Late Filing
The filing officer who retains originally -signed or
electronically filed statements of economic interests may impose on an individual a fine for any statement that is filed late. The fine is $10 per day up to a maximum of $100.
Late filing penalties may be reduced or waived under certain circumstances.
Persons who fail to timely file their Form 700 may be
referred to the FPPC's Enforcement Division (and, in some cases, to the Attorney General or district attorney) for investigation and possible prosecution. In addition to the late filing penalties, a fine of up to $5,000 per violation may be imposed.
For assistance concerning reporting, prohibitions, and
restrictions under the Act:
• Email questions to [email protected].
• Call the FPPC toll -free at (866) 275-3772.
Form 700 is a Public Document
Public Access Must Be Provided
Statements of Economic Interests are public
documents. The filing officer must permit any
member of the public to inspect and receive a copy
of any statement.
• Statements must be available as soon as possible
during the agency's regular business hours, but
in any event not later than the second business
day after the statement is received. Access to the
Form 700 is not subject to the Public Records Act
procedures.
• No conditions may be placed on persons seeking
access to the forms.
• No information or identification may be required
from persons seeking access.
• Reproduction fees of no more than 10 cents per
page may be charged.
FPPC Form 700 (2024/2025)
[email protected] • 866-275-3772 • www.fppc.ca.gov
Page - 20
Questions and Answers
General
Q. What is the reporting period for disclosing interests on an assuming office statement or a candidate
statement?
Q. My spouse and I are currently separated and in the
process of obtaining a divorce. Must I still report my
spouse's income, investments, and interests in real
property?
A. On an assuming office statement, disclose all A.
reportable investments, interests in real property, and business positions held on the date you assumed
office. In addition, you must disclose income (including loans, gifts and travel payments) received during the 12 months prior to the date you assumed office.
On a candidate statement, disclose all reportable
investments, interests in real property, and business
positions held on the date you file your declaration of candidacy. You must also disclose income (including
loans, gifts and travel payments) received during the
12 months prior to the date you file your declaration of candidacy.
Q. I hold two other board positions in addition to my
position with the county. Must I file three statements of economic interests?
A. Yes, three are required. However, you may instead
complete an expanded statement listing the county and
the two boards on the Cover Page or an attachment as
the agencies for which you will be filing. Disclose all reportable economic interests in all three jurisdictions on the expanded statement. File the expanded
statement for your primary position providing an original "wet" signature unless filed with a secure electronic
signature. (See page 4 above.) File copies of the
expanded statement with the other two agencies as
required by Regulation 18723.1(c). Remember to
complete separate statements for positions that you
leave or assume during the year.
Q. I am a department head who recently began acting as
city manager. Should I file as the city manager?
A. Yes. File an assuming office statement as city
manager. Persons serving as "acting," "interim," or
"alternate" must file as if they hold the position because they are or may be performing the duties of the
position.
Yes. A public official must continue to report a spouse's economic interests until such time as dissolution of
marriage proceedings is final. However, if a separate
property agreement has been reached prior to that
time, your estranged spouse's income may not have to
be reported. Contact the FPPC for more information.
Q. As a designated employee, I left one state agency to work for another state agency. Must I file a leaving
office statement?
A. Yes. You may also need to file an assuming office
statement for the new agency.
Investment Disclosure
Q. I have an investment interest in shares of stock in a company that does not have an office in my jurisdiction.
Must I still disclose my investment interest in this
company?
A. Probably. The definition of "doing business in the
jurisdiction" is not limited to whether the business has an office or physical location in your jurisdiction. (See Reference Pamphlet, page 14.)
Q. My spouse and I have a living trust. The trust holds rental property in my jurisdiction, our primary residence, and investments in diversified mutual funds. I have full disclosure. How is this trust disclosed?
A. Disclose the name of the trust, the rental property and its income on Schedule A-2. Your primary residence
and investments in diversified mutual funds registered
with the SEC are not reportable.
Q. I am required to report all investments. I have an IRA that contains stocks through an account managed by
a brokerage firm. Must I disclose these stocks even
though they are held in an IRA and I did not decide
which stocks to purchase?
A. Yes. Disclose on Schedule A-1 or A-2 any stock worth $2,000 or more in a business entity located in or doing business in your jurisdiction.
FPPC Form 700 (2024/2025)
[email protected] • 866-275-3772 • www.fppc.ca.gov
Page - 21
Questions and Answers
Continued
Q. The value of my stock changed during the reporting
period. How do I report the value of the stock?
A. You are required to report the highest value that the stock reached during the reporting period. You may
use your monthly statements to determine the highest
value. You may also use the entity's website to
determine the highest value. You are encouraged to
keep a record of where you found the reported value.
Note that for an assuming office statement, you must
report the value of the stock on the date you assumed
office.
Q. I am the sole owner of my business, an S-Corporation.
I believe that the nature of the business is such that it cannot be said to have any "fair market value" because
it has no assets. I operate the corporation under
an agreement with a large insurance company. My
contract does not have resale value because of its
nature as a personal services contract. Must I report
the fair market value for my business on Schedule A-2
of the Form 700?
A. Yes. Even if there are no tangible assets, intangible assets, such as relationships with companies and
clients are commonly sold to qualified professionals.
The "fair market value" is often quantified for other
purposes, such as marital dissolutions or estate
planning. In addition, the IRS presumes that "personal
services corporations" have a fair market value. A
professional "book of business" and the associated
goodwill that generates income are not without a
determinable value. The Form 700 does not require a
precise fair market value; it is only necessary to check a box indicating the broad range within which the value falls.
Q. I own stock in IBM and must report this investment
on Schedule A-1. I initially purchased this stock in
the early 1990s; however, I am constantly buying
and selling shares. Must I note these dates in the
"Acquired" and "Disposed" fields?
A. No. You must only report dates in the "Acquired" or
"Disposed" fields when, during the reporting period, you initially purchase a reportable investment worth $2,000 or more or when you dispose of the entire investment.
You are not required to track the partial trading of an investment.
Q. On last year's filing I reported stock in Encoe valued at $2,000 - $10,000. Late last year the value of this stock fell below and remains at less than $2,000. How should
this be reported on this year's statement?
A. You are not required to report an investment if the value was less than $2,000 during the entire reporting period.
However, because a disposed date is not required for
stocks that fall below $2,000, you may want to report
the stock and note in the "comments" section that the
value fell below $2,000. This would be for informational purposes only; it is not a requirement.
Q. We have a Section 529 account set up to save money
for our son's college education. Is this reportable?
A. If the Section 529 account contains reportable interests (e.g., common stock valued at $2,000 or more), those
interests are reportable (not the actual Section 529
account). If the account contains solely mutual funds,
then nothing is reported.
Income Disclosure
Q. I reported a business entity on Schedule A-2. Clients of my business are located in several states. Must I report all clients from whom my pro rata share of income is
$10,000 or more on Schedule A-2, Part 3?
A. No, only the clients located in or doing business on a regular basis in your jurisdiction must be disclosed.
Q. I believe I am not required to disclose the names of clients from whom my pro rata share of income is
$10,000 or more on Schedule A-2 because of their right
to privacy. Is there an exception for reporting clients' names?
A. Regulation 18740 provides a procedure for requesting an exemption to allow a client's name not to be
disclosed if disclosure of the name would violate a
legally recognized privilege under California or Federal law. This regulation may be obtained from our website
at www.fppc.ca.gov . (See Reference Pamphlet, page
15.)
FPPC Form 700 (2024/2025)
[email protected] • 866-275-3772 • www.fppc.ca.gov
Page - 22
Questions and Answers
Continued
Q. I am sole owner of a private law practice that is not reportable based on my limited disclosure category.
However, some of the sources of income to my law
practice are from reportable sources. Do I have to
disclose this income?
A. Yes, even though the law practice is not reportable, reportable sources of income to the law practice of
$10,000 or more must be disclosed. This information
would be disclosed on Schedule C with a note in the
"comments" section indicating that the business entity
is not a reportable investment. The note would be for
informational purposes only; it is not a requirement.
Q. I am the sole owner of my business. Where do I
disclose my income - on Schedule A-2 or Schedule C?
A. Sources of income to a business in which you have an ownership interest of 10% or greater are disclosed on
Schedule A-2. (See Reference Pamphlet, page 9.)
Q. I received a loan from my grandfather to purchase my home. Is this loan reportable?
A. No. Loans received from family members are not
reportable.
Q. Many years ago, I loaned my parents several thousand dollars, which they paid back this year. Do I need to
report this loan repayment on my Form 700?
A. No. Payments received on a loan made to a family
member are not reportable.
Real Property Disclosure
Q. During this reporting period we switched our principal place of residence into a rental. I have full disclosure and the property is located in my agency's jurisdiction, so it is now reportable. Because I have not reported
this property before, do I need to show an "acquired"
date?
Q. My spouse is a partner in a four -person firm where A all of their business is based on their own billings and collections from various clients. How do I report my
community property interest in this business and the
income generated in this manner?
A. If your spouse's investment in the firm is 10% or
greater, disclose 100% of your spouse's share of the
business on Schedule A-2, Part 1 and 50% of your
spouse's income on Schedule A-2, Parts 2 and 3. For
example, a client of your spouse's must be a source of
at least $20,000 during the reporting period before the client's name is reported.
Q. How do I disclose my spouse's or registered domestic partner's salary?
A. Report the name of the employer as a source of income on Schedule C.
Q. I am a doctor. For purposes of reporting $10,000
sources of income on Schedule A-2, Part 3, are the
patients or their insurance carriers considered sources of income?
A. If your patients exercise sufficient control by selecting you instead of other doctors, then your patients, rather than their insurance carriers, are sources of income to you. (See Reference Pamphlet, page 15.)
No, you are not required to show an "acquired" date
because you previously owned the property. However,
you may want to note in the "comments" section that
the property was not previously reported because it was used exclusively as your residence. This would be for
informational purposes only; it is not a requirement.
Q. I am a city manager, and I own a rental property located in an adjacent city, but one mile from the city limit. Do I need to report this property interest?
A. Yes. You are required to report this property because it is located within 2 miles of the boundaries of the city you manage.
Q. Must I report a home that I own as a personal residence for my daughter?
A. You are not required to disclose a home used as a
personal residence for a family member unless you
receive income from it, such as rental income.
Q. I am a co-signer on a loan for a rental property owned by a friend. Since I am listed on the deed of trust, do I need to report my friend's property as an interest in real property on my Form 700?
A. No. Simply being a co-signer on a loan for property
does not create a reportable interest in that real
property.
FPPC Form 700 (2024/2025)
[email protected] • 866-275-3772 • www.fppc.ca.gov
Page - 23
Questions and Answers
Continued
Gift Disclosure Q.
Q. If I received a reportable gift of two tickets to a concert valued at $100 each, but gave the tickets to a friend
because I could not attend the concert, do I have any
reporting obligations?
A. Yes. Since you accepted the gift and exercised
discretion and control of the use of the tickets, you must disclose the gift on Schedule D. A.
Q. Julia and Jared Benson, a married couple, want to
give a piece of artwork to a county supervisor. Is each spouse considered a separate source for purposes of
the gift limit and disclosure?
A. Yes, each spouse may make a gift valued at the gift
limit during a calendar year. For example, during 2025
the gift limit was $630, so the Bensons may have given
the supervisor artwork valued at no more than $1,260.
The supervisor must identify Jared and Julia Benson as
the sources of the gift.
Q. I am a Form 700 filer with full disclosure. Our agency holds a holiday raffle to raise funds for a local charity.
I bought $10 worth of raffle tickets and won a gift
basket valued at $120. The gift basket was donated by
Doug Brewer, a citizen in our city. At the same event,
I bought raffle tickets for, and won a quilt valued at
$70. The quilt was donated by a coworker. Are these
reportable gifts?
A. Because the gift basket was donated by an outside
source (not an agency employee), you have received a
reportable gift valued at $110 (the value of the basket less the consideration paid). The source of the gift
is Doug Brewer and the agency is disclosed as the
intermediary. Because the quilt was donated by an
employee of your agency, it is not a reportable gift.
My agency is responsible for disbursing grants. An
applicant (501(c)(3) organization) met with agency
employees to present its application. At this meeting,
the applicant provided food and beverages. Would
the food and beverages be considered gifts to the
employees? These employees are designated in our
agency's conflict of interest code and the applicant is a reportable source of income under the code.
Yes. If the value of the food and beverages consumed
by any one filer, plus any other gifts received from the same source during the reporting period total $50 or
more, the food and beverages would be reported using
the fair market value and would be subject to the gift
limit.
Q. I received free admission to an educational conference related to my official duties. Part of the conference
fees included a round of golf. Is the value of the golf considered informational material?
A. No. The value of personal benefits, such as golf,
attendance at a concert, or sporting event, are gifts
subject to reporting and limits.
FPPC Form 700 (2024/2025)
[email protected] • 866-275-3772 • www.fppc.ca.gov
Page - 24
SECTION 7
m Conflicts of Interest
CD HANDBOOK
r*4 Summary of the Major Provisions and Requirements
of Principal Conflicts of Interest Laws and Regulations ) Updated including changes effective January 1, 2023
Table of Contents
Page No.
I. LAWS AND REGULATIONS AFFECTING DECISION -MAKING ...................................... 1 A. The Political Reform Act................................................................................. 1 1. Disclosure Requirements Under the Political Reform Act........................................................................................................ 2 2. Conflicts of Interest Under the Political Reform Act ......................... 4 3. The FPPC's Test for Analyzing Conflicts of Interest ............................ 5 4. Abstention.........................................................................................23
5. Penalties for Violation....................................................................... 24 6. Seeking Advice on Conflict of Interest Questions .......................... 25 B. Government Code Section 1090................................................................ 25 1. Three Principal Components of Section 1090................................. 26 2. Exceptions to Section 1090............................................................... 30 3. A Contract Made in Violation of Section 1090 is Void and Officials Violating Section 1090 Are Subject to
Severe Penalties................................................................................ 32 4. Aiding and Abetting Section 1090 Violations ................................. 32 5. Seeking FPPC Advice on Section 1090............................................32
6. Statute of Limitations for Section 1090 Violations ........................... 33 C. Common Law Doctrine Against Conflicts of Interest ................................ 33 II. OTHER SPECIALIZED CONFLICTS OF INTEREST LAWS AND REGULATIONS............................................................................................................ 34 A. Doctrine Against Holding Incompatible Offices ........................................ 34 1 . The Common Law Doctrine Against Holding
Incompatible Offices........................................................................34 Summary of Principal Conflicts of Interest Laws and Regulations Page i © 2023 Richards, Watson & Gershon
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2. The Statutory Codification of the Common Law
Doctrine of Incompatible Offices - Government Code
Section1099......................................................................................36 B. Incompatible Outside Activities.................................................................. 37 C. Successor Agency and Oversight Board Conflicts....................................38
1. Form 700s for Successor Agency and Oversight Board
Members............................................................................................ 38
2. Obligation of Successor Agencies to Adopt Conflict
of Interest Codes...............................................................................38
3. City Councils are the Code Reviewing Bodies for the
Successor Agency's Conflict of Interest Code ............................... 39
4. The City Council May Designate the City Clerk as the Filing Officer for the Successor Agency's Statements
of Economic Interests........................................................................39 D. Discount Passes on Common Carriers........................................................ 40 E. Conflicts upon Leaving Office - the "Revolving Door" ............................. 41 F. Laws Prohibiting Bribery................................................................................42 G. Campaign Contributions............................................................................. 43 l . Conflicts of Interests Arising for Elected and
Appointed Officials...........................................................................43
2. Application of Federal Corruption Laws to the Offer or Solicitation of Illegal Campaign Contributions Tied to
anOfficial Act................................................................................... 44
3. Ban on Local Agency Officials and Employees
Soliciting Campaign Contributions from Officials and
Employees of the Same Agency.....................................................45
4. Nepotism............................................................................................45 III. LAWS AND REGULATIONS AFFECTING RECEIPT OF GIFTS,
HONORARIA AND LOANS........................................................................................ 47 A. Limitations on Receipt of Gifts..................................................................... 47
1. General Gift Limitation......................................................................47
2. Biennial Gift Limit Adjustment........................................................... 47 Summary of Principal Conflicts of Interest Laws and Regulations Page ii © 2023 Richards, Watson & Gershon
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3. Exceptions to Gifts.............................................................................48
4. Gifts to an Agency............................................................................ 53
5. Gifts to an Official's Family...............................................................53
6. Invitation -Only Events.......................................................................55
7. Tickets to Political and Charitable Fundraisers ............................... 55
8. Tickets or Passes to Events Given to Officials by their Agency.............................................................................................. 57
9. Gifts from a Government Agency to an Official in That Agency.............................................................................................. 58
10. Wedding Gifts....................................................................................59
11. Certain Gifts of Travel....................................................................... 59
12. Lobbyists Arranging Gifts.................................................................. 63 B. Prohibitions on Receipt of Honoraria.......................................................... 64
1. Exceptions to the Prohibition on Honoraria .................................... 64 C. Prohibitions on Receipt of Certain Types of Loans ..................................... 66
1. Prohibition on Loans Exceeding $250 from Other City
Officials, Employees, Consultants, and Contractors ...................... 66
2. Requirement for Loans of $500 or More from Other
Persons and Entities to be in Writing ................................................ 66
3. Exceptions to Loan Limits and Documentation
Requirements..................................................................................... 66
4. Loans that Become Gifts are Subject to the Gift
Prohibition.......................................................................................... 67
5. Exceptions - Loans that Do Not Become Gifts ............................... 67 IV. PROHIBITION AGAINST MASS MAILINGS.................................................................. 68 A. Test for Prohibited Mass Mailing................................................................... 68 l . Delivery of Tangible Item.................................................................. 68
2. Features or Includes Reference to an Elected Official .................. 69 Summary of Principal Conflicts of Interest Laws and Regulations Page iii © 2023 Richards, Watson & Gershon
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3. Public Expense.................................................................................. 69
4. More than 200 Copies of the Item ................................................... 70 B. Exceptions to the Mass Mailing Prohibition ................................................. 70 V. EXPENDITURES TO SUPPORT OR DEFEAT A BALLOT MEASURE ................................. 71 VI. PROHIBITION ON GIFTS OF PUBLIC FUNDS...............................................................75 VII. CONCLUSION........................................................................................................... 76 Summary of Principal Conflicts of Interest Laws and Regulations Page iv © 2023 Richards, Watson & Gershon
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INTRODUCTION
This Handbook is prepared to provide you with a summary of the major provisions of California's principal conflicts of interest laws and regulations. The text of the laws and regulations referenced in this Handbook can be found on the websites for the California Legislature ( http://Ieginfo.legislature.ca.gov/faces/codes.xhtml) and the Fair Political Practices Commission ("FPPC") ( http://www.fppc.ca.gov/the-law.html) .
This Handbook is designed to familiarize city officials and staff with California's principal conflicts of interest laws and regulations. Because the laws and regulations change frequently, we recommend that you use this Handbook to become familiar with the basic principles of the conflict laws and regulations, but we also recommend that you contact your city attorney or agency counsel as soon as you think that you may have a potential conflict of interest. We would be glad to help you analyze a potential conflict of interest and/or contact the FPPC for guidance.
We hope you find this Handbook useful. Should you have any questions about the information included in this Handbook, please do not hesitate to contact us.
Richards, Watson & Gershon
Summary of Principal Conflicts of Interest Laws and Regulations Page v © 2023 Richards, Watson & Gershon
2765318
Summary of the Major Provisions
and Requirements of Principal Conflicts of
Interest Laws and Regulations
//RWG
Summary of Principal Conflicts of Interest Laws and Regulations © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions
and Requirements of Principal Conflicts of
Interest Laws and Regulations
I. LAWS AND REGULATIONS AFFECTING
DECISION -MAKING
A. The Political Reform Act
In 1974, California voters approved Proposition 9, a statewide initiative titled "the Political Reform Act" (the "Act" or the "PRA"). Gov't Code § 81000 et seq., At the time, the measure was the most detailed disclosure law in the nation, and it included new requirements for reporting campaign and lobbying activities. Although the Act was initially written before the Watergate scandal broke, by the time Proposition 9 appeared on the ballot, the drama had unfolded, and nationwide reform proposals were being drafted.
The Act passed by an overwhelming majority, and one of its provisions created a new state agency called the Fair Political Practices Commission ("FPPC"). The FPPC was charged with interpreting and enforcing the Act, and pursuant to this authority, the agency drafted a series of regulations. Since the Act went into effect in 1975, the FPPC has issued new regulations and amendments to existing regulations almost every year.
The Act covers numerous topics germane to ethical behavior in public office —financial data reporting obligations, lobbying restrictions, required campaign disclosures, limitations on campaign financing, proscriptions on mass mailings, restrictions on gifts and honoraria, and most significantly, prohibitions on conflicts of interest in the making of governmental decisions. The Act also contains reporting procedures for financial interests and campaign contributions, as well as disqualification requirements when certain financial interests or campaign contribution standards are satisfied.
Please note that this Handbook is general in nature and may not cover all aspects of an actual conflicts of interest issue. Thus, it is not intended to constitute advice on specific conflicts of interest questions. In the event you have concerns about a possible conflict of interest, you should contact your city attorney or agency counsel for further advice. 1 All statutory references are to the California Government Code unless otherwise indicated. Regulations of the FPPC are referred to as "Regulation."
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations
1. Disclosure Requirements Under the Political Reform Act a. Statements of Economic Interests
The Act requires public officials to disclose assets and income that may be materially affected by their official actions by filing a "Statement of Economic Interests" (also known as a "Form 700"). § 87202; Regulation 18115. The requirement applies to council members, judges, elected state officers, members of planning commissions, members of boards of supervisors, district attorneys, county counsels, city managers, city attorneys, city treasurers and other public officials who manage public investments, and to candidates for any of these offices at any election. § 87200. If a public official holds multiple positions subject to reporting requirements, the public official may choose to complete a separate Form 700 for each position or a single "Expanded Statement of Economic Interests." Regulation 18723.1.
Officials must file the Form 700 within 30 days after assuming office, and candidates must file no later than the final filing date of a declaration of candidacy. §§ 87201-02.
An official must file annually thereafter until he or she leaves office, at which point he or she must file a final statement. §§ 87202-04. The required disclosures on the Form 700 include:
• Investments in business entities (e.g., stock holdings, owning a business, a partnership) that are located or do business in the jurisdiction; • Interests in real estate (real property) in the jurisdiction, but not including the official's home address;
• Sources of personal income,2 including gifts, loans, and travel payments;3 and
• Positions of management or employment with business entities that do business in the jurisdiction.
§ 87203. If the official no longer holds certain investments and real property interests at the time of filing, but held them during the 12 months prior to filing, he or she must still disclose those interests on the Form 700. Id. The Form 700 is a public document open to inspection and duplication.
For public officials not covered by the requirements of Section 87203, including employees of state and local government agencies, it is up to the agencies that employ them to decide what their disclosure requirements are. Each state and local agency must adopt a conflicts of interest code tailoring the disclosure requirements for 2 In some instances, an official may need to disclose the sources of income to a business entity in which the official has an ownership interest if the official owns at least 10 percent of a business. In that case, the official would be required to disclose a source of income to the business as a source of income to the official if the official's pro rata share of gross receipts from that source exceeds $10,000 in aggregate during the reporting period. § 87207(b). In those cases, the official must report the name, address, and a general description of the business activity of the business entity, as well as the name of the source of income that aggregates to $10,000 or more. Id. 3 As of January 1, 2016, if an official receives a gift that is a travel payment, advance, or reimbursement valued at $50 or more, the official must also disclose the travel destination. § 87207(a) (4).
Summary of Principal Conflicts of Interest Laws and Regulations Page 2 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations each position within the agency to the types of governmental decisions a person holding that position would make. For example, an employee who approves contracts for goods or services purchased by his or her agency would not be required to disclose real estate interests, but would be required to disclose investments in and income from individuals and entities that supply equipment, materials, or services to the agency. § § 87301-02.
A city that maintains an internet website must post a list of the elected officers who file a Form 700 with that city. A statement must also be posted on the website indicating that these Form 700s may be obtained by visiting the FPPC office or the city clerk's office. The statement must include the physical address for both the FPPC and the city clerk's office. Finally, a link to the FPPC website must be posted with a statement that indicates that Form 700 "for some state and local government agency elected officers may be available in electronic format" on the FPPC's internet website. § 87505.
A local agency may establish a system for the electronic filing of Form 700s, in accordance with State law. § 87500.2; Regulation 18756. Public officials should seek guidance from the local filing officer as to the appropriate procedure and format for filing a Form 700.
b. Behested Payments
There are also disclosure requirements for certain fundraising activities that elected officials perform for others, including in their capacity as employees or board members of nonprofit organizations. Elected officials who successfully solicit one or more contributions for "legislative, governmental, or charitable purposes" that equal or exceed $5,000 in the aggregate from the same source during a single calendar year must file a report with the official's agency (typically the city clerk) within 30 days of reaching the $5,000 threshold. § 84224(a).
The report must contain the following information:
• The contributor's name and address;
• The amount of the contribution;
• The date or dates on which the payments were made;
• The name and address of the contribution recipient;
• If goods or services were contributed, a description of those goods and services; and
• A description of the purpose or event for which the contribution was used.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations The report must also include the following information to the extent known to the elected official:
• A brief description4 of the relationship between the nonprofit organization and the elected official, their family member, member of their campaign, or member of their staff; and
• A brief description of any proceedings before the elected official's agency at the time of the payment or 12 months before the payment, in which the nonprofit organization is a named party or subject of the decision.
Regulation 18424. The statute does not define the term "legislative, governmental, or charitable purposes," but charitable purposes typically involve 501 (c) (3) organizations.
Examples of "governmental" purposes include fundraising for a new city hall roof, an inaugural celebration committee,5 litigation expenses,' a breakfast honoring public safety personnel,' and youth conferences.$ The term "legislative purpose," in turn, refers to a 1996 FPPC opinion in which a state senator asked a private party to pay for a witness's airfare and expenses to testify at a legislative hearing.9 These reporting requirements also apply if the payment is "made at the behest of the elected officer, even if the officer did not actively solicit contributions. §§ 82004.5, 82041.3. A payment is "made at the behest of" an elected officer when it is made "under the control or at the direction of, in cooperation, consultation, coordination, or concert with, at the request or suggestion of, or with the express, prior consent of" that officer. Id.
This disclosure requirement does not apply to a behested payment made by a local, state, or federal governmental agency for a principally legislative or governmental purpose. § 84224(b) (4).
2. Conflicts of Interest Under the Political Reform Act In addition to the disclosure requirements, the Act requires public officials to disqualify themselves from making, participating in making, or in any way attempting to use their official position to influence a governmental decision in which they know or have reason to know they have a financial interest. § 87100; Regulation 18700. An official has a disqualifying financial interest in a decision if the decision will have a reasonably foreseeable material financial effect, distinguishable from its effect on the public generally, directly on the official or a member of the official's immediate family, or on certain listed financial interests. The listed financial interests are:
4 A "brief description" includes any decision making capacity within the organization, salaried employment, status as a founding member, and honorary or advisory board positions. Regulation 18424(a). 5 Sutton Advice Letter, No. A-05-256, 2005 WL 3693740 (2005). 6 Stoen Advice Letter, No. A-03-185, 2004 WL 334564 (2004) (district attorney's expenses in suing a private company when governing body withdrew funding for effort).
7 Gallegos Advice Letter, No. A-00-059, 2000 WL 311529 (2000). 8 Gallegos Advice Letter, No. A-98-192, 1998 WL 671296 (1998). 9 Schmidt Advice Letter, No. A-96-098, 1996 WL 779579 (1996).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations • Any business entity in which the public official has a direct or indirect investment worth $2,000 or more.
• Any real property in which the public official has a direct or indirect interest worth $2,000 or more.
• Any source of income, including commission income or incentive income, aggregating to at least $500 within 12 months prior to the time when the decision is made. The $500 must be provided or promised to, or received by, the official during the 12 months before the decision. • Any business entity (excluding nonprofit corporations) in which the public official is a director, officer, partner, trustee, employee, or holds any position of management.
• Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating $590 or more in value provided to, received by, or promised to the public official within 12 months prior to the time when the decision is made.
§ 87103; Regulations 18700 and 18940.2. The FPPC regulations interpret and provide guidance for most of the terms used in the Act. The FPPC also provides standards for determining if each element of the Act's prohibitions has been satisfied.
3. The FPPC's Test for Analyzing Conflicts of Interest
In the past few years, the FPPC has reorganized and revised the conflict of interest regulations in a comprehensive manner. Under the old regulations, a public official was advised to follow an eight -part test to analyze a potential conflict of interest. The newly revised regulations establish a new four-part test, as stated in Regulation 18700(d).
The new FPPC four-part test assumes that an official already has determined whether he or she is a public official within the meaning of the Act. The new test also assumes that the official has identified the financial interests that may be affected by a particular governmental decision. Since these two steps are necessary for a complete analysis, we recommend that public officials follow the seven steps described below, which incorporate these two initial steps as well as the FPPC's new four-part test.
STEP ONE: IS A PUBLIC OFFICIAL INVOLVED?
Determine whether the individual is a public
official within the meaning of the Act.
The Act applies only to "public officials." Regulation 18700(b). A "public official" is defined to include a "member, officer, employee, or consultant" of a state or local government agency. § 82048; Regulation 18700(c). The regulations define "member" and "consultant" as follows:
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations • A "member" does not include an individual who performs duties as part of a committee, board, commission, group, or other body that does not have decision -making authority. A board or commission possesses decision -making authority if: (i) it may make a final governmental decision, (ii) it may compel or prevent a governmental decision by reason of an exclusive power to initiate the decision or by reason of a veto that may not be overridden, or (iii) it makes substantive recommendations, which, over an extended period of time, have been regularly approved without significant amendment or modification by another official or agency. Regulation 18700(c)(2).
• A "consultant"10 includes an individual who, pursuant to a contract with a state or local government agency, makes specific kinds of governmental decisions or serves in a staff capacity with the agency and either participates in governmental decisions or performs the same or substantially all of the same duties that would otherwise be performed by a person in a position listed in the agency's conflict of interest code.
Regulation 18700.3.
STEP TWO: WHAT ARE THE PUBLIC OFFICIAL'S
FINANCIAL INTERESTS?
Identify the public official's financial
interests.
A public official's financial interests include certain business entities, real property, sources of income, and donors of gifts (as well as intermediaries and agents of such donors). Regulation 18700(c) (6). More specifically, a public official has a financial interest in any of the following:
• A business entity in which the official has a direct or indirect investment worth at least $2,000.11 (Note: In certain situations, this can include a parent,12 subsidiary,13 or otherwise related14 business entity.15) 10 For more on who constitutes a "consultant" subject to the Act, see, e.g., Ennis Advice Letter, FPPC No. A-15-006, 2015 WL 1781 144 (2015).
11 The FPPC has determined that membership in a country club is a financial interest in the club as a business entity when the membership is transferrable and can be resold for profit or loss. Gee Advice Letter, FPPC No. A-17-249, 2018 WL 723401 (2018).
12 A business entity is a "parent" if it is a corporation that controls more than 50 percent of the voting stock of another corporation; the parent corporation is also a parent to any subsidiaries of the corporation that it controls. Regulation 18700.2 (b) (1).
13 A business entity is a "subsidiary" if it is a corporation whose voting stock is more than 50 percent controlled by another corporation; the subsidiary corporation is also a subsidiary to any corporation that controls its parent corporation.
Regulation 18700.2 (b) (2).
14 Business entities, other than a parent corporation, are "otherwise related" if (1) the same person or persons together direct or control each business entity, or (2) the same person or persons together have a 50 percent or greater ownership interest in each business entity. Regulation 18700.2 (b) (3). 15 An official with a financial interest in a business entity also has an interest in a parent or subsidiary of the business entity or an otherwise related business entity, unless (1) the official's only interest is that of a shareholder and the official is a passive shareholder with less than 5 percent of the shares of the corporation, and (2) the parent corporation is required Summary of Principal Conflicts of Interest Laws and Regulations Page 6 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations • Any real property in which the public official has a direct or indirect interest worth at least $2,000.11 Real property interests include all leases except month -to -month leases and leases with terms shorter than a month. Regulation 18233.
• Any "source of income" of at least $500 that is provided or promised to the public official, or received by the public official within 12 months prior to a governmental decision, not including gifts and loans by banks available to the general public. Income is "promised to" the official if he or she has a "legally enforceable right to the promised income." Regulation 18700(c) (6) (C). The term "source of income" may include individuals, organizations, and businesses. If the "source of income" is a business that provides or promises the official at least $500 within 12 months prior to a governmental decision, the official also has a source -of - income interest in: (1) any individual owning at least a 50 percent interest in that business, and (2) any individual who has the power to direct or cause the direction of management and policies of the business.
Regulation 18700.1 (a) (2).
• Any business entity in which the public official is a director, officer, partner, trustee, or employee, or holds any position of management. (Note:
Again, this may include a parent, subsidiary, or otherwise related business entity.)
• Any donor of gifts, or any intermediary or agent for a donor of gifts, amounting to at least $590 where that amount is provided to, received by, or promised to the official in the 12 months prior to a governmental decision. Regulation 18700(c) (6) (E).
• The personal finances of the public official and immediate family.17 This is a sort of "catch-all" provision that is meant to address economic interests of a public official and his or her immediate family that do not qualify as investments, property, or business entities, but are nonetheless potentially affected by government decisions.
§§ 82047, 87103; Regulations 18700, 18940.2. The terms "indirect investment" and "indirect interest" are used to indicate investments and interests owned by the spouse or dependent child of the public official, an agent of the public official, or a business entity or trust in which the official, or his or her agent(s), spouse, or dependent children, has at least a 10 percent ownership interest. Regulation 18700(c)(6)(F). to file annual Form 10-K or 20-F Reports with the Securities and Exchange Commission and has not identified the subsidiary on those forms or its annual report. Regulation 18700.2 (c)-(d). 16 The FPPC has determined that membership in a country club is a financial interest in real property when the member would be entitled to a proportionate share of the value of the club's assets if the club were dissolved. Gee Advice Letter, FPPC No. A-17-249, 2018 WL 723401 (2018).
17 The FPPC determined that a public official had a financial interest in his personal finances when considering a decision to award a contract for waste hauling services at a facility located near his mobile home. Brady Advice Letter, FPPC No. A-22-027, 2022 WL 16725545 (2022).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations STEP THREE: IS IT REASONABLY FORESEEABLE
THAT THE GOVERNMENTAL DECISION
WILL HAVE A FINANCIAL EFFECT ON
ANY OF THE OFFICIAL'S FINANCIAL
INTERESTS?
Determine whether the governmental
decision will have a reasonably foreseeable
financial effect on any of the public
official's financial interests.
Regulation 18701 draws a distinction between a financial interest that is "explicitly involved" in a decision, on the one hand, and a financial interest that is not "explicitly involved" in a decision, on the other hand.
Financial interests are considered to be explicitly involved in a decision if the interest is a "named party in, or the subject of, a governmental decision before the official or the official's agency." Regulation 18701 (a). A financial interest is the "subject" of a proceeding "if the decision involves the issuance, renewal, approval, denial or revocation of any license, permit, or other entitlement to, or contract with the financial interest, and includes any governmental decision affecting a real property financial interest as described in Regulation 18702.2(a)(1) - (6)." Regulation 18701 (a). In those cases, the financial effect is presumed to be reasonably foreseeable.
Even if a financial interest is not explicitly involved in a decision, the effect may still be considered reasonably foreseeable. Regulation 18701 states that a financial effect need not be "likely" to be considered "reasonably foreseeable" for purposes of the FPPC's regulations. If the financial effect can be "recognized as a realistic possibility" and if the effect is "more than hypothetical or theoretical," it will be considered reasonably foreseeable. Regulation 18701 (b). The financial effect will not be considered reasonably foreseeable if the "the financial result cannot be expected absent extraordinary circumstances" that are not subject to the official's control.
The FPPC also provides the following list of non-exclusive factors that should be considered when determining whether a governmental decision will have a reasonably foreseeable effect on a financial interest that is not explicitly involved in the decision:
• The extent to which the occurrence of the financial effect is contingent upon intervening events, not including future governmental decisions by the official's agency, or any other agency appointed by or subject to the budgetary control of the official's agency.
• Whether the public official should anticipate a financial effect on his or her financial interest as a potential outcome under normal circumstances when using appropriate due diligence and care.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations • Whether the public official has a financial interest that is of the type that would typically be affected by the terms of the governmental decision or whether the governmental decision is of the type that would be expected to have a financial effect on businesses and individuals similarly situated to those businesses and individuals in which the public official has a financial interest.
• Whether a reasonable inference can be made that the financial effects of the governmental decision on the public official's financial interest might compromise a public official's ability to act in a manner consistent with his or her duty to act in the best interests of the public. • Whether the governmental decision will provide or deny an opportunity, or create an advantage or disadvantage for one of the official's financial interests, including whether the financial interest may be entitled to compete or be eligible for a benefit resulting from the decision. • Whether the public official has the type of financial interest that would cause a similarly situated person to weigh the advantages and disadvantages of the governmental decision on his or her financial interest in formulating a position.
Possession of a real estate, brokerage license, or other professional license does not automatically constitute a reasonably foreseeable effect on the official's financial interest. Regulation 18701.1. The official's likely business activity must be considered to determine whether the governmental decision will have a reasonably foreseeable effect on one of the official's financial interests.
If it is not reasonably foreseeable that the governmental decision will have a financial effect on any of the official's financial interests, there is no conflict under the Act. If it is determined that it is reasonably foreseeable that the governmental decision will have a financial effect, however, the official must determine whether the effect is material.
STEP FOUR: WILL THE REASONABLY
FORESEEABLE EFFECT BE
MATERIAL?
Determine whether the reasonably
foreseeable financial effect will be material.
If the effect is "nominal, inconsequential, or insignificant," the financial effect will not be considered material. Regulation 18702(b). Otherwise, however, the provisions in Regulations 18702.1 through 18702.5 determine - for each type of financial interest - whether the effect is material. Regulation 18702(a).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations a. Business Entities
Regulation 18702.1 provides that the reasonably foreseeable effect of a decision on a business entity in which the official has an investment interest or holds an employment or management position is material whenever the business entity is a named party in, or the subject of, the decision, including any decision in which the entity:
• Initiates the proceeding by filing an application, claim, appeal, or other request for action concerning the entity with the official's agency; • Offers to sell a product or service to the official's agency; • Bids on or enters into a contract with the official's agency, or is identified as a subcontractor on a bid or contract with the agency; • Is the named or intended manufacturer or vendor of any products to be purchased by the official's agency with an aggregate cost of $1,000 or more in any 12-month period;
• Applies for a permit, license, grant, tax credit, exception, variance, or other entitlement from the official's agency;
• Is the subject of any inspection, action, or proceeding under the regulatory authority of the official's agency; or
• Is otherwise subject to an action taken by the official's agency that is directed at the entity.
The reasonably foreseeable effect of a decision on a business entity in which the official has an investment interest or holds an employment or management position is also material if any of the following criteria are met:
• The decision may result in an increase or decrease of the entity's annual gross revenues, or the value of the entity's assets or liabilities, in an amount equal to or more than:
✓ $1,000,000; or
✓ Five percent of the entity's annual gross revenues and the increase or decrease is at least $10,000.
• The decision may cause the entity to incur or avoid additional expenses or to reduce or eliminate expenses in an amount equal to or more than:
✓ $250,000; or
✓ One percent of the entity's annual gross revenues and the change in expenses is at least $2,500.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations • The official knows, or has reason to know, that the entity has an interest in real property and:
✓ The property is a named party in, or the subject of, the decision under Regulations 18701 (a) and 18702.2(a)(1) - (6); or ✓ There is clear and convincing evidence the decision would have a substantial effect on the property.
There is also a "small shareholder" exception that allows officials to participate in decisions explicitly involving a business entity where the official's only interest in that business entity is an investment interest worth no more than $25,000. Regulation 18702.1 (b). To qualify for this exception, the interest also must be less than one percent of the business entity's shares. However, meeting these thresholds does not automatically allow the official to participate in the decision. The official still must analyze the decision's potential effect on the business entity's annual gross revenues, assets and liabilities, expenses, and real property interests. Under this rule, even where an official has only a small investment in a business entity, the impact of a decision might be so significant that the official still has a conflict of interest. b. Real Property - Modified "500-Foot Rule" and Other Criteria The traditional "500-foot" rule has been replaced with an extensive list of criteria that must be analyzed to determine whether a decision will have a material financial effect on an official's real property interest. Regulation 18702.2. There are now eight materiality standards that must be evaluated when an official has an ownership interest in real property, and four materiality standards that must be evaluated when an official has a leasehold interest in real property (i.e., as the lessee of the property).
Regulation 18702.2 now provides that the reasonably foreseeable financial effect of a governmental decision on an official's real property economic interest, other than a leasehold interest, is material whenever the governmental decision:
• Involves the adoption of, or amendment to, a development plan or criteria applying to the parcel;
• Determines the parcel's zoning or rezoning, other than a zoning decision applicable to all properties designated in that category; annexation or de -annexation; inclusion in, or exclusion from, any city, county, district, or local government subdivision or other boundaries, other than elective district boundaries;
• Would impose, repeal, or modify any taxes, fees, or assessments that apply to the parcel;
• Authorizes the sale, purchase, or lease of the parcel; • Involves the issuance, denial or revocation of a license, permit, or other land use entitlement authorizing a specific use of or improvement to the Summary of Principal Conflicts of Interest Laws and Regulations Page 1 1 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations parcel or any variance that changes the permitted use of, or restrictions placed on, that real property;
• Involves construction of, or improvements to, streets, water, sewer, storm drainage, or similar facilities, and the parcel will receive new or improved services that provide a benefit or detriment disproportionate to other properties receiving the services;
• Involves property located 500 feet or less from the property line of the parcel unless there is clear and convincing evidence that the decision will not have any measurable impact on the official's property; or • Involves property located more than 500 feet but less than 1,000 feet from the property line of the parcel, and the decision would change the parcel's:
✓ Development potential;
✓ Income producing potential;
✓ Highest and best use;
✓ Character by substantially altering traffic levels, intensity of use, parking, view, privacy, noise levels, or air quality; or ✓ Market value.
Regulation 18702.2(b) clarifies that the financial effect of a governmental decision on a parcel of real property in which an official has an ownership interest is presumed not to be material whenever the governmental decision involves property located 1,000 feet or more from the property line of the official's property. This presumption may be rebutted, however, with clear and convincing evidence that the governmental decision would have a substantial effect on the official's property.
The FPPC has relaxed the rules with respect to real property economic interests that stem from having an ownership interest in the common area of a common interest development. Previously, in addition to evaluating whether the decision concerned a project located within 500 feet of the public official's real property, it was necessary to evaluate whether the decision was within 500 feet of any homeowner association common area in which the official had an ownership interest. Now, Regulation 18702.2 excludes common areas in common interest developments from the definition of "real property" for the purpose of conducting a conflict of interest analysis. Thus, the proximity of homeowner association common areas to a project is no longer a factor in the conflict of interest analysis.
With respect to an official's leasehold interests, i.e., where the official is the lessee of the property, Regulation 18702.2(c) now provides that the reasonably foreseeable financial effect of a governmental decision on an official's real property economic interest is material only if the governmental decision will:
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations • Change the termination date of the lease;
• Increase or decrease the potential rental value of the property; • Change the official's actual or legally allowable use of the property; or • Impact the official's use and enjoyment of the property.
There are a few exceptions in Regulation 18702.2(d) by which the effect of a decision on an official's real property interest will not be considered material. The following decisions will not be considered to have a material effect on an official's real property interest:
• The decision solely concerns repairs, replacement or maintenance of existing streets, water, sewer, storm drainage, or similar facilities. • The decision solely concerns the adoption or amendment of a general plan and all of the following apply:
✓ The decision only identifies planning objectives or is otherwise exclusively one of policy. A decision will not qualify under this subdivision if the decision is initiated by the public official, by a person that is a financial interest to the public official, or by a person representing either the public official or a financial interest to the public official.
✓ The decision requires a further decision or decisions by the public official's agency before implementing the planning or policy objectives, such as permitting, licensing, rezoning, or the approval of or change to a zoning variance, land use ordinance, or specific plan or its equivalent.
✓ The decision does not concern an identifiable parcel or parcels or development project. A decision does not "concern an
identifiable parcel or parcels" solely because, in the proceeding before the agency in which the decision is made, the parcel or parcels are merely included in an area depicted on a map or diagram offered in connection with the decision, provided that the map or diagram depicts all parcels located within the agency's jurisdiction and the economic interests of the official are not singled out.
✓ The decision does not concern the agency's prior, concurrent, or subsequent approval of, or change to, a permit, license, zoning designation, zoning variance, land use ordinance, or specific plan or its equivalent.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations participate in most decisions relating to slurry sealing, asphalt paving, curb and sidewalk repairs, or tree replacement, even if the work occurs within 500 feet of their property, due to the exception for repairs and replacement of existing infrastructure.
C. Sources of Income
The FPPC regulations also provide materiality standards for sources of income.
Regulation 18702.3. A "source of income," as discussed above, is any person from whom a public official has received at least $500 in the twelve months prior to the relevant governmental decision. Regulation 18700.1. A "person" includes individuals, organizations, and business entities. § 82047.
The regulations provide that any reasonably foreseeable financial effect on an individual, organization, or business entity1$ that is a source of income to an official or an official's spouse is material if:
• The source is a named party in, or the subject of, the decision including a claimant, applicant, respondent, or contracting party; or • The decision will achieve, defeat, aid, or hinder a purpose or goal of the source and the official, or the official's spouse, receives or is promised the income for achieving the purpose or goal. This is known as the "Nexus" test.
Regulation 18702.3(a)(1), 18702.3(b). In addition to these general standards, the regulations provide further guidance that separately analyzes a source of income depending on whether the source is an individual, non-profit organization, or business entity. If the source is an individual, a reasonably foreseeable financial effect on the source is material if:
• The decision may affect the individual's income, investments, or other assets or liabilities (other than an interest in a business entity or real property) by $1,000 or more;
• The official knows, or has reason to know, that the individual has an interest in a business entity that will be financially affected under the materiality standards in Regulation 18702.1; or
• The official knows, or has reason to know, that the individual has an interest in real property, and either:
✓ The property is a named party in, or the subject of, the decision as defined in Regulations 18701 (a) and 18702.2(a)(1) - (6); or 18 The materiality standards for sources of income provided in this section do not apply where a government entity qualifies as a source of income, including where a public official is paid by the entity as a consultant or contractor.
Regulation 18702.3(d). An official with an interest in a governmental entity is disqualified from taking part in a decision only if there is a unique effect on that official. Id.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations ✓ There is clear and convincing evidence the decision would have a substantial effect on the property.
If the source is a nonprofit organization, a reasonably foreseeable financial effect on the source is material if:
• 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) $1,000,000, or (2) five percent of the organization's annual gross receipts and the increase or decrease is equal to or greater than $10,000;
• 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 (1) $250,000, or (2) one percent of the organization's annual gross receipts and the change in expenses is equal to or greater than $2,500; or
• The official knows, or has reason to, know that the organization has an interest in real property and either:
✓ The property is a named party in, or the subject of, the decision under Regulations 18701 (a) and 18702.2(a) (1) - (6); or ✓ There is clear and convincing evidence the decision would have a substantial effect on the property.
If the source is a business entity, a reasonably foreseeable financial effect on the source is material if that business entity will be financially affected under the standards as applied to a financial interest in Regulation 18702.1 (see Business Entities above).
Regulation 18702.3(a). The regulation also includes additional provisions to help officials who receive income from retail sales of a business entity in determining when a retail customer becomes a source of income to the public official directly. § 87103.5. This regulatory provision, which is intended to replace prior Regulation 18707.5, provides that:
• The retail customers of a business entity constitute a significant segment of the public generally if the business is open to the public, and provides goods or services to customers that comprise a broad base of persons representative of the jurisdiction; and
• Income from an individual customer is not distinguishable from the amount of income received from other customers when the official is unable to recognize a significant monetary difference between the business provided by the individual customer and the general clientele of the business. An official is unable to recognize a significant monetary difference when: (1) the business is of the type that sales to any one customer will not have a significant impact on the business's annual net sales; or (2) the business has no records that distinguish customers by Summary of Principal Conflicts of Interest Laws and Regulations Page 15 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations amount of sales, and the official has no other information that the customer provides significantly more income to the business than an average customer.
Regulation 18702.3(c). If you own 10 percent or more of a business entity that is engaged in the retail sale of goods or services, we recommend that you review this provision in order to determine whether individual retail customers will be considered sources of income to you for the purpose of analyzing conflicts under the Act. d. Sources of Gifts
The FPPC regulations also provide materiality standards for sources of gifts. Regulation 18702.4. For the purpose of analyzing potential conflicts under the Political Reform Act, a donor becomes a "source of gifts" by providing or promising a public official with gifts valued at $590 or more in the aggregate in the 12 months prior to a governmental decision. Regulations 18700(c) (6) (E), 18940.2. A person may also be a source of a gift by being an "intermediary or agent for a donor of a similar gift. Regulation 18700(c) (6) (E).
Under the FPPC regulations, a financial effect on a source of a gift is material if:
• The source is a claimant, applicant, respondent, contracting party, or otherwise named or identified as the subject of the proceeding; • The source is an individual that will be financially affected under the standards applied to an official in Regulation 18702.5 (see Personal Finances below), or the official knows, or has reason to know, that the individual has an interest in a business entity or real property that will be financially affected under the standards applied to a financial interest in Regulation 18702.1 or 18702.2, respectively;
• The source is a nonprofit organization that will be financially affected under the materiality standards applied to a nonprofit source of income interest in Regulation 18702.3 (see Sources of Income above); or • The source is a business entity that will be financially affected under the standards as applied to a financial interest in Regulation 18702.1 (see Business Entities above).
Regulation 18702.4. Like with sources of income, the analysis of materiality for sources of gifts may depend on whether the source is an individual, a nonprofit, or a business entity. If the source of a gift is the "claimant, applicant, respondent, contracting party, or ... otherwise named or identified as the subject of the proceeding," the financial effect will be deemed material, regardless of whether the source is an individual, a nonprofit, or a business entity. If the source of a gift is not the "claimant, applicant, respondent, contracting party, or ... otherwise named or identified as the subject of the proceeding," the official will need to apply the other standards in Regulation 18702.4(b) - (d), depending on whether the source of the gift is an individual, a nonprofit, or a business entity.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations e. Personal Finances
Finally, the regulations provide materiality standards for effects on personal finances.
Regulation 18702.5. A reasonably foreseeable financial effect on an official's or his or her immediate family's personal finances is considered material if the decision may result in the official or the official's immediate family member receiving a financial benefit or loss of $500 or more in any 12-month period due to the decision. Regulation 18702.5 (a) .
However, a financial effect is not considered material under Government Code Section 87103 if the decision would do any of the following:
• Affect only the salary, per diem, or reimbursement for expenses of the public official, or a member of his or her immediate family receives from a federal, state, or local government agency unless the decision is to appoint (other than an appointing decision otherwise permitted under Regulation 18702.5), hire, fire, promote, demote, suspend without pay, or otherwise take disciplinary action with financial sanction against the official or a member of his or her immediate family, or to set a salary for the official or a member of his or her immediate family which is different from salaries paid to other employees of the government agency in the same job classification or position, or when the member of the public official's immediate family member is the only person in the job classification or position.
• Appoint the official to be a member of any group or body created by law or formed by the official's agency for a special purpose. However, if the official will receive a stipend for attending meetings of the group or body aggregating $500 or more in any 12-month period, the effect on the official's personal finances is material unless the appointing body posts specified information on its website.19
• Appoint the official to be an officer of the governing body of which the official is already a member, such as a decision to appoint a city councilmember to be the city's mayor.
• Establish or change the benefits or retirement plan of the official or the official's immediate family member, and the decision applies equally to all employees or retirees in the same bargaining unit or other representative group.
• Result in the payment of any travel expenses incurred by the official or the official's immediate family member while attending a meeting as an authorized representative of an agency.
19 Specifically, the appointing body must post all of the following information on its website: (1) a list of each appointed position and its term; (2) the amount of the stipend for each appointed position; (3) the name of the official who has been appointed to the position; and (4) the name of any official who has been appointed to be an alternate for the position. Regulation 18702.5(b)(2).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations • Permit the official's use of any government property, including automobiles or other modes of transportation, mobile communication devices, or other agency -provided equipment for carrying out the official's duties, including any nominal, incidental, negligible, or inconsequential personal use while on duty.
• Result in the official's receipt of any personal reward from the official's use of a personal charge card or participation in any other membership rewards program, so long as the reward is associated with the official's approved travel expenses and is no different from the reward offered to the public.
Regulation 18702.5(b). Any effect on the interests noted above would not constitute a material effect on personal finances for the purpose of the Political Reform Act.
Regulation 18702.5 clarifies that if a decision only affects a business entity or real property in which the official has a financial interest, the regulation regarding personal finances does not apply. Regulation 18702.5(c). Under those circumstances, the official should analyze the applicable materiality standards for those types of interests in Regulations 18702.1 and 18702.2 to determine whether a conflict exists.
STEP FIVE: DOES THE "PUBLIC GENERALLY"
EXCEPTION APPLY?
Determine if the official can demonstrate
that the material financial effect on the
official's interest is indistinguishable from the
decision's effect on the public generally.
Once it is determined that it is reasonably foreseeable that a decision will have a material financial effect on an official's financial interest, it is necessary to evaluate whether an exception to the disqualification requirement is applicable. One exception, known as the "public generally" exception, provides that even if a governmental decision will have a reasonably foreseeable material financial effect on the official's financial interest, disqualification will not be required if the effect on the public official's financial interest is indistinguishable from the decision's effect on the financial interests of the public generally. Regulation 18703.
In order to use this exception, the official must be able to demonstrate two core elements. First, the governmental decision must affect a "significant segment" of the public in the jurisdiction of the public agency. Second, the governmental decision's effect on the official's financial interest must not be unique as compared to the effect on the significant segment. Regulation 18703(a).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations The FPPC has simplified the regulation to determine what constitutes a sufficiently "significant segment" of the public. Regulation 187O3(b). A significant segment of the public is:
• At least 25 percent of any of the following:
✓ All businesses or nonprofit entities within the official's jurisdiction; ✓ All real property, commercial real property, or residential real property within the official's jurisdiction; or
✓ All individuals within the official's jurisdiction.
• At least 15 percent of residential real property within the official's jurisdiction, if the official's only interest in a government decision is the official's primary residence.
Regulation 187O3(b).
To determine whether a decision's effect on the official's financial interest is "unique" as compared to the effect on the significant segment of the public, the FPPC requires that an official determine whether the decision has a "disproportionate" effect on:
• The development potential or use of the official's real property or on the income producing potential of the official's real property or business entity.
• An official's business entity or real property resulting from the proximity of a project that is the subject of a decision.
• An official's interests in business entities or real properties resulting from the cumulative effect of the official's multiple interests20 in similar entities or properties that is substantially greater than the effect on a single interest. • An official's interest in a business entity or real property resulting from the official's substantially greater business volume or larger real property size when a decision affects all interests by the same or similar rate or percentage.
• A person's income, investments, assets or liabilities, or real property if the person is a source of income or gifts to the official.
• An official's personal finances or those of his or her immediate family.
Regulation 187O3(c).
20 Ownership of only two residential properties apparently would not constitute "multiple interests ... in properties that is substantially greater than the effect on a single interest." Peake Advice Letter, FPPC No. A-15-227, 2015 WL 9680333 (2015) .
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations The official's "jurisdiction" for the purposes of this regulation constitutes the "jurisdiction of the state or local government agency as defined in Section 82035, or the designated geographical area the official was elected to represent, or the area to which the official's authority and duties are limited if not elected." Regulation 18703(d). Real property is considered to be within a "jurisdiction" if the "property or any part of it is located within, or not more than, two miles outside the boundaries of the jurisdiction or within two miles of any land owned or used by the local government agency." § 82035.
The FPPC Regulations include a number of specialized "public generally" exceptions.
Regulation 18703(e). The financial effect on an official's financial interest is deemed indistinguishable from that of the public generally where there is no unique effect on the official's interest if the official establishes:
• The decision sets or adjusts the amounts of assessments, taxes, fees, or rates for water, utility, or other broadly provided public services or facilities that are applied equally, proportionally, or by the same percentage to the official's interest and other businesses, properties, or individuals subject to the assessment, tax, fee, or rate. However, the exception does not apply if the decision imposes assessments, taxes, or fees, determines the boundaries of a property, or determines who is subject to the assessments, taxes, or fees. Under this exception, these factors must already be determined.
• The decision affects the official's personal finances as a result of an increase or decrease to a general fee or charge, such as parking rates, permits, license fees, application fees, or any general fee that applies to the entire jurisdiction.
• The decision affects residential real property limited to a specific location, encompassing more than 50, or five percent of the residential real properties in the official's jurisdiction, and the decision establishes, amends, or eliminates ordinances that restrict on -street parking, impose traffic controls, deter vagrancy, reduce nuisance or improve public safety, provided the body making the decision gathers sufficient evidence to support the need for the action at the specific location. • The decision is limited to establishing, eliminating, amending, or otherwise affecting the rights or liabilities of tenants and owners of residential real property, including rent control or tenant protection matters. Officials may participate if: (1) the decision is applicable to all residential rental properties within the official's jurisdiction other than those excepted by the Costa -Hawkins Rental Housing Act; (2) the official owns three or fewer residential units; and (3) the only interests affected by the decision are the official's interest in residential real property as a landlord or the official's interest in a primary residence as owner or lessee.
• The decision is made by a board or commission and the law that establishes the board or commission requires certain appointees have a Summary of Principal Conflicts of Interest Laws and Regulations Page 20 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations representative interest in a particular industry, trade, or profession or other identified interest, and the public official is an appointed member representing that interest. This provision applies only if the effect is on the industry, trade, or profession or other identified interest represented. • The decision is made pursuant to an official proclamation of a state of emergency when required to mitigate against the effects directly arising out of the emergency.
• The decision affects a federal, state, or local governmental entity in which the official has an interest.
Regulation 18703(e).
STEP SIX: MAY THE OFFICIAL MAKE OR
PARTICIPATE IN MAKING A
DECISION?
Determine whether the public official will be
making, participating in the making, or using
or attempting to use his/her official position
to influence a governmental decision.
The Act applies when a public official is "making, participating in making, or using or attempting to use official position to influence a government decision." Regulation 18704. If the official will be called upon to make, participate in making, or use his or her official position to influence a governmental decision in which the official has a financial interest, the official will have a prohibited conflict of interest. The FPPC regulations define each of these actions for purposes of applying the Act:
• A public official "makes" a governmental decision when the official authorizes or directs any action, votes, appoints a person, obligates or commits his or her agency to any course of action, or enters into any contractual agreement on behalf of his or her agency. Regulation 18704(a).21
• A public official "participates in" a governmental decision when the official provides information, an opinion, or a recommendation for the purpose of affecting the decision without significant intervening substantive review. Regulation 18704(b).
• A public official "uses an official position to influence" a decision if the official: (i) contacts or appears before any official in his or her agency or in an agency subject to the authority or budgetary control of his or her agency for the purpose of affecting a decision; or (ii) contacts or appears 21 A public official's "determination not to act" does not constitute participating in "making" a governmental decision when the public official is abstaining from a decision due to a personal financial interest.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations before any official in any other government agency for the purpose of affecting a decision, and the public official acts or purports to act within his or her authority or on behalf of his or her agency in making the contact.
Regulation 18704(c).
There are limited exceptions to this rule. A public official is not making, participating in making, or influencing a government decision when the official acts in a solely ministerial, secretarial, or clerical manner. Regulation 18704(d) (1).
In addition, an official is not making, participating in making, or influencing a government decision when the official appears before the public agency as a member of the general public to represent specific and limited "personal interests" or when the official negotiates his or her compensation or terms of employment. Regulation 18704(d). With respect to negotiating the terms of employment, however, "an official may not make a decision to appoint, hire, fire, promote, demote, or suspend without pay or take disciplinary action with financial sanction against the official or the official's immediate family, or set a salary for the official or the official's immediate family different from salaries paid to other employees of the government agency in the same job classification or position." Regulation 18704(d) (3).
Making, participating in, or influencing a governmental decision also does not include communications to either the press or the general public. Regulation 18704(d)(4). Nor does it include academic decisions. Regulation 18704(d) (5). Limited actions in an official's professional capacity as an architect or engineer also are not considered to be making, participating in, or influencing a governmental decision. Regulation 18705(d) (6). Finally, an official who serves as a consultant will not be participating in a decision by making a recommendation regarding additional services if the agency has already contracted with the consultant - for an agreed upon price - to make recommendations concerning services of the type offered by the consultant.
Regulation 18704(d) (7).
STEP SEVEN: IS THE PUBLIC OFFICIAL'S
PARTICIPATION LEGALLY REQUIRED?
Determine if the public official's
participation is legally required despite a
conflict of interest.
A public official also is permitted to participate in making a governmental decision, despite having a conflict of interest in the decision, if no alternative source of decision exists that would be consistent with the purposes and terms of the statute authorizing the decision. Regulation 18700(e), 18705(a).
This exception is applied when a quorum of a legislative body cannot be convened due to the disqualifying conflicts of interests of its members. In that situation, as many Summary of Principal Conflicts of Interest Laws and Regulations Page 22 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations members as are needed to create the minimum number for the quorum may be selected at random to participate. In these situations, stringent disclosure requirements apply, not only regarding the basis of the selected member's conflict of interest, but also the reason why there is no alternative source of decision -making authority.
Regulation 18705(b). For the purposes of this section, a "quorum" means "the minimum number of members required to conduct business and when the vote of a supermajority is required to adopt an item, the "quorum" shall be that minimum number of members needed for that adoption." Regulation 18705(d).
Note that this rule is construed narrowly and may not be invoked to permit an official who is otherwise disqualified to vote to break a tie or to vote if a quorum can be convened of other members of the agency who are not disqualified, whether or not such other members are actually present at the time of the decision. Regulation 18705(c).
4. Abstention
When a public official has a conflict of interest under the Act, he or she is required to abstain from making, participating in making, or using or attempting to use his or her official position to influence the local agency's decision. Abstention avoids a violation of the conflict of interest provisions of the Act.
The Act establishes specific procedures that most public officials must follow when they have a conflict of interest and are required to abstain from a decision. § 87105; Regulation 18707. Immediately prior to the consideration of the matter, the official must: (i) identify each financial interest that gives rise to the conflict in detail sufficient to be understood by the public (except that disclosure of the exact street address of a residence is not required); (ii) publicly state his or her recusal from the matter; and (iii) leave the room until after the disposition of the matter unless the matter appears on a consent calendar, or other similar portion of an agenda for uncontested matters, or the official is speaking as a member of the public regarding an applicable personal interest. § 87105; Regulations 18707, 18704(d) (2). The FPPC recently clarified the procedure required and precise information that must be disclosed, as described in new Regulation 18707. This includes additional information regarding rules for closed sessions and matters on the consent calendar. Public officials may not avoid disclosure through partial absences and must disclose financial interests either immediately prior to consideration of an item or if the official arrives after consideration, immediately after the official joins the meeting.
The procedure stated in Regulation 18707(a) must be followed by all council members, judges, elected state officers, members of planning commissions, members of boards of supervisors, district attorneys, county counsels, city managers, city attorneys, city treasurers and other public officials who manage public investments, and to candidates for any of these offices at any election. §§ 87105, 87200. The Act does not require other public officials who must file financial disclosure forms under local conflict of interest codes to follow the same procedure, but the FPPC has now prescribed specific rules for those public officials. Regulation 18707(b).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations Depending on the nature of his or her interest, a public official who must abstain from a decision may comment on the item as a member of the public during the public comment period on a matter related to his or her "personal interests." The term "personal interest" is defined to include an interest in real property or a business entity that is wholly owned by the official or his or her immediate family. Regulations 18704(d) (2) (A) and (B). It also includes business entities over which the official, or the official and his or her immediate family, exercise sole direction and control. Regulation 18704(d) (2) (C).
If a public official wishes to speak on a matter related to his or her "personal interests," the official must publicly identify the financial interest (including all of the specific details required by the regulation). Regulation 18707(a) (1) (A). The public identification must be made orally and be included in the official public record. Regulation 18707(a)(1)(B).
Subsequently, the official must recuse himself or herself and leave the dais to speak from the same area as the members of the public. Regulation 18707(a)(3)(B). Like other members of the public, the official may listen to the comments of other speakers on the matter. Id.
Note that when a public official abstains from a decision, his or her presence does not count toward achieving a quorum. Regulation 18707(a)(3). Accordingly, if several officials must abstain from a decision under the Political Reform Act, there may not be sufficient members of the body present to consider a matter under the Brown Act. In such a circumstance, it may be possible to use the exception for legally required participation, as discussed above.
5. Penalties for Violation
Administrative, civil, and criminal penalties exist for violations of the conflict of interest provisions of the Act. The FPPC may levy administrative penalties after a hearing and may impose a fine of up to $5,000 per violation, a cease and desist order, and an order to file reports. § 83116. The FPPC recently updated regulations providing for streamlined administrative enforcement procedures and specific penalties for various types of violations. Regulations 18360, 18360.1, 18360.2, 18360.3.
Civil penalties include injunctive relief that may be sought by the district attorney or any person residing in the jurisdiction. § 91003. In the event a court finds that the actions would not have been taken but for the action of the official with the conflict of interest, the court is empowered to void the decision. § 91003. Misdemeanor criminal penalties are provided in situations where a knowing or willful violation of the act occurs, and generally, persons convicted of violating the Act may not be a candidate for elective office or act as a lobbyist for four years after the conviction. §§ 91000, 91002. The statute of limitations for civil and criminal enforcement actions is four years from the date of the violation. §§ 91000(c), 9101 1(b). The statute of limitations for administrative actions brought by the FPPC is five years from the date of the violation. § 91000.5.
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6. Seeking Advice on Conflict of Interest Questions
It is important to note that only a formal advice letter from the FPPC staff can immunize a public official from potential enforcement by the FPPC or the District Attorney in the event the public official participates in a decision and someone subsequently alleges the public official had a prohibited conflict of interest. A formal advice letter usually takes the FPPC staff at least a month to prepare, is only provided if the request relates to prospective acts (as distinguished from past acts), and if it contains sufficient facts upon which the FPPC is able to render a decision. Informal written advice (without immunity from potential enforcement action) may also be requested from the FPPC staff as well as informal telephonic advice through their technical assistance division at 1 866 ASK FPPC (1 866 275 3772). Based on the time frames required to obtain formal or informal written advice from the FPPC, it is important for public officials to consult their city attorney or local agency counsel as early as possible so as to provide adequate time to gather all relevant facts, draft a letter to the FPPC, and respond to the advice once given.
B. Government Code Section 1090
Government Code Section 1090 provides in relevant part: "[m]embers of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members."
The purpose of the prohibition contained in Section 1090 is to preclude a public official from using his or her position to obtain business or financial advantage through the approval of contracts by the public entities which he or she serves. As more fully explained below, the prohibition applies to not only preclude a member of the body or board that approves the contract from directly contracting with that same public entity, but it also applies when the public official has a financial or other specified relationship to the entity that seeks to contract with the public entity. The intent of the law is to remove the possibility of any personal influence that might bear on an official's decision -making activities on contracts executed by his or her public entity.
Upon the enactment of the Act in 1974, questions arose as to whether that new law impliedly repealed or preempted the provisions of Section 1090. The California Attorney General addressed this issue first, concluding in a 1976 opinion that the Act did not implicitly repeal or preempt Section 1090. 59 Ops. Cal. Att'y Gen. 604, 671 (1976). Since that time, the courts and the Attorney General have consistently considered Section 1090 as having continuing effect. For example, in People v. Honig, 48 Cal. App. 4th 289, 328-29 (1996), the defendant in a criminal case for violations of Section 1090 argued that the Act superseded Section 1090. The California Court of Appeal declined to so rule, holding instead that the term "financially interested" in Section 1090 has a different meaning than the term "material financial effect" in the Act. In another case, the California Court of Appeal again held that the Act and Section 1090 are "two different statutory schemes." City of Vernon v. Central Basin Mun. Water Dist., 69 Cal.
App. 4th 508, 513 (1999); see also Fraser-Yamor Agency, Inc. v. County of Del Norte, 68 Summary of Principal Conflicts of Interest Laws and Regulations Page 25 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations Cal. App. 3d 201 (1977); People v. Vallerga, 67 Cal. App. 3d 847 (1977); City Council v.
McKinley, 80 Cal. App. 3d 204 (1978); City of Imperial Beach v. Bailey, 103 Cal. App. 3d 191 (1980); Thomson v. Call, 38 Cal. 3d 633 (1985); Campagna v. City of Sanger, 42 Cal.
App. 4th 533 (1996); 67 Ops. Cal. Att'y Gen. 369, 375 (1984); 69 Ops. Cal. Att'y Gen. 102 (1986); 70 Ops. Cal. Att'y Gen. 45, 47 (1987); 73 Ops. Cal. Att'y Gen. 191, 194-95 (1990).
Both the Act and the common law (meaning court -made) doctrine against conflicts of interest require the public official with a conflict of interest to abstain from participation in the decision. Section 1090, by contrast, also prohibits the public entity from entering into a contract in which one of its officers or employees has a financial interest, unless certain exceptions apply.
If the conflicted official is a member of a board or commission that executes the contract, he or she is conclusively presumed to be involved in the making of his or her agency's contracts. Thomson v. Call, 38 Cal. 3d at 649. This absolute prohibition applies regardless of whether the contract is found to be fair and equitable or the official abstains from all participation in the decision. Thomson, 38 Cal. 3d at 649-50; Fraser-Yamor Agency, 68 Cal. App. 3d at 21 1-12; City of Imperial Beach, 103 Cal. App. 3d at 195. The only way a public entity could still enter into such a contract - i.e., in which an official who is a member of the board or commission that executes the contract has a financial interest - would be if that interest qualifies as a "remote interest" or "non -interest" within the meaning of specified provisions discussed below.
1. Three Principal Components of Section 1090
The prohibition contained in Section 1090 involves three principal components: (1) the person subject to the prohibition must be an officer or employee of one of the types of governmental entities listed in Section 1090; (2) the public officer or employee must be "financially interested" in a contract; and (3) the contract must be made by either the public official in his or her official capacity or by the body or board of which the official is a member.
a. Officer or Employee of Listed Government Entity
The first element is whether the person subject to the prohibition is a member of the Legislature or an officer or employee of the state, a county, a district, a judicial district, or a city. Virtually every officer or employee of a municipality or local governmental district is subject to the prohibition of Section 1090. In 2018, the Attorney General concluded that a California charter school's governing body is also subject to Section 1090. 101 Ops. Cal. Atty. Gen. 92.
In recent years, the courts also have concluded that consultants may be considered "employees" for the purpose of civil liability under Section 1090. In 2017, the California Supreme Court held that Section 1090 applies to independent contractors "when they have duties to engage in or advise on public contracting that they are expected to carry out on the government's behalf." People v. Superior Court (Sahlolbei), 3 Cal. 5th 230 (2017); see also, California Housing Finance Agency v. Hanover/California Management and Accounting Center, Inc., 148 Cal. App. 4th 682, 691 (2007); see also, Summary of Principal Conflicts of Interest Laws and Regulations Page 26 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations Hub City Solid Waste Services, Inc. v. City of Compton, 186 Cal. App. 4th 1114, 1 124- 1125 (2010). Moreover, the courts have held that even private companies may be subject to Section 1090 where the company has the potential to exert considerable influence over the agency's contracting decision. Davis v. Fresno Unified School District, 237 Cal. App. 4th 261 (2015); McGee v. Balfour Beatty Construction, LLC, 247 Cal. App. 4th 235, 261 (2016). In 2019, the California Court of Appeal clarified that a consultant's mere provision of services to a public agency does not create a per se conflict of interest precluding future contracts, if, in the initial transaction, the consultant was not entrusted with acting on behalf of the public agency. California Taxpayers Action Network v. Tabor Construction, Inc., 42 Cal. App. 5th 824 (2019).
As such, we advise that both public agencies and independent contractors carefully evaluate whether their duties and obligations include engaging in or advising on public contracting. If so, their involvement in those contracting decisions must be evaluated for compliance with Section 1090.
b. Financial Interest in a Contract
The second element of the prohibition is the existence of a direct or indirect financial interest in a contract. The courts have interpreted the term "financially interested" as including any direct interest, such as that involved when a public official enters directly into a contract with the body of which he is a member. Thomson v. Call, 38 Cal. 3d 633 (1985). The courts have also interpreted "financially interested" as including indirect financial interests in a contract, where, for example, a public official has a business relationship with the entity that would be contracting with the public entity, or when the public official would gain something financially by the making of the contract. Fraser- Yamor Agency, 68 Cal. App. 3d 201 (1977); Finnegan v. Schrader, 91 Cal. App. 4th 572, 579 (2001). In Thomson v. Call, the California Supreme Court described the breadth of the statute this way:
"Section 1090 forbids city officers ... from being 'financially interested in any contract made by them in their official capacity, or by any body or board of which they are members.' The proscribed interest certainly includes any direct interest, such as that involved when an officer enters directly into a contract with the body of which he is a member. California courts have also consistently voided such contracts where the public officer was found to have an indirect interest therein. . . . Neither the absence of actual fraud nor the possibility of a `good faith' mistake on [the officer's] part can affect the conclusion that this contract violates section 1090 and is therefore void."
38 Cal. 3d at 645-46 (citations omitted).
In Thomson, a council member sold certain real property to a third party, knowing that the city was negotiating a deal to acquire multiple parcels of property in that area for a public park. The third party then conveyed the council member's property to the city, in an apparent attempt to evade the provisions of Section 1090. The court essentially "unwound" and invalidated the entire transaction based on the council member's Summary of Principal Conflicts of Interest Laws and Regulations Page 27 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations interest in the transaction. The court refused to focus on the isolated contract between the city and the third party that bought the property from the council member, but rather viewed all of the successive contracts as one complex multi -party agreement.
The court ordered the council member to disgorge all funds he received in the transaction and ordered that the city retain title to the property. The court noted that this type of severe remedy was necessary to discourage violations of Section 1090.
Other decisions have followed this same broad reading of "indirect interests." In People v. Vallerga, the California Court of Appeal summarized court decisions addressing financial interests under Section 1090 as follows: "However devious and winding the chain may be which connects the officer with the forbidden contract, if it can be followed and the connection made, the contract is void." 67 Cal. App. 3d 847, 867 (1977); see also People v. Honig, 48 Cal. App. 4th 289, 315 (1996) (stating the same rule).
The scope of indirect interests that could form a "devious and winding chain" back to a public contract is broad, but this reflects the judicial stance of vigilant enforcement of Section 1090. See, e.g., Thomson, 38 Cal. 3d at 652 (" [T] he policy of strict enforcement of conflict -of -interest statutes ... provides a strong disincentive for those officers who might be tempted to take personal advantage of their public offices, and it is a bright - line remedy which may be appropriate in many different factual situations."); Berko v.
Woodward, 125 Cal. 119, 128 (1899) (noting the need for "strict enforcement" of the conflict of interest statutes).
Although Section 1090 traditionally has been interpreted broadly, a California appellate decision warned against an overly broad interpretation of the term "financial interest" for the purpose of Section 1090. See Eden Township Healthcare District v. Sutter Health, 202 Cal. App. 4th 208, 228 (2011). The court acknowledged the general principle that the "defining characteristic of a prohibited financial interest is whether it has the potential to divide an official's loyalties and compromise the undivided representation of the public interest the official is charged with protecting." Id. at 221. The court concluded that the salaried CEO of a non-profit medical center, who also served on the board of a hospital district, was not financially interested in contracts between the medical center and the hospital district, despite the clear potential effect on his employer. Id. at 222. The court noted that there was "nothing in the record to support the inference that the [agreements] bear any relationship to [the CEO's] continued employment" with the medical center. Id. at 223-224. Moreover, the court noted that there was "no evidence that [the CEO would] derive any financial benefit arising from the" agreements in question. Id. at 226. The court stated broadly:
In our view, if the contract itself offers no benefit to the official, either directly or indirectly, then the official is not financially interested in the contract and any explicit legislative exemption for such a circumstance would be unnecessarily redundant.
Id. at 228. The court distinguished the case of Miller v. City of Martinez, 28 Cal. App. 2d 364 (1938), in which the complaint alleged that a council member had a financial interest in a contract with a company that employed him and in which he also held stock. Id. at 226.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations The ruling in Eden Township could be construed to suggest that an official is only "financially interested" in a contract that affects the official's compensation or continued employment.22 In light of subsequent FPPC advice letters, however, there is continued uncertainty regarding the application and interpretation of the court's holding in Eden Township.23 As such, we recommend that public officials seek legal assistance whenever a potential Section 1090 conflict arises.
In addition to a "financial interest," there must be a contract in order for Section 1090 to apply, as described below. General contract principles apply to this determination and include such arrangements as purchase and service contracts as well as development agreements between a city and a developer (78 Ops. Cal. Att'y Gen. 230 (1995)); 82 Ops. Cal. Att'y Gen. 126, 129 n.4 (1999)), joint powers agreements (People v. Gnass, 101 Cal. App. 4th 1271, 1301 (2002)), and payments for conference attendance expenses (75 Ops. Cal. Att'y Gen. 20 (1992)).
C. A Contract "Made" by the Official or by a Body or Board of which the Official Is a Member
The third element necessary for a Section 1090 violation is that the contract has to be "made" either by the official or employee acting in his or her official capacity, or by any body or board of which the official is a member. The "making" of a contract is most commonly implicated by a city council's approval of a simple purchase order as part of the approval of a demand warrant registrar; this is likely to constitute the making of a contract within the scope of Section 1090. The courts have construed the term "made" as encompassing such elements in the formation of a contract as preliminary discussions, negotiations, compromises, reasoning, planning, and drawing of plans or specifications and solicitation for bids. Millbrae Ass'n for Residential Survival v. City of Millbrae, 262 Cal. App. 2d 222, 237 (1968). For example, in City Council of San Diego v.
McKinley, 80 Cal. App. 3d 204, 212 (1978), a court of appeal found a Section 1090 violation when a city council entered into an agreement with a landscape architectural firm, of which the president, a stockholder, was also a member of the city's parks and recreation board. The board investigated and advised the city council on parks and recreation development issues, and it approved plans for a Japanese garden for which the board member's company ultimately received the development contract. Even though the board member was not a member of the city council, which awarded the contract to his company, the board member's participation in the planning for the garden was sufficient to constitute participation in "making" the contract:
"[T]here is ample authority the negotiations, discussions, reasoning, planning, and give and take which go beforehand in the making of a decision to commit oneself must all be deemed to be a part of the making of an agreement in the broad sense. [Citation omitted.] Thus, the 22 See also, Ansolabehere Advice Letter, FPPC No. A-15-180, 2015 WL 9680325 (2015); Devaney Advice Letter, FPPC No.
A-15-213, 2015 WL 7252462 (2015); but cf. Carney Advice Letter, FPPC No. A-16-073, 2016 WL 3212417 (2016) and Diaz Advice Letter, FPPC No. A-16-214, 2016 WL 7033000 (2016). 23 See, e.g., Diaz Advice Letter, FPPC No. A-16-214, 2016 WL 7033000 (2016) and Roy Advice Letter, FPPC No. A-16-157, 2016 WL 6565871 (2016).
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80 Cal. App. 3d at 212.
Similarly, in Stigall v. City of Taft, 58 Cal. 2d 565, 569-70 (1962), the California Supreme Court held that an impermissible conflict existed in a contract with a plumbing company owned by a council member, even though the council member resigned before the plumbing company's bid was accepted. The court recognized that activities prior to the signing of a contract can be integral to the decision to accept the contract. Id. at 569; see also Campagna v. City of Sanger, 42 Cal. App. 4th 533, 538 (1996).
2. Exceptions to Section 1090
a. "Remote Interest" Exception
There are two categories of exceptions to Section 1090. The first, encompassing what are commonly referred to as "remote interests," is set forth in Section 1091. If an official has only a remote interest in a contract, then the local agency may enter into the contract as long as the official abstains from participating in the making of the contract in any way. Although this is not an exhaustive list of the "remote interest" exceptions, a few examples of "remote interest" exceptions include the following:
• Remote interest exception for a compensated officer or employee of a nonprofit corporation (Section 1091 (b)(1));
• Remote interest exception for a person receiving a government salary, per diem, or reimbursement for expenses, even when the contract involves the department of the government entity that employs the board member (Section 1091 (b)(13));
• Remote interest exception for a litigation settlement agreement between an officer that is a party to litigation involving the body or board of which the officer is a member (Section 1091 (b)(15); and
• Remote interest exception for the owner or partner of a firm who serves as an appointed member of an unelected board or commission of the contracting agency if the owner or partner recuses himself or herself from:
(1) providing any advice to the contracting agency regarding the contract between the firm and the contracting agency; and (2) any participation in reviewing a project that results from that contract (Section 1091 (b)(17)).
The "remote interest" exception applies only if the interest is disclosed to the body that approves the contract, the disclosure is noted in that body's official records, and the official abstains from voting. Further, members with a "remote interest" may not Summary of Principal Conflicts of Interest Laws and Regulations Page 30 © 2023 Richards, Watson & Gershon
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b. "Non -Interest" Exception
The second category of exceptions is found in Section 1091.5. These are called "non - interest" exceptions and apply to a type of interest that is completely exempt from Section 1090 and, if held by the official, does not require abstention. Unlike the "remote interest" exceptions in Section 1091, most of the "non -interest" exceptions listed in Section 1091.5 are available to both board members and employees who are covered by the general prohibition in Section 1090. Although this is not an exhaustive list, examples of some of those exceptions are listed below:
• Non -interest exception for government salary, per diem, or reimbursement of expenses when the contract does not involve the department of the government entity that employs the officer or employee (Section 1091.5 (a) (9));
• Non -interest exception for government salary to an officer's or employee's spouse when the spouse was employed by the government entity for at least one year prior to the officer's or employee's election or appointment (Section 1091.5 (a) (6));
• Non -interest exception for a non -compensated officer of a nonprofit corporation that supports the functions of the public entity or to which the public entity is required to give particular consideration (Section 1091.5 (a) (8));
• Non -interest exception for non -salaried members of a nonprofit corporation (Section 1091.5 (a)(7));
• Non -interest exception involving the receipt of public services on the same terms as would be provided if the officer were not a member of the governmental body or board (Section 1091.5(a)(3)); and
• Non -interest exception for contracts for public services between a special district and its board members if the special district requires board members to be landowners or representatives of a landowner and the contract is made on the same terms and conditions granted to everyone else. (Section 1091.5(a)(14)). For purposes of the exception, "public services" include the powers and purposes generally provided pursuant to provisions of the Water Code relating to irrigation districts, California water districts, water storage districts, or reclamation districts.
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3. A Contract Made in Violation of Section 1090 is Void and Officials Violating Section 1090 Are Subject to Severe Penalties
Finally, it is important to note the extreme consequences of a Section 1090 violation and thus the caution with which persons must act to ensure compliance with this law. A public official who willfully violates any of the provisions of Section 1090 "is punishable by a fine of not more than $1,000, or by imprisonment in the state prison, and is forever disqualified from holding any office in this state." § 1097. The civil fines applicable to Section 1090 violations now can be up to the greater of $10,000 or three times the value of the financial benefit received by the defendant for each violation. § 1097.3(a). In addition, a contract made in violation of Section 1090 is void under Section 1092.
People ex rel. State v. Drinkhouse, 4 Cal. App. 3d 931, 935 (1970) ("[A] contract in which a public officer is interested is void, rather than voidable as the statute indicates."). As with the Political Reform Act, acting on the advice of counsel is not a defense to a Section 1090 violation. See People v. Chacon, 40 Cal. 4th 558 (2007); Chapman v.
Superior Court, 130 Cal. App. 4th 261 (2005).
Given these consequences, it is advisable for public officials to be very cautious in deciding whether they may participate in a contracting decision based on the existence of a "non -interest exception," whether they must abstain from those decisions based on the application of a "remote interest" exception, or whether their financial interest lies outside any exception and therefore precludes the public entity from entering into the contract altogether.
4. Aiding and Abetting Section 1090 Violations
In 2014, the California Legislature adopted Senate Bill 952, which added a subsection (b) to Government Code Section 1090, which now reads: "An individual shall not aid or abet a Member of the Legislature or a state, county, district, judicial district, or city officer or employee in violating subdivision (a)" of Section 1090. The Legislature added a similar provision to Section 1093 such that a person "shall not aid or abet the Treasurer, Controller, a county or city officer, or their deputy or clerk" in purchasing or selling "warrants, scrip, orders, demands, claims, or other evidences of indebtedness" for personal gain. § 1093. The Legislature also added a penalty for these crimes to Section 1097, which applies when a person "willfully aids or abets an officer or person in violating" Section 1090 or certain other conflict provisions. In light of these new provisions, city officers and employees must be careful to avoid "aiding and abetting" a Government Code Section 1090 violation.
5. Seeking FPPC Advice on Section 1090
In 2013, the State Legislature adopted Assembly Bill 1090, which amended the enforcement provisions applicable to Government Code Section 1090. With the adoption of AB 1090, a person who is subject to the prohibition in Government Code Section 1090 may request advice and/or a formal opinion from the FPPC. § 1097.1(c).
Opinions or advice must be requested prior to any action being taken, as the FPPC cannot issue options or advice based on past conduct. § 1097.1(c)(2). Such advice is admissible as evidence of good faith conduct by the requester if the requester truthfully Summary of Principal Conflicts of Interest Laws and Regulations Page 32 © 2023 Richards, Watson & Gershon
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In addition, the FPPC is now authorized to enforce the prohibition in Government Code Section 1090 through administrative or civil actions. § 1097.1 (a).
6. Statute of Limitations for Section 1090 Violations
The statute of limitations for bringing a criminal prosecution under Section 1090 is three years from the discovery of the violation. People v. Honig, 48 Cal. App. 4th 289, 304 (fn. 1) (1996); Penal Code §§ 801, 803(c). However, under Government Code Section 1092, a four-year statute of limitations applies to actions brought under Section 1090 to invalidate a contract. This four-year statute of limitations begins to run from the date that the plaintiff has discovered the violation, or in the exercise of reasonable care, should have discovered the violation. A four-year statute of limitations also applies to civil actions brought by the FPPC. § 1097.3(c).
C. Common Law Doctrine Against Conflicts of Interest
The common law doctrine against conflicts of interest constitutes the courts' expression of the public policy against public officials using their official positions for their private benefit. See Terry v. Bender, 143 Cal. App. 2d 198, 206 (1956). This doctrine provides an independent basis for requiring public officials and employees to abstain from participating in matters in which they have a financial interest. Violation of the doctrine can amount to official misconduct and can result in loss of office. Nussbaum v. Weeks, 214 Cal. App. 3d 1589 (1989).
By virtue of holding public office, an elected official "is impliedly bound to exercise the powers conferred on him with disinterested skill, zeal, and diligence and primarily for the benefit of the public." Noble v. City of Palo Alto, 89 Cal. App. 47, 51 (1928). An elected official bears a fiduciary duty to exercise the powers of office for the benefit of the public and is not permitted to use those powers for the benefit of a private interest. Id.
The common law doctrine against conflicts of interest has been primarily applied to require a public official to abstain from participation in cases where the official's private financial interest may conflict with his or her official duties. 64 Ops. Cal. Att'y Gen. 795, 797 (1981). However, the doctrine also applies when specific circumstances preclude a public official from being a disinterested, unbiased decision maker for a quasi-judicial matter. In one case, a council member who voted to deny permits for a condominium project near his house was deemed to have a common law conflict of interest (i.e., bias) due to his interest in preserving his ocean view and his personal animosity toward the applicants. Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1 152 (1996).
However, a more recent court decision creates some uncertainty as to whether the common law doctrine should be applied when statutory conflict of interest laws already address the particular situation. In BreakZone Billiards v. City of Torrance, 81 Cal. App. 4th 1205, 1233 (2000), the court declined to construe allegations of an official's bias in a decision to constitute a conflict of interest at common law when the applicable statutes already had been construed not to create a conflict of interest in that situation. In BreakZone, the court indicated, "[w]e continue to be cautious in Summary of Principal Conflicts of Interest Laws and Regulations Page 33 © 2023 Richards, Watson & Gershon
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11. OTHER SPECIALIZED CONFLICTS OF
INTEREST LAWS AND REGULATIONS
A. Doctrine Against Holding Incompatible Offices
1. The Common Law Doctrine Against Holding Incompatible Offices In addition to Government Code Section 1099 (discussed below), a common law doctrine (that is, legal principles established over time by court decisions) applies to prevent public officials from holding multiple public offices simultaneously. The common law doctrine against incompatibility of offices arose from a concern that the public interest would suffer when one person holds two public offices which might possibly come into conflict. The California Supreme Court set forth the following test for incompatibility of offices in People ex rel. Chapman v. Rapsey, 16 Cal. 2d 636 (1940):
"Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each. Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both."
16 Cal. 2d at 641-42. Incompatibility of offices is not measured only by conflicts which do exist, but also by those conflicts which might arise. Chapman, 16 Cal. 2d 636, 641-42 (1940); 66 Ops. Cal. Att'y Gen. 382, 384 (1983); 64 Ops. Cal. Att'y Gen. 288, 289 (1981).
In order to determine whether two positions are in conflict, it is necessary to determine first whether the two positions are both public offices within the scope of the doctrine.
No statutory definition is given to the term "public officer." However, in Chapman, the court stated:
"[A] public office is said to be the right, authority, and duty, created and conferred by law — the tenure of which is not transient, occasional, or incidental — by which for a given period an individual is invested with power to perform a public function for public benefit ....
One of the prime requisites is that the office be created by the Constitution or authorized by some statute. And it is essential that the incumbent be clothed with a part of the sovereignty of the state to be exercised in the interest of the public."
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Incompatibility can be triggered if the duties of the two offices "overlap so that their exercise may require contradictory or inconsistent action, to the detriment of the public interest." People ex rel. Bagshaw v. Thomson, 55 Cal. App. 2d 147, 150 (1942). Only one significant clash of duties and loyalties is required to make offices incompatible. 37 Ops. Cal. Att'y Gen. 21, 22 (1961). The policy set forth in Chapman includes prospective as well as present clashes of duties and loyalties. 63 Ops. Cal. Att'y Gen. 623 (1980) .
Abstention has not been recognized as a remedy for incompatible offices. The general rule provides:
"The existence of devices to avoid . . . [conflicts] neither changes the nature of the potential conflicts nor provides assurances that they would be employed. Accordingly, the ability to abstain when a conflict arises will not excuse the incompatibility or obviate the effects of the doctrine." 66 Ops. Cal. Att'y Gen. 176, 177 (1983) (citation omitted).
The effect of the doctrine of incompatibility of offices is that a public official who enters into the duties of a second office is deemed to have automatically vacated the first office if the two are incompatible. Chapman, 16 Cal. 2d at 644.
A list of some of the offices that the California Attorney General has found to be incompatible are as follows:
• County board of supervisors member and community college board member. 78 Ops. Cal. Att'y Gen. 316 (1995).
• Fire chief and board of supervisors member. 66 Ops. Cal. Att'y Gen. 176 (1983).
Public utility district member and county board of supervisors member. 64 Ops. Cal. Att'y Gen. 137 (1981).
• School district trustee and council member. 73 Ops. Cal. Att'y Gen. 354 (1990) .
• School board member and council member. 65 Ops. Cal. Att'y Gen. 606 (1982).
• County planning commissioner and council member. 63 Ops. Cal. Att'y Gen. 607 (1980).
• Fire chief and council member. 76 Ops. Cal. Att'y Gen. 38 (1993). • County planning commissioner and city planning commissioner. 66 Ops.
Cal. Att'y Gen. 293 (1983).
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Cal. Att'y Gen. 288 (1981).
• City planning commissioner and school district board member. 84 Ops.
Cal. Att'y Gen. 91 (1997).
• City manager and school district board member. 80 Ops. Cal. Att'y Gen. 74 (1997).
• School district board member and community services district board member. 75 Ops. Cal. Att'y Gen 112 (1992).
2. The Statutory Codification of the Common Law Doctrine of Incompatible Offices - Government Code Section 1099
Government Code Section 1099 is intended to create a statutory rule against holding incompatible offices. This section is not intended to expand or contract the common law rule and is intended to be interpreted based on precedent created through court decisions under the common law doctrine. Stats. 2005, c. 254 (S.B. 274), § 2.
Section 1099 provides that a public officer, including, but not limited to, an appointed or elected member of a governmental board, commission, committee or other body, shall not simultaneously hold two public offices that are incompatible as defined by the statute. Section 1099 provides that offices are incompatible when:
• Either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body;
• Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties and loyalties between the offices; or • Public policy considerations make it improper for one person to hold both offices.
As is the case under the common law doctrine, Section 1099 provides that when two public offices are incompatible, a public officer shall be deemed to have forfeited the first office upon acceding to the second office. However, Section 1099 recognizes that certain state laws or possibly local ordinances may expressly provide for the simultaneous holding of particular offices and that result would not be precluded by Section 1099.24 Section 1099 does not apply if one of the positions is a mere position of 24 See, e.g., People ex rel. Lacey v. Robles, 2020 WL 467582 (2020), which held that Section 1099's exception to the rule against holding incompatible offices if "simultaneous holding of the particular offices is compelled or expressly authorized by law" did not apply to an official serving as a mayor and a member of the board of directors for a water replenishment district, despite the fact that the city council and the water replenishment district adopted an ordinance and resolution, respectively, authorizing the official to simultaneously hold both offices. The court reasoned that (1) the Legislature's reference to "law" is "best understood as a reference to state, not local, law"; and (2) even if the reference to "law" could be understood to allow local jurisdictions to deem offices compatible notwithstanding a possible conflict in duties or loyalties, the water replenishment district lacked the authority to authorize its board members to hold incompatible offices.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations employment rather than a public office. It also does not apply when one of the positions is a member of a legislative body that has only advisory powers. § 1099(c), (d).
B. Incompatible Outside Activities
Government Code Section 1 126(a) provides, in relevant part:
"[A] local agency officer or employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a local agency officer or employee or with the duties, functions, or responsibilities of his or her appointing power or the agency by which he or she is employed...."
The provisions of Section 1 126 prohibit officials and employees of a local government agency from engaging in outside employment or activities where any part of the employment or activity will be subject to approval by any other officer, employee, board or commission of the local agency. Exceptions are created to permit a public official to engage in outside employment by a private business, and to permit an attorney employed by a local agency in a non -elective position to serve on an appointed or elected governmental board of another agency. §§ 1127, 1128.
However, the court in Mazzola v. City and County of San Francisco, 112 Cal. App. 3d 141 (1980) ruled that Section 1126 provides only authorization to implement standards for incompatibility pursuant to paragraph (b) of Section 1126. The court ruled that the restrictions of Section 1126 are not self-executing because existing and future employees should have notice that specific outside activities are, or are not compatible with their duties as an officer or employee of the local agency. Thus, Section 1126 would not bar a public official from holding a position outside his or her public agency unless the public agency in which he or she serves as a public official adopts an ordinance in compliance with the requirements of Section 1126 that specifies that the two positions or activities are incompatible. Many cities have not adopted such ordinances.
In light of the court's decision in Mazzola, the Attorney General ruled that Section 1 126 did not apply to any elected official, such as a council member, since elected officials do not have an "appointing power" that can promulgate guidelines for their activities pursuant to Section 1126. However, if a local agency adopts such guidelines, they can be made applicable to officers and employees subordinate to the legislative body of the local agency, including members of advisory boards and commissions. § 1 126(a).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations C. Successor Agency and Oversight Board Conflicts
1. Form 700s for Successor Agency and Oversight Board Members Regarding any city that adopted a resolution establishing a successor agency to the former redevelopment agency as a separate legal entity, an official who already files an annual Form 700 in his or her capacity as a city official does not need to file an Assuming Office Statement ("Assuming Office Form 700") within 30 days of assuming his or her position with the successor agency as long as these same city officials are already required to disclose all categories of economic interests. The successor agency official or employee will, however, have to file an Assuming Office Form 700 if he or she is not already required to disclose as a city official all categories of economic interests.
With respect to those successor agency officers and employees who do have an obligation to file an Assuming Office Form 700, the 30-day deadline for completing those filings is likely 30 days from the date he or she was appointed rather than 30 days after the officer or employee is sworn in to office or starts to perform duties. This means that if the successor agency was formed as a separate governmental entity, the date that the official was appointed to his or her position would be the date that the successor agency adopted its rules and regulations, established successor agency positions in those rules, and designated specific city officials to fill those positions.
However, if the successor agency appointed certain city officials to those positions at a later point in time, that later date would be the date from which the 30-day period would commence to run.
Members of an oversight board are subject to the Political Reform Act. This means oversight board members must comply with both the Act's conflict of interest disqualification and disclosure requirements. Oversight board members who do not also hold a concurrent city position need to file an Assuming Office Form 700 within 30 days of their appointment. For example, the appointees of the county, superintendent of schools, and other non -city representatives who do not concurrently hold a city position, should file an Assuming Office Form 700 as an oversight board member with the city clerk. Similarly, if one or both of the mayor's appointees do not concurrently hold a position with the city requiring disclosure of economic interests in all categories, they should file an Assuming Office Form 700 within 30 days of their appointment.
However, if a person appointed by the mayor to represent the city on the oversight board or any other appointee to the oversight board concurrently holds a position with the city that is already required to broadly disclose in all categories, these persons would not be required to file an Assuming Office Form 700 under the FPPC staff rationale noted above.
2. Obligation of Successor Agencies to Adopt Conflict of Interest Codes
The Act requires that local government agencies must adopt a conflict of interest code. An exception applies for those agencies where all of its officials and employees are already required to file Statements of Economic Interests as city officials. In the Summary of Principal Conflicts of Interest Laws and Regulations Page 38 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations case of a successor agency, some members of its oversight board will not be city officials or employees. For example, the county, school district, county superintendent, and community college appointees are most likely not going to be current city officials or employees. Consequently, the successor agency must adopt a conflict of interest code that includes the oversight board.
3. City Councils are the Code Reviewing Bodies for the Successor Agency's Conflict of Interest Code
Section 82011 (c) provides that for "city agencies," the code reviewing body is the city council.
The term "city agencies" is not defined in the Act but has been interpreted by the FPPC to mean local government agencies located solely within the boundaries of one city.
In the past, the FPPC has interpreted a redevelopment agency as being a "city agency" and the city council as being the code reviewing body for the redevelopment agency. In the case of a successor agency of a former redevelopment agency that operates solely within the boundaries of one city, the successor agency will not have a jurisdictional boundary that extends beyond the boundary of the city. Consequently, the city council of the city in which the former redevelopment agency operated will be the code reviewing body for the successor agency.
The city council, as the code reviewing body, is required to review and approve the successor agency's conflict of interest code not later than six months from the date the successor agency came into existence. § 87303. However, we recommend that this step be completed prior to that deadline for reasons mentioned below. Thus, it is appropriate to place the successor agency's conflict of interest code on a city council agenda for approval soon after the successor agency has adopted it.
4. The City Council May Designate the City Clerk as the Filing Officer for the Successor Agency's Statements of Economic Interests The term "filing officer" is defined in the Act to be the office or officer with whom any statement or report is required to be filed under this title. § 82027, Regulation 18115. In determining where Form 700s are to be filed for officials of a successor agency, the city council, as the code reviewing body, may designate whether the "agency" (successor agency) or the "code reviewing body" (city council) is to be the entity with which Form 700s are filed. § 87500(p). Once that designation is made, the duty to perform the functions of filing officer must be delegated to an individual in either entity such as the city clerk, pursuant to Regulation 18227. The person designated becomes the "filing officer." Regulation 18227 provides that every entity with whom forms are filed shall assign to a specific official the responsibility for receiving and forwarding reports filed pursuant to Section 87500 (including Form 700s). Once assigned, the filing officer has a duty to supply Form 700s, review submitted Form 700s for completeness, and notify all persons who have failed to file forms and report violations to appropriate agencies.
See § 81010, Regulations 18115, 181 15.1, 181 15.2.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations Thus, the city clerk or the successor agency secretary will most likely be the filing officer for the successor agency but such designation will ultimately be determined by the city council when acting as the code reviewing body for the successor agency's conflict of interest code. In the action to approve the successor agency's conflict of interest code, the city council should approve the successor agency's designation of the city clerk or successor agency secretary to be the filing officer for the successor agency's officials. In the meantime, it is appropriate for the city clerk or successor agency secretary to begin performing the duties of the filing official for the successor agency even though such designation will not be finalized until approved by the city council as the code reviewing body.
It is recommended that one of the first steps for the city clerk or successor agency secretary to undertake is to make a record of the appointment date for each officer of the successor agency and each member of the oversight board. With respect to those officials of the successor agency and oversight board that are not otherwise exempt from filing Assuming Office Form 700s for their position with the successor agency, city clerks should provide forms to those persons and facilitate the filing of those forms within the 30-day time period required. City clerks should be mindful of the more explicit obligations now set forth in Regulations 18104, 18115, 181 15.1, and 181 15.2.
D. Discount Passes on Common Carriers
Article XII, Section 7 of the California Constitution states:
"A transportation company may not grant free passes or discounts to anyone holding an office in this state; and the acceptance of a pass or discount by a public officer, other than a Public Utilities Commissioner, shall work a forfeiture of that office. A Public Utilities Commissioner may not hold an official relation to nor have a financial interest in a person or corporation subject to regulation by the commission."
The Attorney General has explained this provision applies in the following manner:
• The prohibition applies to public officers, both elected and non -elected, but not employees.
• The prohibition applies to interstate and foreign carriers as well as domestic carriers, and to transportation received outside California. • The prohibition applies irrespective of whether the pass or discount was provided in connection with personal or public business. • Violation of the prohibition is punishable by forfeiture of office.
There have only been a few decisions that address this constitutional prohibition. In one opinion, the Attorney General granted leave to sue two members of a city council who accepted free airline tickets to London given by Laker Airlines as part of the airline's promotion of its new Los Angeles to London service. Despite the fact that the council Summary of Principal Conflicts of Interest Laws and Regulations Page 40 © 2023 Richards, Watson & Gershon
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Gen. 1, 3 (1993).
In another opinion, the mayor of a city received an upgrade from a coach seat to a first class seat on Hawaiian Airlines. 76 Ops. Cal. Atty. Gen. 1 (1993). There, the mayor's ticket was one of 20 first-class upgraded tickets that the airline was allowed to provide to "high profile, prominent members of the community." At issue was whether that situation fit within an exception to the constitutional prohibition for situations when the free transportation or discount is provided to a public officer as a member of a larger group unrelated to the official's position. The Attorney General ruled that the facts did not satisfy the exception and that a violation of the prohibition had occurred.
The exception considered in that opinion stemmed out of a 1984 opinion of the Attorney General which held that a public officer could accept first-class ticket upgrades by virtue of the airline's policy to do so for all persons on their honeymoon. In 67 Ops. Cal. Atty. Gen. 81 (1984), the Attorney General concluded that a public officer, whose spouse was a flight attendant, could accept a free transportation pass or discount when such was offered to all spouses of flight attendants without distinction to the official status of the recipient.
Consequently, if the pass or discount is provided to the official because of his or her position as a governmental official, the prohibition applies. If it is provided to the official as a member of a larger group that is not related to the functions of his or her office, the prohibition may not be applicable.
E. Conflicts upon Leaving Office - the "Revolving Door" Former elected officials and former city managers are restricted from receiving compensation for lobbying their city for one year after they leave public office. This restriction also applies to elected county and district officials and their chief administrative officers or general managers, but not to department directors or other public officials and employees. § 87406.3(a). A violation of the statute constitutes a misdemeanor, and the FPPC is authorized to impose administrative fines and penalties for its violation. § 91000.
The type of lobbying subject to the ban includes both formal and informal appearances before a local agency and making any oral or written communication to the agency. The statute proscribes the appearances and communications if they are made to influence administrative or legislative action, or affect the issuance, amendment, awarding or revocation of a permit, license, grant, or contract, or the sale or purchase of goods or property. § 87406.3(a).
The term "administrative actions" within the scope of the lobbying ban includes "the proposal, drafting, development, consideration, amendment, enactment, or defeat by any local government agency of any matter, including any rule, regulation, or other action in any regulatory proceeding, whether quasi -legislative or quasi-judicial." However, matters that are "solely ministerial" are expressly excluded from the Summary of Principal Conflicts of Interest Laws and Regulations Page 41 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations prohibition. § 87406.3(d) (1). The type of "legislative action" within the scope of the ban includes:
"the drafting, introduction, modification, enactment, defeat, approval, or veto of any ordinance, amendment, resolution, report, nomination, or other matter by the legislative body of a local government agency or by any committee or subcommittee thereof, or by a member or employee of the legislative body of the local government agency acting in the member or employee's official capacity."
§ 87406.3(d)(2). The lobbying ban does not apply to any public official who is appearing or communicating on behalf of another local governing body or public agency of which the individual is a board member, officer or employee. § 87406.3(b)(1). Therefore, if such former elected city official or former city manager is contacting his or her city on behalf of the state, a county, a school district or some other governmental entity (in his or her capacity as a board member, officer, or employee), such activity is not precluded by the ban. However, the lobbying ban does apply for the initial year if the former elected city official or former city manager serves another public agency as an independent contractor and appears or communicates on behalf of that agency in front of the agency that the person originally served. § 87406.3(b)(2). Such activity would be prohibited for the first year after leaving office or employment with the original agency.
Some cities have their own preexisting "revolving door" ordinances that regulate the lobbying activities of their former public officials. This state law expressly does not preempt those ordinances or prevent cities from adopting additional ordinances on the subject in the future, provided those ordinances are more restrictive than the state law. § 87406.3(c). Thus, the law merely sets a minimum standard applicable to all cities.
F. Laws Prohibiting Bribery
A number of state statutes prohibit bribery of public officials. Specifically, it is illegal to give or offer to give a bribe to a public official, or for a public official to ask for, receive, or agree to receive any bribe. Penal Code §§ 67, 68. Under a strict reading of these statutes, Penal Code Section 68 applies to bribery of a "ministerial officer, employee, or appointee," and Penal Code Section 67 applies only to bribery of an "executive officer in this state," but the courts have interpreted both statutes as having a broad scope applicable to public officials generally. People v. Hallner, 43 Cal. 2d 715, 717 (1954) (observing that Penal Code Section 67, despite its wording, is "all inclusive" and includes city officials, and that "[b]y the sixty-seventh section the offense defined is that of one who offers; by the sixty-eighth, that of one who receives a bribe"); People v.
Strohl, 57 Cal. App. 3d 347, 360 (1976) ("Numerous California Supreme Court and appellate court decisions since 1954 have held that `executive officers' of various levels of local government, including the county level, as herein involved, come within [Penal Code] Section 67.").
The Legislature also expressly made bribery of council members and supervising officials a crime, as well as solicitation of bribes by council members and supervisors. Penal Summary of Principal Conflicts of Interest Laws and Regulations Page 42 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations Code § 165. Another statute makes it a crime for anyone to attempt to bribe "any person who may be authorized by law to hear or determine any question or controversy." Penal Code § 92. Considered together, these statutes cover the spectrum of public officials.
The term "bribe" signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity. Penal Code § 7(6). Note that under all of the bribery statutes, it is not only the actual giving or accepting of a bribe that is criminal; merely offering to give or receive a bribe constitutes a violation of law. See, e.g., People v. Pic'I (1982) 31 Cal. 3d 731, 739 (noting that a "meeting of the minds" is unnecessary for a bribery conviction).
A public officer forfeits his office if he requests, receives, or agrees to receive a bribe.
Penal Code § 68. In addition, every officer convicted of any crime defined in the Penal Code sections pertaining to bribery and corruption is forever disqualified from holding any office in the state. Penal Code § 98.
Note also that bribery and soliciting bribery potentially violate not only the Penal Code, but also the conflict of interest statutes. For example, in Terry v. Bender, 143 Cal. App. 2d 198 (1956), a court of appeal held that a council member violated Government Code Section 1090 when he solicited and received a bribe from an attorney in exchange for the council member's vote to employ the attorney with the city. 143 Cal.
App. 2d at 207 (observing that by accepting the bribe, the council member "had placed himself in a position of economic servitude" in violation of Section 1090).
Because the bribe "restricted the free exercise of the discretion vested in him for the public good," there was an impermissible conflict of interest.
G. Campaign Contributions
1. Conflicts of Interests Arising for Elected and Appointed Officials The Political Reform Act contains restrictions on the receipt and solicitation of campaign contributions. Under a portion of the Act known as the "Levine Act," a public agency official may not participate in decisions affecting individuals or entities who have given the official more than $250 in campaign contributions within the past 12 months. § 84308. This disqualification provision applies to appointed and local elected officials under new legislation25 that significantly changed the rules regarding campaign contributions to local elected officials.26 As of January 1, 2023, a local elected official cannot: (i) solicit, accept or direct a campaign donation over $250 from a party or a participant involved in a matter presently before the local agency and during the 12 months following the final decision; or (ii) participate in a proceeding 25 Senate Bill ("SB") 1439.
26 The FPPC determined that the disqualification provision under the Levine Act does not apply retroactively to campaign contributions that local elected officials received in 2022. The Act similarly does not apply retroactively to prohibit local elected officials from accepting campaign donations based on proceedings in 2022. Kendrick Advice Letter, No. 0-22-002, 2022 WL (2022).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations involving a party or a participant from whom the local elected official accepted over $250 within the preceding 12 months. § 84308. Importantly, in addition to now applying to local elected officials, the restrictions in Government Code Section 84308 still apply to planning commissioners and other officers of a public entity who are not directly elected by the voters.
Also, under the new law, an official who receives a prohibited donation may cure the violation depending on when the contribution was received. If a prohibited contribution was received during the 12 months before the final decision, then the contribution may be returned within 30 days from the time the official "knows, or should have known, about the contribution and the proceeding involving a license, permit, or other entitlement for use." Doing so cures the violation and allows the official to participate in the proceeding. Contributions of more than $250 may not be accepted during the proceeding and there is no "cure" for that violation. An official who unwillingly or unknowingly receives a contribution during the 12 months after the final decision may cure the violation by returning the excess amount "within 14 days of accepting, soliciting, or directing the contribution, whichever comes latest." The official or a controlled campaign committee must also maintain records of curing such violations. § 84308.
The Act classifies campaign contributions differently than other financial interests. As discussed previously, the Act requires that public officials abstain from government decisions in which they have a financial interest, with certain exceptions. § 87100. A public official generally has a proscribed financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect on (among other things): (i) a source of income aggregating $500 or more in value during the 12 months prior to the decision; or (ii) a donor of a gift or gifts aggregating $590 or more in value during the 12 months prior to the decision. § 87103(c), (e); Regulations 18700, 18940.2.
Campaign contributions, however, are not considered a "financial interest" for purposes of this disqualification because they are neither "income" nor a "gift" within the meaning of the statute. §§ 82028(b)(4), 82030(b)(1). This disqualification therefore is not triggered as a result of a council member's receipt of a campaign contribution.
2. Application of Federal Corruption Laws to the Offer or Solicitation of Illegal Campaign Contributions Tied to an Official Act Federal corruption laws apply to situations where the receipt of illegal, laundered or unreported campaign contributions are tied to an official act. In one case arising out of the City of San Diego, two council members were charged and convicted of wire fraud for conspiring to change the city's ordinance regulating adult -oriented businesses in exchange for campaign contributions from an adult -oriented business that had been illegally "laundered" through contributions made by residents of the city or which had been unreported and which constituted bribes. See United States v. Inzunza, 303 F.
Supp. 2d 1041, 1043 (S.D. Cal. 2004) for a list of the charges; the case was referred to in the press as the San Diego "Strip pergate" case. The charges included the alleged use of wire communications in interstate commerce in furtherance of the alleged conspiracy to defraud the public of their intangible right to honest service, in violation of 18 U.S.C. §§ 1951 (the Hobbs Act) and 1952 (Interstate Transportation in Aid of Summary of Principal Conflicts of Interest Laws and Regulations Page 44 © 2023 Richards, Watson & Gershon
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3. Ban on Local Agency Officials and Employees Soliciting Campaign Contributions from Officials and Employees of the Same Agency In an effort to avoid local agency public employees being drawn into local political campaigns or having their positions become the subject of political reward or retribution, California law contains a prohibition on the solicitation of campaign contributions by a local agency official or employee of other officials or employees within the same local agency. Section 3205 prohibits an officer or employee of a local agency from soliciting political contributions from an officer or employee of that same local agency. The prohibition applies to incumbents seeking re-election and to non - incumbent candidates for local agency office. An exception exists for broad general public solicitations to a "significant segment of the public" that also include some local agency officials and employees of that agency. § 3205(c). No definition exists as to what constitutes a significant segment of the public. In the context of conflict of interest provisions in the Political Reform Act, that term now is defined to include segments of the local agency population such as 25 percent of all individuals within an official's jurisdiction (Regulation 18703), and, in the absence of any court interpretation of the law, that standard provides some guidance on what may be a sufficiently broad solicitation to come within the scope of the exception. Violation of the prohibition is punishable as a misdemeanor and may be prosecuted only by the County District Attorney. § 3205(d).
4. Nepotism
One other potential source of a conflict of interest is a governmental decision that affects a family member. If a public official's relative has an application before the government agency on which the public official serves, the public official would potentially have an improper incentive to approve the relative's application. Because the financial interests of a public official's spouse and dependent children (children under 18 years of age who are dependent financially on their parents) are attributed to the public official under the Political Reform Act and Section 1090, participation in decisions financially benefiting spouses and dependent children is limited. §§ 82030, 87103; Thorpe v. Long Beach Community College Dist., 83 Cal. App. 4th 655 (2000) (holding that Section 1090 prohibited a community college district board from voting to approve the promotion of the spouse of a board member). If the approval did not require a decision by the legislative body, however, the public entity could still potentially approve an application or make a decision if the related public official did not participate.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations members.27 Currently, state law only prohibits such "extended family" interests for the governing boards of school districts. Educ. Code § 35107(e). Under that statute, a school board member must abstain from participating in personnel matters that uniquely affect his or her relative. "Relative" is defined as an adult who is related to the official by blood or affinity within the third degree, or in an adoptive relationship within the third degree. There is no comparable statute for cities and counties, but some local governments have established similar restrictions through ordinances or policies.
The issue of familial relations comes up more frequently in the context of personnel decisions, as when a public entity prohibits the hiring of relatives of public officials or employees. Such anti -nepotism policies are generally upheld by the courts. For example, in Parsons v. County of Del Norte, 728 F. 2d 1234 (9th Cir. 1984), the Ninth Circuit upheld a county policy prohibiting spouses from working in the same department. The Ninth Circuit held that the policy did not violate the Equal Protection and Due Process clauses of the U.S. Constitution and was rationally related to a legitimate government interest: avoidance of conflicts of interest and favoritism in employee hiring, supervision and allocation of duties. See also Kimura v. Roberts, 89 Cal. App. 3d 871, 875 (1979) (upholding a policy prohibiting spouses from serving on both the city council and planning commission, reasoning that "the finding of the mayor and the city council that an actual or implied conflict of interest existed, is eminently rational, practical and legally sound").
Note, however, that state law prohibits the application of anti -nepotism rules to spouses in some circumstances. The Fair Employment and Housing Act prohibits an employer from making an employment decision based on whether an employee or applicant has a spouse presently employed, except in two specific situations:
• For business reasons of supervision, safety, security or morale, an employer may refuse to place one spouse under the direct supervision of the other spouse.
• For business reasons of supervision, security or morale, an employer may refuse to place both spouses in the same department, division or facility if the work involves potential conflicts of interest or other hazards greater for married couples than for other persons.
2 C.C.R. § 1 1057(a) (emphasis added).
Accordingly, any anti -nepotism policy that a city or county adopts must not apply to the hiring of spouses, except in cases of direct supervision, where greater conflicts or hazards occur for married persons, or where a conflict of interest statute applies. 27 Davies Advice Letter, No. 1-90-329, 1990 WL 698051 (1990).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations III. LAWS AND REGULATIONS AFFECTING
RECEIPT OF GIFTS, HONORARIA AND
LOANS
The PRA provisions and other conflict of interest laws discussed above do not prohibit a public official from having an interest in a business or real property. Instead, they merely limit the official's ability to participate in governmental decisions that would materially affect those interests.
There are additional restrictions in the PRA, however, with regard to certain gifts, honoraria and loans. The statute precludes local officials (including council members and planning commissioners) from receiving certain gifts, honoraria and loans. These prohibitions apply whether or not the source of the gift, honorarium or loan is or will ever be affected by a decision of the official's agency. This section outlines these prohibitions.
A. Limitations on Receipt of Gifts
1. General Gift Limitation
Government Code Section 89503(a) provides: "No elected state officer, elected officer of a local government agency, or other individual specified in Section 87200 shall accept gifts from any single source in any calendar year with a total value of more than [$590]." (The gift limit amount has been adjusted in accordance with Regulation 18940.2.) Officials listed in Section 87200, in turn, include mayors, council members, planning commissioners, city managers, city attorneys, city treasurers, chief administrative officers and other public officials who manage public investments, and candidates for any of these offices.
A similar limitation prohibits a city employee designated in a local conflict of interest code from accepting gifts from a single source totaling more than $590 in value in any calendar year, if the gifts would be required to be reported on his or her statement of economic interests. § 89503(c).
2. Biennial Gift Limit Adjustment
The Act authorizes the FPPC to make an inflationary adjustment of the gift limitations set forth in Section 89503 every two years. § 89503(f). The most recent adjustment became effective on January 1, 2023, wherein the gift limit increased to $590. Regulation 18940.2. This figure will be further adjusted in future odd -numbered years.
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3. Exceptions to Gifts
None of the following is a gift and none is subject to any limitation on gifts (Regulation 18942):
a. Informational Materials
Informational materials such as books, reports, calendars, audio and video recordings, scale models, maps, free or discounted admission to informational conferences or seminars, and on -site demonstrations, tours or inspections that are provided to convey information for the purpose of assisting the official in the performance of official duties are not considered gifts. The cost of transportation for on -site demonstrations, tours or inspections may fall into this exception in particular situations. Regulations 18942(a)(1), 18942.1.
b. Returned Gifts
Except for passes and tickets as provided for in Regulation 18946.1 that must be ultimately used or transferred to have value, a gift that is not used and that, within 30 days of receipt, is returned, donated, or for which reimbursement is paid pursuant to Regulation 18941, is not a gift. Regulation 18942(a) (2). First, an unused gift returned to the donor, the donor's agent, or the donor's intermediary for which the returning party does not receive anything of value in exchange for the returned payment, does not constitute a gift. Regulation 18941 (c) (1). Next, an unused donation of a gift under this exception must be to either a 501 (c) (3) charitable organization with which the official or a member of his or her family holds no position or to a government agency, without being claimed as a tax deduction, also does not constitute a gift. Regulation 18941 (c) (2). Lastly, a gift fully reimbursed to the donor, agent, or intermediary from the recipient official is not a gift, but a partial reimbursement will result in a reduced gift amount. Regulation 18941 (c)(3).
C. Family Gifts
A payment from an individual's family member is not considered a gift unless the donor is acting as an agent or intermediary for any other person. The family members included in this exception are a spouse or former spouse, child or step -child, parent, grandparent, grandchild, brother, sister, current or former parent -in-law, current or former brother-in-law, current or former sister-in-law, nephew, niece, aunt, uncle, grand nephew, grand niece, grand aunt, grand uncle, first cousin or first cousin once removed, or the current or former spouse of any such person other than a former in-law.
Regulation 18942(a)(3).
d. Campaign Contributions
Campaign contributions that are reported in accordance with separate provisions of the Act are not considered gifts. Regulation 18942(a)(4).
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Devises or inheritances of any kind are not considered gifts. Regulation 18942(a)(5). f. Awards
A personalized plaque or trophy with an individual value of less than $250 is not a gift.
Regulation 18942(a)(6).
g. Home Hospitality
The cost of home hospitality is not considered a gift unless any part of the cost is paid directly or reimbursed by another person, any person deducts any part of the cost as a business expense on a tax return, or the host has an understanding with someone else that any amount of compensation the host receives from that person includes a portion to be utilized to provide gifts of hospitality. Regulation 18942(a)(7). "Home hospitality" is defined as any benefit received by the official, and the official's spouse and family members when accompanying the official, which is provided by an individual with whom the official has a relationship, connection, or association unrelated to the official's position and the hospitality is provided as part of that relationship, connection, or association in the individual's home when the individual is present. Regulation 18942.2. Home hospitality includes entertainment, occasional overnight lodging, and any food, including food provided by other guests at the event and benefits received by the official when the official serves as the host.
A "home" includes a vacation home owned, rented, or leased by the individual for use as his or her residence, including in some cases a timeshare or a motor home or boat owned, rented, or leased by the individual for use as his or her residence. "Home" also includes any facility in which the individual has a right -to -use benefit by his or her home residency, such as a community clubhouse. Regulation 18942.2.
In determining where this exception is available, the official is to presume that the cost of the hospitality is paid by the host unless the host discloses to the official or it is clear from the surrounding circumstances that someone other than the host paid the cost or part of the cost of the hospitality. Regulation 18942(a)(7). The cost of providing hospitality must also not include any part of the value or rental cost of the home nor any depreciation value on the home where the hospitality is extended for the exception to apply. Id.
h. Presents on Personal or Family Occasions
Benefits commonly exchanged between an official and an individual, other than a lobbyist, on holidays, birthdays, or similar occasions are not gifts as long as the presents exchanged are not substantially disproportionate in value. For purposes of this exception, "benefits commonly exchanged" includes food, entertainment, and nominal benefits provided to guests at an event by an honoree or other individual, other than a lobbyist, hosting the event. Regulation 18942(a) (8) (A).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations i. Reciprocal Exchanges
Reciprocal exchanges made in a social relationship between an official and another individual who is not a lobbyist and with whom the official participates in repeated social events are not gifts where the parties typically rotate payments on a continuing basis so that, over time, each party pays for approximately his or her share of the costs of the continuing activities. The repeated social events may include lunches, dinners, rounds of golf, attendance at entertainment or sporting events, or any other such event so long as the total value of payments received by the official within the year is not substantially disproportionate to the amount paid by the official. If the official receives much more than what he or she paid, the official has received a gift for the excess amount. This exception does not apply to any single payment that is equal to or greater than $590. Regulation 18942(a) (8) (B).
j. Leave Credits Donated to an Official
Leave credits, including vacation, sick leave, or compensatory time off, donated to an official in accordance with a bona fide catastrophic or similar emergency leave program established by the official's employer are not gifts as long as they are available to all employees in the same job classification or position. This exception does not include donations of cash. Regulation 18942(a) (9). k. Disaster Assistance
Payments received under a government agency program or a program established by a 501 (c) (3) organization designed to provide disaster relief or food, shelter, or similar assistance to qualified recipients are not gifts as long as such payments are available to members of the public regardless of official status. Regulation 18942 (a) (10).
I. Admission when "Speech" Made
Payment of the official's admission by the organizer of an event is exempt from the gift limitations if the official makes a "speech" at the event. Regulation 18942(a)(11). This exemption applies if the official is "making a speech, participating on a panel, or making a substantive formal presentation at a seminar or similar event." Regulation 18950(b) (2). For the purpose of the exemption, the price of admission can include food and "nominal items" including things like pens, stress balls, note pads, etc. Regulation 18942(a) (11).
m. Campaign Travel
The payments made to an elected officer or candidate for his or her transportation, lodging, or subsistence provided in direct connection with campaign activities, including attendance at political fundraisers, are exempt from the gift limitations.
Payments made during the six-month period prior to an election are considered "in direct connection" with the campaign activities if the payment is for necessary transportation, lodging, or subsistence and used for the officer's or candidate's participation in forums, debates or other speaking events or attendance at campaign strategy meetings with staff or consultants. Beyond this six-month period, the payment Summary of Principal Conflicts of Interest Laws and Regulations Page 50 © 2023 Richards, Watson & Gershon
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n. Ticket for Ceremonial Role
A ticket which is provided to an official and one guest of the official for his or her admission to an event where the official performs a ceremonial role on behalf of the agency is not a gift, so long as the agency reports the ticket on its Form 802. The term "ceremonial role" means an act performed at an event by the official as a representative of the official's agency at the request of the holder of the event where, for a period of time, the focus of the event is the act performed by the official.
Examples include throwing out the first pitch at a baseball game, cutting a ribbon at a library opening, or presenting a certificate or award. A city may adopt specific policies to either limit or expand the permissible ceremonial roles for an official in that city, the full list of which must be forwarded to the FPPC. Any official who attends the event as part of his or her job duties to assist the official who is performing the ceremonial role has not received a gift or income by attending the event. Regulations 18942(a)(13), 18942.3.
o. Prize or Award in Bona Fide Contest or Competition
A prize or award received in a manner not related to the official's status in a bona fide contest, competition, or game of chance is not a gift. A prize or award that is not reported as a gift shall be reported as income unless the prize or award is received as a winning from the California State Lottery. Regulation 18942 (a) (14).
P. Weddings Benefits
Benefits received as a guest attending a wedding or civil union are not gifts if the benefits are substantially the same as the benefits received by the other guests attending the event. Regulation 18942 (a) (15).
q. Bereavement Offerings
Bereavement offerings typically provided in memory of and at the time of the passing of a spouse, parent, child, or sibling or other relative of the official are not gifts.
Regulation 18942(a)(16).
r. Acts of Neighborliness
A service performed as an act of ordinary assistance consistent with polite behavior in a civilized society that would not normally be part of an economic transaction between like participants under similar circumstances is not a gift. Examples of such services include the loan of an item, an occasional needed ride, personal assistance in making a repair, bringing in the mail or feeding the cat while the official is away. Individuals need not be actual neighbors for this exception to apply. Regulation 18942(a) (17).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations S. Bona Fide Date or Dating Relationship
Personal benefits commonly exchanged between people on a date or in a dating relationship are not gifts. However, such benefits are gifts if the individual providing the benefit to the official is a lobbyist or otherwise has particular interests in the official's role in the agency within 12 months of the date. Even if the benefit is from such an individual, the gift is still not reportable or subject to limits but the aggregate value is subject to the conflict of interest provisions if the value is $590 or greater. Regulation 18942(a) (18) (A).
t. Acts of Human Compassion
Payments provided to an official or his or her family member by an individual to offset family medical or living expenses that the official can no longer meet without private assistance because of an accident, illness, employment loss, death in the family, or other unexpected calamity are not gifts. Payments provided to an official or his or her family member to defray expenses associated with humanitarian efforts such as the adoption of an orphaned child are also not gifts. However, under this exception, the source of the donation must be an individual who has a prior social relationship with the official of the type where it would be common to provide such assistance (such as a relative, long-term friend, neighbor, co-worker or former co-worker, member of the same local religious or other similar organization, etc.), or the payment must be made without regard to official status under other circumstances in which it would be common to receive community outreach. In any case, the individual providing the benefit to the official cannot be a lobbyist or otherwise have particular interests in the official's role in the agency within 12 months of the payment. Regulation 18942(a) (18) (B).
U. Best Friends Forever
A payment provided to an official by an individual with whom the official has a long term, close personal friendship unrelated to the official's position with the agency is not a gift. However, the individual providing the benefit to the official cannot be a lobbyist or otherwise have particular interests in the official's role in the agency within 12 months of the payment. Regulation 18942(a)(18)(C).
V. Catch -All
Any other payment that would otherwise meet the definition of gift is not a gift where the payment is made by an individual who is not a lobbyist and it is clear that the payment was made because of an existing personal or business relationship unrelated to the official's position. Additionally, there can be no evidence whatsoever at the time the payment is made that the official makes or participates in the type of governmental decisions that may have a foreseeable material financial effect on the individual who is the source of the payment. Regulation 18942(a)(19).
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4. Gifts to an Agency
Regulation 18944 provides a narrow exception to the normal gift reporting requirements and value limitations for gifts made directly to a public agency. A payment made to a state or local government agency that is used for official agency business is not considered a gift or income to an individual public official who is the end recipient, even though the official receives an incidental personal benefit from the payment. As such, the gift does not have to be reported by the individual and is not subject to the annual value limitation.
A payment shall be considered a gift to the public official's agency and not a gift to the public official if all of the following requirements are met: the payment must be used for official agency business; the agency head must determine and control the agency's use of the payment, including the selection of the official who will use the payment; and the agency must report the payment on a Form 801. The Form 801, which must be signed by the agency head and maintained as a public record in accordance with Government Code Section 81008, must include the following information:
• Donor Information: The reporting form requires not only the donor's name, but also his or her address, and must identify any other persons who contributed to the gift, as well as the amount each person contributed. If the donor is not an individual, the report must describe the business activity or nature of the entity giving the gift.
• Description of Payment: The form requires a description of the payment, the date it was received, the intended purpose and the amount of the payment or the actual or estimated fair market value of the goods or services provided, if the amount is unknown.
• Recipient Information: The form also requires that the agency specify the name, title, and department of the agency official who used the payment.
Regulation 18944(c) (3). For any quarter year period in which the payments received by the agency aggregate to $2,500 or more since the last filing, a local agency must submit a copy of the form or a detailed summary of the information to its filing officer within 30 days after the close of the quarter. Thereafter, the filing officer must post a copy of the form or the information in a "prominent fashion" on its website within 30 days after the close of the quarter. If the local agency does not maintain a website, the agency must send its Form 801 to the FPPC, which will post the document on its own website. Regulation 18944(d).
5. Gifts to an Official's Family
Regulation 18943 governs gifts to an official's or candidate's family. This regulation was substantially revised in late 2009 and again in 2011. Regulation 18943 adds new definitions and requirements that public officials should carefully review.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations Regulation 18943 adds definitions for an official's "family member," which includes an official's spouse or registered domestic partner, a dependent child, and an official's child. "Dependent child" means a child (including an adoptive child or stepchild) of a public official who is under 18 years old and whom the official is entitled to claim as a dependent on his or her federal tax return. Regulation 18229.1. An "official's child" (including an adoptive child or stepchild) means a child who meets all of the following criteria:
• The child is at least 18 but no more than 23 years old and is a full-time or part-time student;
• The child has the same principal residence as the official. For purposes of this provision, a place, located away from the official's residence, at which the child resides for the purpose of attending school is not the child's "principal place of residence"; and
• The child does not provide more than one-half of his or her own support.
Gifts to Both an Official and One or More Family Members. A single gift to both an official and one or more members of the official's family is a gift to the official for the full value of the gift. See "Wedding Gifts" section below for a particular exception to this rule.
Gifts Solely to Family Members. A gift given solely to a member of an official's family is a gift to the official, when there is no established working, social, or similar relationship between the donor and the official's family member that would suggest an appropriate association for making such a payment. A gift given to a member of an official's family is also a gift to the official if there is evidence to suggest the donor had a purpose to influence the official, such as when:
• The donor is a lobbyist, lobbying firm, lobbyist employer, or other similar person and is registered to lobby the official's state agency; • The donor is involved in an action or decision before the local or state government agency in which the official will reasonably foreseeably participate, or in an action in which he or she has participated within the last 12 months; or
• The donor has a contract with the official's agency or the donor engages in a business that regularly seeks contracts with, or licenses, permits or other entitlements from, and the official may reasonably foreseeably make or participate in such a decision or has participated in such a decision within 12 months of the time the gift is made, unless the donor has less than 10 percent interest in the business contracting with or appearing before the agency.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations
6. Invitation -Only Events
When an official and one of his or her guests attends an invitation -only event such as a banquet, party, gala, celebration, or other similar function, other than a nonprofit or political fundraiser as set forth in Regulation 18946.4, the value received is the official's and the guest's pro-rata share of the cost of the food, catering services, entertainment, and any item provided to the official and guest that is available to all guests attending the event. Regulation 18946.2(b). A calculation of the pro-rata share means the total cost of the list expenses above, divided by the number of acceptances or the number of attendees at the event. Any other specific benefit provided to the official and guest at the event, such as golf green fees, is valued at fair market value. Regulation 18946.2(b).
a. Official or Ceremonial Functions
When an official performs an official or ceremonial function at an invitation -only event in which the official is invited to participate by the event's sponsor or organizer to perform an official or ceremonial function, the value received is the pro-rata cost of any meal provided to the official and guest, plus the value of any specific item that is presented to the official and his or her guest at the event. Regulation 18946.2(d). b. Drop -In Visit
Except for an event sponsored by a lobbyist, lobbying firm, or lobbyist employer, if an official attends an invitation -only event and does not stay for any meal or entertainment otherwise provided at the event, receiving only minimal appetizers or drinks, the value of the gift received is the value of any specific item, other than food, that is presented to the official and his or her guest at the event. For purposes of this regulation, "entertainment" means a feature show or performance intended for an audience and does not include music provided for background ambiance. Regulation 18946.2(e).
C. Lobbyists, Lobbying Firms, and Lobbyist Employers
Where an official attends an invitation -only event sponsored by a lobbyist, lobbying firm, or lobbyist employer, the value of the gift is the pro-rata share of the cost of the event. Regulation 18946.2(b), 18640. If the official notifies the lobbyist, lobbying firm, or lobbyist employer that the official attended the event but that he or she did not stay for any meal or entertainment, receiving only minimal appetizers and drinks, the value of the gift received is the value of any specific item (other than food) that is presented to the official and the official's guest at the event. Regulation 18640(b). Again, the term "entertainment" means a feature show or performance intended for an audience and does not include music provided for background ambiance. Regulation 18640.
7. Tickets to Political and Charitable Fundraisers
Regulation 18946.4 provides special rules for tickets provided to public officials to fundraisers for nonprofit and political organizations. Such tickets are not considered Summary of Principal Conflicts of Interest Laws and Regulations Page 55 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations gifts to a public official if certain requirements are met. This exception applies only to two tickets provided to an official, and only if it is provided directly by the charity or campaign committee; additional tickets are treated as gifts. The requirements vary depending on whether the organization is a 501 (c) (3) nonprofit, a non-501(c) (3) nonprofit, or a political organization.
a. Non-501(c)(3) Nonprofit Fundraiser
Regulation 18946.4(a) provides that a ticket to a fundraising event for a nonprofit, tax- exempt organization that is neither a political campaign committee nor a 501 (c) (3) nonprofit shall be valued as follows:
• Where the ticket to the fundraiser clearly states that a portion of the ticket price is a donation to the organization, or the organization provides information indicating the portion of the admission price that constitutes the donation, then the value of the gift is the face value of the ticket or admission reduced by the amount of the donation - i.e., the "nondeductible portion" of the price of admission.
• If there is no ticket or other official information provided by the organization indicating the value of the nondeductible portion of admission, the value of the gift is the pro-rata share of the cost of any food, catering service, entertainment, and any other item provided to the official that is available to the other guests. A calculation of the pro-rata share means the total cost of the listed expenses, divided by the number of acceptances or the number of attendees. Any other specific benefit provided to the official at the event, such as golf green fees, is valued at fair market value.
b. Fundraiser for a 501(c)(3) Religious, Charitable,
Scientific, Literary or Educational Organization
Where the event is a fundraising event for an organization exempt from taxation under Internal Revenue Code Section 501 (c)(3), such an organization may provide two tickets per event to an official, and the ticket shall have no value. Regulation 18946.4(b). Any additional tickets or admissions provided by the 501 (c) (3) organization, any tickets provided to or controlled by the official, and any tickets not provided directly by the 501 (c) (3) are valued as tickets from a non-501 (c) (3) nonprofit. Regulation 18946.4(b).
C. Political Fundraiser
For the gift of a ticket, pass, or other admission privilege to a political fundraising event for a "campaign committee" or a comparable committee regulated under federal law or the laws of another state, the committee or candidate may provide two tickets per event to an official that shall be deemed to have no value. A "campaign committee" is any person or persons who directly or indirectly receives contributions totaling two thousand dollars ($2,000) or more in a calendar year (note: this was increased from $1,000 in 2015), makes independent expenditures totaling one thousand dollars ($1,000) Summary of Principal Conflicts of Interest Laws and Regulations Page 56 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations or more in a calendar year, or makes contributions totaling ten thousand dollars ($10,000) or more in a calendar year to or at the behest of candidates or committees. § 82013.
8. Tickets or Passes to Events Given to Officials by their Agency a. Gift Exception
FPPC Regulation 18944.1 provides that a ticket or pass to an event or function provided to an official by his or her agency and distributed and used in accordance with a written policy adopted by the agency is not a gift under the Political Reform Act if:
(1) the ticket or pass is not earmarked by an outside source for use by a specific agency official; (2) the agency determines, in its sole discretion, who uses the ticket or pass; (3) the distribution of the ticket or pass is reported on Form 802 as described below; and (4) the distribution of the ticket or pass by the agency is made in accordance with a written policy adopted by the agency that meets all of the requirements as described below. Regulation 18944.1 (a). • Application: FPPC Regulation 18944.1 applies only to the benefits the official receives from a ticket or pass to an event or function that are provided to all members of the public with the same class of ticket or pass, when the ticket or pass is provided by an agency to an official of the agency, or at the behest of an agency official. The regulation does not apply to: (1) an admission to an event or function in which the official performs a ceremonial role; or, (2) admission provided to a school, college or university district official, coach, athletic director or employee to attend an amateur event performed by students, which are neither gifts nor income. Regulation 18944.1 (f).
b. Written Policy for Distribution of Tickets.
• Policy Requirements: The distribution of tickets and passes described above must be made pursuant to a written policy duly adopted by the agency's legislative or governing body that must contain the following:
(1) a provision setting forth the public purposes of the agency for which tickets or passes may be distributed; (2) a provision requiring that the distribution of any ticket or pass to, or at the behest of, an official accomplish a stated public purpose of the agency; (3) a provision prohibiting the transfer of any ticket received by an agency official, except to his or her immediate family or no more than one guest solely for their attendance at the event; and (4) a provision prohibiting the disproportionate use of tickets or passes by a member of the governing body, chief administrative officer, political appointee, or department head. Regulation 18944.1 (b).
• Public Purpose: The agency's legislative or governing body must determine whether the distribution of tickets or passes serves a legitimate public purpose of the agency, consistent with state law. Tickets or passes Summary of Principal Conflicts of Interest Laws and Regulations Page 57 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations given to officials (other than a member of the governing body, chief administrative officer, political appointee or department head) to support general employee morale, retention or to reward public service is deemed to have a public purpose. Regulation 18944.1 (e). • Public Record: The policy must be maintained as a public record, subject to inspection and copying. The agency must post the policy on the agency website within 30 days of adoption or amendment and send to the FPPC, by email, the agency's website link that displays the policy for posting on the FPPC's website. Regulation 18944.1 (c).
C. Form 802 for Reporting Distribution of Tickets and Passes.
Within 45 days of distributing a ticket or pass, the head of the agency must fill out and certify a Form 802 describing the distribution of tickets or passes to an official. The Form 802 requires: (1) the name of the official who received the ticket or pass, (2) a description and date of the event, (3) the fair value of each ticket or pass, (4) the number of tickets or passes distributed to the official, (5) if the ticket or pass is behested, the name of the official who behested the ticket, (6) if the official gave the ticket or pass to another person (limited to an immediate family member or no more than one guest), the name of that person, (7) the specific public purpose under which the distribution was made, and (8) a written inspection report of findings and recommendations by the official who received the ticket or pass if it was received for the oversight or inspection of facilities. This form must be maintained as a public record, subject to inspection and copying. The agency must post the form, or a summary of its contents, on its website and send the FPPC, by email, the agency's website link for posting on the FPPC's website. Regulation 18944.1 (d).
d. Other Exceptions.
• Reimbursement. The ticket or pass is not considered a gift if the official reimburses the agency for the ticket within 30 days of receipt. Regulation 18944.1 (h).
• Treated as Income. The ticket or pass is not considered a gift if the official treats the ticket or pass as taxable income. Regulation 18944.1(g).
9. Gifts from a Government Agency to an Official in That Agency A payment by an agency that provides food, beverage, entertainment, goods or services of more than a nominal value to an official in that agency is a gift to that official, unless the payment is a "lawful expenditure of public moneys." Regulation 18944.3.
Several commentators have questioned the need or usefulness of this regulation because a public agency is already prohibited from making a payment that is not a "lawful expenditure of public moneys." Boiled down, the regulation states that it is illegal for an agency to give a gift unless the gift is legal. Until the FPPC issues some Summary of Principal Conflicts of Interest Laws and Regulations Page 58 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations formal opinions or advice letters clarifying the regulation, or revises the text, its immediate application is unclear.
10. Wedding Gifts
The value to an official of a wedding gift given to an official and his or her spouse or spouse -to -be is one-half of the gift's total value. Regulation 18946.3. This is an exception to the general rule, described above in "Gifts to an Official's Family," that a single gift to both an official and one or more members of the official's family is a gift to the official for the full value of the gift. The value of a wedding gift may exceed the gift limit, currently set at $590. Regulation 18942(b) (2).
11. Certain Gifts of Travel
Payments for travel for a public official are generally subject to the annual gift limit, unless the payment is otherwise exempt. FPPC regulations define a "payment for travel" as "any payment that provides transportation to an official from one location to another location as well as a payment for lodging and food connected with the travel." Regulation 18950(b).
For reporting purposes, payments of air travel are valued in accordance with FPPC regulation 18946.5, as follows. Air travel is valued as the price the carrier charges the public for the same class seat on the flight provided to the official in the case of a commercial flight. The value of all other air transportation is the value of the normal and usual charter fare or rental charge for a comparable airplane of comparable size, divided by the number of passengers aboard the flight.
Exceptions for certain gifts of travel are found in both the Act and the FPPC regulations, which are discussed below. Public officials should review these exceptions closely and consult with the agency's legal counsel before relying on them. a. Travel Payments Related to Speeches that Serve a Governmental Purpose
Section 89506(a)(1) exempts from the gift limit any payments, advances, or reimbursements for travel that are reasonably related to a legislative or governmental purpose or issue of public policy if made in connection with a speech given by the official in the U.S. § 89506(a)(1); Regulation 18950(b). These types of payments for travel are not subject to the gift limit, but they must still be reported on a public official's Form 700. § 89506(a)(1); Regulation 18950(a).
b. Travel Payments Related to a Governmental Purpose Made by Government Agencies and Certain Non -Profits
Section 89506(a)(2) exempts from the gift limit any payments, advances, and reimbursements for travel that are reasonably related to a legislative or governmental purpose or issue of public policy if provided by a governmental agency, a 501 (c) (3) Summary of Principal Conflicts of Interest Laws and Regulations Page 59 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations nonprofit,28 and a few other limited organizations/persons. § 89506(a) (2). These types of payments for travel are generally not subject to the gift limit, but they must still be reported on a public official's Form 700. § 89506(a)(2); Regulation 18950(a). However, Section 89506(f)(3) now clarifies that if a nonprofit is acting as an intermediary or agent of a donor, then the $590 gift limitation would apply and the original donor must be listed as the source of the gift to the official, as well as considered a financial interest for the purpose of conflicts analysis. § 89506(f) (3).
C. Travel for Education, Training, or Intra-Agency Purposes Any payment for travel and per diem expenses received from a state, local, or federal agency is not a gift or income if used by the official for "education, training, or other inter -agency programs or purposes." Regulation 18950(c) (2). d. Travel in a Vehicle or Plane Owned by Another Official or Agency Regulation 18950(c) (3) provides that "transportation provided to an official in a vehicle or aircraft owned by another official or agency when each official is traveling to or from the same location for an event as a representative of their respective offices" does not constitute a "payment" and therefore does not count as a gift. Regulation 18950(c) (3). e. Travel Made in Conjunction with Official Agency Business Regulation 18950.1 provides an exception for travel payments that do not confer a personal benefit on an official, when made by sources other than local, state, or federal agencies, are for the purpose of facilitating the public's business, and are therefore not gifts or income because the payment is made for an official agency purpose in lieu of using agency funds. This exemption applies only to travel payments that meet all of the following requirements:
(1) The payment is made directly to or coordinated with the government employer and not made to the employee using
the travel;
(2) The payment is used for official agency business;
(3) The government employer determines which official will use the payment for travel;
(4) The payment provides no personal benefit to the official who uses the payment;
28 With respect to nonprofit organizations that regularly organize and host travel for elected officials and that make payments, advances, or reimbursements totaling more than $10,000 in a calendar year or $5,000 to an individual person, the Act now requires the nonprofits to disclose the names of donors responsible for funding the travel costs. § 89506(f).
An organization "regularly organizes and hosts travel" if the organization's expenses for travel, study tours, or conferences constitutes more than one third of its total expenses. Id. In that case, the nonprofit must disclose the names of donors who contributed $1,000 or more to the nonprofit organization and who accompanied the elected official, either in person or through an agent, for any portion of the travel. § 89506(f).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations (5) The duration of travel is limited to that necessary to accomplish the purposes for which the travel was provided; and
(6) The government employer reports the payment, as specified below.
The first requirement above - that the payment is made directly to or coordinated with the government employer - is satisfied if the payment is made directly to the government employer or by arranging with the government employer any payments for transportation and lodging that are made directly to the provider of those services.
Food may be accepted for attendance at an event where food is provided as part of the admission to the event. All other payments for food must be made to the government employer pursuant to the employer's per diem travel policy. Regulation 18950.1 (b).
The second requirement above - that the payment be used for official agency business - is satisfied under any of the following circumstances:
• The payment is made pursuant to a provision in a contract requiring the contracting party to pay any expenses associated with any required governmental travel resulting from the government agency's participation in the contract and the payment is used for that purpose; • The payment is made for the travel expenses of an official for the purpose of performing a regulatory inspection or auditing function that the governmental employer is mandated to perform;
• The payment is made for the travel expenses of an official and the official is attending solely for purposes of providing training or educational information directly related to the governmental employer's functions or duties under the laws that it administers for individuals who are affected by those laws, and the payment is made by an organization to provide such training for its members;
• The payment is made for the travel expenses of an official to an educational conference directly related to the governmental employer's functions or duties under the laws that it administers, the official is a named presenter at the conference, and the payment is made by the organizers of the event;
• The payment is made for the travel expenses of an official for the purpose of receiving training directly related to the official's job duties and the payment is provided by an organization that commonly provides such training;
• The payment is made for food provided to all attendees at a working group meeting in which the agency official participates as a representative of his or her agency in a working group meeting under his Summary of Principal Conflicts of Interest Laws and Regulations Page 61 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations or her officially assigned job duties and the agency is authorized to provide an official to attend the meeting; or
• The payment is for travel expenses that are required to attend a location to view an in place operation, structure, facility, or available product where the viewing would substantially enhance an official's knowledge and understanding in making an informed decision to enter into a contract regarding a similar operation, structure, facility or purchase of the product pursuant to the jurisdictional authority of the official's governmental employer. Regulation 18950.1 (c).
The third requirement is satisfied if the governmental employer selects the official who will make use of the payment. However, if the payment is for expenses related to an oral presentation to either provide training on a subject on which the governmental employer provides training, or discuss policy and direction in implementing the functions of the governmental employer, the donor may request the official who is most qualified to make the presentation. Regulation 18950.1(d).
The fourth requirement above - that the payment of travel does not provide a personal benefit to the official - is satisfied under Regulation 18950.1(e) if both of the following requirements are met:
• The travel is for purposes approved by the governmental employer under the same requirements applicable to travel using its own funds, and the official is representing his or her governmental employer in the course and scope of his or her official duties; and
• Travel expenses are limited to no more than the expenses allowable for travel for agency business that would reasonably be paid at agency expense.
The latter requirement does not apply to either of the following:
• Payment for food where food is provided as part of the admission to the event. Otherwise, any payments for food must be made to the government employer pursuant to the employer's per diem travel policy.
Regulation 18950.1 (b).
• Payment for any lodging or food if the lodging and food is provided at a site where the official attends a widely attended meeting or conference and the value is substantially equivalent in value to the lodging or food typically made available to the other attendees. Regulation 18950.1 (g).
The sixth requirement above - that the payment is reported - is satisfied by the agency reporting the payment on a quarterly basis on a form prescribed by the FPPC.
Regulation 18950.1 (f). All such forms must be maintained as a public record and subject to inspection and copying under Government Code Section 81008, and posted on the agency's website, if it has one.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations f. Travel in Connection with Bona Fide Business
The FPPC regulations reiterate the general rule in Government Code Section 89506(d)(3), whereby a payment for transportation, lodging, or food, made in connection with a bona fide business, trade, or profession, and which satisfies the criteria for federal income tax deductions for business expenses specified in Internal Revenue Code Sections 162 and 274, is not an honorarium or gift, unless the sole or predominant activity of the business, trade, or profession is making speeches.
Regulation 18950.2.
g. Travel Paid from Campaign Funds
A payment made to an official who is a candidate to cover his or her transportation, lodging or food, in connection with campaign activities, is a contribution to the campaign committee of that official. Regulation 18950.3(a). A payment made to an official by or at the behest of a committee for the official's actual travel expenses (including food and lodging), or for other actual and allowable campaign expenses, is neither income nor a gift to the official so long as the expenses are reportable by the committee under the relevant sections of the Political Reform Act (Government Code Sections 84100 et seq.) or applicable federal law. Regulation 18950.3(b). Any other payment for travel from a committee to an official that is not covered by Regulation 18950.3(a) and (b) described above is considered income or a gift. Regulation 18950.3.
12. Lobbyists Arranging Gifts
A lobbyist or lobbying firm may not make gifts29 to one person aggregating more than ten dollars ($10) in a calendar month, act as an agent or intermediary in the making of any gift, or arrange for the making of any gift by any other person. § 86203. It is likewise unlawful for any person to knowingly receive any such prohibited gift. § 86204.
A lobbyist "arranges for the making of a gift" within the meaning of Government Code Section 86203 if the lobbyist does any of the following either directly or through an agent:
• Delivers a gift to the recipient.
• Acts as the representative of the donor, if the donor is not present at the occasion of a gift, excepting a situation where the lobbyist accompanies the recipient to an event where the donor will be present.
• Invites or sends an invitation to an intended recipient regarding the occasion of a gift.
• Solicits responses from an intended recipient concerning the lobbyist's attendance or nonattendance at the occasion of a gift.
29 Government Code Section 86201 provides that a "gift" for purposes of this section is a "gift made directly or indirectly to any state candidate, elected state officer, or legislative official, or to an agency official of any agency required to be listed on the registration statement of the lobbying firm or the lobbyist employer of the lobbyist." Summary of Principal Conflicts of Interest Laws and Regulations Page 63 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations • Is the donor's designated representative to receive responses from an intended recipient concerning the lobbyist's attendance or nonattendance at the occasion of a gift.
• Acts as an intermediary in connection with the reimbursement of a recipient's expenses.
Regulation 18624. On the other hand, a lobbyist does not "arrange for the making of a gift" if the lobbyist, either directly or through an agent, solely recommends or provides information to the lobbyist's employer, "including information obtained from a third party for that purpose," regarding gifts to a public official. Id.
B. Prohibitions on Receipt of Honoraria
Government Code Section 89502 provides that an elected officer of a local government agency and any official listed in Section 87200 shall not accept an honorarium. This prohibition also applies to candidates for elective office in a local government agency. § 89502(b). An "honorarium" means any payment made in consideration for any speech given, article published, or attendance at any public or private conference, convention, meeting, social event, meal, or like gathering. § 89501.
1. Exceptions to the Prohibition on Honoraria
a. Earned Income Exception
"Honorarium" does not include income earned for personal services if:
• The services are provided in connection with an individual's business or the individual's practice of or employment in a bona fide business, trade, or profession, such as teaching, practicing law, medicine, insurance, real estate, banking, or building contracting; and
• The services are customarily provided in connection with the business, trade, or profession.
Regulation 18932.
b. Informational Materials
"Honorarium" does not include informational materials such as books, calendars, videotapes, or free or discounted admission to educational conferences that are provided to assist the official in the performance of official duties. Regulation 18932.4(a).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations C. Family Payments
"Honorarium" does not include a payment received from one's spouse, child, parent, grandparent, grandchild, brother, sister, parent -in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle or first cousin or the spouse of any such person. However, a payment from any such person is an honorarium if the donor is acting as an agent or intermediary for any person not listed in this paragraph. Regulation 18932.4(b). d. Campaign Contributions
"Honorarium" does not include a campaign contribution that is required to be reported. Regulation 18932.4(c).
e. Personalized Plague or Trophy
"Honorarium" does not include a personalized plaque or trophy with an individual value of less than $250. Regulation 18932.4(d).
f. Admission and Incidentals at Place of Speech
"Honorarium" does not include free admission, refreshments and similar non -cash nominal benefits provided to an official during the entire event at which the official gives a speech, participates in a panel or seminar, or provides a similar service, and actual intrastate transportation and any necessary lodging and subsistence provided directly in connection with the speech, panel, seminar, or service, including but not limited to meals and beverages on the day of the activity. Regulation 18932.4(e). g. Incidentals at Private Conference
Likewise, "honorarium" does not include any of the following items, when provided to an individual who attends any public or private conference, convention, meeting, social event, meal, or like gathering without providing any substantive service:
• Benefits, other than cash, provided at the conference, convention, meeting, social event, meal, or gathering; or
• Free admission and food or beverages provided at the conference, convention, meeting, social event, meal, or gathering.
However, the foregoing may be reportable as gifts. Regulation 18932.4(f). h. Travel that Is Exempt from Giffs
Any payment made for transportation, lodging, and subsistence that is exempt by the gift exceptions listed in Section 89506 and Regulation 18950 et seq. also does not constitute an honorarium. Regulation 18932.4(g).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations C. Prohibitions on Receipt of Certain Types of Loans
1. Prohibition on Loans Exceeding $250 from Other City Officials, Employees, Consultants, and Contractors
Elected officials and other city officials specified in Section 87200, including council members, may not receive a personal loan that exceeds $250 at any given time from an officer, employee, member, or consultant of their city or any local government agency over which their city exercises direction and control. § 87460(a), (b). In addition, elected officials and other city officials specified in Section 87200 may not receive a personal loan that exceeds $250 at any given time from any individual or entity that has a contract with their city or any agency over which their city exercises direction and control. § 87460(c), (d).
2. Requirement for Loans of $500 or More from Other Persons and Entities to be in Writing
Elected local officials may not receive a personal loan of $500 or more unless the loan is made in writing and clearly states the terms of the loan. The loan document must include the names of the parties to the loan agreement, as well as the date, amount, interest rate, and term of the loan. The loan document must also include the date or dates when payments are due and the amount of the payments. § 87461 (a).
3. Exceptions to Loan Limits and Documentation Requirements The following loans are not subject to the limits and documentation requirements specified in paragraphs 1 and 2 above:
• Loans received from banks or other financial institutions, and retail or credit card transactions, made in the normal course of business on terms available to members of the public without regard to official status.
Regulation 18730.
• Loans received by an elected officer's or candidate's campaign committee. § 87461 (b) (1).
• Loans received from the elected or appointed official's spouse, child, parent, grandparent, grandchild, brother, sister, parent -in-law, brother-in- law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such person unless he or she is acting as an agent or intermediary for another person not covered by this exemption. § 87461 (b) (2) • Loans made, or offered in writing, prior to January 1, 1998. § 87461 (b) (3) Summary of Principal Conflicts of Interest Laws and Regulations Page 66 © 2023 Richards, Watson & Gershon
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4. Loans that Become Gifts are Subject to the Gift Prohibition Under the following circumstances, as stated in Government Code Section 87462, a personal loan received by any public official (elected and other officials specified in Section 87200, as well as any other local government official or employee required to file a Statement of Economic Interests) may become a gift and subject to gift and reporting limitations:
• If the loan has a defined date or dates for repayment and has not been repaid, the loan will become a gift when the statute of limitations for filing an action for default has expired.
• If the loan has no defined date or dates for repayment, the loan will become a gift if it remains unpaid when one year has elapsed from the later of: the date the loan was made; the date the last payment of $100 or more was made on the loan; or the date upon which the official has made payments aggregating to less than $250 during the previous 12- month period.
5. Exceptions - Loans that Do Not Become Gifts
The following loans will not become gifts to an official:
• A loan made to an elected officer's or candidate's campaign committee.
• A loan on which the creditor has taken reasonable action to collect the balance due.
• A loan described above on which the creditor, based on reasonable business considerations, has not undertaken collection action. (However, except in a criminal action, the creditor has the burden of proving that the decision not to take collection action was based on reasonable business considerations.)
• A loan made to an official who has filed for bankruptcy and the loan is ultimately discharged in bankruptcy.
• A loan that would not be considered a gift as outlined in paragraph 3 above (e.g., loans from family members). § 87462(b).
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations IV. PROHIBITION AGAINST MASS MAILINGS
The Political Reform Act also prohibits the sending of newsletters and other so-called "mass mailings" at public expense. §§ 89001, 89002.30 A "mass mailing" is defined as the mailing or distribution at public expense of 200 or more items within a calendar month featuring the name, office, photograph or other reference to an elected officer of the agency. § 82041.5. The Government Code also prohibits a mass mailing from being sent within the 60 days preceding an election by or on behalf of a candidate whose name appears on the ballot. § 89003. The underlying intent of the Government Code provision and the implementing FPPC Regulation is to preclude elected officials from using public agency newsletters as indirect campaign flyers for themselves. The law and regulations are intended to clamp down on prior abuses of newsletters so that elected officials cannot use publicly funded newsletters to bolster their name or accomplishments while in office.
A. Test for Prohibited Mass Mailing
The FPPC regulations previously included a four prong test to determine the legality of mass mailings. Under the statutory text, which now incorporates the requirements from the prior regulation, a mass mailing is prohibited if each of the following elements is present:
• It includes the delivery of a tangible item;
It "features" an elected officer, or includes a reference to, an elected officer and is sent in cooperation with the elected officer; • It is sent at public expense; and
A quantity of more than 200 substantially similar items are sent in a single calendar month.
§ 89002. Most public agencies that publish newsletters attempt to avoid the prohibition by ensuring that the newsletter does not meet the second element of the test. Each of the four elements is discussed in numerical order below.
1. Delivery of Tangible Item
First, a court will determine whether any "item sent is delivered, by any means, to the recipient at the recipient's residence, place of employment or business, or post office box. The item delivered to the recipient must be a tangible item, such as a videotape, record, or button, or a written document." § 89002(a)(1). This means that if a city intends to deliver a written document, such as a city newsletter, by U.S. mail or by hand to residents or businesses, this element is satisfied.
30 Section 89002 incorporates Regulation 18901 into the statutory language to clarify the circumstances when a mailing would be prohibited by the general rule in Section 89001 and to identify certain situations when the prohibition would not apply. The FPPC has repealed Regulation 18901 now that the statute includes the same text.
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2. Features or Includes Reference to an Elected Official The second part of the test is the most important and requires that the item sent either:
• Features an elected officer affiliated with the agency which produces or sends the mailing, or
• Includes the name, office, photograph, or other reference to an elected officer affiliated with the agency which produces or sends the mailing, and is prepared or sent in cooperation, consultation, coordination, or concert with the elected officer.
§ 89002(a)(2). The term "features an elected officer" is defined to mean that "the item mailed includes the elected officer's photograph or signature or singles out the elected officer by the manner of display of the elected officer's name or office in the layout of the document, such as by headlines, captions, type size, type face, or type color." § 89002(c)(2). And the term "elected officer affiliated with the agency" in this manner means "an elected officer who is a member, officer, or employee of the agency, or of a subunit thereof such as a committee, or who has supervisory control over the agency or appoints one or more members of the agency." § 89002(c)(1).
This means that if the written document includes the photograph of a council member, even if it just shows the council member cutting a ribbon on a civic project or giving out a plaque to a member of the community, this element would be satisfied. It also precludes articles about an elected city official or articles in which they are "singled out" for discussion or reference.
The other way this second part of the mass mailing test can be satisfied is if an elected city official's "name, office, photograph, or other reference" is included in a written document and the document, or any part of it "is prepared or sent in cooperation, consultation, coordination, or concert with the elected officer." This restriction presents elected officials with a choice. If the elected official involves him or herself in the preparation of the document, then even the official's name is excluded from appearing in the document pursuant to this second subpart. If, on the other hand, the elected official does not involve him or herself in the preparation of the document, his or her name may appear in the document, but not in a way that it is "featured" by way of headlines, captions, type size, type face, or type color.
3. Public Expense
The third part of the test is whether:
• Any of the costs of distribution are paid for with public money, or • Costs of design, production, and printing exceeding $50 are paid with public money, and the design, production, or printing is done with the intent of sending the item other than as permitted by the statute.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations § 89002(a)(3). This part of the test precludes the city from either paying the costs of mailing a mass mailing, or paying more than $50 of the cost of having it produced if another person or entity pays for the cost of distributing the mailing.
4. More than 200 Copies of the Item
The fourth and final element of the test to determine whether a mass mailing is prohibited is whether "[m]ore than 200 substantially similar items are sent in a single calendar month, excluding any item sent in response to an unsolicited request...." § 89002(a)(4). This means that if more than 200 copies of the same written document, such as a city newsletter, are sent to the public in the same month, this element will be satisfied, with minor exceptions discussed below.
A city newsletter is particularly prone to violating the mass mailing proscriptions, especially the first, third and fourth elements of the test. The key to a lawful newsletter is to ensure that each issue of the newsletter fully avoids meeting the criteria of the second element of the test. This means that the newsletter cannot "feature" an elected city official and cannot include an elected official's name or reference if that official participates in the preparation of the newsletter, as discussed above. For example, many cities issue proclamations and awards at council meetings, and it is customary for an honoree to be photographed with the mayor. In order to comply with the mass mailing restrictions, the cities take two photographs: one of the honoree shaking the mayor's hand, for distribution to non -city publications such as a local newspaper, and one of the honoree standing alone, for publication in the city newsletter.
B. Exceptions to the Mass Mailing Prohibition
The statute now contains a list of certain types of documents that are exempt from the prohibition of mass mailings. The first of these documents is a letter on city letterhead where the elected official's name only appears in the letterhead along with a list of all other elected officers of the city and the letter does not contain other references to the elected official. § 89002(b)(1). Under this exemption, a non -elected official, such as the city manager, may send a letter on city letterhead at city expense to members of the community but an elected officer, such as the mayor, cannot do the same because the signature on the letter will be considered a separate reference to the elected official. If a letter signed by the mayor is to be sent to the community, a private individual or group would have to pay for the cost of producing and sending that letter.
Other exemptions include press releases to the media, inter -agency communications, intra-agency communications, tax statements and bills, telephone directories, limited meeting or event announcements, and meeting agendas. § 89002(b). All of these items are subject to their own specific limitations, as set forth in the statutory text.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations V. EXPENDITURES TO SUPPORT OR DEFEAT
A BALLOT MEASURE
A local government may not spend public funds to assist with the passage or defeat of an initiative or other ballot measure or to contribute to a campaign for or against a candidate. § 54964. Public monies may not be spent on commercials, announcements, banners or any other promotional materials. This is based on the theory that it would be unfair to voters with opposing views to use public funds in this way. The prohibition also serves to prevent elected officials from using government funds to promote themselves or their allies in office. Stanson v. Mott, 17 Cal. 3d 206, 217 (1976); League of Women Voters v. County -Wide Criminal Justice Coordinating Comm'n, 203 Cal. App. 3d 529 (1988). However, this section does not prohibit the expenditure of city funds to provide information to the public about the possible effects of the ballot measure on the activities, operations, or policies of the city, as long as these activities are otherwise allowed under California law, and the information is factual, accurate, fair, and impartial. § 54964(c).
The leading California case setting forth the basic rule with respect to government involvement in political campaigns is Stanson v. Mott, 17 Cal. 3d 206 (1976). In Stanson, the California Supreme Court addressed the question of whether the State Director of Beaches and Parks was authorized to expend public funds in support of certain state bond measures for the enhancement of state and local recreational facilities. The court concluded that the Director lacked such authority and set forth the basic rule that "in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign." Id. at 209-210. Only impartial "informational" communications would be permissible, such as a fair presentation of the facts in response to a citizen's request for information.
The Stanson court also recognized that the line between improper "campaign" expenditures and proper "informational" activities is not always clear. "[T] he determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor, and timing of the publication; no hard and fast rule governs every case." Id. at 221-222. The Stanson test was reaffirmed by the California Supreme Court in Vargas v. City of Salinas, 46 Cal. 4th 1 (2009).
Prior to Vargas, courts attempting to interpret and apply Stanson used varying tests to determine the permissibility of expenditures. For example, in California Common Cause v. Duffy, an appellate court held that a local sheriff's use of public facilities and personnel to distribute postcards critical of then -Supreme Court Justice Rose Bird was "political" and not "informational" as permitted by Stanson because the cards presented only one side of Justice Bird's fitness to be retained in office. 200 Cal. App. 3d 730, 747-748 (1987). In another appellate decision, Schroeder v. City Council of Irvine, the court upheld Irvine's "Vote 2000" Program. 97 Cal. App. 4th 174 (2002). The program encouraged voter registration, without specifically advocating a particular position on any measure. Although the city had taken a public position in favor of the Summary of Principal Conflicts of Interest Laws and Regulations Page 71 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations proposed ballot measure, the materials it distributed did not advocate any particular vote on the measure and rarely mentioned the measure at all. The Schroeder court held that the funds spent on the Vote 2000 Program would be political expenditures and unlawful under Stanson only if the communications expressly advocated, or taken as a whole unambiguously urged, the passage or defeat of the measure. Because the city presented a neutral position on "Measure F," at least in the campaign materials, the court upheld the program as valid.
However, in Vargas v. City of Salinas, the California Supreme Court decided that "express advocacy" is an insufficient standard. In Vargas, proponents of a local ballot initiative to repeal the city's utility users tax ("Measure O") sued the city alleging improper government expenditures, the court held that even if a communication does not expressly advocate for either side of an issue, a Stanson analysis must nonetheless be conducted to determine whether the activity was for informational or campaigning purposes based on its style, tenor, and timing. Although the court did not specifically refer to the Schroeder analysis in its opinion, the court clearly stated that the "express advocacy" standard does not meaningfully address potential constitutional problems arising from the use of public funds for campaign activities that were identified in Stanson. Thus, local governments must look to Vargas rather than Schroeder for the proper standard to evaluate whether an expenditure is permissible.
A variety of factors led to the Vargas court's conclusion that the communications were informational, including the fact that the publications avoided argumentative or inflammatory rhetoric and did not urge citizens to vote in a particular manner. The challenged expenditures were made pursuant to general appropriations in the city's regular annual budget pertaining to the maintenance of the city's website, the publication of the city's regular quarterly newsletter, and the ordinary provision of information to the public regarding the city's operations. The Supreme Court found that in posting on the city's website the minutes of city council meetings relating to the council's action along with reports prepared by various municipal departments and presented by officials at city council meetings, the city engaged in informational rather than campaign activity. Similarly, the city did not engage in campaign activity in producing a one -page document listing the program reductions that the city council voted to implement should Measure O be approved, or in making copies of the document available to the public at the city clerk's office and public libraries. The court reasoned that viewed from the perspective of an objective observer, the document clearly constituted an informational statement that merely advised the public of specific plans that the city council voted to implement should Measure O be approved.
Finally, the court found that the city engaged in permissible informational activity by mailing to city residents the fall 2002 "City Round -Up" newsletter containing articles describing proposed reductions in city services. Although under some circumstances the mailing of material relating to a ballot measure to a large number of voters shortly before an upcoming election would constitute campaign activity, a number of factors supported the court's conclusion that the mailing of the newsletter constituted informational rather than campaign activity: it was a regular edition of the newsletter that was mailed to all city residents as a general practice, the style and tenor of the Summary of Principal Conflicts of Interest Laws and Regulations Page 72 © 2023 Richards, Watson & Gershon
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations publication was entirely consistent with an ordinary municipal newsletter and readily distinguishable from traditional campaign material, and the article provided residents with important information about the tax in an objective and nonpartisan manner.
The Supreme Court illustrated the insufficiency of the "express advocacy" standard by suggesting that if the city were to post billboards throughout the city prior to an election stating, "IF MEASURE O IS APPROVED, SIX RECREATION CENTERS, THE MUNICIPAL POOL, AND TWO LIBRARIES WILL CLOSE," it would defy common sense to suggest that the city had not engaged in campaign activity even though such advertisements would not have violated the express advocacy standard. Vargas v. City of Salinas, 46 Cal. 4th 1, 32 (2009).
Vargas and Stanson reflect that local agencies must exercise caution when communicating to voters about local measures. Unfortunately, there is no hard and fast rule to assist public officials in distinguishing improper partisan campaign expenditures from permissible expenditures for "informational activities." Whether a communication is permissible will be based on a combination of these factors, and public officials should therefore seek the advice of the city attorney on a case -by -case basis. Assistance may also be obtained from the FPPC.
Last, public officials should also be aware of a fairly new mass mailing rule that regulates communications pertaining to candidates and ballot measures. In 2009, the FPPC adopted a new regulation to prohibit government agencies from paying for mass mailings that expressly advocate or "unambiguously urge" a particular result in an election. Regulation 18901.1 prohibits a mailing if all of the following criteria are met:
• A delivery of a tangible item such as a written document, video tape, record, or button and is delivered to the recipient at his or her residence, place of employment or business, or post office box;
• The item sent expressly advocates or unambiguously urges a particular result in an election;
• The public agency (1) pays to distribute the item or (2) pays costs, exceeding $50, reasonably related to designing, producing, printing or formulating the content of the item including, but not limited to, payments for polling or research and payments for the salary, expenses, or fees of the agency's employees, agents, vendors, or consultants with the intention of sending the item; and
• More than 200 substantially similar items are sent during the course of the election including items sent during the qualification drive or in anticipation of an upcoming election.
A mailing "unambiguously urges a particular result in an election" if the communication can be reasonably characterized as campaign material or activity and is not a fair presentation of facts serving only an informational purpose when taking into account the style, tenor, and timing of the communication.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations There are exceptions to this rule, and the following are not considered campaign related mass mailings: (1) an agency report providing the agency's internal evaluation of a measure sent to a member of the public upon the individual's request; (2) a written argument sent to a voter in the voter information pamphlet; and (3) a communication clearly and unambiguously authorized by law. Regulation 18901.1 (b). Essentially, this regulation utilizes the standards articulated by the Supreme Court in the Vargas case and provides that communications that violate those standards are prohibited mass mailings.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations VI. PROHIBITION ON GIFTS OF PUBLIC
FUNDS
Article XVI, Section 6 of the California Constitution prohibits state and local governments from making gifts of public funds or property. A transfer of property without consideration is a gift. Civ. Code § 1146. However, where property is transferred for a "public purpose," it will not be considered a gift of public funds. There, "the benefit to the [government] from an expenditure for a 'public purpose' is in the nature of consideration and the funds expended are therefore not a gift even though private persons are benefited therefrom." 69 Ops. Cal. Att'y Gen. 168 (1986) (citing California Employment Stabilization Comm'n v. Payne, 31 Cal. 2d 210, 216 (1947); Alameda County v. Janssen, 16 Cal. 2d 276, 281 (1940)).
In determining whether a legislative body has made a gift of public funds, courts will look first at "whether the money is to be used for a public or a private purpose." City of Oakland v. Garrison, 194 Cal. 298, 302 (1941). "If it is for a public purpose within the jurisdiction of the appropriating board or body, it is not, generally speaking, to be regarded as a gift." Id. As the California Court of Appeal explained in Board of Supervisors v. Dolan, it is settled that if a public purpose is served by the expenditure of public funds, the constitutional prohibition is not violated "even though there may be incidental benefits to private persons." 45 Cal. App. 3d 237, 243 (1975). However, to avoid violating the constitutional prohibition, public financial assistance must be tailored or "directly related" to a public purpose. California Housing Finance Authority v. Elliott, 17 Cal. 3d 575 (1976). Thus, financial assistance that does not directly further the proffered public purpose may still be found to be unconstitutional.
Courts defer to the legislative body's determination of what constitutes a "public purpose." The concept of public purpose has been liberally construed by the courts, and a city council's determination of public purpose will be upheld unless it is totally arbitrary. County of Alameda v. Carleson, 5 Cal. 3d 730, 746 (1971). Where a city acts pursuant to or in furtherance of a state statute, courts will defer to the state legislature in determining whether a public purpose exists.
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Summary of the Major Provisions and Requirements of Principal Conflicts of Interest Laws and Regulations VII. CONCLUSION
More often than not, determining the application of conflicts of interest laws in particular circumstances requires complicated analysis. Because the consequences for a violation of these laws can be very serious, it is important that potential conflicts be identified as soon as possible to ensure that the appropriate analysis can be performed.
To that end, we recommend that public agency staff prepare maps of council member residences and other real property interests (and those of other public officials, such as planning commissioners) so that such officials may be alerted to projects that are located within 500 and 1,000 feet of their real property interests. Even though the materiality standards for real property interests have changed over the years, this is still an important starting point for a conflicts analysis.
We encourage all public officials to keep in mind that it is the individual responsibility of each public official to determine whether he or she has a conflict in a particular decision.
We encourage officials and staff to seek advice from the city attorney when in doubt about a conflicts of interest issue. Because only a formal, written opinion from the FPPC can immunize someone from prosecution, we strongly encourage officials and staff to seek advice from the city attorney as early as possible, so that, if necessary, the public agency may request a formal opinion from the FPPC prior to any participation in a decision where a public official may have a conflict.
In addition, the Legislature has enacted a statute that requires public officials to take at least two hours of ethics training every two years if the local agency provides that official with any type of compensation, salary, or stipend or provides reimbursement for necessary and reasonable expenses incurred by that official in the performance of his or her official duties. § 53235(a). Ethics training would also be required of any employee designated by the local agency to receive such training. § 53234(c). Please seek advice from the city attorney regarding further details about ethics training.
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SECTION 8
Or - Brown Act
o HANDBOOK
r*4 Summary of the Major Provisions and Requirements
of the Ralph M. Brown Act
Summary and Discussion of the Major Provisions of the Brown Act Text of the Ralph M. Brown Act
) Updated including changes effective January 1, 2023
Table of Contents
INTRODUCTION...............................................................................................................................................iii PART
ONE: SUMMARY OF THE MAJOR PROVISIONS AND REQUIREMENTS OF THE RALPH M.
BROWNACT...................................................................................................................................... l
I.
APPLICATION OF BROWN ACT TO "LEGISLATIVE BODIES".........................................................2 II.
DEFINITION OF "MEETING"...............................................................................................................3 III.
EXCEPTIONS TO MEETING REQUIREMENT......................................................................................3 A. The Individual Contact Exception...................................................................................4 B. The Seminar or Conference Exception...........................................................................4 C. The Community Meeting Exception................................................................................4 D. The Other Legislative Body Exception.............................................................................4 E. The Social or Ceremonial Occasion Exception............................................................5 F. The Standing Committee Exception...............................................................................5 IV.
PERMITTED LOCATIONS OF MEETINGS AND TELECONFERENCING...........................................5 A. Permitted Locations of Meetings.....................................................................................5 B. Teleconferencing................................................................................................................5 1) Background on the COVID-19 pandemic.......................................................6 V.
ADA COMPLIANCE...........................................................................................................................9 VI.
SIMULTANEOUS OR SUCCESSIVE MEETINGS................................................................................10 VII.
SERIAL MEETINGS.............................................................................................................................10 A. Contacts with Staff........................................................................................................... l 1
B. Contacts with Constituents, Developers and Lobbyists............................................12 C. Contacts with Fellow Members of the Same Legislative Body................................13 D. Contacts on Social Media..............................................................................................13 VIII.
NOTICE, AGENDA AND REPORTING REQUIREMENTS................................................................14 A. Time of Notice and Content of Agenda......................................................................14 B. Action and Discussion on Non -agenda Items.............................................................17 Ralph M. Brown Act Page i
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C. Reporting of Actions.........................................................................................................18 IX.
PUBLIC PARTICIPATION...................................................................................................................18 A. Regular Meetings..............................................................................................................18 B. Public Comments at Special Meetings........................................................................19 C. Limitations on the Length and Content of Public Comments.................................19 D. Additional Rights of the Public.......................................................................................20 X.
CLOSED SESSIONS...........................................................................................................................22 XI.
ENFORCEMENT................................................................................................................................24 XII.
CONCLUSION..................................................................................................................................25 PART
TWO: THE RALPH M. BROWN ACT...................................................................................................24 Ralph M. Brown Act Page ii
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INTRODUCTION
This Handbook is prepared to provide you with a summary of the major provisions of California's open meeting law for local governments - the Ralph M. Brown Act, including rules about calling and holding various types of meetings and closed sessions, as well as guidelines for how to avoid serial meetings. The second part contains the complete text of the Brown Act. This Handbook is designed for local government officials and staff and we hope you will find it useful. Should you have any questions about the information included in this Handbook, please do not hesitate to contact us.
Richards, Watson & Gershon
Ralph M. Brown Act Page iii
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PART ONE:
SUMMARY OF THE MAJOR PROVISIONS
AND REQUIREMENTS OF THE RALPH M.
BROWN ACT
//RWG
LAW
Ralph M. Brown Act
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Summary of the Major Provisions
and Requirements of the Ralph M. Brown Act
The Ralph M. Brown Act, more commonly known as the "Brown Act," is California's "sunshine" law for local government. The Brown Act is found in the California Government Code commencing with Section 54950. In a nutshell, the Brown Act requires local government business to be conducted at open and public meetings, except in certain limited situations. This Handbook briefly summarizes and discusses the major provisions of the Brown Act.
I. APPLICATION OF BROWN ACT TO
"LEGISLATIVE BODIES"
The requirements of the Brown Act apply to "legislative bodies" of local governmental agencies. The term "legislative body" is defined to include the governing body of a local agency (e.g., the city council or the board of supervisors) and any commission, committee, board, or other body of the local agency, whether permanent or temporary, decision -making or advisory, that is created by formal action of a legislative body. § 54952(a)-(b).
Standing committees of a legislative body, that have either "continuing subject matter jurisdiction" or a meeting schedule fixed by formal action of the legislative body, are also subject to the requirements of the Brown Act. Some common examples include the finance, personnel, or similar policy subcommittees of a legislative body. Standing committees exist to make routine, regular recommendations on a specific subject matter. These committees continue to exist over time and survive resolution of any one issue or matter. They are also a regular part of the governmental structure.
The Brown Act does not apply to "ad hoc" committees comprised solely of members of the legislative body that are less than a quorum of the body, provided these committees do not have a "continuing subject matter jurisdiction," or a meeting schedule fixed by formal action of the legislative body. Such ad hoc committees are purely advisory; they generally serve only a limited or single purpose, are not perpetual, and are dissolved when their specific task is completed.
Advisory and standing committees, but not ad hoc committees, are required to have agendas, and to have their agendas posted at least 72 hours in advance of their meetings. If this is done, the meeting is considered to be a regular meeting for all purposes. § 54954(a). If the agenda is not posted at least 72 hours in advance, the meeting must be treated as a special meeting, and all of the limitations and requirements for special meetings apply, as discussed later in Section VIII of this Handbook.
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Summary of the Major Provisions of the Ralph M. Brown Act The governing boards of some private corporations, limited liability companies, and private entities may be subject to the Brown Act under certain circumstances. A private entity's governing board constitutes a legislative body within the meaning of the Brown Act if either of the following applies: (i) the private entity is created by an elected legislative body to exercise lawfully delegated authority of the legislative body; or (ii) the private entity receives funds from a local agency and its governing board includes a member of the legislative body of the local agency who was appointed by the legislative body to the governing board as a full voting member. § 54952(c). Additionally, charter schools and entities managing charter schools may also be subject to the Brown Act.
Educ. Code, § 47604.1 (b) (1).
The Brown Act also applies to persons who are elected to serve as members of a legislative body of a local agency even before they assume the duties of office. § 54952.1. Under this provision, the statute is applicable to newly elected, but not -yet - sworn -in, members of the legislative body.
II. DEFINITION OF "MEETING"
The central provision of the Brown Act requires that all "meetings" of a legislative body be open and public. The Brown Act defines the term "meeting" very broadly in § 54952.2(a), and encompasses almost every gathering of a majority of legislative body members, including:
"[A]ny congregation of a majority of the members of a legislative body at the same time and location, including a teleconference, . . . to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body."
In plain English, this definition means that a meeting is any gathering of a majority of council members, board of directors or other applicable legislative body, to hear, discuss or deliberate any item of local agency business or potential local agency business. It is important to emphasize that a meeting occurs if a majority gathers to hear, discuss or deliberate on a matter and not just voting or taking action on the issue.
III. EXCEPTIONS TO MEETING
REQUIREMENT
There are six types of gatherings that are not subject to the Brown Act. We commonly refer to these exceptions as: (1) the individual contact exception; (2) the seminar or conference exception; (3) the community meeting exception; (4) the other legislative body exception; (5) the social or ceremonial occasion exception; and (6) the standing committee exception. Unless a gathering of a majority of the members of a legislative body falls within one of the exceptions discussed below, even if a majority of members are merely in the same room listening to a discussion of local agency business, they will Ralph M. Brown Act Page 3
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Summary of the Major Provisions of the Ralph M. Brown Act be participating in a meeting within the meaning of the Brown Act that requires notice, an agenda, and a period for public comment.
A. The Individual Contact Exception
Conversations, whether in person, by telephone, video conferencing, or other means, between a member of a legislative body and any other person do not constitute a meeting under the Brown Act. § 54952.2(c) (1). However, such contacts may constitute a "serial meeting" (discussed below) in violation of the Brown Act, if the individual also makes a series of individual contacts with other members of the legislative body, and communications with these other members are used to "discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body." § 54952.2(a).
B. The Seminar or Conference Exception
Attendance by a majority of the legislative body at a seminar, conference or similar educational gathering is generally exempted from Brown Act requirements. § 54952.2(c)(2). However, in order to qualify under this exception, the seminar or conference must be open to the public and must involve issues of general interest to the public or to local agencies. Attendance at a California League of Cities or California Contract Cities seminar is an example of an educational gathering that fulfills these requirements. However, as with many of the exceptions, this exception will not apply if a majority of legislative body members discuss among themselves items of specific business relating to their own local agency other than as part of the scheduled program.
C. The Community Meeting Exception
The community meeting exception allows a majority of legislative body members to attend privately sponsored neighborhood meetings, town hall forums, chamber of commerce lunches or other community meetings at which issues of local interest are discussed. § 54952.2(c) (3). In order to fall within this exception, however, the community meeting must satisfy specific criteria. First, the community meeting must be "open and publicized." Therefore, a homeowners' association meeting restricted to the residents of a particular development and only publicized to those residents cannot be attended by a majority of the legislative body without following the Brown Act requirements because the meeting does not qualify for the exception. And again, for those meetings that fall within the community meeting exception, a majority of legislative body members cannot discuss among themselves items of business of their own local agency other than as part of the scheduled program.
D. The Other Legislative Body Exception
This exception allows a majority of members of any legislative body to attend open and noticed meetings of other legislative bodies of their local agency, or of another local agency, without treating such attendance as a meeting of the body. § 54952.2(c)(4).
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Summary of the Major Provisions of the Ralph M. Brown Act Of course, the legislative body members are prohibited from discussing items of business of their local agency among themselves other than as part of the scheduled meeting.
E. The Social or Ceremonial Occasion Exception
As has always been the case, the Brown Act does not apply to attendance by a majority of the legislative body members at purely social or ceremonial occasions. § 54952.2(c)(5). This exception only applies if a majority of legislative body members do not discuss among themselves items of business of their local agency.
F. The Standing Committee Exception
The standing committee exception allows members of a legislative body, who are not members of a standing committee of that body, to attend an open and noticed meeting of the committee without making the gathering a meeting of the full legislative body itself. § 54952.2(c)(6). If a majority of the legislative body is created by the attendance of the additional members, the legislative body members who are not members of the standing committee may attend only as "observers." This means that the noncommittee members of the legislative body should not speak at the standing committee's meeting, sit in their usual seat on the dais, or otherwise participate in the meeting. It is generally recommended that, if a standing committee meeting is likely to be attended by other legislative body members, then the meeting should be agendized as a meeting of the whole legislative body. This will allow full participation by all members of the legislative body.
IV. PERMITTED LOCATIONS OF MEETINGS
AND TELECONFERENCING
A. Permitted Locations of Meetings
The Brown Act generally requires all meetings of a legislative body to occur within the boundaries of the local agency. § 54954(b). There are limited exceptions to this rule, however, such as allowing meetings with a legislative body of another local agency in that agency's jurisdiction. Meetings held outside of a local agency's boundaries pursuant to an exception still must comply with agenda and notice requirements, as discussed below.
B. Teleconferencing
The role of "teleconferencing," or using telephonic and/or video technology in public meetings was expanded significantly during the COVID-19 pandemic.
Because the Brown Act relies on physical, in -person meetings as the primary means to achieve its goals of public participation and transparency, the law has traditionally limited a local agency's ability to use teleconferencing to hold public meetings.
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Summary of the Major Provisions of the Ralph M. Brown Act Generally, teleconferencing may only be used by members of a legislative body as a way to participate fully in the meeting from remote locations. § 54953(b). If one or more members participate in a meeting via teleconferencing, the following requirements apply to that meeting: (1) the remote location must be connected to the main meeting location by telephone, video or both; (2) the notice and agenda of the meeting must identify the remote location; (3) the remote location must be posted and accessible to the public; (4) all votes must be by roll call; and (5) the meeting must comply with the Brown Act, which includes allowing participation by members of the public present in remote locations. A quorum of the legislative body must participate from locations within the jurisdiction, but other members may participate from outside the jurisdiction. These teleconferencing rules only apply to members of the legislative body. Staff members, attorneys or consultants may participate remotely without following the posting and public access requirements of the teleconferencing rules.
On March 17, 2020, Governor Newsom issued Executive Order ("EO") N-29-20, which temporarily relaxed these traditional teleconferencing requirements in response to the COVID-19 pandemic. That order expired on September 30, 2021, but recent amendments to the Brown Act, described below, now provide other alternatives to the standard teleconferencing rules under specific conditions. The Brown Act's standard teleconferencing rules described in the preceding paragraph remain available in lieu of the alternatives described below.
1) Assembly Bill 361
AB 361 built upon EO N-29-20 to provide a statutory basis in the Brown Act for relaxed teleconferencing requirements during the COVID-19 declared emergency. As described below, however, there must be a proclaimed state of emergency for an agency to rely on AB 361. Because The Governor has announced that the current COVID-19 state of emergency will end on February 28, 20231, agencies will be unable to rely on AB 361 after that date absent a new emergency declaration.
By its terms, AB 361 will sunset on January 1, 2024. § 54953(f). Until then, AB 361 authorizes local agencies to continue meeting remotely during a state of emergency proclaimed by the Governor without following the Brown Act's standard teleconferencing provisions, including the requirement that meetings be conducted in physical locations, if either of the following applies: (1) state or local officials have imposed or recommended measures to promote social distancing; or (2) the agency has already determined or is determining whether, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees. § 54953(e)(1)(A)-(C). "State of emergency" means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act.
AB 361 generally requires legislative bodies to make remote public meetings accessible telephonically or otherwise electronically to all members of the public seeking to observe 1 Governor Newsom to End the COVID-19 State of Emergency (Oct. 17, 2022), available at:
https://www.gov.ca..qov/2022/ 10/ 17/governor-newsom-to-end-the-covid-19-state-of- emergency/ (as of Dec. 7. 2022).
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Summary of the Major Provisions of the Ralph M. Brown Act and to address the local legislative body, and to make reasonable efforts to adhere as closely as reasonably possible to the provisions of the Brown Act. AB 361 provides the following procedures and requirements for conducting remote meetings as follows:
Public Comment Opportunities in Real Time: A legislative body that meets remotely pursuant to AB 361 must allow members of the public to access the meeting via a call -in option or an internet-based service option, and the agenda for the remote meeting must provide an opportunity for members of the public to directly address the body in real time. Although the agency may still ask for public comments to be submitted in advance, the agency cannot require public comments to be submitted in advance of the meeting. § 54953(e) (2) (E).
Agencies may not close a public comment period until members of the public are given the opportunity to register and the time for that comment period has elapsed, whether it is for a specific agenda item or a general comment period. If an agency does not provide a timed public comment period, but takes public comment separately on each agenda item, it must allow a reasonable amount of time per agenda item to allow members of the public the opportunity to provide public comment, including time to register or "otherwise be recognized forthe purpose of providing public comment." § 54953(e)(2)(G)(ii).
2. No Action During Disruptions: In the event of a disruption that prevents the local agency from broadcasting the remote meeting, or in the event of a disruption within the local agency's control that prevents members of the public from offering public comments using the call -in option or internet-based service option, AB 361 prohibits the legislative body from taking any further action on items appearing on the meeting agenda until public access to the meeting via the call - in or internet-based options is restored. § 54953(e) (2) (D).
3. Periodic Findings: To continue meeting remotely pursuant to AB 361, an agency must make periodic findings that: (1) the body has reconsidered the circumstances of the declared emergency; and (2) the emergency impacts the ability of the body's members to meet safely in person, or state or local officials continue to impose or recommend measures to promote social distancing. § 54953(e)(3). These findings must be made not later than 30 days after teleconferencing for the first time pursuant to AB 361, and every 30 days thereafter. We recommend that after the agency makes these findings for the first time, it place on the agenda (as a placeholder) "reconsideration" of the findings every month thereafter. § 54953(e)(3).
2) Assembly Bill 2449
AB 2449 provides alternate authority, separate from both the traditional Brown Act teleconferencing requirements and the relaxed teleconferencing requirements during declared emergencies under AB 361. The provisions of AB 2449 are effective for a period of three years beginning January 1, 2023 and ending January 1, 2026.
AB 2449 requires at least a quorum of the legislative body to participate in person from a singular, physical location clearly identified on the agenda, open to the public, and Ralph M. Brown Act Page 7
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Summary of the Major Provisions of the Ralph M. Brown Act situated within the boundaries of the territory over which the agency exercises jurisdiction. § 54953(f)(1). AB 2449 allows other individual members to participate remotely without posting agendas at all teleconference locations, identifying all such locations in the agendas, or making each teleconference location open to the public in two specified circumstances: (1) "just cause" or (2) "emergency circumstances." "Just cause" means any of the following: (A) a childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely; (B) a contagious illness that prevents a member from attending in person; (C) a need related to a physical or mental disability not otherwise accommodated by the agency's procedures for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the Americans with Disabilities Act; or (D) travel while on official business of the legislative body or another state or local agency. § 54953(j) (2).
To participate remotely for just cause, a member must notify the legislative body "at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for just cause." This notification must include a general description of the circumstances relating to their need to appear remotely at the given meeting. "Emergency circumstances" means a physical or family medical emergency that prevents a member from attending a meeting in person. § 54953(j)(1).
To participate remotely due to emergency circumstances, the member must request the legislative body to allow them to participate in the meeting remotely due to emergency circumstances and the legislative body must take action to approve the request. § 54953(f) (2) (A) (ii). If the legislative body does not approve the request, the member may not participate via teleconference under AB 2449 at that meeting other than as a member of the public. The legislative body must request a general description of the circumstances relating to the member's need to appear remotely at the given meeting.
A general description need not exceed 20 words and does not require the member to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law. A legislative body member should request to participate remotely at a meeting due to emergency circumstances as soon as possible, and a separate request is required for each meeting in which they seek to participate remotely. § 54953(f) (2) (A) (i) (1). The legislative body may approve such a request by a majority vote. §§ 54953(f) (2) (A) (i) (II); 54954.2(b) (4). If the request is received at least 72 hours before a regular meeting, the legislative body's action on the request should be included on the agenda. If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting, the legislative body may take action at the beginning of the meeting. § 54953(f) (2) (A) (i) (II).
There are strict limits on how often AB 2449 may be used for individual members. For "just cause," legislative members are only allowed to participate remotely up to two meetings per calendar year. Otherwise, legislative members may not participate solely by teleconference from a remote location for a period of more than three consecutive months or 20 percent of the regular meetings for the legislative body within a calendar Ralph M. Brown Act Page 8
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Summary of the Major Provisions of the Ralph M. Brown Act year, or more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year.
At the meeting before any action is taken, members of the legislative body participating remotely pursuant to AB 2449 must publicly disclose whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member's relationship with any such individuals. § 54953(f)(2)(B). Members must also participate through both audio and visual technology so that the public can remotely hear and visually observe them. § 54953(f)(2)(C).
Local agencies relying on AB 2449 must follow certain requirements for noticing and conducting remote meetings similar to those required by AB 361. Meeting notices and agendas must identify the means by which members of the public may access the meeting and offer public comment. § 54953(f) (1) (B). Meeting agendas must identify and include an opportunity for all persons to attend and address the legislative body directly via a call -in option, via an internet-based service option, and at the in -person location of the meeting. § 54953(f) (1) (C). In the event of a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call -in option or internet-based service option, or in the event of a disruption within the agency's control that prevents members of the public from offering public comments using the call -in option or internet-based service option, the legislative body may take no further action on items appearing on the meeting agenda until public access to the meeting via the call -in option or internet-based service option is restored. § 54953(f) (1) (D). The legislative body may not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. § 54953(f)(1)(E).
V. ADA COMPLIANCE
Pursuant to Section 54953.2, all meetings of a legislative body, other than closed session meetings or parts of meetings involving a closed session, are required to be held in a location and conducted in a manner that complies with the Americans with Disabilities Act of 1990.
However, local agencies must ensure that remote meetings are conducted in a manner that allows persons with a disability to participate to the fullest extent possible.
Additionally, if requested, the agenda and documents in the agenda packet shall be made available in alternative formats to persons with a disability. § 54954.1. The agenda shall include information regarding how, to whom and when a request for disability - related modification or accommodation, including auxiliary aids or services, may be made by a person with a disability who requires a modification or accommodation in order to participate in the meeting. § 54954.2.
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Summary of the Major Provisions of the Ralph M. Brown Act VI. SIMULTANEOUS OR SUCCESSIVE
MEETINGS
A legislative body that has convened a meeting and whose membership constitutes a quorum of any other legislative body may convene a meeting of that other legislative body, simultaneously or successively, only if a clerk or a member of the convened legislative body announces the following prior to convening the simultaneous or successive meeting:
1) There is a subsequent legislative body;
2) The amount of compensation or stipend, if any, each member may receive as a result of the multiple meetings; and
3) The form of the compensation or stipend that will be provided.
The amount of compensation and stipend is not required to be announced if it is listed in a statute without additional compensation authorized by the local agency, and in any case, the announced compensation must not include amounts reimbursed for actual and necessary expenses incurred by a member in the performance of his or her official duties. § 54952.3.
VII. SERIAL MEETINGS
In addition to regulating all gatherings of a majority of the members of a legislative body, the Brown Act also addresses certain contacts between individual members of the legislative body. On the one hand, the Brown Act specifically provides that nothing in the Act is intended to impose requirements on individual contacts or conversations between a member of a legislative body and any other person. § 54952.2(c)(1). This provision even applies to individual contacts between two members of the legislative body (the individual contact exception to the "meeting" described above). Despite this exception, however, the Brown Act prohibits "serial meetings." § 54952.2(b)(1).
A serial meeting is a series of meetings or communications, either in person or by other means, between individual members of the legislative body in which ideas are exchanged among a majority of a legislative body regarding an item of business that is within the subject matter jurisdiction of the legislative body. A serial meeting can occur even though a majority of legislative body members never gather in a room at the same time. For example, an email response concerning an agency's business circulating among a majority of the members of the legislative body, such as "reply to all," could be considered a serial meeting. A serial meeting typically occurs in one of two ways. The first is when a staff member, a legislative body member or some other person individually contacts a majority of legislative body members and shares ideas among the majority (e.g., "I've talked to members A and B and they will vote `yes.' Will you?"). Alternatively, Ralph M. Brown Act Page 10
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Summary of the Major Provisions of the Ralph M. Brown Act member A calls member B, who then calls member C and so on, until a majority of the legislative body has discussed or deliberated or has taken action on the item of business.
The prohibition against serial meetings does not, however, prohibit communications between staff and legislative body members for the purpose of answering questions or providing information regarding a matter that is within the subject matter jurisdiction of the local agency, as long as the staff person does not communicate with other members of the legislative body, the comments or positions of any other member of the legislative body. § 54952.2(b)(2).
Social media interactions between or among members of a legislative body can also raise serial meeting concerns. However, the prohibition against serial meetings does not prevent communication between members of a legislative body and members of the public on internet-based social media platforms to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body provided that: (i) a majority of the members of the legislative body do not use the social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body, and (ii) members of the legislative body do not respond directly to any communication on a social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body. § 54952.2(b) (3).
Observing the following guidelines can avoid inadvertent violation of the serial meeting rule.
A. Contacts with Staff
Staff can inadvertently become a conduit among a majority of a legislative body in the course of providing briefings on items of local agency business. Originally, the California Court of Appeal held that staff briefings of individual city council members do not constitute an illegal serial meeting under the Brown Act unless there was additional evidence that: (1) staff acted as a personal intermediary for other members of the legislative body; and (2) the meetings led to a collective concurrence among members of the legislative body. Following that decision, the state legislature amended Government Code Section 54952.2 in 2008, effective in 2009, to further clarify that staff briefings of individual city council members for the purpose of answering questions or providing information regarding an item of business do not constitute an illegal serial meeting under the Brown Act as long as a staff person does not communicate the comments or positions of a member of the legislative body to other members. Staff briefings must therefore be handled carefully. To avoid having a staff briefing become a serial meeting:
• Staff briefings of members of the legislative body should be "unidirectional" when done on an individual basis for a majority of the legislative body. This means that information should flow from staff to the member, and the member's participation should be limited to asking questions and acquiring information. Otherwise, if multiple members separately give staff direction Ralph M. Brown Act Page 1 1
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Summary of the Major Provisions of the Ralph M. Brown Act thereby causing staff to shape or modify their ultimate recommendations in order to reconcile the views of a majority of the members, a violation might occur.
• A legislative body member should not ask staff to describe the views of any other members of the legislative body, and staff should not volunteer those views if known.
• Staff may present their views to a legislative body member during an individual contact, but staff should not ask for that member's views unless it is absolutely clear that staff is not discussing the matter with a majority of the legislative body.
B. Contacts with Constituents, Developers and Lobbyists A constituent, developer or lobbyist can also inadvertently become an intermediary among a majority of members of a legislative body thereby creating an illegal serial meeting in violation of the Brown Act. Such person's unfamiliarity with the requirements of the Brown Act aggravate this potential problem because they may expect a legislative body member to be willing to commit to a position in a private conversation in advance of a meeting. To avoid violations arising from contacts with constituents, developers and lobbyists:
• State the ground rules "up front." Ask if the person has talked, or intends to talk, with other members of the legislative body about the same subject. If the answer is "yes," then make it clear that the person should not disclose the views of other legislative body member(s) during the conversation. • Explain to the person that you will not make a final decision on a matter prior to the meeting. For example: "State law prevents me from giving you a commitment outside a noticed meeting. I will listen to what you have to say and give it consideration as I make up my mind."
• Do more listening and asking questions than expressing opinions. If you disclose your thoughts about a matter, counsel the person not to share them with other members of the legislative body.
• Be especially careful with discussions about matters involving "quasi- judicial" land use decisions such as subdivision maps, site development plans, conditional use permits or variances. Consult with your city attorney or legal counsel before the meeting in order to avoid any potential problems involving illegal prejudice against the project or illegally receiving evidence about the project outside of the administrative record.
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Summary of the Major Provisions of the Ralph M. Brown Act C. Contacts with Fellow Members of the Same Legislative Body
Direct contacts concerning local agency business with fellow members of the same legislative body - whether through face-to-face or telephonic conversations, notes, letters, online exchanges, email with or to staff members - are the most obvious means by which an illegal serial meeting can occur. This is not to say that a member of a legislative body is precluded from discussing items of local agency business with another member of that legislative body outside of a meeting; as long as the communication does not involve a majority of the legislative body, no "meeting" has occurred. There is, however, always the risk that one participant in the communication will disclose the views of the other participant to a third or fourth legislative body member, creating the possibility of a discussion of an item of business outside a noticed public meeting.
Therefore, avoid discussing city business with a majority of the members of your legislative body and communicating the views of other legislative body members outside a meeting.
D. Contacts on Social Media
Social media engagement can also inadvertently lead to concerns of creating an illegal serial meeting in violation of the Brown Act. The Brown Act was previously silent regarding social media and its use by members of a legislative body, leading to uncertainty as to whether certain uses of social media could result in unintended violations of the Brown Act. Assembly Bill 992, passed in 2020 and effective January 1, 2021, amended certain provisions of the Brown Act until January 1, 2026 to clarify allowable uses of social media under the Act.
A member of a legislative body may engage in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body. However, a majority of the members of the legislative body cannot use the internet-based social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body. Further, a member of the legislative body is prohibited from responding directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body. § 54952.2(b) (3) (A). Unlike other serial meeting restrictions that are invoked when there are contacts of a majority of the legislative body, this provision is triggered when there is interaction between as little as two members of a body. For purposes of these provisions, such interaction includes commenting or using digital icons that express reactions to communications made by other members of the legislative body. § 54952.2(b) (3) (B) (i). Thus, it is now clear that "liking" a post or using a digital icon is considered a discussion under the Brown Act.
Therefore, to avoid violations arising from social media engagement, members of a legislative body should avoid interacting on social media platforms with any other Ralph M. Brown Act Page 13
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Summary of the Major Provisions of the Ralph M. Brown Act members of their legislative body regarding matters within the subject matter jurisdiction of the legislative body.
These suggested rules of conduct may seem unduly restrictive and impractical, and may make acquiring important information more difficult or time-consuming. Nevertheless, following them will help assure that your conduct comports with the Brown Act's goal of achieving open government. If you have questions about compliance with the Act in any given situation, you should seek advice from your city attorney or legal counsel.
Adherence to the foregoing guidelines is not a substitute for securing advice from your legal counsel.
VIII. NOTICE, AGENDA AND REPORTING
REQUIREMENTS
A. Time of Notice and Content of Agenda
Two key provisions of the Brown Act which ensure the public's business is conducted openly are the requirements that legislative bodies publicly post agendas prior to their meetings, (§§ 54954.2, 54955, 54956 and 54957.5) and that no action or discussion may occur on items or subjects not listed on the posted agenda (§ 54954.2). The limited exceptions to the rule against discussing or taking action not on a posted agenda are discussed further below.
Legislative bodies, except advisory committees and standing committees, are required to establish a time and place for holding regular meetings. § 54954(a). A "regular" meeting is a meeting that occurs on the legislative body's established meeting day.
Generally, agendas for a regular meeting must be publicly posted 72 hours in advance of the meeting in a place that is freely accessible to the public.
Agendas must contain a brief general description of each item of business to be transacted or discussed at the meeting. § 54954.2(a). The description should inform the public of the "essential nature" of the matter, but need not exceed 20 words. San Diegans for Open Government v. City of Oceanside, 4 Cal. App. 5th 637 (2016).
Courts will not uphold a challenge to the sufficiency of an agenda item description when the description provides fair notice of what the agency will consider. The San Diegans for Open Government case provides an example of a sufficient agenda description that provides fair notice. In San Diegans for Open Government, the Oceanside City Council approved a subsidy agreement with a hotel developer using the following agenda item description:
Adoption of a resolution to approve: 1. An Agreement Regarding Real Property (Use Restrictions) between the City of Oceanside and SD Malkin Properties Inc. to guarantee development and use of the property as a full service resort consistent with the entitlements for the project; 2. An Agreement Regarding Real Property to provide a Ralph M. Brown Act Page 14
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Summary of the Major Provisions of the Ralph M. Brown Act mechanism to share Transient Occupancy Tax (TOT) generated by the Project; 3. A Grant of Easement to permit construction of a subterranean parking garage under Mission Avenue; 4. A report required by AB 562 prepared by Paul Marra of Keyser Marston and Associates documenting the amount of subsidy provided to the developer, the proposed start and end date of the subsidy, the public purpose of the subsidy, the amount of the tax revenue and jobs generated by the project; and 5. A License Agreement to permit construction staging for the project on a portion of Lot 26.
The court ruled that this agenda description complied with the requirements of Government Code Section 54954.2 because the agenda description expressly gave the public notice that the council would consider a fairly substantial development of publicly owned property as a hotel, that the City would share the transient occupancy tax generated by the project and that the transaction would involve a subsidy by the City.
Additional information, while helpful, was not necessary to provide fair notice of the essential nature of the action under state law. The court found that the language of the agenda, considered as a whole, provided more than a "clue" that the City planned to provide the developer with a substantial and ongoing financial subsidy in exchange for the project.
In contrast, in Hernandez v. Town of Apple Valley, 7 Cal. App. 5th 194 (2017), the court held that the Apple Valley Town Council's agenda description was insufficient. There, the Apple Valley Town Council adopted three resolutions that called for a special election related to an initiative to adopt a commercial specific plan and the filing of arguments and rebuttal arguments for and against the initiative. In addition, the Town Council adopted a Memorandum of Understanding ("MOU") that authorized the acceptance of a gift from an interested party, Wal-Mart, to pay for the special election.
The agenda description for the matter read "Wal-Mart Initiative Measure" and included a recommendation for action that read "[p]rovide direction to staff." The court reiterated that the Brown Act requires that each item of business be placed on the agenda. Specifically, the court highlighted that nothing in the agenda description, or even in the agenda packet, indicated that the Town Council was going to consider an MOU to accept a gift from Wal-Mart to pay for a special election to pass the initiative.
The court concluded that the City violated the Brown Act by omitting the MOU from the agenda description because the omission meant that the plaintiff was given no notice of the item of business.
Furthermore, agendas should make clear whether items may be acted on or whether they are informational only. Thus, if an agenda for a meeting states that the legislative body will only "discuss" an item, the legislative body may not take an "action" on that item.
Agendas must also be posted on the local agency's website, if one exists, for City Council meetings, and meetings of any other legislative body where some members are City Council members and are compensated for their appearance. While the language of the 72 hour posting requirement appears absolute, the California Attorney General Ralph M. Brown Act Page 15
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Summary of the Major Provisions of the Ralph M. Brown Act opined that technical difficulties, such as a power failure, cyber-attack or other third - party interference that prevents a local agency from posting its agenda on its website for the full 72 hours will not necessarily preclude the legislative body from lawfully holding its meeting. 99 Ops. Cal. Atty. Gen. 11 (2016). Whether a public meeting may continue as scheduled requires a fact specific analysis that turns on whether the local agency has otherwise "substantially complied" with the Brown Act's agenda posting requirements by properly posting a physical agenda and making other "reasonably effective efforts" (such as making the agenda available on social media or some other alternative website) to notify the public of the meeting.
Please note that the proposed adoption of a CEQA exemption or approval of a CEQA document, such as an environmental impact report or a negative declaration, by a Planning Commission or a City Council is a distinct item of business separate from the item approving the project and must be expressly described in an agenda. G.I. Industries v.
City of Thousand Oaks (2022) 84 Cal.App.5th 814.
A "special" meeting is a meeting that is held at a time or place other than the time and place established for regular meetings. For special meetings, the "call and notice" of the meeting and the agenda must be posted in a publicly accessible area, including in some cases on the local agency's website, at least 24 hours prior to the meeting. § 54956(a).
Additionally, each member of the legislative body must personally receive written notice of the special meeting either by personal delivery or by "any other means" (such as facsimile, email or U.S. mail) at least 24 hours before the time of the special meeting, unless they have previously waived receipt of written notice. Members of the press (including radio and television stations) and other members of the public can also request written notice of special meetings and, if they have, then that notice must be given at the same time notice is provided to members of the legislative body.
An "emergency" meeting may be called to address certain emergencies, such as a terrorist act or crippling disaster, without complying with the 24-hour notice requirement.
Certain requirements apply for notifying the press and for conducting closed sessions as part of those meetings and except as specified, all other rules governing special meetings apply. § 54956.5.
Both regular and special meetings may be adjourned to another time. Notices of adjourned meetings must be posted on the door of the meeting chambers where the meeting occurred within 24 hours after the meeting is adjourned. § 54955. If the adjourned meeting occurs more than five days after the prior meeting, a new agenda for that adjourned meeting must be posted 72 hours in advance of the adjourned meeting. § 54954.2(b)(3).
The Brown Act requires local agencies to mail the agenda or the full agenda packet to any person making a written request no later than the time the agenda is posted or is delivered to the members of the body, whichever is earlier. Additionally, a local agency with an internet website must send a website link to or a copy of the agenda or the full agenda packet by email, if a person requests that the documents be sent by email. A local agency may charge a fee to recover its costs of copying and mailing. Any person may make a standing request to receive these materials, in which event the request must Ralph M. Brown Act Page 16
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Summary of the Major Provisions of the Ralph M. Brown Act be renewed annually. Failure by any requestor to receive the agenda does not constitute grounds to invalidate any action taken at a meeting. § 54954.1.
B. Action and Discussion on Non -agenda Items
The Brown Act also ensures the public's business is conducted openly by restricting a legislative body's ability to deviate from posted agendas. The statute affords a legislative body limited authority to act on or discuss non -agenda items at regular meetings, but forbids doing so at special meetings.
As a general rule, a legislative body may not act on or discuss any item that does not appear on the agenda posted for a regular meeting. § 54954.2(a) (3). This rule does not, however, preclude a legislative body from acting on a non -agenda item that comes to the local agency's attention subsequent to the agenda posting which requires immediate action. § 54954.2(b) (2). In order to utilize this exception, the legislative body must make findings of both components of the exception by a two-thirds vote of those present (by unanimous vote if less than two-thirds of the body is present). This means that if four members of a five -member body are present, three votes are required to add the item; if only three are present, a unanimous vote is required. In addition, an item not appearing on an agenda may be added if the legislative body determines by a majority vote that an emergency situation exists. § 54954.2(b) (1). For purposes of this exception, the term "emergency situation" refers to work stoppages or crippling disasters that severely impair public health, safety, or both.
Assembly Bill 2449, discussed above, also allows a legislative body act at the beginning of a meeting on a request from a member to participate in a meeting remotely due to emergency circumstances pursuant to AB 2449 if the member's request to participate remotely does not allow sufficient time to place the proposed action on the posted agenda for the meeting for which the request is made. § 54953(f) (2) (A) (i) (II); § 54954.2(b)(4). The legislative body may approve such a request by a majority vote of the legislative body. § 54954.2(b)(4).
In addition to the general exceptions discussed above, a legislative body may also discuss non -agenda items at a regular meeting under the following five additional exceptions:
• Members of the legislative body or staff may briefly respond to statements made or questions posed by persons during public comment periods; • Members of the legislative body or staff may ask a question for clarification, make a brief announcement or make a brief report on their own activities; • Members of the legislative body may, subject to the procedural rules of the body, provide a reference to staff or other resources for factual information; • Members of the legislative body may, subject to the procedural rules of the body, request staff to report back to the legislative body at a subsequent meeting concerning any matter; and
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Summary of the Major Provisions of the Ralph M. Brown Act • Members of the legislative body may, subject to the procedural rules of the body, take action to direct staff to place a matter of business on a future agenda.
Therefore, spending a few minutes to discuss whether a matter should be placed on a future agenda or asking staff procedural questions is permissible. Cruz v. City of Culver City, 2 Cal.App. 5th 239 (2016). The legislative body may not, however, discuss non - agenda items to any significant degree. This means there should not be long or wide- ranging question and answer sessions on non -agenda items between the legislative body and the public or between the legislative body and staff. It is important to follow these exceptions carefully and construe them narrowly to avoid tainting an important and complex action by a non-agendized discussion of the item.
The Brown Act contains even more stringent regulations to restrict action on and discussion of non -agenda items at special meetings. In particular, the statute mandates that only business that is specified in the "call and notice" of the special meeting may be considered by the legislative body. § 54956. Notwithstanding, a special meeting may not be called to discuss compensation of a local agency executive. § 54956(b).
C. Reporting of Actions
The Brown Act mandates the public reporting of individual votes or abstentions by members of legislative bodies on any given motion or action. This requirement may be satisfied in most situations by reporting the individual vote or abstention of each member in the minutes of a meeting. § 54953(c). The Brown Act also requires that the legislative body orally report a summary of recommendations made with respect to the salary, salary schedule or compensation paid to a local agency executive. The legislative body must issue the report at the same meeting in which the final action on compensation is being considered. § 54953(c)(3).
IX. PUBLIC PARTICIPATION
A. Regular Meetings
The Brown Act mandates that every agenda for a regular meeting provide an opportunity for members of the public to directly address the legislative body on any matter that is within the subject matter jurisdiction of the legislative body. § 54954.3(a).
In addition, the Brown Act requires the legislative body to allow members of the public to comment on any item on the agenda either before or during the body's consideration of that item. § 54954.3(a). Also, although not required under the Brown Act, local agencies may consider reading written comments received into the public record by the city clerk, or his or her designee, subject to reasonable time and content limitations imposed in accordance with the requirements outlined below in Section C (titled Limitations on the Length and Content of Public Comments).
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Summary of the Major Provisions of the Ralph M. Brown Act Some local agencies accomplish both public comment requirements by placing a general audience comment period at the beginning of the agenda where the public can comment on both agenda and non -agenda items. Others provide public comment periods as each item or group of items comes up on the agenda, and then leave the general public comment period to the end of the agenda. Either method is permissible, though public comment on public hearing items must be taken during the hearing.
The Brown Act allows a legislative body to preclude public comments on an agenda item in one limited situation sometimes referred to as the "committee exception" -where the item was considered by a committee, composed solely of members of the body, that held a meeting where public comments on that item were allowed. So, if the legislative body has standing committees (which are required to have agendized and open meetings with an opportunity for the public to comment on agenda items) and the committee has previously considered an item, then at the time the item comes before the full legislative body, the body may choose not to take additional public comments on that item. However, if the version presented to the full legislative body is different from the version presented to, and considered by, the committee, then the public must be given another opportunity to speak on that item at the meeting of the full body. § 54954.3(a).
B. Public Comments at Special Meetings
The Brown Act requires that agendas for special meetings provide an opportunity for members of the public to address the legislative body concerning any item listed on the agenda before or during the body's consideration of that item. § 54954.3(a). Unlike regular meetings, though, the legislative body does not have to allow public comment on non -agenda matters at a special meeting. Additionally, unlike regular meetings, the exception to the requirement for public comment opportunity for items already considered by a committee (i.e., the "committee exception") does not apply to special meetings. Preven v. City of Los Angeles, 32 Cal. App. 5th 925, 936 (2019).
C. Limitations on the Length and Content of Public
Comments
A legislative body may adopt reasonable regulations limiting the total amount of time allocated to each person for public testimony. § 54954.3(b). Typical time limits restrict speakers to three or five minutes. If an individual utilizes a translator to give testimony and simultaneous translation equipment is not used, the legislative body must allot at least twice the standard amount of time to the speaker. § 54954.3(b)(2). A legislative body may also adopt reasonable regulations limiting the total amount of time allocated for public testimony on legislative matters, such as a zoning ordinance or other regulatory ordinance. However, setting total time limits per item for any quasi-judicial matter, such as a conditional use permit application, is not recommended because the time restriction could violate the due process rights of those who were not able to speak to the body during the time allotted.
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Summary of the Major Provisions of the Ralph M. Brown Act The Brown Act precludes a legislative body from prohibiting public criticism of the policies, procedures, programs or services of the local agency or the acts or omissions of the body. § 54954.3(c). This restriction does not mean that a member of the public may say anything during public testimony. If the topic of the public's comments falls outside the subject matter jurisdiction of the local agency, the legislative body may stop a speaker's comments if the comments are disruptive, as described below.
A legislative body also may adopt reasonable rules of decorum that preclude a speaker from disrupting, disturbing or otherwise impeding the orderly conduct of its meetings. § 54954.3(b). The right to publicly criticize a public official does not include the right to slander that official, though the line between criticism and slander is often difficult to determine in the heat of the moment. Care must be given to avoid violating the free speech rights of speakers by suppressing opinions relevant to the business of the legislative body.
Finally, in some circumstances, the use of profanity may serve as a basis for stopping a speaker. It will depend, however, upon what profane words or comments are made and the context of those comments. Therefore, no one should be ruled out of order for profanity unless the language both is truly objectionable and causes a disturbance or disruption in the proceeding.
The presiding officer of a legislative body may remove an individual from a meeting for actual disruptive behavior if they first warn the individual that their behavior is disruptive and that failure to cease their disruptive behavior could result in removal from the meeting. § 54957.95(a). Behavior is disruptive only if it actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting. § 54957.95(b)(1). Disruptive behavior may include noncompliance with the legislative body's established rules of decorum, such as speaking out of turn or exceeding established time limits on how long an individual can speak on a particular topic during public comment. § 54957.95(b) (1) (A). If the individual disrupting the meeting is using force or a true threat of force — meaning serious enough that a reasonable observer would perceive the threat to be an actual threat to use force by the person making the threat — they may be removed without a prior warning to cease their behavior. § 54957.95.
D. Additional Rights of the Public
The Brown Act grants the public the right to videotape or broadcast a public meeting, as well as the right to make a motion picture or still camera record of such meeting. § 54953.5(a). A legislative body may prohibit or limit recording of a meeting, however, if the body finds that the recording cannot continue without noise, illumination or view obstruction that constitutes, or would constitute, a disruption of the proceedings. § 54953.6.
Any audio or videotape record of an open and public meeting that is made, for whatever purpose, by or at the direction of the local agency is a public record and is subject to inspection by the public consistent with the requirements of the Public Records Act. § 54953.5(b). The local agency must not destroy the tape or film record for at least 30 days following the date of the taping or recording. Inspection of the audiotape or Ralph M. Brown Act Page 20
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Summary of the Major Provisions of the Ralph M. Brown Act videotape must be made available to the public for free on equipment provided by the local agency.
The Brown Act requires written material distributed to a majority of the body by any person to be provided to the public without delay. This rule is inapplicable, to attorney - client memoranda, the confidentiality of which was affirmed by the California Supreme Court in Roberts v. City of Palmdale, 5 Cal. 4th 363, 381 (1993). However, if non -privileged material is distributed during the meeting and prepared by the local agency, it must be available for public inspection at the meeting. If it is distributed during the meeting by a member of the public, it must be made available for public inspection after the meeting. § 54957.5(c).
If material related to an agenda item is distributed to a majority of the body less than 72 hours prior to an open session of a regular meeting, the writing must be made available at the same time for public inspection at a public office or location that has been designated in advance for such purpose. Each local agency must list the address of the designated office or location on the agendas for all meetings of the legislative body of that agency. § 54957.5(b). Although this Brown Act provision technically requires an agency to list the designated office address on closed session meeting agendas, it does not require an agency to make such closed session documents and materials available for public inspection.
A local agency may also post all documents made available for public inspection pursuant to Section 54957.5(b) on the agency's Internet Web site. However, a local agency may not post the writings to its website in lieu of designating a public office or location for inspection of physical copies of the documents.
There is a limited exception for certain supplemental materials to the requirement described above regarding making a writing distributed to a majority of the legislative body less than 72 hours in advance of a meeting immediately available for public inspection at a physical location. § 54957.5(b) (2) (B). The exception only applies to materials that are supplementing an initial staff report or similar document containing an executive summary and the staff recommendation, if any, relating to that agenda item that was made available for public inspection at the office or location designated at least 72 hours before the meeting. The exception allows the agency to make the materials available for public inspection the next business day commencing at least 24 hours in advance of the meeting during regular hours if the agency posts the materials on the agency's website immediately upon distributing them to the majority of the body, making it clear they relate to the item at the upcoming meeting, and the agenda posted for all meetings of the legislative body contains the agency's website address.
We recommend that local agencies implement the following procedures to comply with Section 54957.5(b):
• Place a binder at the agency's principal place of business next to the public counter agenda packet that identifies the contents as follows:
"Disclosable public documents related to an open session agenda item on Ralph M. Brown Act Page 21
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Summary of the Major Provisions of the Ralph M. Brown Act the Agenda Packet distributed by the [AGENCY] to a majority of the [LEGISLATIVE BODY] less than 72 hours prior to the meeting." • On the agenda template for all meetings, there should be a standard footer or statement that indicates the following: "Any disclosable public writings related to an open session item on a regular meeting agenda and distributed by the [AGENCY] to at least a majority of the [LEGISLATIVE BODY] less than 72 hours prior to that meeting are available for public inspection at the Counter at [AGENCY'S PLACE OF BUSINESS] located at [ADDRESS] and [optional] the Counter at the Library located at [LIBRARY ADDRESS] during normal business hours. [Optional] In addition, the Agency may also post such documents on the Agency's Website at [WEBSITE ADDRESS]." Agencies should make these documents available online to the greatest extent possible, when public buildings or facilities are temporarily closed to public access.
• On the agency's website, create a subfolder under the agenda packet folder that identifies the contents of the subfolder as follows: "Disclosable public documents related to an open session agenda item on the Agenda Packet distributed by the [AGENCY] to a majority of the [LEGISLATIVE BODY] less than 72 hours prior to the meeting." • On all documents made available for public inspection pursuant to Section 54957.5(b), make a notation of the date when distributed to at least a majority of the legislative body and placed in the binder at agency's place of business, [optional] the Library, or [optional] on the agency's Website.
• Charge customary photocopying charges for copies of such documents.
One problem left unaddressed by Section 54957.5(b) is what to do when written materials are distributed directly to a majority of the legislative body without knowledge of staff, or even without the legislative body members knowing that a majority has received it. The law still requires these materials to be treated as public records. Thus, it is a good idea for at least one member of the legislative body to ensure that staff gets a copy of any document distributed to members of the legislative body so that copies can be made for the local agency's records and for members of the public who request a copy.
X. CLOSED SESSIONS
The Brown Act allows a legislative body to convene a "closed session" during a meeting in order to meet privately with its advisors on specifically enumerated topics. Sometimes people refer to closed sessions as "executive sessions," which is a holdover term from the statute's early days. Examples of business that may be conducted in closed session include personnel actions and evaluations, threats to public safety, labor negotiations, pending litigation, real estate negotiations and consideration of a response to an audit Ralph M. Brown Act Page 22
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Summary of the Major Provisions of the Ralph M. Brown Act report. §§ 54956.8, 54956.9, 54957, 54957.6, 54956.75. Political sensitivity of an item is not a lawful reason for a closed session discussion.
The Brown Act requires that closed session business be described on the public agenda.
For a litigation threat against a city made outside an open and public meeting to be discussed in closed session it must be included in the agenda packet made available upon request before the meeting. Fowler v. City of Lafayette, 46 Cal. App. 5th 360, 370 (2020), as modified on denial of reh'g (Mar. 11, 2020), review denied (July 22, 2020).
Moreover, there is a "safe harbor" for using prescribed language to describe closed session items on an agenda in that legal challenges to the adequacy of the description are precluded when such language is used. § 54954.5. This so-called "safe harbor" encourages many local agencies to use a very similar agenda format, especially in light of a California Court of Appeal ruling that a local agency substantially complied with the Brown Act's requirement to describe closed session agenda items even though the notice referred to the wrong subsection of Section 54956.9. Castaic Lake Water Agency v. Newhall County Water District, 238 Cal.App. 4th 1196, 1207 (2015). Audio recording of closed sessions is not required unless a court orders such recording after finding a closed session violation. § 54960.
Closed sessions may be started in a location different from the usual meeting place as long as the location is noted on the agenda and the public can be present when the meeting first begins. Moreover, public comment on closed session items must be allowed before convening the closed session.
After a closed session, the legislative body must reconvene the public meeting and publicly report certain types of actions if they were taken and the vote on those actions. § 54957.1. There are limited exceptions for specified litigation decisions and to protect the victims of sexual misconduct or child abuse. Contracts, settlement agreements or other documents that are finally approved or adopted in closed session must be provided at the time the closed session ends to any person who has made a standing request for all documentation in connection with a request for notice of meetings (typically members of the media) and to any person who makes a request within 24 hours of the posting of the agenda, if the requestor is present when the closed session ends. § 54957.1.
One perennial area of confusion is whether a legislative body may discuss the salary and benefits of an individual employee (such as a city manager) as part of a performance evaluation session under Section 54957. It may not. However, the body may designate a negotiator or negotiators, such as two members of a five -member legislative body, to negotiate with that employee and then meet with the negotiator(s) in closed session under Section 54957.6 to provide directions on salary and compensation issues. The employee in question may not be present in such a closed session. The Brown Act prohibits attendees from disclosing confidential information obtained during a closed session, unless the legislative body authorizes the disclosure. Violations can be addressed through injunctions, disciplinary action, and referral to the grand jury. § 54963.
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Summary of the Major Provisions of the Ralph M. Brown Act XI. ENFORCEMENT
There are both civil remedies and criminal misdemeanor penalties for Brown Act violations. The civil remedies include injunctions against further violations, orders nullifying any unlawful action, orders determining that an alleged act violated the Brown Act, orders determining the validity of any rule to penalize or discourage the expression of a member of the legislative body, and remedies for breaching closed session confidences. §§ 54960, 54960.1, 54960.2, 54963.
The procedures for claiming there was a Brown Act violation vary depending upon what the complaining party is seeking. If the complaining party is seeking to invalidate an action based on a violation of the Brown Act, the procedures for doing so are set forth in Section 54960.1, as summarized below. If the complaining party is merely seeking a determination that a Brown Act violation occurred or desires the court to impose an order preventing further violations, the procedures for doing so are set forth in Section 54960.2, also as summarized below.
Under Section 54960.1, prior to filing suit to obtain a judicial determination that an action is null and void because of an alleged Brown Act violation, the complaining party must make a written demand on the legislative body to cure or correct the alleged violation. § 54960.1 (b). The written demand must be made within 90 days after the challenged action was taken. However, if the challenged action was taken in open session and involves a violation of the agenda requirements of Section 54954.2, then the written demand must be made within 30 days. § 54960.1 (c) (1). The legislative body is required to cure or correct the challenged action and inform the party who filed the demand of its correcting actions or its decision not to cure or correct, within 30 days. § 54960.1 (c) (2).
The complaining party must file suit within 15 days after receipt of the written notice from the legislative body or if there is no written response, within 15 days after the 30-day cure period expires. § 54960.1 (c). Under Section 54960.2, prior to filing suit to obtain a judicial determination that an alleged Brown Act violation occurred after January 1, 2013, the district attorney or interested person must submit a cease and desist letter to the legislative body clearly describing the legislative body's past action and the nature of the alleged violation within nine months of the alleged violation. § 54960.2(a). Second, the legislative body may respond within 30 days, including responding with an unconditional commitment to cease and desist from, and not repeat the past action that is alleged to violate the Brown Act. § 54960.2(b). If the legislative agency responds with an unconditional commitment, that commitment must be approved by the legislative body in open session at a regular or special meeting as a separate item of business not on the consent calendar and must be in substantially the form set forth in Section 54960.2(c)(1). Also, a legislative body may resolve to rescind an unconditional commitment with proper notice to the public and to each person to whom the unconditional commitment was made. § 54960.2(e). Upon rescission, the district attorney or any interested person may file an action pursuant to Section 54960(a). Finally, Section 54960.2 provides further deadlines and requirements that must be met when filing an action in connection with an unconditional commitment. § 54960.2. Note that even where a plaintiff can satisfy the threshold procedural requirements, a Brown Act violation will not automatically invalidate the action taken by the legislative body absent a Ralph M. Brown Act Page 24
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Summary of the Major Provisions of the Ralph M. Brown Act showing that the violation caused prejudice. Mortis Camp Cmty. Assn v. Cty. of Placer, 53 Cal. App. 5th 569, 592 (2020).
A member of a legislative body will not be criminally liable for a violation of the Brown Act unless the member intends to deprive the public of information which the member knows or has reason to know the public is entitled to under the Brown Act. § 54959. This standard became effective in 1994 and is a different standard from most criminal standards. Until it is applied and interpreted by a court, it is not clear what type of evidence will be necessary to prosecute a Brown Act violation.
XII. CONCLUSION
The Brown Act's many rules and ambiguities can be confusing, and compliance with it can be difficult. In the event that you have any questions regarding any provision of the law, you should contact your legal counsel for advice.
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PART TWO:
THE RALPH M. BROWN ACT
Updated including changes effective January 1, 2023
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Text of the Ralph M. Brown Act
The Ralph M. Brown Act
Government Code §§ 54950-54963
Section 54950. Declaration of public policy
In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
The people of this State do not yield their sovereignty to the agencies which serve them.
The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
Section 54950.5. Title of act
This chapter shall be known as the Ralph M. Brown Act.
Section 54951. "Local agency"
As used in this chapter, "local agency" means a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof or other local public agency.
Section 54952. "Legislative body"
As used in this chapter, "legislative body" means:
(a) The governing body of a local agency or any other local body created by state or federal statute.
(b) A commission, committee, board or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution or formal action of a legislative body are legislative bodies for purposes of this chapter. (c) (1) A board, commission, committee or other multimember body that governs a private corporation, limited liability company or other entity that either:
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(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company or other entity. (B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full -voting member by the legislative body of the local agency.
(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee or other multimember body that governs a private corporation, limited liability company or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full -voting member to a nonvoting member. (d) The lessee of any hospital, the whole or part of which is first leased pursuant to subdivision (p) of Section 32121 of the Health and Safety Code after January 1, 1994, where the lessee exercises any material authority of a legislative body of a local agency delegated to it by that legislative body whether the lessee is organized and operated by the local agency or by a delegated authority.
Section 54952.1. Conduct and treatment of electee
Any person elected to serve as a member of a legislative body who has not yet assumed the duties of office shall conform his or her conduct to the requirements of this chapter and shall be treated for purposes of enforcement of this chapter as if he or she has already assumed office.
Section 54952.2. Specified communications of legislative body of local agency prohibited outside meeting thereof
(a) As used in this chapter, "meeting" means any congregation of a majority of the members of a legislative body at the same time and location, including teleconference location as permitted by Section 54953, to hear, discuss, deliberate or take action on any item that is within the subject matter jurisdiction of the legislative body. (b) (1) A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate or take action on any item of business that is within the subject matter jurisdiction of the legislative body. (2) Paragraph (1) shall not be construed as preventing an employee or official of a local agency, from engaging in separate conversations or communications outside of a meeting authorized by this chapter with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency, if that person does not communicate to members Ralph M. Brown Act Page 28
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of the legislative body the comments or position of any other member or members of the legislative body.
(3) (A) Paragraph (1) shall not be construed as preventing a member of the legislative body from engaging in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body provided that a majority of the members of the legislative body do not use the internet-based social media platform to discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body. A member of the legislative body shall not respond directly to any communication on an internet-based social media platform regarding a matter that is within the subject matter jurisdiction of the legislative body that is made, posted, or shared by any other member of the legislative body.
(B) For purposes of this paragraph, all of the following definitions shall apply:
(i) "Discuss among themselves" means communications made, posted, or shared on an internet-based social media platform between members of a legislative body, including comments or use of digital icons that express reactions to communications made by other members of the legislative body. (ii) "Internet -based social media platform" means an online service that is open and accessible to the public.
(iii) "Open and accessible to the public" means that members of the general public have the ability to access and participate, free of charge, in the social media platform without the approval of the social media platform or a person or entity other than the social media platform, including any forum and chatroom, and cannot be blocked from doing so, except when the internet-based social media platform determines that an individual violated its protocols or rules. (c) Nothing in this section shall impose the requirements of this chapter upon any of the following:
(1) Individual contacts or conversations between a member of a legislative body and any other person that do not violate subdivision (b). (2) The attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency. Nothing in this paragraph is intended to allow members of the public free admission to a conference or similar gathering at which the organizers have required other participants or registrants to pay fees or charges as a condition of attendance.
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(3) The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.
(4) The attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of the local agency or at an open and noticed meeting of a legislative body of another local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.
(5) The attendance of a majority of the members of a legislative body at a purely social or ceremonial occasion, provided that a majority of the members do not discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. (6) The attendance of a majority of the members of a legislative body at an open and noticed meeting of a standing committee of that body, provided that the members of the legislative body who are not members of the standing committee attend only as observers.
(d) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
Section 54952.3. Simultaneous or serial order meetings authorized; Requirements; Compensation or stipend
(a) A legislative body that has convened a meeting and whose membership constitutes a quorum of any other legislative body may convene a meeting of that other legislative body, simultaneously or in serial order, only if a clerk or a member of the convened legislative body verbally announces, prior to convening any simultaneous or serial order meeting of that subsequent legislative body, the amount of compensation or stipend, if any, that each member will be entitled to receive as a result of convening the simultaneous or serial meeting of the subsequent legislative body and identifies that the compensation or stipend shall be provided as a result of convening a meeting for which each member is entitled to collect compensation or a stipend. However, the clerk or member of the legislative body shall not be required to announce the amount of compensation if the amount of compensation is prescribed in statute and no additional compensation has been authorized by a local agency.
(b) For purposes of this section, compensation and stipend shall not include amounts reimbursed for actual and necessary expenses incurred by a member in the performance of the member's official duties, including, but not limited to, reimbursement of expenses relating to travel, meals, and lodging.
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Section 54952.6. "Action taken"
As used in this chapter, "action taken" means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.
Section 54952.7. Copy of chapter
A legislative body of a local agency may require that a copy of this chapter be given to each member of the legislative body and any person elected to serve as a member of the legislative body who has not assumed the duties of office. An elected legislative body of a local agency may require that a copy of this chapter be given to each member of each legislative body all or a majority of whose members are appointed by or under the authority of the elected legislative body.
Section 54953. Requirement that meetings be open and public; Teleconferencing; Teleconference meetings by health authority
(a) All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.
(b) (1) Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all otherwise applicable requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding.
(2) Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. If the legislative body of a local agency elects to use teleconferencing, the legislative body of a local agency shall comply with all of the following:
(A) All votes taken during a teleconferenced meeting shall be by roll call. (B) The teleconferenced meetings shall be conducted in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency.
(C) The legislative body shall give notice of the meeting and post agendas as otherwise required by this chapter.
(D) The legislative body shall allow members of the public to access the meeting and the agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3.
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(3) If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction, except as provided in subdivisions (d) and (e).
(c) (1) No legislative body shall take action by secret ballot, whether preliminary or final.
(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action. (3) Prior to taking final action, the legislative body shall orally report a summary of a recommendation for a final action on the salaries, salary schedules or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 351 1.1, during the open meeting in which the final action is to be taken.
This paragraph shall not affect the public's right under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1) to inspect or copy records created or received in the process of developing the recommendation. (d) (1) Notwithstanding the provisions relating to a quorum in paragraph (3) of subdivision (b), if a health authority conducts a teleconference meeting, members who are outside the jurisdiction of the authority may be counted toward the establishment of a quorum when participating in the teleconference if at least 50 percent of the number of members that would establish a quorum are present within the boundaries of the territory over which the authority exercises jurisdiction, and the health authority provides a teleconference number and associated access codes, if any, that allows any person to call in to participate in the meeting and the number and access codes are identified in the notice and agenda of the meeting.
(2) Nothing in this subdivision shall be construed as discouraging health authority members from regularly meeting at a common physical site within the jurisdiction of the authority or from using teleconference locations within or near the jurisdiction of the authority. A teleconference meeting for which a quorum is established pursuant to this subdivision shall be subject to all other requirements of this section. (3) For purposes of this subdivision, a health authority means any entity created pursuant to Sections 14018.7, 14087.31, 14087.35, 14087.36, 14087.38 and 14087.9605 of the Welfare and Institutions Code, any joint powers authority created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 for the purpose of contracting pursuant to Section 14087.3 of the Welfare and Institutions Code and any advisory committee to a county -sponsored health plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code if the advisory committee has 12 or more members.
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(e) (1) The legislative body of a local agency may use teleconferencing without complying with the requirements of paragraph (3) of subdivision (b) if the legislative body complies with the requirements of paragraph (2) of this subdivision in any of the following circumstances:
(A) The legislative body holds a meeting during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing.
(B) The legislative body holds a meeting during a proclaimed state of emergency for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(C) The legislative body holds a meeting during a proclaimed state of emergency and has determined, by majority vote, pursuant to subparagraph (B), that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
(2) A legislative body that holds a meeting pursuant to this subdivision shall do all of the following:
(A) In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment. The agenda shall identify and include an opportunity for all persons to attend via a call -in option or an internet-based service option.
(B) In the event of a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call -in option or internet- based service option, or in the event of a disruption within the local agency's control that prevents members of the public from offering public comments using the call -in option or internet-based service option, the legislative body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call -in option or internet-based service option is restored. Actions taken on agenda items during a disruption that prevents the legislative body from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(C) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. (D) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third -party internet website or online platform to participate.
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(E) (i) A legislative body that provides a timed public comment period for each agenda item shall not close the public comment period for the agenda item, or the opportunity to register, pursuant to subparagraph (F), to provide public comment until that timed public comment period has elapsed. (ii) A legislative body that does not provide a timed public comment period, but takes public comment separately on each agenda item, shall allow a reasonable amount of time per agenda item to allow public members the opportunity to provide public comment, including time for members of the public to register pursuant to subparagraph (F), or otherwise be recognized for the purpose of providing public comment.
(iii) A legislative body that provides a timed general public comment period that does not correspond to a specific agenda item shall not close the public comment period or the opportunity to register, pursuant to subparagraph (F), until the timed general public comment period has elapsed.
(3) If a state of emergency remains active, or state or local officials have imposed or recommended measures to promote social distancing, in order to continue to teleconference without compliance with paragraph (3) of subdivision (b), the legislative body shall, not later than 30 days after teleconferencing for the first time pursuant to subparagraph (A), (B), or (C) of paragraph (1), and every 30 days thereafter, make the following findings by majority vote:
(A) The legislative body has reconsidered the circumstances of the state of emergency.
(B) Any of the following circumstances exist:
(i) The state of emergency continues to directly impact the ability of the members to meet safely in person.
(ii) State or local officials continue to impose or recommend measures to promote social distancing.
(4) This subdivision shall not be construed to require the legislative body to provide a physical location from which the public may attend or comment. (f) (1) The legislative body of a local agency may use teleconferencing without complying with paragraph (3) of subdivision (b) if, during the teleconference meeting, at least a quorum of the members of the legislative body participates in person from a singular physical location clearly identified on the agenda, which location shall be open to the public and situated within the boundaries of the territory over which the local agency exercises jurisdiction and the legislative body complies with all of the following:
(A) The legislative body shall provide at least one of the following as a means by which the public may remotely hear and visually observe the meeting, and remotely address the legislative body:
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(i) A two-way audiovisual platform.
(ii) A two-way telephonic service and a live webcasting of the meeting.
(B) In each instance in which notice of the time of the teleconferenced meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the means by which members of the public may access the meeting and offer public comment.
(C) The agenda shall identify and include an opportunity for all persons to attend and address the legislative body directly pursuant to Section 54954.3 via a call - in option, via an internet-based service option, and at the in -person location of the meeting.
(D) In the event of a disruption that prevents the legislative body from broadcasting the meeting to members of the public using the call -in option or internet- based service option, or in the event of a disruption within the local agency's control that prevents members of the public from offering public comments using the call -in option or internet-based service option, the legislative body shall take no further action on items appearing on the meeting agenda until public access to the meeting via the call -in option or internet-based service option is restored. Actions taken on agenda items during a disruption that prevents the legislative body from broadcasting the meeting may be challenged pursuant to Section 54960.1.
(E) The legislative body shall not require public comments to be submitted in advance of the meeting and must provide an opportunity for the public to address the legislative body and offer comment in real time. (F) Notwithstanding Section 54953.3, an individual desiring to provide public comment through the use of an internet website, or other online platform, not under the control of the local legislative body, that requires registration to log in to a teleconference may be required to register as required by the third -party internet website or online platform to participate.
(2) A member of the legislative body shall only participate in the meeting remotely pursuant to this subdivision, if all of the following requirements are met:
(A) One of the following circumstances applies:
(i) The member notifies the legislative body at the earliest opportunity possible, including at the start of a regular meeting, of their need to participate remotely for just cause, including a general description of the circumstances relating to their need to appear remotely at the given meeting. The provisions of this clause shall not be used by any member of the legislative body for more than two meetings per calendar year.
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(ii) The member requests the legislative body to allow them to participate in the meeting remotely due to emergency circumstances and the legislative body takes action to approve the request. The legislative body shall request a general description of the circumstances relating to their need to appear remotely at the given meeting. A general description of an item generally need not exceed 20 words and shall not require the member to disclose any medical diagnosis or disability, or any personal medical information that is already exempt under existing law, such as the Confidentiality of Medical Information Act (Chapter 1 (commencing with Section 56) of Part 2.6 of Division 1 of the Civil Code). For the purposes of this clause, the following requirements apply:
(1) A member shall make a request to participate
remotely at a meeting pursuant to this clause as soon as possible. The member shall make a separate request for each meeting in which they seek to participate remotely. (11) The legislative body may take action on a request to participate remotely at the earliest opportunity. If the request does not allow sufficient time to place proposed action on such a request on the posted agenda for the meeting for which the request is made, the legislative body may take action at the beginning of the meeting in accordance with paragraph (4) of subdivision (b) of Section 54954.2. (B) The member shall publicly disclose at the meeting before any action is taken, whether any other individuals 18 years of age or older are present in the room at the remote location with the member, and the general nature of the member's relationship with any such individuals.
(C) The member shall participate through both audio and visual technology.
(3) The provisions of this subdivision shall not serve as a means for any member of a legislative body to participate in meetings of the legislative body solely by teleconference from a remote location for a period of more than three consecutive months or 20 percent of the regular meetings for the local agency within a calendar year, or more than two meetings if the legislative body regularly meets fewer than 10 times per calendar year.
(g) The legislative body shall have and implement a procedure for receiving and swiftly resolving requests for reasonable accommodation for individuals with disabilities, consistent with the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and resolving any doubt in favor of accessibility. In each instance in which notice of the time of the meeting is otherwise given or the agenda for the meeting is otherwise posted, the legislative body shall also give notice of the procedure for receiving and resolving requests for accommodation.
(h) The legislative body shall conduct meetings subject to this chapter consistent with applicable civil rights and nondiscrimination laws.
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(i) (1) Nothing in this section shall prohibit a legislative body from providing the public with additional teleconference locations.
(2) Nothing in this section shall prohibit a legislative body from providing members of the public with additional physical locations in which the public may observe and address the legislative body by electronic means.
(j) For the purposes of this section, the following definitions shall apply:
(1) "Emergency circumstances" means a physical or family medical emergency that prevents a member from attending in person. (2) "Just cause" means any of the following:
(A) A childcare or caregiving need of a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner that requires them to participate remotely. "Child," "parent," "grandparent," "grandchild," and "sibling" have the same meaning as those terms do in Section 12945.2.
(B) A contagious illness that prevents a member from attending in person.
(C) A need related to a physical or mental disability as defined in Sections 12926 and 12926.1 not otherwise accommodated by subdivision (g). (D) Travel while on official business of the legislative body or another state or local agency.
(3) "Remote location" means a location from which a member of a legislative body participates in a meeting pursuant to subdivision (f), other than any physical meeting location designated in the notice of the meeting. Remote locations need not be accessible to the public.
(4) "Remote participation" means participation in a meeting by teleconference at a location other than any physical meeting location designated in the notice of the meeting. Watching or listening to a meeting via webcasting or another similar electronic medium that does not permit members to interactively hear, discuss, or deliberate on matters, does not constitute remote participation. (5) "State of emergency" means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Article 1 (commencing with Section 8550) of Chapter 7 of Division 1 of Title 2).
(6) "Teleconference" means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both.
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(7) "Two-way audiovisual platform" means an online platform that provides participants with the ability to participate in a meeting via both an interactive video conference and a two-way telephonic function.
(8) "Two-way telephonic service" means a telephone service that does not require internet access, is not provided as part of a two-way audiovisual platform, and allows participants to dial a telephone number to listen and verbally participate. (9) "Webcasting" means a streaming video broadcast online or on television, using streaming media technology to distribute a single content source to many simultaneous listeners and viewers.
(k) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.
Section 54953.1. Grand jury testimony
The provisions of this chapter shall not be construed to prohibit the members of the legislative body of a local agency from giving testimony in private before a grand jury, either as individuals or as a body.
Section 54953.2. Meetings to conform to Americans with Disabilities Act All meetings of a legislative body of a local agency that are open and public shall meet the protections and prohibitions contained in Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof.
Section 54953.3. Registration of attendance
A member of the public shall not be required, as a condition to attendance at a meeting of a legislative body of a local agency, to register his or her name, to provide other information, to complete a questionnaire or otherwise to fulfill any condition precedent to his or her attendance.
If an attendance list, register, questionnaire or other similar document is posted at or near the entrance to the room where the meeting is to be held or is circulated to the persons present during the meeting, it shall state clearly that the signing, registering or completion of the document is voluntary and that all persons may attend the meeting regardless of whether a person signs, registers or completes the document.
Section 54953.5. Recording proceedings
(a) Any person attending an open and public meeting of a legislative body of a local agency shall have the right to record the proceedings with an audio or video recorder or a still or motion picture camera in the absence of a reasonable finding by the legislative body of the local agency that the recording cannot continue without noise, Ralph M. Brown Act Page 38
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illumination or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings.
(b) Any audio or video recording of an open and public meeting made for whatever purpose by, or at the direction of the local agency, shall be subject to inspection pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), but, notwithstanding Section 34090, may be erased or destroyed 30 days after the recording. Any inspection of an audio or video recording shall be provided without charge on equipment made available by the local agency.
Section 54953.6. Restrictions on broadcasts of proceedings No legislative body of a local agency shall prohibit or otherwise restrict the broadcast of its open and public meetings in the absence of a reasonable finding that the broadcast cannot be accomplished without noise, illumination or obstruction of view that would constitute a persistent disruption of the proceedings.
Section 54953.7. Access to meetings beyond minimal standards Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter. In addition thereto, an elected legislative body of a local agency may impose such requirements on those appointed legislative bodies of the local agency of which all or a majority of the members are appointed by or under the authority of the elected legislative body.
Section 54954. Rules for conduct of business; Time and place of meetings (a) Each legislative body of a local agency, except for advisory committees or standing committees, shall provide by ordinance, resolution, bylaws or by whatever other rule is required for the conduct of business by that body, the time and place for holding regular meetings. Meetings of advisory committees or standing committees for which an agenda is posted at least 72 hours in advance of the meeting pursuant to subdivision (a) of Section 54954.2, shall be considered for purposes of this chapter as regular meetings of the legislative body.
(b) Regular and special meetings of the legislative body shall be held within the boundaries of the territory over which the local agency exercises jurisdiction, except to do any of the following:
(1) Comply with state or federal law or court order, or attend a judicial or administrative proceeding to which the local agency is a party. (2) Inspect real or personal property which cannot be conveniently brought within the boundaries of the territory over which the local agency exercises jurisdiction, provided that the topic of the meeting is limited to items directly related to the real or personal property.
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(3) Participate in meetings or discussions of multiagency significance that are outside the boundaries of a local agency's jurisdiction. However, any meeting or discussion held pursuant to this subdivision shall take place within the jurisdiction of one of the participating local agencies and be noticed by all participating agencies as provided for in this chapter.
(4) Meet in the closest meeting facility if the local agency has no meeting facility within the boundaries of the territory over which the local agency exercises jurisdiction, or at the principal office of the local agency if that office is located outside the territory over which the agency exercises jurisdiction. (5) Meet outside their immediate jurisdiction with elected or appointed officials of the United States or the State of California when a local meeting would be impractical solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction. (6) Meet outside their immediate jurisdiction if the meeting takes place in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility.
(7) Visit the office of the local agency's legal counsel for a closed session on pending litigation held pursuant to Section 54956.9, when to do so would reduce legal fees or costs.
(c) Meetings of the governing board of a school district shall be held within the district, except under the circumstances enumerated in subdivision (b) or to do any of the following:
(1) Attend a conference on non -adversarial collective bargaining techniques. (2) Interview members of the public residing in another district with reference to the trustees' potential employment of an applicant for the position of the superintendent of the district.
(3) Interview a potential employee from another district. (d) Meetings of a joint powers authority shall occur within the territory of at least one of its member agencies or as provided in subdivision (b). However, a joint powers authority which has members throughout the state may meet at any facility in the state which complies with the requirements of Section 54961.
(e) If, by reason of fire, flood, earthquake or other emergency, it shall be unsafe to meet in the place designated, the meetings shall be held for the duration of the emergency at the place designated by the presiding officer of the legislative body or his or her designee in a notice to the local media that have requested notice pursuant to Section 54956, by the most rapid means of communication available at the time.
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Section 54954.1. Request for notice; Renewal; Fee
Any person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body be mailed to that person. If a local agency has an internet website, the legislative body or its designee shall email a copy of, or website link to, the agenda or a copy of all the documents constituting the agenda packet if the person requests that the item or items be delivered by email. If the local agency determines it is technologically infeasible to send a copy of all documents constituting the agenda packet or a link to a website that contains the documents by email or by other electronic means, the legislative body or its designee shall send by mail a copy of the agenda or a website link to the agenda and mail a copy of all other documents constituting the agenda packet in accordance with the mailing requirements established pursuant to this section. If requested, the agenda and documents in the agenda packet shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. Upon receipt of the written request, the legislative body or its designee shall cause the requested materials to be mailed at the time the agenda is posted pursuant to Section 54954.2 and 54956 or upon distribution to all, or a majority of all, of the members of a legislative body, whichever occurs first. Any request for mailed copies of agendas or agenda packets shall be valid for the calendar year in which it is filed, and must be renewed following January 1 of each year. The legislative body may establish a fee for mailing the agenda or agenda packet, which fee shall not exceed the cost of providing the service. Failure of the requesting person to receive the agenda or agenda packet pursuant to this section shall not constitute grounds for invalidation of the actions of the legislative body taken at the meeting for which the agenda or agenda packet was not received.
Section 54954.2. Posting of agenda; Actions not on agenda (a) (1) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency's Internet Web site, if the local agency has one. If requested, the agenda shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof. The agenda shall include information regarding how, to whom and when a request for disability -related modification or accommodation, including auxiliary aids or services, may be made by a person with a disability who requires a modification or accommodation in order to participate in the public meeting.
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(2) For a meeting occurring on and after January 1, 2019 of a legislative body of a city, county, city and county, special district, school district or political subdivision established by the state that has an Internet Web site, the following provisions shall apply:
(A) An online posting of an agenda shall be posted on the primary Internet Web site homepage of a city, county, city and county, special district, school district or political subdivision established by the state that is accessible through a prominent, direct link to the current agenda. The direct link to the agenda shall not be in a contextual menu; however, a link in addition to the direct link to the agenda may be accessible through a contextual menu.
(B) An online posting of an agenda including, but not limited to, an agenda posted in an integrated agenda management platform shall be posted in an open format that meets all of the following requirements:
(i) Retrievable, downloadable, indexable and electronically searchable by commonly used Internet search applications. (ii) Platform independent and machine readable.
(iii) Available to the public free of charge and without any restriction that would impede the reuse or redistribution of the agenda. (C) A legislative body of a city, county, city and county, special district, school district or political subdivision established by the state that has an Internet Web site and an integrated agenda management platform shall not be required to comply with subparagraph (A) if all of the following are met:
(i) A direct link to the integrated agenda management platform shall be posted on the primary Internet Web site homepage of a city, county, city and county, special district, school district or political subdivision established by the state. The direct link to the integrated agenda management platform shall not be in a contextual menu. When a person clicks on the direct link to the integrated agenda management platform, the direct link shall take the person directly to an Internet Web site with the agendas of the legislative body of a city, county, city and county, special district, school district or political subdivision established by the state. (ii) The integrated agenda management platform may contain the prior agendas of a legislative body of a city, county, city and county, special district, school district or political subdivision established by the state for all meetings occurring on or after January 1, 2019.
(iii) The current agenda of the legislative body of a city, county, city and county, special district, school district or political subdivision established by the state shall be the first agenda available at the top of the integrated agenda management platform.
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(iv) All agendas posted in the integrated agenda management platform shall comply with the requirements in clauses (i), (ii) and (iii) of subparagraph (B)•
(D) For the purposes of this paragraph, both of the following definitions shall apply:
(i) "Integrated agenda management platform" means an
Internet Web site of a city, county, city and county, special district, school district or political subdivision established by the state dedicated to providing the entirety of the agenda information for the legislative body of the city, county, city and county, special district, school district or political subdivision established by the state to the public. (ii) "Legislative body" has the same meaning as that term is used in subdivision (a) of Section 54952.
(E) The provisions of this paragraph shall not apply to a political subdivision of a local agency that was established by the legislative body of the city, county, city and county, special district, school district or political subdivision established by the state.
(3) No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda.
(b) Notwithstanding subdivision (a), the legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below.
Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item.
(1) Upon a determination by a majority vote of the legislative body that an emergency situation exists as defined in Section 54956.5. (2) Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision (a).
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(3) The item was posted pursuant to subdivision (a) for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken.
(4) To consider action on a request from a member to participate in a meeting remotely due to emergency circumstances, pursuant to Section 54953, if the request does not allow sufficient time to place the proposed action on the posted agenda for the meeting for which the request is made. The legislative body may approve such a request by a majority vote of the legislative body.
(c) This section is necessary to implement and reasonably within the scope of paragraph (1) of subdivision (b) of Section 3 of Article I of the California Constitution. (d) For purposes of subdivision (a), the requirement that the agenda be posted on the local agency's Internet Web site, if the local agency has one, shall only apply to a legislative body that meets either of the following standards:
A legislative body as that term is defined by subdivision (a) of Section 54952. (2) A legislative body as that term is defined by subdivision (b) of Section 54952, if the members of the legislative body are compensated for their appearance, and if one or more of the members of the legislative body are also members of a legislative body as that term is defined by subdivision (a) of Section 54952. (e) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
Section 54954.3. Public testimony at regular meetings
(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2. However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee's consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item. (b) (1) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, Ralph M. Brown Act Page 44
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regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.
(2) Notwithstanding paragraph (1), when the legislative body of a local agency limits time for public comment, the legislative body of a local agency shall provide at least twice the allotted time to a member of the public who utilizes a translator to ensure that non-English speakers receive the same opportunity to directly address the legislative body of a local agency.
(3) Paragraph (2) shall not apply if the legislative body of a local agency utilizes simultaneous translation equipment in a manner that allows the legislative body of a local agency to hear the translated public testimony simultaneously. (c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs or services of the agency or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.
Section 54954.4. Legislative findings and declarations relating to reimbursements; Legislative intent; Review of claims
(a) The Legislature hereby finds and declares that Section 12 of Chapter 641 of the Statutes of 1986 authorizing reimbursement to local agencies and school districts for costs mandated by the state pursuant to that act, shall be interpreted strictly. The intent of the Legislature is to provide reimbursement for only those costs which are clearly and unequivocally incurred as the direct and necessary result of compliance with Chapter 641 of the Statutes of 1986.
(b) In this regard, the Legislature directs all state employees and officials involved in reviewing or authorizing claims for reimbursement or otherwise participating in the reimbursement process, to rigorously review each claim and authorize only those claims, or parts thereof, which represent costs which are clearly and unequivocally incurred as the direct and necessary result of compliance with Chapter 641 of the Statutes of 1986 and for which complete documentation exists. For purposes of Section 54954.2, costs eligible for reimbursement shall only include the actual cost to post a single agenda for any one meeting.
(c) The Legislature hereby finds and declares that complete, faithful and uninterrupted compliance with the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code) is a matter of overriding public importance. Unless specifically stated, no future Budget Act or related budget enactments, shall, in any manner, be interpreted to suspend, eliminate or otherwise modify the legal obligation and duty of local agencies to fully comply with Chapter 641 of the Statutes of 1986 in a complete, faithful and uninterrupted manner.
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Section 54954.5. Description of closed session items
For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format. (a) With respect to a closed session held pursuant to Section 54956.7:
LICENSE/PERMIT DETERMINATION
Applicant(s): (Specify number of applicants)
(b) With respect to every item of business to be discussed in closed session pursuant to Section 54956.8:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: (Specify street address, or if no street address, the parcel number or other unique reference of the real property under negotiation) Agency negotiator: (Specify names of negotiators attending the closed session) (If circumstances necessitate the absence of a specified negotiator, an agent or designee may participate in place of the absent negotiator so long as the name of the agent or designee is announced at an open session held prior to the closed session.)
Negotiating parties: (Specify name of party (not agent)) Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment or both)
(c) With respect to every item of business to be discussed in closed session pursuant to Section 54956.9:
CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION
(Paragraph (1) of subdivision (d) of Section 54956.9)
Name of case: (Specify by reference to claimant's name, names of parties, case or claim numbers)
or
Case name unspecified: (Specify whether disclosure would jeopardize service of process or existing settlement negotiations)
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Significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision (d) of Section 54956.9: (Specify number of potential cases) (In addition to the information noticed above, the agency may be required to provide additional information on the agenda or in an oral statement prior to the closed session pursuant to paragraphs (2) to (5), inclusive of subdivision (e) of Section 54956.9.)
Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9: (Specify number of potential cases)
(d) With respect to every item of business to be discussed in closed session pursuant to Section 54956.95:
LIABILITY CLAIMS
Claimant: (Specify name unless unspecified pursuant to Section 54961) Agency claimed against: (Specify name)
(e) With respect to every item of business to be discussed in closed session pursuant to Section 54957:
THREAT TO PUBLIC SERVICES OR FACILITIES
Consultation with: (Specify name of law enforcement agency and title of officer, or name of applicable agency representative and title)
PUBLIC EMPLOYEE APPOINTMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYMENT
Title: (Specify description of position to be filled)
PUBLIC EMPLOYEE PERFORMANCE EVALUATION
Title: (Specify position title of employee being reviewed)
PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE
(No additional information is required in connection with a closed session to consider discipline, dismissal, or release of a public employee. Discipline includes potential reduction of compensation.)
(f) With respect to every item of business to be discussed in closed session pursuant to Section 54957.6:
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CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: (Specify names of designated representatives attending the closed session). (If circumstances necessitate the absence of a specified designated representative, an agent or designee may participate in place of the absent representative so long as the name of the agent or designee is announced at an open session held prior to the closed session) Employee organization: (Specify name of organization representing employee or employees in question)
or
Unrepresented employee: (Specify position title of unrepresented employee who is the subject of the negotiations)
(g) With respect to closed sessions called pursuant to Section 54957.8:
CASE REVIEW/PLANNING
(No additional information is required in connection with a closed session to consider case review or planning)
(h) With respect to every item of business to be discussed in closed session pursuant to Sections 1461, 32106 and 32155 of the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code:
REPORT INVOLVING TRADE SECRET
Discussion will concern: (Specify whether discussion will concern proposed new service, program or facility)
Estimated date of public disclosure: (Specify month and year)
HEARINGS
Subject matter: (Specify whether testimony/deliberation will concern staff privileges, report of medical audit committee, or report of quality assurance committee)
(i) With respect to every item of business to be discussed in closed session pursuant to Section 54956.86:
CHARGE OR COMPLAINT INVOLVING INFORMATION PROTECTED BY FEDERAL LAW (No additional information is required in connection with a closed session to discuss a charge or complaint pursuant to Section 54956.86)
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(j) With respect to every item of business to be discussed in closed session pursuant to Section 54956.96:
CONFERENCE INVOLVING A JOINT POWERS AGENCY (Specify by name) Discussion will concern: (Specify closed session description used by the joint powers agency)
Name of local agency representative on joint powers agency board: (Specify name)
(Additional information listing the names of agencies or titles of representatives attending the closed session as consultants or other representatives) (k) With respect to every item of business to be discussed in closed session pursuant to Section 54956.75:
AUDIT BY CALIFORNIA STATE AUDITOR'S OFFICE
Section 54954.6. Public meeting on general tax or assessment; Notice (a) (1) Before adopting any new or increased general tax or any new or increased assessment, the legislative body of a local agency shall conduct at least one public meeting at which local officials shall allow public testimony regarding the proposed new or increased general tax or new or increased assessment in addition to the noticed public hearing at which the legislative body proposes to enact or increase the general tax or assessment.
For purposes of this section, the term "new or increased assessment" does not include any of the following:
(A) A fee that does not exceed the reasonable cost of providing the services, facilities or regulatory activity for which the fee is charged. (B) A service charge, rate or charge, unless a special district's principal act requires the service charge, rate or charge to conform to the requirements of this section.
(C) An ongoing annual assessment if it is imposed at the same or lower amount as any previous year.
(D) An assessment that does not exceed an assessment formula or range of assessments previously specified in the notice given to the public pursuant to subparagraph (G) of paragraph (2) of subdivision (c) and that was previously adopted by the agency or approved by the voters in the area where the assessment is imposed. (E) Standby or immediate availability charges.
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(2) The legislative body shall provide at least 45 days' public notice of the public hearing at which the legislative body proposes to enact or increase the general tax or assessment. The legislative body shall provide notice for the public meeting at the same time and in the same document as the notice for the public hearing, but the meeting shall occur prior to the hearing.
(b) (1) The joint notice of both the public meeting and the public hearing required by subdivision (a) with respect to a proposal for a new or increased general tax shall be accomplished by placing a display advertisement of at least one -eighth page in a newspaper of general circulation for three weeks pursuant to Section 6063 and by a first- class mailing to those interested parties who have filed a written request with the local agency for mailed notice of public meetings or hearings on new or increased general taxes. The public meeting pursuant to subdivision (a) shall take place no earlier than 10 days after the first publication of the joint notice pursuant to this subdivision. The public hearing shall take place no earlier than seven days after the public meeting pursuant to this subdivision. Notwithstanding paragraph (2) of subdivision (a), the joint notice need not include notice of the public meeting after the meeting has taken place. The public hearing pursuant to subdivision (a) shall take place no earlier than 45 days after the first publication of the joint notice pursuant to this subdivision. Any written request for mailed notices shall be effective for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for mailed notices shall be filed on or before April 1 of each year. The legislative body may establish a reasonable annual charge for sending notices based on the estimated cost of providing the service. (2) The notice required by paragraph (1) of this subdivision shall include, but not be limited to, the following:
(A) The amount or rate of the tax. If the tax is proposed to be increased from any previous year, the joint notice shall separately state both the existing tax rate and the proposed tax rate increase.
(B) The activity to be taxed.
(C) The estimated amount of revenue to be raised by the tax annually. (D) The method and frequency for collecting the tax.
(E) The dates, times and locations of the public meeting and hearing described in subdivision (a).
(F) The telephone number and address of an individual, office or organization that interested persons may contact to receive additional information about the tax.
(c) (1) The joint notice of both the public meeting and the public hearing required by subdivision (a) with respect to a proposal for a new or increased assessment on real property or businesses shall be accomplished through a mailing, postage prepaid, in the United States mail and shall be deemed given when so deposited. The public meeting Ralph M. Brown Act Page 50
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pursuant to subdivision (a) shall take place no earlier than 10 days after the joint mailing pursuant to this subdivision. The public hearing shall take place no earlier than seven days after the public meeting pursuant to this subdivision. The envelope or the cover of the mailing shall include the name of the local agency and the return address of the sender. This mailed notice shall be in at least 10-point type and shall be given to all property owners or business owners proposed to be subject to the new or increased assessment by a mailing by name to those persons whose names and addresses appear on the last equalized county assessment roll, the State Board of Equalization assessment roll or the local agency's records pertaining to business ownership, as the case may be. (2) The joint notice required by paragraph (1) of this subdivision shall include, but not be limited to, the following:
(A) In the case of an assessment proposed to be levied on property, the estimated amount of the assessment per parcel. In the case of an assessment proposed to be levied on businesses, the proposed method and basis of levying the assessment in sufficient detail to allow each business owner to calculate the amount of assessment to be levied against each business. If the assessment is proposed to be increased from any previous year, the joint notice shall separately state both the amount of the existing assessment and the proposed assessment increase.
(B) A general description of the purpose or improvements that the assessment will fund.
(C) The address to which property owners may mail a protest against the assessment.
(D) The telephone number and address of an individual, office or organization that interested persons may contact to receive additional information about the assessment.
(E) A statement that a majority protest will cause the assessment to be abandoned if the assessment act used to levy the assessment so provides. Notice shall also state the percentage of protests required to trigger an election, if applicable. (F) The dates, times and locations of the public meeting and hearing described in subdivision (a).
(G) A proposed assessment formula or range as described in subparagraph (D) of paragraph (1) of subdivision (a) if applicable and that is noticed pursuant to this section.
(3) Notwithstanding paragraph (1), in the case of an assessment that is proposed exclusively for operation and maintenance expenses imposed throughout the entire local agency or exclusively for operation and maintenance assessments proposed to be levied on 50,000 parcels or more, notice may be provided pursuant to this subdivision or pursuant to paragraph (1) of subdivision (b) and shall include the estimated amount of the assessment of various types, amounts or uses of property and the Ralph M. Brown Act Page 51
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information required by subparagraphs (B) to (G), inclusive, of paragraph (2) of subdivision (c).
(4) Notwithstanding paragraph (1), in the case of an assessment proposed to be levied pursuant to Part 2 (commencing with Section 22500) of Division 2 of the Streets and Highways Code by a regional park district, regional park and open -space district or regional open -space district formed pursuant to Article 3 (commencing with Section 5500) of Chapter 3 of Division 5 of, or pursuant to Division 26 (commencing with Section 35100) of the Public Resources Code, notice may be provided pursuant to paragraph (1) of subdivision (b).
(d) The notice requirements imposed by this section shall be construed as additional to, and not to supersede existing provisions of law, and shall be applied concurrently with the existing provisions so as to not delay or prolong the governmental decision making process.
(e) This section shall not apply to any new or increased general tax or any new or increased assessment that requires an election of either of the following:
(1) The property owners subject to the assessment.
(2) The voters within the local agency imposing the tax or assessment. (f) Nothing in this section shall prohibit a local agency from holding a consolidated meeting or hearing at which the legislative body discusses multiple tax or assessment proposals.
(g) The local agency may recover the reasonable costs of public meetings, public hearings and notice required by this section from the proceeds of the tax or assessment.
The costs recovered for these purposes, whether recovered pursuant to this subdivision or any other provision of law, shall not exceed the reasonable costs of the public meetings, public hearings and notice.
(h) Any new or increased assessment that is subject to the notice and hearing provisions of Article XIII C or XIII D of the California Constitution is not subject to the notice and hearing requirements of this section.
Section 54955. Adjournment of meetings
The legislative body of a local agency may adjourn any regular, adjourned regular, special or adjourned special meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time. If all members are absent from any regular or adjourned regular meeting, the clerk or secretary of the legislative body may declare the meeting adjourned to a stated time and place and he or she shall cause a written notice of the adjournment to be given in the same manner as provided in Section 54956 for special meetings, unless such notice is waived as provided for special meetings. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular, adjourned Ralph M. Brown Act Page 52
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regular, special or adjourned special meeting was held within 24 hours after the time of the adjournment. When a regular or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular meeting is a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings by ordinance, resolution, bylaw or other rule.
Section 54955.1. Continuance of hearing
Any hearing being held, or noticed or ordered to be held by a legislative body of a local agency at any meeting may by order or notice of continuance be continued or re - continued to any subsequent meeting of the legislative body in the same manner and to the same extent set forth in Section 54955 for the adjournment of meetings; provided, that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing, a copy of the order or notice of continuance of hearing shall be posted immediately following the meeting at which the order or declaration of continuance was adopted or made.
Section 54956. Special meetings; call; notice; meetings regarding local agency executive salaries, salary schedules or compensation in form of fringe benefits; posting on Internet Web site
(a) A special meeting may be called at any time by the presiding officer of the legislative body of a local agency or by a majority of the members of the legislative body, by delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing and posting a notice on the local agency's Internet Web site, if the local agency has one. The notice shall be delivered personally or by any other means and shall be received at least 24 hours before the time of the meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted or discussed. No other business shall be considered at these meetings by the legislative body. The written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the legislative body a written waiver of notice. The waiver may be given by telegram. The written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes.
The call and notice shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of the public. (b) Notwithstanding any other law, a legislative body shall not call a special meeting regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of a local agency executive, as defined in subdivision (d) of Section 3511.1.
However, this subdivision does not apply to a local agency calling a special meeting to discuss the local agency's budget.
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(c) For purposes of subdivision (a), the requirement that the agenda be posted on the local agency's Internet Web site, if the local agency has one, shall only apply to a legislative body that meets either of the following standards:
(1) A legislative body as that term is defined by subdivision (a) of Section 54952. (2) A legislative body as that term is defined by subdivision (b) of Section 54952, if the members of the legislative body are compensated for their appearance, and if one or more of the members of the legislative body are also members of a legislative body as that term is defined by subdivision (a) of Section 54952.
Section 54956.5. Emergency meetings; Notice
(a) For purposes of this section, "emergency situation" means both of the following:
(1) An emergency, which shall be defined as a work stoppage, crippling activity or other activity that severely impairs public health, safety or both, as determined by a majority of the members of the legislative body.
(2) A dire emergency, which shall be defined as a crippling disaster, mass destruction, terrorist act or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one -hour notice before holding an emergency meeting under this section may endanger the public health, safety or both, as determined by a majority of the members of the legislative body. (b) (1) Subject to paragraph (2), in the case of an emergency situation involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities, a legislative body may hold an emergency meeting without complying with either the 24-hour notice requirement or the 24-hour posting requirement of Section 54956, or both, of the notice and posting requirements. (2) Each local newspaper of general circulation and radio or television station that has requested notice of special meetings pursuant to Section 54956 shall be notified by the presiding officer of the legislative body or designee thereof, one hour prior to the emergency meeting, or, in the case of a dire emergency, at or near the time that the presiding officer or designee notifies the members of the legislative body of the emergency meeting. This notice shall be given by telephone and all telephone numbers provided in the most recent request of a newspaper or station for notification of special meetings shall be exhausted. In the event that telephone services are not functioning, the notice requirements of this section shall be deemed waived and the legislative body or designee of the legislative body, shall notify those newspapers, radio stations or television stations of the fact of the holding of the emergency meeting, the purpose of the meeting and any action taken at the meeting as soon after the meeting as possible. (c) During a meeting held pursuant to this section, the legislative body may meet in closed session pursuant to Section 54957 if agreed to by a two-thirds vote of the members of the legislative body present, or, if less than two-thirds of the members are present, by a unanimous vote of the members present.
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(d) All special meeting requirements as prescribed in Section 54956, shall be applicable to a meeting called pursuant to this section, with the exception of the 24-hour notice requirement.
(e) The minutes of a meeting called pursuant to this section, a list of person(s) who is the presiding officer of the legislative body or designee of the legislative body, notified or attempted to notify, a copy of the rollcall vote and any actions taken at the meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible.
Section 54956.6. Fees
No fees may be charged by the legislative body of a local agency for carrying out any provision of this chapter, except as specifically authorized by this chapter.
Section 54956.7. Closed sessions regarding application from person with criminal record
Whenever a legislative body of a local agency determines that it is necessary to discuss and determine whether an applicant for a license or license renewal, who has a criminal record is sufficiently rehabilitated to obtain the license, the legislative body may hold a closed session with the applicant and the applicant's attorney, if any, for the purpose of holding the discussion and making the determination. If the legislative body determines, as a result of the closed session, that the issuance or renewal of the license should be denied, the applicant shall be offered the opportunity to withdraw the application. If the applicant withdraws the application, no record shall be kept of the discussions or decisions made at the closed session and all matters relating to the closed session shall be confidential. If the applicant does not withdraw the application, the legislative body shall take action at the public meeting during which the closed session is held or at its next public meeting denying the application for the license, but all matters relating to the closed session are confidential and shall not be disclosed without the consent of the applicant, except in an action by an applicant who has been denied a license challenging the denial of the license.
Section 54956.75. Closed session for response to final draft audit report (a) Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency that has received a confidential final draft audit report from the Bureau of State Audits from holding closed sessions to discuss its response to that report. (b) After the public release of an audit report by the Bureau of State Audits, if a legislative body of a local agency meets to discuss the audit report, it shall do so in an open session unless exempted from that requirement by some other provision of law.
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lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange or lease.
However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern and the person or persons with whom its negotiators may negotiate.
For purposes of this section, negotiators may be members of the legislative body of the local agency.
For purposes of this section, "lease" includes renewal or renegotiation of a lease.
Nothing in this section shall preclude a local agency from holding a closed session for discussions regarding eminent domain proceedings pursuant to Section 54956.9.
Section 54956.81. Closed sessions regarding purchase or sale of pension fund investments
Notwithstanding any other provision of this chapter, a legislative body of a local agency that invests pension funds may hold a closed session to consider the purchase or sale of particular specific pension fund investments. All investment transaction decisions made during the closed session shall be made by rollcall vote entered into the minutes of the closed session as provided in subdivision (a) of Section 54957.2.
Section 54956.86. Closed session for health plan member Notwithstanding any other provision of this chapter, a legislative body of a local agency which provides services pursuant to Section 14087.3 of the Welfare and Institutions Code may hold a closed session to hear a charge or complaint from a member enrolled in its health plan if the member does not wish to have his or her name, medical status or other information that is protected by federal law publicly disclosed. Prior to holding a closed session pursuant to this section, the legislative body shall inform the member, in writing, of his or her right to have the charge or complaint heard in an open session rather than a closed session.
Section 54956.87. Disclosure of records and information; Meetings in closed session (a) Notwithstanding any other provision of this chapter, the records of a health plan that is licensed pursuant to the Knox -Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code) and that is governed by a county board of supervisors, whether paper records, records maintained in the management information system or records in any other form, that relate to provider rate or payment determinations, allocation or distribution methodologies for provider payments, formulas or calculations for these payments and contract negotiations with providers of health care for alternative rates are exempt from disclosure for a period of three years after the contract is fully executed. The transmission of the records, or the information contained therein in an alternative form to the board Ralph M. Brown Act Page 56
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of supervisors shall not constitute a waiver of exemption from disclosure and the records and information once transmitted to the board of supervisors shall be subject to this same exemption.
(b) Notwithstanding any other provision of law, the governing board of a health plan that is licensed pursuant to the Knox -Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code) and that is governed by a county board of supervisors may order that a meeting held solely for the purpose of discussion or taking action on health plan trade secrets, as defined in subdivision (f), shall be held in closed session. The requirements of making a public report of action taken in closed session and the vote or abstention of every member present, may be limited to a brief general description without the information constituting the trade secret.
(c) Notwithstanding any other provision of law, the governing board of a health plan may meet in closed session to consider and take action on matters pertaining to contracts and contract negotiations by the health plan with providers of health care services concerning all matters related to rates of payment. The governing board may delete the portion or portions containing trade secrets from any documents that were finally approved in the closed session held pursuant to subdivision (b) that are provided to persons who have made the timely or standing request. (d) Nothing in this section shall be construed as preventing the governing board from meeting in closed session as otherwise provided by law. (e) The provisions of this section shall not prevent access to any records by the Joint Legislative Audit Committee in the exercise of its powers pursuant to Article 1 (commencing with Section 10500) of Chapter 4 of Part 2 of Division 2 of Title 2. The provisions of this section also shall not prevent access to any records by the Department of Managed Health Care in the exercise of its powers pursuant to Article 1 (commencing with Section 1340) of Chapter 2.2 of Division 2 of the Health and Safety Code. (f) For purposes of this section, "health plan trade secret" means a trade secret, as defined in subdivision (d) of Section 3426.1 of the Civil Code, that also meets both of the following criteria:
(1) The secrecy of the information is necessary for the health plan to initiate a new service, program, marketing strategy, business plan or technology, or to add a benefit or product.
(2) Premature disclosure of the trade secret would create a substantial probability of depriving the health plan of a substantial economic benefit or opportunity.
Section 54956.9. Closed sessions concerning pending litigation; Lawyer -client privilege
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with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.
(b) For purposes of this chapter, all expressions of the lawyer -client privilege other than those provided in this section are hereby abrogated. This section is the exclusive expression of the lawyer -client privilege for purposes of conducting closed -session meetings pursuant to this chapter.
(c) For purposes of this section, "litigation" includes any adjudicatory proceeding, including eminent domain, before a court or administrative body exercising its adjudicatory authority, hearing officer or arbitrator.
(d) For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:
Litigation, to which the local agency is a party, has been initiated formally. (2) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel based on existing facts and circumstances, there is a significant exposure to litigation against the local agency. (3) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (2).
(4) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation. (e) For purposes of paragraphs (2) and (3) of subdivision (d), "existing facts and circumstances" shall consist only of one of the following:
(1) Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed. (2) Facts and circumstances, including, but not limited to, an accident, disaster, incident or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced. (3) The receipt of a claim pursuant to the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5. (4) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body.
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(5) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body, so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5. The records so created need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making the threat on their behalf, or identify a public employee who is the alleged perpetrator of any unlawful or tortious conduct upon which a threat of litigation is based, unless the identity of the person has been publicly disclosed. (f) Nothing in this section shall require disclosure of written communications that are privileged and not subject to disclosure pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1). (g) Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the paragraph of subdivision (d) that authorizes the closed session. If the session is closed pursuant to paragraph (1) of subdivision (d), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency's ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.
(h) A local agency shall be considered to be a "party" or to have a "significant exposure to litigation" if an officer or employee of the local agency is a party or has significant exposure to litigation concerning prior or prospective activities or alleged activities during the course and scope of that office or employment, including litigation in which it is an issue whether an activity is outside the course and scope of the office or employment.
Section 54956.95. Closed sessions regarding liability
(a) Nothing in this chapter shall be construed to prevent a joint powers agency formed pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 for purposes of insurance pooling, or a local agency member of the joint powers agency from holding a closed session to discuss a claim for the payment of tort liability losses, public liability losses or workers' compensation liability incurred by the joint powers agency or a local agency member of the joint powers agency. (b) Nothing in this chapter shall be construed to prevent the Local Agency Self - Insurance Authority formed pursuant to Chapter 5.5 (commencing with Section 6599.01) of Division 7 of Title 1, or a local agency member of the authority, from holding a closed session to discuss a claim for the payment of tort liability losses, public liability losses or workers' compensation liability incurred by the authority or a local agency member of the authority.
(c) Nothing in this section shall be construed to affect Section 54956.9 with respect to any other local agency.
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Section 54956.96. Disclosure of specified information in closed session of joint powers agency, Clean Power Alliance of Southern California; Authorization of designated alternate to attend closed session; Closed session of legislative body of local agency member
(a) Nothing in this chapter shall be construed to prevent the legislative body of a joint powers agency formed pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1, from adopting a policy or a bylaw, or including in its joint powers agreement provisions that authorize either or both of the following:
(1) All information received by the legislative body of the local agency member in a closed session related to the information presented to the joint powers agency in closed session shall be confidential. However, a member of the legislative body of a local agency member may disclose information obtained in a closed session that has direct financial or liability implications for that local agency to the following individuals:
(A) Legal counsel of that local agency member for purposes of obtaining advice on whether the matter has direct financial or liability implications for that local agency member.
(B) Other members of the legislative body of the local agency present in a closed session of that local agency member.
(2) Any designated alternate member of the legislative body of the joint powers agency who is also a member of the legislative body of a local agency member and who is attending a properly noticed meeting of the joint powers agency in lieu of a local agency member's regularly appointed member to attend closed sessions of the joint powers agency.
(b) (1) In addition to the authority described in subdivision (a), the Clean Power Alliance of Southern California or its successor entity, may adopt a policy or a bylaw or include in its joint powers agreement a provision that authorizes both of the following:
(A) A designated alternate member of the legislative body of the Clean Power Alliance of Southern California or its successor entity, who is not a member of the legislative body of a local agency member and who is attending a properly noticed meeting of the Clean Power Alliance of Southern California or its successor entity, in lieu of a local agency member's regularly appointed member to attend closed sessions of the Clean Power Alliance of Southern California or its successor entity. (B) All information that is received by a designated alternate member of the legislative body of the Clean Power Alliance of Southern California or its successor entity, who is not a member of the legislative body of a local agency member and that is presented to the Clean Power Alliance of Southern California or its successor entity, in closed session, shall be confidential. However, the designated alternate member may disclose information obtained in a closed session that has direct financial or liability Ralph M. Brown Act Page 60
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implications for the local agency member for which the designated alternate member attended the closed session, to the following individuals:
(i) Legal counsel of that local agency member for purposes of obtaining advice on whether the matter has direct financial or liability implications for that local agency member.
(ii) Members of the legislative body of the local agency present in a closed session of that local agency member.
(2) If the Clean Power Alliance of Southern California or its successor entity, adopts a policy or bylaw or includes in its joint powers agreement a provision authorized pursuant to paragraph (1), the Clean Power Alliance of Southern California or its successor entity, shall establish policies to prevent conflicts of interest and to address breaches of confidentiality that apply to a designated alternate member who is not a member of the legislative body of a local agency member who attends a closed session of the Clean Power Alliance of Southern California or its successor entity. (c) If the legislative body of a joint powers agency adopts a policy or a bylaw or includes provisions in its joint powers agreement pursuant to subdivision (a) or (b), then the legislative body of the local agency member, upon the advice of its legal counsel, may conduct a closed session in order to receive, discuss and take action concerning information obtained in a closed session of the joint powers agency pursuant to paragraph (1) of subdivision (a) or paragraph (1) of subdivision (b). (d) This section shall remain in effect only until January 1, 2025 and as of that date is repealed.
Section 54956.97. Public bank; governing board or committee of governing board; closed session
Notwithstanding any provision of law, the governing board or a committee of the governing board of a public bank, as defined in Section 57600 of the Government Code, may meet in closed session to consider and take action on matters pertaining to all of the following:
(a) A loan or investment decision.
(b) A decision of the internal audit committee, the compliance committee or the governance committee.
(c) A meeting with a state or federal regulator.
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Section 54956.98. Public bank; policy or bylaw; information from a closed session considered confidential
(a) For purposes of this section, the following definitions shall apply:
(1) "Shareholder, member, or owner local agency" or "shareholder, member, or owner" means a local agency that is a shareholder of a public bank. (2) "Public bank" has the same meaning as defined in Section 57600. (b) The governing board of a public bank may adopt a policy or a bylaw or include in its governing documents provisions that authorize any of the following:
(1) All information received by a shareholder, member or owner of the public bank in a closed session related to the information presented to the governing board of a public bank in closed session shall be confidential. However, a member of the governing board of a shareholder, member or owner local agency may disclose information obtained in a closed session that has direct financial or liability implications for that local agency to the following individuals:
(A) Legal counsel of that shareholder, member or owner local agency for purposes of obtaining advice on whether the matter has direct financial or liability implications for that shareholder local agency.
(B) Other members of the governing board of the local agency present in a closed session of that shareholder, member or owner local agency. (2) A designated alternate member of the governing board of the public bank who is also a member of the governing board of a shareholder, member or owner of the local agency and who is attending a properly noticed meeting of the public bank governing board in lieu of a shareholder, member or owner of the local agency's regularly appointed member may attend a closed session of the public bank governing board.
(c) If the governing board of a public bank adopts a policy or a bylaw or includes provisions in its governing documents pursuant to subdivision (b), then the governing board of the shareholder, member or owner of the local agency, upon the advice of its legal counsel, may conduct a closed session in order to receive, discuss and take action concerning information obtained in a closed session of the public bank governing board pursuant to paragraph (1) of subdivision (b).
Section 54957. Closed session regarding public security, facilities, employees, examination of witness
(a) This chapter shall not be construed to prevent the legislative body of a local agency from holding closed sessions with the Governor, Attorney General, district attorney, agency counsel, sheriff or chief of police, or their respective deputies or a security consultant or a security operations manager, on matters posing a threat to the Ralph M. Brown Act Page 62
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security of public buildings, a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service and electric service, or a threat to the public's right of access to public services or public facilities. (b) (1) Subject to paragraph (2), this chapter shall not be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.
(2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.
(3) The legislative body also may exclude from the public or closed meeting during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body.
(4) For the purposes of this subdivision, the term "employee" shall include an officer or an independent contractor who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. This subdivision shall not limit local officials' ability to hold closed session meetings pursuant to Sections 1461, 32106 and 32155 of the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code. Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.
Section 54957.1. Public report of action taken in closed session; Form; Availability; Actions for injury to interests
(a) The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention on that action of every member present, as follows:
(1) Approval of an agreement concluding real estate negotiations pursuant to Section 54956.8 shall be reported after the agreement is final, as follows:
(A) If its own approval renders the agreement final, the body shall report that approval and the substance of the agreement in open session at the public meeting during which the closed session is held.
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(B) If final approval rests with the other party to the negotiations, the local agency shall disclose the fact of that approval and the substance of the agreement upon inquiry by any person as soon as the other party or its agent has informed the local agency of its approval.
(2) Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency's ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. (3) Approval given to its legal counsel of a settlement of pending litigation, as defined in Section 54956.9, at any stage prior to or during a judicial or quasi-judicial proceeding shall be reported after the settlement is final, as follows:
(A) If the legislative body accepts a settlement offer signed by the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held. (B) If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final and upon inquiry by any person, the local agency shall disclose the fact of that approval and identify the substance of the agreement.
(4) Disposition reached as to claims discussed in closed session pursuant to Section 54956.95 shall be reported as soon as reached in a manner that identifies the name of the claimant, the name of the local agency claimed against, the substance of the claim and any monetary amount approved for payment and agreed upon by the claimant.
(5) Action taken to appoint, employ, dismiss, accept the resignation of or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any. (6) Approval of an agreement concluding labor negotiations with represented employees pursuant to Section 54957.6 shall be reported after the agreement is final and Ralph M. Brown Act Page 64
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has been accepted or ratified by the other party. The report shall identify the item approved and the other party or parties to the negotiation. (7) Pension fund investment transaction decisions made pursuant to Section 54956.81 shall be disclosed at the first open meeting of the legislative body held after the earlier of the close of the investment transaction or the transfer of pension fund assets for the investment transaction.
(b) Reports that are required to be made pursuant to this section may be made orally or in writing. The legislative body shall provide to any person who has submitted a written request to the legislative body within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documentation as part of a request for notice of meetings pursuant to Section 54954.1 or 54956, if the requester is present at the time the closed session ends, copies of any contracts, settlement agreements or other documents that were finally approved or adopted in the closed session. If the action taken results in one or more substantive amendments to the related documents requiring retyping, the documents need not be released until the retyping is completed during normal business hours, provided that the presiding officer of the legislative body or his or her designee orally summarizes the substance of the amendments for the benefit of the document requester or any other person present and requesting the information. (c) The documentation referred to in subdivision (b) shall be available to any person on the next business day following the meeting in which the action referred to is taken or, in the case of substantial amendments, when any necessary retyping is complete. (d) Nothing in this section shall be construed to require that the legislative body approve actions not otherwise subject to legislative body approval. (e) No action for injury to a reputational, liberty or other personal interest may be commenced by or on behalf of any employee or former employee with respect to whom a disclosure is made by a legislative body in an effort to comply with this section. (f) This section is necessary to implement, and reasonably within the scope of, paragraph (1) of subdivision (b) of Section 3 of Article I of the California Constitution.
Section 54957.2. Minute book for closed sessions
(a) The legislative body of a local agency may, by ordinance or resolution, designate a clerk or other officer or employee of the local agency who shall then attend each closed session of the legislative body and keep and enter in a minute book a record of topics discussed and decisions made at the meeting. The minute book made pursuant to this section is not a public record subject to inspection pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), and shall be kept confidential. The minute book shall be available only to members of the legislative body or, if a violation of this chapter is alleged to have occurred at a closed session, to a court of general jurisdiction wherein the local agency lies. Such minute book may, but need not, consist of a recording of the closed session.
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(b) An elected legislative body of a local agency may require that each legislative body all or a majority of whose members are appointed by or under the authority of the elected legislative body keep a minute book as prescribed under subdivision (a).
Section 54957.5. Agendas and other writings as public records (a) Agendas of public meetings are disclosable public records under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), and shall be made available upon request without delay and in compliance with Section 54954.2 or Section 54956, as applicable. However, this section shall not apply to a writing, or portion thereof, that is exempt from public disclosure. (b) (1) If a writing is a public record related to an agenda item for an open session of a regular meeting of the legislative body of a local agency and is distributed to all, or a majority of all, of the members of a legislative body of a local agency by a person in connection with a matter subject to a discussion or consideration at an open meeting of the body less than 72 hours before that meeting, the writing shall be made available for public inspection pursuant to paragraph (2) at the time the writing is distributed to all, or a majority of all, of the members of the body.
(2) (A) Except as provided in subparagraph (B), a local agency shall comply with both of the following requirements:
(i) A local agency shall make any writing described in
paragraph (1) available for public inspection at a public office or location that the agency shall designate for this purpose.
(ii) A local agency shall list the address of the office or location designated pursuant to clause (i) on the agendas for all meetings of the legislative body of that agency.
(B) A local agency shall not be required to comply with the requirements of subparagraph (A) if all of the following requirements are met:
(i) An initial staff report or similar document containing an executive summary and the staff recommendation, if any, relating to that agenda item is made available for public inspection at the office or location designated pursuant to clause (i) of subparagraph (A) at least 72 hours before the meeting. (ii) The local agency immediately posts any writing described in paragraph (1) on the local agency's Internet Website in a position and manner that makes it clear that the writing relates to an agenda item for an upcoming meeting. (iii) The local agency lists the web address of the local agency's internet website on the agendas for all meetings of the legislative body of that agency. (iv) (1) Subject to subclause (11), the local agency makes physical copies available for public inspection, beginning the next regular business hours Ralph M. Brown Act Page 66
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for the local agency, at the office or location designated pursuant to clause (i) of subparagraph (A).
(II) This clause is satisfied only if the next regular business hours of the local agency commence at least 24 hours before that meeting. (c) Writings that are public records described in subdivision (b) and distributed during a public meeting shall be made available for public inspection at the meeting if prepared by the local agency or a member of its legislative body, or after the meeting if prepared by some other person. These writings shall be made available in appropriate alternative formats upon request by a person with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof.
(d) This chapter shall not be construed to prevent the legislative body of a local agency from charging a fee or deposit for a copy of a public record pursuant to Section 7922.530, except that a surcharge shall not be imposed on persons with disabilities in violation of Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof.
(e) This section shall not be construed to limit or delay the public's right to inspect or obtain a copy of any record required to be disclosed under the requirements of the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1), including, but not limited to, the ability of the public to inspect public records pursuant to Section 7922.525 and obtain copies of public records pursuant to either subdivision (b) of Section 7922.53 or Section 7922.535. This chapter shall not be construed to require a legislative body of a local agency to place any paid advertisement or any other paid notice in any publication.
Section 54957.6. Closed sessions regarding employee matters (a) Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency's designated representatives regarding the salaries, salary schedules or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation.
However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its designated representatives.
Closed sessions of a legislative body of a local agency, as permitted in this section, shall be for the purpose of reviewing its position and instructing the local agency's designated representatives.
Closed sessions, as permitted in this section, may take place prior to and during consultations and discussions with representatives of employee organizations and unrepresented employees.
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Closed sessions with the local agency's designated representative regarding the salaries, salary schedules or compensation paid in the form of fringe benefits may include discussion of an agency's available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency's designated representative.
Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees.
For the purposes enumerated in this section, a legislative body of a local agency may also meet with a state conciliator who has intervened in the proceedings. (b) For the purposes of this section, the term "employee" shall include an officer or an independent contractor who functions as an officer or an employee, but shall not include any elected official, member of a legislative body or other independent contractors.
Section 54957.7. Disclosure of items to be discussed at closed session (a) Prior to holding any closed session, the legislative body of the local agency shall disclose in an open meeting, the item or items to be discussed in the closed session. The disclosure may take the form of a reference to the item or items as they are listed by number or letter on the agenda. In the closed session, the legislative body may consider only those matters covered in its statement. Nothing in this section shall require or authorize a disclosure of information prohibited by state or federal law. (b) After any closed session, the legislative body shall reconvene into open session prior to adjournment and shall make any disclosures required by Section 54957.1 of action taken in the closed session.
(c) The announcements required to be made in open session pursuant to this section may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location for the purpose of hearing the announcements.
Section 54957.8. Closed sessions of multijurisdictional drug law enforcement agencies
(a) For purposes of this section, "multijurisdictional law enforcement agency" means a joint powers entity formed pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 that provides law enforcement services for the parties to the joint powers agreement for the purpose of investigating criminal activity involving drugs; gangs; sex crimes; firearms trafficking or felony possession of a firearm; high technology, computer or identity theft; human trafficking; or vehicle theft. (b) Nothing contained in this chapter shall be construed to prevent the legislative body of a multijurisdictional law enforcement agency, or an advisory body of a multijurisdictional law enforcement agency, from holding closed sessions to discuss the Ralph M. Brown Act Page 68
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case records of any ongoing criminal investigation of the multijurisdictional law enforcement agency or of any party to the joint powers agreement, to hear testimony from persons involved in the investigation and to discuss courses of action in particular cases.
Section 54957.9. Authorization to clear room where meeting willfully interrupted; Readmission
In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section.
Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.
Section 54957.95 Removal of Disruptive Individuals
(a) (1) In addition to authority exercised pursuant to Sections 54954.3 and 54957.9, the presiding member of the legislative body conducting a meeting or their designee may remove, or cause the removal of, an individual for disrupting the meeting. (2) Prior to removing an individual, the presiding member or their designee shall warn the individual that their behavior is disrupting the meeting and that their failure to cease their behavior may result in their removal. The presiding member or their designee may then remove the individual if they do not promptly cease their disruptive behavior.
This paragraph does not apply to any behavior described in subparagraph (B) of paragraph (1) of subdivision (b).
(b) As used in this section:
(1) "Disrupting" means engaging in behavior during a meeting of a legislative body that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting and includes, but is not limited to, one of the following:
(A) A failure to comply with reasonable and lawful regulations adopted by a legislative body pursuant to Section 54954.3 or any other law. (B) Engaging in behavior that constitutes use of force or a true threat of force.
(2)"True threat of force" means a threat that has sufficient indicia of intent and seriousness, that a reasonable observer would perceive it to be an actual threat to use force by the person making the threat.
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Section 54957.10. Closed sessions regarding application for early withdrawal of deferred compensation plan funds
Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions to discuss a local agency employee's application for early withdrawal of funds in a deferred compensation plan when the application is based on financial hardship arising from an unforeseeable emergency due to illness, accident, casualty or other extraordinary event, as specified in the deferred compensation plan.
Section 54958. Application of chapter
The provisions of this chapter shall apply to the legislative body of every local agency notwithstanding the conflicting provisions of any other state law.
Section 54959. Criminal penalty for violation of chapter Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows, or has reason to know, the public is entitled under this chapter, is guilty of a misdemeanor.
Section 54960. Proceeding to prevent violation of chapter; Recording closed sessions; Procedure for discovery of tapes
(a) The district attorney or any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to audio record its closed sessions as hereinafter provided.
(b) The court in its discretion may, upon a judgment of a violation of Section 54956.7, 54956.8, 54956.9, 54956.95, 54957 or 54957.6, order the legislative body to audio record its closed sessions and preserve the audio recordings for the period and under the terms of security and confidentiality the court deems appropriate. (c) (1) Each recording so kept shall be immediately labeled with the date of the closed session recorded and the title of the clerk or other officer who shall be custodian of the recording.
(2) The audio recordings shall be subject to the following discovery procedures:
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(A) In any case in which discovery or disclosure of the audio recording is sought by either the district attorney or the plaintiff in a civil action pursuant to Section 54959, 54960 or 54960.1 alleging that a violation of this chapter has occurred in a closed session that has been recorded pursuant to this section, the party seeking discovery or disclosure shall file a written notice of motion with the appropriate court with notice to the governmental agency that has custody and control of the audio recording.
The notice shall be given pursuant to subdivision (b) of Section 1005 of the Code of Civil Procedure.
(B) The notice shall include, in addition to the items required by Section 1010 of the Code of Civil Procedure, all of the following:
(i) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the date and time of the meeting recorded and the governmental agency that has custody and control of the recording.
(ii) An affidavit that contains specific facts indicating that a violation of the act occurred in the closed session.
(3) If the court, following a review of the motion, finds that there is good cause to believe that a violation has occurred, the court may review, in camera, the recording of that portion of the closed session alleged to have violated the act. (4) If, following the in camera review, the court concludes that disclosure of a portion of the recording would be likely to materially assist in the resolution of the litigation alleging violation of this chapter, the court shall, in its discretion, make a certified transcript of the portion of the recording a public exhibit in the proceeding. (5) This section shall not permit discovery of communications that are protected by the attorney -client privilege.
Section 54960.1. Proceeding to determine validity of action; Demand for correction (a) The district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5 is null and void under this section. Nothing in this chapter shall be construed to prevent a legislative body from curing or correcting an action challenged pursuant to this section.
(b) Prior to any action being commenced pursuant to subdivision (a), the district attorney or interested person shall make a demand of the legislative body to cure or correct the action alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5. The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation.
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(c) (1) The written demand shall be made within 90 days from the date the action was taken unless the action was taken in an open session but in violation of Section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken.
(2) Within 30 days of receipt of the demand, the legislative body shall cure or correct the challenged action and inform the demanding party in writing of its actions to cure or correct or inform the demanding party in writing of its decision not to cure or correct the challenged action.
(3) If the legislative body takes no action within the 30-day period, the inaction shall be deemed a decision not to cure or correct the challenged action, and the 15- day period to commence the action described in subdivision (a) shall commence to run the day after the 30-day period to cure or correct expires. (4) Within 15 days of receipt of the written notice of the legislative body's decision to cure or correct, or not to cure or correct, or within 15 days of the expiration of the 30-day period to cure or correct, whichever is earlier, the demanding party shall be required to commence the action pursuant to subdivision (a) or thereafter be barred from commencing the action.
(d) An action taken that is alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5 shall not be determined to be null and void if any of the following conditions exist:
(1) The action taken was in substantial compliance with Sections 54953, 54954.2, 54954.5, 54954.6, 54956 and 54956.5.
(2) The action taken was in connection with the sale or issuance of notes, bonds, or other evidences of indebtedness or any contract, instrument or agreement thereto.
(3) The action taken gave rise to a contractual obligation, including a contract let by competitive bid other than compensation for services in the form of salary or fees for professional services, upon which a party has, in good faith and without notice of a challenge to the validity of the action, detrimentally relied. (4) The action taken was in connection with the collection of any tax. (5) Any person, city, city and county, county, district or any agency or subdivision of the state alleging noncompliance with subdivision (a) of Section 54954.2, Section 54956 or Section 54956.5, because of any defect, error, irregularity or omission in the notice given pursuant to those provisions, had actual notice of the item of business at least 72 hours prior to the meeting at which the action was taken, if the meeting was noticed pursuant to Section 54954.2, or 24 hours prior to the meeting at which the action was taken if the meeting was noticed pursuant to Section 54956, or prior to the meeting at which the action was taken if the meeting is held pursuant to Section 54956.5.
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(e) During any action seeking a judicial determination pursuant to subdivision (a) if the court determines, pursuant to a showing by the legislative body that an action alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956 or 54956.5 has been cured or corrected by a subsequent action of the legislative body, the action filed pursuant to subdivision (a) shall be dismissed with prejudice. (f) The fact that a legislative body takes a subsequent action to cure or correct an action taken pursuant to this section shall not be construed or admissible as evidence of a violation of this chapter.
Section 54960.2 Proceeding to determine the applicability of chapter to past actions of legislative body; Conditions; Cease and desist letter (a) The district attorney or any interested person may file an action to determine the applicability of this chapter to past actions of the legislative body pursuant to subdivision (a) of Section 54960 only if all of the following conditions are met:
(1) The district attorney or interested person alleging a violation of this chapter first submits a cease and desist letter by postal mail or facsimile transmission to the clerk or secretary of the legislative body being accused of the violation, as designated in the statement pertaining to that public agency on file pursuant to Section 53051, or if the agency does not have a statement on file designating a clerk or a secretary, to the chief executive officer of that agency, clearly describing the past action of the legislative body and nature of the alleged violation.
(2) The cease and desist letter required under paragraph (1) is submitted to the legislative body within nine months of the alleged violation. (3) The time during which the legislative body may respond to the cease and desist letter pursuant to subdivision (b) has expired and the legislative body has not provided an unconditional commitment pursuant to subdivision (c). (4) Within 60 days of receipt of the legislative body's response to the cease and desist letter, other than an unconditional commitment pursuant to subdivision (c), or within 60 days of the expiration of the time during which the legislative body may respond to the cease and desist letter pursuant to subdivision (b), whichever is earlier, the party submitting the cease and desist letter shall commence the action pursuant to subdivision (a) of Section 54960 or thereafter be barred from commencing the action. (b) The legislative body may respond to a cease and desist letter submitted pursuant to subdivision (a) within 30 days of receiving the letter. This subdivision shall not be construed to prevent the legislative body from providing an unconditional commitment pursuant to subdivision (c) at any time after the 30-day period has expired, except that in that event the court shall award court costs and reasonable attorneys' fees to the plaintiff in an action brought pursuant to this section in accordance with Section 54960.5.
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(c) (1) If the legislative body elects to respond to the cease and desist letter with an unconditional commitment to cease, desist from and not repeat the past action that is alleged to violate this chapter, that response shall be in substantially the following form:
To
The [name of legislative body] has received your cease and desist letter dated [date] alleging that the following described past action of the legislative body violates the Ralph M. Brown Act:
[Describe alleged past action, as set forth in the cease and desist letter submitted pursuant to subdivision (a)]
In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the [name of legislative body] hereby unconditionally commits that it will cease, desist from and not repeat the challenged past action as described above.
The [name of legislative body] may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as "Rescission of Brown Act Commitment." You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.
Very truly yours,
[Chairperson or acting chairperson of the legislative body] (2) An unconditional commitment pursuant to this subdivision shall be approved by the legislative body in open session at a regular or special meeting as a separate item of business, and not on its consent agenda. (3) An action shall not be commenced to determine the applicability of this chapter to any past action of the legislative body for which the legislative body has provided an unconditional commitment pursuant to this subdivision. During any action seeking a judicial determination regarding the applicability of this chapter to any past action of the legislative body pursuant to subdivision (a), if the court determines that the legislative body has provided an unconditional commitment pursuant to this subdivision, the action shall be dismissed with prejudice. Nothing in this subdivision shall be construed to modify or limit the existing ability of the district attorney or any interested person to Ralph M. Brown Act Page 74
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commence an action to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body.
(4) Except as provided in subdivision (d), the fact that a legislative body provides an unconditional commitment shall not be construed or admissible as evidence of a violation of this chapter.
(d) If the legislative body provides an unconditional commitment as set forth in subdivision (c), the legislative body shall not thereafter take or engage in the challenged action described in the cease and desist letter, except as provided in subdivision (e).
Violation of this subdivision shall constitute an independent violation of this chapter, without regard to whether the challenged action would otherwise violate this chapter.
An action alleging past violation or threatened future violation of this subdivision may be brought pursuant to subdivision (a) of Section 54960, without regard to the procedural requirements of this section.
(e) The legislative body may resolve to rescind an unconditional commitment made pursuant to subdivision (c) by a majority vote of its membership taken in open session at a regular meeting as a separate item of business not on its consent agenda, and noticed on its posted agenda as "Rescission of Brown Act Commitment," provided that not less than 30 days prior to such regular meeting, the legislative body provides written notice of its intent to consider the rescission to each person to whom the unconditional commitment was made, and to the district attorney. Upon rescission, the district attorney or any interested person may commence an action pursuant to subdivision (a) of Section 54960. An action under this subdivision may be brought pursuant to subdivision (a) of Section 54960, without regard to the procedural requirements of this section.
Section 54960.5. Costs and attorneys' fees
A court may award court costs and reasonable attorneys' fees to the plaintiff in an action brought pursuant to Section 54960, 54960.1 or 54960.2 where it is found that a legislative body of the local agency has violated this chapter. Additionally, when an action brought pursuant to Section 54960.2 is dismissed with prejudice because a legislative body has provided an unconditional commitment pursuant to paragraph (1) of subdivision (c) of that section at any time after the 30-day period for making such a commitment has expired, the court shall award court costs and reasonable attorneys' fees to the plaintiff if the filing of that action caused the legislative body to issue the unconditional commitment. The costs and fees shall be paid by the local agency and shall not become a personal liability of any public officer or employee of the local agency.
A court may award court costs and reasonable attorneys' fees to a defendant in any action brought pursuant to Section 54960 or 54960.1 where the defendant has prevailed in a final determination of such action and the court finds that the action was clearly frivolous and totally lacking in merit.
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Section 54961. Meeting place with discriminatory admission policies; Identification of victim of sexual or child abuse
(a) No legislative body of a local agency shall conduct any meeting in any facility that prohibits the admittance of any person or persons, on the basis of ancestry or any characteristic listed or defined in Section 11135, or which is inaccessible to disabled persons, or where members of the public may not be present without making a payment or purchase. This section shall apply to every local agency as defined in Section 54951. (b) No notice, agenda, announcement or report required under this chapter need identify any victim or alleged victim of tortious sexual conduct or child abuse unless the identity of the person has been publicly disclosed.
Section 54962. Prohibition against closed sessions except as expressly authorized Except as expressly authorized by this chapter, or by Sections 1461, 1462, 32106 and 32155 of the Health and Safety Code, or by Sections 37606, 37606.1 and 37624.3 of the Government Code as they apply to hospitals, or by any provision of the Education Code pertaining to school districts and community college districts, no closed session may be held by any legislative body of any local agency.
Section 54963. Disclosure of confidential information acquired in closed session prohibited; Disciplinary action for violation
(a) A person may not disclose confidential information that has been acquired by being present in a closed session authorized by Section 54956.7, 54956.8, 54956.86, 54956.87, 54956.9, 54957, 54957.6, 54957.8 or 54957.10 to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information. (b) For purposes of this section, "confidential information" means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter. (c) Violation of this section may be addressed by the use of such remedies as are currently available by law, including, but not limited to:
(1) Injunctive relief to prevent the disclosure of confidential information prohibited by this section.
(2) Disciplinary action against an employee who has willfully disclosed confidential information in violation of this section.
(3) Referral of a member of a legislative body who has willfully disclosed confidential information in violation of this section to the grand jury. (d) Disciplinary action pursuant to paragraph (2) of subdivision (c) shall require that the employee in question has either received training as to the requirements of this section or otherwise has been given notice of the requirements of this section.
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(e) A local agency may not take any action authorized by subdivision (c) against a person, nor shall it be deemed a violation of this section, for doing any of the following:
(1) Making a confidential inquiry or complaint to a district attorney or grand jury concerning a perceived violation of law, including disclosing facts to a district attorney or grand jury that are necessary to establish the illegality of an action taken by a legislative body of a local agency or the potential illegality of an action that has been the subject of deliberation at a closed session if that action were to be taken by a legislative body of a local agency.
(2) Expressing an opinion concerning the propriety or legality of actions taken by a legislative body of a local agency in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action. (3) Disclosing information acquired by being present in a closed session under this chapter that is not confidential information.
(f) Nothing in this section shall be construed to prohibit disclosures under the whistleblower statutes contained in Section 1102.5 of the Labor Code or Article 4.5 (commencing with Section 53296) of Chapter 2 of this code.
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SECTION 9
(11) Public Records Act
o HANDBOOK
rI4 Summary of the Major Provisions and Requirements
of the Public Records Act and Related Topics
Electronic Records
) Text of the Public Records Act
) Updated including changes effective January 1, 2023
Table of Contents
INTRODUCTION................................................................................................................................................ii PART ONE. COMPLIANCE
WITH THE PUBLIC RECORDS ACT.............................................................1 I.
WHAT IS THE PUBLIC RECORDS ACT?.................................................................2 II.
WHAT RIGHTS DOES THE PUBLIC RECORDS ACT AFFORD TO
THEPUBLIC?............................................................................................................2 III.
IS THE PUBLIC RECORDS ACT RELATED TO THE FREEDOM OF
INFORMATION ACT?..............................................................................................3 IV.
TO WHICH LOCAL AGENCIES DOES THE PUBLIC RECORDS
ACTAPPLY?............................................................................................................3 V.
WHAT ARE "PUBLIC RECORDS2„.........................................................................4 VI.
HOW DOES A LOCAL AGENCY DETERMINE THE SCOPE OF A
PUBLIC RECORDS REQUEST?................................................................................6 VII.
CAN A LOCAL AGENCY RELINQUISH ITS PUBLIC RECORDS
ACT OBLIGATIONS TO SOMEONE ELSE?............................................................7 VIII.
MUST A PUBLIC RECORDS ACT REQUEST BE MADE IN
WRITING, OR MAY IT BE MADE ORALLY?...........................................................8 IX.
WHAT PUBLIC RECORDS ARE EXEMPT FROM DISCLOSURE
UNDER THE PUBLIC RECORDS ACT?...................................................................8 X.
WHAT IS THE PROPER PROCEDURE FOR COMPLYING WITH A
PUBLIC RECORDS ACT REQUEST?......................................................................30 XI.
WHAT ARE THE PENALTIES FOR FAILURE TO COMPLY WITH THE
PUBLIC RECORDS ACT?......................................................................................33 X11.
CONCLUSION.......................................................................................................34 PART TWO. ELECTRONIC RECORDS....................................................................................................35
1. EMAI L..................................................................................................................... 38 II.
DOCUMENTS CREATED USING WORD PROCESSORS, GIS
AND OTHER SOFTWARE.......................................................................................51 III.
CITY WEBSITES.......................................................................................................61 IV.
CONCLUSIONS.....................................................................................................78 PART THREE. THE CALIFORNIA PUBLIC RECORDS ACT.......................................................................81 Public Records Act Page i
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Introduction
This Handbook, designed for City officials and staff, provides a summary of the major provisions of California's Public Records Act and related topics. Part One of the Handbook summarizes the basic provisions of the Public Records Act, including documents that are exempt from disclosure and the proper procedure for complying with the Act. Part Two highlights the unique issues raised by electronic records. Part Three contains the complete text of the Public Records Act. We hope you find this Handbook useful. Should you have any questions about the information included in this Handbook, please do not hesitate to contact our office.
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COMPLIANCE WITH THE PUBLIC RECORDS ACT
//RWG
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COMPLIANCE WITH THE PUBLIC RECORDS ACT:
KEY QUESTIONS AND ANSWERS
The people have the right of access to information
concerning the conduct of the people's business, and,
therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.
CAL. CONST. ART. I, § 3(b) (1).
In enacting [the California Public Records Act], the
Legislature, mindful of the right of individuals to privacy, finds and declares that access to information
concerning the conduct of the people's business is a
fundamental and necessary right of every person in this state.
GOv'T CODE § 7921.000.
California's Public Records Act is a key part of the philosophy that government at all levels in this State must be open and accessible to all., Under the Public Records Act, a local government agency must disclose virtually any public document; only a statutory exemption or a need for confidentiality that clearly outweighs the public's right to access will legally justify withholding a public document. The purpose of this Handbook is to provide a general overview of the Public Records Act and recent amendments to it, along with a general road map for compliance. Pursuant to AB 473, operative January 1, 2023, the Public Records Act has been reorganized and recodified in new Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code. While the Public Records Act has been recodified, the substance of the Public Records Act has not materially changed. The legislature specifically noted that its intent was not to substantively change the law, and revisions to the Public Records Act are intended to be entirely nonsubstantive in effect.2 Additionally, cases interpreting the former Code sections may be used to analyze the equivalent recodified sections. This Handbook addresses the questions most frequently asked of us by our local government clients.
I Rogers v. Superior Ct. (City of Burbank), 19 Cal. App. 4th 469 (2 Dist. 1993). 2 Gov't Code §7920.100
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I. WHAT IS THE PUBLIC RECORDS ACT?
The Public Records Act is a California statute that affords the public the right to inspect, and obtain a copy of, most of the information retained by State and local agencies in the course of business. The Public Records Act regulates the public's access to records and sets out the specific statutory circumstances under which particular records need not be disclosed. The Public Records Act states that public records are open to inspection at all times during the office hours of a local agency.3
The California Constitution also guarantees that public records are open to public scrutiny.4 It provides that a law, such as the Public Records Act, should be "broadly construed" if it furthers the people's right of access to public records, and "narrowly construed" if it limits the right of access.5 II. WHAT RIGHTS DOES THE PUBLIC RECORDS ACT AFFORD TO THE PUBLIC?
Under the Public Records Act, every person has the right to inspect and to obtain a copy of any identifiable public record.6 It is irrelevant whether the person making the Public Records Act request already has possession of the public records requested.? The term "person" includes individuals, and various types of business entities.$ A "person" need not be a citizen of California or of the United States to make use of the Public Records Act.9 A local agency must supply an exact copy of the record on request, unless it is "impracticable" to make an exact copy.10 The word "impracticable" in the Public Records Act does not necessarily refer to situations where a copying request would be "inconvenient" or time consuming to the agency. Rather, the term "impracticable" modifies the requirement that the agency provide an "exact" copy. If a requested document is subject to the Public Records Act, the agency must provide the best or most 3 Gov't Code § 7922.525.
4 CAL. CoNST. art. I, § 3(b)(1).
5 CAL. CoNST. art. I, § 3(b) (2).
6 Gov't Code §§ 7922.525, 7922.530(a). A requester inspecting a disclosable record on the agency's premises generally has the right to use their own equipment, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record. Gov't Code § 7922.530(b).
7 The motive of the requester seeking public records is immaterial; an individual already in possession of requested documents may seek the documents so he or she may publicly disseminate them without fear of liability for doing so.
Caldecott v. Superior Court, 243 Cal. App. 4th 212, 219 (4 Dist. 2015).
B Both cities and city attorneys have been deemed "persons" under the Act. Los Angeles Unified School Dist. v. Superior Court (City of Long Beach), 151 Cal. App. 4th 759 (2 Dist. 2007) (holding that the city, as well as the city attorney, were entitled to obtain records of a school district relating to a school construction project). 9 Gov't Code § 7920.520; Connell v. Superior Court (Intersource, Inc.), 56 Cal. App. 4th 601 (3 Dist. 1997). 10 Gov't Code § 7922.530(a).
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complete copy of that document reasonably possible.11 Any reasonably segregable portion must be made available after deletion of any portion exempt from disclosure.12
The requirements of the Public Records Act are the minimum standards which must be met by local agencies. The Public Records Act specifically provides that agencies may adopt procedures to allow greater access to records, except where the law otherwise prohibits access.13
The person who is the subject of a particular record does not have a specific right under the Public Records Act to prevent disclosure of any particular record.14 Even in cases where the subject of a particular record has argued that disclosure would violate the individual right to privacy guaranteed by the California Constitution, disclosure has been compelled.15
III. IS THE PUBLIC RECORDS ACT RELATED TO THE FREEDOM OF INFORMATION ACT?
Persons who request access to public records frequently reference the Freedom of Information Act (the "FOIA") as the basis for their request. The FOIA is a federal statute that does not apply to local government agencies.16 However, the Public Records Act was modeled after the FOIA, and we recommend that agencies respond to otherwise valid records requests even if the requester cites the FOIA instead of the Public Records Act.17
IV. TO WHICH LOCAL AGENCIES DOES THE PUBLIC RECORDS ACT APPLY? The Public Records Act applies to all local government agencies. Under the Public Records Act, a "local agency" includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; any board, commission or agency of any of these; and 11 See Rosenthal v. Hansen, 34 Cal. App. 3d 754 (3 Dist. 1973) (holding that under the former Section 6256, an agency need not provide exact copies if doing so would be impracticable, but this does not excuse a public entity from producing the records at all).
12 Gov't Code § 7922.525.
13 Gov't Code § 7922.505. It is unclearwhether a local public agency can, through a sunshine ordinance, seek to regulate other agencies, but such an ordinance would not override a state agency's determination on whether its internal documents were subject to disclosure. SF Urban Forest Coal. v. City & Cty. of San Francisco, 43 Cal. App. 5th 796, 807 (Ct.
App. 2019), review denied (April 1, 2020).
14 LAPD v. Superior Court (Church of Scientology), 65 Cal. App. 3d 661, 668 (2 Dist. 1977). 15 Poway Unified Sch. Dist. v. Superior Court (Copley Press), 62 Cal. App. 4th 1496 (4 Dist. 1998). 16 5 U.S.C. § 552 et seq.
17 See ACLU v. Deukmejian, 32 Cal. 3d 440, 447 (1982) (Public Records Act modeled on FOIA, judicial construction and legislative history of federal act illuminate the interpretation of its California counterpart); Cook v. Craig, 55 Cal. App. 3d 773, 781 (3 Dist. 1976) (noting the similarity between the provisions of state and federal law).
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certain non-profit organizations of local agencies which are supported by public funds.18
V. WHAT ARE "PUBLIC RECORDS?"
The Public Records Act defines "public records" as follows:
Public records includes any writing containing
information relating to the conduct of the public's
business prepared, owned, used, or retained by any
state or local agency regardless of physical form or
characteristics.
The term "writing" means:
any handwriting, typewriting, printing, photostating,
photographing, photocopying, transmitting by
electronic mail or facsimile, and every other means of
recording upon any tangible thing any form of
communication or representation, including letters,
words, pictures, sounds, or symbols, or combinations
thereof, and any record thereby created, regardless of
the manner in which the record has been stored.19
These definitions encompass much more than written or printed documents.
Public records include computer data, and an agency must provide computer records in any electronic format in which the agency holds the information. If a requester asks for the records in a particular format, the agency must provide the records in that format, provided it is a format used by the agency to create copies for its own use or for provision to other agencies, unless an exception applies.20 Note, however, that computer software developed by a local agency is not a "public record" subject to the Public Records Act.21
On the other hand, a requester's rights under the Public Records Act are not unlimited. A local agency is not required to create a document or compile a list in response to a request under the Public Records Act.22 18 Gov't Code § 7920.510. The Public Records Act also applies to charter schools and entities managing charter schools.
Ed. Code § 47604.1.
19 Gov't Code § 7920.530 and 7920.545.
20 Gov't Code § 7922.570 For further discussion of the exception to this rule, see Part Two. Electronic Records, Section II.B. "Metadata" of this Handbook.
21 Gov't Code § 7922.585.
22 Based upon the definition of "writing," Gov't Code § 7920.545, and the requirement that a requested record be "identifiable," Gov't Code § 7922.530(a); See also Sander v. State Bar of California, 26 Cal. App. 5th 651, 665-66 (1 Dist.
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While these definitions are general, over the years the courts have both broadened and limited the scope of the definition of "public record." First, it is clear that the term "public records" encompasses more than simply those documents that public officials are required by law to keep as official records.
Rather, courts have held that a public record is one that is kept because it is "necessary or convenient to the discharge of [an] official duty."23 Second, courts have observed that merely because the writing is in the possession of the local agency, it is not automatically a public record. It must relate in some substantive way to the conduct of the public's business.24 Thus, personal notes and personal records, such as shopping lists or letters from friends that are totally void of public business, are not public records.25 In City of San Jose v. Superior Court, the California Supreme Court provided several factors to consider when analyzing whether a writing is a public record, including: the content of the writing; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.26 In addition, it is important to note that a record need not be a "document" to fall within the ambit of the Public Records Act. A public record is subject to disclosure under the Public Records Act "regardless of physical form or characteristics."27 Further, local agencies are obligated to determine whether a public records request seeks copies of disclosable public records in the "possession" — either actual or constructive possession — of the agency.28 On occasion, a local agency prepares, uses, or owns a document containing information related to the conduct of the public's business, but does not physically possess it, such as when a local agency hires a private consultant to conduct work on behalf of the agency. When the public record is in the possession of a private consultant or sub -consultant who does work for the local agency, the contractual relationship between the local agency and consultant or sub -consultant will likely determine whether the local agency has the right to control the records and therefore "constructive possession" of the documents.29 In Community Youth Athletic 2018) (stating that "the CPRA ... does not require [public agencies] to create new records to satisfy a request."); Steinle v.
City & Cty. of San Francisco, 919 F.3d 1154, 1 166 (9th Cir. 2019). 23 City of San Jose v. Superior Court (Smith), 2 Cal. 5th 608, 618 (2017); Braun v. City of Taft, 154 Cal. App. 3d 332, 340 (5 Dist. 1984); San Gabriel Tribune v. Superior Court (City of West Covina), 143 Cal. App. 3d 762, 774 (2 Dist. 1983); People v.
Tomalty, 14 Cal. App. 224, 231 (1 Dist. 1910).
24 City of San Jose, 2 Cal. 5th at 618; Braun, 154 Cal. App. 3d at 340; San Gabriel Tribune, 143 Cal. App. 3d at 774; Gov't Code § 7920.530.
25 San Gabriel Tribune, 143 Cal. App. 3d at 774.
26 City of San Jose, 2 Cal. 5th at 618.
27 Gov't Code § 7920.530.
28 Gov't Code § 7922.535. City of San Jose, 2 Cal. 5th at 623. 29 Consolidated Irrigation District v. Superior Court (City of Selma), 205 Cal. App. 4th 697, 709-1 1 (5 Dist. 2012); Community Youth Athletic Center v. City of National City, 220 Cal. App. 4th 1385, 1427-29 (4 Dist. 2013); see also Regents of the University of California v. Superior Court (Reuters America LLC), 222 Cal. App. 4th 383, 398 (1 Dist. 2013) as modified on denial of reh'g (Jan. 14, 2014).
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Center v. City of National City, the court found that under the contract between the City and its consultant, the City had the right to possess and control the record that was the subject of a public records request, even if that local agency had not previously enforced its ownership right.30 The court held that the City had an obligation "to make reasonable efforts to facilitate the location and release of the information."31 The City's failure to assert its contractual right to obtain the record from the consultant violated the Public Records Act.32 On the other hand, in Anderson -Barker v. Superior Court of Los Angeles County, the court held that a city's ability to access privately held, electronically -stored data did not equate to a form of possession of the data when a city does not direct what information a third party contractor places on its databases, and has no authority to modify the data in any way.33 Similarly, in Consolidated Irrigation District v. Superior Court, the court found that the City had no control over a sub -consultant's records.34 The sub -consultant had been hired by the City's primary consultant, and based on the facts in that case, the City had no obligation under the Public Records Act to obtain and produce the records of the sub -consultant.
VI. HOW DOES A LOCAL AGENCY DETERMINE THE SCOPE OF A PUBLIC RECORDS REQUEST?
Most public records requests are straightforward. The public is familiar with records regularly kept by a local agency, such as meeting minutes, staff reports, financial reports, and other documents discussed at public meetings. Requests for those records are easy to fulfill. Many of these records may be available on a local agency's website, and the Public Records Act allows a local agency to satisfy a request for public records by directing the requester to that website.35 Sometimes, the public is unfamiliar with the types of records maintained by local agencies. The requester may not be able to provide the specificity necessary to identify a public record, or the request may be so broadly stated that a local agency cannot reasonably determine which records fall within the scope of the request.
Under those circumstances, the Public Records Act imposes duties on both local agencies and requesters. Local agencies must assist a requester to formulate a "focused and effective request that reasonably describes an identifiable record or records," by following certain procedural requirements.36 Likewise, the 30 Community Youth Athletic Center, 220 Cal. App. 4th at 1428. 31 Id. at 1429.
32 Id.
33 Anderson -Barker v. Superior Court (City of Los Angeles), 31 Cal. App. 5th 528 (2 Dist. 2019). 34 Consolidated Irrigation District, 205 Cal. App. 4th at 711. 35 Gov't Code § 7922.545.
36 Gov't Code § 7922.600. Further discussion of these procedural requirements is in Section X, below.
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requester is obligated to engage in this process, and to provide the scope of the public information requested, which the City must communicate to the custodian of records. Both the local agency and the requester must be reasonable in this process.37
In some instances, there may be many records responsive to a request. When faced with a voluminous request, agencies should work with the requester to narrow down the request, ask if they would consent to an extended deadline for responding, and providing responsive records on a rolling basis. Even where requests return a significant number of responsive records, courts have held that agencies must process the request.38
VII. CAN A LOCAL AGENCY RELINQUISH ITS PUBLIC RECORDS ACT OBLIGATIONS TO SOMEONE ELSE?
A local agency cannot sell or provide a public record subject to disclosure under the Public Records Act to a private entity in a manner that prevents the local agency from providing the record directly.39 For example, the county recorder cannot transfer all birth and death records to a private company and insist that the public obtain birth certificates from the private entity.
Similarly, a local agency may not enter into a contract that allows another party to control the disclosure of information that is subject to the Public Records Act.40 For example, a contract provision that requires the consent of a contractor before a local agency may release a public record prepared by the contractor violates the Public Records Act. Additionally, if a local agency enters into a contract that requires a private entity to review, audit, or report on any aspect of the local agency, that contract must be made available to the public upon request, unless the contract is exempt from disclosure pursuant to another exemption in the Public Records Act.41
37 Community Youth Athletic Center v. National City, 220 Cal. App. 4th 1385, 1427 (4 Dist. 2013). 38 Getz v. Superior Court, 2021 WL 5879194 (3 Dist. 2021), ordered published (December 13, 2021) (holding that it is not unduly burdensome to require El Dorado County to review more than 42,000 emails that were potentially responsive to a request for "any/all emails" by or between "anyone" employed by the County and "anyone" at one of four email domains associated with a real estate developer, its legal counsel, and its public relations consultants). 39 Gov't Code § 7921.010(a).
40 Gov't Code § 7921.005.
41 Gov't Code § 7928.700.
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Vill. MUST A PUBLIC RECORDS ACT REQUEST BE MADE IN WRITING, OR MAY IT BE MADE ORALLY?
Nothing in the Public Records Act requires a member of the public to place his or her request for public records in writing.42 While many local agencies provide forms on their website or at their offices for making a written Public Records Act request, a requester is not required to use the form offered. An oral request is sufficient to trigger the requirements of the Public Records Act.
Additionally, an argumentative or disruptive requester cannot be permanently banned from the premises by a local agency or forced to make their requests in writing.43 However, the right to inspect public records is subject to the implied rule of reason that enables the custodian of public records to formulate regulations necessary to prevent interference with the orderly functioning of the agency's office.44 If faced with a loud or angry person who is making an oral request, and the records are not immediately available, it is advisable for staff to write down the request and tell the requester the agency will respond in writing within the time limits specified in the Public Records Act. Your city attorney can provide additional guidance in the event a member of the public is repeatedly abusive towards staff.
IX. WHAT PUBLIC RECORDS ARE EXEMPT FROM DISCLOSURE UNDER THE PUBLIC RECORDS ACT?
A. Disclosure of Exempt Records Waives Confidentiality
The Public Records Act specifically exempts a number of categories of records from disclosure requirements. If documents are exempt from disclosure, it is important that confidentiality be maintained. Once an otherwise exempt record is knowingly released to any member of the public, disclosure constitutes a waiver of the exemption for that record, and the record must be provided to any subsequent requesting member of the public.45 This waiver ensures a public agency does not carry out "selective disclosure," wherein some members of the public are provided the right of access to specific records, while some requests for the same records are denied by the public agency for the same materials.46 42 Los Angeles Times v. Alameda Corridor Transp. Authority, 88 Cal. App. 4th 1381, 1392 (2 Dist. 2001). 43 Galbiso v. Orosi Public Utility District, 167 Cal. App. 4th 1063, 1088-89 (5 Dist. 2008). 44 Bruce v. Gregory, 65 Cal. 2d 666, 676 (1967); Rosenthal v. Hansen, 34 Cal. App. 3d 754, 761 (3 Dist. 1973); 64 Ops. Cal.
Atty. Gen. 317 (1981).
45 Gov't Code § 7921.505.
46 Black Panther Party v. Kehoe, 42 Cal. App. 3d 646, 658 (3 Dist. 1974).
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There are a few situations where the knowing disclosure of an otherwise exempt record does not constitute a waiver of exemption. Exemptions are not waived when disclosures are made:
• Through discovery procedures associated with lawsuits or in court proceedings;
• Pursuant to a statute that limits disclosure for specified purposes; • When not required by law and prohibited by formal action of the elected legislative body of the local agency; or
• To another government agency that agrees to treat the records as confidential.47
The California Supreme Court held that a public agency's inadvertent disclosure resulting from human error does not waive an exemption.48 In Ardon v. City of Los Angeles, the City of Los Angeles inadvertently disclosed several attorney -client and attorney work product documents in response to a PRA request. The requester was an attorney actively involved in pending litigation against the City.49 After becoming aware of the inadvertent disclosure, the City filed a motion in court seeking the return of the privileged materials.50 The California Supreme Court held that the Public Records Act's waiver provision51 applied only to intentional and not inadvertent disclosure.52 The court justified this distinction by finding that the City of Los Angeles had not engaged in selective disclosure:
"[r]ather, it seeks no disclosure; it is trying to force plaintiff's attorney to return the privileged documents unread."53
The California Supreme Court's decision in Ardon v. City of Los Angeles allows a public agency to argue that a disclosure was inadvertent and ask for return of exempt records that were released in error. However, nothing in the Public Records Act compels the requester to return the records. Instead, the public agency must go to court to obtain a judicial order directing the requester to return or destroy the inadvertently disclosed records.54 This presents a number of problems. First, the circumstances surrounding the dissemination of those materials would have to be evaluated on a case -by -case basis by the reviewing court.55 The court may not agree with the public agency's assertion that the 47 Gov't Code § 7921.505. Additional exceptions apply to specific state agencies. 48 Ardon v. City of Los Angeles, 62 Cal. 4th 1 176 (2016). 49 Ardon, 62 Cal. 4th at 1 180-82.
50 Id. at 1 181 .
51 Gov't Code § 7921.505.
52 Ardon, 62 Cal. 4th at 1180.
53 Id. at 1 185-86.
54 See Newark Unified School District v. Superior Court (Brazil), 245 Cal. App. 4th 887 (1 Dist. 2015). 55 Id. at 910.
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disclosure was inadvertent. Second, if the exempt records were given wide- spread distribution before the error was found, a court may decide not to order return of the records. Once the information is in the public sphere, the bell cannot be unrung. Third, it is costly to go to court to seek injunctive relief.
Consequently, public agencies should continue to conduct a thorough and exhaustive review of responsive documents before releasing any materials in response to a Public Records Act request. The California Supreme Court acknowledged that its decision was limited to "truly inadvertent disclosures and must not be abused to permit the type of selective disclosure" prohibited by the Public Records Act.56 Further, the California Supreme Court emphasized that a public agency's own characterization of its intent is not dispositive.57 The best practice continues to be to complete a thorough review before releasing responsive records.
B. Statutory Exemptions for Confidential Records
The following is a list of the statutory exemptions. This list is not exhaustive. (1) Public agency employees' personal information.
Gov't Code § 7928.300.
The Public Records Act contains protections for specified personal information of all public agency employees. The home addresses, home telephone numbers, personal cellular telephone numbers and birth dates of all public agency employees are not considered to be public records subject to disclosure, except in limited circumstances. Personal e-mail addresses of public employees are also not public records subject to disclosure, unless a personal e-mail address is used by an employee to conduct public business or if the address is necessary to identify a person in an otherwise disclosable communication. The Public Records Act also requires local agencies to redact social security numbers from records before disclosing the records to the public in response to a Public Records Act request.58
56 Ardon, 62 Cal. 4th at 1190.
57 Id.
58 Gov't Code § 7922.200. State agencies are prohibited from sending outgoing U.S. mail to an individual that contains the individual's social security number unless the number is truncated to its last four digits, except in specified circumstances. Gov't Code § 1 1019.7.
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(2) Referendum, recall and initiative petitions, ballots and related material.
Gov't Code §§ 7924.100-7924.1 10.
Election -related petitions and all memoranda prepared by the county elections officials in their examination of the petitions indicating which registered voters signed the petitions are strictly confidential. These materials may be viewed only by elections officials and their deputies. Other officials, including agency attorneys, must obtain a court order to view petitions. If the elections officials determine that a petition is legally insufficient, petition proponents and their representatives designated in writing must be permitted to review these materials.
Election ballots themselves are exempt from disclosure.59 (3) The identity of persons who have requested bilingual ballots or ballot pamphlets.
Gov't Code § 7924.005.
Election -related information revealing the identity of people who have requested bilingual ballots or ballot pamphlets or other related data that would reveal the identity of the people requesting bilingual materials is exempt from disclosure.
Persons otherwise authorized to review this material, such as elections officials, may examine these materials.
(4) Preliminary drafts, notes, or interagency or intra-agency memoranda.
Gov't Code § 7927.500.
Public officials should be aware that preliminary drafts and notes, along with interagency and intra-agency memoranda, are exempt from disclosure as public records if those documents are not customarily retained by the local agency in the ordinary course of business, and the public interest in withholding those records clearly outweighs the public interest in disclosure.60 In considering whether to use this exemption, agencies should determine whether the disclosure of a preliminary draft, note, or interagency or intra-agency memorandum would further the interest of the Act in open government. The fact that the document is merely a step in the process and does not provide important information about the public's business probably weighs in favor of nondisclosure. 59 Elec. Code §§ 15370 and 17301; Citizens Oversight, Inc. v. Vu, 35 Cal. App. 5th 612, 619-20 (4 Dist. 2019). 60 Gov't Code § 7927.500.
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The key questions in this area generally may be boiled down to whether a draft, note, or interagency or intra-agency memorandum is one which:
• Is not normally kept by the agency in the ordinary course of business; • Is not prepared or kept to document or memorialize the day-to-day transaction of the public's business;
• Is merely a temporary step in the process of preparing a final document, reaching a final decision, or determining a course of action; and
• Would expose the agency's decision -making process if disclosed,61 and the public interest in nondisclosure clearly outweighs the public interest in disclosure.
If the document qualifies under all four categories above, the document probably is exempt from disclosure under the Public Records Act. Documents that do not satisfy one or more of the categories above probably are public records that must be disclosed unless another exemption applies. You should keep in mind, however, that any doubt or question in this regard likely will be decided in favor of disclosure of the record.
In discussing whether a record has not been retained in the ordinary course of business, one court observed, "[i]f preliminary materials are not customarily discarded or have not in fact been discarded as is customary they must be disclosed."62 One of the purposes of this condition is to prevent "secret law," that is an undisclosed collection of written rules guiding the agency's decisions.63 Consequently, a record that must be retained pursuant to a local agency's records retention schedule, policies, or customs does not fall within this exemption.
For example, if a policy decision is made to retain drafts in order to document the bargaining history after an agreement is negotiated; those drafts likely are not exempt under Section 7927.500. Also, if it is permissible under an agency's records retention schedule to destroy preliminary documents, but the agency retained such a document after the final report is prepared, the preliminary document arguably is not exempt under Section 7927.500.
61 Citizens for a Better Environment v. Dep't of Food and Agriculture, 171 Cal. App. 3d 704, 715-16 (3 Dist. 1985) (concluding that "[t] he interest in fostering robust agency debate" is the only public interest that can justify nondisclosure under Section 7927.500).
62 Id. at 714.
63 Id. at 714 n.7.
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(5) Records pertaining to pending litigation to which the agency is a party.
Gov't Code § 7927.200.
Under this exemption, records actually created by an agency for its own use in litigation are exempt from disclosure under the Public Records Act.64 Previously created or disclosed records may not be retroactively re-classified as being exempt under this Section.65 Generally, courts will examine the "dominant purpose" behind the document's creation.66 Documents prepared "by a public entity for its own use in anticipation of litigation, which documents it reasonably has an interest in keeping to itself until litigation is finalized" are protected by the exemption.67 Thus, while documents created prior to the commencement of litigation appear to receive greater scrutiny to determine their dominant purpose, the exemption can apply to documents created before litigation has commenced, that is, before a claim has been made with the local agency under the Government Claims Act or a complaint filed with a court. Once litigation is concluded, however, the exemption will no longer apply.68 This exemption also applies to litigation -related documents, even if not created by an agency, when sought by persons or entities not a party to the litigation and which the parties to the litigation do not intend to be revealed outside the litigation. This exemption does not cover deposition transcripts because they are available to the public under another statute.69 And where a plaintiff generally is required to file a claim under the Government Claims Act to initiate litigation against a local agency, the actual claim form filed with the local agency is not exempt under this Section as "[f]here is no unfair disadvantage [in the pending litigation] to the public entity from disclosure of the mere claim form."70 64 Fairley v. Superior Court (City of Long Beach), 66 Cal. App. 4th 1414, 1421-22 (2 Dist. 1998). 65 City of Hemet v. Superior Court (Press -Enterprise Co.), 37 Cal. App. 4th 1411, 1420 & n.1 1 (4 Dist. 1995). 66 Fairley, 66 Cal. App. 4th at 1420
67 Id. at 1421 .
68 Gov't Code § 7927.200 (noting that the exemption applies "until the pending litigation or claim has been finally adjudicated or otherwise settled."); City of Los Angeles v. Superior Court (Axelrod), 41 Cal. App. 4th 1083, 1089 (2 Dist. 1996).
69 Board of Trustees of California State Univ. v. Superior Court (Copley Press, Inc.), 132 Cal. App. 4th 889, 901-902 (4 Dist. 2005); Civ. Proc. Code § 2025.570.
70 Poway Unified Sch. Dist. v. Superior Court (Copley Press, Inc.), 62 Cal. App. 4th 1496, 1505 (4 Dist. 1998).
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(6) Personnel, medical, or similar records.
Gov't Code §§ 7927.700; 7928.300.
When the disclosure of personnel,71 medical, or similar files would constitute an unwarranted invasion of personal privacy, this exemption applies. In determining whether personnel records should be disclosed, courts first decide whether disclosure would compromise the individual's substantial privacy interest. If it does, the court determines whether the potential harm to those interests caused by disclosure outweighs the public interest in disclosure.72 As will be discussed below, the California Supreme Court has concluded that public employees in general have a significantly reduced expectation of privacy in their salaries, and that the strong public interest in knowing how the government spends its money justifies disclosure of salary information.73 Courts have recognized the privacy interest implicated by records of employee misconduct and wrongdoing.74 However, at least one appellate court has found that where the public employee is in a position of authority, such as a superintendent of a school district, the individual has "a significantly reduced expectation of privacy in the matters of his [or her] public employment."75 This exemption for personnel, medical or similar records does not justify withholding employment agreements. By statute, employment agreements between a local agency and any public official or public employee is a public record not subject to an exemption.76 This exemption for personnel records also does not justify withholding personnel records concerning incidents involving the discharge of a firearm at a person by a peace officer that resulted in death or great bodily injury, records concerning a sustained finding that a peace officer engaged in sexual assault or dishonesty, a sustained finding of unreasonable or excessive force, a sustained finding of failure to intervene against another officer using unreasonable or excessive force, or a sustained finding of discrimination against a protected class.77 71 The scope of personnel records generally covers records relating to an employee's performance or to any grievance concerning an employee, and would include personal information to which access is limited to an employee's supervisors.
Such records do not need to be stored in a personnel file to be exempt; it is the contents of the document which makes them confidential. Associated Chino Teachers v. Chino Valley Unified Sch. Dist., 30 Cal. App. 5th 530, 539-41 (4 Dist. 2018). 72 Versaci v. Superior Court (Palomar Cmty. Coll. Dist.), 127 Cal. App. 4th 805, 818-820 (4 Dist. 2005). 73 International Federation of Professional and Technical Engineers, LOCAL 21, AFL-CIO, v. Superior Court, (Contra Costa Newspapers, Inc.), 42 Cal. 4th 319, 329-333 (2007) (International Federation). 74 Associated Chino Teachers, 30 Cal. App. 5th at 541.
75 BRV, Inc. v. Superior Court (Dunsmuir Joint Union High School District), 143 Cal. App. 4th 742, 758 (3 Dist. 2006) (ordering reports investigating allegations of misconduct disclosed, as the public's interest in why the district entered into a termination agreement with the superintendent that appeared to the public to be a "sweetheart deal" outweighed the superintendent's interest in preventing disclosure of the reports). 76 Gov't Code § 7928.400.
77 Penal Code §§ 832.7, 832.8.
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Disclosure of Public Emolovee Salaries
The California Supreme Court has held that salaries of public employees are not exempt from disclosure. In International Federation of Professional and Technical Engineers v. Superior Court, (Contra Costa Newspapers, Inc.),78 the California Supreme Court held that individually identifiable salary information is not exempt from disclosure under the Public Records Act, the California Constitution or the Penal Code. In this case, a newspaper sought disclosure from the City of Oakland of names, job titles and gross salaries of City employees earning $100,000 or more each year, including overtime. The City provided salary and overtime information for each job classification but refused to provide salary information linked to individual employees. The newspaper sued to obtain disclosure of the records under the Public Records Act. The Supreme Court held that a public entity's payroll expenditures are public records, and that disclosure of salary records for City employees earning $100,000 or more each year is not an unwarranted invasion of personal privacy.79
With regard to peace officers, the Supreme Court rejected the police union's argument that Penal Code Sections 832.7 and 832.8 bar disclosure of the amount of a peace officer's salary.80 The Supreme Court ruled that salary information of peace officers does not constitute "personnel records" under Penal Code Sections 832.7 or 832.8, and is not information obtained from personnel records.81 As such, the Penal Code does not mandate that peace officer salary information be excluded from disclosure under the Public Records Act.
The Supreme Court also rejected the argument that each public records request must be evaluated on a case -by -case basis to evaluate the individual employee's privacy interests and the particular public interest at issue.82 The Court stated that this would reverse the presumption of openness of public records mandated by the Public Records Act, and the public entity bears the burden of demonstrating that particular records are exempt.83 The Court, however, left open the possibility that a public entity may, on a case -by -case basis, decline to 78 International Federation, 42 Cal. 4th 319 (2007).
79 The Supreme Court also narrowed the precedential value of Teamsters Local 856 v. Priceless, LLC., 112 Cal. App. 4th 1500 (1 Dist. 2003). The appellate court in Priceless held that names, job titles, and W-2 information of City employees was confidential information and not subject to disclosure under the Public Records Act because the City in question had a prior practice of treating that information as confidential. To the extent that Priceless could be read as holding that a City's practice of refusing to disclose certain information had created a privacy interest in those records, the California Supreme Court disagreed and refused to adopt that holding. International Federation, 42 Cal. 4th at 336. 80 Id., at 343.
81 Id.
82 Id. at 336.
83 Id. at 336-37.
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release records pertaining to individual employees where anonymity is essential to their safety, such as undercover narcotics officers.
Although this decision arose in the context of a public records request for the names and salaries of City employees earning more than $100,000 per year, the Supreme Court's reasoning may have general application to salary information for all City employees, regardless of level of salary.
In a companion case, Commission on Peace Officer Standards and Training v.
Superior Court, the California Supreme Court addressed the confidentiality of certain non -salary information.84 In this case, the Commission refused to provide the names, employing departments, and hiring and termination dates of peace officers from its database. The Commission maintains the database to monitor participating law enforcement departments' compliance with Peace Officer Standards and Training ("POST") regulations. The California Supreme Court held that the names, employing departments, and hiring and termination dates of peace officers are not confidential under Penal Code Sections 832.7 and 832.8, and are not exempt from disclosure under the Public Records Act. The California Supreme Court, however, remanded the case to the lower courts to allow the Commission the opportunity to establish that information regarding particular officers or categories of officers should be excised from the disclosed records in order to protect the safety or efficacy of those peace officers.85 (7) Arrest records, complaint reports, investigatory, and security files.
Gov't Code §§ 7923.600-7923.630.
This exemption strictly limits the information required to be disclosed about arrests, complaints and investigations.86 Records of complaints to or investigations conducted by police agencies generally may be withheld. Investigatory or security files compiled by a local agency for law enforcement or licensing purposes are also covered by the exemption, provided "there is a concrete and 84 Commission on Peace Officer Standards and Training v. Superior Court (Los Angeles Times Communications LLC), 42 Cal. 4th 278 (2007).
85 Id. at 303; see also, Long Beach Police Officers Assn. v. City of Long Beach, 59 Cal. 4th 59 (2014) (holding the Act did not protect from disclosure the names of officers involved in on -duty shootings). 86 The scope of "records of investigation" is narrowly construed. American Civil Liberties Union Foundation v. Superior Court, 3 Cal. 5th 1032, 1039 (2017). Records of investigation exempted under Section 7923.600 et seq. "encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency." Haynie v. Superior Court, 26 Cal. 4th 1061, 1071 (2001). In American Civil Liberties Union of Southern California v. Superior Court, the California Supreme Court declined to extend the meaning of "investigation" to cover bulk raw data obtained as part of a mass personal data collection, because there was no targeted "investigation" into a particular criminal act. 3 Cal. 5th 1032, 1042.
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definite prospect of criminal law enforcement proceedings."87 This exemption extends indefinitely, even after investigations are concluded.$$ In most cases, agencies are required to disclose to the public89 the full name, current address, and occupation of every person arrested by the agency, including a general physical description, along with the date and time of arrest. This disclosure, however, is not required where it would endanger the safety of a person involved in an investigation or jeopardize the successful completion of the pending investigation or a related investigation.
While investigations conducted by police agencies are generally not disclosable, investigations of police agencies may be subject to PRA requests. When releasing records pertaining to investigations of police agencies, the agency must redact or otherwise withhold any information that is part of a police officer's confidential personnel file.90 Counsel should be consulted to ensure that confidential information is not disclosed.
In addition, local agencies are required to disclose to the public the time, substance, and general location of all complaints and requests for assistance, and the time and nature of the agency's response. However, no disclosure may be made to any arrested person or defendant in a criminal action of the address and telephone number of any person who is a victim or witness in an alleged offense.91 Further, this disclosure is not required where it would endanger the safety of a person involved in an investigation or jeopardize the successful completion of the pending investigation or a related investigation.
In all cases, the address of a victim of an alleged sex offense or human trafficking offense must be withheld.92 Additionally, the name of the victim of an alleged sex offense must be withheld if the victim or a minor victim's parent or guardian requests it be withheld. While the law refers to "sex offenses," the crimes listed in Section § 7923.615 include sexual assault, child molestation, child abuse, hate crimes, and stalking.
The Public Records Act prohibits the commercial use of arrest and arrestee information, and requires that persons requesting such information sign a declaration, under penalty of perjury, that the request is made for a scholarly, journalistic, political, or governmental purpose, or for investigation by a licensed 87 Dixon v. Superior Court (Neves), 170 Cal. App. 4th 1271, 1277 (3 Dist. 2009) (internal quotation omitted). 88 Rackauckas v. Superior Court (Los Angeles Times Communications), 104 Cal. App. 4th 169, 174-178 (4 Dist. 2002). 89 Sections 7923.600-7923.630 also authorize release of certain limited information to the victim of a crime and other interested parties, above and beyond that information released to the public generally. 90 Pasadena Police Officers Association v. City of Pasadena, 22 Cal. App. 5th 147 (2 Dist. 2018). 91 Penal Code § 841.5.
92 Penal Code § 293.
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private investigator.93 This requirement, however, may have limited applicability given the outcome of litigation by United Reporting Publishing Corporation against the California Highway Patrol.94 Subsequent to that case, the Attorney General issued an opinion that a law enforcement agency may not require that a requester present subscriber lists, copies of publications, or other verification of a journalistic purpose and the requester is not required to monitor subscribers to prohibit them from using the information for commercial purposes.95 Disclosure of Certain Police Department Records
Penal Code sections 832.7 and 832.8 previously provided that peace officer personnel records are confidential and subject to disclosure only after a granted Pitchess Motion. Those statutes were amended in 2019 to provide that certain peace officer personnel records and records relating to specified incidents, complaints, and investigations must be made available to the public under the Public Records Act. Under further amendments in 2021, disclosure of additional categories of information is required effective on January 1, 2022. Penal Code sections 832.7 and 832.8 now provide that an agency must disclose any record relating to the report, investigation, or finding of:
• An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
• An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or great bodily injury. • When a sustained finding was made that a peace officer or custodial officer engaged in sexual assault involving a member of the public. • When a sustained finding was made of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any false statements, filing false reports, destruction, falsifying or concealing of evidence, or perjury. 93 Gov't Code § 7923.620. A commercial publisher of criminal records challenged the constitutionality of this limitation on disclosure, but the United States Supreme Court held that the statute did not violate the First Amendment to the U.S.
Constitution. Los Angeles Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32 (1999). 94 United Reporting Publ'g Corp. v. California Highway Patrol, No. 96-CV-0888-B (S.D. Cal. Aug. 13, 2001) (final judgment on consent) ("As applied to United Reporting's activities as described in this lawsuit, section 6254(f) (3) (now § 7923.620) violates United Reporting's rights under the First Amendment to the United States Constitution by preventing United Reporting from engaging in its journalistic activities as described above."). 95 89 Ops. Cal. Atty Gen. 97 (2006).
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• When a sustained finding was made involving a complaint that alleged unreasonable or excessive force.
• When a sustained finding was made that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.
• When a sustained finding was made that a peace officer or custodial officer engaged in conduct including, but not limited to, verbal statements, writings, online posts, recordings, and gestures, involving prejudice or discrimination against a person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
• When a sustained finding was made that the peace officer made an unlawful arrest or conducted an unlawful search.
A sustained finding means that the public agency has determined that misconduct occurred and the officer had an opportunity for an administrative appeal, even if that administrative appeal was not actually completed.96 These disclosure requirements apply regardless of whether the disclosable records sought pertain to officers employed by the agency or by another public agency and regardless of whether the agency or another public agency created the records.97 These requirements also apply to records created prior to 2019 if a public records request is submitted after January 1, 2019.98 Note, however, that the catchall exemption to disclosure under the Public Records Act (Government Code section 7922.540), can apply to exempt otherwise disclosable records under Penal Code Section 832.7 where, based on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.99 96 Collondrez v. City of Rio Vista, 61 Cal. App. 5th 1039 (1 Dist. 2021), review denied (June 30, 2021) (court held that the city manager's decision in favor of an officer's termination following a pre -discipline Skelly meeting constituted a sustained finding of dishonesty, even though the officer's subsequent administrative arbitration was not completed because the officer resigned as part of a settlement with the city). 97 Becerra v. Superior Court of City & Cty. of San Francisco, 44 Cal. App. 5th 897 (1 Dist. 2020) review denied (May 13, 2020) .
98 Ventura County Deputy Sheriffs' Assn v. Cty. of Ventura, 61 Cal. App. 5th 585, 590,594 (2 Dist. 2021); Walnut Creek Police Officers' Assn v. City of Walnut Creek, 33 Cal. App. 5th 940, 941-942 (1 Dist. 2019). 99 Becerra, 44 Cal. App. 5th at 927-929.
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Further, as of July 1, 2019, the Act requires an agency to disclose audio and video recordings that relate to a "critical incident." A recording relates to a critical incident if it depicts an incident involving the discharge of a firearm at a person by a peace officer or custodial officer; or an incident in which the use of force by a peace officer or custodial officer resulted in death or great bodily injury.loo Additionally, recent legislation has imposed requirements on law enforcement agencies to make available online all current standards, policies, practices, operating procedures, and education and training materials that would otherwise be available to the public if a request was made pursuant to the Public Records Act.1o,
The foregoing is a brief overview of this detailed and complex exemption. Police and code enforcement staff should familiarize themselves with the complete requirements of this Section prior to responding to requests for arrest and complaint information.
(8) Information required from any taxpayer in connection with the collection of local taxes.
Gov't Code § 7925.000.
This exemption applies to information that a city or other local agency requires from any taxpayer in connection with the collection of local taxes if that information is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information. One frequent example of this is the submittal of sales or income information under a business license tax requirement where the city has indicated in its business license tax ordinance that the financial information provided will be kept confidential. If the business license is required by ordinance to list the amount of tax paid and be posted at the place of business, however, the amount of tax paid arguably is not confidential.
(9) Library circulation records.
Gov't Code §7927.100.
While this exemption protects from disclosure library circulation records kept for the purpose of identifying the borrower of items available in libraries, it is not applicable to records of fines imposed on the borrowers. ioo Gov't Code § 7923.625.
101 Penal Code § 13650.
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(10) Records exempt from disclosure under other laws including, but not limited to, the Evidence Code sections relating to privilege.
Gov't Code § 7927.705.
This provision of the Public Records Act exempts from disclosure every document held by a local agency that is legally privileged or confidential under some law outside the Public Records Act. The most common example of this exemption protects documents subject to the attorney -client privilege or the attorney work - product doctrine. It is important to note that neither the Public Records Act nor the Brown Act abrogate those important privileges for communications between a local agency and its legal counsel.102
For example, in Los Angeles County Board of Supervisors v. Superior Court, the Supreme Court ruled that the attorney -client privilege protects the confidentiality of invoices for legal work in pending and active legal matters.103 The Court reasoned that such invoices are so closely related to attorney -client communications that they may reveal legal strategy or consultation. The Court emphasized, however, that the attorney -client privilege does not categorically shield everything in a billing invoice from PRA disclosure.
This case also reaffirms the principle that the Public Records Act does not permit public agencies to withhold an entire document that contains both exempt and nonexempt information. On this point, the Supreme Court ruled that agencies must "use the equivalent of a surgical scalpel to separate those portions of a record subject to disclosure from privileged portions" unless records are not "reasonably segregable."104 Further, the Court stressed that any ambiguity must be construed in "whichever way will further the people's right of access."105 On remand, the Court of Appeal clarified that specific billing entries and descriptions of work contained in attorney invoices are not subject to disclosure under the PRA, whether they related to pending, ongoing or long -concluded legal matters. The Court further found that cumulative fee totals contained in attorney invoices for pending or ongoing legal matters are also protected from disclosure by the attorney -client privilege. And finally, it found that cumulative fee totals for matters concluded long ago may be subject to disclosure only if the cumulative fee totals do not reveal anything about the legal consultation or 102 Roberts v. City of Palmdale, 5 Cal. 4th 363, 377 (1993). 103 Los Angeles County Board of Supervisors v. Superior Court (ACLU of Southern California), 2 Cal. 5th 282 (2016). 104 Id. at 292.
105 Id. (citing Ardon v. City of Los Angeles, 62 Cal. 4th 1176, 1 190 (2016), and Cal. Const., art. I, § 3, subd. (b) (2)).
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provide any insight into legal strategy.106 Whether or not any particular fee total must be disclosed is a factual inquiry for the trial court.107 While a full discussion of attorney -client privilege and attorney work product is outside the scope of this Handbook, it is worth noting that a court may find waiver of the privilege when a city and developer share communications prior to approval of a development project under the California Environmental Quality Act (CEQA). In Citizens for Ceres v. Superior Court, the appellate court held that a city waived those privileges for communications it sent to a developer prior to approval of a development project under CEQA.108 The court held that the "common interest doctrine," which generally allows disclosure of privileged communications to third parties with a common interest in a legal matter, did not apply to prevent the city's waiver.109 As a result, the city was required to include its attorneys' communications with the developer in the administrative record it prepared. In contrast, in another more recent CEQA case, Golden Door Properties, LLC v. Superior Court, the appellate court ruled a common interest existed between a county and developer prior to project approval because the plaintiffs had previously sued both the applicant and the lead agency twice before project approval.110 In light of these differing opinions, local agencies should be cautious in sharing documents and legal opinions prepared by the agency's attorney with a project developer, and recognize that in the event it does share such documents and opinions of its attorneys, in some cases those disclosures may waive the agency's privilege.
In Labor and Workforce Development Agency v. Superior Court, the Court of Appeal extended the protection afforded by Section 7927.705 to documents revealing the deliberative process of an agency, even going so far as to prevent the disclosure of the identities of persons with whom the agency confidentially communicated, and the general subject matter of the communications.,11 Determining which other confidentiality laws are incorporated into the Public Records Act has always been difficult and time-consuming. In 1998, the Legislature attempted to address this problem by enacting a statute that lists most of the exemptions found in other Iaws.112 The list now begins at Government Code Section 7930.005 and continues for more than 20 pages. Although the Public Records Act cautions that this list may not be complete, it is a helpful list. 106 County of Los Angeles v. Superior Court, 12 Cal. App. 5th 1264, 1274 (2 Dist. 2017). 107 Id.
108 Citizens for Ceres v. Superior Court (City of Ceres), 217 Cal. App. 4th 889, 922 (5 Dist. 2013). 109 Id. at 914-921 .
110 Golden Door Properties, LLC v. Superior Court of Son Diego County, 53 Cal. App. 5th 733, 755-756 (4 Dist. 2020), review denied (Nov 10, 2020).
111 Labor & Workforce Dev. Agency v. Superior Court, 19 Cal. App. 5th 12 (3 Dist. 2018). 112 Stats. 1997, c. 620 (S.B. 143- Kopp).
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(11) Personal financial information required of licensees.
Gov't Code § 7925.005.
When a local agency requires that applicants for licenses, certificates, or permits submit personal financial data, that information is confidential. This exemption, however, does not apply to financial information filed by a franchisee to justify a rate increase, presumably because those affected by a rate increase have a right to know its basis.113 The term "license" was narrowly construed by the court in San Gabriel Tribune v. Superior Ct. to exempt financial information of applicants whose business with the agency is only public because they must comply with licensing requirements and regulations. To give effect to the Public Records Act policy that favors disclosure over secrecy in government, the court concluded that a franchisee is akin to a contractual relationship and is not an applicant for a license under Section 7925.005.
(12) Terrorist assessment reports.
Gov't Code § 7929.200.
A document prepared for or by a local agency that assesses its vulnerability to terrorist attacks or other criminal acts intended to disrupt the local agency's operations is exempt from disclosure if the document is prepared for distribution or consideration in a closed session of the local agency. (13) Voter registration information.
Gov't Code § 7924.000.
The home address, telephone number, email address, precinct number, and prior registration information shown on voter registration cards is confidential.
Disclosure of that information is permitted only to candidates and campaigns, and to any person for election, scholarly, journalistic, or political purposes pursuant to Section 2194(a) (3) of the Elections Code. The driver's license number, social security number and signature of the voter shown on the voter registration card are also confidential and cannot be disclosed to any person.114 We believe that this exemption extends to any document that by law must include the information made confidential by this Section, including applications for absentee ballots and returned absentee ballot packages. However, voter registration information identified under Section 7924.000 of the Government 113 San Gabriel Tribune v. Superior Court (City of West Covina), 143 Cal. App. 3d 762, 779-780 (2 Dist. 1983). 114 Elec. Code § 2194(b)(1).
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Code must be made available to the public if the information is at least one hundred years old.115
(14) Utility customer information.
Gov't Code § 7927.410.
The name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies are exempt from disclosure, except in certain circumstances. This information may be disclosed to authorized family members of the person to whom the information pertains or his or her agent, to an officer or employee of another governmental agency when necessary to perform official duties, or upon court order or the request of law enforcement for an ongoing investigation. In addition, the information may be disclosed if the utility customer has used the utility services in a manner inconsistent with applicable local utility usage policies. If the utility customer is a public official with authority to determine utility usage policies, the information may be disclosed except that the home address of an appointed official may not be disclosed without the official's consent. Lastly, the information may be disclosed if the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure .
(15) Unauthorized Internet posting of officials' addresses and telephone numbers.
Gov't Code §§ 7928.205 - 7928.230
The posting of the home address or telephone number of any elected or appointed official on the internet by a local agency without that individual's written permission is prohibited. The definition of "elected or appointed officials" includes, but is not limited to, members of a city council, members of a board of supervisors, mayors, city attorneys, police chiefs, and sheriffs. It is a misdemeanor for any person to post such information with the intent to cause bodily injury to the official, his or her spouse or child. The official may bring an action for damages under certain circumstances. If bodily injury occurs as a result of the posting, then the posting could become a felony.
If a person, business, or association publicly posts on the internet the home address or telephone number of any elected or appointed official, the official may make a written demand to have the information removed. An official may bring an action in court to seek injunctive relief in the event the posting is not > > 5 Elec. Code § 2194.1.
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removed or is posted again during the four years that the written demand is in effect.116
(16) Social Security Numbers.
Gov't Code § 7922.200.
Local agencies must redact social security numbers from records before disclosing them to the public.
(17) Records and Information of the Controller Obtained pursuant to the Unclaimed Property Law.
Gov't Code § 7527.425 and 7925.015
AB 2280 amended the Public Records Act to exempt records and information of the Controller obtained pursuant to the Unclaimed Property Law. This exempts records that the Controller and any third -party auditors obtain as a result of an examination of records pursuant to Section 1571 of the Code of Civil Procedure, other than records of property that should have been reported to the Controller as unclaimed property. It also exempts records related to statements of personal worth or personal financial data, including, but not limited to, wills, trusts, account statements, earnings statements, or other similar records and personal information as defined by Section 1798.3 of the Civil Code,
(18) General public interest exemption.
Gov't Code § 7922.540.
In cases where a specific statutory exemption does not apply, a record still might be exempt from disclosure if:
on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.,17
The numerous cases examining this "balancing test" make it clear that the burden is on the local agency to show that the public interest in confidentiality outweighs the public interest in disclosure. In fact, given the public policy involved, courts demand a demonstration of "clear overbalance" to justify non-disclosure.,18 116 Note, however, that at least one court has indicated that this law may be unconstitutional where applied to prohibit the publication of contact information that is truthful information about a matter of public concern where the information published was lawfully obtained. Publius v. Boyer -Vine, 237 F. Supp. 3d 997, 1016, 1021 (E.D. Cal. 2017). 117 Gov't Code § 7922.000 and 7922.540.
118 City of Hemet, 37 Cal. App. 4th at 1421; see also Black Panther Party, 42 Cal. App. 3d at 657.
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In practice, very few local agencies have been able to convince reviewing courts that the public interest in confidentiality outweighs the interest in disclosure. In the absence of a specific statutory exemption, this "catch-all" distinction rarely has been successfully relied upon to justify nondisclosure. Thus, local agencies must in good faith find a relatively rare "clear overbalance" to justify confidentiality on this ground.119
The right of privacy may provide a basis to shield disclosure of information under Government Code Section 7922.540. For example, relying on the right of privacy, the California Supreme Court ruled that disclosure of raw automated license plate reader data collected by a police department was protected from disclosure under this catch-all exemption.12o The unaltered license plate scan data consisted of the plate number, date, time, and location information of each license plate record.121 The Supreme Court found that the act of revealing the data would jeopardize the privacy of everyone associated with a scanned plate which was a significant threat to privacy because more than one million scans were conducted per week, and on that basis concluded that the public interest in preventing such disclosure "clearly outweighs the public interest served by disclosure of" these records. 122
In a recent case during the COVID-19 pandemic, an appellate court upheld San Diego County's withholding of the specific location of COVID-19 outbreaks from a "confirmed outbreaks spreadsheet" disclosed to news media under the catchall exemption.123 The county provided uncontradicted evidence from the public health officer that disclosing the exact name and address of an outbreak location would have a chilling effect on the public's willingness to cooperate with contact tracing efforts.124 The court ruled that the value of the county's ability to conduct effective contact tracing clearly outweighed the public's interest in obtaining information about the exact outbreak locations, concluding that the evidence did not support the news media's contentions that a member of the public can better avoid COVID-19 infection if he or she knows of the particular locations where outbreaks occurred.125
119 See, e.g., Michaelis, Montanari & Johnson v. Superior Court (City of Los Angeles Dept. of Airports), 38 Cal. 4th 1065 (2006) (holding under "catch-all" exemption that proposals for lease and development of a hangar facility at public airport were exempt from disclosure until City had completed negotiations where negotiations were part of the competitive process).
120 American Civil Liberties Union Foundation v. Superior Court, 3 Cal. 5th 1032, 1043-1044 (2017). 121 Id. at 1043.
122 Id. at 1044.
123 Voice of San Diego v. Superior Court of San Diego County, 66 Cal. App. 5th 669, 672-673 (4 Dist. 2021), review denied (Oct. 27, 2021).
124 Id. at 692-693.
125 Id.
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Two other areas in which a public interest in nondisclosure has been upheld involve public records disclosure that would adversely affect the deliberative process of a local agency, or the personal security of a public official. In Times Mirror Co. v. Superior Court,126 for example, the State's refusal to release the Governor's schedule and appointment calendar out of concern for the Governor's personal safety was upheld. Additionally, the State asserted that the disclosure of appointment calendars and schedules would "chill the flow of information" to the Governor and inhibit the free exchange of ideas in private meetings. The breadth of the request, however, may affect the balancing of interests. The public interest in nondisclosure may be less where the request is carefully focused and confined to a few documents.127
The Governor's office won another Public Records Act case on the "deliberative process privilege" and the exemption for "correspondence of and to the Governor"128 justifications in 1998 when the office refused to disclose applications submitted to the Governor for an appointment to a vacancy on a board of supervisors.129
On the local level, a city's refusal to disclose the telephone records of council members was upheld to protect the same "deliberative process privilege."130 Far more often, however, courts have found the public interest in disclosure outweighs the interest in confidentiality. Similarly, the Attorney General has issued several opinions favoring disclosure. Some illustrative cases and Attorney General opinions in this area include the following:
• Becerra v. Superior Court of City & Cty. of San Francisco (First Amendment Coalition et OQ131
Penal Code Section 832.7 generally requires disclosure of all responsive records in the possession of the Department of Justice, regardless of whether the records pertain to officers employed by the department or by another public agency and regardless of whether the department or another public agency created the records. Government Code Section 7922.540 may apply to records that are subject to disclosure under Penal Code Section 832.7, but while an agency may invoke the exception based on the concern that segregating nonexempt from exempt information would be unduly burdensome, for the exception to apply to withhold responsive records the agency must establish a clear overbalance on 126 Times Mirror Co. v. Superior Court (State of California), 53 Cal. 3d 1325 (1991). 127 Id. at 1344-46.
128 Gov't Code § 7928.000.
129 California First Amendment Coalition v. Superior Court (Wilson), 67 Cal. App. 4th 159 (3 Dist. 1998); see also Wilson v.
Superior Court (Los Angeles Times), 51 Cal. App. 4th 1 136 (2 Dist. 1997), as modified. 130 Rogers v. Superior Court (City of Burbank), 19 Cal. App. 4th 469 (2 Dist. 1993). 131 44 Cal. App. 5th 897 (1 Dist. 2020).
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the side of confidentiality. The Department of Justice failed to make such a sufficient showing, despite arguing they faced an "`onerous burden of reviewing, redacting, and disclosing records regarding other agencies' officers, which involves `potentially millions of records"' to disclose records under Penal Code Section 832.7.
• Connell v. Superior Court (Intersource, Inc.)132
Records relating to unpaid state warrants are public records and must be disclosed. The public interest in disclosure outweighs the public interest in preventing possible fraud that could be assisted through the release of too much information about the State's warrant system. The fact that the request was made solely for commercial purposes and profit did not affect the balancing test.133 • Copley Press, Inc. v. Superior Court (M.P.R. - a minor)134 As a matter of law, no compelling reason exists to seal the court records of a settlement reached between the insurer for a school district and a minor student who was sexually assaulted at school. The amount of settlement is a matter of public record.
• CBS, Inc. v. B/ock135
The possibility that public disclosure of applications for concealed weapons permits would discourage the filing of new applications, or that such disclosure might increase applicants' vulnerability to attack, did not justify nondisclosure. • Braun v. City of Taft (Polston)136
A City's nondisclosure of personnel records and letters appointing an employee and then rescinding the appointment was not justified by the theory that future applicants would not be candid if they knew personal information would be made public.
132 56 Cal. App. 4th 601 (3 Dist. 1997).
133 Government Code section 7921.300 states that the Public Records Act "does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure." 134 63 Cal. App. 4th 367 (4 Dist. 1998).
135 42 Cal. 3d 646 (1986).
136 154 Cal. App. 3d 332 (5 Dist. 1984).
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• Humane Society of U.S. v. Superior Court
(The Regents of the University of California)137
A public university's nondisclosure of certain information relating to an academic study was justified because the interest in protecting the academic research process outweighed the interest in public disclosure. Disclosure would "fundamentally impair" the academic research process and the public would suffer because the "`quantity and quality' of ... academic research on important issues of public interest would be adversely affected."138 • Los Angeles Unified School District v. Superior Court (Los Angeles Times) 139
A school district's decision to redact the names of teachers in a statistical model measuring each teacher's effect on students' standardized test scores was proper because the detrimental interference with the district's ability to function properly clearly outweighed the interest in public disclosure. The scores had already been released to the public categorized by school, grade, subject, and demographics; to require additional disclosure would sow discord among parents and teachers.
• Long Beach Police Officers Assn. v. City of Long Beach (Los Angeles Times) 140
In a request by a newspaper for the names of peace officers involved in a fatal shooting, the California Supreme Court held that vague safety concerns - which apply equally to all officers involved in shootings that result in severe injury or death - were outweighed by the public's interest in such incidents.141 The California Supreme Court held that in order for names of peace officers involved in such incidents to be exempt from disclosure, there must be a particularized showing of safety concerns regarding those officers.
• 90 Ops. Cal. Atty Gen. 40 (2007)
County recorder's accounting records that include a payment receipt showing the documentary transfer tax amount is subject to inspection under the Public Records Act. While the statutory scheme allows the documentary transfer tax to appear on a separate paper rather than on the recorded property conveyance 137 214 Cal. App. 4th 1233 (3 Dist. 2013).
138 Id. at 1263.
139 228 Cal. App. 4th 222 (2 Dist. 2014).
140 59 Cal. 4th 59 (2014).
141 Since the Long Beach decision, amendments to Penal Code Section 832.7 require that peace officer records relating to an incident involving the discharge of a firearm at a person by a peace officer or custodial officer or an incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury must be made available to the public under the Public Records Act.
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document, that procedure provides only limited privacy protection for property owners and does not make the documentary transfer tax amount confidential. • 81 Ops. Cal. Atty Gen. 383 (1998)
Claims for senior citizens' exemptions from assessment of a parcel tax levied by a school district are subject to inspection by members of the general public. The concern that the residents' privacy would be compromised by solicitors targeting senior citizens was insufficient to overcome the public interest in disclosure.
X. WHAT IS THE PROPER PROCEDURE FOR COMPLYING WITH A PUBLIC RECORDS ACT REQUEST?
The following is a brief outline of the proper response procedure, as required by Government Code Sections 7922.525 et seq.
A. The agency has ten calendar days to determine whether to grant the request. Grounds for refusing a request include:
• The request does not seek records which are "reasonably segregable" from records which are exempt from disclosure;142 • The request does not reasonably describe an identifiable record;143 • The request would require the agency to create new records not currently in existence; or144
• The request seeks records which are exempt from disclosure.145 Note, however, that the Public Records Act requires the disclosure of "reasonably segregable" portions of records. This means that if portions of a record are exempt and other parts of the same record are not, the non-exempt portions of the document must be disclosed.146
142 Gov't Code § 7922.525.
143 Gov't Code § 7922.530(a).
144 Based upon the definition of "writing," Gov't Code § 7920.545, and the requirement that a requested record be "identifiable," Gov't Code § 7922.530(a). See note 22.
145 Gov't Code § 7922.530(a).
146 Gov't Code § 7922.525.
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B. In "unusual circumstances" the agency may take up to an additional 14 calendar days to make the determination whether to grant the request. "Unusual circumstances" must be one of the following:
• The need to search for and collect the requested records from field facilities or other locations separate from the office processing the request;147
• The need to search for, collect, and examine a voluminous amount of separate and distinct records demanded in a single requesl;148 • The need for consultation with another agency having a substantial interest in the request or among two or more components of the agency having an interest in the subject matter of the requesl;149 or • The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.l5o
If the agency intends to use this additional time to respond, the agency must provide written notification to the requester that the additional time is required, the reason for the delay, and the date on which a determination will be given.151 C. When the agency has made a determination, the requester must be promptly notified of the agency's determination. This notification should be in writing and should include the following information:
• Whether the request is being granted or denied;152
• If the request is being granted, the estimated date and time when the records will be made available (or where the records are located on the agency's website);153
147 Gov't Code § 7922.535(c) (1).
148 Gov't Code § 7922.535(c) (2).
149 Gov't Code § 7922.535(c) (3).
150 Gov't Code § 7922.535(c) (4).
151 Gov't Code § 7922.535(b).
152 Gov't Code § 7922.535(a).
153 Gov't Code § 7922.535(a).
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• If the request was made in writing and is being denied, in whole or in part, the response must be in writing and include the extent and the reasons for the denial;154
• The name and title or position of the person responsible for the denial;155
• The cost or an estimate of the cost of copying the records, if a copy is requested, and a request for pre -payment. Note that this is only the direct cost of duplication, or a statutory fee, if applicable, and does not include staff time to research, retrieve, or compile the records.156 However, if the document requested is in electronic form, the agency may charge the full cost of reproducing the document when the record is one that is produced only at otherwise regularly scheduled intervals, or the request would require data compilation, extraction, or programming to produce the record.157
• The option to inspect the requested records at a mutually convenient time during office hours.158
• A requester who inspects a disclosable record on the agency's premises has the right to use their own equipment on those premises, within reasonable limits necessary to protect the safety of the records or to prevent unnecessary burden on the orderly function of the agency and its employees, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record.159
• If in response to a public records request the agency directs a member of the public to the location of that public record on its website, the agency must still promptly provide a copy of the record itself if the member of the public requests a copy due to his or her inability to access or reproduce the public record from the website.160 154 Gov't Code §§ 7922.540, 7922.535.
155 Gov't Code §7922.540(b).
156 Gov't Code § 7922.530(a); North County Parents Organization v. Dep't of Education, 23 Cal. App. 4th 144 (4 Dist. 1994). 157 Gov't Code § 7922.575 ; see also Nat'I Lawyers Guild v. City of Hayward, 9 Cal. 5th 488 (2020) (finding that retrieving and editing raw video footage in response to a public records request does not qualify as "data extraction" within the meaning of the Public Records Act and therefore public agencies may not recover their costs for that process). 158 Gov't Code § 7922.525.
159 Gov't Code §7922.530(c). However, Health and Safety Code Section 19851 provides separate procedures for obtaining duplicates of official copies of building plans. 160 Gov't Code §7922.545.
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D. In addition to the above requirements, if the local agency determines that the request should be denied and the reason for the denial is not solely because of a statutory exemption, the agency must also:
• Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated;161
• Describe the information technology and physical location in which the records exist;162
• Provide suggestions for overcoming any practical basis for denying access to the records or the information sought.163
Alternatively, a local agency may forego these requirements if it instead makes available an index of the record.164
E. Upon payment of the cost of duplication, the agency must make the records "promptly available."165
F. Please note that the agency may not use this procedure to "delay or obstruct the inspection or copying" of public records.166 G. The local agency may provide guidelines for "faster, more efficient, or greater" access to records than provided by the Act.167 XI. WHAT ARE THE PENALTIES FOR FAILURE TO COMPLY WITH THE PUBLIC RECORDS ACT?
Unlike other open government laws, the Public Records Act does not criminally penalize a local agency for its failure to comply with the Act. Nor does it subject a local agency to money damages for a violation.168 However, if a person requesting public records believes records have been improperly withheld, he or 161 Gov't Code § 7922.600.
162 Gov't Code § 7922.600.
163 Gov't Code § 7922.600.
164 Gov't Code § 7922.605.
165 Gov't Code § 7922.530(a).
166 Gov't Code § 7922.500.
167 Gov't Code § 7922.505.
168 County of Santa Clara v. Superior Court (Naymark), 171 Cal. App. 4th 119, 130 (6 Dist. 2009).
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she may ask a court to compel a local agency to disclose the records.169 Any person who prevails in enforcing his or her rights under the Act in court is entitled to receive court costs and reasonable attorneys' fees.170 Courts have deemed a person to be the "prevailing party" for purposes of awarding costs and fees if filing of the lawsuit motivated the local agency to produce any documents.171 The production of just one document can be sufficient to trigger an award of costs and fees.172 In the past, where the court determined the litigation was not what ultimately motivated the release of records, costs and fees were denied.173 One court held that an award of attorneys' fees was appropriate even though no additional records were produced as a result of the lawsuit.174 The local agency in that case had repeatedly refused to accept a requester's oral request to inspect public records and forced the requester to make her request in writing, constituting a general denial of access to all public records and justifying an award of attorneys' fees under the circumstances.
XII. CONCLUSION
This Handbook provides a brief overview of some of the most important provisions of the Public Records Act that frequently arise for local government agencies.
There are, however, many other provisions not covered by the scope of this Handbook. Additionally, each factual situation contains nuances specific to the particular situation that may impact the analysis. Because it is important to comply with the Public Records Act within a relatively short time frame, it is critical to seek the advice of counsel if there is any question as to the appropriate course of action.
169 Gov't Code §§ 7923.000 and 7923.005; see also Stevenson v. City of Sacramento, 55 Cal. App. 5th 545 (3 Dist. 2020) (appellant seeking injunctive relief under Gov't Code § 6258 [now §§ 7923.000 and 7923.005] may be required to post a bond pursuant to Cal. Civ. Code § 529 prior to the court issuing a preliminary injunction on appellant's behalf). 170 Gov't Code §7923.115.
171 Los Angeles Times v. Alameda Corridor Transportation Authority, 88 Cal. App. 4th 1381, 1391 (2 Dist. 2001); Rogers v.
Superior Court, 19 Cal App. 4th 469, 482 (2 Dist. 1993); Nat'l Conference of Black Mayors v. Chico Cmty. Publ'g, Inc., 25 Cal.
App. 5th 570 (3 Dist. 2018) (newspaper that fought third party effort to prevent disclosure of public records sought by the newspaper was not entitled to attorneys' fees under the Public Records Act because newspaper did not bring an action against the City to compel disclosure under the Act).
172 Los Angeles Times, 88 Cal. App. 4th at 1392.
173 Id. at 1391; Crews v. Willows Unified School District, 217 Cal. App. 4th 1368, 1381-82 (3 Dist. 2013). 174 Galbiso v. Orosi Public Utility District, 167 Cal. App. 4th 1063, 1086-1089 (5 Dist. 2008).
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ELECTRONIC RECORDS
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ELECTRONIC RECORDS
Advances in computer technology have significantly altered the method of communication with and between public officials and employees, but these technological developments have outpaced public records legislation. Email, electronic documents created on word processors, and web pages (including social media pages) do not readily fit into the categories of disclosure under decades -old laws.
The courts have had to fit the round peg of electronic documents into the square hole of state law on several occasions. In Aguimatang v. California State Lottery, the Court of Appeal rejected a defendant's argument that the plaintiff's computer records "were not made at or near the time of the event" and therefore did not qualify as an admissible "writing" under the evidentiary rules for business records.15 The records were recorded on magnetic tape on the day the events of the case took place, but were not printed out until twenty-two months later. The court concluded that the magnetic tape, not just the printout, constituted a "writing" under the Evidence Code:
Chanquin cites no authority holding that the retrieval, rather than the entry, of computer data must be made at or near the time of the event. Thus, although to qualify as a business record the "writing" must be made at or near the time of the event, "writing" is not limited to the commonly understood forms of writing but is defined very broadly to include all "means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof." Evid.
Code § 250. Here, the "writing" is the magnetic tape. The data entries on the magnetic tapes are made contemporaneously with the Lotto transactions, hence qualify as business records. The computer printout does not violate the best evidence rule, because a computer printout is considered an "original." Evid. Code § 255.16 Similarly, in People v. Martinez, the California Supreme Court held that records from a state computer system of a defendant's prior criminal convictions were admissible as "official records" under the Evidence Code.177 In an attempt to catch up, in 2002 the Legislature enacted Assembly Bill 1962 ("AB 1962"), modifying the definition of "writing" under the Public Records Act and the Evidence Code to include "photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any 15 Aguimatang v. California State Lottery, 234 Cal. App. 3d 769 (3 Dist. 1991). 176 Id. at 798.
177 People v. Martinez, 22 Cal. 4th 106 (2000).
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tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof," and clarifying that the definition applied "regardless of the manner in which the record has been stored." 178
The legislative reports for AB 1962 cited to Aquimatang and Martinez to establish that the amendment was declaratory of existing law. The reports also observed that in an earlier case, a court of appeal stated that the definition of writing in the Public Records Act was "intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record -keeping instrument as it is developed." 19 Under the 2002 legislation, emails and other electronic documents are records subject to disclosure and present their own unique issues for local governments.
In 2009, the State Legislature enacted rules relating to the discovery of electronically stored information, similar to the rules enacted by the Federal Government in 2006. In 2006, the Federal Rules of Civil Procedure were revised to require parties in federal lawsuits to address the production and preservation of electronic records.180 Under the 2006 Rules, a public entity should have an electronic retention practice and policy that ensures that electronic documents relevant to federal litigation are appropriately preserved. Rule 37 of the Federal Rules of Civil Procedure authorizes federal courts to impose sanctions on parties and their attorneys who fail to comply with discovery obligations and court orders.
City websites, in turn, raise questions about public rights of access. Websites are an important means of providing residents with access to information. An improperly framed policy on website use, however, could result in violations of the Brown Act, infringe upon residents' First Amendment rights, and even violate disability access laws. Consequently, it is important to establish clear policies governing website design and use.
This Part Two on Electronic Records will begin by discussing the types of email that are public records, and what exemptions under the Public Records Act might justify nondisclosure. Other unique issues raised by the use of email are also explored, such as emails sent or received by public officials and employees on nongovernmental accounts, email threads and the potential risk of using email to create an unlawful serial meeting under the Brown Act. We then look at the Public Records Act requirements for disclosure of other types of electronic records, including Geographic Information Systems.
178 Stats. 2002, c. 945 (A.B. 1962—Hollingsworth) (amending Gov't Code § 6252 and Evid. Code § 250). 179 Assembly Committee on Judiciary, Report on AB 1962, May 14, 2002 (citing San Gabriel Tribune v. Superior Court (City of West Covina), 143 Cal. App. 3d 762, 774 (1 Dist. 1983)). 180 Fed. R. Civ. P. 26.
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The discussion then turns to other concerns raised by electronic records, including litigation discovery and metadata. We close with a discussion of city websites, including some of the legal issues that a public entity should consider when establishing and running a website.
I. EMAIL
Given that email can be a public record under Government Code Section 7920.545, in most circumstances a public entity is under an obligation to disclose email upon request. However, there are a number of complications, and despite AB 1962's attempt to respond to the changed method of communication, the bill provided nothing in the way of specifics.