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Home My WebLink About2019-03-13 e-packet@4:30Wednesday, March 13, 2019 4:30 PM City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA Municipal Services Building, Council Chambers 33 Arroyo Drive, South San Francisco, CA Special City Council Special Meeting Agenda March 13, 2019Special City Council Special Meeting Agenda NOTICE IS HEREBY GIVEN, pursuant to Section 54956 of the Government Code of the State of California, the City Council of the City of South San Francisco will hold a Special Meeting on Wednesday, March 13, 2019, at 4:30 p.m., in the City Council Chambers, Municipal Services Building, 33 Arroyo Drive, South San Francisco, California. Purpose of the meeting: Call to Order. Roll Call. Agenda Review. Public Comments - comments are limited to items on the Special Meeting Agenda. PRESENTATIONS AB 1234 Ethics Training 2019.1. Adjournment. Page 2 City of South San Francisco Printed on 4/17/2019 City of South San Francisco Legislation Text P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA File #:19-202 Agenda Date:3/13/2019 Version:1 Item #:1. AB 1234 Ethics Training 2019. City of South San Francisco Printed on 3/7/2019Page 1 of 1 powered by Legistar™ 1 City of South San Francisco AB 1234 Ethics Training Claire Lai, Assistant City Attorney Tivonna Stern, Assistant City Attorney March 13, 2019 City of South San Francisco •California state law (AB 1234) imposes mandatory ethics training requirements on all local elected officials or members of legislative bodies who receive any compensation or reimbursements, and employees designated by the legislative body. •Officials must receive 2 hours of training every 2 years. Why Are We Here? City of South San Francisco City of South San Francisco •I. Personal Financial Gain by Public Officials A. Conflicts of Interest Under the Political Reform Act B. Contractual Conflicts of Interest (Gov’t Code § 1090) C. Conflicts of Interest and Campaign Contributions D. Conflicts of Interest When Leaving Office E. Bribery •II. Laws Regarding Claiming Perquisites of Office A. Limitations on Receipt of Gifts B. Honoraria Ban C. Misuse of Public Funds D. Prohibitions Against Gifts of Public Funds E. Mass Mailing Restrictions F. Prohibitions Against Free or Discounted Transportation by Transportation Companies •III. Government Transparency Laws A. Economic Interest Disclosure under the Political Reform Act B. Brown Act C. Public Records Act •IV. Laws Relating to Fair Processes A. Common Law Bias Prohibitions B. Due Process Requirements C. Doctrine of Incompatible Offices D. Incompatible Activities E. Competitive Bidding Requirements for Public Contracts F. Disqualification from Participating in Decisions Affecting Family Members (Anti‐ Nepotism Laws) AB 1234 Training Overview City of South San Francisco 2 City of South San Francisco I. Personal Financial Gain by Public Officials A. Conflicts of Interest under the Political Reform Act (PRA) B. Contractual Conflicts of Interest (Gov’t Code § 1090) C. Conflicts of Interest and Campaign Contributions D. Conflicts of Interest when Leaving Office E. Bribery City of South San Francisco A. Conflicts of Interest under PRA Basic Rule •Public officials* have a disqualifying conflict of interest under the Political Reform Act of 1974 when a decision has a: I. Personal Financial Gain by Public Officials –Reasonably foreseeable material financial effect on an official’s economic interest –Different from the effect on the public generally * For purposes of this rule, a “Public Official” is every member, officer, employee or consultant of a state or local government agency City of South San Francisco What is an “Economic Interest” under the PRA? $Investment or ownership interest valued at $2,000 or more in business entities $Management positions (directors/officers) or employment with business entities $Real property interests valued at $2,000 or more (including leases) $Sources of income of $500 or more (within previous 12 months) $Sources of gifts of $470 or more (within previous 12 months) $Any other personal financial effects on an official’s finances ** Economic interests of an official’s immediate family (e.g. spouse and children) are generally imputed to the official** I. Personal Financial Gain by Public Officials 3 City of South San Francisco How do you determine if the “Economic Interest” qualifies as a Conflict of Interest under the PRA? I. Personal Financial Gain by Public Officials 1: Is the financial effect “reasonably foreseeable”? 2: Is it “material”? 3: Is the effect on the official the same as on the “public generally”? 4: Is the official “making, participating in the making, or using his or her position to influence” the governmental decision from which the financial effects result? Four‐Part Test City of South San Francisco Conflicts of Interest under PRA I. Personal Financial Gain by Public Officials STEP 1: Is the financial effect “reasonably foreseeable?” (if not –no conflict) STANDARD: “Realistic possibility and more than hypothetical or theoretical” (but think “possible” not “likely”) City of South San Francisco •Depends upon whether an official’s financial interest is “directly” or “indirectly” involved •In general, materiality is presumed when the public official's financial interest is a party to, or the subject of, the governmental decision. I. Personal Financial Gain by Public Officials Conflicts of Interest under PRA Q: Is it material? A: Each type of financial interest has its own “materiality standard” 4 City of South San Francisco I. Personal Financial Gain by Public Officials Examples of Materiality ‐Business Investments/Positions •Application/appeal related to a permit, license, variance, use permit or other entitlement granted by the City •Offer or bid to provide services to the City •City considering inspection, proceedings, or other regulatory action against the business entity City of South San Francisco I. Personal Financial Gain by Public Officials Examples of Materiality –Real Property Interests •Adoption or amendment of a specific plan and property is located within the boundaries of such plan •Proposed zoning or rezoning of an official’s property •Issuance, denial, or revocation of a license, permit, or other land use entitlement relating to the property •500‐Foot Rule: An official whose property is located within 500 feet of other property that is the subject of a governmental decision is presumed to have a disqualifying “material” financial interest City of South San Francisco I. Personal Financial Gain by Public Officials Official’s Real Property located further than 500 feet Materiality still exists if the decision would: •Change the character of the official’s real property by substantially altering traffic levels, intensity of use (including parking) surrounding the official’s real property, the view, privacy, noise levels, air quality (including odors), or any other factor that would affect the market value of the official’s property; or •Cause a reasonably prudent person using due care and consideration under the circumstances, to believe that the decision would affect the market value of the official’s property *** Takeaway: look out for any effect on your real property even if you are outside of 500 ft. 5 City of South San Francisco I. Personal Financial Gain by Public Officials Materiality: Sources of Income, Gifts, and other Financial Effects •An official is disqualified from participating in any decision affecting any person or entity that has been a source of: –Income of $500 or more (cumulatively within past 12 mos.) –Gifts of $470 or more (cumulatively within past 12 mos.) –Any other decision in which the official or the official’s immediate family member will receive a measurable financial benefit or loss ($1 will do) •Exception: Labor agreements equally affecting all employees in the same bargaining unit City of South San Francisco •Effect on official is indistinguishable from its effect on the public generally if: I. Personal Financial Gain by Public Officials Conflicts of Interest under PRA Is the effect on the official the same as on the “public generally”? –Effect on his/her interest is not unique compared to the effect on a significant segment (e.g., Decision would have a disproportionate effect on development potential of official’s real property or on an official’s business due to its proximity to project that is subject of the decision). –Significant segment of public is affected (i.e. 25% of all businesses, real property or individuals); and City of South San Francisco Is the official “making, participating in the making, or using his or her position to influence”the governmental decision from which the financial effects result? I. Personal Financial Gain by Public Officials Conflicts of Interest under PRA Determine if the official is: •Making a decision •Participating in a decision •Using official position to attempt to influence a decision Official may still participate if an exemption applies 6 City of South San Francisco I. Personal Financial Gain by Public Officials EXEMPTIONS •Legally Required Participation: No quorum can be obtained without another decision‐maker Random means of selection must be utilized Absences and tie‐breakers are not “legally required” •Officials may appear as a member of the general public on matters relating solely to their personal interests. To the extent there are other persons with the same interest, the official with the conflict is disqualified form addressing the City in any way on that issue City of South San Francisco •Public official with a disqualifying interest must: –Publicly identify interest in sufficient detail –Recuse self from discussions or acting on matter –Leave room, unless matter on consent agenda I. Personal Financial Gain by Public Officials A. Conflicts of Interest under PRA: Recusal City of South San Francisco I. Personal Financial Gain by Public Officials B. Conflicts of Interest in Contracts: Section 1090 Basic Rule (Gov. Gov. Code section 1090) • Prohibits public officials and employees from having financial interests… •In contracts… •Made by them in their official capacities Applies Broadly • Applies to renewals, extensions, and oral contracts •“Making of a contract” is broadly defined (e.g. not just negotiations but preliminary discussions, planning, solicitation of bids) 7 City of South San Francisco City Council is deemed to make all City contracts •Legislative body members are deemed to have participated in making all contracts of the agency, except where an exception applies –Prevents the agency from entering into contract in which a member of the agency’s board or commission has a financial interest I. Personal Financial Gain by Public Officials B. Conflicts of Interest in Contracts Employees can avoid prohibition by not participating in the making of the contract City of South San Francisco Remote Interest Exceptions •City may still enter into a contract with respect to which a public official has a conflict under section 1090 if: the interest is deemed “remote” the interest is disclosed to the legislative body and noted in the minutes; and the official does not vote I. Personal Financial Gain by Public Officials B. Conflicts of Interest in Contracts City of South San Francisco Remote Interest Exceptions ‐Examples I. Personal Financial Gain by Public Officials B. Conflicts of Interest in Contracts –Supplier of same goods and services for 5 years prior to election/appointment –Employee of private party if: •10 or more employees, and •Employed more than 3 years –Employees or officers of non‐ profit corporations –Landlord or tenant of contracting party –Salary or per diem from another government entity –Engineer, geologist, or architect, employed by an engineering or architectural firm (and not an officer, director, or manager) 8 City of South San Francisco •Public official is deemed not interested and may participate in making of the contract. •Examples: I. Personal Financial Gain by Public Officials Non‐Interest Exceptions B. Conflicts of Interest in Contracts –Ownership of less than 3% of stock, constituting less than 5% of income –When other spouse is also an officer/employee of public agency, if the office holding or employment has existed at least one year prior to election/appointment –Contracts of another government agency unless the contract involves the specific department providing salary to the person in question City of South San Francisco •FPPC now has jurisdiction and can issue administrative fines –Offering section 1090 advice I. Personal Financial Gain by Public Officials Consequences of Violations B. Conflicts of Interest in Contracts •Contract is void and unenforceable –Payments made to the contracting party must be returned to the public agency –Public agency may keep benefit of the contract •Willful violations are criminal –Permanently disqualified from holding office City of South San Francisco •Public officials are disqualified from making a decision involving a license, permit, or entitlement for use if official accepted a campaign contribution exceeding $250 in the preceding 12 months. I. Personal Financial Gain by Public Officials Basic Rule C. Conflicts of Interest in Campaign Contributions –Exception for “directly elected” officials –Official may not accept a campaign contribution exceeding $250 while an application is pending, and for three months after the decision is made. 9 City of South San Francisco I. Personal Financial Gain by Public Officials D. Conflicts of Interest When Leaving Office •One year ban on lobbying former agency • Applies to elected officials, executives, and general managers • Applies only if compensated and representing another person Lobbying Former Agency • Public officials and employees are prohibited from being involved in governmental decisions directly relating to a prospective employer Decisions Involving Prospective Employers City of South San Francisco •Elements of the crime –A governmental official (elected, appointed, employed); –Requests, takes, or agrees to take a bribe; and –Represents that the bribe would unlawfully influence vote decision, or opinion. Representation can be express or implied. I. Personal Financial Gain by Public Officials Basic Rule E. Bribery “anything of value or advantage, present or prospective” •Must have corrupt intent that official duty would be unlawfully influenced City of South San Francisco 10 City of South San Francisco Question #1 •The City and SolarCity (owned by Tesla) are negotiating an energy efficiency contract to construct solar panels on City property •Two Councilmembers own Tesla stock. Can the City contract with SolarCity to install the panels? City of South San Francisco •Yes, the City most likely can enter the agreement with SolarCity. The Councilmembers’ stock interests in Tesla are most likely a “non‐interest” for purposes of Section 1090. –To be a “non‐interest,” the councilmembers must own less than 3% of Tesla’s shares and earn no more than 5% of their annual income from the stock holdings. Answer to Question #1 •However, depending on the value of the stock (e.g. $2,000), Councilmembers may have personal conflicts of interest under the PRA and/or section 1090 and would be required to recuse themselves even if the Council was able to enter into the agreement. City of South San Francisco •The Planning Commission is considering a conditional use permit (CUP) application by Jane Smith, a SSF resident proposing to open a new restaurant downtown. •One of the commissioners, who also happens to be a real estate agent, remembers that she sold Ms. Smith’s house about 10 months ago and earned her standard 3% commission on the sale. •Since this CUP application has nothing to do with the prior residential real estate transaction, the planning commissioner has determined that she does not have any conflict of interest and can participate and vote on the item. Is this true? Question #2 11 City of South San Francisco •No, since Ms. Smith was a source of income (over $500) to the planning commissioner within the past 12 months, the commissioner has a prohibited conflict of interest and is required to recuse herself. Answer to Question #2 City of South San Francisco A. Limitations on receiving gifts B. Ban on “Honoraria” C. Rules again misusing public funds D. Prohibitions against gifts of public funds E. Restrictions on “Mass Mailing” F. Prohibitions against accepting free travel or transportation discounts by transportation companies II. Laws Relating to Claiming Perquisites of Office City of South San Francisco City of South San Francisco •Gift Limit Prohibition: √Public officials and employees… √May not accept… √Gifts… √From a single source… √During a calendar year… √In excess of $470. II. Laws Relating to Claiming Perquisites of Office Basic Rule A. Gifts •REPORT gifts more than $50 from a single source in a calendar year. •DO NOT ACCEPT a gift more than $470 from a single source in a calendar year. City of South San Francisco 12 City of South San Francisco •Anything of value +personal benefit to the receiver +the giver does not receive something equal in return (“consideration”) II. Laws Relating to Claiming Perquisites of Office What is a Gift? A. Gifts Includes rebates or discounts, unless given in the regular course of business to members of the public City of South San Francisco City of South San Francisco II. Laws Relating to Claiming Perquisites of Office •Actual possession of the gift OR •Taking an action that exercises direction or control over the gift, such as: Discarding the gift giving it to someone else What does it mean to RECEIVE a gift? A. Gifts Give it back or donate it to charity City of South San Francisco City of South San Francisco II. Laws Relating to Claiming Perquisites of Office •Gifts Returned •Gifts donated to charity (without claiming a deduction) •Gifts from family members •Informational material •Inheritance •Leave credits •Disaster relief provisions •Travel and subsistence as part of campaign activities •Entrance to an event while performing a ceremonial role (includes one guest) •Prizes received in a bona fide competition Exceptions to the Gift Rule A. Gifts City of South San Francisco 13 City of South San Francisco II. Laws Relating to Claiming Perquisites of Office •Benefits received as a guest attending a wedding •Bereavement offerings •Acts of neighborliness •Reciprocal exchanges in a social relationship •Personalized plaques or trophies valued at less than $250 •Bona fide date or dating relationship •Acts of human compassion •Gifts from long‐term, close personal friends •Home hospitality Exceptions to the Gift Rule A. Gifts City of South San Francisco City of South San Francisco •Some payments are not subject to limits and not reportable, for example: From city for training or official business Sharing a ride with another official Certain travel from non‐profits •Others are not subject to limits but are reportable Travel rules are very specific; check with legal counsel if your travel will be paid for by a third party II. Laws Relating to Claiming Perquisites of Office Special exceptions for Travel Payments A. Gifts City of South San Francisco City of South San Francisco Any payment made in exchange for: II. Laws Relating to Claiming Perquisites of Office What is an “Honorarium”? B. Honoraria Ban Giving a speech, Publishing an article, or Attending a public or private conference, convention, meeting, social event, meal, or similar gathering. *But does not include items of nominal value (pen, note pad, etc.) 14 City of South San Francisco Elected officials, city managers, planning commissioners, city treasurers, city attorneys, candidates, and city employees who are required to file a Form 700 statement of economic interests, may not receive honoraria payments from any source. II. Laws Relating to Claiming Perquisites of Office Basic Rule B. Honoraria Ban City of South San Francisco II. Laws Relating to Claiming Perquisites of Office Exceptions B. Honoraria Ban Campaign contributions (but must be reported) Made directly to a bona fide non‐profit Donated to agency general fund Returned within 30 days Bona fide business (teaching, practicing law, banking, medicine) City of South San Francisco $5,000 per violation, or Three times the amount illegally obtained. II. Laws Relating to Claiming Perquisites of Office Failure to comply with the laws related to gifts, honoraria, loans, and travel payments may, depending on the violation, result in criminal prosecution and monetary penalties. Enforcement City of South San Francisco 15 City of South San Francisco •Public officials and employees may not use public resources for any private gain –Whether financial or political II. Laws Relating to Claiming Perquisites of Office Basic Rule C. Misuse of Public Funds •Government cannot expend resources to promote a partisan position in an election campaign –But it can educate about ballot measures City of South San Francisco •Legislative body’s determination of a public purpose is given great deference, as long as there is a reasonable basis. II. Laws Relating to Claiming Perquisites of Office Constitutional Prohibition D. Gifts of Public Funds •An expenditure is not a gift if it serves a public purpose, even if it benefits a private party Public agencies may not make gifts of public funds City of South San Francisco •A “mass mailing” is: –A tangible item sent or delivered –To 200 or more people within a calendar month –That “features” an elected official by: •Including the photograph or signature, or •Singling out the official by the manner of display of name or office in the layout, such as headlines, captions, type size, or type color –For which the costs of design, production, and printing exceed $50 and are paid with public monies II. Laws Relating to Claiming Perquisites of Office Basic Rule E. Mass Mailing Prohibition Mass mailings may not be sent at public expense 16 City of South San Francisco •California Constitution prohibits public officers (not all employees) from accepting free passes or discounts from a transportation company II. Laws Relating to Claiming Perquisites of Office From Travel Companies F. Acceptance of Free or Discounted Travel FREE TRAVEL •Exceptions: –While on official business & during official course of duties –discounts offered to the general public •Acceptance = automatically forfeits office City of South San FranciscoCity of South San Francisco City of South San Francisco Question #3 •During your tenure as a City official, your nice friend gives you two tickets to a show of The Phantom of the Opera in San Francisco in November. Face value on each ticket is $195. For your birthday last month, she also gave you two tickets to a show of Hamilton, which costed $160 each and you enjoyed the show very much. Can you accept the tickets for Phantom? City of South San Francisco 17 City of South San Francisco •No, the combined value of the Phantom and Hamilton tickets exceeds $470. While the value of either set of tickets alone is less than $470, you previously accepted the Hamilton tickets in the same calendar year, and accepting the Phantom tickets would exceed the $470 limit. –Or: pay for the difference and reduce amount to below the $470 limit. •However, even though the Hamilton tickets are below the $470 limit, you must disclose the gift because it is more than $50. Answer to Question #3 City of South San Francisco City of South San Francisco Question #4 •City Councilmember has campaign baseball caps made at a custom shop that is located 5 minutes from City Hall. •City staff offers to pick up the caps and return them to the Councilmember during regular business hours. May staff retrieve the caps? City of South San Francisco City of South San Francisco •No, using City staff time to obtain campaign material would constitute a misuse of public resources. –Public officials are prohibited from using public resources for private political gain. Answer to Question #4 City of South San Francisco 18 City of South San Francisco True or False •A gift to the wife of a planning commissioner is not considered a gift to the commissioner, if the donor makes no mention of the commissioner when giving the gift and does not later tell the commissioner about it. Question #5 City of South San Francisco •Generally, false •Gift to family member presumed as gift to official if: there is no pre‐existing relationship between the spouse and the donor, or the donor lobbies the city or is engaged in some action before the city where the official will participate. •Exceptions: Pre‐existing relationship between spouse & donor Wedding gifts (not subject to $470 limit, but reportable) Answer to Question #5 City of South San Francisco City of South San Francisco A. Economic interest disclosure under the Political Reform Act B. Brown Act C. Public Records Act III. Government Transparency Laws City of South San Francisco 19 City of South San Francisco •Economic Interest Disclosure –Public has right to know public officials’ economic interests that may affect their official decisions •Right to access/information –People have a right to access information that enables them to monitor the functioning of government. •Brown Act –The people have a right to be informed about the conduct of their business, and for deliberations to be conducted and actions to be taken openly. III. Government Transparency Laws Public Policy Considerations City of South San Francisco City of South San Francisco •A Form 700 must be filed by enumerated public officials including those listed in an agency’s Conflict of Interest Code •Filed upon taking office, leaving office, and on an annual basis •Requires disclosure of personal financial interests III. Government Transparency Laws Under the Political Reform Act A. Economic Interest Disclosure It’s a public document! City of South San Francisco City of South San Francisco •Reportable: –Non‐governmental salaries and income (including spouse, domestic partner) –Stocks/businesses –Real property within City –Gifts or travel payments from third parties III. Government Transparency Laws Examples of Reporting Economic Interests Form 700 City of South San Francisco •Non‐Reportable: –Insurance policies –Personal primary home –Government salary –Gifts from family members –Savings and checking accounts 20 City of South San Francisco III. Government Transparency Laws City of South San Francisco City of South San Francisco •Meetings… •Of Legislative Bodies… •Shall be open and public •And all persons shall be permitted to attend any meeting III. Government Transparency Laws Open Meeting Requirements B. Brown Act City of South San Francisco City of South San Francisco III. Government Transparency Laws Legislative Bodies What is a legislative body? Governing body Appointed body Standing committee What is not a legislative body? Ad hoc committee: if comprised of less than a quorum, serves a single/limited purpose, and for limited duration City of South San Francisco 21 City of South San Francisco •A congregation of a majority of members at the same time and place to hear, discuss, or deliberate on an item of business within the agency’s subject matter jurisdiction •Exceptions: III. Government Transparency Laws –Conferences –Community meetings –Social or ceremonial occasions –Individual contacts –Standing committees –Meetings of other legislative bodies B. Brown Act Definition of “Meetings” City of South San Francisco City of South San Francisco •Majority may not, outside a meeting, use a series of communications to discuss, deliberate, or take action on any item of business III. Government Transparency Laws B. Brown Act— Avoiding “Serial Meetings” –Does not prevent employees and officials from engaging in separate conversations outside of a meeting provided that the comments or positions of other members are not communicated City of South San Francisco City of South San Francisco Hub and spoke A staff member (the hub) communicates with members of a legislative body (the spokes) one‐by‐one for input on a proposed action and in the process reveals members’ positions to other members in advance of the meeting. III. Government Transparency Laws Examples B. Brown Act—Avoiding “Serial Meetings” 22 City of South San Francisco Daisy Chain Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated or taken action on an item within the legislative body’s subject matter jurisdiction. III. Government Transparency Laws Examples B. Brown Act—Avoiding “Serial Meetings” City of South San Francisco Emails Informal nature of email communication easily creates inadvertent Brown Act violations. III. Government Transparency Laws Examples B. Brown Act—Avoiding “Serial Meetings” City of South San Francisco •Closed session discussions are confidential •Required to publicly report certain actions taken in closed session Permissible Closed Session Topics: III. Government Transparency Laws Closed Sessions B. Brown Act •Real estate negotiations •Threatened or existing litigation •Initiation of litigation •Personnel •Labor negotiations •Public security City of South San Francisco 23 City of South San Francisco •Posting requirements: –Regular meetings must be posted 72 hours before meeting –Special meetings must be posted 24 hours before meeting III. Government Transparency Laws May take action only on items on posted agenda B. Brown Act •Exceptions –Emergency –Urgency need for immediate action came to agency’s attention after posting the agenda City of South San Francisco City of South San Francisco B. Brown Act •AB 2257: By 2019, meeting agenda must be available through a prominent, direct link on agency’s homepage. III. Government Transparency Laws •Alternatively, agency can provide a link to an integrated agenda management platform, with the current agenda at the top. City of South San Francisco •Regular meetings must provide an opportunity for the public to speak regarding any matter within the body’s jurisdiction –Legislative body may briefly respond to public, and refer matters to staff, but cannot discuss or take action III. Government Transparency Laws Public Participation Rights B. Brown Act •Public can address the legislative body on matters on the agenda before or during consideration of the item City of South San Francisco 24 City of South San Francisco III. Government Transparency Laws Public Participation Rights B. Brown Act Public has the right to make audio/video recordings City of South San Francisco City of South San FranciscoCity of South San Francisco City of South San Francisco Question #6 •The City Council creates a standing Downtown Parking Management committee of two of its five members, which meets monthly. •A third member of the City Council wants to attend these meetings and participate. 1. May she attend? 2. Is this a Brown Act violation? City of South San Francisco 25 City of South San Francisco Yes, she may attend an open and noticed meeting of a standing committee of the City IF: She attends only as an observer And does not participate in the deliberations How does it become a violation? Attending the standing committee is not a violation of the Brown Act. However, if she participates in the discussions then it would be a violation. Answer to Question #6 City of South San Francisco City of South San Francisco Question #7 •Commissioner Z e‐mails an article from The San Francisco Chronicle pertaining to an upcoming item listed on the agenda next week to the other 4 commissioners. •Commissioner Z indicates that he supports the item based on the article. Commissioners W and Y used Reply All to respond that they also support the item and that the information was very helpful. Was this a Brown Act violation? City of South San Francisco City of South San Francisco •Yes , the Commissioners have participated in a discussion of an item within the jurisdiction of the body that was not noticed, open or public. Answer to Question #7 City of South San Francisco 26 City of South San Francisco Question #8 •During public comment for items not listed on the agenda, a speaker requested that the City Council write a letter in support of SB 822, a bill to reinstate “net neutrality” rules in California. •The City Council proceeded to vote on writing the letter and it passed unanimously. Is this a Brown Act violation? City of South San Francisco City of South San Francisco •Yes; the City Council has taken action on an item that was not noticed on the agenda. Before taking action, the City Council should have directed staff to put the item on the agenda for a future City Council meeting for consideration/action. Alternatively, the City Council could refer the matter to a committee. Answer to Question #8 City of South San Francisco City of South San Francisco III. Government Transparency Laws C. Public Records Act Transparency Privacy City of South San Francisco 27 City of South San Francisco •All non‐exempt, state and local government agency records in any form or medium are subject to public inspection during office hours or copying upon payment of duplication costs III. Government Transparency Laws Basic Rule C. Public Records Act City of South San Francisco City of South San Francisco •Agencies are required to –Assist requestors with identifying records and information that are responsive to requests or to the purpose of the requests –Describe the information technology and physical location in which the records exist –Provide suggestions for overcoming any practical basis for denying access to the records or information sought. III. Government Transparency Laws Duty to Assist Requestors C. Public Records Act City of South San Francisco City of South San Francisco •Complainant information •Pending litigation •Personnel records •Medical, dental, and other insurance records •Closed session minutes and legal memoranda and other materials distributed in a closed session •Records protected by the attorney‐client privilege III. Government Transparency Laws Exemptions C. Public Records Act City of South San Francisco 28 City of South San Francisco •Emails and text messages about public business on personal phones or devices are subject to disclosure in response to a PRA request. »(City of San Jose et al. v. Superior Court, CA Supreme Court case) III. Government Transparency Laws HOT Issues C. Public Records Act •Accidental release of privileged documents does not waive the privilege »Recent decision by the CA Supreme Court (Ardon v. City of Los Angeles) City of South San Francisco City of South San Francisco •Police Personnel Files (SB 1421) Old law: all peace or custodial officer personnel files can only be disclosed through the Pitchess motion process. New law: requires disclosure of peace or custodial officer personnel under the PRA, if they related to: shooting, use of force, or sustained findings of dishonesty and sexual harassment. Became effective on January 1, 2019 III. Government Transparency Laws New Laws Relating to Law Enforcement Records C. Public Records Act City of South San Francisco City of South San Francisco •Police Personnel Files What must be disclosed? Investigative reports, interview transcripts or recordings Photo, audio, and video, findings, recommendations Materials provided to the district attorney Disciplinary records relating to the incident Can only redact for a purpose listed in the statute Exempts release of frivolous or unfounded complaint records III. Government Transparency Laws New Laws Relating to Law Enforcement Records C. Public Records Act City of South San Francisco 29 City of South San Francisco •Body Camera Footages (AB 748) Old law: the Public Records Act does not define whether “recordings” such as body camera footages are to be disclosed. New law: requires disclosure of video and audio recordings of officer‐involved shootings or use of force resulting in death or great bodily injury. 1‐year delay for active criminal investigations Will be effective on July 1, 2019 III. Government Transparency Laws New Laws Relating to Law Enforcement Records C. Public Records Act City of South San Francisco City of South San Francisco •Any person can bring a lawsuit to enforce the right to inspect or receive public records. A prevailing party will recover its court costs and reasonable attorneys’ fees. •Improper disclosure of records involving privacy rights may create liability. III. Government Transparency Laws C. Public Records Act Enforcement and Liabilities City of South San FranciscoCity of South San Francisco 30 City of South San Francisco Question #9 •For several months, two Councilmembers exchanged emails with the Parks and Recreation Director about certain complaints made by the public about the City’s table tennis class. The Councilmembers sent these emails using their private Gmail accounts, which they occasionally use for City business. •A member of the public asks the City for all emails between the two Councilmembers and the Parks and Recs Director. How should the City respond? City of South San Francisco City of South San Francisco •The City must provide the emails. The Supreme Court has decided that emails about public business exchanged between private email addresses on private devices are public records. (City of San Jose v. Superior Court) •Note: if the emails involve discussions with the City Attorney’s Office, such contents may be exempt from disclosure under the Attorney ‐Client Privilege exemption. Answer to Question #9 City of South San Francisco City of South San Francisco Question #10 •City Clerk receives a request from an individual in Seattle for names of landscape consultants that had “done business” with the City over the past three years. •The requestor asks the Clerk to put the information into a spreadsheet. How should the City respond? City of South San Francisco 31 City of South San Francisco •The City must provide records containing the information. “Done business” could mean past and current contracts, or installing landscape facilities for the City—should interpret broadly. •City does not have to create a spreadsheet, although this may be the easiest way to comply with the request. Answer to Question #10 City of South San Francisco City of South San Francisco A. Common law bias prohibitions B. Due process requirements C. Doctrine of Incompatible Offices D. Incompatible Activities E. Disqualification from participating in decisions affecting family members (anti‐nepotism laws) F. Competitive bidding requirements for public contracts IV. Laws Relating to Fair Processes City of South San Francisco •Elements: –A public officer… –Must exercise the powers conferred on him or her with disinterested skill, zeal, and diligence, and primarily for the benefit of the public One cannot be tempted by personal or pecuniary interests Applies to non‐financial interests Disqualifies one from participating IV. Laws Relating to Fair Processes A. Common Law Bias Prohibition 32 City of South San Francisco •Applies only to “quasi‐judicial” matters (i.e. those involving the application of existing rules to a specific set of facts) IV. Laws Relating to Fair Processes B. Due Process Requirements •“Procedural due process” gives those with a property interest a right to: –Notice and opportunity to be heard by –A fair and impartial decision maker City of South San Francisco •Government Code § 1099 •Elements –A person may not hold two public offices simultaneously –If the potential for conflict or overlap in the functions or responsibilities in the office exist IV. Laws Relating to Fair Processes C. Doctrine of Incompatible Offices •Forfeiture of first office •Often requires individual analysis of specific offices •Common law rule often overridden by statute City of South San Francisco •Examples of Incompatible Offices (AG Opinions): –City councilmember and water district board member –City councilmember and county planning commissioner –City councilmember and school board member –City planning commissioner and county planning commissioner –Deputy sheriff and county supervisor IV. Laws Relating to Fair Processes 33 City of South San Francisco •Similar to Incompatible Offices but applicable to nonelected City officers and employees. •General Factors: Using the prestige or influence of one’s City office or employment for private gain Soliciting money or other benefit from anyone other than the City for an act that the employee would be expected to render as part of his or her employment. Performing an activity that involves personal work that maybe the subject of inspection, review, or enforcement by the same employee or the City generally. IV. Laws Relating to Fair Processes D. Incompatible Activities City of South San Francisco •Disqualification from participating in decisions affecting family members (anti‐nepotism laws) –Political Reform Act requires recusal when decisions have a material impact on one’s spouse or dependent children. –Common law bias will require recusal in many cases. IV. Laws Relating to Fair Processes E. Anti‐Nepotism Laws and Policies City of South San Francisco •Public works projects above a certain amount must be awarded to lowest responsible bidder –Generally, applies only to construction projects IV. Laws Relating to Fair Processes E. Competitive Bidding Requirements 34 City of South San Francisco IV. Laws Relating to Fair Processes Competitive Bidding Requirements Not to protect bidders Guards against favoritism, fraud, and corruption Prevents waste of public funds Seeks to obtain best economic result for the public City of South San Francisco City of South San Francisco Question #11 •A City Planning Commissioner has authored a number of opinion articles in the local newspaper advocating against the expansion of alcohol serving establishments in the downtown area. The commissioner has also donated funds to a non‐profit corporation, the sole mission statement of which is to decrease alcohol consumption downtown. The Planning Commission is considering a Conditional Use Permit that, if granted, would extend the applicant’s allowable hours of alcohol service from 11:00 p.m. to midnight. Can the commissioner participate in consideration of this item? 35 City of South San Francisco Probably not. •Consideration of the Conditional Use Permit (CUP) is a “quasi‐judicial” matter entitling the applicant to procedural due process rights, including the opportunity to be heard by fair and impartial decision‐makers. Even though there is no financial interest, given the commissioner’s specific prior comments and actions pertaining to the service of alcohol downtown, participation in the hearing is likely to constitute impermissible bias and a violation of due procedural process. Answer to Question #11 City of South San Francisco Question #12 Can the Councilmember participate in the decision to award the grant? •A City Councilmember’s best friend is applying for a City grant program. •There are limited funds and the City received dozens of applications. •The Councilmember knows that his best friend will be very upset if he does not vote for his application and it could affect their relationship. City of South San Francisco It depends. •If, despite his personal relationship, the Councilmember can exercise his powers with disinterested skill, zeal, and diligence, and primarily for the benefit of the public, then he may participate in the decision. •If the Councilmember believes that his personal relationship would affect his ability to exercise his duties impartially, then he may have a common law conflict of interest and should recuse himself. Answer to Question #12 36 City of South San Francisco Question #13 •May the Council member serve in both roles? •A member of the City Council is elected to the County Board of Supervisors. City of South San Francisco •No, these are incompatible offices. ! There is a possibility of a significant clash of duties between the two offices. !Upon being sworn into the Board of Supervisors, the Councilmember will be deemed to have forfeited his position on the City Council. Answer to Question #13 City of South San Francisco Toll ‐free advice line: 1 (866) ASK‐FPPC Email advice: [email protected] Questions? www.fppc.ca.gov City of South San Francisco