HomeMy WebLinkAboutItem No. 1 - Study SessionMEMORANDUM
TO: PUBLIC OFFICIALS
FROM: BEST BEST & KRIEGER LLP
RE: SUMMARY OF THE BROWN ACT AND
CONFLICT OF INTEREST LAWS
OUTLINE OF BROWN ACT
1. INTRODUCTION
Development
The Brown Act developed as the result of a 1951 San Francisco Chronicle investigation
into the plethora of secret meetings despite diverse codes and statutes prohibiting them.
The League of California Cities drafted the original act which was later promoted
through the legislature by Modesto Assemblyman Ralph M. Brown. The bill was signed
into law in 1953.
Purpose
The purpose is to ensure that almost all aspects of the decision - making process of
legislative bodies of local agencies be conducted in public, and be open to public
scrutiny.
2. BROWN ACT
A. Application of Act
1. The Act applies to "local agencies," generally defined as political subdivisions
and districts including, for example, general law and chartered cities, counties,
school districts and other special districts.
2. The Act applies to "legislative bodies," generally defined as (a) governing bodies
of local agencies, (b) commissions and committees of local agencies, either
permanent or temporary, either decision - making or advisory, created by formal
action of a legislative body and (c) boards, commissions and committees
governing a private entity created by an elected governing body, or receiving
funds from a local agency and on whose governing body sits a member of the
local agency's legislative body.
3. The Act applies to persons elected to serve on a legislative body, even prior to
assuming office.
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4. The Act applies to "meetings," defined generally as a congregation of a majority
of legislative body members to hear or discuss items within that agency's subject
matter jurisdiction, or the use of communication or intermediaries employed by a
majority of legislative body members. The Act generally does not apply to social
events, seminars and educational conferences, or community organized meetings,
at which agency business is not discussed by a majority of agency members.
5. The Act does NOT apply to (a) an advisory committee composed solely of less
than a quorum of the governing body unless it is a standing committee which has
continuing subject matter jurisdiction or a meeting schedule fixed by formal
action of the legislative body; (b) mere attendance at a standing committee
meeting, if only as an observer; or (c) attendance at open and noticed meetings of
other local agencies.
B. Agency Posting and Notice Requirements
1. The Act requires posting an agenda accessible to the public at least seventy -two
(72) hours in advance of a regular meeting, with a brief general description
(generally need not exceed 20 words) of each item of business to be transacted or
discussed in both open and closed session. For special meetings, written notice
may be provided by any means at least 24 hours in advance to members of the
legislative body and to anyone who has requested notice in writing. The notice
must specify the time and place of the meeting and the business to be discussed.
Notice may be waived in writing delivered to the secretary before the meeting.
2. No action or discussion is allowed for any item not listed on the agenda (except
for brief response to persons exercising public comment rights at meeting).
3. Exceptions:
a. Adding an item by 2/3 vote determining an emergency situation exists
(work stoppage or crippling disaster impairing the public's health and
safety).
b. Adding an item by 2/3 vote of those present determining a need to take
immediate action and that the need for action came to the attention of the
agency subsequent to posting the agenda.
c. An item was earlier posted pursuant to the seventy -two (72) hour
requirement, but the agenda item has been continued to a subsequent
meeting within five (5) calendar days of the original meeting.
C. Opportunity for Public to Speak
1. Every agenda must provide an opportunity for members of the public to address
the body on items of interest to the public, before or during the legislative body's
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consideration of that item, or concerning items not on the agenda that are within
the subject matter jurisdiction of the legislative body (exception: need not allow
public to speak if an item was previously considered at a public hearing by a
committee composed exclusively of members of the legislative body). The
legislative body may adopt regulations limiting the total amount of time allocated
for public testimony on particular issues and for each speaker. The legislative
body may order the meeting room cleared (except no disruptive news media) of
persons willfully interrupting the orderly conduct of the meeting.
3. SOME EXCEPTIONS TO PUBLIC SESSION REQUIREMENTS (Closed Sessions)
A. Real Property Transactions: The legislative body may go into closed session with its
negotiator prior to the purchase, sale, exchange or lease of real property to give
instructions to its negotiator regarding the price and terms of payments for purchase, sale,
exchange or lease.
Prior to the closed session, the local agency must identify the real property and persons
with whom its negotiator may negotiate.
B. Pending Litigation: The legislative body may discuss in closed session "pending
litigation" if:
1. There is litigation pending involving the agency; or
2. There is "significant exposure to litigation" against the local agency; or
3. The local agency has decided or is deciding whether to initiate litigation.
Prior to the closed session, the local agency must state on the agenda or publicly the
statutory basis under the Act for discussing pending litigation in closed session.
C. "Personnel ": The legislative body may go into closed session to consider the
appointment, employment, evaluation of performance, or dismissal of a public employee
or to hear complaints or charges brought against such employee; unless such employee
requests a public session. For complaints or charges brought against an employee, the
employee must be given 24 hour notice of the right to have the matter handled in open
session. Closed session may NOT be held to discuss the agency's available funds,
funding priorities or budget. "Employee' does not include elected officials however, it
does include officers and independent contractors who act as officers or employees.
D. Salaries and Compensation of Employees: The legislative body may discuss in closed
session with its designated representatives salaries, salary schedules, or compensation in
the form of benefits of its represented and unrepresented employees. These closed
sessions can take place prior to and during consultations and discussions with
representatives of employee organizations and unrepresented employees. The same
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definition of "employee" and prohibition against funding or budget discussion applies as
set forth in Section 3. C. - "Personnel," above.
E. Joint Powers Insurance Authorities; Multi- jurisdictional Drug Law Enforcement
Agencies: Insurance claims pertaining to tort or workers compensation liability and drug
law enforcement criminal investigations may be discussed in closed session by applicable
agencies.
F. Announcement of Action Taken in Closed Sessions: The legislative body must publicly
report any action taken in closed session and the vote of every member as follows:
1. Approval of a real estate agreement must be reported at the public meeting during
which the closed session is held or, if final approval of the agreement rests
subsequently with another party, the local agency must disclose approval of the
agreement upon inquiry by any person subsequent to final approval of the
agreement by the other party.
2. Approval to defend litigation, or to seek or refrain from seeking appellate review,
or to enter litigation as amicus curiae must be reported in open session at the
public meeting during which the closed session is held.
3. Approval of a settlement of pending litigation must be reported in open session at
the public meeting during which the closed session is held, provided that if fmal
approval of settlement rests subsequently with another party, then the disclosure
of approval shall be given following inquiry by any person after the settlement
becomes fmal.
4. Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise
affect the employment status of a public employee shall be reported at the public
meeting during which the closed session is held (except that the report of a
dismissal or of the non - renewal of an employment contract shall be deferred until
the first public meeting following the exhaustion of administrative remedies, if
any).
5. Approval of an agreement concluding labor negotiations must be reported after
the agreement is final and has been accepted by the other party.
The legislative body must provide copies of contracts, settlement agreements or other
documents that were approved in closed session to any person who submits a written
request for them to the legislative body within twenty -four (24) hours of posting of the
agenda (and to any person who has made a standing request for all documentation as part
of a request for annual notice of meetings).
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4. MISCELLANEOUS PROVISIONS
A. Location of Meetings: All meetings of a legislative body must be held within the
boundaries of the territory over which the local agency exercises jurisdiction, subject to
limited exceptions. A legislative body may not conduct a meeting in any facility that
prohibits admittance of any person on the basis 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 present without making a payment or purchase.
B. Form of Open Deliberation: A legislative body is prohibited from taking any action by
secret ballot. A legislative body may use video or audio teleconferencing for the benefit
of the public and the legislative body to receive public comment or testimony and to
deliberate. If teleconferencing is used, the legislative body must post agendas at all
teleconference locations, and each teleconference location must be identified in the notice
and the agenda.
C. Openness of Meetings: A member of the public may not be required to register his /her
name or provide other information as a condition to attendance. Any person attending a
public meeting has the right to record the proceedings with an audio or video recorder or
a still or motion picture camera unless the legislative body reasonably finds that such
recording cannot continue without noise, illumination or obstruction of view that would
constitute a persistent disruption of the proceedings. A legislative body may not prohibit
or restrict the broadcast of its proceedings unless it makes similar findings. Any audio or
video recording of a public meeting made by the local agency is subject to inspection
under the California Public Records Act, but may be destroyed thirty (30) days after the
taping or recording.
D. New or Increased General Tax or Assessment: The Act provides that before adopting a
new or increased general tax or assessment, a legislative body must conduct at least one
public meeting at which public testimony is permitted, in addition to the noticed public
hearing at which the legislative body proposes to enact or increase a general tax or
assessment.
E. Reporting Action Taken: The legislative body must publicly report any action taken and
the vote or abstention on that action of each member present for the action.
5. PENALTIES AND REMEDIES
A. Each member of a legislative body who attends a meeting of such legislative body where
action is taken in violation of any provision of the Act, with wrongful intent to deprive
the public of information to which it is entitled under the Act, is guilty of a misdemeanor.
B. Violations of the Act may be prevented or stopped by mandamus, injunction or
declaratory relief.
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C. Actions by a legislative body which are not in substantial compliance with the open
meeting, notice or agenda requirements may be invalidated (exceptions to invalidation
generally pertain to actions approving bonds or contracts, or relating to the collection of
taxes).
D. Court costs and reasonable attorney fees are recoverable in an action brought to enforce
the Act. 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.
OUTLINE OF CONFLICT OF INTEREST LAWS
1. POLITICAL REFORM ACT
A. The Political Reform Act ( "Act ") was enacted by initiative measure in 1974. (Gov.
Code, § 81000 et seq.)
B. Legislative Purpose: "Public officials, whether elected or appointed, should perform their
duties in an impartial manner, free from bias caused by their own financial interests or the
financial interests of persons who have supported them." (Gov. Code, § 81001(b).)
C. The Fair Political Practices Commission ( "FPPC ") is the agency primarily charged with
the responsibility of advising officials and the public and enforcing the conflict of interest
provisions of the Act. The FPPC has adopted regulations interpreting and implementing
the Act's provisions. (2 Cal. Code Regs., § 18000 et seq.)
D. The Basic Prohibition: "No public official at any level of state or local government shall
make, participate in making or in any way attempt to use his official position to influence
a governmental decision in which he knows or has reason to know he has a financial
interest." (Gov. Code, § 87100.)
E. There are four basic questions that a public official should ask in determining whether or
not they have a conflict of interest:
1. Is the official making, participating in, or using his or her "official position"
to influence a governmental decision?
2. Is it reasonably foreseeable that the decision will affect the public official's
economic interest?
3. Will the effect of the decision on the official's economic interest be material?
4. Will the effect of the decision on the official's economic interest be different
than the effect on the public in general?
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If the answer to all of the above questions is "yes," then the official has a conflict of
interest and must disqualify himself both from participating in and making the decision.
F. Components.
1. Is the official making, participating in, or using his or her "official position" to
influence a governmental decision?
Making a governmental decision includes voting or participating in a decision regarding
ordinances, regulations or resolutions; contract awards, purchases or leases; hiring, firing
or other personnel actions; or any other decision coming before a public official.
Responding to comments, taking part in discussions or making recommendations
regarding any of the above topics or decisions is also considered participation in a
governmental decision.
2. Is it reasonably foreseeable that the decision will affect the public official's
economic interest?
An effect on one's economic interest is reasonably foreseeable when there is a
"substantial likelihood" that it will result in a financial gain or loss to the public official.
There's probably a conflict if the governmental decision involves any of the following
economic interests:
a. Business Interests. (GC § 87103(a) or (d)) Direct or indirect investments
valued at $2,000 or more. Business entities in which you are a director,
officer, partner, trustee, employee or hold any position of management
(paid or not paid).
b. Real Property Interests. (2 CCR § 18703.2) Direct or indirect interests in
real property valued at $2,000 or more.
c. Income Interests. (2 CCR §18703.3) Income, including a community
property interest in the income of your spouse, and loans of $500 or more
provided, promised, or received within 12 months prior to the time the
decision is made.
d. Gift Interests. (2 CCR § 18703.4) Any donor or intermediary /agent of a
gift of $460 or more received, provided or promised within 12 months
prior to the time the decision is made.
e. Personal Finances. (2 CCR § 18703.5) Personal expenses, income, assets,
or liabilities of you or your immediate family, whether they increase or
decrease.
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3. Will the effect of the decision on the official's economic interest be material?
Will the decision cost or earn the official, the official's spouse or dependent children
money or affect the official's other economic interests in a way that is different from the
general public?
The official does not have a conflict of interest if the effect of the decision on his
economic interest is no different from its effect on most other persons (the "public
generally "). For example, a decision to impose a tax will affect the official no differently
than any other member of the general public. By contrast, a decision concerning a zoning
variance for the official's business or home does have an effect on the official that is
different from that on the general public and therefore would be considered a conflict of
interest for the official. (This exception is very narrowly construed by the FPPC.)
To qualify for the "public generally" exception, the decision must affect a "significant
segment" of the public as follows:
For decisions affecting the personal expenses, income assets or liabilities of a public
official or a member of his or her immediate family, the decision also affects: (1) 10%
or more of the population in the jurisdiction of the official's agency or the district the
official represents; or (2) 5,000 residents of the jurisdiction.
For decisions affecting a public official's real property interest, the decision also affects:
(1) 10% or more of all property owners or all homeowners in the jurisdiction of the
official's agency or the district the official represents; (4) 5,000 property owners or
homeowners in the jurisdiction of the official's agency.
For decisions that affect a business entity in which the public official has an economic
interest, the decision also affects: (1) 2,000 businesses; or (2) 25% of all businesses in
the jurisdiction or the district the official represents, so long as the effect is on more than
one industry, trade or profession. (2 Cal. Code Regs., § 18707.1.)
Legally Required Participation
• No alternative source of decision.
• Not available to break a tie.
• Not available if a quorum can be convened from those not disqualified.
• Requirement to disclose the financial interest and the reason there is no alternative
source of decision - making authority.
• Re- qualify the minimum number needed to act.
• Draw straws or re- qualify the "least tainted."
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Violations
• Administrative penalty of up to $5,000 per violation.
• Injunctive relief.
• Misdemeanor criminal sanctions (fine and/or imprisonment), and four -year bar
from holding elective office.
2. GOVERNMENT CODE SECTION 1090
A. Government Code section 1090 prohibits public officers or employees 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. Government Code section 1090 also prohibits
public officers or employees from being purchasers at any sale or vendor of any purchase
made by them in their official capacity.
B. The purpose behind the prohibitions in Section 1090 is to eliminate opportunities that
would prevent officials from exercising loyalty and undivided alliance to the best
interests of the public entity of which they are members.
C. No actual fraud or dishonesty is necessary for a Section 1090 violation.
D. Even when the governmental official's business turns in the lowest bid, a Section 1090
violation can occur.
E. Full disclosure will not prevent or cure a Section 1090 violation.
F. Abstention by the interested public official will not cure a Section 1090 violation.
G. A Section 1090 violation will occur even if the interested public official abstains from a
vote that would approve the contract, sale, or purchase from the public official's business.
H. The consequences of a violation of Government Code section 1090 can be criminal and
civil.
I. There are exceptions under Government Code section 1090 (e.g. "remote interests" under
Government Code Section 1091 and "non- interests" under Government Code section
1091.5).
As always, please do not hesitate to contact our office with any specific questions
about the Brown Act, Conflict of Interest laws or Government Code section 1090, and how it
applies to you.
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