1. COUNTY COUNSEL Brown Act Public Records Act Conflicts of Interest Ethics Public Records Act – Ethics – Conflicts of Interest

2. BROWN ACT

3. California’s open meeting law: Government Code sections 54950-54963. WHAT IS THE BROWN ACT?

4. PURPOSE OF THE BROWN ACT Generally, all meetings of the legislative body of a local agency are open and public, and all persons must be permitted to attend any meeting of the legislative body of a local agency.

5. WHO MUST COMPLY? Legislative Bodies  Governing body of a local agency  Advisory committees (with exceptions)  Citizen volunteer groups, committees/commissions, task forces, etc. created by formal action of the governing body  Standing committees of legislative body with either (a) continuing subject matter jurisdiction or (b) a fixed schedule set by formal action of the legislative body  Multi-member body that governs a private corporation that is created by legislative body to exercise delegable authority; or receives public funds and includes a full voting member of the legislative body.

6. Ad Hoc or Standing? Temporary Advisory Committee: Temporary Composed of less than a Board quorum Limited or single purpose not perpetual Dissolved once the specific task is completed Everything else is Standing and subject to Brown Act

7. Private Organizations The local chamber of commerce is funded in part by the city. The mayor sits on the chamber’s board of directors. Is the chamber board a legislative body subject to the Brown Act?

8. Maybe If the chamber’s governing documents require the mayor to be on the board and the city council appoints the mayor to that position, it is. If the chamber board independently appoints the mayor to its board, or the mayor attends chamber board meetings in a purely advisory capacity, it is not.

9. WHEN DOES THE BROWN ACT APPLY? MEETINGS! Congregation of a majority of the members of a legislative body: Same time and place, To hear, discuss or deliberate, Agency business. Meetings are not limited to gatherings at which action is taken but also include deliberative gatherings. Meetings require a quorum to get started and stay in business.

10. WHEN DOES THE BROWN ACT NOT APPLY? Other legislative bodies (e.g., members of BOS attending meeting of planning commission.) Conferences open to the public (e.g. annual association conferences.) Social/ceremonial events (e.g. football games, wedding, retirement party, etc.) BUT…. DON’T DISCUSS AGENCY BUSINESS!

11. For example…. The BOS establishes a standing committee of two of its five members which meets monthly. A third member of the legislative body wants to attend these meetings and participate. May she?

12. She may attend, but only as an observer; she may not participate.

13. Another example…. The entire BOS intends to testify against a bill before the Senate. Must this activity be noticed as a meeting of the BOS?

14. No, because the members are attending and participating in an open meeting of another governmental body which the public may attend. But …what if they go upstairs to the office of the local assembly member to discuss issues of local interest? – Yes, this is a meeting requiring public notice.

15. Serial Meetings The Brown Act expressly prohibits serial meetings that are conducted through direct communications, personal intermediaries or technological devices, such as e-mail, for the purpose of discussing, deliberating or taking action on any item of business.

16. Serial Meeting = series of communications, each of which involves less than a quorum of the legislative body, but when taken as a whole, involve a majority of the body’s members. Serial Meeting Not Allowed

17. For example…. 5 Member Body Member A talks to Member B, who then talks to Member C about the same topic.

18. Or…. 5 Member Body Member A talks to Member B And then Member A talks to Member C about the same topic

19. Serial Meetings The prohibited communications are those used to develop a concurrence as to the action to be taken, such as: –Substantive conversations among members concerning an agenda item prior to a public meeting. –Conversations which advance or clarify a member’s understanding of an issue, or facilitate an agreement or compromise among members.

20. For example…. The agency’s website includes a chat room or blog where agency employees and officials participate anonymously and often discuss issues of local agency business. Members of the BOS participate regularly. Violation?

21. Yes – this involves a technological device that allows for discussion, deliberation and the development of a collective concurrence as to action to be taken. Be careful!

22. Informal Gatherings Informal gatherings are meetings subject to the Brown Act if issues under the subject matter jurisdiction of the body are discussed or decided by the members of the body.

23. TYPES OF MEETINGS There are three types of meetings: –Regular, –Special, and –Emergency. A meeting that is held at a time or place other than that specified in ordinance, resolution or bylaws, is either a special or emergency meeting.

24. TYPES OF MEETINGS Regular Must set at regular time and place by formal action (e.g., ordinance, resolution, bylaws, etc.) and 72 hours notice is required.

25. TYPES OF MEETINGS Special Presiding officer or a majority may call a special meeting. Requires 24 hours posted notice and written notice to each member and to media outlets that have requested notice. Notice must state time and place of meeting and all business to be discussed. Business is limited to subjects listed on agenda.

26. TYPES OF MEETINGS Emergency May be called when prompt action is needed (e.g., work stoppage, crippling disaster, or other activity that severely impairs public health or safety. Emergency meetings are very rare. One-hour telephone notice to media outlets that have requested notice in writing. Notice must provide time, place and business to be transacted at the meeting. Business is limited to subjects listed on agenda.

27. Agenda Except emergency meetings, all meetings must have an agenda posted in advance (Regular – 72 hours, Special – 24 hours). Open and public All persons must be permitted to attend, no secret ballots. No conditions on attendance May not require to sign-in, cannot charge for attendance. REQUIREMENTS FOR MEETINGS

28. AGENDAS Must post in a location “freely accessible to members of the public” 24/7. Must state time and place of meeting and a “brief general description of each item of business to be transacted or discussed, including items to be discussed in closed session.” People should have enough information to decide whether they want to attend. Rule of thumb = 20 words is sufficient.

29. AGENDAS Must include language regarding how an individual with a disability may access the meeting and related materials. Must include the address where non- confidential materials given to board members less than 72 hours prior to a regular meeting may be obtained.

30. No action can be taken… except Majority decides there is an emergency situation pursuant to Government Code section 54956.5. 2/3 vote of the members present (or by unanimous vote of all members present if less than 2/3 of the body are present) that immediate action is needed and the need came to board’s attention after agenda was posted at regular meetings only. (Gov. Code 54954.2) WHAT ABOUT ITEMS NOT ON THE AGENDA

31. LOCATION OF MEETINGS All meetings must be held within the area over which the board has jurisdiction.

32. RIGHTS OF THE PUBLIC May address Board: Matters on the agenda Before or during consideration of the item, public must be given an opportunity to comment on the item. When a member of the public raises an issue that is not on the agenda, the item may be briefly responded to, NO ACTION! Reasonable time limitations and other regulations are permitted (be consistent).

33. Responding to the Public Refer speaker to staff. Refer speaker to appropriate reference material. Request staff to report back at a future meeting. Direct staff to place the matter on a future agenda.

34. For example…. During public comment, a resident raises a complaint about the repaving project on Main Street. BOS 1: I would like staff to respond – are there any problems with this project? BOS 2: The PW directors has prepared a 45-minute PowerPoint presentation for you on the status of the project and will give it right now. BOS 3: Take all the time you need; we need to get to the bottom of this.

35. And the winner is... BOS #1, but only if the staff response is brief. If an extended discussion ensues, the item must be noticed on a future agenda item for full review.

36. Closed Sessions

37. CLOSED SESSIONS Closed session meetings are specifically defined and limited in scope. If there is no specific statutory authority for the closed session, the meeting must be conducted in public. Not enough that it is sensitive, embarrassing or controversial. Meeting is either open or closed. Cannot invite selected members of public. Primarily involve personnel issues, pending litigation, labor negotiations, or real property transactions. Generally used to avoid revealing confidential information that would prejudice legal or negotiating position of the body or compromise privacy interest of employee.

38. CLOSED SESSIONS – AGENDAS AND REPORTS Legal authority for closed session must be on the posted agenda with the same kind of brief description (cite Brown Act code section). Must make public announcement prior to closed session discussion (can just refer to agenda item).

39. CLOSED SESSIONS – AGENDAS AND REPORTS If final action is taken in closed session, must report out on certain actions taken and the vote of each member present. Required content specified in Government Code section 54957.1. A person may not disclose confidential information that has been acquired by attending a closed session to a person not entitled to receive it, unless the disclosure is authorized by the body.

40. Penalties & Remedies Penalties and Remedies provided by the Legislature to combat violations of the Act include: –Criminal penalties. –Civil injunctive relief. –Award of attorney’s fees. –Actions taken in violation of Brown Act may be declared null and void by a court.

41. Penalties & Remedies It is a misdemeanor for a Board member to attend a meeting where action is taken in violation of the Brown Act and the member intends to deprive the public of information to which the Board member knows or has reason to know the public is entitled. Misdemeanor is punishable by imprisonment in county jail and/or fine not to exceed $1,000.

42. PUBLIC RECORDS ACT

43. Public Records Act “[T]he people have a right of access to information concerning the conduct of the people’s business, therefore…the writing of public officials and agencies shall be open to public scrutiny.” California Constitution Article 1, Section 3 The Public Records Act implements this policy. (Government Code 6250 et seq.)

44. General rule: agendas, minutes & writings distributed at board meetings are public records. SB 343 (Effective July 1, 2008) Documents pertaining to an agenda item distributed to board members less than 72 hours prior to the meeting must be made available to the public. RECORDS & PUBLIC ACCESS

45. What is a Public Record? Any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by a local agency…regardless of physical form. Including: E-mails & records retained, but no longer necessary to accomplish public business. Records stored in computers.

46. Exemptions from Disclosure Mandatory prohibitions against disclosure: Peace officer personnel files. Medical/Mental Health Files. Welfare records. Juvenile Court records. Disclosure only upon court order.

47. Other Exemptions Preliminary drafts. Confidential information acquired with the expectation that it remain confidential. Deliberative processes. Endangerment to someone if disclosed. Truly personal information that has nothing to do with the public’s business, or if disclosed would cause embarrassment or grief. Redaction of exempt portions before disclosure.

48. Responding to a Records Request Upon receipt of a PRA request: Must respond within 10 days. Identify disclosable records. Indicate whether or not agency will comply. Give estimated time and date the records will be available. Fees for direct costs of duplication.

49. Responding to a Records Request -Continued If you are asked to produce or disclose any records… Contact your County liaison for assistance in preparing a response. If you have concerns whether the records are exempt from disclosure, contact your County liaison and County Counsel.

50. A different PRA “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.” Plato

51. Public Records Act Q&A Any questions ????

52. CONFLICTS OF INTEREST

53. Personal Financial Gain Public servants should not benefit financially from their positions.

54. The Political Reform Act of 1974 The key principle behind the Political Reform Act (“the Act”): If a public officer has a financial interest in a decision before him or her, the public officer must step aside from the decision-making process.

55. Purpose of the Political Reform Act “ The Act seeks to bring a degree of credibility to government by providing that those who hold public trust must act, and appear to act, ethically. Erosion of confidence in public officials is detrimental to democracy... To maintain confidence and to avoid public skepticism, conflict of interest must be shunned.” Consumers Union of U.S., Inc. v California Milk Producers Advisory Bd. (1978) 82 Cal.App.3d 433 Document Title Goes Here

56. Political Reform Act The Act governs disclosure of political campaign contributions, spending by candidates and ballot measure committees, as well as regulates lobbying practices and disclosure, and contains ethics rules for state and local government officials.

57. Fair Political Practices Commission Fair Political Practices Commission (FPPC) administers, interprets and enforces the provisions of the Act.

58. Conflicts of Interest No public official at any level of state or local government shall make, participate in making or in any way attempt to use his or her official position to influence a governmental decision in which he or she knows or has reason to know that he or she has a financial interest.

59. When is there a conflict? When the decision will have an effect on you, your immediate family, or on any of your economic interests that is distinguishable from its effect on the public.

60. Who is a Public Official? EVERY member, officer, employee, or consultant of a state or local agency. “Member” means members of boards, commissions or committees that possess decision-making authority.

61. What is a Decision? You “make” a decision when you: Vote on a matter. Appoint a person to a board or commission. Obligate/commit the agency to a course of action. Enter into contractual agreements. Determine not to act because of a conflict.

62. Includes Participating in a Decision You “participate” in a decision when you: Negotiate, advise or make recommendations to the decision- maker. Conduct research or an investigation, or prepare or present a report or opinion, which requires the exercise of judgment and the purpose of which is to influence a decision.

63. Exceptions Actions of public officials which are solely ministerial, secretarial, manual, or clerical. Appearances by a public official as a member of the general public before an agency in the course of its prescribed governmental function to represent himself or herself on matters related solely to the official’s personal interest.

64. Economic Interests Someone pays you income. Involves property you own, lease, have another interest in. Involves your employer. Involves one of your investments. A gift to you. Involves your family finances.

65. Income $500 or more within the last year. Received or promised within 12 months prior to the time the decision is made. Includes a loan (other than loans by a commercial lending institution).

66. Real Property Real property in which the official or his/her immediate family has an interest (lease or ownership) worth $2,000 or more. Tip: don’t be involved in decisions that may enhance or diminish values of your property.

67. Involves Your Employer Business employment or management in which the official is a director, officer, partner, trustee, employee, or holds any position of management.

68. Investments Investments of you or your immediate family of $2000 or more.

69. Family Finances Decisions that may have a monetary impact of $250 or more on the personal finances of you, your spouse, domestic partner or other immediate family.

70. Gifts From the same source, Valued at $460 or more, Received by, or promised to the official, within 12 months prior to the time the decision is made.

71. Consult Counsel The tests for determining whether there is a material conflict of interest are complex and vary between financial sources and whether the interest is direct or indirect. Once an economic interest is flagged, consult with to County Counsel.

72. The “Public Generally” Exception Even if an official’s economic interest will be materially affected by a decision, the official can still participate if the decision will affect the official’s interest in substantially the same manner as it will affect a significant segment of the public.

73. How to deal with a conflict… Avoid influencing the decision – don’t talk with colleagues or staff. At the meeting – explain why you are disqualified from participating. At the meeting – consider leaving the room when the matter is up for decision.

74. For Help Contact the Fair Political Practices Commission for toll-free advice: 1-866-ASK-FPPC (1-866-275-3772) www.fppc.ca.gov

75. Common Law Conflicts of Interest A public officer must exercise his/her powers with diligence, fairness and for the public’s benefit.

76. Common Law Conflicts Right to fair and unbiased decision-makers al Reform Act Prohibits Personal Interests, both financial and nonfinancial (personal interest in decision’s outcome, people bias or factual bias). Results in disqualification from taking part in discussions or voting on transaction.

77. Conflict or Not? Breakout for Conflict Scenarios

78. Ethics – Doing What Is Right “ Most of us overestimate the cost of doing the right thing… and underestimate the cost of failing to do so.” Michael Josephson

79. Ethics Public servants owe a basic duty of loyalty and honesty to the public they serve. That duty is breached when the official makes decisions or takes actions that are motivated by the official’s personal interests.

80. What Are Ethics? Behavior that is: Trustworthy Fair Responsible

81. Trustworthy Remember that your role is first and foremost to serve the community. Be truthful with your fellow officials, the public and others – even when it involves speaking hard or unwelcome truths. Do not accept gifts or other special considerations. Do not use public position for personal gain.

82. Fair

83. Make decisions based on merits of the issues. Apply agency policies consistently. Be impartial and do not favor those who either have helped you or are in a position to help you. Excuse yourself from decisions when you or your family’s interests may be affected.

84. Responsible Do not use agency resources for personal or political benefit. Represent the official positions of the agency to the best of your ability. Explicitly state that your personal opinions do not represent agency positions. Do not use information that you acquire in your public capacity for personal advantage.

85. Ethics Legal Ethics: The minimum one must do. (the lowest bar) Personal Ethics: What one ought to do. (the highest bar) Having the right to do something doesn’t mean it’s the right thing to do.

86. Personal Ethics Personal ethics go beyond what is technically legally permissible. For instance, it may be legally permissible to vote in favor of a contract with your cousin-in-law twice removed whom you haven’t seen since you were six, but it might give the appearance of impropriety.

87. Public Perception You can be absolutely confident that you are able to put personal interest or relationships aside, but the public may question whether that is so. You must think not only in terms of what is true from the inside, but how it may look from the outside.

88. Common Ethical Dilemmas Personal Cost: Doing the right thing may or will come at a significant personal cost to you or your public agency. Right v. Right: Pleasing a few constituents versus community’s best interest.

89. Legal Ethics Legal ethics are governed by many different and complex state and federal laws. When in doubt, consult agency counsel!

90. Ethics “Always do right – it will gratify some and astonish the rest.” Mark Twain

91. Q&A Any questions???

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