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CC 2019-02-28 Special Meeting Notice_Ethics_PP Presentation Ethics Training AB 1234 February 28, 2019 Introduction 1 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. Review Slide In AG, department directors are also required to take the training every two years and all other City employees every three years. ( AG Policy A-030) 2 ETHICS TRAINING AB 1234 AB 1234 requires two hours of training every two years Sign-in sheet Certificate of Completion Must be completed within one year of assuming office. 3 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 Review Slide Specified content Lots to cover – will take questions at the end in order to ensure that we get through all the required content. We will be talking about both ethics principles and ethics laws. Starting first with ethics principles 4 ETHICS TRAINING Principles of Public Service Public Servant: Public’s interest Public good Public’s trust Perception as important as reality Public service ethics is different – higher expectations Review Slide It’s important that the public believes public officials understand that they are there to serve the public and have the public interest in mind and not their own personal interests and agendas. City Ethics Policy A-030 states that it is the City’s policy that “City officials and employees conduct themselves in an ethical manner both on and off the job, and in a manner that does not present the appearance of a conflict of interest. 5 ETHICS TRAINING Importance of Public Perception 6 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. 7 ETHICS TRAINING Principles of Public Service Ethical Values Fairness Trustworthiness Responsibility Respect Compassion Loyalty The public service values that the Institute for Local Government has identified as key ethical values are as follows: Review Slide All the things we strive for in life and value in other people. These are the character traits we want to see in our leaders. Similar to the civil discourse philosophy the League of Women Voter’s advocates. 8 ETHICS TRAINING Would Mother Approve? In other words, are you doing the right thing? Do you have a clear conscience? 9 ETHICS TRAINING Principles of Public Service Ethics vs. Ethics Laws: Ethics = what we ought to do Ethics Laws = what we must do The difference between ethics values and ethics laws. Review Slide The law sets only minimum standards. Part of the purpose of this training is to encourage you to go beyond required ethics laws and strive to perform your duties in a manner that demonstrates that you are acting solely in the public’s best interest. 10 ETHICS TRAINING Ethics Laws At the intersection of integrity and compromise, this training is designed to encourage you and give you the tools to choose integrity. 11 ETHICS TRAINING Types of Ethics Laws Four categories of ethics laws: Personal financial gain Personal advantages and “perks” Government transparency Fair process Review Slide We will be discussing four major categories of ethics laws: Bribery, financial conflicts of interest laws, such as the Political Reform Act, contracts prohibited under Govt. Code 1090 Misuse of public funds, gifts, honoraria, mass mailing rules Transparency and open meeting laws contained in the Brown Act and the Public Records Act Common law bias, due process in conducting hearings, competitive bidding, and revolving door prohibitions We will cover each category – starting first with personal financial gain. 12 ETHICS TRAINING Ethics Laws PERSONAL FINANCIAL GAIN 13 ETHICS TRAINING Personal Financial Gain Public servants should not benefit financially from their position Review Slide California’s conflict of interest laws are founded upon the truism that a person cannot serve two masters simultaneously. The conflict of interest laws recognize that an impairment of impartial judgment can occur in even the most well-meaning men and women when their personal economic interests are affected by the business they transact on behalf of the government. Ethics laws are promulgated to address that conflict. 14 ETHICS TRAINING Personal Financial Gain Types of prohibitions against personal financial gain: GRAFT Prohibition against self-dealing Employment related restrictions 15 ETHICS TRAINING Receiving Special Favors or Money for Official Actions Bribery Extortion 16 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 Review Slide In essence, bribery is paying someone for their vote Actual examples of bribery: Free trip to Hawaii offered to a Mayor in exchange for approval of a resort hotel. Free lap dances for approval of a topless bar. An offer of free marijuana in exchange for approval of a medical marijuana dispensary. Legislation passed in 2014 doubles the restitution fines for bribery by an elected official and prohibits campaign funds from being used to pay restitution fines. This new legislation can be tied to the aftermath of the Bell scandal. 17 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. Review Slide Also referred to as blackmail. 18 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 19 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 Political Reform Act is the primary financial conflict of interest regulation. Past in the wake of the Watergate scandal. Review Slide City Attorney cannot provide immunity. Conflict of interest laws are aimed at eliminating temptation, avoiding the appearance of impropriety, and assuring a public official’s undivided and uncompromised allegiance. 20 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 The Act addresses disclosure requirements and disqualifications due to conflicts. Starting with the disclosure requirements, Form 700 embodies the disclosure portion of the Act. Disclosure requirements don’t always match up with the disqualification rules. Example: one’s personal residence is not required to be disclosed on the Form 700, however, it could cause a conflict of interest. For example if you are a planning commissioner and there is an application for a conditional use permit for property located near your home. Moving on to the disqualification rules… 21 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. 22 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! Many loaded terms that have numerous regulations that apply to define them. Devil in the details What makes the Act difficult to administer and interpret 23 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 converted it to a four-step process. Slide: But that didn’t make it any easier to follow… 24 ETHICS TRAINING The Political Reform Act (“PRA”) Preliminary analysis: Is the individual a public official? Used to be Step One – Now preliminary question. Most of you here are probably public officials within the meaning of the Act. If you are an elected official, an appointed official, or an employee of a governmental agency who is designated in your agency’s conflict of interest code, you are a public official under the act. 25 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 Slide: Business Investment: You have an economic interest in a business entity in which you, your spouse (registered domestic partner) or your dependent child or anyone acting on your behalf has invested $2,000 or more. Business Employment or Management: You have an economic interest in a business entity of which you are a director, officer, partner, trustee, or employee. Real Property: You have an economic interest in real property in which you, your spouse (or registered domestic partner) or dependent child or anyone acting on your behalf has invested $2,000 or more, and also in certain leaseholds (in excess on one year). Sources of Income: Economic interest in anyone or organization from whom you received or from whom you have been promised $500 or more in income within 12 months prior to the decision. Gifts: Economic interest in a gift from an individual or organization totaling $500 (effective January 2019) or more received within previous 12 months. Personal Financial Effect: You have an economic interest in your personal expenses, income, assets or liabilities as well of those of immediate family. “measurable financial benefit or loss” Immediate family = spouse, domestic partner, dependent child Second part of Step One. 26 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” “Explicitly involved” language part of 2014 revisions- used to be “direct” and “indirect” Explicitly involved if the subject of the application or license – applying for a license or permit Not explicitly involved – live a block away from the project or impacts one’s employer Explicitly involved presumed to be “reasonably foreseeable” and creates a conflict of interest If not explicitly involved must analyze whether the financial interest is material – Step 2… On to Step Two… 27 ETHICS TRAINING The Political Reform Act (“PRA”) Step 2 Will the reasonably foreseeable financial effect be material? Review Slide Whether the reasonably foreseeable financial effect on a financial interest is material depends on the facts of each case. The FPPC has adopted “materiality standards” that evaluate what kinds of financial impacts are considered material. These rules are too many and too complex to go through for each type of potential conflict. The rules vary by the size and situation of the economic interest. For example, a $20,000 impact resulting from a governmental decision may be crucial to a small business, and therefore creates a conflict but may be a drop in the bucket for a big corporation and therefore does not create a conflict. So, the materiality standards distinguish between large and small businesses, between real property that is close or far from property which is the subject of a decision. End of 2014 the materiality standards for real property were revised- now 12 factors (500 feet is factor #11). Effective middle of February – kept additional factors, but brought back the 500’ and 1,000’ distance thresholds. Less than 500’ presumed material, 500’ to 1,000’ must perform an analysis of factors such as whether the decision will change the highest or best use, market value, etc., 1,000’ plus – presumed not material (presumption may be rebutted). If you believe you may have a possible conflict of interest, it is best to contact your legal counsel and/or the FPPC right away so that they may get the facts and apply the appropriate standards in order to determine if you in fact have a financial conflict of interest. If its determined the financial effect will be material – go on to the Step Three 28 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? Even if it has been determined that you have a conflict of interest for a particular decision, you may fall into an exception. Review Slide The public generally exception allows you to participate when a significant part of the community has an economic interest that will encounter a substantially similar financial impact to the public official’s economic interest. Ex. Increase in fees that are City wide. The public generally exception must be considered with care. There are specific rules for identifying the specific segments of the general population with which you may compare your economic interest, and specific rules for deciding whether the financial impact is substantially similar. If the exception doesn't apply and you’re disqualified… 29 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 “Attempt” to influence the decision means you cannot discuss the decision with staff or your colleagues or do anything else in an effort to attempt to use your official position to influence the decision. There is an exception to (18704(d)) to the requirement that the public official not attempt to influence the decision with regard to a public meeting where the official is appearing in a matter related solely to his or her personal interest including his or her real property owned entirely by the public official and/or members of his or her immediate family not owned by a source of income to the official. In that scenario the public official would have to properly disqualify him or herself and then when they speak as a member of the public from the podium they must make it clear they are speaking in their capacity as an individual and not in their official capacity. 30 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 In certain rare circumstances, you may be called upon to take part in a decision despite the fact that you have a disqualifying conflict of interest. This rule applies only in certain specific circumstances where the governmental agency would be paralyzed or unable to act without your participation. You should definitely work with your legal counsel or the FPPC in these situations. When more than one has a conflict, you may have to draw straws. Can’t be invoked to break a tie or where a quorum can be convened later using a qualified member who is absent. May want to discuss AG situation – three Council members sought FPPC advice. 31 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 You don’t want to tell your legal counsel 5 minutes before a meeting that the applicant for a CUP gets all of their printing done by the print shop you own and therefore they are a source of income to you. This require an analysis of the facts and an application of the facts to the Political Reform Act rules and such analysis should occur well before the meeting. 32 ETHICS TRAINING Good Ethics = Good Politics When in doubt, sit the decision out. 33 ETHICS TRAINING Consequences Criminal Civil Jail Fines Impact on decision A violation of the Political Reform Act can be a misdemeanor. It can also result in loss of office. Fines can vary from $5,000 to $10,000 per violation. Decision can be invalidated. Embarrassment 34 ETHICS TRAINING Would mother approve? There’s that conscience test again… 35 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 Another financial conflict of interest law you need to be familiar with is Govt. Code 1090. Slide Govt. Code Section 1090 was enacted before the Political Reform Act of 1974 to prohibit self-dealing. Section 1090 was not repealed by the enactment of the Political Reform Act. What sets Govt. Code Section 1090 apart from the financial conflict of interest prohibitions contained in the Political Reform Act is that under the Political Reform Act, if a public official has a financial conflict of interest, the public official may disclose the interest and abstain from participating and the rest of the body may take action. Under Section 1090 the entire body is tainted by the one member’s conflict of interest and even with the abstention of the member with the conflict, the board may not approve the contract. Another important aspect of Section 1090 is that a public official who willfully violates Section 1090 may face criminal penalties and may be forever disqualified from holding any office in the State. Examples: School district board member who voted 15 times to approve school district payments to her own travel company and the City Manager of Bell who wrote his own loan documents lending himself $80,000 of taxpayer dollars - of course that was nothing compared to his 1.5 million salary plus other benefits. FPPC now also has jurisdiction over 1090 and can issue advice as well as administrative fines. 36 ETHICS TRAINING “Perks” 37 ETHICS TRAINING “Perks” No special privileges for public officials Two types of perks: Perks offered to you Perks you give yourself 38 ETHICS TRAINING “Perks” Types of “Perks” include but are not limited to: Gifts Compensation Use of public resources 39 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. Started at $250 in 1995. 40 ETHICS TRAINING “Perks” – Gifts Gift Limit $500 from a single source during the course of one calendar year (effective 01/01/2019). Statement of Economic Interests: withdrawal $50 or more over the course of one calendar year. Conflict/disqualification Disclosure 41 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 42 ETHICS TRAINING Exceptions to Gift Restrictions Gifts from relatives Gifts of hospitality in donor’s house when donor is present Gifts of equal value exchanged on holidays and birthdays Informational material Inheritance Personalized plaques and trophies 43 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. Exception – speak in an area of expertise for a living. 44 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. 45 ETHICS TRAINING Travel Expenses Airline passes and discounts from transportation companies Specifically prohibited by Article XII, Section 7 of the California Constitution. California constitution prohibits public officials from accepting free passes or discounts from a transportation company. This rule originates from the early 1900s when the railroads controlled much of California’s politics and economy and was meant to limit their influence over public officials. The rule doesn’t apply to passes or discounts provided to a public official as a member of a larger group that is not related to the public official’s position as a public official (such as frequent flyer discounts). A violation of this rule results in the forfeiture of pubic office. 46 ETHICS TRAINING Expense and Reimbursement Issues Laws limiting public official compensation Laws limiting reimbursement of expenses to those that are actual and necessary Review Slide General law city limited amount of compensation based on population. Bell became a charter city to get around that. Each public agency should have in a place an expense reimbursement policy. Can only be reimbursed for actual expenses. Required to have receipts for expenditures. Can no longer have general expense allowances. 47 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. Review Slide Often called the gifts you give yourself. These can be little things, however, little things can add up. Also, it is important to role model the behavior you expect of others in the organization. 48 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 Meant to prohibit incumbents from using public agency resources for a re-election campaign. Example: Two months before an election a council member wants to mail out a newsletter to all constituents touting the great services that the district offers with his or her picture prominently displayed (propaganda piece). Mass mailings may not be sent at public expense if they feature an elected official or contain the name or photograph or other reference to an elected official. An exception exists for mass mailings in which the elected official’s name appears only as part of a standard letterhead. (New in 2019) unless within 60 days preceding an election and an official is on the ballot. 49 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. Two primary revolving door prohibitions: prospective employment and post-employment Slide – prospective employment (Govt. Code Section 87407) 50 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. Review Slide Post-employment (Govt. Code Section 87406.3) Example – a former city council member appearing before the council as an agent for a developer. Cities may develop stricter revolving door standards. 51 ETHICS TRAINING Ethics Laws Government transparency Third category – transparency 52 ETHICS TRAINING Transparency Laws Underlying principle is that public officials transact their business in public. Review Slide After all, it is the people’s business. 53 ETHICS TRAINING Transparency Laws Two general types of transparency laws: Activities of the individual official Government Processes Review Slide The first refers to public officials’ individual actions, which must be disclosed on the Form 700 - Statement of Economic Interests The other transparency laws we’re going to talk about have to do with the openness of the government process and are contained primarily in the Brown Act and the Public Records Act. 54 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 Disclosure of individual economic interests: Form 700 - Statement of Economic Interests I’m sure you are all very familiar with this Form as you fill one out every year. One must be filed upon assuming office, annually while in office and upon leaving office. It requires you to disclose: Sources of income doing business in the City in excess of $500 Interests in real property located in the City totaling $2,000 or more. This does not include your personal residence. Investments of $2,000 or more in a business located or doing business with the City. Business positions with reportable sources of income must also be reported. Sources of gifts of $50 or more. Gifts are reportable regardless of where the donor is located. Remember: Statements of Economic Interest are public documents. Access to the Form 700 is not subject to the Public Records Act procedures. Instead, statements must be made available as soon as possible, but in no event later than in two business days. 55 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. Elected officials who solicit contributions for principally a legislative, governmental or charitable purpose of $5,000 from the same source in a calendar year are subject to special disclosure requirements under the Political Reform Act. Within 30 days following the date on which the contribution or contributions equal or exceed $5,000, the official must file a report with his agency that contains the name and address of the contributor, the amount of the contribution, the date or dates the contributions were made, etc. Govt. Code Section 82015(b)(2)(B)(iii) 56 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 Review Slide Investigation of a failure of a local public official to file a Form 700 is generally reviewed by the Enforcement Division of the Fair Political Practices Commission. 57 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. Review Slide That provision is taken from the section of the Brown Act (Sect. 54950) that contains the legislative intent in adopting the Brown Act. Another great provision that comes out of that section that I believe is worth reading states: The people, in delegating authority, do not give their public servant 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. 58 ETHICS TRAINING Transparency Laws Government Processes: Meetings Serial Meetings Daisy Chain Hub and Spoke The Brown Act governs meetings of legislative bodies. Under the Brown Act a meeting occurs whenever a quorum or a majority members of a legislative body (council, commission, etc.) gather to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the legislative body. With a body of 5 members a quorum would be three. Where public officials may run into trouble with the Brown Act is in understanding that a meeting, as defined by the brown Act, may occur when you do not have three council members in a room sitting together or on a teleconference together. This type of meeting, which is governed by the Brown Act is called a serial meeting. There are two main types of serial meetings: Daisy chain: Council Member A contacts Council Member B, Council Member B contacts Council Member C resulting in a collective concurrence. Hub and Spoke: Council Member A contacts Council Member B, Council Member A then contacts Council Member C, sharing what she learns as she goes developing a collective concurrence. – Collective concurrence Bottom line is City business should only be discussed by council members at noticed public meetings. 59 ETHICS TRAINING Computers and Email Don’t use: “Reply to All” Computers and email and now cell phones and texting create potential hazards for Brown Act violations. With email or texting it is easy to inadvertently create a serial meeting in violation of the Brown Act. This occurs when, for example, a staff person emails some information to all of the board members about an upcoming agenda item. Individual board members then hit “Reply to All” with their thoughts on the agenda item. Once the thoughts of a majority of the members are shared, a potential Brown Act violation exists. Therefore, it is best to reply only to the staff member if you have questions or comments about the agenda item and not include the other board members. 60 ETHICS TRAINING Transparency Laws Exceptions to public meeting requirements: Permissible Gatherings Closed Session Meetings There are certain types of meetings of a legislative body that do not constitute a meeting under the Brown Act. They include: individual contacts, conferences, open and publicized meetings, meetings of another legislative body, and social or ceremonial event. However, even at these types of meetings, a majority of members may not get together and discuss City business. Lastly, the Brown Acts open meeting requirements do not apply to certain kinds of meetings termed “closed sessions” 61 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 The purpose of a closed session is to avoid revealing confidential, prejudicial or private information to the public. The following are categories of discussion that generally qualify for closed session. Review Slide 62 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 Review Slide Closed session matters must be agendized. The Brown Act provides the format for closed session items. Lastly, the disclosure of confidential information acquired in a closed session is prohibited. What happens in closed session stays in closed session. However, public agencies are required to report out after a closed session certain final actions taken in closed session, such as the settlement of a lawsuit or when an agreement to buy real property has been finalized. 63 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 A major component of the Brown Act addresses the public’s right to participate. Notice and Agenda: A notice of all regular meetings must be posted at least 72 hours before the meeting. Notice for special meetings must be posted 24 hours in advance of a special meeting. The agenda must contain a brief description of each item to be discussed. Agendas must be posted on the agency’s website. Staff reports and any correspondence to the Council upon which the Council is making a decision must be made available to the public- unless confidential. 64 ETHICS TRAINING Transparency Laws Public’s right to participate: (Continued) Public Participation Minutes Public official’s role Public Participation – At each regular meeting the Council must give two public comment opportunities to the public. The public must be given an opportunity to provide testimony on any agenda item before the Council prior to the Council taking action on the item. In addition, the public must be given an opportunity to comment on any other matter that is within the subject matter jurisdiction of the City but is not on the agenda. – 2016 New Law: If an agency limits the time for speakers, it must give a member of the public who utilizes a translator twice the allotted time. (AB 1787) Minutes – It is the duty of the City Clerk to take minutes. The minutes do not need to capture everything that is said, but should give an accurate and brief description of the action taken. When approving minutes if a council member disagrees with something contained in the minutes, the minutes should only be altered if they do not accurately reflect what transpired. If It is simply that a council member disagrees with something contained in the minutes or now wants to change their opinion on something, that should be done in some other manner (perhaps under orals) rather than making a change to the minutes. Not what you “meant to say” or “wish you said” The public official’s role is to listen to all of the information from staff as well as any testimony from the public, to ask questions as necessary and make merit-based decisions that are guided by principles of fairness and not based on personal relationships. 65 ETHICS TRAINING Transparency Laws Oral report of recommendation for a final action on compensation to a: General Manager Department Head Person whose position is held by an employment contract within the agency. May discuss executive compensation in closed session but must approve the increase in compensation during public session. Under 2017 law - must be an oral report summarizing the recommendation. Slide 66 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) Exempt – preliminary drafts, personnel files, attorney/client protected documents, etc. San Jose v. Superior Court - Public has a right to emails and other communications, such as text messages regarding government business written or received by public officials and employees regardless of the fact that they were done on a private account or device. Government business should be conducted using government provided emails, which ensures proper record retention and security of information. New in 2018 – included in the list of records exempt from disclosure will be agency records relating to collective bargaining (AB 1455). New law in 2019 – laws regarding law enforcement transparency. AB 748 – provides police officer body camera video and audio recordings of critical incidents are disclosable – disclosure may be delayed if disclosure would substantially interfere with an active investigation. SB 1421 – actually in Penal Code, not Public Records Act, but says certain categories of police records are no longer confidential but instead are public records – (1) incidents involving discharge of a firearm at a person by an officer; (2) incidents of use of force by an officer resulting in death or great bodily injury; (3) sustained incident of an officer engaged in sexual assault; and (4) sustained finding of dishonesty by an officer relating to certain action. 67 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. Last category Although California statutes and regulations largely cover the scope of conflict of interest laws, there also exists a common law (laws that result form decisions in court cases) prohibition against self-dealing. Review Slide Example – Having a personal connection, such as a best friend, that makes it difficult for you or has the appearance that you will not be able to be unbiased and neutral. City’s Ethics Policy, in addition to requiring public officials to recuse themselves when they have a material financial interest (PRA), extends that to “where they have an organizational responsibility or personal relationship that may give the appearance of a conflict of interest.” 68 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 Quasi judicial matters are those involving the application of existing rules to a specific set of facts - like a request for a permit. Legislative matters are those where the legislative body is establishing general policy. It is also important not to take a position on issues that may come before you in your quasi-judicial capacity before you hear all of the evidence and testimony at the hearing on the issue. This is known as predetermination and it denies the applicant of their due process rights. Example – Nasha v. City of LA – Planning Commissioner wrote an article hostile to a project for a homeowner’s association before meeting = unacceptable probability that the commissioner had made up his mind in advance of the public hearing. Because the hostile commissioner participated in the decision the Court overturned the planning commissions decision as having been tainted by bias. Recommend council members not participate at Planning Commission - Let process play out, wait until hear everything brought to you. Woodys vs. Newport Beach – Council member opposed and files appeal – expressed opposition and then took lead to deny – decision overturned. 69 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 70 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. Review Slide If you assume a second office that is incompatible with the first, you forfeit the first position. An example of incompatible offices are city council and school board – share same jurisdiction. (Govt. Code Section 1099) 71 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. Generally ethics laws with respect to campaign contributions emphasize disclosure rather than disqualification. The courts have held the receipt of campaign contributions does not generally give rise to a duty to disqualify oneself. However, this applies only to elected officials. Appointed officials are required to disclose and disqualify themselves from participating in decisions that will effect someone from whom they have received a campaign contribution of $250 or more. This does apply to elected officials who are serving as appointed officials in some other capacity. This tends to apply to Planning Commissioners who run for City Council. If they are unsuccessful if a developer from whom they received a campaign contribution may then appear before them at the Planning Commission. As such, they would be disqualified from participating. (Govt. Code Section 84308 – appointed officials) 72 ETHICS TRAINING Conclusions and Best Practices 73 ETHICS TRAINING Conclusions and Best Practices Be aware Talk with your counsel early Avoid the temptation 74 ETHICS TRAINING Conclusions and Best Practices Develop a tracking system Know when to disqualify yourself Consider the consequences of your actions 75 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 76 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? 77 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 78 ETHICS TRAINING Questions and Comments 79