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© 2006 California Special Districts Association Open, Ethical Leadership: AB 1234 Compliance Training for Special Districts A CSDA Alliance Program Developed in collaboration with the law firms Best Best & Krieger Colantuono & Levin Liebert Cassidy Whitmore Meyers Nave
© 2006 California Special Districts Association Welcome Conflict of Interest Political Reform Act Constitutional Issues Transparency Laws Competitive Bidding Requirements Fair Decision Making and Processes
© 2006 California Special Districts Association Conflict of Interest Six Basic Sets of Conflicts of Interest Law for Public Officials 1.Section Political Reform Act 3. Common Law Bias / Due Process Requirements 4.Nepotism 5.Incompatible offices 6. Gov. Code 1126
© 2006 California Special Districts Association Government Code 1090 Public officials “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.” Remote Interests Non-Interests
© 2006 California Special Districts Association Five Components of a Conflict of Interest under PRA Decision Economic Interest Reasonably Foreseeable Material Effect Distinguishable From its Effect on “Public Generally” All components must be present before a conflict of interest exists
© 2006 California Special Districts Association Economic Interests Business Interests Real Property Interests Income Interests Gift Interests Personal Finances
© 2006 California Special Districts Association Contributions are not “income” or “gifts under Political Reform Act But, Gov. Code (appointees) Prohibition Disclosure Disqualification Conflicts of Interest and Campaign Contributions
© 2006 California Special Districts Association Loans of $250 or more from persons contracting with the public agency. Exception: Specified commercial loans made to officials in the ordinary course of business on the same terms as other members of the public. Elected official may not accept personal loans of $500 or more, unless the contract is in writing and the officer complies with specified requirements. Conflicts of Interest and Personal Loan Restrictions
© 2006 California Special Districts Association Gov. Code § (effect. July 1, 2006) Prohibits certain local officials from appearing before their former agency for 1 year. Gov. Code § Prohibits local public officials from participating in decisions involving prospective employers. Conflicts of Interest When Leaving Office
© 2006 California Special Districts Association Conflict of Interest How to Obtain Advice
© 2006 California Special Districts Association Violations/Fines of the PRA
© 2006 California Special Districts Association Common Law Bias/Due Process Public officials cannot use their official position for private benefit. Due process in an administrative hearing demands an appearance of fairness and the absence of even a probability of outside influence on the adjudication. Doesn’t preclude holding opinions; just participation by someone with a closed mind as to a quasi-judicial decision.
© 2006 California Special Districts Association Nepotism No specific laws concerning nepotism. May be affected by “income” interest under Political Reform Act or definition of “family” under Political Reform Act. Local agency may draft anti-nepotism policy.
© 2006 California Special Districts Association Incompatible Offices Based on the theory that “One cannot serve two masters.” Exists if any significant clash of duties exists between the offices, if the dual holdings would be improper because of public policy, or if one officer exercises supervisory, auditory or removal power over the other.
© 2006 California Special Districts Association Government Code 1126 “[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.” Agency must provide policy.
© 2006 California Special Districts Association Political Reform Act Issues Statements of Economic Interest (Form 700s) Gifts Travel Payments Honoraria Mass Mailing
© 2006 California Special Districts Association Statement of Economic Interest All local agencies must adopt conflict of interest codes. An agency’s conflict of interest code may require the filing of a Form 700.
© 2006 California Special Districts Association Form 700s (Cont’d) Must be filed upon taking office, leaving office, and on an annual basis Require disclosure of personal financial interests Alert public officials to personal interests that might be affected. Help inform the public about potential conflicts of interest
© 2006 California Special Districts Association Gift Restrictions No local elected office holder, candidate for local elected office, or designated employee of a local agency may accept any gift or gifts from a single source aggregating in excess of $360 Gifts aggregating $50 or more must be disclosed on a Form 700
© 2006 California Special Districts Association Gift Restrictions (Cont’d) What is a gift? When is a gift accepted?
© 2006 California Special Districts Association Exceptions to Gift Restrictions Many exceptions to gift restrictions exist, for example: Gifts returned or donated to charity (without claiming a deduction) Gifts from family members Informational material (books, papers) Birthday presents of equal value An inheritance
© 2006 California Special Districts Association Honorariums No local elected office holder, candidate for local elected office, or designated employee may accept any honorarium.
© 2006 California Special Districts Association Honorariums “Honorarium” means a payment in consideration for a speech given, article published, or attendance at any public or private conference, meeting or like gathering.
© 2006 California Special Districts Association Gifts of Travel Certain travel payments may be subject to gift limit restrictions and/or may be reportable. Travel payments include payments, advances, or reimbursements for travel, including actual transportation as well as related lodging and subsistence.
© 2006 California Special Districts Association Mass Mailing Restrictions Items prepared or mailed at public expense may not: Feature an elected officer affiliated with the agency; or Include the name, photograph, or other reference to an elected officer if the item is prepared in coordination with the elected officer.
© 2006 California Special Districts Association Article XII, section 7: 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.
© 2006 California Special Districts Association What are the Elements of the Ban? This ban is violated when a transportation company makes a gift of transportation or discounts the price of transportation to a public officer. The ban applies to public officers, both elected and non-elected but does not apply to employees. The ban applies to interstate and foreign carriers, as well as domestic carriers, and to transportation received outside of California.
© 2006 California Special Districts Association What are the Elements of the Ban? The ban applies regardless of whether the pass or discount was provided in connection with personal or public business. Violation of the ban is punishable by forfeiture of office.
© 2006 California Special Districts Association The Ban also applies to: Applies to intrastate and interstate carriers. Applies even if the carrier does not do business in California. Applies to both business and personal travel.
© 2006 California Special Districts Association Points to Remember The Prohibition on free transportation: Applies to passes or discounts from transportation companies. Applies only to officers; not employees. Covers both personal and business use. Covers inter and intrastate transportation companies.
© 2006 California Special Districts Association Gifts of Public Funds All expenditures of public funds must be for a public purpose. - Cal. Const. Art. XVI. Section 6
© 2006 California Special Districts Association Tests for Gifts of Public Funds Does the expenditure serve the public interest?
© 2006 California Special Districts Association Extra Compensation Extra compensation paid to employees after services have already been rendered is generally prohibited. -Cal.Const. Art. XI, section 10(a)
© 2006 California Special Districts Association Exception to Prohibition on Extra Compensation When retroactive compensation is paid to employees pursuant to terms of newly negotiated MOU covering the period for which retroactive compensation is being paid
© 2006 California Special Districts Association Public Records Acts (PRA) Purpose of the PRA “In enacting this chapter, 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.”
© 2006 California Special Districts Association What is a “Record”? “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.” Employment contracts specifically included
© 2006 California Special Districts Association What do you have to do with records? Make them available for public inspection during business hours Provide copies at cost Preserve for period specified by policy (at least 2 years for cities) Obtain approval for destruction if required by policy (City Council and City Attorney approval required for city records.)
© 2006 California Special Districts Association Exemptions from Duty to Disclose “preliminary drafts, notes or memoranda … not retained … in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.” Pending litigation “personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”
© 2006 California Special Districts Association More Exceptions to Disclose Records of criminal investigations Real estate appraisals Taxpayer data received in confidence Library circulation records ( cf. Patriot Act) Records protected by legal privilege (attorney client, work product, etc.) Security assessments Utility ratepayer information
© 2006 California Special Districts Association Home Address & Phone of Public Officials “No state or local agency shall post the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual”
© 2006 California Special Districts Association Home Address & Phone of Public Officials (Cont’d) “No person shall knowingly post the home address or telephone of any elected or appointed official, or of the official’s residing spouse or child on the Internet knowing that person is an elected or appointed official and intending to cause imminent great bodily harm that is likely to occur...”
© 2006 California Special Districts Association Public Records Requests Records open to inspection during business hours Must redact confidential portions so balance can be made available Make records “promptly” available upon payment of copying cost if record is “reasonably identifiable.” Respond w/in 10 days of request unless “unusual circumstances” justify up to 14 more days
© 2006 California Special Districts Association Duty to Assist Requesters Assist requester to identify records responsive to request Describe the medium and location in which records exist Provide suggestions to overcome “any practical basis for denying access.” Alternatively, agency can provide an index of its records
© 2006 California Special Districts Association Electronic Records Must make electronic records available in electronic format In any format used by the agency In any format in which agency holds it May recover only direct cost of duplication Requester pays hardware and software costs for unusual formats No duty to compromise computer system security
© 2006 California Special Districts Association The “general balancing” Exception “The agency shall justify withholding any record by demonstrating [it] is exempt under express provisions of this chapter or that … the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure….”
© 2006 California Special Districts Association Remedies Requesters can sue to challenge denial Agency has no right of appeal; review is by discretionary writ Agency pays legal fees on loss Agency wins fees only if suit is “clearly frivolous”
© 2006 California Special Districts Association Purpose of the Brown Act “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 provided in this chapter.”
© 2006 California Special Districts Association Legislative Body Board of Directors Any committee created by formal action of the Board of Directors (ordinance, resolution, minute action) Any committee created by a committee Standing Committees
© 2006 California Special Districts Association What’s a Meeting? “any congregation of a majority of the members of a legislative body at the same time and place, to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.”
© 2006 California Special Districts Association More on definition of “meeting” “any use of direct communication, personal intermediaries, or technological devices employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body”
© 2006 California Special Districts Association Lawful Meetings Post an Agenda 72 or 24 Hours in Advance Discuss only agendized matters Allow for public comments
© 2006 California Special Districts Association Exceptions to the Scope of the Meeting Definition Individual Contacts Conferences Community Meetings Meetings of another Legislative Body Social or Ceremonial Occasions
© 2006 California Special Districts Association Serial Meetings Daisy Chain Hub and Spoke Serial Briefings
© 2006 California Special Districts Association Public Comment Every agenda must allow comment on items on the agenda prior to action Regular agendas must allow comment on items not on the agenda but within agency’s jurisdiction (“Public Input”)
© 2006 California Special Districts Association Discussion of Off-Agenda Items “Briefly respond” to comments or questions or to report on individual activities Agendize for subsequent discussion Emergencies (floods, fires, strikes) Subsequent Need (4/5 vote)
© 2006 California Special Districts Association Closed Sessions Limited topics, typically limited to Board Specified agenda format and “reporting out” requirements Don’t go into closed session without legal assistance Don’t disclose closed session confidences
© 2006 California Special Districts Association Enforcement Court of Public Opinion Written notice and opportunity to cure Civil Action Criminal Action
© 2006 California Special Districts Association Conclusion Complicated Details, but Simple General Rule Do the Public’s Business in Public Give the Public notice and an opportunity to participate When in doubt, ask for help
© 2006 California Special Districts Association Competitive Bidding Requirements The State Contract Act requires: If the estimated total cost of any construction project or work carried out under this section exceeds twenty-five thousand dollars ($25,000), the district or agency shall solicit bids in writing and shall award the work to the lowest responsible bidder or reject all bids… Public Contract Code § 10108
© 2006 California Special Districts Association Competitive Bidding Requirements Warning: Before engaging in any contracting activity on the part of a public entity, research and confirm the applicability of all governing regulations.
© 2006 California Special Districts Association Competitive Bidding Requirements Violations of Competitive Bidding Laws: Contact is void and illegal; Contract cannot subsequently be ratified; and Contractor has no right to reimbursement for service or materials furnished, even if they were rendered in compliance with contract requirements.
© 2006 California Special Districts Association Due Processes Constitutional guarantee that citizens may not be deprived of: Life Liberty Property Without “due process.”
© 2006 California Special Districts Association Due Processes Requires: Notice of the intended action; Opportunity to prepare; Opportunity to be heard; and Fair and impartial hearing.
© 2006 California Special Districts Association Questions & Answers
© 2006 California Special Districts Association Thank You California Special Districts Association would like to thank Colantuono & Levin, PC
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