CC 2017-10-30 PP Special Meeting_Ethics Training
Ethics Training
AB 1234
October 30, 2017
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ETHICS TRAINING
AB 1234
Came into effect January 1, 2006
Applies to elected officials and officers who receive compensation or expense reimbursement.
Local agencies can require other agency officials or employees to attend as well.
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ETHICS TRAINING
AB 1234
AB 1234 requires two hours of training every two years
Sign-in sheet
Certificate of Completion
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ETHICS TRAINING
Goals of this Session
Familiarize you with laws that govern your public service and alert you to know when to ask questions.
Breadth vs. depth
Encourage you to think beyond legal restrictions and provide tools for doing so.
Achieve compliance with AB 1234
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ETHICS TRAINING
Principles of Public Service
Public Servant:
Public’s interest
Public good
Public’s trust
Perception as important as reality
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ETHICS TRAINING
Importance of Public Perception
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ETHICS TRAINING
Public Perception
Process
First Step: Figure out what is the “the right thing” to do.
Second Step: Figure out what the public’s perception of “the right thing” to do would be.
Third Step: When needed, balance the first two steps and follow the path which best supports public service values.
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ETHICS TRAINING
Principles of Public Service
Ethical Values
Fairness
Trustworthiness
Responsibility
Respect
Compassion
Loyalty
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ETHICS TRAINING
Would Mother Approve?
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ETHICS TRAINING
Principles of Public Service
Ethics vs. Ethics Laws:
Ethics = what we ought to do
Ethics Laws = what we must do
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ETHICS TRAINING
Ethics Laws
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ETHICS TRAINING
Types of Ethics Laws
Four categories of ethics laws:
Personal financial gain
Personal advantages and “perks”
Government transparency
Fair process
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ETHICS TRAINING
Ethics Laws
PERSONAL FINANCIAL GAIN
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ETHICS TRAINING
Personal Financial Gain
Public servants should not benefit financially from their position
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ETHICS TRAINING
Personal Financial Gain
Types of prohibitions against personal financial gain:
GRAFT
Prohibition against self-dealing
Employment related restrictions
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ETHICS TRAINING
Receiving Special Favors or Money for
Official Actions
Bribery
Extortion
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ETHICS TRAINING
Bribery
Public officials may not solicit, receive or agree to receive a benefit in exchange for their official actions.
Bribery is a crime
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ETHICS TRAINING
Extortion
Obtaining property of another induced by the use of actual or threatened force, violence, fear, or under the color of official right.
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ETHICS TRAINING
Consequences
Jail time
Restitution/fine
Forfeiture of office or employment
Forever disqualified from holding any office, employment, or appointment by any public agency in California
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Adopted by the voters in June 1974
Gov’t. Code Section 81000 et seq.; voluminous regulations have followed.
Fair Political Practices Commission administers the Act
FPPC staff provides a “help line”
1-866-ASK-FPPC
advice@fppc.ca.gov
Informal and formal written advice
Only formal advice insulates one from liability
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Annual Statements of Economic Interest
You may have a conflict even if it’s not on your Statement of Economic Interest
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ETHICS TRAINING
Disqualification
Disqualification based on economic interests under the Act
A public official may not make, participate in, or in any way influence a governmental decision when he or she has a disqualifying interest.
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ETHICS TRAINING
General Theme
Public officials have a disqualifying financial interest if the decision will have a reasonably foreseeable material financial effect, on the official or his or her immediate family,
which is distinguishable from the effect on the public generally.
The PRA does not prevent you from having or “acquiring” a financial interest that may create a conflict.
Not necessary to show actual “bias.”
The rules are not necessarily logical or intuitive!
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Previously an eight-step process was set up to determine whether an official had a conflict of interest under the Act.
Recent amendments simplified it to a four-step process.
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Preliminary analysis:
Is the individual a public official?
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Step 1
Is it reasonably foreseeable that the governmental decision will have a financial effect on any of the public officials’ financial interests?
Five types of financial interests:
Business investment, employment, or management
Real property
Sources of income
Sources of gifts
Personal finances
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Step 1 (Continued)
Is the financial interest “explicitly involved”?
Financial interest “explicitly involved”
Financial interest “not explicitly involved”
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Step 2
Will the reasonably foreseeable financial effect be material?
*End of 2014 – Revisions to real property materiality standards
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Step 3
Can the public official demonstrate that the material financial effect on the public official’s financial interest is indistinguishable from its effect on the public generally?
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Step 4
A public official with a disqualifying conflict of interest may not make, participate in making, or in any way attempt to use his or her official position to influence the decision.
Procedures to disqualify oneself:
At the meeting, publicly identify the financial interest or potential conflict of interest in sufficient detail to be understood by the public.
Step down and leave the room.
Exceptions
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ETHICS TRAINING
The Political Reform Act (“PRA”)
Exception to disqualification
Despite a disqualifying conflict of interest, in rare instances a public official’s participation may be legally required
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ETHICS TRAINING
Conflict of Interest Summary
Learn to spot potential conflicts early
Understand the big picture of the rules
Realize the importance of the facts
Contact your legal counsel or the FPPC as early as possible
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ETHICS TRAINING
Good Ethics = Good Politics
When in doubt, sit the decision out.
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ETHICS TRAINING
Consequences
Criminal
Civil
Jail
Fines
Impact on decision
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ETHICS TRAINING
Would mother approve?
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ETHICS TRAINING
Interests in Agency Contracts Barred
Government Code Section 1090
A public official may not have a financial interest in any contract made by his or her agency.
Making a contract
No disqualification allowed
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ETHICS TRAINING
“Perks”
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ETHICS TRAINING
“Perks”
No special privileges for public officials
Two types of perks:
Perks offered to you
Perks you give yourself
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ETHICS TRAINING
“Perks”
Types of “Perks” include but are not limited to:
Gifts
Compensation
Use of public resources
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ETHICS TRAINING
“Perks”
What is considered a gift?
Anything you might receive that you did not pay for or provide equal or greater value for.
Discounts and rebates not provided to the general public.
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ETHICS TRAINING
“Perks” – Gifts
Gift Limit
$470 from a single source during the course of one calendar year (effective 01/01/2017).
Statement of Economic Interests: withdrawal
$50 or more over the course of one calendar year.
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ETHICS TRAINING
“Perks” – Gifts
What can I do with unwanted gifts?
Return the gift unused to donor within 30 days
Deliver to a non-profit within 30 days
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ETHICS TRAINING
Exceptions to Gift Restrictions
Gifts from relatives
Gifts of hospitality in donors house when donor is present
Gifts of equal value exchanged on holidays and birthdays
Informational material
Inheritance
Personalized plaques and trophies
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ETHICS TRAINING
Honoraria Ban
Elected officials, city managers, city attorneys, city treasurers, and other public officials who manage public investments.
May not accept any payment for giving a speech, publishing an article, or attending a public or private conference, meeting, or like gathering.
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ETHICS TRAINING
Gifts of Public Funds
Public agencies may not make
a gift of public funds
An expenditure is not a gift of public funds if it serves a public purpose, even if a private person incidentally benefits.
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ETHICS TRAINING
Travel Expenses
Airline passes and discounts from transportation companies
Specifically prohibited by Article XII, Section 7 of the California Constitution.
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ETHICS TRAINING
Expense and Reimbursement Issues
Laws limiting public official compensation
Laws limiting reimbursement of expenses to those that are actual and necessary
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ETHICS TRAINING
“Perks”
Use of public resources:
“No perks” also includes the use and misuse of public resources such as staff time, equipment, and supplies.
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ETHICS TRAINING
“Perks”
Mass mailing restrictions:
Mailing that consists of 200 substantially similar pieces of tangible mail in a calendar month
Mailing features and elected official:
Officer’s photograph or signature
Singles out the officer
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ETHICS TRAINING
Revolving Door Prohibitions
Prospective employment:
A public official may not influence agency decisions when the interests of a prospective employer are at stake. The situation arises when an official is negotiating or has “any arrangement”
concerning prospective employment with someone with business before the agency.
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ETHICS TRAINING
Revolving Door Prohibitions
Post-employment:
Once a local elected official or General Manager is no longer with their respective agency, they are prohibited from appearing before or communicating with the former agency for compensation
in an attempt to influence matters before the public agency for one year after leaving their position.
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ETHICS TRAINING
Ethics Laws
Government transparency
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ETHICS TRAINING
Transparency Laws
Underlying principle is that public officials transact their business in public.
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ETHICS TRAINING
Transparency Laws
Two general types of transparency laws:
Activities of the individual official
Government Processes
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ETHICS TRAINING
Transparency Laws
Disclosure of Economic Interest (Form 700):
Sources of income
Interests in real property
Investments
Business positions
Sources of gifts
* Public Documents
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ETHICS TRAINING
Transparency Laws
Non-disclosure Penalties:
Violations can be prosecuted as a misdemeanor
Removal from office
Fines of $5,000 to $10,000 per offense
Legal costs
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ETHICS TRAINING
Transparency Laws
Charitable Fundraising:
Rule applies to elected officials
Solicitation of contributions for legislative, governmental, or charitable purpose of $5,000 or more from a single source
Must file a report with Agency.
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ETHICS TRAINING
Transparency Laws
Government Processes:
The Ralph M. Brown Act
Actions taken by a legislative body are taken openly and that their deliberations be conducted openly.
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ETHICS TRAINING
Transparency Laws
Government Processes:
Meetings
Serial Meetings
Daisy Chain
Hub and Spoke
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ETHICS TRAINING
Computers and Email
Don’t use: “Reply to All”
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Transparency Laws
Exceptions to public meeting requirements:
Permissible Gatherings
Closed Session Meetings
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ETHICS TRAINING
Transparency Laws
Closed Session
Conference with real property negotiators
License/permit determination
Conference with legal counsel
Existing or anticipated litigation
Threat to public services or facilities
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ETHICS TRAINING
Transparency Laws
Closed Session (Continued)
Public employment appointment and hiring
Public employment employee evaluations
Public employee discipline/dismissal/release
Conference with labor negotiators
Charge or complaint involving information protected by federal law
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ETHICS TRAINING
Transparency Laws
Public’s right to participate:
Notice and Agenda
Regular and Special Meetings
Availability of staff reports and information presented to the Council
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ETHICS TRAINING
Transparency Laws
Public’s right to participate: (Continued)
Public Participation
Minutes
Public official’s role
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ETHICS TRAINING
Transparency Laws
New for 2017: oral report of recommendation for a final action on a compensation to a:
General Manager
Department Head
Person whose position is held by an employment contract within the agency.
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ETHICS TRAINING
Transparency Laws
Public Records Act
Requires public agencies to provide the public the opportunity to inspect and receive copies of public records.
Public records include any writing containing information related to the conduct of the city’s business. A public record may be in any physical form (paper, microfilm, electronic, etc.)
Certain records are exempt from disclosure
Public records on personal devices and accounts (San Jose case)
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ETHICS TRAINING
Fair Process Laws
Right to fair and unbiased decision-makers
Under the common law doctrine, an elected official has 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 private interests.
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ETHICS TRAINING
Fair Process Laws
Due Process
Applies to “quasi judicial” matters
Procedural due process requires:
Notice and opportunity to be heard
Fair and impartial decision makers
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ETHICS TRAINING
Fair Process Laws
Competitive Bidding
Everyone has a right to compete for an agency’s business
Each agency must have a procurement of goods and services policy
Competition produces the best price for taxpayers
Kickbacks are prosecutable under federal fraud and extortion laws
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ETHICS TRAINING
Fair Process Laws
Incompatible Offices
Prohibits a public official from holding two public offices at the same time if there exists a potential conflict or overlap in the functions and responsibilities of the two offices.
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ETHICS TRAINING
Campaign Contribution Issues
Distinction between elected officials and appointed officials
Appointed officials cannot participate in entitlement proceedings involving campaign contributors of more than $250 during the previous twelve months.
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Conclusions and Best Practices
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ETHICS TRAINING
Conclusions and Best Practices
Be aware
Talk with your counsel early
Avoid the temptation
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Conclusions and Best Practices
Develop a tracking system
Know when to disqualify yourself
Consider the consequences of your actions
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ETHICS TRAINING
Conclusions and Best Practices
Assume all information is public or will become public
Don’t discuss agency business with fellow public officials outside of meetings
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ETHICS TRAINING
Conclusions and Best Practices
Decision-making questions to ask yourself:
What decision, behavior or course of action will best promote the public’s trust in my leadership and that of my agency?
Would I want to read about a certain course of action on the front page of my local newspaper?
How do I want to be remembered as a public official?
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ETHICS TRAINING
AB 1234 Compliance
Sign in
Proof of Participation Certificate
Provide to custodian of records as public record
Hand-out from the Institute for Local Government
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ETHICS TRAINING
Questions and Comments
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