Presented by: Ruben Duran, General Counsel Maribel S. Medina, Deputy General Counsel

Presented by:Ruben Duran, General Counsel Maribel S. Medina, Deputy General Counsel

Fontana Unified School District Board WorkshopJanuary 30, 2012

GOVERNANCE ESSENTIALS

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A Policy of Open Government

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“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 their deliberations be conducted openly.” Government Code Section 54950



“Open and Public”“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.” Government Code Section 54953(a)

The Brown Act applies to “legislative bodies”

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What is a “legislative body?”• Governing body of the agency, i.e Board of Education• Subordinate boards and commissions created by formal action of

the governing body• Standing committees with a regular meeting schedule and

continuing subject matter jurisdiction

What is not a “legislative body?”• Advisory committees, composed solely of the members of the

legislative body that are less than a quorum of the legislative body

MeetingsElements:

• Congregation of a majority

• Same time and place• To hear, discuss or

deliberate any item• Within Board’s subject

matter jurisdiction

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Serial meetings are illegal

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What is an illegal serial meeting?

• direct or indirect communication• employed by a majority• to develop a collective concurrence• as to action within subject matter jurisdiction

Serial meetings are illegalTypes of serial meetings

• Hub and spoke• Daisy Chain• Briefings

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Meeting Exceptions

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When is a meeting not a “meeting?”

• individual contacts• conferences*• community meetings*• another body of the agency*• social or ceremonial events*• standing committee meetings

Meeting Exceptions continued

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* Provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter of the legislative body.

Rules Governing Meetings

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Types of meetings

• Regular• Special• Adjourned

Regular Meeting

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• Agenda must be posted 72 hours in advance

• Brief description of items of business

• Posted agenda must be freely accessible to public

Special Meeting

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• Called by presiding officer or majority of Board

• Notice must be posted 24 hours in advance

• Notice must be received by each member unless waived

Special Meeting

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• Notice must be sent to newspapers, media if requested in writing

• Notice must state time/place of meeting and all business to be transacted

• Public comments limited to what is on agenda

Adjourned Meetings

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• Regular or Special Meeting may be adjourned to specific time and place

• If no time stated, then meeting continued to the hour for regular meetings

• Less than a quorum may adjourn

Adjourned Meetings

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• Secretary/Clerk may adjourn to stated time and place and provide notice in same manner as special meeting

• Notice of adjournment must be posted on or near door of place where meeting was held within 24 hours

Emergency Meetings

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• Defined as work stoppage or other activity that severely impairs public health and/or safety

• Defined as crippling disaster that severely impairs public health and/or safety

• Determined by legislative body

• No need to comply with 24 hour notice/posting requirement

Emergency Meetings

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• Newspapers, media notified at least one hour by phone

• If phone not available, notify papers/media of purpose of meeting and action taken

• Cannot meet in closed session

• Must comply with all special meeting requirements except 24 hour notice requirement

• Minutes of meeting must be posted ASAP

Other Agenda Requirements

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• No discussion or decision on items not on the posted agenda

• Agendas must be publicly accessible and distributed in advance to those who request copies

Agenda Requirements Exceptions

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Items added to the agenda

• Came to the District’s attention after the agenda was posted; and

• Need to take action before the next meeting

• Two-thirds vote required

Exceptions – continued

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• Brief response to questions from public

• Clarification/reference to staff

• Brief announcements/report on activities

• Requests for future report

• Placement of items on future agenda

Public Participation

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• Not required to “register” their name or address, i.e. speaker cards

• Rules of decorum permitted

• Time limits okay

• Recording permitted

Public Participation• Public to speak on any item

of interest within subject matter jurisdiction of Board

• Public to speak on a specific item of business before or during the body’s consideration

• Cannot prohibit public criticism of policies, procedures, programs of District, acts of Board, or criticism of District employees

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Other Agenda Rules

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• Agendas and contents are public records

• If document distributed at meeting, make copy available for public inspection

• If distributed by someone else, make available at meeting or after meeting

Compensation DisclosureAssembly Bill 1344

• Effective January 1, 2012 the Brown Act was amended to regulate employment contracts in the following ways:

• Prohibits automatic increase in “local agency executives” contracts above cost-of-living;

• If official placed on paid administrative leave is later convicted of crime related to abuse of office, s/he must pay back salary paid while on leave;

Assembly Bill 1344, continued• If public funds are used for the legal defense of

official, and official is convicted of crime related to abuse of office, s/he must pay back defense costs; and

• Severance and cash settlements must be returned if official is convicted of crime related to abuse of office.

• All meeting notices must be posted on the agency’s website (if it has one); and

• Special meetings to consider the executive’s salary, salary schedule or benefits, salary and benefits are prohibited- must be discussed at regular meeting.

Teleconferencing

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• Quorum must participate from regular location

• Teleconference location must be identified on agenda

• Agenda posted at teleconference location

Teleconferencing• Location must be

accessible to public

• Agenda must provide for public participation

• Roll call vote

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Meeting Location

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• Must be within the local jurisdiction- Includes retreats and workshops

• Multi-Agency meetings held in boundaries of one of the agencies

- All agencies must give notice

Closed Sessions

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• Personnel matters/labor negotiations

• Real Property matters

• Pending/threatened/contemplated litigation

• Student Discipline

Closed Sessions

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• Matters must be disclosed on the posted agenda

- “Safe Harbor”

• Pre and post-session announcements by Board President or counsel

Closed Sessions

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• Who participates?

• Confidential Minute Book (if required)- Not a public record- Disclosed to legislative body and court if

violations are alleged

• Disclosure of documents?

Remedies for Violations

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• Notice and opportunity to cure• Civil action for invalidation of actions• Attorneys fees and costs• Criminal prosecution

- Action taken at a meeting- In violation of the act- Intent to deprive public of information

GENERAL ETHICS PRINCIPLES

• Values such as trustworthiness, respect, fairness and responsibility promote public trust in government and should explain the importance of avoiding even the appearance of impropriety.

ETHICS V. ETHICS LAWS

• Ethics laws merely set minimum standards for conduct

• Ethics goes beyond legal requirements– About doing what we ought to do, rather than

what’s required – Complying with ethics laws does not ensure that

you are meeting your own standards and values• Or those of your constituents

TRUSTWORTHINESS

• Service to your community• Truthfulness to your colleagues, staff and the

public• Not using your public office for personal gain• Keeping promises

RESPECT

• Debating courteously• Avoiding personal attacks• Listening• Preparation• Including others and the public in decision

making process

FAIRNESS

• Basing decisions on the merits and facts• Following procedures• Keeping an open mind• Being consistent• Being impartial• Staying present, especially during decision

making

RESPONSIBILITY• Admitting mistakes• Stewardship of District resources• Taking unpopular positions when values

require• Representing the District’s position even when

you personally disagree with it• Safeguarding confidential information

GENERAL ETHICS PRINCIPLES

• Is it good public policy?• Is it consistent with the District’s or the community’s

values?• Does it meet your own sense of right and wrong?• Is the action legal?• The Institute for Local Government has useful

resource materials at http://www.ca-ilg.org/

PROHIBITION ON USE OF OFFICE FOR PERSONAL GAIN

• Making decisions affecting a public official’s economic interests (Political Reform Act)

• Contracting with one’s own agency – Gov. Code § 1090

• Bribery



Government Code Section 1090

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Government Code Section 1090Financial Interest in a Contract

Strict prohibition against being financially interested in any contract made by the individual in their official capacity.

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Financial Interest in a Contract

“Financial interest” includes both direct and indirect interest

• Payments made to the contracting party must be returned to the public agency.

• Public agency is entitled to retain any benefit it received.

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Violation of Section 1090

• Contracts made in violation of Section 1090 are void and unenforceable.

• Payments made to the contracting party must be returned to the public agency.

• Public agency is entitled to retain any benefit it received.

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Consequences for violating Government Code 1090

• Willful violation of Section 1090 is punishable be fine, imprisonment, and permanent disqualification from holding office in California. (Government Code Section 1097)

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“Participation” in making a contract

• Preliminary discussions• Negotiations• Compromises• Reasoning• Planning• Drawing of plans and specifications• Solicitation of bids

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Presumption of Influence• Official presumed to have made any contract

executed by the district-even if he or she disqualified himself or herself from all participation in the making of the contract.

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Scope of Section 1090 Conflict• Abstention does not cure Section 1090 problem

• Entire governing body is precluded from entering into the contract

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Exceptions to Section 1090:

• Remote interest (i.e., non salaried officer of not for profit)

• Non-interest (salary from another governmental agency)

• Rule of Necessity



Political Reform Act

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Political Reform Act of 1974

PRA applies to:

• Public officials• With a financial interest• Making or attempting to influence a decision

(Government Code Section 87100)

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Political Reform Act of 1974 When Does a Public

Official Have A Conflict:

• Reasonably foreseeable • Material financial effect• Economic interest• Different from public

generally

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The 8 Steps to Determine Conflict of Interest

• Step 1: Is the individual a public official?• Step 2: Is the official making, participating

in influencing a governmental decision?

• Step 3: What constitutes the economic interest of the official?

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• Step 4: Is the economic interest directly or indirectly affected by the decision?

• Step 5: How will the economic interest be affected?• Step 6: Is it reasonably foreseeable that the economic

interest will be materially affected?

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Steps 7 and 8 – Exceptions

• Step 7: Distinguishable from the public generally.

• Step 8: Does the “legally required participation” rule apply?-“rule of necessity”-no alternative source of decision

making-not to break a tie-not if a quorum cannot be convened

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Recusal Action Required: • Publicly identify interest in sufficient detail• Recuse self from discussions or acting on

matter• Leave room, unless matter on consent

agenda

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Prospective employment:

Public officials must disqualify themselves from making, or participating in making or using their official position to influence any governmental decision directly relating to any person with whom the public official is negotiating or has any arrangement concerning prospective employment.



Gift and Travel Restrictions

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Gifts and Travel Restrictions• No gifts from a single source

aggregating in excess of $420 in a single year

• Gifts aggregating $50 or more must be disclosed on a Form 700

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Gift and Travel RestrictionsExceptions to Gift Limitations

• Gifts returned or donated to charity (without claiming a deduction)

• Gifts from family members• Informational material (books, papers)• Birthday presents of equal value• Bequest or inheritance

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Gift and Travel RestrictionsGifts of Travel

Travel payments may be subject to gift limit restriction and/or may be reportable

(see FPPC Regulations)

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Gift and Travel RestrictionsHonoraria Ban

• No honorariums may be accepted

• Definition of honorarium: payment made in consideration for any speech given, article published, or attendance of any public or private conference, convention, meeting, social event, meal similar gathering.

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Gift and Travel RestrictionsHonoraria Exceptions

The following are not prohibited and not required to be disclosed:

• Returned honorariums

• Honorarium donated to District’s general fund

• Honorarium made directly to a bona fide non-profit organization

• Campaign contributions (must be reported)

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Prohibition Against Use of Public Resources for Personal or Political

Purposes• Public officials and employees may not use public

funds for personal purposes, including political activity.

• Definition of public funds includes: money, equipment, supplies, compensated staff time, telephone, computers, fax machines, etc.

• Penalty: If misuse of public funds is more than incidental or minimal, it may be prosecuted as a felony. Violators may be barred from holding office.

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Mass Mailing RestrictionsItems mailed at public expense may not:

• Feature an elected officer

• Mention an elected officer if prepared in coordination with the elected officer

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Mass Mailing Exceptions

• Letterhead• Press releases• Communications between government agencies• Intra-agency communication• Bills and legal notices• Telephone directory, organizational chart or

similar roster

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The End

Presented by: Ruben Duran, General Counsel Maribel S. Medina, Deputy General Counsel

Documents

Transcript of Presented by: Ruben Duran, General Counsel Maribel S. Medina, Deputy General Counsel