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HomeMy WebLinkAbout8.3 BrownActPoliticlReformCITY CLERK File # 1:11012101=2[d AGENDA STATEMENT CITY COUNCIL MEETING DATE: May 7, 2002 SUBJECT: ATTACHMENTS: RECOMMENDATION: FINANCIAL STATEMENT Brown Act and Political Reform Act Outline Presentation Report prepared by Elizabeth H. Silver, City Attorney 1) City of Dublin City Council and Commissions Brown Act and Political Reform Act Outline Presentation Receive Presentation None DESCRIPTION: The Council's goals and objectives for Fiscal Year 2001-02 call for a presentation to the Council on the Brown Act and Political Reform Act. Attached is an outline of the Brown Act, the Political Reform Act and other state laws affecting elected officials. There will be a presentation by the City Attorneys Office at the Council meeting. COPIES TO: ITEM NO. K2/G/547 02/as-brownact.doc CITY OF DUBLIN CITY COUNCIL AND COMMISSIONS BROWN ACT AND POLITICAL REFORM ACT 1. Brown Act: A. General Rule. Govt Code § 54950-54960 is California's open public meeting law. Enacted in 1953. Requires that "all meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency except as otherwise provided by this Chapter." §54953(a). B. Who is Covered? 1) City Council 2) Any standing committee of City; Planning Commission; Parks and Community Services Commission; Heritage and Cultural Arts Commission 3) Non-Profit Corporations created by City to exercise delegated authority 4) Non-Profit Corporation that receives funding from City and to whose board the City appoints one of its members. C. What is a Meeting? 1) Any congregation of 2) a majority of members 3) of a legislative body 4) at the same time and place 5) to hear, discuss or deliberate 6) on any item that is within the subject matter jurisdiction of the legislative body orthe local agency to which it pertains° D. Types of Meetings or "Non-meetings:" 1) Individual Contacts: Act allows individual contacts or conversations between a member of the body and any other person, including other members of the body, City staff and constituents. However, cannot use this exception to discuss with a majority of members, individual by individual, a matter which is under the Board/Commission's jurisdiction that the Brown Act would bar them from discussing at the same time. 2) Conferences: May attend however a majority of members must not discuss among themselves, other than as a part of the scheduled program, specific matters within the jurisdiction of the City. March 20, 2002 Page 1 ~ ~ 3) Community Meetings: A majodty of members may attend a community meeting to address a topic of local concern. However, the meeting must have been organized by another agency and the members must not discuss among themselves, other than as part of the scheduled program, specific matters within the jurisdiction of the agency. 4) Meetings of Other Bodies A majodty of the members of a local legislative body may attend an open and noticed meeting of another body of the same agency, as well as an open and' noticed meeting of another local agency, with the same limitations as noted above. 5) Social or Ceremonial Occasions: May attend, though with same limitation as above. 6) Standing Committee Meetings: A majority of members may attend an open and public meeting of a standing committee of the body. Those members of the body who are not members of the standing committee must attend only as observers.. No participation. 7) Collective Briefings: Majority of members cannot meet with staff for a collective briefing prior to a public meeting. 8) Retreats and Workshops: Attorney General has opined that retreats are subject to Act. 9) Serial Meetings: Begin with individual contact but evolve into a meeting subject to the Act. a. "Daisy Chain:" Member A contacts Member B. Member B contacts Member C. Member C then contacts Member D and so on until a quorum is reached and collective concurrence is established. b. "Hub and Spoke:" Staff person telephones members of a Board one by one for a decision on a proposed action-or a chief executive briefs board members pdor to a formal meeting and, in the process, reveals information about the members respective views. c. Members have the right to confer with other members about local agency business. However, if in the process a "collective concurrence as to action to be taken" is reached among a majority, the Act has been violated. Example. Quorum of a city council directed staff by letter on an eminent domain action. d. Advisory/Informational memoranda from staff to all members are not violations though they may be public records. e. E-Mail as a Serial Meeting: If a member of the City Council receives an e-mail from another member regarding an item under consideration and the member then forwards the e-mail to one or more members of theCity Council, if a majority of the members either receive or reply to the e-mail, a serial meeting results since the transmission of the member's ideas could result in a majority of the body reaching a collective concurrence. i. Can happen when a member selects "reply to all" on a message sent from staff where that message contains the deliberation, decision or other content leading to a collective concurrence on the issue. ii. Not only a violation, but now have an electronic record of the transgression. Note also, e-mails may be subject to Public Records Act and all communications between Boards and Commission members to and from constituents, staff or other members of the agency would have to be disclosed upon request unless exempt. March 20, 2002 Page 2 ~ ¢ f. Teleconferencing: May use teleconferencing. Agenda must be posted at all teleconference locations. Each location must be identified in the notice and agenda of the meeting and MUST BE ACCESSBLE TO THE PUBLIC. Also, a quorum of the members must participate from within the boundaries of the agency's jurisdiction. Note: this precludes participation when in transit, i.e. at an airport via cell phone. 10) Closed Meetings/Sessions: Authorized if unusual sensitivity of item AND listed on agenda. Limited to certain matters including 1) real property negotiations where agency is a party; 2) pending litigation when discussion in open session would prejudice the position of the agency in litigation; 3) threats to the security of public buildings or to the public's right of access to services or public facilities; 4) labor negotiations; and 5) personnel matters. 2. Political Reform Act: Conflicts of Interest A. General Rule: No public official at any level of government shall make, participate in making or in any way attempt to use their official position to influence a govemmental decision in which the official knows, or has reason to know, he or she has a financial interest. Purpose is to ensure officials perform their duties in an impartial manner, free from bias caused by their own financial interests or the interests of persons who have supported them. B. Public Official Defined: Every person who is a member,~officer, employee or consultant of the City. 1) Member: Includes, but is not limited to salaried or unsalaried members of agency boards or commissions with decision making authority, such as final approval authority, power to compel a decision or power to make substantive recommendations which are typically approved without significant amendment or modification. C. Where is there a Conflict? An official has a conflict of interest when it is reasonably foreseeable that the decision will have a matedal financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of their economic interests. 1) Components of a Conflict of Interest: If all five of the following are present, then a conflict exists. a. Decision involving.public official: (Covers actually making a decision, participating in the making of a decision and influencing the decision making.) b. Does the official have a statutorily defined economic interest? Two questions that must be answered. Is it a direct or indirect interest and is that interest materially affected? i. Business Investments: any direct or indirect investment of $2,000 or more. Business entity is any organization that is operated for profit. Indirect investment is defined as investments owned by an'official's spouse or dependent children, including trusts. The financial effects of a governmental decision on a business that is directly involved in a governmental decision is presumed to be material. However, when a business is only indirectly involved in a decision, the standards are as follows: for a Fortune 500 company, a decision Will be material if its effect on the business': 1) gross revenues in a fiscal year is $10 million or more; and 2) expenses increase by $2.5 million or more; or assets or liabilities change by $10 million or more. There are similar standards for investments listed on the New York Stock Exchange, and a separate category for the NASDAQ and the AMEX. If a public March 20, 2002 Page 3 ,~ '~ official's only economic interest in a business is an investment interest that is worth less than $25,000 (eog., as 100 shares of stock worth $20,000), then the above materiality standards for indirect effects, not the "one-penny rule," apply° ii. Real Property: An official has an interest in real property when the official, spouse or dependent children have a direct or indirect equity, option or leasehold interest of $2,000 or more in a parcel of property located in, or within two miles of, the geographical jurisdiction of the official's agency. If a real property interest is within 500 feet of a proposed governmental decision, the decision is presumed to have a material economic effect on the property, even if it only 'impacts the value of the property by one cent (known as the "one-penny rule"). Outside of the 500 foot circle, the effect of the decision is presumed not to be material, but a conflict may still exist if there are "specific circumstances" indicating a financial effect of the governmental decision on the property, such as effects on development potential of the decision maker's property or the character of the neighborhood (traffic, views, privacy, etc)° . iii. Sources of Income and Gifts: A public official has an economic interest in any person from whom he/she has received income aggregating $500 within 12 months prior to the time when the relevant governmental decision is made. Income includes income which has been promised to the public official but not yet received by him or her, if he or she has a legally enforceable right to the promised income. A public official has an economic interest in any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating $320 or more in value provided to, received by, or promised to the public official within 12 months prior to the time when the decision is made. c. Is the official making, participating in the making of, or using official position to influence the making of a governmental decision? i. Participation does not include acts that are solely ministerial, secretarial, manual or clerical. ii. Official may appear at a hearing or before a public agency to represent his or her own personal interests If he or she does so in private capacity and if the matter in question relates ONLY to the official's private interests and not to his or her official duties. d. Is it reasonably foreseeable that the decision could materially affect the official's economic interest? i. Is it foreseeable? Generally, an official is not required to abstain from participating in a de~;ision unless the effects of the decision are reasonably foreseeable under the circumstances. Very fact specific. ii. Will the decision have a material effect on the interest? Different rules for direct versus indirect effects. Discussed above in effect section. e. Is the effect of the decision on the official's interest distinguishable from its effect on the public generally? Even if a decision maker has a conflict of interest, they may participate in a governmental decision if the decision impacts the decision maker in the same way that it impacts the public generally. In order for this exception to apply, the decision must affect a "significant segment" of the public in "substantially the same manner" as it will affect the decision maker's interests. The regulations clarify this exemption by providing a four step roadmap to determine if the."public generally" exception applies. If the exception applies, there in no conflict. To determine whether the exception applies, follow the steps below: March 20, 2002 Page 4 '~' "~ i. Step 1 - Identify the people or property that are materially affected by the decision. ilo Step 2 - Determine the applicable "significant segment." The definition is tied to the nature of the economic interest. If the interest is in real property, the segment must be 10% of the property owners in the jurisdiction. If the interest is personal income, the segment must be 10% of the people in the jurisdiction. If the interest is in a business, the segment must be 25% of all businesses in the jurisdiction, and must include more than a single industry° iii. Step 3 - Determine if the significant segment is affected by the governmental decision. iv. Step 4 - Determine if the governmental decision affects the decision maker in "substantially the same manner" as it affects the identified significant segment. D. Disqualification if Conflict Exists: Once a conflict is found to exist, the decision maker is disqualified from participating in making the decision, The decision maker may choose whether Or not to disclose the disqualifying interest; the disclosure is not required, An official who is disqualified from an item on the agenda for a closed. session may not attend the closed session or obtain the materials distributed for the closed session. 1) Rule of Necessity: Legally required participation allows disqualified member to participate in decisions. i. Must be no other alternative to achieve a quorum. ii. May not be used if other members who do not have a conflict are absent from meeting or . when lack of quorum caused by a vacancy. iii. May not be used to break a tie. iv. MUST disclose financial interest and why no alternate source exists. v. Re-qualify the minimum number needed by random selection. E. Limitations on Gifts: May not accept gifts from a single source totaling more than $320 in a calendar year. Same for em ployees of City--if employee is required to report gifts on the statement of economic interests. 1) Gifts Befined: Includes any paymenl or other benefit that confers a personal benefit for which you do not provide goods or services equal in value. Includes rebates, discounts unless they are made in the regular course of business to the general public. 2) Exceptions: i. Any gift you return unused to the donor or for which you reimburse the donor within 30 days. Cannot simply "throw it away." ii. Gifts donated (unopened) to a non-profit, tax exempt organization or government, within 30 · days and do not claim as a deduction for tax purposes. iii. Gifts from spouse, children, other family members unless they are acting as an agent or intermediary for another person who is the true source of the gift. iv. Gifts of hospitality involving food., drink or occasional lodging which you receive in an individual's home when the individual or a member of his or her family is present. v. Gifts of equal value exchanged between you and another person on holidays, etc. vi. Informational materials provided to assist you in the performance of your official duties. vii. Ticket~ to attend fundraisers for campaign committees or other candidates and tickets to fundraisers for organizations exempt under {}501(c)(3). viii. Free admission, refreshments, and similar non-cash nominal benefits given at an event where you gave a speech, participated in a panel or seminar or other similar service. March 20, 2002 Page 5 ~ "') Transportation within Califomia-and necessary lodging and subsistence provided directly in connection with the speech, panel, seminar are likewise not considered gifts. ix. Passes, tickets other types of things that are given to you but not used. Gifts to members of your family unless you receive direct benefit from the gift or exercise discretion and control over the use or disposition of the gift. 3) Reportable Gifts NOT subject to Limits: Exceptions to gifts but may be required to report these items and they can subject an official to disqualification. i. Certain payments for transportation, lodging and food. ii. Wedding gifts are not subject to gift limits but are reportable. One half the value of each gift is attributed to each spouse-unless clearly the gift is intended for the benefit of one spouse only. iii. A prize or award received in a bona fide competition not related to your official status. Must report if greater than $500. iv. Passes or tickets which provide admission or access to facilities, goods, services or .~ other benefits are reportable and subject to the gift limit if you use them or give them to another person. F. How to Obtain Advice: If you think you may have a conflict or are unsure as to whether you should accept a gift, travel arrangements, etc., contact City Attorney. City Attorney can provide general guidance but only FPPC can provide immunity. 1) You may also request unofficial advice from the FPPC by calling 1-866-ASK-FPPC (1-866-275- 3772). 2) FPPC Advice Letter: Only official or his or her authorized representative can seek advice concerning his/her duties. No third party advice given. i. Only written advice conveys immunity. ii. All material facts must be set out in writing; 21 working days required to respond to request. iii. No advice provided for past conduct. G. Penalties for Violation of the Political Reform Act: 1) Administrative Fine: $2,000 fine per violation. 2) Civil Remedy: If official derived economic benefit from decision, fine could amount to 3 times the benefit received. 3) Criminal Sanctions: If the official knowingly or willingly violated the law: misdemeanor conviction, fine of $10,000 or 3 times value of benefit conferred (whichever is greater and the official may not be a candidate for public office for 4 years. H. Constitutional Prohibition Constitutional Prohibition on Free Transportation: Article Xll, section 7 of the state constitution prohibits public officials from accepting free passes or discounts from transportation companies (airline, limousine/taxi service, etc.). Acceptance of such a pass or discount will result in the public official forfeiting his or her office. However, the following do not constitute an unlawful acceptance of a free pass or discount: March 20, 2002 Page 6 ~" 1) Accepting a ticket earned with "frequent-flyer" miles; 2) When the pass or discount'is offered to a greater class of individuals; for example, some airlines have a policy of offering free upgrades to honeymooners. A honeymooning public official would not be prohibited from accepting the upgrade. I, Government Code Section 1090 Prohibition on Having Financial Interest in a Contract: Government Code section 1090 prohibits a city official or officer from entering into a contract, made by them in their official capacity or by the board on which they serve, in which he or she a financial interest. Jo Common Law- Conflict of Interest. The common law doctrine against conflicts of interest is the judicial expression of the public policy against public officials using their official positions for private benefit. This doctrine has been primarily applied to require a public official to abStain from participation in cases where the public official's private financial interest may conflict with his or her official duties. By virtue of holding public office, an elected official is impliedly bound to exercise the powers conferred on him or her with disinterested skill, zeal, and diligence and primarily for the benefit of the public. An elected official bears a fiduciary duty to exercise the powers of office for the benefit of the public and is not permitted to use those powers for the benefit of private interest. Violation of the common law duty to avoid conflicts' of interest can constitute official misconduct and result in a loss of office. K, Ex Parte Contacts Frequently, the City Council acts in a quasi-judicial capacity rather than a legislative capacity. The Council acts in a quasi-judicial capacity when it sits aPplies existing laws to a specific fact situation as a judge does. For instance, the Council acts in a quasi-judicial capacity when it hears appeals from other City bodies such as the Planning Commission. In those circumstances, it is a violation of the parties' due process rights for the Council to take evidence outside of the hearing on the matter. Council members should not have conversations with the parties in the matter or undertake independent investigation of the facts. If a Council member does take evidence outside of the hearing, that evidence must be disclosed to the other members during the hearing on the record. J:\Wpd~Atty\Libby\MUNILAVV~councilmember presentation_050102.doc 75437-1 March 20, 2002 Page 7 ~/]