Document elcerrito_gov_doc_bd06a859f3

THE Cl1'Y OF EL CERRITO HANDBOOK FOR APPOINTED BOARDS, COMMISSIONS AND COMMITTEES January 2007 ---PAGE BREAK--- ---PAGE BREAK--- TABLE OF CONTENTS PAGE I. INTRODUCTION 1 II. PURPOSE OF BOARDS, COMMISSIONS, AND COMMITTEES 2 III. GENERAL PROVISIONS AFFECTING BOARDS, COMMISSIONS AND COMMITTEES 3 IV. ROLE OF BOARD, COMMISSION OR COMMITTEE MEMBER 5 V. EL CERRITO BOARDS, COMMISSIONS AND COMMITTEES 8 A. Art And Culture Commission 8 B. Civil Service Commission 9 C. Committee On Aging 9 D. Crime Prevention Committee 10 E. Design Review Board 11 F. Economic Development Board 12 G. Financial Advisory Board 13 H. Human Relations Commission 14 I. Park And Recreation Commission 15 J. Planning Commission 16 K. Tree Commission 16 VI. THE BROWN ACT 17 A. Application to "Legislative Bodies" 17 B. Definition of "Meetings" and Exceptions to Meetings 18 1. The individual contact exception 19 2. The seminar or conference exception 19 3. The community meeting exception 19 4. The other legislative body exception 20 5. The social or ceremonial occasion exception 20 6. The standing committee exception 20 C. Permitted Locations of Meetings and Teleconferencing 21 D. ADA Compliance 21 E. Serial Meetings 22 1. Contacts with staff 23 2. Contacts with constituents, developers and lobbyists 23 El Cerrito Handbook for Appointed Boards, Commissions and Committees Page i ---PAGE BREAK--- 3. Contacts with fellow members of the same legislative body 24 F. Notice and Agenda Requirements 25 1. Time of notice and content of agenda 25 2. Action and discussion on non-agenda items 26 G. Public Participation 28 1. Regular meetings 28 2. Public comments at special meetings 28 3. Limitations on the length and content of public comments 29 4. Additional rights of the public 29 H. Closed Sessions 30 I. Enforcement 32 J. Conclusion 32 VII. STANDARD MEETING PROCEDURES 34 A. Type of Meetings 34 B. Conduct of Meetings 35 C. Public Hearing Procedure 37 VIII. SAMPLE PUBLIC HEARING SCRIPT .40 IX. FINDINGS IN QUASI-JUDICIAL ACTIONS 42 A. Topanga: the Cornerstone for Findings 42 Definition 42 2. Purpose 42 3. Circumstances requiring findings .43 B. Preparation of Findings: A Question of Timing 43 C. Summary: Bridging the Gap .44 D. Specific Actions Requiring Findings .45 1. Conditional Use Permit. .45 2. Variance 45 3. Tentative map or parcel map .46 4. Zone change 46 X. CONFLICTS OF INTEREST LAW 47 A. Laws Regulating Decision-making .47 1. Political Reform Act of 1974 .47 2. Government Code Section 1090 61 3. Common law doctrine against conflicts of interest 68 B. Other Specialized Conflict of Interest Laws 69 1. Common Law Doctrine Against Incompatible Offices 69 El Cerrito Handbook for Appointed Boards, Commissions and Committees Page ii ---PAGE BREAK--- 2. Incompatible Outside Activities (Government Code Section 1126 et seq.) 72 3. Redevelopment Conflicts 73 4. Discount Passes on Common Carriers 74 5. Activities of Public Officials and Employees May be Deemed to be Incompatible with their Public Entity Position Pursuant to a Local Ordinance Adopted Under Government Code Section 1126 76 6. Conflicts Upon Leaving Office - The "Revolving Door" Limitations 77 7. Laws Prohibiting Bribery 79 8. Campaign Contributions 80 9. Nepotism 83 C. Laws Regulating Receipt of Gifts, Honoraria and Loans 84 1. Limitations on receipt of gifts 85 1 2. Prohibitions on receipt of honoraria 92 3. Prohibitions on receipt of certain types of loans 94 4. Prohibition Against Mass Mailings 97 5. Expenditures to Support or Defeat a Ballot Measure 100 6. Prohibition on Gifts of Public Funds 101 7. Conclusion 102 XI. PUBLIC RECORDS 103 APPENDIX A THE RALPH M. BROWN ACT updated with changes effective January 1, 2007 1 El Cerrito Handbook for Appointed Boards, Commissions and Committees Page iii ---PAGE BREAK--- I. INTRODUCTION Congratulations! You have been selected to serve your community as a member of one of the City of El Cerrito's Boards, Commissions or Committees. The City Council and City staff believe that citizen participation is vital to the ongoing business and future progress of our community. We commend you on your commitment to the City and encourage you to become acquainted with all phases of your municipal government. As a member of a City Board, Commission or Committee, you join a special group of citizens who are believed to have the following: • A sincere interest and commitment to municipal services that are efficient, effective and of the highest quality; • Desire and ability to contribute personal time and energy to the City; • Ability to work well with others - blending tact, respect for others' opinions and open-mindedness; • Good judgment, intelligence and the courage of personal convictions; • Ability to inspire confidence and to garner the respect and support of the community. The primary purpose of this handbook is threefold. The first is to provide general guidelines for Board, Commission and Committee members in the conduct of meetings to ensure compliance with laws and policies. The second purpose is to inform Board, Commission and Committee members of the responsibilities and duties of the specific Board, Commission or Committee that they have been asked to serve. Finally, this handbook is intended to clarify relationships between appointed members and the City Council, City staff and the community. It is our hope that this handbook will assist in making your service on a City Board, Commission or Committee both effective and meaningful. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 1 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- II. PURPOSE OF BOARDS, COMMISSIONS, AND COMMITTEES The El Cerrito City Council appoints citizens to advisory groups, such as Boards, Commissions and Committees, for a variety of purposes. Boards, Commissions and Committees may be charged with studying special problems and functions of City government; advising the City Council on matters within their area of responsibility and interest as assigned by the City Council; and to focus attention on specific issues and problems within their scope of responsibility and recommend actions and alternatives for their resolution. Boards, Commissions and Committees can serve as community forums for reviewing important issues. In general, citizen advisory groups are established to provide a communication link between the community and the City Council as the City strives towards obtaining the highest possible quality of life for its residents. Citizen Boards, Commissions and Committees are advisory in nature. Boards and Commissions are directly responsible to the City Council and fill advisory and/or quasi-judicial roles. Commissions are composed of lay citizens with Board members selected for their special expertise. Committees sponsored by the City do not formally represent the City, have no official responsibility and do not fill quasi-judicial roles. Currently, there are eleven (11) City of El Cerrito Boards, Commissions and Committees: • Committee on Aging • Art and Culture Commission • Civil Service Commission • Crime Prevention Committee • Design Review Board • Economic Development Board • Financial Advisory Board • Human Relations Commission • Park and Recreation Commission • Planning Commission • Tree Commission El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 2 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- III. GENERAL PROVISIONS AFFECTING BOARDS, COMMISSIONS AND COMMITTEES The City of El Cerrito advertises all vacancies to Boards and Commissions in a local paper (West County Times) and posts notices of the vacancies in public places. At least a ten-day period is allowed for any member of the public to file an official application for the vacancy or vacancies with the City Clerk's office. An applicant may indicate interest in serving on up to three Boards or Commissions on the same application, although he or she may be appointed to only one at any one time. The City Clerk also contacts current Board and Commission members whose terms are expiring and who are eligible for reappointment to determine their interest in continued service. At the conclusion of the application period, the City Clerk schedules applicant interviews with the City Council. The City Clerk provides the City Council with meeting attendance information for any current Board or Commission member who is seeking reappointment. The City Council may waive the need to interview any candidate. The interviews are usually conducted immediately preceding a regular Council meeting. If the Council reaches a majority decision on the individuals to be selected, an announcement of the new appointees to the Boards and Commissions is made at the Council meeting that same night. Members are required to be citizens of El Cerrito, unless the City Council has established the Board or Commission to provide otherwise. The exceptions to membership criteria are noted in the discussion of each particular Board or Commission. Salaried City employees may not simultaneously hold a position on a City Board or Commission. Board and Commission membership is on a voluntary basis, i.e., without compensation. Certain expenses, if authorized in advance by the City Manager, may be reimbursed. Certain appointees are required to comply with appropriate provisions relative to disclosure of financial interests pursuant to the Political reform act of 1974, and as may be amended. Members of Boards and Commissions serve at the pleasure of the City Council. Terms of office, unless specified otherwise, are for four years commencing January 1st, and are subject to earlier termination if removed from office by a majority vote of the City Council. In order to promote consistency, the appointment terms are staggered. If a Board or Commission member resigns while still in office, a new El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 3 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- appointment is usually made to the remainder of the uncompleted portion of the term. Appointments are limited to a maximum of two full consecutive terms plus any portion of an initial partial term. Simultaneous service on more than one City Board or Commission is generally not allowed. The same principle is applicable to service on advisory groups for other agencies. It is the Board or Commission member's responsibility to request that the City Attorney review any additional appointments to local boards, commissions or committees prior to accepting appointment. Members of Boards or Commissions may seek, but not simultaneously hold, elected office. However, the meetings or other activities of the advisory bodies may not be used as a forum for a political campaign. The City's Boards and Commissions depend upon the members to fulfill their goals and conduct their normal business. Attendance at regular Board or Commission meetings is very important! Accordingly, it is presumed that any member has resigned if that member is absent for three consecutive regularly scheduled meetings, or half the meetings in a calendar year, or if the member changes residency outside the City and residency is a requirement of the membership. The chair of the Board or Commission is charged with notifying the Council of a vacancy within five days after the chair has determined that the vacancy exists. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 4 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- IV. ROLE OF BOARD, COMMISSION OR COMMITTEE MEMBER As noted, the specific function and duties of each of the City's citizen advisory groups varies widely. There are, however, certain responsibilities that are common to all Board, Commission and Committee members. The following are some guidelines that will help you realize your full potential as a member of a City Board, Commission and Committee. Also, you should review the sections on the Brown Act and Conflict of Interest Rules that follow. • Understand your role and the scope of your responsibility. Generally, your role is to advise the City Council on specific City program areas and related policies. You should not become involved in the administrative or operational matters of City departments unless specifically provided in the statement of the powers and duties of the Board, Commission or Committee. It is important that you familiarize yourself with your area of responsibility as soon as possible and that your knowledge remains current. You should take every opportunity to learn about the related City programs. Read any and all material that City staff provide to you. Soon after your initial appointment, you may want to schedule a meeting with the City staff person most familiar with the program areas assigned to your Board, Commission or Committee. A meeting will give you an opportunity to establish a working relationship with staff and pose any questions and/or concerns you may have about your new responsibilities. • Represent the community rather than any special interest. In making appointments to citizen advisory groups, the City Council often seeks to ensure that there is a diversity of backgrounds and interests. You may have been selected to serve on a Board, Commission or Committee partially because you represent a clearly defined group or a special interest. Nonetheless, the mission of all Boards, Commissions and Committees is to serve the broader community. All Boards, Commissions and Committees should welcome citizen input. As a member of one of these advisory groups, you should be committed to promoting, listening to and giving serious consideration to the full range of opinions. Your decisions should appear fair and impartial and be based on the greater public good. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 5 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • Be alert to, and take advantage of, communication opportunities. You have been placed in a position that allows you to serve as a communication link and liaison between the City Council, City staff and the public. You can make a positive contribution to resolving contradictory viewpoints. You should seize opportunities to explain City programs and recommendations and to provide a channel for citizen expression of opinions. • Maintain good working relationships with all the Board, Commission, or Committee members. Although the members often represent divergent interests, they must work as one to accomplish the goals of the Board, Commission or Committee. Cooperation is crucial to the success or failure of the advisory group. In order to build consensus and reach common goals and objectives, you should demonstrate a willingness to give objective consideration to matters before you and an ability to work to reconcile contradictory viewpoints to the extent feasible. • Follow rules and procedures. As a Board, Commission or Committee member, you are governed by City rules and procedures that apply to your area of assignment. You must also adhere to the Brown Act, which is discussed in a subsequent section, and follow the adopted procedural rules for the conduct of meetings. Subsequent chapters of this book outline the various rules and procedures applicable to certain Boards, Commissions or Committees. • Understand your relationship to the City Council and City staff. The ability of any City Board, Commission or Committee to accomplish its goals depends in part upon establishing and maintaining good working relations with the City Council and City staff. A Board, Commission or Committee member should never portray himself or herself as responsible for a decision or recommendation that rightfully belongs to the advisory group as a whole. When a member of a Board, Commission or Committee addresses the City Council on a matter, the member must represent the viewpoint of the advisory group as a whole (not a personal opinion), unless a proper qualification is made. You should avoid predicting City Council action, either publicly or privately. Further, the members of a Board, Commission or Committee occasionally make recommendations or El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 6 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- decisions that ultimately are reversed by the City Council. It is important to show respect for the authority of City Council members, who in their capacity as elected officials are charged with making decisions for the community. The City Council generally assigns one of its members to each Board or Commission with the explicit responsibility for reporting on Council actions and activities and monitoring the activities of said meeting and reporting back to the Council, as appropriate. It is not the role of the Council member to actively participate in any decision-making processes of a Board or Commission. City staff may have authority to make administrative decisions or recommendations, with which you may disagree. In this case, staff's authority should also be recognized. Board, Commission and Committee members should be careful to avoid the appearance of influencing a staff member or placing a staff member in a compromising position. Staff has technical expertise that may be made available to the Board, Commission or Committee. It is especially important that members of a Board, Commission or Committee do not ask staff to commit to work that has not been budgeted or approved, or in any way try to direct the priority of work for the department providing technical advisory staff. Any and all requests for staff assistance on new projects or the like must be made through the City Manager, who is responsible for the assignment of work to all departments. It is his/her responsibility to keep the Council informed of all such requests and to ensure that there is sufficient staff time available to work on such requests. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 7 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- V. EL CERRITO BOARDS, COMMISSIONS AND COMMITTEES A. Art And Culture Commission The Art and Culture Commission consists of seven members who demonstrate a commitment to the various arts disciplines including, but not limited to, fine arts, visual arts, performing arts, literary arts, art history, and arts education. The Art and Culture Commission has the following powers and duties: • To act in an advisory capacity to the City Council in all matters pertaining to arts in the community; • Make recommendations to the City Council concerning the resources and needs of the community on the subject of the arts, opportunities for participation of artists and performers in City-sponsored activities, and ways to encourage community involvement in the arts; • Work cooperatively with City Boards and Commissions and other public and private organizations in creating and promoting art and cultural programs and activities within the City; • Coordinate and strengthen existing organizations in the arts and develop cooperation with regional organizations; • Make recommendations to the City Council regarding the funding of community art projects, including the search for private and public grants and regarding the disbursement of revenues consistent with the needs of the community; • Review and make recommendations to the City Council upon all works of art to be acquired by the City, either by purchase, gift or otherwise, and exterior works of art installed in the City on public property; • Recommend to the City Council the adoption of such ordinances or policies as it may deem necessary for the administration and preservation of the arts and cultural development of the City. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 8 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- B. Civil Service Commission The Civil Service Commission consists of five members, who are El Cerrito residents. The Civil Service Commission meets on an as needed basis. The functions of the Civil Service Commission as specified in the Municipal Code are as follows: • To hear appeals submitted by any City of El Cerrito civil service employee relative to any disciplinary action, dismissal, demotion or alleged violation of Chapter 3.1 of the Municipal Code or the personnel rules, and to certify the Commission's findings and recommendations; • To compel witness attendance at hearings or the production of evidence for the hearing; to administer oaths to witnesses and examine witnesses under oath at hearings; • To provide advice and counsel to the personnel officer, if called upon; • To hold hearings and make recommendations on any matter of personnel administration at the request of the City Council or City Manager. C. Committee On Aging Membership on the Committee on Aging is open to any and all interested adult residents of El Cerrito. Members are appointed by the City Council upon recommendation of the Committee and there is no limit on the number of Committee members. The Committee on Aging conducts regular meetings on the 3rd Wednesday of the month at 3:00 pm in the Council Chambers. The Committee has established four long-term goals as follows: • Affordable housing options for older and disabled residents; • Adequate space and facilities for, and the provision of, quality programs and service for seniors; • Improved accessible public transportation and paratransit services for persons unable to use public transit facilities; El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 9 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • Increased support services to assist frail older adults and their families both within and outside of their homes. These goals derived from the primary duties and purposes for which the Committee was established. These functions are as follows: • To identify El Cerrito's older and/or disabled adults; • To establish regular communication and consultation among individual older and/or disabled adults; • To document needs and wants of individuals and available benefits from all agencies; • To develop comprehensive plans for programs and for utilizing the resource of talents among El Cerrito's older and/or disabled adults for inclusion in the General Plan and other plans and programs as may be .developed; • To review and evaluate existing and proposed programs within their responsibility and make recommendations to the Council on City action and funding; • To establish liaison with other interested and concerned groups. D. Crime Prevention Committee The Crime Prevention Committee, as redefined in Resolution 2001-105, consists of a minimum of five members and a maximum of fifteen (15) members. The Crime Prevention Committee meets on the 2nd Wednesday of each month at 6:30 pm in Conference Room A. The Crime Prevention Committee is charged with the following: • Developing and promoting crime prevention programs in the City such as Neighborhood Watch, home security reviews when requested by residents, National Night Out and related programs in association with City schools and groups; • Promoting cooperation with local law enforcement; El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 10 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • Promoting citizen awareness of methods to prevent crime; • Making recommendations to the City Council regarding crime prevention programs. E. Design Review Board The Design Review Board consists of five members, all of whom are residents of the City of El Cerrito. At least three of the members must be members of the design professions. The Design Review Board conducts regular meetings on the 3rd Wednesday of every month at 7:30 pm in City Hall Conference Room A. The Municipal Code specifies the following powers and duties of the Design Review Board: • To fulfill the design review function for the City as specified in Chapter 19.36 of the Municipal Code. The Design Review Board holds public hearings on applications that are not eligible for administrative design review or on appeals of decisions resulting from the administrative design review process. All projects of more than four residential units and all commercial renovations in an amount of ten thousand dollars or more are subject to review by the Board. Design review approval requires a majority vote of the Board. A tie vote has the effect of denying design review approval. A determination of the Board becomes effective five working days after the decision unless appealed to the City Council. The decisions of the Design Review Board are reported to the Planning Commission at its next regularly scheduled meeting. The Design Review Board applies the following criteria in its review of proposals: 1. The proposed development must comply with City design guidelines. 2. Exterior colors and materials of structures, landscaping and site design must be harmonious and architecturally compatible with their surrounding environment. 3. The exterior design and appearance of proposed structures must not vary so greatly in appearance from other neighborhood El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 11 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- structures so as to cause material depreciation in appearance and value of the local environment. Emphasis is placed upon exterior design with regard to height, bulk and area openings, breaks in the fa<;ade facing on a public or private street, line and pitch of roof, and arrangement of structures on the parcel. The site plan and landscaping must be appropriate to the design. 4. The circulation pattern, parking layout and points of ingress and egress (both vehicular and pedestrian) shall be designed to maximize pedestrian safety and convenience and to minimize traffic congestion. • To fulfill the functions of a board of appeals in relation to the City's sign ordinance, as specified in Title 16 of the Municipal Code. F. Economic Development Board The Economic Development Board consists of seven members who are either residents of the City or own or operate businesses in the City. As specified in the Municipal Code, at least two of the members must be business owners and operators, one of whom shall be the president of the El Cerrito Chamber of Commerce or his/her designee. The Chamber president or designee remains a member of the Board during his/her tenure as president and upon the installation of a new president, that person or designee succeeds to membership on the Board. The Economic Development Board meets twice a month: the 1st Thursday at 6:30 pm in City Hall Conference Room A and the 3rd Wednesday at 6:30 pm in the Council Chambers. The functions of the Economic Development Board are as follows: • To advise the Council on economic development matters, including budget, staffing levels, policies, selection criteria, project financial feasibility and suitability and investment of resources into proposed projects; • To make recommendations on the annual economic development work plan, including its priorities and evaluation measures; El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 12 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • To oversee the work of subcommittees established to concentrate on creating plans for high-priority areas; • To provide input to other City boards and commissions on economic development matters; • To review progress toward achieving the annual work plan goals and long range economic development goals; • To encourage community involvement in economic development; • With the advice and consent of the City Council, to form a resource council of business and community members who are available to provide assistance on an ad hoc basis. G. Financial Advisory Board The Financial Advisory Board consists of five members who reside in the City and have demonstrated expertise in financial management, accounting, fiscal analysis, computer applications, economic analysis or related skills. The Financial Advisory Board meets on the 2nd Tuesday of the month at 7:00 pm in Conference Room A of City Hall. The following are the powers and duties of the Financial Advisory Board: • To review the proposed annual budget and long-term financial plan for the City and the redevelopment agency to assist the decision-makers in determining major expenditures and revenue sources; • To develop a long-term financial plan for the City and the redevelopment agency. The Board monitors expenditures and revenue patterns and makes adjustments to the long-term financial plan as necessary; • To conduct an annual review of the City's investment policies and give consideration to the managing of the City's financial reserves to assure maximum returns on approved investments; El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 13 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • When assigned, to evaluate proposals, programs and contracts for both long- and short-term financial consequences, assess alternatives and make appropriate recommendations; • To review the annual audit and management letter and recommend changes in financial practices; • To review and make recommendations on all proposed bonds or other debt instruments to be issued by the City or redevelopment agency; • To review the form and format of budget documents, agenda bills and other recurring financial reports prepared by the City and issue recommendations regarding how the form and format may be modified to allow for greater clarity in the manner financial information is reported. H. Human Relations Commission The Municipal Code established the Human Relations Commission consisting of seven members, who are generally representative of the demographics of the City, including racial, religious, age, gender and ethnic groups. The Human Relations Commission meets on the 1st Wednesday of even numbered months at 7:00 pm in Conference Room A. The goal of the Human Relations Commission is to develop positive human relations through education, encouragement of greater respect and understanding among people, equal opportunity rights under the law and recognition of the racial, ethnic, religious and cultural diversity of the community. The purpose of the Commission is to initiate educational and cultural programs, to promote tolerance and mutual respect among all persons, and to evaluate and make recommendations regarding discrimination, if directed by the City Council. The Human Relations Commission has the following powers and duties: • To evaluate and disseminate educational and informational material relating to the elimination of prejudice and discrimination, and to the promotion of tolerance and understanding; • To initiate and encourage educational and other appropriate activities seeking to discourage or prevent discrimination; El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 14 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • If requested by the City Council, to study and make recommendations regarding problems that arise from alleged discrimination; • If requested by the City Council and to the extent not otherwise preempted or prohibited by law, to study, evaluate and mediate incidents of alleged discrimination arising in or concerning the community and its citizens; • To provide information and technical assistance to, and cooperate with, other public agencies, organizations, institutions and persons engaged in activities and programs intended to eliminate prejudice and discrimination; • To consult and maintain contact with other public agencies and community organizations concerned with interracial, interreligious and intercultural understanding and such other private organizations that further the elimination of discrimination; • To review the City's equal opportunity program and provide an annual report to the City staff and make recommendations for City Council consideration; • To develop and recommend to the City Council additional programs and practices designed to further Commission objectives. I. Park And Recreation Commission The Park and ~ecreation Commission consists of seven members. The Commission conducts regularly scheduled meetings on the 4th Wednesday of the month at 7:00 pm in the Council Chambers. The Park and Recreation Commission has the following duties according to the Municipal Code: • To act in an advisory capacity to the City Council and City Manager on all matters pertaining to public recreation, including parks, playgrounds, landscaping, child care, the arts, educational courses and entertainment; • To make recommendations regarding the annual budget, within its scope of concern; El Cerrito Handbook for Appointed Boards, Commissions a·nd Committees Page 15 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • To make recommendations to the City Council annually concerning fees for City sponsored programs; • To assist in planning recreation programs for the residents, to promote public interest therein, and to solicit the cooperation of other public and private agencies; • To make recommendations regarding present and future needs for park and recreation facilities. l. Planning Commission The Planning Commission consists of seven members. The regularly scheduled meetings of the Planning Commission are at 7:30 pm on the 1st Wednesday of the month in the Council Chambers. The Planning Commission has the powers and duties provided by the State "Planning Act" and such other duties as may be conferred upon planning commissions by State law and such duties and powers provided in the El Cerrito Municipal Code or assigned by the City Council. The following is a summary of the Commission's duties: • To hold public hearings on applications for a commission permit; to grant or deny the application and to require such modification or impose such reasonable conditions of approval as in its judgment are necessary; • To hear appe,als of the zoning administrator's decision filed by the applicant, by a resident of El Cerrito, by the owner of property located in El Cerrito or by any other person personally or financially aggrieved; • To conduct public hearings on any proposed amendment to the zoning ordinance. K. Tree Commission The Tree Commission consists of five members. Tree Commissioners are on call and meetings are scheduled when needed. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 16 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- VI. THE BROWN ACT The Ralph M. Brown Act, commonly referred to as the "Brown Act," is California's "sunshine" law for local government. It is codified in the California Government Code beginning at Section 54950. In a nutshell, the statute requires local government business to be conducted at open and public meetings, except in certain limited situations. The Brown Act is based upon state policy that the people must be . informed so they can keep control over their government. A. Application to "Legislative Bodies" The requirements of the Brown Act apply to "legislative bodies" of cities and other local agencies. The term "legislative body" is defined to include the governing body of a local agency ( e.g., the City Council) and any commission, committee, board or other body of the local agency, whether permanent or temporary, decision making or advisory, that is created by formal action of a legislative body (Section 54952). Standing committees of a legislative body are subject to the requirements · of the Brown Act if they have either a "continuing subject matter jurisdiction" or a meeting schedule fixed by formal action of the legislative body. Such standing committees exist to make routine and regular recommendations on a specific subject. They survive resolution of any one task, and are a regular part of the governmental structure. The Brown Act does not apply to an advisory committee of a legislative body if the advisory committee is composed solely of members of the legislative body, but less then a quorum of the body, and it does not have a continuing subject matter jurisdiction or a meeting schedule fixed by formal action of a legislative body. Such advisory committees generally serve only a limited or single purpose. They are not perpetual and they are dissolved when their specific task is completed. Advisory and standing committees may, but are not required to, have regular meeting schedules. Even if such a committee does not have a regular meeting schedule, its agendas should be posted at least 72 hours in advance of the meeting. If this is done, then the meeting is considered to be a "regular" meeting for all purposes. If not, then the meeting must be treated as a "special" meeting, and all of the El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 17 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- limitations and requirements for special meetings apply. The differences between regular and special meetings are explained in Sections F and G below. Governing boards of private entities are subject to the Brown Act under certain circumstances. Specifically, a private entity's governing board constitutes a Brown Act legislative body if either of the following applies: the private entity is created by an elected legislative body to exercise lawfully delegated authority of the legislative body; or (ii) the private entity receives funds from a local agency and the private entity's governing board includes a member of the legislative body who was appointed by the legislative body to the governing board as a full voting member (Section 54952). Finally, the Brown Act applies to persons who are elected to serve as members of a legislative body of a local agency even before they assume the duties of office (Section 54952.1). Although this provision only technically applies to "elected officials", we advise all Board, Commission and Committee Members to follow the Brown Act rules as soon as they are appointed to the position even before they assume any duties of office. B. Definition of "Meetings" and Exceptions to Meetings The central provision of the Brown Act requires that all "meetings" of a legislative body be open and public. The Brown Act meaning of the term "meeting" (Section 54952.2) is a very broad definition that encompasses almost every gathering of a majority of legislative body members and includes: "any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains." In plain English, this means that a meeting is any gathering of a majority of City commissioners, board or committee members to hear or discuss any item of City business or potential City business. There are six types of gatherings that are exceptions to the Brown Act's meeting definition and therefore are not subject to the statute. We refer to these exceptions as: the individual contact exception; the seminar or conference El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 18 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- exception; the community meeting exception; the other legislative body exception; the social or ceremonial occasion exception; and the standing committee exception. Unless the gathering falls within one of these exceptions, if a majority of councilmembers (or commissioners) are in the same room and merely listen to a discussion of City business, then they will be participating in a Brown Act meeting that requires notice, an agenda, and a period for public comment. 1. The individual contact exception Conversations, whether in person, by telephone or other means, between a legislative body member and any other person do not constitute a meeting (Section 54952.2(c)(l)). However, such contacts may constitute a "serial meeting" in violation of the Brown Act if they are part of a series of individual contacts with other members of the legislative body for the purpose of "developing a collective concurrence." An explanation of what constitutes a serial meeting follows in Section E below. 2. The seminar or conference exception The attendance by a majority of legislative body members at a seminar, conference or similar educational gathering also is generally exempted from Brown Act requirements (Section 54952.2 In order to qualify under this exception, the seminar or conference must be open to the public and must involve issues of general interest to the public or to cities. A California League of Cities seminar is an example of an educational gathering that fulfills these requirements. However, this exception will not apply to a conference or seminar if a majority of legislative body members discuss among themselves items of, specific business relating to their own local agency other than as part of the scheduled program. 3. The community meeting exception The community meeting exception allows a majority of legislative body members to attend privately-sponsored neighborhood meetings, town hall forums, chamber of commerce lunches or other community meetings at which issues of local interest are discussed (Section 54952.2(c)(3)). In order to fall within this exception, though, the community meeting must be "open and publicized." This means that attendance by a majority of legislative body members at a homeowners association meeting that is limited to the residents of a particular development and only publicized among members of that development would not qualify for this exemption. Also, as El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 19 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- with the other meeting exceptions, a majority of legislative body members cannot discuss among themselves items of business of their own local agency other than as part of the scheduled program. 4. The other legislative body exception This exception allows a majority of members of any legislative body to attend meetings of other legislative bodies of their local agency, or of another local agency, without treating such attendance as a meeting of the body (Section 54952.2(c)( Of course, as with other meeting exceptions, the legislative body members are prohibited from discussing items of business of their local agency among themselves other than as part of the scheduled meeting. 5. The social or ceremonial occasion exception Brown Act requirements do not apply to attendance by a majority of legislative body members at a purely social or ceremonial occasion (Section 54942.2(c)(S)). This exception only applies, though, if a majority of legislative body members do not discuss among themselves items of business of their local agency. 6. The standing committee exception This exception allows members of a legislative body who are not members of a standing committee of that body to attend an open and noticed meeting of the standing committee without making the gathering a meeting of the full legislative body itself (Section 54952.2(c)(6)). The standing committee exception addresses the situation where the attendance at a standing committee meeting by legislative body members who are not standing committee members would create a gathering of a majority of the legislative body (and therefore, a "meeting" of the legislative body). In order to fall within the standing committee exception, the legislative body members who are not members of the standing committee may attend only as "observers." This means that such persons should not speak at the standing committee's meeting, sit in their usual seat on the dais or otherwise participate in the meeting. To avoid this awkward situation, we generally recommend that, if a standing committee meeting is likely to be attended by other legislative body members, then the meeting should be agendized as a meeting of the whole legislative body. This will allow participation by all the legislative body members. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 20 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- C. Permitted Locations of Meetings and Teleconferencing The Brown Act generally requires all meetings of a legislative body to occur within the boundaries of the local agency (Section 54954(b)). There are exceptions to this rule, however, such as one to allow meetings with a legislative body of another local agency in that agency's jurisdiction. Meetings held outside of a local agency's boundaries pursuant to an exception still must comply with agenda and notice requirements, which are discussed in Section F below. "Teleconferencing" may be used as a method for conducting meetings whereby members of a legislative body may be counted towards a quorum and participate fully in the meeting from remote locations (Section 54953(b)). The following requirements apply: the remote locations may be connected to the main meeting location by telephone, video or both; the notice and agenda of the meeting must identify the remote locations; the remote locations must be posted and accessible to the public; all votes must be by roll call; and the meeting must in all respects comply with the Brown Act, including participation by members of the public present in remote locations. A quorum of the legislative body must participate from locations within the jurisdiction, but other members may participate from outside the jurisdiction. The teleconferencing rules only apply to members of the legislative body; they do not apply to staff members, attorneys or consultants who can participate remotely without following the posting and public access requirements. D. ADA Compliance All meetings of a legislative body, other than closed session meetings or parts of meetings involving a closed session, are required to be held in a location and conducted in a manner that complies with the Americans with Disabilities Act of 1990 (Section 54953.2). In addition, if requested, the agenda and documents in the agenda packet shall be made available in alternative formats to persons with a disability (Section 54954.1). The agenda shall include information regarding how, to whom, and when a request for disability-related modification or accommodation, including auxiliary aids or services, may be made by a person with a disability who requires a modification or accommodation in order to participate in the meeting. (Section 54954.2). El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 21 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- E. Serial Meetings In addition to regulating gatherings of a majority of legislative body members, the Brown Act also addresses some contacts between individual legislative body members. As explained in Section B above, the individual contact exception to the "meeting" definition specifically states that nothing in the statute is intended to impose requirements on individual contacts or conversations between a legislative body member and any other person (Section 54952.2(c)(l)). Despite this exception, however, the Brown Act does prohibit a series of such individual contacts (commonly referred to as a "serial meeting") if they result in a majority of legislative body members developing a "collective concurrence as to action to be taken on an item by the members of the legislative body." (Section 54952.2(b)). A serial meeting is a series of meetings or communications between individual members of a legislative body in which ideas are exchanged among a majority of a legislative body through either one or more persons acting as intermediaries or through use of a telephone answering machine, e-mail or voice mail. A serial meeting can occur even though a majority of legislative body members never gather in a room at the same time, and it typically results in one of two ways. The first is when a staff member, a legislative body member, or some other person individually contacts a majority of legislative body members and shares ideas among the majority ("I've talked to members A and B and they will vote 'yes.' Will you?"). Alternatively, member A calls member B, who then calls member C, and so on, until a majority of the legislative body has reached a collective concurrence on a matter. The prohibition against serial meetings does not prohibit all communication between individuals regarding city business. The Brown Act only prohibits the use of serial meetings for the purpose of "developing a collective concurrence" concerning an issue. However, this phrase should not be interpreted too narrowly. Merely the exchange of information or discussion of ideas about a matter of city business will probably be interpreted to be an effort "to develop a collective concurrence." Observing the following guidelines can avoid inadvertent violation of the serial meeting rule. These rules of conduct apply only when a majority of a legislative body is involved in a series of individual contacts or communications, whether with local agency staff members, constituents, developers, lobbyists or other members of the legislative body. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 22 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 1. Contacts with staff Staff can inadvertently become a conduit among a majority of a legislative body in the course of providing briefings on items of local agency business. The Attorney General has taken the position that, when local agency staff individually briefs a majority of legislative body members, such briefing necessarily constitutes an illegal serial meeting. We do not agree with this highly restrictive interpretation, but there is no doubt that staff briefings can easily lead to a collective concurrence if not handled carefully. To avoid development of a collective concurrence in contacts with staff: • Staff briefings of legislative body members should be "uni-directional" when done on an individual basis for a majority of the legislative body members. This means that information should flow from staff to the member, and the r;nember's participation should be limited to asking questions and acquiring information. Otherwise, multiple members could separately give staff direction thereby causing staff to shape or modify their ultimate recommendations in order to reconcile the views of the various members, resulting in a collective concurrence. • A legislative body member should not ask staff to describe the views of other legislative body members, and staff should not volunteer those views if known. • Staff may present their views to a legislative body member during an individual contact, but staff should not ask for that member's views. Additionally, th,at member should avoid disclosing his or her views unless it is absolutely clear that staff is not discussing the matter with a majority of the legislative body. 2. Contacts with constituents, developers and lobbyists A constituent, developer or lobbyist can also inadvertently become an intermediary among a majority of members of a legislative body thereby creating an illegal serial meeting in violation of the Brown Act. Such persons' unfamiliarity with the requirements of the Brown Act could aggravate this potential problem because they may expect a legislative body member to be willing to commit to a position in a private conversation in advance of a meeting. To avoid development of a collective concurrence in contacts with constituents, developers and lobbyists: El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 23 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • State the ground rules "up front." Ask if the person has talked, or intends to talk, with other members of the legislative body about the same subject. If the answer is "yes," then make it clear that the person should not disclose the views of other legislative body members during the conversation. • Explain to the person that you will not make a final decision on a matter prior to the meeting. For example: "State law prevents me from giving you a commitment outside a meeting. I will listen to what you have to say and give it consideration as I make up my mind." • Do more listening and asking questions than expressing opinions. If you disclose your thoughts about a matter, counsel the person not to share them with other members of the legislative body. 3. Contacts with fellow members of the same legislative body Direct contacts concerning local agency business with fellow members of the same legislative body whether through face-to-face or telephonic conversations, notes, letters, e-mail or staff members are the most obvious means by which an illegal serial meeting can occur. This is not to say that a legislative body member is precluded from discussing items of local agency business with another legislative body member outside of a meeting; as long as the communication does not involve a majority of the legislative body, no "meeting" has occurred. There is, however, always the risk that one participant in the communication will disclose the views of the other participant to a third or fqurth legislative body member, creating the possibility a collective concurrence will be achieved outside a public meeting. Therefore, avoid discussing City business with a majority of the members of your legislative body, and avoid communicating the views of other legislative body members outside a meeting. These suggested rules of conduct may seem unduly restrictive and impractical, and may make acquisition of important information more difficult or time- consuming. Nevertheless, following them will help assure that your conduct comports with the Brown Act's goal of achieving open government. If you have questions about compliance with the Act in any given situation, please ask the City Attorney for advice. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 24 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- F. Notice and Agenda Requirements 1. Time of notice and content of agenda Two key provisions of the Brown Act which ensure the public's business is conducted openly are the requirements that legislative bodies publicly post agendas prior to their meetings (Sections 54954.2, 54955, 54956) and that no action or discussion may occur on items or subjects not listed on the posted agenda (Section 54954.2). Limited exceptions to the rule against discussing or taking action not on a posted agenda are included in the Brown Act and are discussed further below. Legislative bodies, except advisory committees and standing committees, are required to establish a time and place for holding regular meetings (Section 54954(a)). A "regular" meeting is a meeting that occurs on the legislative body's established meeting day. Agendas for a regular meeting must be publicly posted 72 hours in advance of the meeting in a place that is freely accessible to the public, and must contain a brief general description of each item of business to be transacted or discussed (Section 54954.2(a)). The description need not exceed 20 words. A "special" meeting is a meeting that is held at a time or place other than the time and place established for regular meetings. For special meetings, the "call and notice" of the meeting and the agenda must be posted at least 24 hours prior to the meeting (Section 54956). Additionally, each member of the legislative body must personally receive written notice of the special meeting either by personal delivery or by "any other means" (such as facsimile, e"'mail or U.S. mail) at least 24 hours before the time of the special meeting, unless they have previously waived receipt of written notice. Members of the press (including radio and television stations) and other members of the public can also request written notice of special meetings and, if they have, then that notice must be given at the same time notice is provided to members of the legislative body. An "emergency" meeting may be called to address certain emergencies, such as a terrorist act or crippling disaster, without complying with the 24-hour notice requirement. Certain requirements apply for notifying the press and for conducting closed sessions as part of those meetings, and except as specified, all other rules governing special meetings apply. (Section 54956.5). El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 25 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Both regular and special meetings may be adjourned to another time. Notices of adjourned meetings must be posted on the door of the meeting chambers where the meeting occurred within 24 hours after the meeting is adjourned (Section 54955). If the adjourned meeting occurs more than five days after the prior meeting, a new agenda for that adjourned meeting must be posted 72 hours in advance of the adjourned meeting (Section 54954.2(b)(3)). The Brown Act requires local agencies to mail the agenda or the full agenda packet to any person making a written request no later than the time the agenda is posted or is delivered to the members of the body, whichever is earlier. A local agency may charge a fee to recover its costs of copying and mailing. Any person may make a standing request to receive these materials, in which event the request must be renewed annually. Failure by any requestor to receive the agenda does not constitute grounds to invalidate any action taken at a meeting (Section 54954.1). 2. Action and discussion on non-agenda items The Brown Act also ensures the public's business is conducted openly by restricting legislative bodies' ability to deviate from posted agendas. The statute affords legislative bodies limited authority to act on or discuss non-agenda items at regular meetings, but forbids doing so at special meetings. As a general rule, a legislative body may not act on or dfscuss any item that does not appear on the agenda posted for a regular meeting (Section 54954.2). This rule does not, however, preclude a legislative body from acting on a non-agenda item if it determines by a, majority vote that an emergency situation exists. For purposes of this exception, the term "emergency situation" refers to work stoppages or crippling disasters that severely impair public health, safety or both. The rule also does not preclude a legislative body from acting on a non-agenda item that the body finds came to the local agency's attention subsequent to the agenda posting and requires immediate action. In order to utilize this exception, the legislative body must make these findings by a two-thirds vote of those present (by unanimous vote if less than two-thirds of the body is present). This means that if four members of a five-member body are present, three votes are required to add the item; if only three are present, a unanimous vote is required. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 26 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Legislative bodies may, notwithstanding the general rule set forth above, discuss non-agenda items at a regular meeting pursuant to certain exceptions. These exceptions are as follows: • Legislative body members or staff may briefly respond to statements made or questions posed by persons during public comment periods; • Legislative body members or staff may ask a question for clarification, make a brief announcement or make a brief report on their own activities; • Legislative body members may, subject to the procedural rules of the body, provide a reference to staff or other resources for factual information; • Legislative body members may, subject to the procedural rules of the body, request staff to report back to the legislative body at a subsequent meeting concerning any matter; and • Legislative body members may, subject to the procedural rules of the body, take action to direct staff to place a matter of business on a future agenda. The legislative body may not discuss non-agenda items to any significant degree under these exceptions. This means there should not be long or wide-ranging question and answer sessions on non-agenda items between the legislative body and the public or between the legislative body and staff. It is important to follow these exceptions carefully and construe them narrowly to avoid tainting an important and complex action by a non-agendized discussion of the item. The Brown Act contains even more stringent regulations to restrict action and discussion on non-agenda items at special meetings. In particular, the statute mandates that only business that is specified in the "call and notice" of the special meeting may be considered by the legislative body (Section 54956). There are no exceptions to this rule. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 27 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- G. Public Participation 1. Regular meetings The Brown Act mandates that every agenda for a regular meeting provide an opportunity for members of the public to directly address the legislative body on any matter that is within the subject matter jurisdiction of the legislative body (Section 54954.3(a)). In addition, the Brown Act requires the legislative body to allow members of the public to comment on any item on the agenda either before or during the body's consideration of that item (Section 54954.3(a)). Some local agencies accomplish both requirements by placing a general audience comment period at the beginning of the agenda where the public can comment on both agenda and non-agenda items. Others provide public comment periods as each item or group of items comes up on the agenda, and then leave the general public comment period to the end of the agenda. Either method is permissible, though public comment on public hearing items must be taken during the hearing. The Brown Act allows a legislative body to preclude public comments on an agenda item in one situation - where the item was considered by a committee, composed solely of members of the body, that held a meeting where public comments on that item were allowed. So, if the legislative body has standing committees (which are required to have agendized and open meetings with an opportunity for the public to comment on agenda items) and the committee has previously considered an item, then at the time the item comes before the full legislative body, the body may choose not to take additional public comm~nts on that item. However, if the version presented to the full legislative body is different from the version presented to, and considered by, the committee, then the public must be given another opportunity to speak on that item at the meeting of the full body (Section 54954.3). 2. Public comments at special meetings The Brown Act requires that agendas for special meetings provide an opportunity for members of the public to address the legislative body concerning any item listed on the agenda prior to the body's consideration of that item (Section 54954.3(a)). Unlike regular meetings, though, in a special meeting, the legislative body does not have to allow public comment on non-agenda matters. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 28 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 3. Limitations on the length and content of public comments A legislative body may adopt reasonable regulations limiting the total amount of time allocated to each person for public testimony. Typical time limits restrict speakers to three or five minutes. A legislative body may also adopt reasonable regulations limiting the total amount of time allocated for public testimony on legislative matters, such as a zoning ordinance or other regulatory ordinance (Section 54954.3(b However, we do not recommend setting total time limits per item for any quasi-judicial matter, such as a conditional use permit application, because such a restriction could result in a violation of the due process rights of those who were not able to speak to the body during the time allotted. The Brown Act precludes a legislative body from prohibiting public criticism of the policies, procedures, programs, or services of the local agency or the acts or omissions of the body (Section 54954.3(c)). This prohibition does not mean that a member of the public may say anything during public testimony. If the topic of the public's comments is not within the subject matter jurisdiction of the local agency, then the legislative body may stop a speaker's comments. A legislative body also may adopt reasonable rules of decorum that preclude a speaker from disrupting, disturbing or otherwise impeding the orderly conduct of its meetings (Section 54954.3(b)). The right to publicly criticize a public official does not include the right to slander that official, though the line between criticism and slander is often difficult to determine in the heat of the moment. Care must be given to avoid violating the free speech rights of speakers by suppressing opinions relevant to the business of the legislative body. Finally, in some circumstances, the use of profanity may serve as a basis for stopping a speaker. It will depend, however, upon what profane words or comments are made and the context of those comments. Therefore, no one should be ruled out of order for profanity unless the language both is truly objectionable and causes a disturbance or disruption in the proceeding. 4. Additional rights of the public The Brown Act grants the public the right to videotape or broadcast a public meeting, as well as the right to make a motion picture or still camera record of such meeting (Section 54953.S(a)). A legislative body may prohibit or limit recording of El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 29 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- a meeting, however, if the body finds that the recording cannot continue without noise, illumination, or view obstruction that constitutes, or would constitute, a disruption of the proceedings (Section 54953.6)). Any audio or video tape record of an open and public meeting that is made, for whatever purpose, by or at the direction of the local agency, is a public record and is subject to inspection by the public consistent with the requirements of the Public Records Act (Section 54953.5(b)). The local agency must not destroy the tape or film record for at least 30 days following the date of the taping or recording. Inspection of the audiotape or videotape must be made available to the public for free on equipment provided by the local agency. The Brown Act requires written material distributed to a majority of the body by any person to be provided to the public without delay. If the material is distributed during the meeting and prepared by the local agency, it must be available for public inspection at the meeting. If it is distributed during the meeting by a member of the public, it must be made available for public inspection after the meeting (Section 54957 This rule is inapplicable, however, to attorney-client memoranda. The California Supreme Court affirmed the confidentiality of such documents in the case of Roberts v. City of Palmdale, 5 Cal.4th 363 (1993). One problem in applying this rule arises when written materials are distributed directly to a majority of the legislative body without knowledge of staff, or even without the legislative body members knowing that a majority has received it. The law still requires these materials to be treated as public records. Thus, it is a good idea for at least one member of the legislative body to ensure that staff gets a copy of any document distributed to members of the legislative body so that copies can be made for the local agency's records and for members of the public who request a copy. H. Closed Sessions {This section on Closed Sessions will most likely apply only to the Civil Service Commission.) The Brown Act allows a legislative body to convene a "closed session" during a meeting in order to meet privately with its advisors on specifically enumerated topics. Sometimes people refer to closed sessions as "executive sessions," which is a holdover term from the statute's early days. Examples of business that may be El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 30 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- conducted in closed session include personnel evaluations, threats to public safety, labor negotiations, pending litigation, real estate negotiations, and consideration of a response to an audit report (Sections 54956.8, 54956.9, 54957 and 54957.6). Political sensitivity of an item is not a lawful reason for a closed session discussion. The Brown Act requires that closed session business be described on the public agenda. Moreover, there is a "bonus" of sorts for using prescribed language to describe closed sessions in that legal challenges to the adequacy of the description are precluded (Section 54954.5). This so-called. "safe harbor" encourages many local agencies to use a very similar agenda format. Tape recording of closed sessions is not required unless a court orders such taping after finding a closed session violation (Section 54960). Closed sessions may be started in a location different from the usual meeting place as long as the location is noted on the agenda and the public can be present when the meeting first begins. Moreover, public comment on closed session items must be allowed before convening the closed session. After a closed session, the legislative body must reconvene the public meeting and publicly report certain types of actions if they were taken, and the vote on those actions (Section 54957.1). There are limited exceptions for specified litigation decisions, and to protect the victims of sexual misconduct or child abuse. Contracts, settlement agreements or other documents that are finally approved or adopted in closed session must be provided at the time the closed session ends to any person who has made a standing request for all documentation in connection with a request for notice of meetings (typically members of the media) and to any person who makes a request within 24 hours of the posting of the agenda, if the requester is present when the closed session ends (Section 54957.1). One perennial area of confusion is whether a legislative body may discuss salary and benefits of an individual employee (such as a City Manager) as part of a performance evaluation session under Section 54957. It may not. However, the body may designate a negotiator to negotiate with that employee and meet with its negotiator in closed session under Section 54957.6 to provide directions. The employee in question may not be present in such a closed session. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 31 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- The Brown Act prohibits attendees from disclosing confidential information obtained during a closed session, unless the legislative body authorizes the disclosure. Violations can be addressed through injunctions, disciplinary action, and referral to the grand jury (Section 54963). I. Enforcement There are both civil remedies and criminal misdemeanor penalties for Brown Act violations. The civil remedies include injunctions against further violations, orders nullifying any unlawful action, orders determining the validity of any rule to penalize or discourage the expression of a member of the legislative body, and remedies for breaching closed session confidences (Sections 54960, 54960.1 and 54963). Prior to filing suit to challenge an alleged Brown Act violation, the complaining party must make a written demand on the legislative body to cure or correct the alleged violation. The written demand must be made within 90 days after the challenged action was taken. However, if the challenged action was taken in open session and involves a violation of the agenda requirements of Section 54954.2, then the written demand must be made within 30 days. The legislative body is required to cure or correct the challenged action and inform the party who filed the demand of its correcting actions, or its decision not to cure or correct, within 30 days. The complaining party must file suit within 15 days after receipt of the written notice from the legislative body, or if there is no written response, within 15 days after the 30-day cure period expires. A member of a legislative body will not be criminally liable for a violation of the Brown Act unless the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled to under the Brown Act (Section 54959). This standard became effective in 1994 and is a different standard from most criminal standards. Until it is applied and interpreted by a court, it is not clear what type of evidence will be necessary to prosecute a Brown Act violation. J. Conclusion The Brown Act can be confusing, and compliance with it can be difficult, due to the statute's many rules and ambiguities. Nonetheless, noncompliance with the El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 32 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Act is not an option. In the event that you have any questions regarding any provision of the law, please ask the City Attorney for advice. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 33 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- VII. STANDARD MEETING PROCEDURES Board and Commission meetings are held regularly in a public meeting room and are run using Sturgis Standard Code of Parliamentary Procedure or by other rules of procedure adopted by the Board or Commission. A quorum consists of a simple majority of the members. The chairperson is primarily responsible for seeing that all agenda items are considered in both an expeditious and thorough manner. Each Board, Commission or Committee member should also be familiar with the procedural rules applicable to the meeting. Members can assist in moving agenda items along at an appropriate pace by becoming thoroughly familiar with the material provided in advance of the meeting. Preparation, especially when complex issues are involved, reduces the chance of confusion. Committees are governed by the same criteria as Boards and Commissions unless otherwise prescribed by Council resolution. A. Type of Meetings Regular Meetings: All regular business of a Board, Commission or Committee should be conducted at a regular, meeting. Once a regular meeting is adjourned, the Board, Commission or Committee may not meet again until the next regular meeting, unless the meeting is adjourned to a different time or unless a special meeting is called, as described below. Field trips and \\study sessions" occurring on a date other than a regular meeting date are conducted as adjourned meetings or special meetings. Adjourned Meetings: At the conclusion of a regular meeting, the Chair may adjourn the meeting to a specific time, place and date. This allows for an extension of the regular meeting. If a regular meeting of a Board, Commission or Committee is adjourned to another time, the Secretary shall post a notice of the adjourned meeting. Adjourned meetings can be again adjourned to a date, time and place specific; however, once any meeting is finally adjourned, it cannot be reconvened. Special Meetings: Special meetings may be called by the Chair or by a majority of a Board, Commission or Committee under the following guidelines: • Written notice must be delivered personally or by any other means to each member of the Board, Commission or Committee, the City Clerk, and El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 34 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- the local media, at least 24 hours prior to the meeting. Notices must also be posted, at least 24 hours prior to the meeting, at the designated posting places in the City. • The notice must contain the subjects of the meeting and only those subjects may be considered at the special meeting. Special meetings can be adjourned to a specific time, place and date in the same manner as regular and adjourned meetings. B. Conduct of Meetings At the first meeting of each calendar year, the Board or Commission selects its officers. These consist of a chairperson, a vice-chairperson and a secretary, unless otherwise provided. City staff provides appropriate notice to the Board or Commission members of the agenda for each meeting and mails the draft minutes of the previous meeting to the members. City staff may provide assistance at the meetings of the Board or Commission, including serving as secretary if assigned. Chair: The Chair presides at all Board, Commission or Committee meetings. The chairperson is primarily responsible for seeing that all agenda items are considered in both an expeditious and thorough manner. The chairperson should be selected for his/her ability to be strong in directing the meeting according to established rules and procedures, yet flexible and able to facilitate open discussion and problem resolution. The Board, Commission or Committee elects a Vice-Chair to serve in the absence of the Chair. Secretary: The Secretary takes and prepares minutes of each meeting and is responsible for ensuring that meeting notices are properly posted or delivered. The secretary prepares draft minutes for Board, Commission or Committee review within ten days of the meeting. Minutes become a part of the City's official records. The minutes are "summary" rather than "verbatim" and briefly describe the issues and actions taken. Minority opinions of members may also be recorded. Also, if a member abstains for legal conflict of interest requirements, he or she must state the reason and this is recorded in the minutes. Agenda: Under the Brown Act, agendas must be posted before each regular and special meeting. Agendas must be posted no later than 72 hours in El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 35 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- advance of all regular or adjourned meetings and no later than 24 hours in advance of special meetings. All agendas are available for public review, although if the agenda packet contains memoranda from the City Attorney's office stamped "Confidential", these confidential memoranda are not made available to the public as they are attorney-client privileged documents. Conduct of Hearings: The general manner of conducting hearings is within the control and discretion of the Chair. After sufficient discussion and presentation of a matter, the Chair or any member entitled to vote upon the matter may introduce a motion to decide the matter. Reopening of Hearings: In general, no hearing that has once been closed may be reopened without additional notice in the same manner as the original hearing. This rule is inapplicable, however, when the hearing is reopened at the same meeting it was closed and the Board, Commission or Committee finds that everyone present during the original proceeding is still present at the time of the reopening and the hearing is reopened before the Board, Commission or Committee takes up another matter. Voting: A quorum consists of a majority of the members of the Board, Commission or Committee. Unless a particular rule requires a minimum of three votes or a supermajority, a majority of those voting "yes" or "no" is sufficient to pass a matter a 2-1 vote, with two absences or abstentions is sufficient to approve the minutes). The most common minimum majority requirement is that a two-thirds majority is required to find that a matter can be appropriately added to an agenda because the need to consider the matter came to the City's attention after the posting of the agenda. When the Board, Commission or Committee is acting in a quasi-judicial capacity, and if a Board, Commission or Committee member is to vote on a matter that is the subject of a public hearing, the member must be present during the public hearing. However, if the public hearing has been closed and continued for a decision to another date, or the hearing continued to another date, then an absent member can vote if the member has listened to the full tape of the prior hearing(s) and read all documents considered at the prior or hearing(s) on the matter. When an absent member has listened to the tape and read the documents, the member should state this fact for the record before participating in the hearing. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 36 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Limitations on Collecting Evidence Outside of the Hearing: The concept of a fair hearing includes the requirement that all evidence that serves as the basis of an adjudicative decision must be in the record so that it is subject to rebuttal. This can be a problem if Board, Commission or Committee members make a decision relying on evidence that is collected outside of the public hearing and not disclosed on the record. For the purpose of limiting the decision-making process to evidence presented in the record, it is preferable that members avoid speaking to applicants or other people from the public about a matter that is the subject of an adjudicative decision. In the event that a member does have a conversation with an applicant or person from the public on such a matter, the member should identify on the record with whom he or she spoke, and the subject of the conversation. In this way the evidence obtained by the individual member will become part of the record, and will be subject to rebuttal during the hearing. C. Public Hearing Procedure In some instances, Board or Commissions will have to conduct a public hearing, either on a major issue of concern to the community or on a permit application or appeal of a staff decision. It is recommended that after opening the public hearing, the applicant or appellant, if present, should be invited to speak first. Following the presentation by the applicant or appellant, the additional speakers can be divided based upon their stand on the issue or allowed to speak in a random order. It is often best to divide the speakers according to whether they are supportive or non-supportive of the applicant's request. If this tact is taken, those in favor of the applicant/appellant should speak first. Although some limits can be placed on repetitive testimony, it is important to allow all new and relevant testimony to ensure a full discussion of the matter and enhance the perception of equity. Finally, the applicant or appellant should be provided with the opportunity of rebuttal. Set forth below is an outline of a standard public hearing procedure typically used by cities. This is an example from a Planning Commission Meeting so some of the provisions may not be applicable to your Board, Commission or Committee. CHAIR: El Cerrito Handbook for Appointed Boards, Commissions and Committees Declares the hearing open. States purpose of hearing. Page 37 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- SECRETARY: CHAIR: STAFF: CHAIR: PUBLIC: Reports proper notice of hearing. Reports on written communications or objections received. Directs that affidavits of notice be made part of record. Requests staff report. Gives report. Requests Members to ask any questions they may have of staff regarding staff report. Requests public testimony. Testimony is received. Recommended order of testimony: 1) Applicant (if any) 2) Persons in favor 3) Persons opposed 4) Rebuttal by applicant (if any). The Chair should instruct those persons testifying that all comments and questions should be directed to the Chair and not to other members of the audience. No dialogues should be permitted. Comments by Commissioners in response to public testimony and answers to questions should be reserved until all testimony is taken and the public hearing closed. Questions by Commissioners of persons in the audience should be asked before the hearing is closed, preferably when the person is testifying. The Chair may set a time limit for comments by each person testifying. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 38 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- CHAIR: COMMISSION: El Cerrito Handbook for Appointed Boards, Commissions and Committees Closes public hearing. Deliberates, makes findings and decision. Page 39 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- VIII. SAMPLE PUBLIC HEARING SCRIPT {This is an example from a Planning Commission Meeting so portions of it may not be applicable to your Board, Commission or Committee.) Set forth below is a sample public hearing script typically used by cities in Planning Commission meetings. • This is the time and place for a public hearing to consider proposed Tentative Subdivision Map No. 1234 for division of the property at 123 Second Street into five lots. • Commission Secretary, have notices been posted and advertised as required by law and have you received any communications either for or against the matter? • Planning Director, is there a staff report? • Do any Commissioners have any questions of staff on this matter? • Written and oral communications relating to the public hearing will be received by the Planning Commission. All questions and comments on this matter are to be directed to the Chair. Questions will be answered by staff at the close of testimony. • Applicant, please make your presentation at this time. • Are there members of the audience who wish to speak in favor of the Tentative Map? • Are there members of the audience who wish to speak in opposition to the Tentative Map? • Applicant, do you wish to make any further statement or rebuttal before the hearing is closed? El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 40 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • Do any Commissioners have further questions before the hearing is closed? • (Staff answers all questions asked by public during the course of the hearing.) • The public hearing on the proposed Tentative Map is now closed. • (Commission deliberates and may ask questions of staff. All comments should be reserved by the Commissioners until this time. Statements of opinion during the hearing may be regarded as prejudgment of the matter.) El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 41 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- IX. FINDINGS IN QUASI-JUDICIAL ACTIONS From time to time certain Commissions will be called upon to exercise their quasi-judicial function. In other words, the Commission will sit as a "judge". Generally, the City Council considers appeals of a Commission's quasi-judicial decisions. The following discussion, partially excerpted from a December 30, 1982 publication by the State Office of Planning and Research, discusses the importance of findings, usually made by the Planning Commission, as examples. Please note that findings are normally presented in the resolutions that are adopted by the Commission whenever the Commission makes a quasi-judicial decision. Any discussion of findings must begin with the seminal case in the area, Topanga Association for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974). In Topanga, the California Supreme Court defined findings, explained their purposes, and discussed the circumstances in which they are required. A. Topanga: the Cornerstone for Findings 1. Definition The Topanga court defined findings as legally relevant subconclusions that expose the agency's mode of analysis of facts, regulations, and policies, and bridge the analytical gap between raw data and ultimate decision ( Topanga, supra, at 515 and 516). In other words, findings are the legal footprints local administrators and officials leave to explain how they applied the facts to established standards and arrived at a decision. 2. Purpose The Topanga court outlined four purposes for making findings, two of which are relevant mainly to the decision-making process, and two of which are relevant to judicial review functions. Findings should: • Provide a framework for making principled decisions, enhancing the integrity of the administrative process; • Help make analysis orderly and reduce the likelihood that the agency will randomly leap from evidence to conclusions; El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 42 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • Enable the parties to determine whether and on what basis they should seek judicial 'review and remedy; and, • Inform a reviewing court of the basis for the agency's action. (Topanga, supra, at 514 and 516 n. 14.) 3. Circumstances requiring findings While the four purposes seem clear enough, state law has not clearly distinguished between the situations that require findings and those that do not. Absent a specific legislative requirement for findings, the courts determine when they are necessary. In general, case law has required findings for decisions that are quasi- judicial. In this type of decision, a reviewing body holds a hearing, takes evidence, and bases its decision on the evidence. The action involves applying a fixed rule, standard, or law to specific facts. Land use examples include variances, use permits, and tentative subdivision and parcel maps. By way of comparison, findings are not necessary for legislative decisions unless specifically required by statute (Ensign Bickford Realty Corp. v. City Planning City Council, 68 Cal.App.3d 467 (1977)). In contrast with a quasi-judicial act, which involves the application of an existing rule to a specific factual situation, a legislative act generally involves the formulation of a rule to be applied to all future cases. Examples are the adoption or amendment of a general plan or zoning ordinance. Even though a zone change or general plan amendment may be specific to a particular parcel, it is still a legislative act because its underlying effect is legislative in nature, regardless of the size or geographic scope of the property affected (Arne/ Development Company v. City of Costa Mesa, 28 Cal.3d 511 (1980)). B. Preparation of Findings: A Question of Timing As discussed above, Topanga states that findings should enhance the integrity of the administrative process, help make analysis orderly, and reduce the likelihood that the agency will randomly leap from evidence to conclusions. This requires the decision makers to identify the reasons supporting a decision prior to taking action. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 43 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- In the daily reality of acting on a myriad of different applications and other matters, however, the decision-making body may find it difficult to formulate detailed findings and to reduce them to writing at the point of the decision. Therefore, many cities have their staffs prepare proposed findings for the decision makers to consider and then use, revise or reject. Both the City Council and the Planning Commission typically operate in this manner. The suggested findings can help the decision makers identify the appropriate information, policies, and regulations governing the proposed project and guide them in making the necessary findings. Of course, before adopting any staff-prepared findings, the decision makers must objectively review and, where necessary, revise the findings to make sure that they accurately reflect both the evidence in the record (which is likely to be supplemented in the hearing after the presentation of the staff report) and the decision makers' own conclusions. Where the opportunity exists, some local decision-making bodies take tentative action and then direct staff to draft a written statement of the findings based on the evidence and the deliberative discussion that took place during the public hearing. The staff draft can then be reviewed for adoption as the agency's findings at a later meeting. This method of preparing findings often provides staff with a better opportunity to carefully review the entire record, including the evidence presented during the public hearing before preparing proposed findings for the decision-making body. However, this method also necessarily delays the final decision on projects until the decision-making body reconvenes to consider the findings. C. Summary: Bridging the Gap California courts have demonstrated their concern for rational and open decisions that protect the public interest. The Topanga court offered four purposes for findings, all emphasizing these concerns. The now familiar language of that court requiring cities to "bridge the analytical gap between raw data and ultimate decision" leaves no doubt that decision makers are to follow an orderly path of logic before arriving at decisions. While the political reality of making decisions involves compromises at times, the political reality must accommodate rational and dispassionate deliberation in the decision making process. The process of making decisions has its rough edges: economic impacts, election campaigns, tender egos, and neighborhood conflicts. Making findings as an El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 44 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- integral part of the decision-making process will not guarantee that all of the rough edges will be smoothed out. However, if decision makers take findings seriously, then they can reduce public doubts about the motivation and wisdom of their decisions. Using findings builds an excellent defense for local officials' decisions and, ultimately, more justly serves the public purpose. D. Specific Actions Requiring Findings **(Applicable only to the Planning Commission) 1. Conditional Use Permit A Conditional Use Permit ( or CUP) is an application filed in order to establish a use (in a zone district) that is not automatically permitted. The Conditional Use Permit procedure was created in order to place controls upon certain uses to ensure that the uses will not adversely affect neighboring properties. Commissioners should note that uses are either automatically permitted, conditionally permitted, or prohibited. A prohibited use cannot be allowed through a Conditional Use Permit. 2. Variance A Variance is an application requesting an exception from a standard required by the zoning ordinance. For example, an applicant ·may file for a variance to exceed the height restriction on a house or to reduce the number of parking spaces required for a restaurant. A variance may not be issued to permit a use that is not otherwise permitted by the applicable zoning district. (Government Code Section 65906) In granting a variance, specific findings must be made that are consistent with state law. These are: special circumstances exist with regard to the subject property, including size, shape, topography, location or surroundings; due to such special circumstances, the strict application of the zoning ordinance would deprive the property owner of privileges enjoyed by other property owners in the vicinity and the same zone district; and granting of the variance will not constitute a special privilege. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 45 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 3. Tentative map or parcel map A Tentative Map or Parcel Map (subdivision map) is a map recording the division of land for the purpose of sale, lease, or financing, and is governed by the Subdivision Map Act. A subdivision of five or more parcels requires a tentative and final map. A subdivision of four or fewer parcels requires just a parcel map. In granting a Tentative Map or Parcel Map, specific findings must be made that are consistent with state law. These are: the proposed map is consistent with applicable general and specific plans; the design or improvement of the proposed subdivision is consistent with applicable general and specific plans; the site is physically suitable for the type of development; ( 4) the site is physically suitable for the proposed density of development; the design of the subdivision or the proposed improvements is not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat; the design of the subdivision or type of improvements is not likely to cause serious public health problems; the design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision; and the commission has considered the effect of the tentative map or parcel map on the housing needs of the region as set forth in the City's Housing Element. 4. Zone change A Zone Change is a request, generally by a private individual but occasionally by the City, to ,rezone a property from one zone district to another zone district. For example, a petition may be filed to rezone a property from a residential zone to a commercial zone. Other than being in conformance with the general plan, no specific findings are necessary for a zone change. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 46 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- X. CONFLICTS OF INTEREST LAW Conflict of interest laws regulate public officials' decision-making, as well as their receipt of gifts, honoraria and loans. The principal conflict of interest laws are: the Political Reform Act of 1974 (California Government Code Section 81000 et seq.); California Government Code Section 1090; and the common law doctrine against conflicts of interest. This chapter briefly summarizes and discusses the major provisions and requirements of these conflict of interest laws. A. Laws Regulating Decision-making 1. Political Reform Act of 1974 The Political Reform Act of 1974 ("PRA") is the principal law in California governing conflicts of interest for public officials. The PRA was enacted by initiative measure to ensure, among other things, that public officials abstain from decisions in which they have a conflict of interest and is codified in the Government Code at Section 81000 et seq. The Fair Political Practices Commission ("FPPC") has interpreted the PRA in a series of regulations found in Title 2 of the California Code of Regulations at Section 18110 et seq.21 The PRA requires public officials to disqualify themselves from making, participating in making, or in any way attempting to use their official position to influence a governmental decision in which they know or have reason to know they have a financial interest (Section 87100). An official has a financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on certain listed financial interests: Any business entity in which the public official has a direct or indirect investment worth Two Thousand Dollars ($2,000) or more. Any real property in which the public official has a direct or indirect interest worth Two Thousand Dollars ($2,000) or more. 2 In this Chapter, citations to the California Government Code are made in the following format: "Section " Citations to the FPPC's regulations are made in the following format: "Regulation Section_" El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 47 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- ( c) Any source of income, except gifts or loans by a commercial lending institution made in the regular course of business on terms available to the public without regard to official status, aggregating five hundred dollars ($500) or more in value provided or promised to, received by the public official within 12 months prior to the time when the decision is made. Any business entity in which the public official is a director, officer, partner, trustee, employee, or holds any position of management. Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating three hundred and ninety dollars ($390) 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." (Section 87103). A conflict of interest is disqualifying if the public official's participation is not legally required (Regulation Section 18700). The Regulations of the FPPC interpret and provide guidance to most of the terms used in the Act as well as provide standards for determining if each element of the Act's prohibitions has been satisfied. a. The FPPC's Eight-Step Test for Analyzing Conflict of Interest Questions The FPPC regulations set forth an eight-step test to determine whether a conflict of interest exists under the Act (Regulation Section 18700). Each step of that test is discussed below. STEP ONE: Is a Public Official Involved? Determine whether the individual is a public official within the meaning of the Act. The Political Reform Act applies only to "public officials." A "public official" is defined to include a "member, officer, employee, or consultant" of a local government agency (Section 82048). The regulations define "member" and "consultant" as follows: • A "member" includes persons serving on boards or commissions with decision-making authority. A board or commission possesses decision- El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 48 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- making authority, in turn, if it can make a final governmental decision; compel or prevent a governmental decision; or make substantive recommendations that are, and over an extended period of time have been, regularly approved without significant amendment or modification by another official or agency (Regulation Section 18701(a)(l)). • A "consultant" includes an individual who, pursuant to a contract with a state or local government agency, is empowered to make a governmental decision or serve in a staff capacity with the agency (Regulation Section 18701(a)(2)). STEP TWO: Is There a Government Decision Involved? Determine whether the public official will be making, participating in the making, or using or attempting to use his/her official position to influence a governmental decision. The Political Reform Act applies when a public official is "making, participating in making, or using or attempting to use his/her official position to influence a government decision." (Regulation Section 18702). The FPPC regulations define each of these actions for purposes of applying the Act: • A public official "makes" a governmental decision when the official, acting within the authority of his or her office or position, votes on a matter, appoints a person, commits his or her agency to a course of action, enters into a contract, or determines not to act (Regulation Section 18702.1). 7 • A public official "participates in making" a governmental decision, when the official, acting within the authority of his or her office or position, advises or makes recommendations to a decision-maker, or negotiates, without significant substantive review, with a third party regarding a government decision (Regulation Section 18702.2). • A public official is "attempting to use his or her official position to influence" a decision if, for purpose of influencing the decision, the official contacts, or appears before, or otherwise attempts to influence any member, officer, employee or consultant of the agency (Regulation Section 18702.3). A public official is also "attempting to use his or her El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 49 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- official position to influence" a decision if he or she advocates on behalf of his or her agency to anothergovernmental agency. There are limited exceptions to this rule. A public official is not making, participating in making, or influencing a government decision when the official appears before the public agency as a member of the general public to represent specific and limited "personal interests," speaks to the public or press, or negotiates his or her compensation or terms of employment (Regulation Section 18702.4). STEP THREE: What Are the Public Official's Economic Interests that Are Affected? Identify the public officials economic interests. A public official's economic interests under the Act include investments and positions in business entities, interests in real property, sources of income and gifts, and the personal expenses, income, assets and liabilities of the public official, as detailed in the following list: • Any direct or indirect investment worth at least $2,000 in a business entity. • Any real property in which the public official has a direct or indirect interest worth at least $2,000. Real property interests include leases, excluding month-to-month leases and leases with terms shorter than a month. • Any "source of income' that provided or promised the public official at least $500 within 12 months prior to a governmental decision, not including gifts and loans by banks available to the general public. The term "source of income" includes individuals, organizations, and businesses. • Any business entity in which the public official is a director, officer, partner, trustee, or employee, or holds any position of management. • Any donor of gifts aggregating at least $360 in the twelve months prior to a governmental decision. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 50 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • The personal finances of the public official and immediate family. This is a sort of "catch-all" provision that is meant to address economic interests of a public official and his or her immediate family that do not qualify as investments, property, or business entities, but are nonetheless potentially affected by government decisions (Sections 82047, 87103; Regulation Sections 18703-18703.5). The terms "indirect investment" and "indirect interest" are used to indicate investments and interests owned by the spouse or dependent child of the public official, an agent of the public official, or a business entity in which the official or his or her family has at least a ten percent ownership interest. STEP FOUR:Are Those Interests Directly or Indirectly Involved? For each of the public official's economic interests/ determine whether that interest is directly or indirectly involved in the governmental decision at issue. The next step is to determine whether the financial interests are directly or indirectly involved in the government decision. Whether the interest is direct or indirect will affect whether the interest is consfdered "material" in steps five and six. The standards are set forth in the following table: A person (including business entities, sources of income, and sources of gifts) An interest in real property El Cerrito Handbook for Appointed Boards, Commissions and Committees is "directly involved" in a decision, if: Page 51 hat person or entity • initiates, • is a named party in, • or is the subject of a proceeding he decision concerns • a site within 500 feet of the official's property • the zoning, annexation, sale or lease of the official's property • the issuance or denial of a license, permit or other entitlement for the property • the imposition or modification to taxes or fees on the property • a redevelopment project area in which the property lies • streets, sewers, and other infrastructure serving the property ©2007 Richards, Watson & Gershon ---PAGE BREAK--- A public official's personal the decision has any personal ~inancial effect on his or her finances personal finances, or the finances of his or her immediate family (Regulation Sections 18704.1, 18704.2, 18704.5). Economic interests that do not qualify as being "directly involved" are deemed to be "indirectly involved" in the decision. STEP FIVE: Which "Materiality" Standard Applies? Determine the applicable materiality standard for each economic interest. The fifth step in the analysis is to determine the applicable "materiality" standard as set by the regulations. This will depend, in turn, on the degree of involvement of the interest in the governmental decision, as established in step four. The materiality thresholds are significantly lower for direct . financial interests than indirect interests. The materiality standards for the various forms of financial interests are set forth below. Business Entities The financial effect of a decision on a directly involved for-profit business entity interest is presumed to be material unless the official's only economic interest is an investment worth $25,000 or less (Regulation Sections 18704.1, 18705.1). For nonprofit business entities, a similar standard applies: the financial effect of a decision on a directly involved non-profit business entity is material if there is any reasonably foreseeable financial effect on the nonprofit entity (Regulation Section 18705.3). When the interest of a business entity is indirectly involved, or the official's only economic interest is an investment worth $25,000 or less, the materiality of a financial effect hinges on the size of the entity and the decision's impact on the entity's gross revenue, expenses, assets and liabilities (Regulation Sections 18704.1, 18705.1). For large "Fortune 500" business entities, a decision will be found to materially affect the business entity if the decision will affect the gross revenues, expenses, assets or liabilities by $10,000,000 or more in a fiscal year or result in an El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 52 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- increase or decrease in expenses by $2,500,000 or more in a fiscal year (Regulation Section 18705.l(c)(l)). Lower thresholds apply for companies that are listed or meet the criteria for listing on the New York Stock Exchange or the NASDAQ or American Stock Exchange (Regulation Section 18705.l(c)(2), For small companies that are not listed or that do not meet the criteria for listing on the Fortune 500, NYSE, NASDAQ, or AMEX, the decision is regarded as materially affecting the company if the decision will result in an increase or decrease in gross revenues for a fiscal year of $20,000 or more, or increase or reduce expenses by $5,000 or more in a fiscal year, or result in an increase or decrease in the value of its assets or liabilities by $20,000 or more (Regulation Section 18705.l(c)(4)). Certain other standards apply if the business entity is a non-profit organization (Regulation Section 18705.3(b)(2)). All of these standards are set forth in the following table. Type of Business Change in revenues, Change in Expenses($) assets, or liabilities Listed in the Fortune 500 10,000,000. 2,500,000. Listed on NYSE, or had pretax earnings of 500,000. 200,000. at least $2.SM Listed on NASDAQ/ AMEX, or had net 300,000. 100,000. income of $SOOK or pretax $750K For-profit entities not falling into the 20,000. 5,000. above 3 cateqories Nonprofit entity with gross receipts of at 1,000,000. 250,000. least $400M Nonprofit with gross receipts of at least 400,000. 100,000. $100M but less than $400M Nonprofit with gross receipts of at,least 200,000. 50,000. $10M but less than $100M Nonprofit with gross receipts of at least 100,000. 25,000. $1M but less than $10M Nonprofit with gross receipts of at least 50,000. 12,500. $100K but less than $1M Nonprofit with gross receipts of less than 10,000. 2,500. $100K Independent of all the above thresholds, a special rule called the "nexus test" applies to situations in which a public official receives or is promised income to achieve a goal or purpose that would be affected by the governmental decision. Under this test, any reasonably foreseeable effect of the decision on a business entity that is a source of income or promised source of income to the public official is deemed material El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 53 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- (Regulation Section 18705.3(c)). The thresholds stated above would not apply, and a financial effect of even one penny would be "material" under the regulation. Accordingly, a public official must consider carefully whether his or her job description involves accomplishing goals that would be achieved by a governmental decision. Real Property The financial effect of a decision on a directly involved real property interest is presumed to be material, without regard to the effect of the decision on the value of the real property. However, the presumption may be rebutted by proof that it is not reasonably foreseeable the decision will have any financial effect on the property (Regulation Section 18705.2). For indirectly involved real property, the financial effect of the governmental decision is presumed not to be material. This presumption, too, may be rebutted, by proof that there are specific circumstances regarding the governmental decision, its financial effect, and the nature of the real property that make it reasonably foreseeable that the effect will be material. The FPPC regulations list three specific factors to consider: • The development potential or income producing potential of the real property in which the official has an economic interest; • The use of the real property in which the official has an economic interest; • The character of the neighborhood including, but not limited to, substantial effects on: traffic, view, privacy, intensity of use, noise levels, air emissions, or similar traits of the neighborhood (Regulation Section 18705.2(b)(l)). It should be noted that the foregoing is not an all-inclusive list and other factors may be relevant to analyzing the financial effect of a decision on real property. The regulation adds a few extra provisions for leasehold properties. In the event a public official leases a property with a term of longer than 30 days, and the property is directly involved in a governmental decision, then there is a presumption of materiality, just as with owned properties. For leased properties, however, the FPPC El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 54 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- identifies specific factors that an official may use to rebut the presumption of materiality: • The termination date of the lease; • The amount of rent paid by the lessee for the leased real property, either positively or negatively; • The value of the lessee's right to sublease the real property, either positively or negatively; • The legally allowable use or the current use of the real property by the lessee; or • The use or enjoyment of the leased real property by the lessee (Regulation Section 18705.2(a)(2)). If an official can provide proof that the government decision will have no effect on any of the above factors, he or she can rebut the presumption of materiality and still participate in the decision. Similarly, for indirectly involved leasehold properties, there are specific factors that will rebut the presumption of non-materiality. In particular, if there is proof that the circumstances of the governmental decision, its financial effect, and the nature of the real property make any of the following factors reasonably foreseeable, then the interest would be material: • A change in the legally allowable use of the leased real property, when the lessee has a right to sublease the real property; • A change in the lessee's actual use of the real property; • A substantial enhancement or a significant decrease in the lessee's use or enjoyment of the leased real property; • An increase or decrease in the amount of rent for the leased real property by at least five percent during any twelve-month period following the decision; or El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 55 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • A change in the lease's termination date (Regulation Section 18705.2(b)(2)). ( c) Sources of Income The FPPC regulations also provide materiality standards for sources of income. A "source of income," as discussed above, is any person from whom a public official has received at least $500 in the last twelve months, and "person" includes individuals, organizations, and business entities (Section 82047; Regulation Section 18705.3). For sources of income that are directly involved in a governmental decision, the FPPC regulations presume that the effect of the decision is material. For business entities and organizations that are indirectly affected sources of income, the materiality standards for business entities already discussed above apply. Indirectly affected sources of income that are individuals are materially affected if the decision affects the individual's income, investments, liabilities or assets by $1000 or more, affects their real property materially (as explained in the section above), or if there is a "nexus" between the official's receipt of the income and the governmental decision (Regulation Sections 18705.3(b)(3), Sources of Gifts Finally, the regulations provide materiality standards for sources of gifts. Recall that under the regulations, a donor becomes a "source of gifts" by providing a public official with gifts valued at $360 or more in the aggregate in the twelve months prior to a governmental decision (Regulation Section 18703.4). Sources of gifts are "materially" affected by a governmental decision if the source of the gift is directly involved in the decision or if the decision is likely to affect the source of the gift in a manner deemed material for business entities, non-profit entities or individuals, whichever is applicable (Regulation Section 18705.4). STEP SIX: Is it Reasonably Foreseeable that the Government Decision Will Materially Affect the Official's Economic Interests? Determine whether it is reasonably foreseeable that the governmental decision will have a material financial effect on each economic interest. A material financial effect on an economic interest is reasonably foreseeable if it is substantially likely that one or more of the materiality standards El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 56 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- applicable to that economic interest will be met as a result of the governmental decision (Regulation Section 18706). In order to determine whether it is substantially likely that the materiality threshold will be exceeded, a public official should consider the following factors: • The extent to which the official or the official's source of income has engaged, is engaged, or plans on engaging in business activity in the jurisdiction; • The market share held by the official or the official's source of income in the jurisdiction; • The extent to which the official or the official's source of income has competition for business in the jurisdiction; • The scope of the governmental decision in question; and • The extent to which the occurrence of the material financial effect is contingent upon intervening events (Regulation Section 18706). The FPPC indicated that this is not meant to be an exclusive list. The "reasonably foreseeable" test is likely the most subjective determination in' the eight-step test, and ultimately the public official must make his or her own determination as to whether it is "substantially likely" that the applicable materiality threshold will be exceeded. While certainty is not required, an effect that is merely a possibility is not reasonably foreseeable. Downey Cares v. Downey Community Development Comm'n, 196 Cal. App. 3d 983 (1987); In re Thorner, 1 FPPC Ops. 198 (1975). STEP SEVEN: Does the "Public Generally" Exception Apply? Determine if the reasonably foreseeable financial effect is distinguishable from the effect on the public generally. Once it is determined that it is reasonably foreseeable that a decision will have a material financial effect on a public official's economic interest, it is necessary to evaluate whether an exception to the disqualification requirement is applicable. One exception known as the "public generally" exception provides that even if a El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 57 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- governmental decision will have a reasonably foreseeable, material financial effect on the official's financial interest, disqualification is required only if the effect on the public official is distinguishable from the effect on the financial interests of the public generally, or a significant segment of that public. The " public generally" is comprised of the entire jurisdiction of the public agency. In re Legan, 9 FPPC Ops. 1 (1985). The "public generally" exception involves two core elements. First, the governmental decision must affect a "significant segment" of the public in the jurisdiction of the public agency. Second, the governmental decision must affect the official's economic interest in "substantially the same manner" as it will affect that significant segment (Regulation Section 18707). In order to determine what constitutes a sufficiently "significant" segment of the public, the FPPC has provided the standards summarized in the following table: Individuals • 10% of population of the jurisdiction, or • 5000 residents of the iurisdiction Real Property • 10% of property owners of jurisdiction, or • 5000 property owners of the iurisdiction Business Entities, including Nonprofit Organizations • 2000 business entities in the jurisdiction, or • 25% of business entities in the iurisdiction Governmental Entities • All members of the public under the jurisdiction of the aqency (Regulation Section 18707.1). Whether an official's interest will be affected in "substantially the same manner" as other decisions is largely an individual determination. For example, a council member owning one home in the city who votes on a citywide zoning regulation would likely be affected in substantially the same manner as other homeowners. If, however, the council member owned five houses, the impact of the decision would potentially be much greater on the council member than most homeowners, and so it is likely the exception would not apply. Note that specialized "public generally" exceptions exist for decisions to establish or adjust assessments, taxes, fees, charges, or rates; decisions affecting principal industries, trades, or professions in the jurisdiction; decisions made by appointed members of certain types of boards or commissions; decisions affecting sources of income to owners of retail business entities; and decisions in specified "states of emergency" (Regulation Sections 18707.2-18707.7). El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 58 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- STEP EIGHT: Is the Public Official's Participation Legally Required? Determine if the public official's participation is legally required despite the conflict of interest. The last step in the FPPC eight-step analysis is to determine whether the exception for "legally required participation" applies to the governmental decision. A public official is permitted to participate in making a governmental decision, despite having a conflict of interest in the decision, if there exists no alternative source of decision consistent with the purposes and terms of the statute authorizing the decision (Regulation Section 18708). This exception is applied when a quorum of a legislative body cannot be convened due to the disqualifying conflicts of interests of its members. In that situation, one, or as many members as is needed to create the minimum number for the quorum, may be selected at random to participate. In these situations, stringent disclosure requirements apply, not only regarding the basis of the selected member's conflict of interest, but also the reason why there is no alternative source of decision-making authority (Regulation Section 18708(b)). Note that this rule is construed narrowly and may not be invoked to permit an official, who is otherwise disqualified, to vote to break a tie or to vote if a quorum can be convened of other members of the agency who are not disqualified, whether or not such other members are actually present at the time of the decision (Regulation Section 18708(c)). b. Rules for abstention When a public' official has a conflict of interest under the Political Reform Act, he or she is required to abstain from making, participating in making, or using or attempting to use his or her official position to influence the local agency's decision (Section 87103). Abstention avoids a violation of the conflict of interest provisions of the Act. The Act establishes specific rules of procedure when a public official has a conflict of interest and is required to abstain from a decision. Immediately prior to the consideration of the matter, the official must: identify the financial interest that gives rise to the conflict in detail sufficient to be understood by the public ( except that disclosure of the exact street address of a residence is not required); (ii) publicly state his or her recusal from the matter; and (iii) leave the room until after the disposition of El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 59 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- the matter unless the matter appears on a consent calendar or other similar portion of an agenda for uncontested matters (Section 87105). Although the official must leave the chambers, the regulation allows the official to return briefly-depending on the nature of his or her interest, the official may comment on the item as a member of the public during the public comment period on a matter related to his or her "personal interests." The term "personal interest" is defined to include an interest in real property, or a business entity that is wholly owned by the official or his or her immediate family (Regulation Section 18702.4). It also includes business entities over which the official, or the official and his or her spouse, exercise sole direction and control (Regulation Section 18702.4(b)). There are a few other minor "personal interests." If a public official wishes to speak on a matter related to his or her "personal interests," the official may wish to observe the comments of other speakers via closed-circuit television, so that he or she may effectively rebut anything those speakers discuss. Note that when a public official abstains from a decision, his or her presence does not count toward achieving a quorum (Regulation Section 18702.l(b)). Accordingly, if several officials must abstain from a decision under the Political Reform Act, there may not be sufficient members of the body present to consider a matter under the Brown Act. In such a circumstance, it may be possible to use the Rule of Legally Required Participation, as discussed above. c. Penalties for Violation Administrative,, civil and criminal penalties exist for violation of the conflict of interest provisions of the Political Reform Act. The FPPC may levy administrative penalties after a hearing and may impose a fine of up to $5000 per violation, a cease and desist order, and an order to file reports (Section 83116). Civil penalties include injunctive relief that may be sought by the district attorney or any person residing in the jurisdiction (Section 91003). In the event a court finds that the actions would not have been taken but for the action of the official with the conflict of interest, the court is empowered to void the decision (Section 91003). Misdemeanor criminal penalties are provided in situations where a knowing or willful violation of the act occurs, and generally persons convicted of violating the act may not be a candidate for elective office or act as a lobbyist for four years after the conviction (Sections 91001-02). The statute of limitations for civil and criminal enforcement actions is four years from the El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 60 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- date of the violation (Sections 91000(c), 91011(b)). The statute of limitations for administrative actions brought by the FPPC is five years from the date of the violation (Section 91000.5). d. Seeking Advice on Conflict of Interest Questions It is important to note that only a formal advice letter from the FPPC staff can immunize a public official from potential enforcement by the FPPC or the District Attorney in the event the public official participates in a decision and someone subsequently alleges the public official had a prohibited conflict of interest. A formal advice letter usually takes the Commission staff at least a month to prepare and is only provided if the request relates to prospective acts as distinguished from past acts, and if it contains sufficient facts upon which the FPPC is able to render a decision. Informal written advice (without immunity from potential enforcement action) may also be requested from the FPPC staff as well as informal telephonic advice through their technical assistance division at 1-866-ASK-FPPC (1-[PHONE REDACTED]). Based on the time frames required to obtain formal or informal written advice from the FPPC, it is. important for public officials to consult their city attorney or local agency counsel as early as possible so as to provide adequate time to gather all relevant facts, draft a letter to the FPPC, and respond to the advice once given. 2. Government Code Section 1090 Government Section 1090 provides in relevant part: \\Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members " The purpose of the prohibition contained in Section 1090 is to preclude a public official from using his or her position to obtain business or financial advantage through the approval of contracts by the public entities on which they serve. As more fully explained below, the prohibition applies to not only preclude a member of the body or board that approves the contract to directly contract with that same public entity, but it also applies when the public official has a financial or other specified relationship to the entity that seeks to contract with the public entity. The intent of the law is to El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 61 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- remove the possibility of any personal influence that might bear on an official's decision-making activities on contracts entered into with public entities. Both the Political Reform Act and the common law doctrine against conflicts of interest require the public official with the conflict of interest to abstain from participation in the decision. Section 1090, by contrast, prohibits the local agency from entering into the contract in which one of its officers or employees has a financial interest unless certain exceptions apply. Specifically, if an official is a member of a board or commission that executes the contract, he or she is conclusively presumed to be involved in the making of his or her agency's contracts. Thomson v. Call, 38 Cal. 3d at 649. This absolute prohibition applies regardless of whether the contract is found to be fair and equitable or the official abstains from all participation in the decision. Thomson, 38 Cal. 3d at 649-50; Fraser-Yamor Agency, 68 Cal. App. 3d at 211-12; City of Imperial Beach, 103 Cal. App. 3d at 195. The only way a public entity could still enter into a contract in which an official has a financial interest would be if that interest qualifies as a "remote interest" or "non-interest" within the meaning of specified provisions discussed below. a. Three Principal Components to Section 1090 The prohibition contained in Section 1090 involves three principal components: the person subject to the prohibition must be an officer or employee of one of the types of governmental entities listed in Section 1090; the public officer or employee must be financially interested in a contract; and the contract must be made by either the public official in his or her official capacity; or (ii) the body or board of which the official is·a member. Officer or employee of listed government entity The first element is whether the person subject to the prohibition is an officer or employee of "the Legislature, state, county, district, [or] judicial district," or a "city officer or employee." Virtually every officer or employee of a municipality or local governmental district is subject to the prohibitions of Section 1090. Financial interest in a contract - Section 1090 applies to direct and indirect financial interests in contracts El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 62 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- The second element of the prohibition is the existence of a direct or indirect financial interest in a contract. The courts have interpreted the term "financially interested" as including any direct interest, such as that involved when a public official enters directly into a contract with the body of which he is a member. Thomson v. Call, 38 Cal. 3d 633 (1985). The courts have also interpreted "financially interested" as including indirect financial interests in a contract, where, for example, a public official has a business relationship with the entity that would be contracting with the public entity, or when the public official would gain something financially by the making of the contract. Fraser-Yamor Agency, 68 Cal. App. 3d 201 (1977); Finnegan v. Schrader, 91 Cal. App. 4th 572, 579 (2001). In Thomson v. Call, the California Supreme Court described the breadth of the statute this way: Section 1090 forbids city officers such as Call from being "financially interested in any contract made by them in their official capacity, or by any body or board of which they are members." The proscribed interest certainly includes any direct interest, such as that involved when an officer enters directly into a contract with the body of which he is a member. California courts have also consistently voided such contracts where the public officer was found to have an indirect interest therein . . . . Neither the absence of actual fraud nor the possibility of a ''good faith" mistake on Ca/l's part can affect the conclusion that this contract violates section 1090 and is therefore void. 38 Cal. 3d at 645-46 ( citations omitted) ( emphasis added). In Thomson, a city councilman sold certain real property to a third party, knowing that the city was negotiating a deal to acquire multiple parcels of property in that area for a public park. The third party then conveyed the councilman's property to the city, in an apparent attempt to evade the provisions of Section 1090. The court essentially "unwound" and invalidated the entire transaction based on the councilman's interest in the transaction. The court refused to focus on the isolated contract between the city and the third-party that bought the property from the council member, but rather viewed all of the successive contracts as one complex multi-party agreement. The court ordered the council member to disgorge all funds he received in the transaction and ordered that the city retain title to the property. The court noted that this type of severe remedy was necessary to discourage violations of Section 1090. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 63 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Other decisions have followed this same broad reading of "indirect interests." In People v. Va!lerga, the court summarized court decisions addressing financial interests under Section 1090 as follows: However devious and winding the chain may be which connects the officer with the forbidden contract, if it can be followed and the connection made, the contract is void. 67 Cal. App. 3d 847, 867 (1977); see also People v. Honig, 48 Cal. App. 4th 289, 315 (1996) (stating the same rule). The scope of indirect interests that could form a "devious and winding chain" back to a public contract is broad, but this reflects the judicial stance of vigilant enforcement of Section 1090. See, e.g., Thomson, 38 Cal. 3d at 652 ("[T]he policy of strict enforcement of conflict-of-interest statutes provides a strong disincentive for those officers who might be tempted to take personal advantage of their public offices, and it is a bright-line remedy which may be appropriate in many different factual situations."); Berka v. Woodward, 125 Cal. 119, 128 (1899) (noting the need for "strict enforcement" of the conflict of interest statutes). In addition to a "financial interest," there must be a contract in order for Section 1090 to apply. General contract principles apply to this determination and include such arrangements as purchase and service contracts as well as development agreements between a city and a developer, 78 Ops. Cal. Att'y Gen. 230 (1995); 82 Ops. Cal. Att'y Gen. 126, 129 n.4 (1999), joint powers agreements, People v. Gnass, 101 Cal. App. 4th 1271, 1301 (2002), and payments for conference attendance expenses, 75 Ops. Cal. Att'y Gen. 20 (1992). Contract "made" by the official or by a body or board of which the official is a member - the term "made" has been interpreted very broadly and includes even very preliminary actions The third element necessary for a Section 1090 violation is that the contract has to be "made" either by the official or employee acting in his or her official capacity, or by any body or board of which the official is a member. The "making" of a contract is most commonly implicated by a city council's approval of a simple purchase order as part of the approval of a demand warrant registrar; this is likely to constitute the making of a contract within the scope of Section 1090. The courts have construed El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 64 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- the term "made" as encompassing such elements in the formation of a contract as preliminary discussions, negotiations, compromises, reasoning, planning, drawing of plans or specifications and solicitation for bids. Millbrae Assn for Residential Survival v. City of Millbrae, 262 Cal. App. 2d 222, 237 (1968). For example, in City Council of San Diego v. McKinley, 80 Cal. App. 3d 204, 212 (1978), a court of appeal found a Section 1090 violation when a city council entered into an agreement with a landscape architectural firm, of which the president and stockholder was also a member of the city's parks and recreation board. The board investigated and advised the city council on parks and recreation development issues, and it approved plans for a Japanese garden for which the board member's company ultimately received the development contract. Even though the board member was not a member of the city council, which awarded the contract to his company, the board member's participation in the planning for the garden was sufficient to constitute participation in "making" the contract: [T]here is ample authority the negotiations, discussions, reasoning, planning, and give and take which go beforehand in the making of a decision to commit oneself must all be deemed to be a part of the making of an agreement in the broad sense. Thus, the final execution of a contract, which is the time when the contract is technically made, is not the only time when a conflict of interest may be presented. 80 Cal. App. 3d at 212. Similarly, in Stigall v. City of Taft, 58 Cal. 2d 565, 569-70 (1962), the California Supreme Court held that an impermissible conflict existed in a contract with a plumbing company owned by a city council member, even though the council member resigned before the plumbin'g company's bid was accepted. The court recognized that activities prior to the signing of a contract can be integral to the decision to accept the contract. "[T]he negotiations, discussions, reasoning, planning and give and take which goes beforehand in the making of the decision to commit oneself must all be deemed to be a part of the making of an agreement in the broad sense " Id at 569; see also Campagna v. City of Sanger, 42 Cal. App. 4th 533, 538 (1996) (noting that a contract "made" in an official capacity includes one in which a person governed by Section 1090 engages only in "preliminary discussions, negotiations, compromises, [and] reasoning"). El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 65 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- b. Exceptions to Section 1090 i. Remote Interests: A public entity may enter into and amend contracts in which a member of its governing body or board has a statutorily defined "remote interest" if the board member discloses and does not participate in the decision on the contract or amendment. There are two categories of exceptions to Section 1090. The first, encompassing what are commonly referred to as "remote interests," is set forth in Section 1091. If an official has only a remote interest in a contract, then a municipality may enter into the contract as long as the official abstains from participating in any way in the decision. "Remote interest" exceptions that often apply to a public entity contract decision include the following: • remote interest exception for compensated officer or employee of a nonprofit corporation - Section 1091 and • government salary remote interest exception when the contract involves the department of the government entity that employs the board member - Section 1091 The "remote interest" exception applies only if the interest is disclosed to the body that approves the contract, the disclosure is noted in that body's official records, and the official abstains from voting. Further, members with a "remote interest" may not attempt to influence any other member of the body or board of which they are members to enter into the contract. ii. Non-interests: Public entity board members may participate in decisions to enter into or amend contracts in which the board member has a statutorily defined ''non-interest" The second category of exceptions is found in Section 1091.5. These exceptions are called "non-interests" and are excluded from the scope of Section 1090 altogether. The second category of exceptions is found in Section 1091.5. These are called "non-interest" exceptions and apply to a type of interest that is completely El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 66 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- exempt from Section 1090 and, if held by the official, does not require abstention. The "non-interest" exceptions are listed in Section 1091.5. Examples of some of those exceptions are listed below: • non-interest exception for government salary when the contract does not involve the department of the government entity that employs the board member - Section 1091.5 • non-interest exception for government salary to a board member's spouse when the board members' spouse was employed by the government entity for at least one year prior to board member's appointment - Section 1091.5 • non-interest exception for non-compensated officer of a non-profit corporation that supports the functions of the public entity and to which the public entity is required to give particular consideration - Section 1091.5 • non-interest exception for non-compensated member of a non-profit corporation - Section 1091.5 and • non-interest exception involving the receipt of public services on the same terms as would be provided if not a member - Section 1091.5 c. Penalties - A Contract Made in Violation of Section 1090 is Void and Officials Violating Section 1090 are Subject to Severe Penalties Finally, it is important to note the extreme consequences of a Section 1090 violation and thus the caution with which persons must act to ensure compliance with this law. A public official who willfully violates any of the provisions of Section 1090 "is punishable by a fine of not more than one thousand dollars ($1000), or by imprisonment in the state prison, and is forever disqualified from holding any office in this state." (Section 1097). In addition, a contract made in violation of Section 1090 is void under Section 1092. People ex rel State v. Drinkhouse, 4 Cal. App. 3d 931, 935 (1970) contract in which a public officer is interested is void, rather than voidable as the statute indicates."). Given these consequences, it is advisable for public officials to be very cautious in deciding whether they may participate in a contracting decision based on the existence of a "non-interest exception," whether they must abstain from El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 67 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- those decisions based on the application of a "remote interest" exception, or whether their financial interest lies outside any exception and therefore precludes the public entity from entering into the contact altogether. 3. Common law doctrine against conflicts of interest The common law doctrine against conflicts. of interest constitutes the courts' expression of the public policy against public officials using their official positions for their private benefit (Terry v. Bender, 143 Cal.App.2d 198, 206 (1956)). This doctrine provides an independent basis for requiring public officials and employees to abstain from participating in matters in which they have a financial interest. Violation of the doctrine can amount to official misconduct and can result in loss of office (Nussbaum v. Weeks, 214 Cal.App.3d 1589 (1989)). By virtue of holding public office, an elected official "is impliedly bound to exercise the powers conferred on him with disinterested skill, zeal, and diligence and primarily for the benefit of the public." (Noble v. City of Palo Alto, 89 Cal.App. 47, 51 (1928)). 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 a private interest The common law doctrine against conflicts of interest has been primarily applied to require a public official to abstain from participation in cases where the official's private financial interest may conflict with his or her official duties (64 Ops.Cal.Atty.Gen. 795, 797 (1981)). However, the doctrine also applies when specific circumstances preclude a p!Jblic official from being a disinterested, unbiased decision- maker for a quasi-judicial matter. In one case, a councilmember who voted to deny permits for a condominium project near his house was deemed to have a common law conflict of interest bias) due to his interest in preserving his ocean view and his personal animosity toward the applicants ( Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996)). However, a more recent court decision creates some uncertainty as to whether the common law doctrine should be applied when statutory conflict of interest laws already address the particular situation. In BreakZone Billiards v. City of Torrance, 81 Cal. App. 4th 1205, 1233 (2000), the court declined to construe allegations of an official's bias in a decision to constitute a conflict of interest at common law when the El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 68 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- applicable statutes already had been construed not to create a conflict of interest in that situation. In BreakZone, the court indicated, "We continue to be cautious in finding common law conflicts of interest We reject the application of the doctrine in this case, assuming, arguendo, it exists." 81 Cal. App. 4th at 1233. B. Other Specialized Conflict of Interest Laws 1. Common Law Doctrine Against Incompatible Offices a. The court-made (common law) doctrine against holding incompatible offices In addition to Section 1126, a common law doctrine (that is, legal principles established over time by court decisions) applies to prevent public officials from holding multiple public offices simultaneously. The common law doctrine against incompatibility of offices arose from a concern that the public interest would suffer when one person holds two public offices that might possibly come into conflict. The California Supreme Court set forth the following test for incompatibility of office in People ex rel. Chapman v. Rapsey, 16 Cal. 2d 636 (1940): Two offices are said to be incompatible when the holder cannot in every instance discharge the duties of each. Incompatibility arises, therefore, from the nature of the duties of the offices, when there is an inconsistency in the functions of the two, where the functions of the two are inherently inconsistent or repugnant, as where antagonism would result in the attempt by one person to discharge the duties of both offices, or where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both. 16 Cal. 2d at 641-42. Incompatibility of offices is not measured only by conflicts that do exist, but also by those conflicts that might arise. Chapman, 16 Cal. 2d 636, 641-42 (1940); 66 Ops. Cal. Att'y Gen. 382, 384 (1983); 64 Ops. Cal. Att'y Gen. 288, 289 (1981). In order to determine whether two positions are in conflict, it is necessary to determine first whether the two positions are both public offices within the scope of the doctrine. No statutory definition is given to the term "public officer." However, in Chapman, the court stated: El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 69 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- public office is said to be the right, authority, and duty, created and conferred by law-the tenure of which is not transient, occasional, or incidental-by which for a given period an individual is invested with power to perform a public function for public benefit One of the prime requisites is that the office be created by the Constitution or authorized by some statute. And it is essential that the incumbent be clothed with a part of the sovereignty of the state to be exercised in the interest of the public. 16 Cal. 2d at 640 ( citation omitted). Incompatibility can be triggered if the duties of the two offices "overlap so that their exercise may require contradictory or inconsistent action, to the detriment of the public interest." People ex rel. Bagshaw v. Thomson, 55 Cal. App. 2d 147, 150 (1942). Only one significant clash of duties and loyalties is required to make offices incompatible. 37 Ops. Cal. Att'y Gen. 21, 22 (1961). The policy set forth in Chapman includes prospective as well as present clashes of duties and loyalties. 63 Ops. Cal. Att'y Gen. 623 (1980). Abstention has not been recognized as a remedy for incompatible offices. The general rule provides: The existence of devices to avoid [conflicts] neither changes the nature of the potential conflicts nor provides assurances that they would be employed. Accordingly, the ability to abstain when a conflict arises will not excuse the incompatibility or obviate the effects of the doctrine. 66 Ops. Cal. Att'y Gen. 176, 177 (1983) (citation omitted). The effect of the doctrine of incompatibility of offices is that a public official who enters into the duties of a second office is deemed to have automatically vacated the first office if the two are incompatible. Chapman, 16 Cal. 2d at 644. A list of some of the offices that the California Attorney General has found to be incompatible are as follows: • county board of supervisors member and community college board member, 78 Ops. Cal. Att'y Gen. 316 (1995) El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 70 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- • fire chief and board of supervisors member, 66 Ops. Cal. Att'y Gen. 176 (1983) • public utility district member and county board of supervisors member, 64 Ops. Cal. Att'y Gen. 137 (1981) • school district trustee and city council member, 73 Ops. Cal. Att'y Gen. 354 (1990) • school board member and city council member, 65 Ops. Cal. Att'y Gen. 606 (1982) • county planning commissioner and city council member, 63 Ops. Cal. Att'y Gen. 607 (1980) • fire chief and city council member, 76 Ops. Cal. Att'y Gen. 38 (1993) • county planning commissioner and city planning commissioner, 66 Ops. Cal. Att'y Gen. 293 (1983) • county planning commissioner and county water district director, 64 Ops. Cal. Att'y Gen. 288 (1981) • city planning commissioner and school district board member, 84 Ops. Cal. Att'y Gen. 91 (1997) • city manager and school district board member, 80 Ops. Cal. Att'y Gen. 74 (1997) • school district board member and community services district board member, 75 Ops. Cal. Att'y Gen 112 (1992). b. The statutory codification of the common law doctrine of incompatible offices - Government Code Section 1099 The Legislature recently adopted Government Code Section 1099, which is intended to create a statutory rule against holding incompatible offices. This new section is not intended to expand or contract the common law rule and is intended to be interpreted based on precedent created by the courts through court decisions under the common law doctrine. Stats. 2005, c.254 (S.B. 274), Section 2. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 71 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Government Code Section 1099 provides that a public officer, including, but not limited to, an appointed or elected member of a governmental board, commission, committee or other body, shall not simultaneously hold two public offices that are incompatible as defined by the statute. Section 1099 provides that offices are incompatible when: • Either of the offices may audit, overrule, remove members of, dismiss employees of, or exercise supervisory powers over the other office or body; • Based on the powers and jurisdiction of the offices, there is a possibility of a significant clash of duties and loyalties between the offices; or • Public policy considerations make it improper for one person to hold both offices. As is the case under the common law doctrine, Section 1099 provides that when two public offices are incompatible, a public officer shall be deemed to have forfeited the first office upon acceding to the second office. However, Section 1099 recognizes that certain state laws or local ordinances may expressly provide for the simultaneous holding of particular offices and that result would not be precluded by Section 1099. Section 1099 also does not apply if one of the positions is an employment rather than an office. It also does not apply when one of the positions is a member of a legislative body that has only advisory powers. 2. Incompatible Outside Activities (Government Code Section 1126 et seq.) California Government Code Section 1126 provides: Except as provided in Sections 1128 and 1129, a local agency officer or employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a local agency officer or employee or with the duties, functions, or responsibilities of his or her appointing power or the agency by which he or she is employed " El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 72 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- The provisions of Section 1126 prohibit officials and employees of a local government agency from engaging in outside employment or activities where any part of the employment or activity will be subject to approval by any other officer, employee, board or commission of the local agency. Exceptions are created to permit a public official to engage in outside employment by a private business (Section 1127), and to permit an attorney employed by a local agency in a non-elective position to serve on an appointed or elected governmental board of another agency (Section 1128). However, the court in Mazzola v. City and County of San Francisco, 112 Cal. App.3d 141 (1980) ruled that Section 1126 provides only authorization to implement standards for incompatibility pursuant to paragraph of Section 1126. The court ruled that the restrictions of Section 1126 are not self-executing because existing and future employees should have notice that specific outside activities are or are not compatible with their duties as an officer or employee of the local agency. Thus, Section 1126 would not bar a public official from holding a position outside their public agency unless the public agency in which they serve as a public official adopts an ordinance in compliance with the requirements of Section 1126 that specifies that the two positions or activities are incompatible. In light of the court's decision in Mazzola, the Attorney General ruled that Section 1126 did not apply to any elected official, such as a City councilmember, since elected officials do not have an "appointing power" that can promulgate guidelines for their activities pursuant to Section 1126. However, if a local agency adopts such guidelines, they can be made applicable to officers and employees subordinate to the legislative body of the local agency, including members of advisory boards and commissions. 3. Redevelopment Conflicts Health and Safety Code Section 33130 requires any officer or employee of a city or redevelopment agency who is required to participate in the formulation of, or to approve plans or policies for, the redevelopment of a project area, to immediately disclose his or her ownership interest in any real property located within the proposed project area. This requirement applies to members of a city council, a planning commission and other officers and employees of a city or redevelopment agency. Failure to make the disclosure constitutes misconduct in office. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 73 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Section 33130 also precludes any city or redevelopment agency official who is required to participate in the formulation of, or to approve plans or policies for, the redevelopment of a project area, from acquiring any interest in property located within the boundaries of the project area. This means that redevelopment agency employees and persons elected to the city council and serving as agency board members may not purchase property in the redevelopment agency's project area. Also, if the redevelopment agency commences the process to establish a new project area, city and redevelopment agency employees and officials involved in redevelopment decisions are precluded from acquiring any additional or new interests in property within that new project area boundary. As discussed below, there are three exceptions to the prohibition against acquiring interests in property in a project area. Upon acquiring any interest under one of these exceptions, disclosure of the interest is required. The first exception allows an officer or employee to acquire an interest for the purpose of participating as an owner or re-entering into business if that officer or employee has owned a substantially equal interest to that being acquired for three years immediately preceding the selection of the project area. Health and Safety Code ("HSC") Section 33130(b). The second exception allows an officer or employee to enter into a rental agreement or lease of property for the purpose of the principal business, occupation, or profession of the officer or employee. However, this exception is limited to rental agreements or leases that have terms substantially equivalent to those offered the general public. Also the rental agreement or lease may not allow the property to be sublet at a rate in excess of the rate in the original rental agreement or lease. HSC Section 33130(c). The third exception allows for the purchase or lease of property for personal residential use, but only after the redevelopment agency has certified that all construction or improvements to the property have been completed. HSC Section 33130.5. 4. Discount Passes on Common Carriers Article XII, Section 7 of the California Constitution states: El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 74 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- "A transportation company may not grant free passes or discounts to anyone holding in office in this state; and the acceptance of a pass or discount by a public officer, other than a Public Utilities Commissioner, shall work a forfeiture of that office. A Public Utilities Commissioner may not hold an official relation to nor have a financial interest in a person or corporation subject to regulation by the commission." manner: The Attorney General has explained this provision applies in the following i. The prohibition applies to public officers, both elected and non-elected, but not employees. ii. The prohibition applies to interstate and foreign carriers as well as domestic carriers, and to transportation received outside California. iii. The prohibition applies irrespective of whether the pass or discount was provided in connection with personal or public business. iv. Violation of the prohibition is punishable by forfeiture of office. There have only been a few decisions that address this Constitutional prohibition. In one Opinion, the Attorney General granted leave to sue two members of a city council who accepted 'free airline tickets to London given by Laker Airlines as part of the airline's promotion of its new Los Angeles to London service. Despite the fact that the councilmembers were unaware of the prohibition, the Attorney General allowed a quo warranto suit that subsequently settled before judgment ( cited in 76 Ops. Cal. Atty. Gen. 1, 3 (1993)). In another Opinion, the mayor of a city received an upgrade from a coach seat to a first class seat on Hawaiian Airlines (76 Ops. Cal. Atty. Gen. 1 (1993)). There, the mayor's ticket was one of 20 first-class upgraded tickets that the airline was allowed to provide to "high profile, prominent members of the community." At issue was whether that situation fit within an exception to the Constitutional prohibition for situations when the free transportation or discount is provided to a public officer as a El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 75 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- member of a larger group unrelated to the official's position. The Attorney General ruled that the facts did not satisfy the exception and that a violation of the prohibition had occurred. The exception considered in that Opinion stemmed out of a 1984 Opinion of the Attorney General which held that a public officer could accept first-class ticket upgrades by virtue of the airline's policy to do so for all persons on their honeymoon. In 67 Ops. Cal. Atty. Gen. 81 (1984), the Attorney General concluded that a public officer, whose spouse was a flight attendant, could accept a free transportation pass or discount when such was offered to all spouses of flight attendants without distinction to the official status of the recipient. Consequently, if the pass or discount is provided to the official because of his or her position as a governmental official, the prohibition applies. If it is provided to the official as a member of a larger group that is not related to the functions of his or her office, the prohibition may not be applicable. 5. Activities of Public Officials and Employees May be Deemed to be Incompatible with their Public Entity Position Pursuant to a Local Ordinance Adopted Under Government Code Section 1126 California statutory law limits the authority of public officials to participate in activities that are "incompatible" with their public office: local agency officer or employee shall not engage in any employment, activity, or enterprise for compensation which is inconsistent, incompatible, in conflict with, or inimical to his or her duties as a local agency officer or employee or with the duties, functions, or responsibilities of his or her appointing power or the agency by which he or she is employed (Gov't Code Section 1126). However, Government Code Section 1126 has been interpreted as only applying to local governmental officials if the local government has adopted an ordinance implementing its provisions. In Mazzola v. City and County of San Francisco, 112 Cal. App. 3d 141 (1980), a court of appeal ruled that Section 1126 provides only authorization to implement standards for incompatibility, rather than actually imposing those standards. The court ruled that the restrictions of Section 1126 are not self- executing because existing and future employees should have notice that specific El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 76 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- outside activities are or are not compatible with their duties for the local agency. Thus, Section 1126 would not bar a public official from holding an outside position unless the public agency adopts an ordinance with notice to public officials and employees that specifies which outside activities are incompatible with their public positions or employment. Many cities have not adopted such ordinances. The Attorney General has also ruled that Section 1126 does not apply to any elected official, such as a city council member, because elected officials do not have an "appointing power" that can promulgate guidelines for their activities pursuant to Section 1126 (64 Ops. Cal. Att'y Gen. 795 (1981)). If a local agency adopts such guidelines, however, these guidelines can be made applicable to officers and employees subordinate to the legislative body of the local agency, including members of advisory boards and commissions (Section 1126(a)). If implemented with an ordinance, the provisions of Section 1126 prohibit officials and employees of a · local government agency from engaging in outside employment or activities in which any part of the employment or activity will be subject to approval by any other officer, employee, board or commission of the local agency. There are limited exceptions to the rule. First, a public official may engage in outside employment by a private business (Section 1127). In addition, an attorney employed by a local agency in a non-elective position may serve on an appointed or elected governmental board of another agency (Section 1128). Finally, service on a joint powers insurance authority does not, by itself, create an incompatibility (Section 1129). 6. Conflicts Upon Leaving Office - The "Revolving Door" Limitations The Legislature recently enacted a new statute, effective July 1, 2006, affecting public officials' activities after leaving office. Stats. 2005, c. 680 (S.B. 8 - Soto). Under the new law, former elected officials and former city managers will be restricted from receiving compensation for lobbying their city for one year after they leave public office. The new law also applies to elected county and district officials and to their chief administrative officers or general managers, but not to department directors or other public officials and employees (Section 87406.3(a)). Given that the new statute is a part of the Political Reform Act, a violation of the statute constitutes a El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 77 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- misdemeanor, and the Fair Political Practices Commission is authorized to impose administrative fines and penalties for its violation (Section 91000). The type of lobbying subject to the ban includes both formal and informal appearances before a local agency and making any oral or written communication to the agency. The statute proscribes the appearances and communications if they are made to influence administrative or legislative action, or affect the issuance, amendment, awarding or revocation of a permit, license, grant, or contract, or the sale or purchase of goods or property (Section 87406.3(a)). The term "administrative actions" within the scope of the lobbying ban includes "the proposal, drafting, development, consideration, amendment, enactment, or defeat by any local government agency of any matter, including any rule, regulation, or other action in any regulatory proceeding, whether quasi-legislative or quasi-judicial." However, matters that are "solely ministerial" are expressly excluded from the prohibition (Section 87406.3(d)(1)). The type of "legislative action" within the scope of the ban includes "the drafting, introduction, modification, enactment, defeat, approval, or veto of any ordinance, amendment, resolution, report, nomination, or other matter by the legislative body of a local government agency or by any committee or subcommittee thereof, or by a member or employee of the legislative body of the local government agency acting in his or her official capacity." (Section 87406.3(d)(2)). The lobbying ban does not apply to any public official who is appearing or communicating on behalf of another local governing body or public agency of which the individual is a board member, officer or employee. Therefore, if such former elected city official or former city manager is contacting his or her city on behalf of the state, county, a school district or some other governmental entity, such activity is not precluded by the ban. State Senator Soto, who authored the legislation, stated that the law is a common sense policy because the public expects their elected officials to be motivated by a desire to benefit their communities - not to better themselves financially from their position. Senator Soto also described the law as a "step toward giving the public more reason to trust their elected officeholders." Some cities have their own preexisting "revolving door" ordinances that regulate the lobbying activities of their former public officials. This new state law El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 78 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- expressly does not preempt those ordinances or prevent cities from adopting additional ordinances on the subject in the future, provided those ordinances are more restrictive than the state law (Section 87406.3(c)). Thus, the new state law merely sets a new minimum standard applicable to all cities. 7. Laws Prohibiting Bribery A number of state statutes prohibit bribery of public officials. Specifically, it is illegal to give or offer to give a bribe to a public official, Penal Code Section 67, or for a public official to ask, receive, or agree to receive any bribe. Penal Code Section 68. Under a strict reading of these statutes, Section 68 applies to bribery of a "ministerial officer, employee, or appointee," and Section 67 applies only to bribery of an "executive officer in this state," but the courts have interpreted both statutes as having a broad scope applicable to public officials generally. People v. Ha/Iner, 43 Cal. 2d 715, 717 (1954) (observing that Section 67, despite its wording, is "all inclusive" and includes city officials, and that "[b]y the sixty-seventh section the offense defined is that of one who offers; by the sixty-eighth, that of one who receives a bribe"); People v. Strohl, 57 Cal. App. 3d 347, 360 (1976) ("Numerous California Supreme Court and appellate court decisions since 1954 have held that 'executive officers' of various levels of local government, including the county level, as herein involved, come within Section 67. The Legislature also expressly made bribery of council members and supervising officials a crime, as well as solicitation of bribes by council members and supervisors. Penal Code Section 165. Another statute makes it a crime for anyone to attempt to bribe "any person who may be authorized by law to hear or determine any question or controversy." Penal Code Section 92. Considered together, these statutes cover the spectrum of public officials. The term "bribe" signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity. Penal Code Section 7(6). Note that under all of the bribery statutes, it is not only the actual giving or accepting of a bribe that is criminal; merely offering to give or receive a bribe constitutes a violation of law. See, e.g., People v. Pic1 (1982) 31 Cal. 3d 731, 739 (noting that a "meeting of the minds" is unnecessary for a bribery conviction). El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 79 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- A public officer forfeits his office if he requests, receives, or agrees to receive a bribe. Penal Code Section 68. In addition, every officer convicted of any crime defined in the Penal Code sections pertaining to bribery and corruption is forever disqualified from holding any office in the state. Penal Code Section 98. Note also that bribery and soliciting bribery potentially violate not only the Penal Code, but also the conflict of interest statutes. For example, in Terry v. Bender, 143 Cal. App. 2d 198 (1956), a court of appeal held that a city council member violated Government Code Section 1090 when he solicited and received a bribe from an attorney in exchange for the council member's vote to employ the attorney with the city. 143 Cal. App. 2d at 207 ( observing that by accepting the bribe, the council member "had placed himself in a position of economic servitude" in violation of Section 1090). Because the bribe "restricted the free exercise of the discretion vested in him for the public good," there was an impermissible conflict of interest. 8. Campaign Contributions a. Conflicts of Interests Arising on Appointed Boards and Commissions The Political Reform Act contains restrictions on the receipt and solicitation of campaign contributions. Under a portion of the PRA known as the "Levine Act," a public agency official may not participate in decisions affecting individuals or entities who have given the official more than $250 in campaign contributions within the past twelve months (Section 84308). However, a city council is not considered an "agency': for purposes of the statute (Section 84308(a)(3)). This disqualification therefore does not apply to a city council member when participating in a decision of the council. It also does not apply to a city council member who sits on the board of a redevelopment agency or other agency of the city if the governing board of that agency is made up entirely of members of the city council when that member is participating in a decision of that agency (2 C.C.R. Section 18438.1 However, it does apply to a council member when that person is serving on the board of a joint powers authority and it does apply to planning commissioners and other officers of the public entity who are not directly elected by the voters. The Political Reform Act also classifies campaign contributions differently than other financial interests. As discussed previously, the PRA requires that public El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 80 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- officials abstain from government decisions in which they have a financial interest, with certain exceptions (Section 87100). A public official generally has a proscribed financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect on (among other things): a source of income aggregating $500 or more in value during the 12 months prior to the decision; or (ii) a donor of a gift or gifts aggregating $360 or more in value during the 12 months prior to the decision (Section 87103(c), 2 C.C.R. Section 18703.4). Campaign contributions, however, are not considered a "financial interest" for purposes of this disqualification because they are neither "income" nor a "gift" within the meaning of the statute (Sections 82028(b 82030(b)(l)). This disqualification therefore is not triggered as a result of a city council member's receipt of a campaign contribution. In other words, city council members acting in their capacity as elected council members are not prohibited from acting on a matter that involves someone who has given them a political contribution. Regulation Section 18438.l(a). For example, the California Supreme Court ruled that Los Angeles city council members were not disqualified from voting on a subdivision map by reason of receiving campaign contributions from the applicants and their agents. Woodland Hills Residents Assn/ Inc. v. City Council, 26 Cal. 3d 938, 945 (1980) ("Plaintiffs' accusation that receipt of a campaign contribution inevitably results in an appearance of bias or prevents a fair hearing is unwarranted."). Similarly, a court of appeal concluded that Torrance city council members were not disqualified from voting on a CUP application by reason of receiving campaign contributions from a party alleged to be in opposition to the application. BreakZone Billiards v. City of Torrance, 81 Cal. App. 4th 1205 (2000). Receipt of a 'campaign contribution can, however, disqualify a public official who serves on more than one public body. For example, under the Levine Act, a council member acting on behalf of an agency other than the city must abstain from a license, permit or other use entitlement decision involving an applicant, proponent or opponent who has made a contribution to the council member's campaign in excess of $250 within the preceding 12 months. The fact of the campaign contribution must also be disclosed prior to the abstention. This disqualification is inapplicable, however, if the campaign contribution is returned within 30 days of receipt (Section 84308). El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 81 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- b. Application of Federal Corruption Laws to the Offer or Solicitation of Illegal Campaign Contributions Tied to an Official Act Another exception to the general rule that campaign contributions do not preclude an official from voting on a matter affecting a campaign contributor is the application of federal corruption laws to situations where the receipt of illegal, laundered or unreported campaign contributions are tied to an official act. In one recent case arising out of the City of San Diego, two council members were charged and convicted of wire fraud for conspiring to change the city's ordinance regulating adult-oriented businesses in exchange for campaign contributions from an adult- oriented business that had been illegally "laundered" through contributions made by citizens of the city or which had been unreported and which constituted bribes. See United States v. Inzunza, 303 F. Supp. 2d 1041, 1043 (S.D. CaL 2004) for a list of the charges; the case was referred to in the press of as the San Diego "Strippergate" case. The charges included the alleged use of wire communications in interstate commerce in furtherance of the alleged conspiracy to defraud the public of their intangible right to honest service, in violation of 18 U.S.C. 1951 (the Hobbs Act) and 1952 (Interstate Transportation in Aid of Racketeering). One of those convictions was later overturned. However, the case points out that direct connections between official acts and illegal or unreported campaign contributions may result in charges of bribery under California law and a violation of certain federal wire fraud and racketeering laws. · c. Ban on Local Agency Officials and Employees Soliciting Campaign Contributions from Other Officials and Employees of the Same Local Agency- Government Code Section 3205 In an effort to avoid local agency public employees being drawn into local political campaigns or having their positions the subject of political reward or retribution, California law contains a prohibition on the solicitation of campaign contributions by a local agency official or employee of other officials or employees within the same local agency. Government Code Section 3205 prohibits an officer or employee of a local agency from soliciting political contributions from an officer or employee of that same local agency. The prohibition applies to incumbents seeking re- election and to non-incumbent candidates for local agency office. An exception exists for broad general public solicitations to a "significant segment of the public" that also include some local agency officials and employees of that agency. Section 3205(c). No definition exists as to what constitutes a significant segment of the public. In the El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 82 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- context of conflict of interest provisions in the Political Reform Act, that term is defined to include segments of the local agency population such as ten percent of all residents, and, in the absence of any court interpretation of the law, that standard provides some guidance on what may be a sufficiently broad solicitation to come with the scope of the exception. Violation of the prohibition is punishable as a misdemeanor and may be prosecuted only by the County District Attorney. Section 3205 9. Nepotism One other potential source of a conflict of interest is a governmental decision that affects a family member. If a public official's relative has an application before the government agency on which the public official serves, the public official would potentially have an improper incentive to approve the relative's application. Because the financial interests of a public official's spouse and dependent children ( children under 18 years of age who are dependent financially on their parents) are attributed to the public official under the Political Reform Act and Government Code Section 1090, participation in decisions financially benefiting spouses and dependent children is limited (Sections 82030, 87103; Thorpe v. Long Beach Community College Dist., 83 Cal. App. 4th 655 (2000) (holding that Section 1090 prohibited a community college district board from voting to approve the promotion of the spouse of a board member)). If the approval did not require a decision by the legislative body, however, the public entity could still potentially approve an application or make a decision if the related public official did not participate. With respect to adult children and more extended family members, the Political Reform Act and Section 1090 would not automatically apply in the absence of some financial relationship between the public official and the adult child or extended family members (Davies Advice Letter, No. I-90-329, 1990 WL 698051 (1990)). Currently, state law only prohibits such "extended family" interests for the governing boards of school districts (Educ. Code Section 35107(e)). Under that statute, a school board member must abstain from participating in personnel matters that uniquely affect his or her relative. "Relative" is defined as an adult who is related to the official by blood or affinity within the third degree, or in an adoptive relationship within the third degree. There is no comparable statute for cities and counties, but some local governments have established restrictions through ordinances or policies. El Cerrito Handbook for Appointed Boards, Commissions and Committees \ Page 83 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- The issue of familial relations comes up more frequently in the context of personnel decisions, as when a public entity prohibits the hiring of relatives of public officials or employees. Such anti-nepotism policies are generally upheld by the courts. For example, in Parsons v. County of Del Norte, 728 F. 2d 1234 (9th Cir. 1984), the Ninth Circuit upheld a county policy prohibiting spouses from working in the same department. The Ninth Circuit held that the policy did not violate the Equal Protection and Due Process clauses of the U.S. Constitution and was rationally related to a legitimate government interest: avoidance of conflicts of interest and favoritism in employee hiring, supervision and allocation of duties. See also Kimura v. Roberts, 89 Cal. App. 3d 871, 875 (1979) (upholding a policy prohibiting spouses from serving on both the city council and planning commission, reasoning that "the finding of the mayor and the city council that an actual or implied conflict of interest existed, is eminently rational, practical and legally sound"). Note, however, that state law prohibits the application of anti-nepotism rules to spouses in some circumstances. The Fair Employment and Housing Act prohibits an employer from making an employment decision based on whether an employee or applicant has a spouse presently employed, except in two specific situations: • For business reasons of superv1s1on, safety, security or morale, an employer may refuse to place one spouse under the direct supervision of the other spouse. • For business reasons of supervision, security or morale, an employer may refuse to place both spouses in the same department, division or facility if the work involves potential conflicts of interest or other hazards greater for married couples than for other persons. 2 C.C.R. Section 7292.S(a) ( emphasis added). Accordingly, any anti~nepotism policy that a city or county adopts must not apply to the hiring of spouses, except in cases of direct supervision or where greater conflicts or hazards occur for married persons, or if a conflict of interest statute applies. c. Laws Regulating Receipt of Gifts, Honoraria and Loans The PRA provisions and other conflict of interest laws discussed above do not prohibit a public official from having an interest in a business or real property. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 84 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Instead, they merely limit the official's ability to participate in a decision that would materially affect those interests. There are additional restrictions in the PRA, however, with regard to certain gifts, honoraria and loans. The statute precludes local officials (including City councilmembers and planning commissioners) from receiving certain gifts, honoraria and loans. These prohibitions apply whether or not the source of the gift, honorarium or loan is, or will ever be, affected by a decision of the official's agency. This section outlines these prohibitions. 1. Limitations on receipt of gifts a. General Gift Limitation - Government Code Section 89503 provides: "No elected state officer, elected officer of a local government agency, or other individual specified in Section 87200 shall accept gifts from any single source in any calendar year with a total value of more than (Emphasis added). A similar limitation prohibits a City employee designated in a conflict of interest code from accepting gifts from a single source totaling more than $390 in value in any calendar year, if the gifts would be required to be reported on his or her statement of economic interests (Section 89503(c)). b. Biennial Gift Limit Adjustment - The Political Reform Act authorizes the FPPC to make an inflationary adjustment of the limitations set forth in Section 89503 every two years (Section 89503(f)). The most recent adjustment became effective on January 1, 2007, raising the gift limitation from $360 to $390. This figure will be further adjusted in future odd-numbered years. c. Exceptions to Gifts and Gift Limitations i. Basic Exceptions - None of the following is a gift and none is subject to any limitation on gifts (Regulation Section 18942): ii. Informational Materials - Information materials such as books, calendars, videotapes, and free or discounted El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 85 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- admission to educational conferences that are provided to assist the official in the performance of official duties are not considered gifts. iii. Returned Gifts - A gift that is not used and that, within 30 days after receipt, is returned or donated pursuant to Regulation Section 18943, or for which reimbursement is paid pursuant to Regulation Section 18943 is not considered a gift. iv. Family Gifts - A gift from an individual's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in- law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin or the spouse of any such person is not subject to the gift limitation, unless the donor is acting as an agent or intermediary for any other person. v. Campaign Contributions - Campaign contributions are not subject to gift limitations. However, officials are nonetheless required to report campaign contributions on their Form 700. vi. Inherited Money or Property- Devises or inheritances of any kind are exempt from gift limitations. vii. Awards - A personalized plaque or trophy with an individual value of less than two hundred fifty dollars ($250) is not a gift. viii. Home Hospitality- Hospitality (including food, beverages, occasional lodging) provided to an official by an individual in his or her home when the individual or a member of the individual 1s family is present, is not a gift. ix. Presents on Personal or Family Occasions - Presents exchanged between an official and an individual, other than a lobbyist, on holidays, birthdays, or similar occasions, are El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 86 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- not gifts provided that the presents exchanged are not substantially disproportionate in value. x. Wedding Gifts - Wedding gifts given to a public official are exempt from the limitations on gifts. xi. Leave Credits Donated to an Official - Leave credits, including vacation, sick leave, or compensatory time off, donated to an official in accordance with a bona fide catastrophic or similar emergency leave program established by the official's employer are not gifts as long as they are available to all employees in the same job classification or position. This exception does not include donations of cash. xii. Disaster Assistance - Payments received under a government agency program or a program established by a 501(c)(3) organization designed to provide disaster relief or food, shelter, or similar assistance to qualified recipients are not gifts as long as such payments are available to members of the public regardless of official status. xiii. Admission and Incidentals at Speaking Events - Free admission, and refreshments and similar non-cash nominal benefits provided to an official during the entire event at which the official gives a speech, participates in a panel or s~minar, or provides a similar service, and actual intrastate transportation and any necessary lodging and subsistence provided directly in connection with the speech, panel, seminar, or service, including but not limited to meals and beverages on the day of the activity. These items are not payments and need not be reported by any official. xiv. Campaign Travel - The transportation, lodging, and subsistence provided in direct connection with campaign activities, including attendance at political fundraisers, are exempt from the gift limitation. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 87 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- d. Payments for Food - Regulation Section 18941.1 provides, in summary, "a payment made to an official for his or her food is a gift except as provided in Government Code Section 82028 and Regulation Sections 18727.5, 18941, 18942, 18943, 18946.2, 18946.5, 18950.3, and 18950.4." e. Gifts to Your Family - Gifts given directly to members of an official's immediate family are not gifts to the official unless used or disposed of by the official or given by the recipient member of the official's immediate family to the official for disposition or use at the official's discretion. Gifts delivered by mail or other written communication are given directly to members of the official's immediate family if the family members' names or familial designations (such as "spouse") appear in the address on the envelope or in the communication tendering or offering the gift, and the gift is intended for their use or enjoyment. Finally, a gift given to the official, but designated for the official and spouse or family, is a gift to the official if the official exercises discretion and control over who will actually use the gift. If the official enjoys direct benefit from a single gift, as well as members of the official's family, the full value of the gift is attributable to the official. f. Testimonial Dinners and Events, Invitation-only Events, and Ceremonial Functions i. Testimonial Dinners Regulation Section 18946.42 provides that when an official is honored at a testimonial dinner or similar event, at which campaign fundraising for the official does not occur, the value received is the official's pro-rata share of the cost of the event, plus the value of any specific item that is presented to the official at the event. The term "pro-rata share of the cost of the event" means the cost of all the food and beverages, rent of the facilities, decorations, entertainment, and all other costs associated with the event, divided by the number of acceptances or the number of attendees. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 88 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- ii. Invitation-Only Events When an official attends an invitation-only event such as a banquet, party, gala, celebration, or other similar function, other than a non-profit or political fundraiser as set forth in Regulation Section 18964.4, the value received is the official's pro-rata share of the cost of the event, plus the value of any specific item that is presented to the official at the event. "Pro-rata share of the cost of the event" means the cost of all the food and beverages, rent of the facilities, decorations, entertainment, and all other costs associated with the event, divided by the number of acceptances or the number of attendees. iii. Official or Ceremonial Functions When an official performs an official or ceremonial function at an invitation-only event, as set forth in subdivision (ii), in which the official is invited to participate by the event's sponsor or organizer to perform an official or ceremonial function, the value received is the cost of any food or beverages provided to the official, plus the value of any specific item that is presented to the official at the event. iv. Drop-in Visit Except for an event sponsored by a lobbyist, lobbying firm, and lobbyist employer, if an official attends a testimonial dinner or an invitation-only event, and does not stay for any meal or entertainment otherwise provided at the event, and receives only minimal appetizers or drinks, the value of the gift received is the cost of the food and beverages consumed by the official and guests accompanying the official, plus the value of any specific item that is presented to the official at the event. For purposes of this subdivision, "entertainment" means a feature show or performance intended for an audience, and does not include music provided for background ambiance. v. Lobbyists, Lobbying Firms, and Lobbyist Employers Where an official attends a testimonial dinner or an invitation-only event sponsored by a lobbyist, lobbying firm, or lobbyist employer, the value of the gift is determined pursuant to Regulation Section 18640. g. Tickets to Political and Charitable Fundraisers - Regulation Section 18946.4 provides that except as provided in subdivision a ticket to a fund- El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 89 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- raising event for a nonprofit, tax-exempt organization (that is not a political campaign committee) shall be valued as follows: i. Nonprofit Fundraiser - Except as provided in subdivision a ticket to a fund-raising event for a nonprofit, tax-exempt organization (that is not a political campaign committee) shall be valued as follows: Where the event is a fund-raising event for a nonprofit organization, and the ticket clearly states that a portion of the ticket price is a donation to the organization, then the value of the gift is the face value of the ticket or admission reduced by the amount of the donation. If the ticket has no stated price or no stated donation portion, the value of the gift is the fair market value of any food, beverage, or other tangible benefits provided to each attendee. ii. Fundraiser for a religious, charitable, scientific, literary or educational organization - Where the event is a fund-raising event for an organization exempt from taxation under Internal Revenue Code Section 501(c)(3), the ticket or other admission privilege has no value. iii. Political Fundraiser - Where the event is a fund-raising event for a campaign committee or candidate, the ticket or other admission privilege has no value. h. Prizes and Awards from Competitions - Regulation Section 18946.5 provides (in summary): A prize or an award received shall be reported as a gift unless the prize or award is received in a bona fide competition not related to the recipient's status as an official or candidate. A prize or award that is not reported as a gift shall be reported as income. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 90 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- l Certain Gifts of Travel Exempt from Gift Limitations i. Travel In Connection With Speeches, Panels, and Seminars. A payment made for travel, including actual transportation and related lodging and subsistence, is not subject to the prohibitions or limitations on honoraria and gifts if: The travel is reasonably related to a legislative or governmental purpose, or to an issue of state, national, or international public policy, and The travel, including actual transportation and related lodging and subsistence, is in connection with a speech given by the official or candidate; the lodging and subsistence expenses are limited to the day immediately preceding, the day of, and the day immediately following the speech; and the travel is within the United States. ii. Travel Provided by Governmental Entity or Charity - A payment made for travel, including actual transportation and related lodging and subsistence, is not subject to the prohibitions or limitations on honoraria and gifts if: The travel is reasonably related to a legislative or governmental purpose, or to an issue of state, national, or international public policy; and The payment is provided by a government, a governmental agency, a foreign government, a governmental authority, a bona fide public or private educational institution, defined in Revenue and Taxation Code Section 203, or by a nonprofit charitable or religious organization that is exempt from taxation under Internal Revenue Code El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 91 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Section 501( or by a person that is domiciled outside the United States and that substantially satisfies the requirements for tax exempt status under Internal Revenue Code Section 501(c)(3). iii. Travel Paid From Campaign Funds - A payment made for transportation and necessary lodging and subsistence, which payment is made from campaign funds as permitted by Section 89513, or which is a contribution, is not an honorarium or a gift. iv. Travel Provided By Official's Agency - A payment made for transportation and necessary lodging and subsistence, which payment is made by the agency of an official, is not an honorarium or a gift. v. Travel In Connection With Bona Fide Business - A payment made for transportation, lodging, and subsistence, which payment is reasonably necessary in connection with a bona fide business trade, or profession, and which satisfies the criteria for federal income tax deductions for business expenses specified in Internal Revenue Code Sections 162 and 274, is not an honorarium or gift unless the sole or predominant activity of the business, trade or profession is making speeches. 2. Prohibitions on receipt of honoraria Section 89502 provides that no elected officer of a local government agency or any official listed in Section 87200 shall accept an honorarium. An "honorarium" means any payment made in consideration for any speech given, article published, or attendance at any public or private conference, convention, meeting, social event, meal, or like gathering. Exceptions to Prohibition on Honoraria i. Earned Income Exception - "Honorarium" does not include income earned for personal services if: El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 92 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- The services are provided in connection with an individual's business or the individual's practice of or employment in a bona fide business, trade, or profession, such as teaching, practicing law, medicine, insurance, real estate, banking, or building contracting; and The services are customarily provided in connection with the business, trade, or profession. ii. Information Materials - "Honorarium" does not include information materials such as books, calendars, videotapes, or free or discounted admission to educational conferences that are provided to assist the official in the performance of official duties. iii. Family Payments - "Honorarium" does not include a payment received from one's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle or first cousin or the spouse of any such person. However, a payment from any such person is an honorarium if the donor is acting as an agent or intermediary for any person not listed in this paragraph. iv. Campaign contributions However, campaign contributions are required to be reported. v. Personalized Plaque or Trophy - Honorarium does not include a personalized plaque or trophy with an individual value of less than two hundred and fifty dollars ($250). vi. Admission and Incidentals at Place of Speech "Honorarium" does not include free admission, refreshments and similar non-cash nominal benefits provided to an official during the entire event at which the official gives a speech, participates in a panel or seminar, or provides a similar service, and actual intrastate transportation and any El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 93 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- necessary lodging and subsistence provided directly in connection with the speech, panel, seminar, or service, including but not limited to meals and beverages on the day of the activity. vii. Incidentals at Private Conference - "Honorarium" does not include any of the following items, when provided to an individual who attends any public or private conference, convention, meeting, social event, meal, or like gathering without providing any substantive service: Benefits, other than cash, provided at the conference, convention, meeting, social event, meal, or gathering. Free admission and food or beverages provided at the conference, convention, meeting, social event, meal, or gathering. viii. Travel That Is Exempt From Gifts - Any payment made for transportation, lodging and subsistence that is exempted by the gift exceptions. 3. Prohibitions on receipt of certain types of loans a. Prohibition on Loans Exceeding $250 from Other City Officials, Employees, Consultants and Contractors - Elected officials and other City officials specified in Section 87200, may not receive a personal loan that exceeds $250 at any given time from an officer, employee, member or consultant of their city or any local government agency over which their city exercises direction and control (Section 87460 and (b In addition, elected officials and other city officials specified in Section 87200 may not receive a personal loan that exceeds $250 at any given time from any individual or entity that has a contract with their city or any agency over which their city exercises direction and control (Section 87460 and b. Requirement for Loans of $500 or More from Other Persons and Entities to be in Writing - Elected local officials may not receive a personal loan of $500 or more unless the loan is made in writing and clearly states that terms of the loan. The loan document must include the names of the parties to the loan agreement, El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 94 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- as well as the date, amount, interest rate, and term of the loan. The loan document must also include the date or dates when payments are due and the amount of the payments (Section 87461). c. Exceptions to Loan Limits and Documentation Requirements - The following loans are not subject to the limits and documentation requirements specified in subparts 1 and 2 above: i. Loans received from banks or other financial institutions, and retail or credit card transactions, made in the normal course of business on terms available to members of the public without regard to official status. ii. Loans received by an elected officer's or candidate's campaign committee. iii. Loans received from the elected or appointed official's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such person unless he or she is acting as an agent or intermediary for another person not covered by this exemption. iv. Loans made, or offered in writing, prior to January 1, 1998. d. Loans that Become Gifts Subject to the Gift Prohibition - Under the following circumstances, a personal loan received by any public official (elected and other officials specified in Section 87200, as well as any other local government official or employee required to file a Statement of Economic Interest) may become a gift and subject to gift and reporting limitations: i. If the loan has a defined date or dates for repayment and has not been repaid, the loan will become a gift when the statute of limitations for filing an action for default has expired. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 95 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- ii. If the loan has no defined date or dates for repayment, the loan will become a gift if it remains unpaid when one year has elapsed from the later of: the date the loan was made; the date the last payment of $100 or more was made on the loan; or the date upon which the official has made payments aggregating to less than $250 during the previous 12- month period. e. Exceptions Loans that Do Not Become Gifts - The following loans will not become gifts to an official: i. A loan made to an elected officer's or candidate's campaign committee. ii. A loan on which the creditor has taken reasonable action to collect the balance due. iii. A loan described above on which the creditor, based on reasonable business considerations, has not undertaken collection action. (However, except in a criminal action, the creditor has the burden of proving that the decision not to take collection action was based on reasonable business considerations.) iv. A loan made to an official who has filed for bankruptcy and the loan is ultimately discharged in bankruptcy. v. A loan that would not be considered a gift as outlined in paragraph 3 above (e.g. loans from family members) (Section 87462). El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 96 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 4. Prohibition Against Mass Mailings The Political Reform Act also prohibits the sending of newsletters and other so-called "mass mailings" at public expense (Section 89001). A "mass mailing" is defined as the mailing or distribution at public expense of 200 or more items within a calendar month featuring the name, office, photograph or other reference to an elected officer of the agency (Regulation Section 18901). The underlying intent of the Government Code provision and the implementing FPPC Regulation is to preclude elected officials from using newsletters as indirect campaign flyers for themselves. The law and regulations are intended to clamp down on prior abuses of newsletters so that elected officials cannot use publicly funded newsletters to bolster their name or accomplishments while in office. a. Test for prohibited mass mailing The FPPC Regulations provide a four-prong test to determine the legality of mass mailings. A mass mailing is prohibited if each of the following elements is present: • A delivery of a tangible item, • that "features," or includes reference to, an elected official, • at public expense, • in a quantity of 200 or more items (Regulation Section 18901). Most public agencies that publish newsletters attempt to avoid the prohibition by ensuring that the newsletter does not meet the second element of the test. Each of the four elements is discussed in numerical order below. i. Delivery of tangible item First, a court will determine whether: Any item sent is delivered, by any means, to the recipient at his or her residence, place of employment or business, or post office box. . . . [T]he item delivered to the recipient must be a tangible item, such as a El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 97 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- videotape, record, or button, or a written document (Regulation Section 18901(a)(l)). This means that if a city intends to deliver a written document, such as a city newsletter, by U.S. mail or by hand to residents or businesses, this element is satisfied. ii. "Features," or includes reference to, an elected official The second part of the test is the most important and is stated as follows: The item sent either: • Features an elected officer affiliated with the agency which produces or sends the mailing, or • Includes the name, office, photograph, or other reference to an elected officer affiliated with the agency that produces or sends the mailing, and is prepared or sent in cooperation, consultation, coordination, or concert with the elected officer (Regulation Section 18901(a)(2)). The term "features an elected officer" is defined in a later portion of the Regulation as follows: "Features an elected officer" means that the item mailed includes the elected officer's photograph or signature, or singles out the elected officer by the manner of display of his or her name or office in the layout of the document, such as by headlines, captions, type size, type face, or type color (Regulation Section 18901(c)(2)). And the term "elected officer affiliated with the agency" in this manner: "Elected officer affiliated with the agency" means an elected officer who is a member, officer, or employee of the agency, or of a subunit thereof such as a committee, or who has supervisory control over the agency, or who appoints one or more members of the agency (Regulation Section 18901( This means that if the written document includes the photograph of a council member, even if it just shows the council member cutting a ribbon on a civic El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 98 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- project or giving out a plaque to a member of the community, this element would be satisfied and the mailing would be prohibited. It also precludes articles about an elected city official or articles in which they are "singled out" for discussion or reference. The other way this second part of the mass mailing test can be satisfied is if an elected city official's "name, office, photograph, or other reference" is included in a written document and the document, or any part of it "is prepared or sent in cooperation, consultation, coordination, or concert with the elected officer." This restriction presents elected officials with a choice. If the elected official involves him or herself in the preparation of the document, then even the official's name is excluded from appearing in the document pursuant to this second sub part. If, on the other hand, the elected official does not involve him or herself in the preparation of the document, his or her name may appear in the document, but just not in a way that it is "featured" by way of headlines, captions, type size, type face, or type color. iii. Public Expense The third part of the test is whether: • Any of the costs of distribution [are] paid for with public moneys; or • Costs of design, production, and printing exceeding $50.00 are paid with public moneys, and the design, production, or printing is done with the intent of sending the item other than as permitted by this regulation (Regulation Section 18901(a)(3)). This part of the test precludes the city from either paying the costs of mailing a mass mailing, or paying more than $50.00 of the cost of having it produced if another entity then pays for the cost of distributing the mailing. iv. At least 200 copies of the item The fourth and final element of the test to determine whether a mass mailing is prohibited is whether, "more than 200 substantially similar items are sent, in a single calendar month, excluding any item sent in response to an unsolicited request." (Regulation Section 18901(a)(4)). This means that if more than 200 copies of the same written document, such as a city newsletter, are sent to the public in the same month, this element will be satisfied, with minor exceptions discussed below. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 99 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Consequently, a city newsletter is particularly prone to violating the mass mailing proscriptions, especially the first, third and fourth elements of the test. The key to a lawful newsletter is to ensure that each issue of the newsletter fully avoids meeting the criteria of the second element of the test. This means that the newsletter cannot "feature" an elected city official and cannot include an elected official's name or reference if that official participates in the preparation of the newsletter, as discussed above. For example, many cities issue proclamations and awards at council meetings, and it is customary for an honoree to be photographed with the mayor. In order to comply with the mass mailing restrictions, the cities take two photographs: one of the honoree shaking the mayor's hand, for distribution to non-city publications such as a local newspaper, and one of the honoree standing alone, for publication in the city newsletter. b. Exceptions to the mass mailing prohibition Subdivision of the Regulation contains a list of certain types of documents that are exempt from the prohibition of mass mailings. The first of these documents is a letter on city letterhead where the elected official's name only appears in the letterhead along with a list of all other elected officers of the city and the letter does not contain other references to the elected official (Regulation Section 18901(b)(l)). Under this exemption, a non elected official, such as the city manager, may send a letter on city letterhead at city expense to members of the community but an elected officer, such as the mayor, cannot do the same because the signature on the letter will be considered a separate reference to the elected official. If a letter signed by the mayor is to be sent to the community, a private individual or group would have to pay for the cost of producing and sending that letter. Other exemptions include press releases to the media, intra agency communications, statements and bills, telephone directories, meeting or event announcements, and meeting agendas (Regulation Sections 18901(b)(4-10)). All of these items are subject to their own specific limitations, as set forth in the Regulation. 5. Expenditures to Support or Defeat a Ballot Measure A local government may not spend public funds to assist with the passage or defeat of an initiative or other ballot measure without explicit statutory authority. Public monies may not be spent on commercials, announcements, banners or any other El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 100 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- promotional materials. This is based on the theory that it would be unfair to voters with opposing views to use public funds in this way. The prohibition also serves to prevent elected officials from using government funds to promote themselves or their allies in office (Section 54964; Stanson v. Mott, 17 Cal. 3d 206, 217 (1976); League of Women Voters v. County-Wide Criminal Justice Coordinating Comm'n, 203 Cal. App. 3d 529 (1988)). Individual officials who financially support or oppose a ballot measure must report their contributions to the FPPC (Section 84203.5). Government Code Section 54964 prohibits a city official or employee from expending or authorizing the expenditure of city funds to support or oppose a ballot measure, or contribute to a campaign for or against a candidate. However, this section does not prohibit the expenditure of city funds to provide information to the public about the possible effects of the ballot measure on the activities, operations, or policies of the city, as long as these activities are otherwise allowed under California law, and the information is factual, accurate, fair, and impartial. However, in determining whether an election expenditure is valid, courts use a fact-sensitive approach, so cities should exercise caution in expending any public funds on election matters. See Stanson v. Mott, 17 Cal. 3d at 222. 6. Prohibition on Gifts of Public Funds Article XVI, Section 6 of the California Constitution prohibits state and local governments from making gifts of public funds or property. A transfer of property without consideration is a gift (Civ. Code Section 1146). However, where property is transferred for a "public purpose" it will not be considered a gift of public funds. There, "[t]he benefit to the government from an expenditure for a 'public purpose' is in the nature of consideration and funds expended are therefore not a gift even though private persons are benefited therefrom." 69 Ops. Cal. Att'y Gen. 168 (1986) (citing California Employment Stabilization Comm'n v. Payne, 31 Cal. 2d 210, 216 (1947); Alameda County v. Janssen, 16 Cal. 2d 276, 281 (1940)). In determining whether a legislative body has made a gift of public funds, courts will look first at "whether the money is to be used for a public or private purpose." Oakland v. Garrison, 194 Cal. 298, 302 (1941). "If it is for a public purpose within the jurisdiction of the appropriating board or body, it is not, generally speaking, El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 101 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- to be regarded as a gift." Id. As the California Court of Appeal explained in Board of Supervisors v. Dolan, "[i]t is settled that if a public purpose is served by the expenditure of public funds, the constitutional prohibition is not violated even though there may be incidental benefits to private persons." 45 Cal. App. 3d 237, 243 (1975). However, to avoid violating the constitutional prohibition, public financial assistance must be tailored or "directly related" to a public purpose. California Housing Finance Authority v. Elliott, 17 Cal. 3d 575 (1976). Thus, financial assistance that does not directly further the proffered public purpose may still be found to be unconstitutional. Courts defer to the legislative body's determination of what constitutes a "public purpose." The concept of public purpose has been "liberally construed by the courts," and a city council's determination of public purpose will be upheld unless it is "totally arbitrary." County of Alameda v. Carleson, 5 Cal. 3d 730, 746 (1971). Where a city acts pursuant to a state statute or in furtherance a state statute, courts will defer to the state legislature in determining whether a public purpose exists. 7. Conclusion More often than not, determining the application of conflict of interest laws in particular circumstances requires complicated analysis. Because the consequences for a violation of these laws can be very serious, it is important that potential conflicts be identified as soon as possible to ensure that the appropriate analysis can be performed. We encourage you to seek advice from the City Attorney whenever you are in doubt about a conflict of interest issue. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 102 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- XI. PUBLIC RECORDS The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. CAL. CONST. art. I, § 3(b). In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state. Gov't Code § 6250. Board, Commission and Committee Members should be aware that most documents generated in the City constitute public records that must be disclosed upon request. The Public Records Act contains the majority of regulations governing public records. Section 6252 of the Government Code defines "public records" as: "Any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Within this definition, "writing" is also defined very broadly. Section 6252 defines "writing" as, essentially, any "means of recording upon any form of communication or representation." Therefore, maps, tapes, photographs, magnetic or punched cards, and computer hard drives and diskettes, are all considered "writings" within the scope of the Public Records Act. The guiding provision of the Act is contained in Section 6253, which provides that: "Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Every agency may adopt regulations stating the procedures to be followed when making its records available in accordance with this section." El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 103 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- In essence, this Section provides that any public record that is not specifically exempted by statute must be made available to the public. The Act contains a long list of public records that are exempt from disclosure requirements and may be withheld from the public. The determination of whether a document is exempt from disclosure is usually made by staff, with the advice of the City Attorney. A detailed discussion of the Public Records Act is beyond the scope of this Handbook. We mention the Act only so that Board, Commission and Committee members are aware that most Board, Commission and Committee correspondence constitute public records that must be disclosed upon request. The inclusion of the words "private" or "confidential" on the documents do not make otherwise public documents exempt from disclosure under the Act. Board, Commission and Committee members should keep this in mind in their correspondence and other documents relating to City business. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page 104 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54950. 54950.5. 54951. 54952. 54952.1. 54952.2. 54952.6. 54952.7. 54953. 54953.1. 54953.2. APPENDIX A THE RALPH M. BROWN ACT updated with changes effective January 1, 2007 Declaration, intent; sovereignty Short title Local agency Legislative body, definition Member of a legislative body of a local agency; conduct Meeting; prohibited devices for obtaining collective concurrence; exclusions from chapter Action taken Copies of chapter to members of legislative body of local agencies Meetings to be open and public; attendance; video teleconferencing Testimony of members before grand jury Legislative body meetings to meet protections and prohibitions of the Americans with Disabilities Act 54953.3. Conditions to attendance 54953.5._ Right to record proceedings; conditions; tape or film records made by or under direction of local agencies 54953. 6. Prohibitions or restrictions on broadcasts of proceedings of legislative body; reasonable findings 54953.7. Allowance of greater access to meetings than minimal standards in this chapter 54954. Time and place of regular meetings; special meetings; emergencies 54954.1. Mailed notice to persons who filed written request; time; duration and renewal of requests; fee 54954.2. Agenda; posting; action· on other matters 54954.3. Opportunity for public to address legislative body; adoption of regulations; public criticism of policies El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-1 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54954.4. Reimbursements to local agencies and school districts for costs 54954.5. Closed session item descriptions 54954.6. New or increased taxes and or assessments; public meetings and public hearings; joint notice requirements 54955. Adjournment; adjourned meetings 54955.1. Continuance 54956. Special meetings; call; notice 54956.5. Emergency meetings in emergency situations 54956.6. Fees 54956.7. Closed sessions; license applications; rehabilitated criminals 54956.8. Real property transactions; closed session meeting with negotiator 54956.86. Charges or complaints from members of local agency · health plans;· closed hearings; members' rights 54956.87. Records of certain health plans; meetings on health plan trade secrets 54956.9. 54956.95. 54957. 54957.1. 54957.2. 54957.5. Pending litigation; closed session; lawyer-client privilege; notice; memorandum Closedsessions; insurance pooling; tort liability losses; public liability losses; workers' compensation liability Closed sessions; personnel matters; exclusion of witnesses Closed sessions; public report of action taken Minute book record of closed sessions; inspection Agendas and other writings distributed for discussion or consideration at public meetings; public records; inspection 54957. 6. Closed sessions; salaries, salary schedules or fringe benefits 54957.7. Disclosure of items to be discussed in closed sessions 54957.8. · Closed sessions; Jeg1slative body of a multijurisdictional drug Jaw enforcement agency 54957.9. Disorderly conduct of general public during meeting; clearing of room El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-2 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54957.10. Closed Sessions; local agency empl~yee application for early withdrawal of funds in deferred compensation plan; financial hardship 54958. 54959. 54960. 54960.1. 54960.5. 54961. 54962. 54963. Application of chapter Penalty for unlawful meeting Actions to stop or prevent violations of meeting provisions; applicability of meeting provisions; validity of rules or actions on recording closed sessions Unlawful action by legislative body; action for mandamus or injunction; prerequisites Costs and attorney fees Meetings prohibited in facilities; grounds; identity of victims of tortious sexual conduct or child abuse Closed session by legislative body prohibited Confidential information acquired during an authorized closed legislative session; authorization by legislative body; remedies for violation; exceptions 54950. Declaration, intent; sovereignty. In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the- other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve . ) them. The people, in delegating authority, do not give their public servants 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. 54950.5. Short title. This chapter shall be known as the Ralph M. Brown Act. 54951. Local agency. As used in this chapter, "local agency" means a county, city, whether general law or 'Chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency. El Cerrito Handbook for Appointed Boards, Commissions and Committees . . Page A-3 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54952. Legislative body, definition. As used in this chapter, "legislative body" means: The governing body of a local agency or any other local body created by state or federal statute. A commission, committee, board, or other body of a local agency, whether permanent or temporary, decision making or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legi$1ative bodies for purposes of this chapter. A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either: Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity. Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency. Notwithstanding subparagraph of paragraph no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other -entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shali be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full voting member to a nonvoting member. The lessee of any hospital the whole or part of which is first leased pursuant to subdivision of Section 32121 of the Health and Safety Code after January 1, 19941 where the lessee exercises any material authority of a legislative body of a local agency El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-4 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- delegated to it by that legislative body whether the lessee is prganized and operated by the local agency or by a delegated authority. 54952.1. Member of a legislative body of a local agency; conduct. Any person elected to serve as a member of a legislative body who has not yet assumed the duties of office shall conform his or her conduct to the requirements of this chapter and shall be treated for purposes of enforcement of this chapter as if he or she has already assumed office. 54952.2. Meeting; prohibited devices for obtaining collective concurrence; exclusions from chapter. As used in this chapter, "meeting" includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate· upon any item that is. within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. Except as authorized pursuant to Section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited. ( c) Nothing in this section shall impose the requirements of this chapter upon any of the following: Individual contacts or conversations between a member of a legislative body and any other person. The attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other . than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency. Nothing in this paragraph is intended to allow members of the public free admission to a conference or similar gathering at which the organizers have required other participants or registrants to pay fees or charges as a condition of attendance. The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person El Cerrito Handbook for Appointed Boards, Commissions and Committees . . Page A-5 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- or organization other than the local agency, provided that a m.ajority of the members do not discuss among themselves, other than as part o( the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the ·local agency. The attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of the local agency, or at an open and noticed meeting of a legislative body of another local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. The attendance of a majority of the members of a legislative body at a purely social or ceremonial occasion, provided that a majority of the members do not discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. The attendance of a majority of the members of a legislative body at an open and noticed meeting of a standing committee of that body, provided that the members of the legislative body who are not members of the standing committee attend only as observers. 54952.6. Action taken. As used in this chapter, "action taken" means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance. 54952.7. Copies of chapter to members of legislative body of local agencies. A legislative body of a local agency may require that a copy of this chapter be given to each member of the legislative body and any person elected to serve as a member of the legislative body who has not assumed the duties of office. An elected legislative body of a local agency may require that a copy of this chapter be given to each member of each legislative body all or a majority of whose members are appointed by or under the authority of the elected legislative body. El Cerrito Handbook for Appointed Boards, Commissions and Committees . Page A-6 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54953. Meetings to be open and public; attendance; yideo teleconferencing. 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 in this chapter. Notwithstanding any other provision of law, the legislative body of a local agency may use teleconferencing for the benefit of the public and the legislative body of a local agency in connection with any meeting or proceeding authorized by law. The teleconferenced meeting or proceeding shall comply with all requirements of this chapter and all otherwise applicable provisions of law relating to a specific type of meeting or proceeding. Teleconferencing, as authorized by this section, may be used for all purposes in connection with any meeting within the subject matter jurisdiction of the legislative body. All votes taken during a teleconferenced meeting shall be by rollcall. If the legislative body of a local agency elects to use teleconferencing, it shall post agendas at all teleconference locations and conduct teleconference meetings in a manner that protects the statutory and constitutional rights of the parties or the public appearing before the legislative body of a local agency. Each teleconference location shall be identified in the notice and agenda of the meeting or proceeding, and each teleconference location shall be accessible to the public. During the teleconference, at least a quorum of the members of the legislative body shall participate from locations within the boundaries of the territory over which the local agency exercises jurisdiction. The agenda shall provide an opportunity for members of the public to address the legislative body directly pursuant to Section 54954.3 at each teleconference location. ( 4) For the purposes of this section, "teleconference" means a meeting of a legislative body, the members of which are in different locations, connected by electronic means, through either audio or video, or both. Nothing in this section shall prohibit a local agency from providing the public with additional teleconference locations. ( c) No legislative body shall take action by secret ballot, whether preliminary or final. 54953.1. Testimony of members before grand jury. The provisions of this chapter shall not be construed to prohibit the members of the legislative body of a local agency from giving testimony in private before a grand jury, either as individuals or as a body. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-7 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54953.2. Legislative body meetings to meet and prohibitions of the Americans with Disabilities Act. All meetings of a legislative body of a local agency that are open and public shall meet the protections and prohibitions contained in Section 202 of the Americans with Disabilities Act of 1990 ( 42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. 54953.3. Conditions to attendance. A member of the· public shall not be required, as a condition to attendance at a meeting of a legislative body of a local agency, to register his or her name, to provide other information, to complete a questionnaire, or otherwise to fulfill any condition precedent to his or her attendance. If an attendance list, register, questionnaire, or other similar document is posted at or near the entrance to the room where the meeting is to be held, or is circulated to the persons present during the meeting, it shall state clearly that the signing, registering, or completion of the document is voluntary, and that all persons may attend the meeting regardless of whether a person signs, registers, or completes the document. 54953.5. Right to record proceedings; conditions; tape or film records made by or under direction of local agencies. Any person attending an open and public meeting of a le.gislative body of a local agency shall have the right to record the proceedings with an audio or video tape recorder or a still or motion picture camera in the absence of a reasonable finding by the legislative body of the local agency that the recording cannot continue without noise, illumination, or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings. Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency shall be subject to inspection pursuant to the California Public Records Act (Chapter 3.5 ( commencing with Section 6250) of Division 7 of Title but, notwithstanding Section 34090, may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording shall be provided without charge on a video or tape player made available by the local agency. 54953.6. Prohibitions or restrictions on broadcasts of proceedings of legislative body; reasonable findings. No legislative body of a local agency shall prohibit or otherwise restrict the broadcast of its open and public meetings in the absence of a reasonable finding that the broadcast cannot be accomplished without El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-8 ©2007 Richards,. Watson & Gershon ---PAGE BREAK--- noise, illumination, or obstruction of view that would constitute a persistent disruption of the proceedings. 54953.7. Allowance of greater access to meetings than minimal standards in this chapter. Notwithstanding any other provision of law, legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the· minimal standards set forth in this chapter. In addition thereto, an elected legislative body of a local agency may impose such requirements on those appointed legislative bodies of the local agency of which all or a majority of the members · are appointed by or under the authority of the elected legislative body. 54954. Time and place of regular meetings; special meetings; emergencies. Each legislative body of a local agency, except for advisory committees or standing committees, shall provide, by ordinance, resolution, bylaws, or by whatever other rule is· required for the conduct of business by that body, the time and place for holding regular meetings. Meetings of advisory committees or standing committees, for which an agenda is posted at least 72 hours in advance of the meeting pursuant to subdivision of Section 54954.2, shall be considered for purposes of this chapter as regular meetings of the legislative body. Regular and special meetings of the legislative body shall be held within the boundaries of the territory over which the local agency exercises jurisdiction, except to do any of the following: Comply with state or federal law or court order, or attend a judicial or administrative proceeding to which the local agency is a party. Inspect real or personal property which cannot be conveniently brought within the boundaries of the territory over which the local agency exercises jurisdiction provided that the topic of the meeting is limited to items directly related to the real or personal property. Participate in meetings or discussions of multiagency significance that are outside the boundaries of a local agency's jurisdiction. However, any meeting or discussion held pursuant to this subdivision shall take place within the jurisdiction of one of the participating local agencies and be noticed by all participating agencies as provided for in this chapter. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-9 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- ( 4) Meet in the closest meeting facility if the local agency has no meeting facility within the boundaries of the territory over which the local agency exercises jurisdiction, or at the principal office of the local agency if that office is located outside the territory over which the agency exercises jurisdiction. Meet outside their immediate jurisdiction with elected or appointed officials of the United States or the State of California when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local· agency and over which the federal or state officials have jurisdiction. Meet outside their immediate jurisdiction if the meeting takes place in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility. Visit the office of the local agency's legal counsel for a closed session on pending litigation held pursuant to Section 54956.9, when to do so would reduce legal fees or costs. ( c) Meetings of the governing board of a school district shall be held within the district except under the circumstances enumerated in subdivision or to do any of the following: - Attend a conference on nonadversarial collective bargaining techniques. Interview members of the public residing in another district with reference to the trustees' potential employment of the superintendent of that district. Interview a potential employee from another district. Meetings of a joint powers authority shall occur within the territory of at least one of its member agencies, or as provided in subdivision However, a joint powers authority which has members throughout the state may meet at any facility in the state which complies with the requirements of Section 54961. ( e) If, by reason of fire, flood, earthquake, or other emergency, it shall be unsafe to meet in the place designated, the meetings shall be held for the duration of the emergency at the place designated by the presiding officer of the legislative body or his or her designee in a notice to the local media that have requested notice_ pursuant to Section 54956, by the most rapid means of communication available at the time. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-10 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54954.1. Mailed notice to persons who filed written request; time; duration and renewal of requests; fee. Any person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet, of any meeting of a legislative body be mailed to that person. If requested, the agenda and documents in the agenda packet shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of · 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. Upon receipt of the written request, the legislative body or its designee shall cause the requested materials to be mailed at the time the agenda is posted pursuant to Section 54954.2 and 54956 or upon distribution to all, or a majority of all, of the members of a legislative body, whichever occurs first. Any request for mailed copies of agendas or agenda packets shall be valid for the calendar year in which it is filed, and must be renewed following January 1 of each year. The legislative body may establish a fee for mailing the agenda or agenda packet, which fee shall not exceed the cost of providing the service. Failure of the requesting person to receive the agenda or agenda packet pursuant to this section shall not constitute grounds for invalidation of the actions of the legislative body taken at the meeting for which the agenda or agenda packet was not received. 54954.2. Agenda; posting; action on other matters. At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words. The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public. If requested, the agenda shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. The agenda shall include information regarding how, to whom, and. when a request for disability-related modification or accommodation, including auxiliary aids or services made be made by a person with a disability who requires a modification or accommodation in order to participate in the public meeting. No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to El Cerrito Handbook for Appointed Boards, Commissions and Committees . Page A-11 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- statements made or questions posed by persons exercising th!=ir public testimony rights under Section 54954.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda. Notwithstanding subdivision the legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below. Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item. Upon a determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5. Upon a determination by a two-thirds vote of the members df the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision The item was posted pursuant to subdivision for a prior meeting of the legislative body occurring not more than five calendar days prior to the date action is taken on the item, and at the prior meeting the item was continued to the meeting at which action is being taken. 54954.3. Opportunity for public to address legislative body; adoption of regulations; public criticism of policies. Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision of Section 54954.2. However, the agenda need not provide an opportunity for members of the public to El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-12 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee's consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body. Every notice for a special meeting shall provide an opportunity for members of the .Public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that .item. The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker. ( c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law. 54954.4. Reimbursements to local agencies and school districts for costs. The Legislature hereby finds and declares that Section 12 of Chapter 641 of the Statutes of 1986, authorizing reimbursement to local agencies and sc;:hool districts for costs mandated by the state pursuant to that act, shall be interpreted strictly. The intent of the Legislature is to provide reimbursement for only those costs which are clearly and unequivocally incurred as the direct and necessary result of compliance with Chapter 641 of the Statutes of 1986. In this regard, the Legislature directs all state employees and officials involved in reviewing or authorizing claims for reimbursement, or otherwise participating in the reimbursement process, to rigorously review each claim and authorize only those claims, or parts thereof, which represent costs which are clearly and unequivocally. incurred as the direct and necessary result of compliance with Chapter 641 of the Statutes of 1986 and for which complete documentation exists. For purposes of Section 54954.2, costs eligible for reimbursement shall only include the actual cost to post a single agenda for any one meeting. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-13 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- ( c) The Legislature hereby finds and declares that complete,. ~aithful, and uninterrupted compliance with the Ralph M. Brown Act (Chapter 9 ( commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code) is a matter of overriding public importance. Unless specifically stated, no future Budget Act, or related budget enactments, shall, in any manner, be interpreted to suspend, eliminate, or otherwise modify the legal obligation and duty of local agencies to fully comply with Chapter 641 of the Statutes of 1986 in a complete, faithful, and uninterrupted manner. 54954.5. Closed session item descriptions. For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format. With respect to a closed session held _pursuant to Section 54956.7: LICENSE/PERMIT DETERMINATION Applicant(s): (Specify number of applicants) With respect to every item of business to be discussed in closed session pursuant to Section 54956.8: CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: (Specify street address, or if no street address, the parcel number or other unique reference, of the real property under negotiation) Agency negotiator: . (Specify names of negotiators attending the closed session) (If circumstances necessitate the absence of a specified negotiator, an agent or designee may participate in place of the absent negotiator so long as the name of the agent or designee is announced at an open session held prior to the closed session.) Negotiating parties: (Specify name of party (not agent)) Under negotiation: (Specify whether instruction to negotiator.will concern price, terms of payment, or both) · ( c) With respect to every item of business to be discussed in closed session pursuant to Section 54956.9: El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-14 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION (Subdivision of Section 54956.9) Name of case: (Specify by reference to claimant's name, names of parties, case or claim numbers) or Case name unspecified: (Specify whether disclosure would jeopardize service of process or existing settlement negotiations) CONFERENCE WITH LEGAL COUNSEL--ANTICIPATED LITIGATION Significant exposure to litigation pursuant to subdivision of Section 54956.9: (Specify number of potential cases) (In addition to the information noticed above, the agency may be required to provide . additional information on the agenda or in an oral statement prior to the closed session pursuant to subparagraphs to inclusive, of paragraph of subdivision of Section 54956.9.) Initiation of litigation pursuant to subdivision of Section 54956.9: (Specify number of potential cases) With respect to every item of business to be discussed in closed session pursuant to Section 54956~95: LIABILI1Y CLAIMS Claimant: (Specify name unless unspecified pursuant to Section 54961) Agency claimed against: (Specify name) With respect to every item of business to be discussed in closed session pursuant to Section 54957: THREAT TO PUBLIC SERVICES OR FACILITIES Consultation with: (Specify name of law enforcement agency and title of officer, or name of applicable agency representative and title) PUBLIC EMPLOYEE APPOINTMENT Title: (Specify description of position to be filled) El Cerrito Handbook for Appointed Boards, Commissions and Committees . . Page A-15 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- PUBLIC EMPLOYMENT Title: (Specify description of position to be filled) PUBLIC EMPLOYEE PERFORMANCE EVALUATION Title: (Specify position title of employee being reviewed) PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE (No additional information is required in connection with a closed session to consider discipline, dismissal, or release of a public employee. Discipline includes potential reduction of compensation.) With respect to every item of business to be discussed in closed session pursuant to Section 54957.6: CONFERENCE WITH LABOR NEGOTIATORS Agency designated representatives: (Specify names of designated representatives attending the closed session) (If circumstances necessitate the absence of a specified designated representative, an agent or designee may participate in place of the absent representative so long as the name of the agent or designee is announced at an open session held prior to the closed session.) Employee organization: (Specify name of organization representing employee or employees in question) or Unrepresented employee: (Specify position title of unrepresented employee who is the subject of the negotiations) With respect to closed sessions called pursuant to Section 54957.8: CASE REVIEW/PLANNING· (No additional information is required in connection with a closed session to consider case review or planning.) With respect to every item of business to be discussed in closed session pursuant to Sections 1461, 32106, and 32155 of.the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code: El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-16 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- REPORT INVOLVING TRADE SECRET Discussion will concern: · (Specify whether discussion will concern proposed new service, program, or facility) Estimated date of public disclosure: (Specify month and year) HEARINGS Subject matter: (Specify whether testimony/deliberation will concern staff privileges, report of medical audit committee, or report of quality assurance committee) With respect to every item of business to be discussed in closed session pursuant to Section 54956.86: CHARGE OR COMPLAINT INVOLVING INFORMATION PROTECTED BY FEDERAL LAW (No additional. information is required in connection with a closed session to discuss a charge or complaint pursuant to Section 54956.86.) 54954.6. New or increased taxes and or assessments; public meetings and public hearings; joint notice requirements. Before adopting any new or increased general tax or any new or increased assessment, the legislative body of a local agency shall conduct at least one public meeting at which local officials shall allow public testimony regarding the proposed new or increased general . tax or new or increased assessment in addition to the noticed public hearing at which the legislative body proposes to enact or increase the general tax or assessment. · For purposes of this section, the term "new or increased assessment" does not include any of the following: A fee that does not exceed the reasonable cost of providing the services, facilities, or regulatory activity for which the fee is charged. A service charge, rate, or charge, unless a special district's principal act requires the service charge, rate, or charge to conform to the requirements of this section. An ongoing annual assessment if it is imposed at the same or lower amount as any · previous year. An assessment that does not exceed an assessment formula or range of assessments previously specified in the notice given to the public pursuant to El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-17 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- subparagraph of paragraph of subdivision and th~t was previously adopted by the agency or approved by the voters in the area where the assessment is imposed. Standby or immediate availability charges. The legislative body shall provide at least 45 days' public notice of the public hearing at which the legislative body proposes to enact or increase the general tax or assessment. The legislative body shall provide notice for the public meeting at the same time and in the same document as the notice for the public hearing, but the meeting shall occur prior to the hearing. The joint notice of both the public meeting and the public hearing required by subdivision with respect to a proposal for a new or increased general tax shall be accomplished by placing a display advertisement of at least one-eighth page in a newspaper of general circulation for three weeks pursuant to Section 6063 and by a first-class mailing to those interested parties who have filed a written request with the local agency for mailed notice of· public meetings or hearings on new or increased general taxes. The public meeting pursuant to subdivision shall take place no earlier than 10 days after the first publication of ~he joint notice pursuant to this subdivision. The public hearing shall take place no earlier than seven days after the public meeting pursuant to this subdivision. Notwithstanding paragraph of subdivision the joint notice need not include notice of the public meeting after the meeting has taken place. The public hearing pursuant to su9division shall take place no earlier than 45 days after the first publication of the joint notice pursuant to this subdivision. Any written request for mailed notices shall be effective for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for mailed notices shall be filed on or before April 1 of each year. The legislative body may establish a reasonable annual charge for sending notices based on the estimated cost of providing the service. The notice required by paragraph of this subdivision shall include, but not be limited to, the following: The amount or rate of the tax. If the tax is proposed to be increased from any previous year, the joint notice shall separately state both the existing tax rate and the proposed tax rate increase. The activity to be taxed. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-18 ©2007 Ri·chards, Watson & Gershon ---PAGE BREAK--- The estimated amount of revenue to be raised by the tax annually. t The method and frequency for collecting the tax. The dates, times, and locations of the public meeting and hearing described in subdivision The phone number and address of an individual, office, or organization that interested persons may contact to receive additional information about the tax. The joint notice of both the public meeting· and the public hearing required by subdivision with respect to a proposal for a new or increased assessment on real property shall be accomplished through a mailing, postage prepaid, in the United States mail and shall be deemed given when so deposited. The public meeting pursuant to subdivision shall take place no earlier than 10 days after the joint mailing pursuant to this subdivision. The public hearing shall take place no earlier than seven days after the public meeting pursuant to this subdivision. The envelope or the cover of the mailing shall include the name of the local agency and the return address of the sender. This mailed notice shall be in at least 10-point type and shall be given to all property owners proposed to be subject to the new or increased assessment by a mailing by name to those persons whose names and addresses appear on the last equalized county assessment roll or the State Board of Equalization assessment roll, as the case may be. The joint notice required by paragraph of this subdivision shall include, but not be limited to, the following: The estimated amount of the assessment per parcel. If the assessment is proposed to be increased from any previous year, the joint notice shall separately state both the amount of the existing assessment and the proposed assessment increase. A general description of the purpose or improvements that the assessment will fund. The address to which property owners may mail a protest against the assessment.. The phone number and address of an individual, office, or organization that interested persons may contact to receive additional information about the assessment. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-19 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- A statement that a maj9rity protest will cause the asse~~ment to be abandoned if the assessment act used to levy the assessment so provides. Notice shall also state the percentage of protests required to trigger an election, if applicable. The dates, times,. and locations of the public meeting and hearing described in subdivision A proposed assessment formula or range as described in subparagraph of paragraph of subdivision ·if applicable and that is noticed pursuant to this · section. Notwithstanding paragraph in the case of an assessment that is proposed exclusively for operation and maintenance expenses imposed throughout the entire local agency, or exclusively for operation and maintenance assessments proposed to be levied on 50,000 parcels or more, notice may be provided pursuant to this subdivision or pursuant to paragraph of subdivision and shall include the estimated amount of the assessment of various types, amounts,. or uses of property and the information required by subparagraphs to inclusive, of paragraph of subdivision ( Notwithstanding paragraph in the case of an assessment proposed to be levied pursuant to Part 2 ( commencing with Section 22500) of Division 2 of the Streets and Highways Code by a regional park district, regional park and open-space district, or regional open-space district formed pursuant to Article 3 ( commencing with Section . 5500) of Chapter 3 of Division 5 of, or pursuant to Division 26 ( commencing with Section 35100) of, the Public Resources Code, notice may be provided pursuant to · paragraph of subdivision . . The notice requirements imposed by this section shall be construed as additional to, and not to supersede, existing provisions of law, and shall be applied concurrently with the existing provisions so as to not delay or prolong the governmental decision making process. This section shall not apply to any new or increased general tax or any new or increased assessment that requires an election of either of the following: The property owners subject to the assessment. The voters within the local agency imposing the tax or assessment. El Cerrito Handbook for Appointed Boards, Commissions and Committees · Page A-20 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Nothing in this section shall prohibit a local agency frql)l holding a consolidated meeting or hearing at which the legislative body discusses multiple tax or assessment proposals. ~ The local agency may recover the reasonable costs of public meetings, public hearings, and notice required by this section from the proceeds of the tax or assessment. The costs recovered for these purposes, whether recovered pursuant to this subdivision or any other provision of law, shall not exceed the reasonable costs of the public meetings, public hearings, and notice. Any new or increased assessment that is subject to the notice and hearing provisions of Article XIIIC or XIIID of the California Constitution is not subject to the notice and hearing requirements of this section. 54955. Adjournment; adjourned meetings. The legislative body of a local agency may adjourn any regular, adjourned regular, special or adjourned special meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time. If all members are absent from any regular or adjourned regular meeting the clerk or secretary of the legislative body may declare the meeting adjourned to a stated time and place and he shall cause a written notice of th~ · adjournment to be given in the same manner as provided in Section 54956 for special meetings, unless such notice is waived as provided for special meetings. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular, adjourned regular, special or adjourned special meeting was held within 24 hours after the time of the adjournment. When a regular· or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular me~ting is a regular meeting for all purposes. When an order of adjournment of any meeting fails to state the hour at which the adjourned meeting is to be held, it shall be held at the hour specified for regular meetings by ordinance, resolution, bylaw, or other rule. 54955.1. Continuance. Any hearing being held, or noticed or ordered to be held, by a legislative body of a local agency at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting of the legislative body in the same manner and to the same extent set forth in Section 54955 for the adjournment of meetings; provided, that if the hearing is continued to a time less than 24 hours after the time specified in the order or notice of hearing, a copy of the order El Cerrito Handbook for Appointed Boards, Commissions and Committees . . Page A-21 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- or notice of continuance of hearing shall be posted immediately following the meeting at which the order or declaration of continuance was adopted or made. 54956. Special meetings; call; notice. A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing. The notice shall be delivered· personally or by any other means and shall be received at least 24 hours before the time of the meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted or discussed. No other business shall be considered at these meetings by the legislative body. The written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the legislative body a written waiver of notice. The waiver may be given by telegram. The written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. The call. and notice shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of the public. 54956.5. · Emergency meetings in emergency situations. For purposes of this section, "emergency situation" means any of the following: An emergency, which shall be defined as a work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body. A dire emergency, which shall be defined as a crippling disaster, mass destruction, terrorist · act, or · threatened· terrorist activity that poses peril so immediate and . significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting under this section may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body. Subject to paragraph in the case of an emergency situation involving matters upon which prompt action is necessary due to the disruption or threatened disruption of public facilities, a legislative body may hold an emergency meeting without El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-22 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- complying with either the 24-hour notice requirement .1 pr the 24-hour posting requirement of Section 54956 or both of the notice and posting requirements. Each local newspaper of general circulation and radio or television station that has requested notice of special meetings pursuant to Section 54956 shall be notified by the presiding officer of the legislative body, or designee thereof, one hour prior to the emergency meeting, or, in the case of a dire emergency, at or near the time that the presiding officer or designee notifies the members of the legislative body of the emergency meeting. This notice shall be given by telephone and all telephone numbers provided in the most recent request of a newspaper or station for notification of special meetings shall be exhausted. In the event that telephone services are not functioning, the notice requirements of this section shall be deemed waived, and the legislative body, or designee of the legislative body, shall ·notify those newspapers, radio stations, or television stations of the fact of the holding of the emergency meeting, the purpose of the meeting, and any action taken at the meeting as soon after the meeting as possible. ( c) During a meeting held pursuant to this section, the legislative body may meet in closed session pursuant to Section 54957 if agreed to by a two-thirds vote of the members of the legislative body present, or, if less than two-thirds of the members are present, by a unanimous vote of the members present. All special meeting requirements, as prescribed in Section 54956 shall be applicable to a meeting called pursuant to this section, with the exception of the 24-hour notice requirement. The minutes of a meeting called pursuant to this section, a list of persons who the presiding officer of the legislative body, or designee of the legislative body, notified or attempted to notify, a copy of the rollcall vote, and any actions taken at the meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible;· 54956.6. Fees. No fees may be charged by the legislative body of a local agency for carrying out any provision of this chapter, except as specifically authorized by this chapter. 54956.7. Closed sessions; license applications; rehabilitated criminals. Whenever a legislative body of a local agency determines that it is necessary to discuss El Cerrito Handbook for Appointed Boards, Commissions and Committees . . Page A-23 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- and determine whether an applicant for a license or license renewal, who has a criminal record, is sufficiently rehabilitated to obtain the license, the legislative body may hold a closed session with the applicant and the applicant's attorney, if any, for the purpose of holding the discussion and making the determination. If the legislative body determines, as a result of the closed session, that the issuance or renewal of the license should be denied, the applicant shall be offered the opportunity to withdraw the application. If the applicant withdraws the application, no record shall be kept of the discussions or decisions made at the closed session and all matters relating to the closed session shall be confidential. If the applicant does not withdraw the application, the legislative body shall take action at the public meeting during which the closed session is held or at its next public meeting denying the application for the license but all matters relating to the closed session · are confidential and shall not be disclosed without the consent of the applicant, except in an action by an applicant who has been denied a license challenging the denial of the license. 54956.8. Real property transactions; closed session meeting with negotiator. Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate. For purposes of this section, negotiators may be members of the legislative body of the local agency. For purposes of this section, "lease" includes renewal or renegotiation of a lease. Nothing in this section shall preclude a local agency from holding a closed session for discussions regarding eminent domain proceedings pursuant to Section 54956.9. 54956.86. Charges or complaints from members of local agency health plans; closed hearings; members' rights. Notwithstanding any other provision of this chapter, a legislative body of a local agency which provides services pursuant to El Cerrito Handbook for Appointed Boards, Commissions and Committees P.age A-24 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Section 14087.3 of the Welfare and Institutions Code may ho,ld a closed session to hear a charge or complaint from a member enrolled in its health plan if the member does not wish to have his or her name, medical status, or other information that is protected by . federal law publicly disclosed. Prior to holding a closed session pursuant to this section, the legislative body shall inform the member, in writing, of his or her right to have the charge or complaint heard in an open session rather than a closed session. 54956.87. Records of certain health plans; meetings on health plan trade secrets. Notwithstanding any other provision of this chapter, the records of a health plan that is licensed pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2:2 (commencing with Section 1340) of Division 2 of the Health and Safety Code) and that is governed by a county board of supervisors, whether paper records, records maintained in the management information system, or records in any other form, that relate to provider rate or payment determinations, allocation or distribution methodologies for provider payments,. formulae or calculations for these payments, and contract negotiations with providers of health care for alternative rates are exempt from disclosure for a period of three years after the contract is fully executed. The transmission of the records, or the information contained therein in an alternative form, to the board of supervisors shall not constitute a waiver of exemption from disclosure, and the records and information once transmitted to the board of supervisors shall be subject to this same exemption. Notwithstanding any other provision of law, the governing board of a health plan . that is licensed pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code and that is governed by a county board of supervisors may order that a meeting held solely for the purpose of discussion or taking action on health plan trade secrets, as defined in subdivision ( c) of Section 32106 of the Health and Safety Code, shall be · held in closed session. The requirements of making a public report of action taken in closed session, and the vote or abstention of every member present, may be limited to a brief general description without the information constituting the trade secret. ( c) The governing board may delete the portion or portions containing trade secrets from any documents that were finally approved in the closed session held pursuant to subdivision that are provided to persons who have made the timely or standing request. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-25 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Nothing in this section shall be construed as preventing the governing board from meeting in closed session as otherwise provided by law. The provisions of this section shall not prevent access to any records by the Joint Legislati"'.e Audit Committee in the exercise of its powers pursuant to Article 1 ( commencing with Section 10500) of Chapter 4 of Part 2 of Division 2 of Title 2. The provisions of this section also shall not prevent access to any records by the Department of Corporations in the exercise of its powers pursuant to Article 1 (commencing with Section 1340) of Chapter 2.2 of Division 2 of the Health and Safety Code. 54956.9. Pending litigation; closed session; lawyer-client privilege; notice; memorandum. Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation. For purposes of this chapter, all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated. This section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to this chapter. For purposes of this section, "litigation" includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator. For purposes of this section, litigation. shall be considered pending when any of the following circumstances exist: Litigation, to which the local agency is a party, has been initiated formally. A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-26 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Based on existing facts and circumstances, the legislative ,body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph of this subdivision. For purposes of paragraphs and "existing facts and circumstances" shall consist only of one of the following: Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed. Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced. The receipt of a claim pursuant to the Tort Claims Act or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5. A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body. A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection pursuant to Section 54957.5. The records so created need not identify the alleged victim of unlawful or tortious sexual conduct or anyone making the threat on their behalf, or identify ·a public employee who is the alleged perpetrator of any unlawful or tortious conduct upon which a threat of litigation is based, unless the identity· of the person has been publicly disclosed. , Nothing in this section shall require disclosure of written communications that are privileged and not subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-27 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- ( c) Based on existing facts and circumstances, the legislative. body of the local agency has decided to initiate or is deciding whether to initiate litigation. Prior to holding a closed session pursuant to this .section, the legislative body of the local agency shall state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. If the session is closed pursuant to subdivision the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency's ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. A local agency shall be considered to be a "party" or to have a "significant expOsure to litigation" if an officer or employee of the local agency is a party or has significant exposure to litigation concerning prior or prospective activities or alleged activities during the course and scope of that'office or employment, including litigation in which it is an issue whether an activity is outside the course and scope of the office or employment. 54956.95. Closed sessions; insurance pooling; tort liabl1ity losses; public liability losses; workers' compensation liability. Nothing in this chapter shall be construed to prevent a joint powers agency formed pursuant to Article 1 ( commencing with Section 6500) of Chapter 5 of Division 7 of Title 1, for purposes of insurance pooling, or a local agency member of the joint powers agency, from holding a • closed session to discuss a claim fOr the payment of tort liability losses, public liability losses, or workers' compensation liability incurred by the joint powers agency or a local agency member of the joint powers agency. Nothing in this chapter shall be construed to prevent the Local Agency Self- Insurance Authority formed pursuant to Chapter 5.5 (commencing with Section 6599.01) of Division 7 6f Title 1, or a local agency member of the authority, from holding a closed session to discuss a claim for the payment of tort liability losses, public liability losses, or workers' compensation liability incurred by the authority or a local agency member of the authority. Nothing in this section shall be construed to affect Section 54956.9 with respect to any other local agency. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-28 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54957. Closed sessions; personnel matters; exclq~Jon of witnesses. Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions with the Attorney General, district attorney, agency counsel, sheriff, or chief of police, or their respective deputies, or a security consultant or a security operations manager, on matters posing a threat to the security of public buildings, a threat to the security of essential public services, including water, drinking water, wastewater treatment, natural gas service, and electric service, or a threat to the public's right of access to public services or public facilities. Subject to paragraph nothing contained in this chapter shail be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a· public session. As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void. The legislative body also may exclude from the public or closed meeting, during the examination of a witness, any or all other witnesses in the matter being investigated by the legislative body. ( 4) For the purposes of. this subdivision, the term "employee" shall include an officer or an independent contractor. who functions as an officer or an employee but shall not include any elected official, member of a legislative body or other independent contractors. Nothing in this subdivision shall limit local officials' ability to hold closed session meetings pursuant to Sections 1461, 32106, and 32155 of the Health and Safety Code or Sections 37606 and· 37624.3 of the Government Code. Closed sessions held pursuant to this subdivision shall not include discussion or action on proposed El Cerrito Handbook for Appointed Boards, Commissions and Committees . . Page A-29 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- compensation except for a reduction of compensation that results from the imposition of discipline. 54957.1. Closed sessions; public report of action taken. The legislative body of any local agency shall publicly report any action taken in closed session and the vote or abstention of every member present thereon, as follows: Approval of an agreement concluding real estate negotiations pursuant to Section 54956.8 shall be reported after the agreement is final, as specified below. If its own approval renders the agreement final, the body shall report that approval and the substance of the agreement in open session at the public meeting during which the closed session is held. If final approval rests with the other party to the negotiations, the local agency shall disclose the fact of that approval and the substance of the agreement upon inquiry by any person, as soon as the other party or its agent has informed the local agency of its approval. Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The· report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency's ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage. Approval given· to its legal counsel of a settlement of pending litigation, as defined in Section .54956;9, at any stage prior to or during a judicial or quasi-judicial proceeding shall be reported after the settlement is final, as specified below:· El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-30 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- If the legislative body accepts a settlement offer signed qy the opposing party, the body shall report its acceptance and identify the substance of the agreement in open session at the public meeting during which the closed session is held. If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and identify the substance of the agreement. ( 4) Disposition reached as to claims discussed in closed session pursuant to Section 54956.95 shall be reported as soon as reached in a manner that identifies the name of the claimant, the name of the local agency claimed against, the substance of the claim, and any monetary amount approved for payment and agreed upon by the claimant. Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise · affect the employment status of a public employee in closed session pursuant to Section 54957 shall be reported at the public meeting during which the closed session is held. Any report required by this paragraph shall identify the title of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any. Approval of an agreement concluding labor negotiations with represented employees pursuant to Section 54957.6 shall be reported after the agreement is final and has been accepted or ratified by the other party. The report shall identify .the item approved and the other party or parties to the negotiation. Reports that are required to be made pursuant to this section may be made orally or in writing. The legislative body shall provide to any person who has submitted· a written request to the legislative body within 24 hours of the posting of the agenda, or to any person who has made a standing request for all documentation as part of a request for notice of meetings pursuant to Section 54954.1 or 54956, if the requester is present at the time the closed session ends, copies of any contracts, settlement agreements, or other documents that were finally approved or adopted in the closed session. If the action taken results in one or more substantive amendments to the related documents requiring retyping, the documents need not be released until the retyping is completed during normal business hours, provided that the presiding officer El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-31 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- of the legislative body or his or her designee orally summarizes the substance of the amendments for the benefit of the document requester or any other person present and requesting the information. The documentation referred to in paragraph shall be available to any person on the next business day following the meeting in which the action referred to is taken or, in the case of substantial amendments, when ariy necessary retyping is complete. Nothing in this section shall be construed to require that the legislative body approve actions not otherwise subject to legislative body approval. No action for injury to a reputational, liberty, or other personal interest may be commenced by or on behalf of any employee or former employee with respect to whom a disclosure is made by a legislative body in an effort to comply with this section. 54957.2. Minute book record of closed sessions; inspection. The legislative body of a local agency may, by ordinance or resolution, designate a clerk or other officer or employee of the local agency who shall then attend each closed session of the legislative body and keep and enter in a minute book a record of topics discussed and decisions made at the meeting. The minute book made pursuant to this section is not a public record subject to inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title and shall be kept confidential. The minute book shall be available only to members of the legislative body or, if a violation of this chapter is alleged to have occurred at a closed session, to a court of general jurisdiction wherein the local agency lies. Such minute book may, but need not, consist of a recording of the closed session. · · An elected legislative body of a local agency may require that each legislative body all or a majority of whose members are appointed by or under the authority of the elected legislative body keep a minute book as prescribed under subdivision 54957.5. Agendas and other writings distributed for discussion or consideration at public meetings; public records; inspection. Notwithstanding Section 6255 or any other provisions of law, agendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at a public meeting of the body, are disclosable public records under the California Public Records Act (Chapter 3.5 El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-32 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- (commencing with Section 6250) of Division 7 of Title and shall be made available upon request without delay. However, this section shall not include any writing exempt from public disclosure under Section 6253.5, 6254, 6254.7, or 6254.22. Writings that are public records under subdivision and that are distributed during a public meeting shall be made available for public inspection at the meeting if prepared by the local agency or a member of its legislative body, or after the meeting if prepared by some other person. These writings shall be made available in appropriate alternative formats upon request by a person with a disability, ·as required by Section 202 of the Americans with Disabilities Act of 1990 ( 42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. ( c) Nothing in this chapter shall be construed to prevent the legislative body of a local agency from charging a fee or deposit for a copy of a public record pursuant to Section 6253, except that no surcharge shall be imposed on persons with disabilities in violation of Section 202 of the Americans with Disabilities Act of 1990 ( 42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof. ( d) This section shall not be construed to limit or delay the public's right to inspect or obtain a copy of any record required to be disclosed under the requirements of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title Nothing in this chapter shall be construed to require a legislative body of a local agency to place any paid advertisement or any other paid notice in any publication. 54957.6. Closed sessions; salaries, salary schedules or fringe benefits. Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency's designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation. However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its designated representatives. Closed sessions of a legislative body of a local agency, as permitted in this section, shall be for the purpose of reviewing its position and instructing the local agency's designated representatives. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-33 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- Closed sessions, as permitted in this section, may take pl.ace prior to and during consultations and discussions with representatives of employee organizations and unrepresented employees. Closed sessions with the local agency's designated representative regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits may include discussion of an agency's available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency's designated representative. Closed sessions. held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees. For the purposes enumerated in this section, a legislative body of a local agency may also meet with a state conciliator who has intervened in the proceedings. For the purposes of this section, the term "employee" shall include an officer or an independent contractor who functions as an officer or an employee, but shall not include any elected official, member of a legislative body, or other independent contractors. 54957.7. Disclosure of items to be discussed in closed sessions. Prior to holding any closed session, the legislative body of the local agency shall disclose, i.n an open meeting, the item or items to be discussed in the closed session. The disclosure may take the form of a reference to the item or items as they are listed by number or letter on the agenda. In the closed session, the legislative body may consider only those matters covered in its statement. Nothing in this section shall require or authorize a disclosure of information prohibited by state or federal law. A~er any closed session, the legislative body shall reconvene into open session prior to adjournme~t and shall make any disclosures required by Section 54957.1 of action taken in the closed session. ( c) The announcements required to be made in open session pursuant to this section may be made at the location announced in the agenda for the closed session, as long as the public is allowed to be present at that location' for the purpose of hearing the announcements. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-34 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54957.8. Closed sessions; legislative body of a multijurisdictional drug Jaw enforcement agency. Nothing contained in this chapter shall be construed to prevent the legislative body of a multijurisdictional drug law enforcement agency, or an advisory body of a multijurisdictional drug law enforcement agency, from holding closed sessions to discuss the case records of any ongoing criminal . investigation of the multijurisdictional drug law enforcement agency or of any party to the joint powers agreement, to hear testimony from persons involved in the investigation, and to discuss courses of action in particular cases. "Multijurisdictional drug law enforcement agency," for purposes of this section, means a joint powers entity formed pursuant to Article 1 ( commencing with Section 6500) of Chapter 5 of Division 7 of Title 1, which provides drug law enforcement services for the parties to the joint powers agreement. The Legislature finds and declares that this section is within the public interest, in that its provisions are necessary to prevent the impairment of ongoing law enforcement investigations, to protect witnesses and informants, and to permit the discussion of effective courses of action in particular cases. 54957.9. Disorderly conduct of general public during meeting; clearing of room. In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue iil session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting. 54957.10. Closed Sessions; local agency employee application for early withdrawal of funds in deferred compensation plan; financial hardship. Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions to discuss a local agency employee's application for early withdrawal of funds in a deferred compensation plan when the application is based on financial hardship arising from an unforeseeable emergency due to illness, accident, casualty, or other extraordinary event, as specified in the deferred compensation plan. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-35 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- 54958. Application of chapter. The provisions of this ~hapter shall apply to the legislative body of every local agency notwithstanding the conflicting provisions of any other state law. 54959. Penalty for unlawful meeting. Each member of a legislative body who attends a meeting of ~hat . legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor. 54960. Actions to stop or prevent violations of meeting provisions; applicability of meeting provisions; validity of rules or actions on recording ' closed sessions. The district attorney or any interested person may commence an · action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislati.ve body of a local agency or to determine the applicability of this chapter to actions or threatened future action of the legislative body, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to tape record its closed sessions as hereinafter provided. The court in its discretion may, upon a judgment of a violation of Section 54956.7, 54956.8, 54956.9, 54956.95, 54957, or 54957.6, order the legislative body to tape record its closed sessions .and preserve the tape recordings for the period and under the · terms of security and confidentiality the court deems appropriate. Each recording so kept shall be immediately labeled with the date of the closed session recorded and the title of the clerk or other officer who shall be custodian of the recording. The tapes shall be subject to the following discovery procedures: In any case in which discovery or disclosure of the tape is sought by either the district attorney or the plaintiff in a civil action pursuant to Section 54959, 54960, or 54960.1 alleging that a violation of this chapter has occurred in a closed session which has been recorded pursuant to this section, the party seeking discovery or disclosure shall file a written notice of motion with the appropriate court with notice to the El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-36 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- governmental agency which has custody and control of the tape recording. The notice shall be given pursuant to subdivision of Section 1005 of the Code of Civil Procedure. The notice shall include, in addition to the items required by Section 1010 of the Code of Civil Procedure, all of the following: Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the date and time of the meeting recorded, and the governmental agency which has custody and control of the recording. (ii) An · affidavit which contains specific facts indicating that a violation of the act occurred in the closed session. If the court, following a review of the motion, finds that there is good cause to believe that a violation has occurred, the court may review, in camera, the recording of that portion of the closed session alleged to have violated the act. . ( 4) If, following the in camera review, the court concludes that disclosure of a portion of the recording would be likely to materially assist in the resolution of the litigation alleging violation of this chapter, the court shall, in its discretion, make a certified transcript of the portion of the recording a public exhibit in the proceeding. Nothing in this section shall permit discovery of communications which are protected by the attorney-client privilege. 54960.1. Unlawful action by legislative body; action for mandamus or injunction; prerequisites. The district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obtaining a judicial · determination that an action taken by a legislative body of a local agency in violation of Section· 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void under this section. Nothing in this chapter shall be construed to prevent a legislative body from curing or correcting an action challenged pursuant to this section Prior to any action being commenced pursuant to subdivision the district attorney or interested person shall make a demand of the legislative body to cure or correct the action alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5. The demand shall be in writing and clearly El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-37 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- describe the challenged action of the legislative· body and nature of the alleged violation. The written demand shall be made within 90 days from the date the action was taken unless the action was taken in an open session but in violation of Section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken. Within 30 days of receipt of the demand, the legislative body shall cure or correct the challenged action and inform the demanding party in writing of its actions to cure or correct or inform the demanding party in writing of its decision not to cure or correct the challenged action. If the legislative body takes no action within the 30-day period, the inaction shall be deemed a decision not to cure or correct the challenged action, and the 15-day period to commence the action described in subdivision shall commence to run the day after the 30-day period to cure or correct expires. ( 4) Within 15 days of receipt of the written notice of the legislative body's decision to cure or correct, or not to cure or correct, or within 15 days of the expiration of the 30- day period to cure or correct, whichever is earlier, the demanding party shall be required to commence the action pursuant to subdivision or thereafter be barred from commencing the action. An action taken that is alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 shall not be determined to be null and void if any of the following conditions exist: The action taken was in substantial compliance with Sections 54953, 54954.2, 54954.5, 54954.6, 54956, and 54956.5. The action taken was in connection with the sale or issuance of notes, bonds, or other evidences of indebtedness or any contract, instrument, or agreement thereto. The action taken gave rise to a contractual obligation, including a contract let by competitive bid other than compensation for services in· the form of salary or fees for professional services, upon which a party has, in good faith and without notice of a challenge to the validity of the action, detrimentally relied. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-38 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- ( 4) The action taken was in connection with the collection of any tax. Any person, city, city and county, county, district, or any agency or subdivision of the state alleging noncompliance with subdivision of Sectiori 54954.2, Section 54956, or Section 54956.5, because of any defect, error, irregularity, or omission in the notice given pursuant to those provisions, had actual notice of the item of business at least 72 hours prior to the meeting at which the action was taken, if the meeting was noticed pursuant to Section 54954.2, or 24 hours prior to the meeting at which the action was taken if the meeting was noticed pursuant to Section 54956, or prior to the meeting at which the action was taken if the meeting is held pursuant to Section 54956.5. During any action seeking a judicial determination pursuant to subdivision if.the court determines, pursuant to a showing by the legislative body that an action alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 has been cured or corrected by a subsequent action of the legislative body, the action filed pursuant to subdivision shall be dismissed with prejudice. The fact that a legislative body takes a subsequent action to cure or correct an action taken pursuant to this section shall not be construed or admissible as evidence of a violation of this chapter. 54960.5. Costs and attorney fees. A court may award court costs and reasonable attorney fees to the plaintiff in an action brought pursuant to Section 54960 or 54960.1 where it is found that a legislative body of the local agency has violated this chapter. The costs and fees shall be paid by the local agency and shall not become a personal liability of any public officer or employee of the local agency. A court may award court costs and reasonable attorney fees to a defendant in any action brought pursuant to Section 54960 or 54960.1 where the defendant has prevailed in a final determination of such action and the court finds that the action was clearly frivolous and totally lacking in merit. 54961. Meetings prohibited in facilities; grounds; identity of victims of tortious sexual conduct or child abuse. No legislative body of a local agency shall conduct any meeting in any facility that prohibits the admittance of any person, or persons, on the basis of race, religious creed, color, national origin, ancestry, or sex, or which is inaccessible to disabled persons, or where members of the public may not be El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-39 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- present without making a payment or purchase. This section, shall apply to every local . agency as defined in Section 54951. No notice, agenda, announcement, or report required under this chapter need identify any victim or alleged victim of tortious sexual conduct or child abuse unless the identity of the person has been publicly disclosed. 54962. Closed session by legislative body prohibited. Except as expressly authorized by this chapter, or by Sections 1461, 1462, 32106, and 32155 of the Health and Safety Code or Sections 37606 and 37624.3 of the Government Code as they apply to hospitals, or by any provision of the Education Code pertaining to school districts and community college districts, no closed session may be held by any legislative body of any local agency. 54963. Confidential information acquired during an authorized closed legislative session; authorization by legislative body; remedies for violation; exceptions. A person may not disclose confidential information that has been acquired by being present in a closed session authorized by Section 54956.7, 54956.8, 54956.86, 54956.87, 54956.9, 54957, 54957.6, 54957.8, or 54957.10 to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information. For· purposes of this section, "confidential information" means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter. ( c) Violation of this section may be addressed by the use of such remedies as are currently available by law, including, but not limited to: Injunctive relief to prevent the disclosure of confidential information prohibited by this section. Disciplinary action against an employee who has willfully disclosed confidential information in violation of this section. Referral of a member of a legislative body who has willfully disclosed confidential . information in violation of this section to the grand jury. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-40 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- ( d) Disciplinary action pursuant to paragraph of subdivision ( c) shall require that the employee in question has either received training as to the requirements of this section or otherwise has·been given notice of the requirements of this section. A local agency may not take any action authorized by subdivision against a person, nor shall it be deemed a violation of this section, for doing any of the following: Making a confidential inquiry or complaint to a district attorney or grand jury concerning a perceived violation of law, including disclosing facts to a district attorney or grand jury that are necessary to establish the illegality of an action taken by a legislative body of a local agency or the potential illegality of an action that has been the subject of deliberation at a closed session if that action were to be taken by a legislative body of a local agency. Expressing an opinion concerning the propriety or legality of actions taken by a . legislative body of a local agency in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action. Disclosing information acquired by being present in a closed session under this chapter that is not confidential information. Nothing in this section shall be construed to prohibit disclosures under the whistle blower statutes contained in Section 1102.5 of the Labor Code or Article 4.5 ( commencing with Section 53296) of Chapter 2 of this code. El Cerrito Handbook for Appointed Boards, Commissions and Committees Page A-41 ©2007 Richards, Watson & Gershon ---PAGE BREAK--- It~~~ RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW-A PROFESSIONAL CORPORATION LOS ANGELES OFFICE 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 Telephone: [PHONE REDACTED] Facsimile: [PHONE REDACTED] e-mail: [EMAIL REDACTED] ORANGE COUNTY OFFICE 1 Civic Center Circle, PO Box 1059 Brea, California 92822-1059 Telephone: [PHONE REDACTED] Facsimile: [PHONE REDACTED] e-mail: [EMAIL REDACTED] SAN FRANCISCO OFFICE 44 Montgomery Street, Suite 3800 San Francisco, California 94104-4811 Telephone: [PHONE REDACTED] Facsimile: [PHONE REDACTED] e-mail: [EMAIL REDACTED]