including but not limited to:
The donor or another person informed the officer of the contribution;
The donor previously made 2 or more contributions >$250; The officer personally solicited the contribution;
The officer personally accepted the contribution.
Knowledge will not be imputed solely from required
campaign disclosures.
FPPC Reg. 18438.7(b)
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What is “Reason to Know” of a Participant’s
Financial Interests?
• Actual knowledge of the participant’s financial interest, or • Participant reveals facts that make their financial interest “apparent”
• Presumptions:
Real property within 500’ of a project
Business entity may see significant increase/decrease in customers
Business relationship with applicant may result in more services
Rebuttable with clear and convincing evidence
More than just an economic interest in the general vicinity FPPC Reg. 18438.7(a)
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How to Cure and Participate
• Return the contribution (over $250) within 30 days of the time the officer knows or should have known of both
“the contribution and the proceeding.”
• Examples:
The contribution was received from a party prior to the officer knowing/having reason to know that a proceeding involving the party has “commenced” (i.e. before it was noticed on an agenda), or
The contribution was received from a participant prior to the officer knowing/having reason to know of the participant’s financial interest.
Gov. Code 84308(d)(1)
FPPC Reg. 18438.7(c)
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Curing From the Dais
An officer may participate in a public hearing before
returning a contribution if:
• The decision is made at a public hearing;
• Fewer than 30 days have passed since the officer
knew/should have known about the contribution and the
proceeding;
• Officer discloses the contribution on the record and
commits to returning the contribution within 30 days of that trigger date; and
• The contribution (over $250) is returned within the
required 30-day time frame.
Gov. Code 84308(d)(1)
FPPC Reg. 18438.7(c)
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Contributions Made After a Proceeding
• It is unlawful to accept, solicit, or direct a contribution from a party, participant, or agent for 12 months after the final decision.
• No cure is available if the officer knowingly and
willfully accepts, solicits, or directs the contribution. • If not knowing and willful, contribution must be
returned within 14 days of accepting, soliciting, or
directing the contribution whichever is later.
Gov. Code 84308(d)(1)
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Legally Required Participation
• The “legally required participation” rule applies to
recusals required by the Levine Act
• This means that if a majority of the members of the
body are recused because of financial conflicts, a
random process may be used to select members to
participate until a quorum is reached.
FPPC Reg. 18705
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Guidance and Updates
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FPPC Website
The FPPC website contains many resources for
candidates and officials including:
• Levine Act: https://www.fppc.ca.gov/learn/pay-to-
play-limits-and-prohibitions.html
• Campaign rules:
https://www.fppc.ca.gov/learn/campaign-
rules.html
• Get advice from FPPC staff:
https://www.fppc.ca.gov/advice.html
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FPPC Advice Letters in 2023-2024
• Exempt from the Levine Act:
Project labor agreement between agency and project
contractors (I-23-065)
• Covered by the Levine Act:
Small contracts and purchase orders (I-23-065)
$1,000 grant to non-profit (I-23-177)
City Council proceeding for periodic review of a
development agreement (
I-23-178)
General plan amendment initiated by landowner (I-23-077)
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Proposed Legislative Fixes
• No bills introduced yet this year
• Possible legislation?
Raise campaign contribution limit from $250 to a
higher amount
• Adjusted for inflation, $250 in 1982 = $813 in 2023
Labor unions may be lobbying for additional
exemptions