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Home My Public Portal AboutBrown Act and Conflicts Training Brown Act and Conflicts Training for the Board & Commission Members of the City Lynwood L nwood `" n . hTr DAVID A. GARCIA, ESQ. TAFOYA & GARCIA, LLP 316 W. SECOND STREET,SUITE 1000 LOS ANGELES, CA 90012 TEL: 213.617.0600 FAX: 213.617.2226 !4 : 77,R`' `4LC "`.� .*r *d`R'!*'%�#` C'S.H., KAe'S.. :�i PR' �..� '. 0 ...... ... m. s...• ... a:.e _....m.»._ .., � a .. __.... .. �. :. . ° What is AB1234 • • Bill signed into law by Governor Schwarzenegger, effective Jan . 1, 2006 • Requires local government 'officials that receive compensation or reimbursements to obtain at least 2 hours of ethics training every two years. (GC 53234(c) ) Also applies to select employees designated by the entity. _ . ,.a" xv+r5;. . - .„ a, n, + }� s 1 �,�s ° ., i. ... i :.. � �� , Ya �..°'4.��. .,r ? •"�v twv ,< ,,y 'r• - xE. ,.. `2 }!+F •`a. ' :.:s� •, �s,.,. ."� �, w. s. ti's 4..k� r a;w 9:1: `�• t "' '� s,., . ,. " - .. a= 'Na ,_.t. a.. Amount of Ethics Rules There are more than 350 laws and regulations that set the minimum standard for ethical conduct of public officials and high ranking public employees. How many rules are you aware of? #x «.. 'C,.:,.4. `x .. ;t °"•x 3`vim ` '°ts.T°,'.,.e, xl2« ,"'� ,;,"' 'S k:R >.;.t •. s ..T,w. �....vFdFx`.. �A_ � 5e- `i-... °sa. vd}v>� 'S .. ?..<at�.a_ �„'g,'.�;,�. _�..� _a,dn, �°': a ,.._,.nu>".yo,...., 4.,. .a.,a. ...- �.. ....`_'...�.:;'�. .....R.. .�...-a.�'!x:•„sx..�... :. _,x.a. ...._....... .�> ...�. ~a:�x, wv. `a1, �..... .... .. .......�.�,at.. .o+W.«...............�,.a.»....,.. ...",.. ,a„.. .,s-. .«.. Example it a misdemeanor to use city law makes y seals with the intention of creating an impression that a document is authorized by a public official. Cal. Gov't Code §34501.5: Any person who uses or allows to be used any reproduction or facsimile of the seal of the city in any campaign literature or mass mailing, as defined in Section 82041.5, with intent to deceive the voters, is guilty of a misdemeanor. (The absence of parallel language for county and special district seals underscores the wisdom of adopting local protections) • Who Needs to Be Here • Any official who received compensation, salary, stipend, or reimbursement for expenses in the performance of official duties. (GC 52325 (a )) •Any employee designated by the local agency to receive the training by the local agency. (GC 53234(c) (2) ) .,..,� ry . _. a s -04 � _.r 11 n i Objectives Tra i n � • Familiarize You With General Ethics Laws • Understand the Difference Between Ethics and Ethics Law • Assist with AB 1234 Compliance w • Multiple Positions Officials who hold more than one covered position, such as service on a local government and on a Local Agency • Formation Commission, joint powers board, or other regional or multi-agency entity, need only complete two training hours every two years as to all positions. Gov. Code § 53235 . 1(c) ,r, , ra . • • Session Logistics • • • • 2 Hour Session • Discuss the Four Main Ethics Law Groups d Overview Enough to Know When to Ask. • Broa •Questions •Mandatory Paperwork showing proof of participation • Sign in Sheets Ethics vs . Ethics Law • Ethics = What we ought to do • Ethics Law = What we have to do to avoid punishment. , . . ;1„ aF: . . e� � a k `k y ,� a r °k: S & r • What We ou htto Dc, • Aspirational Values • Trustworthiness • Responsibility • Respect • Fairness • Compassion • Loyalty Public Perception Matters • A high standard of ethical conduct that promotes public confidence that public officials' actions are motivated solely by the public's interests. . .. ..,{ .. ., m.. r. `� 4^ "• 'w �`• § 4� ':}, Y`vim" .:"1 Y! "ic. :: Y.:. .o.... :; .�. A.a• 9+R;�: � &.'�" F ..Ny Po 'A . 1fie. tea ~ A" e _ • II Four Main Categories of Ethics Law 1 . Personal Financial Gain 2 . Perks 3 . Governmental Transparency 4. Fair Processes • • Category 1 : Laws re Personal Financial Gain * Bribery ( PC 68) * Political Reform Act Conflict (GC 81000) *Contractual Conflict (GC 1090) *Campaign Contribution Conflict (GC 84308) * Leaving Office Conflict (GC 874063) • ..... +a,c.�y w� .la*... c.,�•, a-.v. tF .�`a+xb.. Xm a,�..'; �x ..� p -'-3�sa�. ..w�a4a;.c_.`.-:g.. 'w+.art"m�.e..+'a�..iy�a,�.�i"a gA ik s d u ,. ata 'A��: R a uc s;4' G,icy " „; n :. , 4. "sa,"�• Rationale A .3a i nst Personal Financial Gain 1 . Public servants should not benefit from their positions interest , . . , Bribery ( Penal Code section 68 ) Public Officials May Not : 1 . Solicit, receive or agree to receive; 2 . A benefit 3 . In exchange for their official actions a ....,.... .. ..o .> :. .�r...�iAS ed'.....a►'�i".�e.-.v d x.. ...�. .,..,.x..,se"+'t+ �. �..,. E` .-.:, x a -s .:... � p.& ,aa � � e e a t r ��a �a �` � ` �, ! as za. � •a mr°° � a° Bribery Is Not Limited, to Cash 1 . Campaign Contributions. 2 . Jobs 3 . Gifts • 4. Special considerations not available to others. Bribery : Focus on the Exchange 1 . If there is a "this for that", a "tit for tat", or a "quid pro quo", then the exchange may be improper. xw.v., S Ka .?. .y.. 'd •'�$ d*Cy R \ b` g:, j L, �. �°•, � °r ,.<s a° e � 's .:`i� a ..a?ip e�' Sy• '& �+�° J� s�� s x e e q. y' s ��• .� ,a 9 d,, .r=".°`°v � �,a ,c a�. °° �- �' :� r r° ° Bribery : Penalties 1. Up to four years in state prison 2. Loss of office 3. Barred from holding office 4. Fines/restitution 5. Federal prosecutions: stiffer penalties Conflict ,if Interest : Political Reform Act 1. California law prohibits a public official from making, participating in, or in any way attempting to use his or her official position to influence a governmental decision in which he or she has a financial interest 2. If a public official has a conflicting financial interest, he or she must recuse him or herself and not participate in the matter 3 . These restrictions are contained in the Political Reform Act a, s aw.` § :.< conflict of nterest : Political Reform Act 1 . General rule : A public official has a conflict of interest if the decision will have a reasonably foreseeable material "financial effect" on his or her "economic interests," unless : a . The effect is indistinguishable from the effect on the public generally, or b. The official's participation is legally required •.m.. ,::.�. .,,�:,.. ., sa e -a :s,.x. »_.. ,. ,..a"_. �. ,. x, .,,,.,.. .s u'�4' ,. �^,'?.7,. .�, ;x,t r '"1,�..:m t 4 :m,. � ,"�. s...... ,. �. , ....:,.aj .. :. _:�: .a :� ... r. -k � ..,. .. :.. a :.� R �..�K$�" '.z,,A„�ry F iF�:•, ;? �-•, x•.::w `l* ':Qe „� e.,8�.,...a„„:..s.__.-. Ste p 1 : Are you Public Official 1 . General rule : If you make a decision or influence the making of a decision, you are a public official . Yes — elected official, commissioner members, Form 700 filer Maybe — Consultants, Advisory Committee Members - Step 2 : Areyou maki orinfluencing a � decision ? governmental . 1 . Negotiating, researching, giving advice, or asking staff for items is g enerally considered "making" or influencing a decision . • . . . . . . . . . . . • . • „ _ . • Qualifying Ste p 3 : Do You HaveAType of Economic Interest? 1. Investment of $2,000 or more in a business entity 2. Officer, Director, Employee, or business position in entity. 3. Real Property Interest of $2,000 or more in the City. 4. Source of Income of $500 or more in the past 12 months. 5• Source of gifts of $460 or more in the past 12 months (for the period January 1, 2015, to December 31, 2016) 6. A "reasonably foreseeable" material financial effect on you or your family that is distinguishable from the public generally. a4_, ,�� mac` . .t4.- i .a .. -w.--. ... :..,.` .... -,.. per, . ...: .:... � ,.. A .,,,a Economic Interest and Degree Step 4 .• of Involvement •The FPPC has outlined a series of tests to determine whether an economic interest is "directly involved or "indirectly involved" For example, a person or business entity that is a party to a proceeding is "directly involved" The public official's property or a property within 500 feet of the official's property is presumed to be "directly involved" Any interest that is not "directly involved" is considered "indirectly involved" k'a' ,x - r +g n, s"` X44 1r *r 7 . .. :+ a •n ,.a .. ,..,,. ., a ^,gk m... dk ..,. ..� .• ..i^, o. ...�« .,a... ,,. ....�. -n. ..,+,. .. a •.. ,•: a k ,.. ,#, : '°� ..�4 `^.+, #' 3': �' °.. .:�" ;�;, �"�i -�`'"�'''�a k : w.,.-A..,...°�i:....x�.�., .�� ..Yw.�. .�`.'ra..,....>. ._:.,... �._ .:��.�. _.....___.. �..a..a._s.�•. e.b_, ,_..�> _...M_ .s. Ste p 5 : Material Economic Interest 1. If th.e interest was determined to be "directly involved" in step 4, materiality is usually presumed . 2. If the interest was determined to be "indirectly involved," you must analyze materiality: a . If the interest is property more than 500 feet from the official's property, what is the impact? b. If the interest is a source of income or gifts to the official, what is the impact? A: 4 tr. ,. it Step 6 Financial Effect Reasonably Foreseeable ? 1. Financial effect is presumed to be reasonably foreseeable if the economic interest is a named party or the subject of the proceeding 2. If the financial effect can be recognized as a realistic possibility and more than hypothetical or theoretical, it is reasonably foreseeable 3 . If the financial effect can of be expected absent extraordinary circumstances not subject to the public official's control, it is not reasonably foreseeable V„>. .;: ...., ..s::4�: +: :. , *TM° -'r vsx7t' f '"...M; 'e R� 4 :''�.'w : CSC ` 7 .,} r ya,4: t„ ei +. :.. ..-:,. ,...Y• T '...: .,,, -':.'a.. x � h "'�"'4 -a. .. .� •R.4..,1.. '� '..�� .. Q':... „�• 'fie.. ,bt ' ...., .P, 2,�.wS� ?a'.,'� � a...,�.Fke,:.`-n..u�_i.3�::3v. .•^.,.:.�..,....�sx ,.�......-�+«.+_ ,.,..b... �'w«ti, w Ste p 7 : Affect Public Generally? • If the decision affects the official's interest in the same manner as it would effect a "significant segment of the public," this exception may allow the public official to participate •Numerous rules and exceptions (See FPPC Reg. 18701) But if you think it applies, please consult with us. • For example, a decision may affect a significant segment if it also affects 10 percent of the population or 5,000 individuals who are residents of the jurisdiction . '441 tlatU""*24.1;41:'444.!ktiecti.ti,tehflitoih.U2lite.4K 44e. *Vi*. Participation ste p 8 . Required ? •In some cases, even if an official lhas a conflict, he or she may be "legally required to participate 'Breaking a tie is not such a situation . (GC 87101) *Losing quorum is. • If multiple disqualification creates a quorum issue, then the number of disqualified members: needed to create a quorum should return to vote after a random drawing. Please consult with this office for further guidance on this issue. - . m '� ?*- '�S ,�t 3, # 7 x� ., � .- ,.: a . .,._.. ,m.s.. U..,�.r &z.. .�.. ,!# ,,,,#pia. :«� ,« .. •;�, : xix.' '� .:. ey,�., .. a,� .�s��. � `4 "a p , .;..,.. :. •. z ,-. �:��+�'hro�„ .:.. �' ..3�"t�: .��.rr..�...z�f..��:ra°..�.... ::,�;:._��,._ ,. ..._...�.�.�..+`s...�.v�* _;5,,.,..°,_s�..,�,x,_ a .�.,.. n...F .._._. .�.. .. D . • Immediately publicly identify the financial interest that has created the conflict; •Recuse yourself from discussing or voting on the matter; and •Leave the room (unless the matter is on the consent calendar) and/or avoid influencing your colleagues. � • Safe Harbor •When in doubt, please submit your question to the City Attorney for further assistance;. •Ultimate)v, only onl written advice from the FPPC can serve to provide safe harbor for such matters. Examples of Conflict of Interest •Source of Income *Family Source of Income •Real Property Interest •Em to er p Y •Business Interest ' a Po �� L bym iI Penalties •May invalidate decision • Misdemeanor (couDd result in loss of office) • Fines ($5,000 to $10,000 per violation) •Attorneys fees �r 0 Contractual Conflict of Interest 1090 ) • Public officials cannot be financially interested in any contract made by them in their official capacity, or by any body or board of which they are a member " a a= t Y'.' a ti,•' �e � � „b H '? e Penalties •Interests in contracts are forbidden • Penalties: Refund money received, fines, imprisonment, and loss of office (felony) Conflicts of Interest and Campaign Contributions (Government Code §84308) •A local official, except for Elected Officials, may not participate in a proceeding if official has received campaign contributions totaling more than $250 during previous 12 months from a party or participant. Decisions involving a license, permit or other entitlement •Local official, except for Elected Officials, also prohibited from receiving, soliciting or directing campaign contributions totaling more than $250 from any party or participant in such proceeding while proceeding is pending and for 3 months after decision. o* Note that City elected officials may be exempt under GC §84308(a)(3) Government Code § 84308 Covered officials typically include local agency heads and members of boards and commissions. (§§ 84308(a)(3) and 84308(a)(4); CalL Code Regs., tit. 2, § 18438.1.) Alternates to elected or appointed board members and candidates for elective office in an agency also are covered. (§ 84308(a)(4); Cal. Code Regs., tit. 2, § 18438.1(c).) Covered officials do not include city councils, county boards of supervisors, the Legislature, constitutional officers, the Board of Equalization, judges and directly elected boards and commissions Conflicts of Interest When Leaving office •Who : Elected officials, City Manager •What: • Cannot represent another party for a period of one year before that agency • Participate or influence decision concerning a prospective employer. � w e� a � .`�•atl� g **�c; ...v.;i s` "t � °a :s }'a^9 �,;x� �,.a:. "� � :,� n � `r t Category 2 : Perks •Gift Limitations UGC 86203;, 89503; 895 6) • Honoraria Ban (GC 89502) j • Misuse of Public Funds ( PC 424; GC 8314) •Gifts of Public Funds (Cal . Const. art.XVI .s6) • Mass Mailing (GC 89001) •Travel Discounts (Cal . Const. art.Xll .s7) Rationale re Perks •There should be nos ecial privileges for p public officials . • Public resources should not be used to benefit the p ublic official Special privileges = undemocrati c Y " r y g �.,,,° a ;� t . a '� ae a*°• rya �.a. �aa � s eau �.e EC ix_s,�� z..�t�m�• ."�;n;.�� . °_._„>.- � � � � a��a. ,. ",: Limitations on Gifts •Calendar year limit of $460 from a single source •Gift is a broadly defined personal benefit • Meals, beverages, travel expenses, tickets to entertainment and sporting events • Gifts to spouse or minor children sometimes attributed to official blaftWalit . o a . e . . Gift Rules •Report $50 and up (over a year) •Limit $460 per year •May also be a disqualifying interest (over $460 in prior 12 months) •Lots of potential issues. + �.. a ° .�m_ o.._.. .. 4». .. __ ... dv...v _ ° ,'°° °._' _� _ .. ',._ <° ..• ... _..�..._._.e:...�....,......�.,.� _.......�.a.,„�$r..:.A o tim _ ! ..,-. ,.. v. r. ...._... °. _.._..._....... .....�.....s�.mb.::_.o .� __� ..,s�...a gym..a.Heax w.........>...e.. _A_.�...�.�..Am.s... Gift Disclosure •California's ethics laws require you to report on your Statement of Economic Interests all gifts you receive from a single source that add up to $50 or more over the course of a calendar year. •State law sets annual limits on the value of gifts an official may accept from a single source during a calendar year. In 2015-2016, the limit is $460. •You may also have to disqualify yourself from participating in a decision involving someone who has given you gifts that exceed the gift limit of $460 in the prior 12 months. 'x „'a. �' d, "... c .. i .. " „wrr'v' 14 i+S3`te�++. k ' "a«. `k. `+y'a'`a Gift Exclusions •Informational materials •Personalized plaques with a value under $250 *Gifts of hospitality by a person at his or her home when the person is present •Gifts between family members •Gifts of approximately equal value exchanged on birthdays, holidays and similar occasions *Tickets to an event where the official is asked by the entity holding the event to perform a ceremonial role on behalf of his or her agency •Common acts of neighborliness *Personal benefits commonly exchanged on a bona fide date or in a dating relationship 'Gifts from an official's long term close personal friend ''•° �, .';_ e' •. `. m� .y;' r .`,a a 'ate i pei; � k.. �°� .Yr . ____..,.A.a ..::.o ,..v...,a_ ..............a mU.a .,.., �. p ...,......,._. _.. _ .. .,a .a .. ,......., ,. ..a ., ., ..a..,..__ .. .. _. _ ......_.. _,._......>...�............ �_.....a..®_.S..v_...s.,._.....____..m....�....__.,..,.._...._. Unwanted Gifts - Options •within 30 days, you may return the'gift unused; •Deliver the unused gift, without claiming it as a deduction on your income taxes, to a state, local, or federal government agency, or to a nonprofit 501(c)(3) organization, so long as neither you nor an immediate family member holds a position in the organization; or •Reimburse the gift-giver the fair market value of the gift (or the amount necessary to bring the fair market value of the gift to below the allowable annual gift limit). a . ' Honoraria Prohibited •Honoraria is payment for speech, article or attendance at event such as conference or meeting Honoraria C) ptions •Return or Donate. An honorarium may be either returned unused to the provider or delivered to the State Controller. Either must occur within 30 days of receiving the honorarium. •Payments to Charitable Organizations. Sometimes an organization will offer to make a payment to a bona fide charitable, educational, civic, religious, or similar tax-exempt, nonprofit organization in lieu of an honorarium. This is okay if the payment is sent directly to the nonprofit (without (being first received by the official) and the official is not identified in connection with the payment. { . vA *":"*W1""°'� fA�gd'. { ' * � Rv .�° & •. ` ' k"r"'L` ,, �„}7y+3 ur y '"• a .._..... ,__. ..a. u'1: a �,e... . .. :. ..,.w .....,._.. ,_3a__.v. .. ......:.......u......_ss....,va P.,.».� .M....� __.. .«.. .... _ _., ...., .w,...,......w..a....._.«...... Misuse of Public Funds •Use of public resources for personal or political purposes *Every person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either: • Without authority of law, appropriates the same to his, her, or other's own use; or • Loans the same, makes any profit out of, or uses the same for any purpose not authorized by law; or • Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same, •Penalty: A felony, punishable by imprisonment in the state prison for two, three, or four ears, and is disqualified from holding office in this state (Penal Code §424) q g a y s �. -gym.. ... _. ;AA � "_� m.A20.-..�.S4e ! '», av#'.st. �ws...' +L... - a-.w.... �...�.�. _. � .�a.« w,. .z ...8 .....a.=. u..�.. .ba_.v�cw .n.= ....a�l.As Y�i_.z�a sue. �.maw�+uRe��i2 @a�. No Gift of Public Funds •Prohibition against using public funs for gifts (California Constitution, Article XVI, §6) •General Rule: An entity cannot expend money unless there is a public benefit. • Courts usually defer to the entity if they justify the public benefit through any findings. Mass Mailing Restrictions •Mass mailings featuring elected officials and sent at public expense are prohibited • More than 200 substantially similar pieces in a calendar month • Contains name, office or photograph of elected official. r 't '5 e d A 4 r d 8 Np PY A • fl. ° • 4'� Announcement of meeting or event FPPC Regulation 18901(b)(9)(A) concerns an announcement of any meeting or event. Under this exception to the mass mailings rule, the item g may not contain the elected officer's photo or signature and may include only a single mention of the elected officer • • Internet Communications Mass mailing prohibitions do not apply to Internet-related business communications. FPPC Advice Letter No. A-04-130 (July 13, 2004) (approving the inclusion of a mayor's welcome message on the city website). But: the prohibitions against "personal" or political use of public resources imposes limitations on what can be presented on a public agency website Cal. Gov't Code § 8314; Cal. Penal Code § 424. , it Transportation by Transportation Companies •Prohibition against acceptance of free or discounted transportation by transportation companies (California Constitution, Article XII, §7) *Failure to do so results in a forfeiture of office. •Compare with gifts of transportation by a non-transportation company. Personal Loans Restrictions •Restrictions on personal loans from city employees or contractors. • A local official may not borrow more than $250 from such persons. •Loans $500 or more must be in, writing if you are an elected official. •Example .. ,.., ._;.., ::. ,.,.... c° ,ro. ; ,,,: en e ad''++'a �w� ,•:„.. ,.�::'� �a'�. a ate:°°; ��,�A a �: t Y . a as s a�� Category 3 : Governmnt Transparency Laws •Statement of Economic Interests (Form 700) •Campaign Disclosure (Form 460) •Fundraising (Form 8.03) (common example is when an elected officer co-sponsor a charitable, governmental, or legislative event, such as a job fair or a conference on public policy issues, with outside sources) •Brown Act •Public Records Act Rationale for Government Transparency Laws • Public should be able to review the p ublic's business •Transparency fosters public trust . Statement of Economic Interests 700 ) •Transparency includes obligation for high level public servants to disclose financial interests • Assuming office • Annually while in office • Upon leaving office Campaign Disclosure ( Forms 460's ) •Form 460 •Transparency includes obligation for candidates to disclose campaign contributions. e"l° 1%.1• rc a bP y xi Fundraising Disclosure • Fundraising for charitable, governmental or legislative purposes "behesting disclosure" •Disclosure (Form 803) *Elected local officials •Donor makes payments totaling $5,000 or more in calendar year *Charitable, legislative or governmental purpose (not personal campaign) •Donation made in cooperation, consultation, coordination or concert with official •File within 30 days of donor's payment *See Form 803. Public Records Act (Government Code Section 6250) •Right to inspect and copy all public records • Applicable to City and any board, commission or agency • City may refuse request only for certain exemptions under the law. • Failure to respond, or withholding without an exemption, may lead to significant risk of exposure. gri g :r Public Records Act : What is A Public Record ' •Broad Definition : Any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form qr characteristics . . . • • • • - • • • • Public Records Act : What is A Public Record • Examples • Emails * Agendas • Reports • Salary ,T � a • °0.q a y • Public Records Act : Exemptions •Exemptions permit withholding or redaction of records. • Attorney-Client Privilege • • Information involving recipient of public services. • Certain types of police records • Certain types of personnel records. Laws re Fair Processes •Common Law Bias •Due Process •Incompatible Offices •Competitive Bidding Requirements •Anti-Nepotism a h .. edB�,^e j'�' e� f - .,..'s. ,fie C,�,�; q :i 'y ip' y f Td 8 t...3:. *8v:, a.��y`Ph F..,,�Yn4,�lAm \. a• 4 �a 3 Wu . . .3g 7 t ,r r.• ,p .r ° B f Rationale of Laws re Fair Processes •Public Officials should be impartial and exercise fairness in decisions, contracts and employment. Common Law Bias and Due Process •Due process requires the right to notice and the opportunity to be heard at hearings. •Officials are prohibited from participating in a decision where significant personal non-financial interests are at stake. 8,�$,;z °s�a �a`�,c s.:E s R a s Vii, ° Doctrine of Incompatible o • A public officer shall not simultaneously hold two incompatible public offices (Government Code §1099) •Issue Doctrine Seeks to Resolve: Conflicting loyalties & overlapping jurisdictions •Result: In order to prevent conflict, the law automatically forfeits the first position. • • •Competitive Bidding Req uirements • Rationale — Competitive bidding requirements • Contractors should compete for agency's business • Competition produces the best price for taxpayers • Prevents graft • Kickbacks prosecutable under federal fraud and extortion laws •Note — not every type of contract has to be competitively bid . • Compare Professional Services Contract (Experience and Qualifications) with Public Works Contracts P. .. ,i. _... _ 3.. .,. &w. 1.(0.4,;..x...1,..,.,1„.0,1.1 . .r Anti - Nepotism Laws • Disqualification from participating in decisions affecting family members • State law does not specifically address the issue of nepotism in local agency hiring decisions. • Local agencies may address this issue with their own code or policy. • Note: the appearance of nepotism may lead to complaints of unfair processes and distrust. • n .. THE BROWN ACT (Government Code Section 54950) THE PURPOSE To Foster Broad Public Access ". . .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." • • 6 .F'.., ". ># d �Y::y..,u l Y..' M? $ 2 t'R p 4Y: e}qp d BROWN ACT TRANSPARENCY DOES NOT MEAN CHAOS ! ! ! Brown Act • Requires meetings of local agency legislative bodies to be open and public • Applies to City Council and any permanent or temporary advisory or decision-making commission, committee, board, or other body, and standing committees •Meeting definition: • Majority of legislative body • Same time and location • Serial meetings (Example) BROWN ACT MEETINGS Brown Act Definition: When any congregation of a majority of the members of the body meet to discuss, deliberate, or take action on any item of business. Exceptions to definition of meeting: • Attendance of majority at other body's public meeting • Attendance of majority at purely social or ceremonial gatherings • Attendance at conferences • Attendance at community meetings BROWN ACT MEETINGS C. Brown Act Generally Does Apply to Subsidiary Committees: Commissions, committees and boards or other bodies of a local agency, whether permanent or temporary, decision making or advisory, created by ordinance, resolution or formal action of the body are subject to the act. D. Exceptions to the General Rule for Committees: Advisory committees, composed solely of the members of the board that are less than a quorum of the board are not subject to the act unless it is a standing committee which has a continuing subject matter jurisdiction or a meeting schedule fixed by ordinance, resolution or formal action of the body. a . _.°.. ,�._._..°, .g�._,_,n" _ _._.,•_.P..�:a,.e._._,P_pm..a.e:.',.,:.A�:s_..,i E.m,,`_.,.._� r N_..s. . , ( `*�°ad y d.a 5 • a . r° L : . $ Brown Act Meetings E. Serial Meetings Are Prohibited Serial Meetings Occur When: • A majority of the members • Outside a meeting • Use a series of communications of any kind, directly or through intermediaries • To discuss, deliberate, or take action on • Any item of City business that is within the subject matter jurisdiction of the body. swelsgawsz= 11..3% BROWN ACT MEETINGS F. Limit On Unilateral Communications While an employee or official may engage in separate conversations or communications outside of a meeting with other members of the body in order to answer questions or provide information regarding a matter of business, that person may not communicate to members of the board the comments or position of any other member or members of the Board. far � ...._`. �; `S.. ?. ' ".� ..::.. .., ., u.�. Yn' + E •J' r,,y3' x, 'qlr. ;�t. a+i u.' °,,"� k'$4t N; . t.. n;, s .'fit •;,�"•�'; *. ..e.K:, .; - ' ',. .. .P,. s b ...,_ ._.� _- �,..,,. 'm. r °zk .;- c.,n+ `` BROWN ACT MEETINGS G. Basic Requirements if Any Board Member Participates by Telephone: 1. All votes taken shall be by roll call. 2. Agenda must be posted at all teleconference locations. 3. Each teleconference location shall be identified in the notice and agenda of the meeting. 4. Each teleconference location shall be accessible to the public. 5. Members of the public shall have the right to address the board directly at each teleconference location. 6. A Quorum of the Board must participate from within the City's "jurisdiction". BROWN ACT NOTICE & AGENDA REQUIREMENTS A. General Rule: The agenda shall be posted properly in advance of a meeting and must include a brief description of items to be transacted or discussed. With a few exceptions, if an item is not on the agenda, the. Board cannot discuss it. .s ,. .. a. u ,° .::o.,,g. .a� as ,.*..a•.b �° .... ±" �,.;P c�.,:u°� '� e� d`"va Y._,...w. y,, r t. �.a.,. � ,.gF ",r�S a ,� h* �'w ,:`g Y :e'ti• & '� e :k .a._ �' ..�r, ., a, .u: :'#, <,'xa is .vs - ,,a $ *3a h. °�..;Ra. 4 R s ® � ao a..r«° � ea.:. 'end. �` sq .� � a. ��, r a• °.t� .� a � x ,. .�. �....,_ e__.p. .... ...... ....... .... ..,m .. e.._ _ _.... .® _ . ... ,_e,,. °..e ...... ... .e�:. .m. .. ,..,..._ ....._.>3...._...°....,,_.d......_e.,._ _.a .. ..v._.e.e_ ..n_., .. _f...,r..,e.._.... BROWN ACT NOTICE & AGENDA REQUIREMENTS Exceptions to the Rule: 1. Upon a determination by a majority vote of the Board that an "emergency situation" exists (54956.5) 2. Upon a determination by a 2/3 vote of the members of the Board or unanimous vote of those present if less than 2/3 of the members are present that: a) That there is a need to take immediate action; and b) The need for action came to the attention of the Board after the agenda was posted. ry v g BROWN ACT NOTICE & AGENDA REQUIREMENTS 3. The agenda item was posted for a prior meeting of the Board that: a) Occurred not more than 5 calendar days prior to the date action was taken on the item; and b) At the prior meeting the item was continued to the meeting at which action is taken. 4. Direction to Staff 5. Brief responses/Clarifying questions/Announcements 6. Discussion over future agenda items ,� :;�,;��° w HI". �`' 'Y °'' ,''.«`'mom`.� �, �,,�'..- ,:; ra`*y4 gyp.. �.;. -s i.,e.. ;;dg4• �A: �. ��='. a �r2�r�n, a��.a .'y. BROWN ACT NOTICE & AGENDA REQUIREMENTS C. Types of Meetings: 1. Regular meetings — Agenda posted 72 hours in advance 2. Special meetings — Agenda posted 24 hours in advance 3. Emergency Meetings — at least 1 hour. Brown Act NOTICE & AGENDA REQUIREMENTS D. Location of Posting 1. Posted in publicly accessible location for entire posting period within jurisdiction. 2. 2012 Revision to Law: If City maintains a website, agenda must be posted on website. E. Content of Agendas — Brief description of 20 words or less and public testimony time. F. Closed Session Agendas 1. Use safe harbor language 2. Provide oral notice in advance of closed session 3. Make public report of action taken in closed session and roll call vote or abstention of every member, if any. Y tia. . :� - n ° p '�a .?t?7` " >. ,.i 3 �k k}Y^a",p .,;..fir .., i" :fr:r 4 4° ? s .., s� . ,?€ ;, m $Y� $� 'du� ��, .qJ�'•°'-' ��s d4 �., a, u i n . Brown Act NOTICE& AGENDA REQUIREMENTS H. A Word on Board Minutes 1. Include all material motions and votes 2. Codify a process for preparing, adopting and distributing minutes Brown Act NOTICE AND AGENDA REQUIREMENTS IV. WHAT ARE THE PUBLIC'S RIGHTS? A. Public testimony • Addressing disruptive speakers? B. Taping or broadcasting C. Conditions of attendance D. Non-discriminatory facilities E. Copies of agendas and other public writings. • g�pA� �e. . °,.`u:k � a 8" �w ,� 5�, ,`�`saC��B�`A• .� �*,r op "" af, a Public Orals Gov't Code 54954.3(a): Every notice for a general and special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item, e BROWN ACT NOTICE AND AGENDA REQUIREMENTS V. WHAT ARE THE PERMISSIBLE CLOSED SESSIONS? Confidentiality requirement No Board member, staff member or invitee may disclose information from closed session without the authorization of the Board. B. Authorized Closed Sessions 1. Personnel — Caveat - 24 hour written notice to employee if complaints and/or charges will be heard. 2. Real estate negotiations 3. Labor negotiations 4. Public security exception 5..Co.nfe r_ence_with_l.egaLco.u.ns.el --- ,' o ,w.%a-. , � :9 - :i+•.�: ..� .&*', e ...,—iu.:4 "k, 4 P 4 x .,Ryyt p S:.a.,S .. ,.t. � µ.J ' ,3ec�Cai.�. x s '� ...;�'�„ „'•t-r- -. ,. .4 - •� �y�,t. �� .-$�-w`� " r;.. '�c .e. '1.�. S „ .p o�. is i:,:,` H �} e fi BROWN ACT NOTICE AND AGENDA REQUIREMENTS VI. WHAT ARE THE PENALTIES & REMEDIES FOR VIOLATING THE ACT? A. Penalties — Criminal penalties apply if a 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 Act. — Civil Remedies — Injunctive relief may be obtained or action declared null and void after failure to cure violation. BROWN ACT PENALTIES & REMEDIES B. Notice and Demand for Cure for Alleged Current or Future Violations of Law 1. Generally, written demand for alleged open session violations must be made within 30 days. 2. Otherwise demand must be made within 90 days. 3. Legislative body must cure within 30 days or notify the demanding party that it will not cure 4. Demanding party can initiate litigation to compel compliance and if successful, may be awarded attorneys fees and court •.... .i ,4..... i •.Y":'x'n'.,.,:' _, l..a r:'. E^'ee,,. . y:.r . "... .•l'ie• BROWN ACT PENALTIES & REMEDIES C. NEW LAW as of 2013 Relating to Process for Challenging Past Actions: 1. Prior to filing an action the DA or private party must send cease and desist letter within 9 months of the alleged violations (not applicable to actions occurring before 1/1/13). 2. Plaintiff entitled to legal fees if they prevail. 3. This reflects change in Brown Act enforcement. BROWN ACT COMPLYING WITH CALIFORNIA CONFLICT OF INTEREST LAWS Complying with California Conflict of Interest Laws A conflict of interest arises when an individual who has a private financial interest in the outcome of a contract or a public decision, participates in the decision-making process or influences or attempts to influence others making the contract or decision. • Political Reform Act (PRA) • Government Code Section 1090 • Corporations Code Section 5233 (anti-self dealing transactions) ma e e s 'a s e w '� �_... _ e .,_�,. �._.a �..`,.,. b..' �_.o Robert's Rules of Order Henry Martyn Robert was an engineering officer in the regular Army. He presided over a public meeting being held in a church in his community and realized that he did not know how. He tried anyway and his embarrassment was supreme. This caused him to write Robert's Rules of Order, as it came to be called (see chart of editions below). TI I1 >EDITI033S OF T3FITS 240 A-T H-C^,C:KF--'i' I-4 AID a:T A 7..ntis 1-ircC Eciocic> F.: :wen try 1 876 C3.Sx.l?DEL PC)B.L}ELISEHZA.1 IVE, Sccc:+rsd Ec iri.oca lastly 1.876 .hSSY:2•7131,..HFS iru'1 1-c1'r ric+ta 189 74 icmcc..r,c r¢Netom: ' 1c •1s.t,.-r-s act a_t-_s < I O1LL3E14L) Foam tre.its 10.cl:ition 1.91 S (CC&, l. b. s• v.rrl�d uxd. s c,.:.-c�.,r s.+.i�r��e c.• xsc>r02.112:i^s-azvs_a:s oriv-a,na1:eaa rta�ovl f3 it E2.H7V1SEL> EiE•t1'z t.dis:io rm. 1943 Six r1s ]E■ ition 19S 1. .`JCVC-.xi YAs 1,dvtiozs 1 J70 {'F..,[nrt,v-0,. ctann awY>totc9 „nd ttxtattr•recast to tsc n.octc Ei�;lstl� .11.clitiban. 1S1S H tkt Esditi.mn I-519 CS R4&xI,FZ'i"S 1Y.L7L1E3 Tcrsc1t Jd.iricsrt =00.0 .CD. •C71;r3FLL N7EL'4 L._Y 7L2RL3VISI-.1D:l F:Ll ti1 —r1flI-S i r>17.`I c, .2 o.$T {Si;rzniBC.iniCy-cc-c.86tect t:rcitn,cnt O'f ninny tog,iC.-) llt1!CE11.1YlYC t'es a.]C.Y 6F crC3ct.'Sri CE gtt mil_.crr"_s Ats7c..: o:E-4rcl.os 23.cxietcd .2%.%can,. TAsan Pivc and.at:TZcci1 ltZi115+4zx Corgsacs :ia1 rri:c1'C Robert's Rules : Making a Motion How the Motion is Brought before the Commission: • The member makes the motion: I move that (or "to") • Another member seconds the motion: I second the motion or I second it or second. • The chair states the motion: It is moved and seconded that ... Are you ready for the question? • Consideration of the Motion • 1. Members can debate the motion • 2. Before speaking in debate, members obtain the floor by seeking permission from the presiding officer • 3. The maker of the motion has first right to the floor if he/she claims it properly • 4. Debate can be closed only by order of the assembly (2/3 vote) or by the Presiding Officer • The presiding officer puts the motion to a vote • 1.The presiding officer asks:Are you ready for the question? If no one rises to claim the floor, the vote proceeds • 2.The presiding officer says:The question,is on the adoption of the motion that ... • 3. The presiding officer announces the result of the vote. °� ... :, ° '�..,,, °. ,_.�;' �. Et t ,� �s 'z at "S , R° . .� a s:ro ,aa � a °Po �. �a gha gyre ka'" . .� ^� .to'. e Paa °s qp ^y e . _ ... .. _.: _. . Robert's Rules : Amending a Motion AMENDING A MOTION You want to change some of the wording that is being discussed: • After recognition, "Madame Mayor/Chair, I move that the motion be amended by striking out the following words, , and adding in their place the following words • If it appears to the chair/initial-motion-maker that an amendment (or any other motion) is uncontroversial, it is proper for the chair to ask if there is "any objection" to adopting the amendment. If no objection is made, the chair may declare the amendment adopted (some refer to this as a "friendly amendment"). • If there is any objection, it must be seconded. • Is debatable if the motion to which it is applied is debatable. (Permissible debate is restricted to the pros and cons of the amendment, and not to whether the main motion has merit.) • Can be amended, but only one amendment to an amendment can be considered at any one time. • Requires a majority vote for adoption, even if the main motion requires a different vote for its adoption. • LMC 2- 1 . 5 Rules Of Decorum For City Meetings Robert's Rules Of Order: the City's meetings shall be governed by "Robert's Rules Of Order, Newly Revised", ninth edition, except for those matters and issues specifically governed by the LMC. • If there is a conflict between "Robert's Rules Of Order, Newly Revised", ninth edition, and the LMC, regarding any issue relating to meeting procedures, the LMC provisions shall prevail and control. • No action shall be invalidated by the failure to observe or follow Robert's Rules u: +fiy� s, + „e ,i`:+^' .;x ✓ sr ✓ r x 51 Pd `�ktis LMC 2 - 1 . 5 Rules Of Decorum Addressing the City Council/Committee: A person wishing to address the City Council/Committee regarding an item which is on the meeting agenda: ■Submit a request on any form provided, or such person may seek recognition from the presiding officer prior to or during discussion of any such item. •Persons wishing to discuss a non-agenda item may seek recognition from the presiding officer during the second "public oral communications" portion of the meeting. •Each person shall state his or her name and address; the organization, if any, which is represented •Each person addressing a specific agenda item shall confine his or her remarks to such agenda item •remarks of each person addressing non-agenda items shall be limited to three (3) minutes, unless additional time is granted by the presiding officer ■All remarks shall be addressed to the body as a whole and not to any single member thereof, unless in response to a question from such member .''a 'n "f°,,,n C;4; ` '. +fit 4=;s3nYn„ fir/r••y -sr, ;:'. �' • E- mails/Correspondence Should the emails and correspondence be read aloud during Meetings? No. The Presiding Officer, however, has discretion to read emails and correspondence during the "public oral communications" portion of the meeting. The emails and correspondence read must follow the City's Rules of Decorum. Do the e-mails and correspondence get noted in the minutes? The City Clerk or Presiding Officer should announce that X number of emails and/or correspondence were received for the record, and the Minutes will reflect that X number of e- mails were received. Do the e-mails get attached to anything such as the minutes? No. E-mails and correspondence are not attached to the minutes. E-mails and correspondence will be maintained as supplemental material in some archival form by the Clerk following the conclusion of the meeting. . �r t `�.>^e;..a..tM1,d,:d..3.�.aa. ..,.a4. ,.�.« .,.� .;. A. . , ,«m a ua ,. - "+.744:4#631 u _.. 6.,... ..>� ..,. ., �.>.e. ... CUP/VARIANCES CUP: A Conditional Use Permit is required for uses typically having unusual site development features or operating characteristics requiring special consideration and conditions so they may be designed, located, and operated compatibly with neighboring properties. VARIANCES Variance: • is a request for a deviation from the Zoning Code for a particular development standard because of unusual circumstances associated with a particular site. • Some examples of types of variances are for building height and parking. • No variances to the land use classifications of the Zoning Code are allowed. Both CUPs and variances require noticed public hearings with a review by the Planning Commission. A decision to approve or deny an application is based on the findings of fact contained in the Zoning Code. . Public Hearing Process Applicants and members of the public who wish to speak on an item shall fill out a card showing their name and address and deliver it to the staff. The following order shall be followed in the conduct of public hearings: 1) Staff presentation 2) Presentation by Applicant 3) Planning Commission questions of Applicant [4) Presentation by person contesting application, if applicable, and questions by Commissioners of any objector] 5) Open public hearing for comments 6) Planning Commission questions of staff, public, applicant. Final comments by Applicant 7) Closing of Public Hearing 8) Planning Commission discussion, vote, and decision .. e '§„”?>. -.„ +8 •:' n ,nx's"+' -$ - t a ,a y 5 Y.r•, +v.., '�"y,�$ .a ; a m.. r' � Quasi-Judicial Role Quasi-Judicial Role When the Planning Commission is called upon formally to hear facts and make a decision, the Commissioners are performing a quasi-judicial function since this is similar to what judges do in court. This duty most commonly arises for requests for variances and conditional uses. a Y uasi - ud icia l decision - making� 1 Quasi-judicial decision-making requires applying the law to the facts and coming to logically supportable decisions. •It is the duty of decision makers to weigh facts and determine their probative value. •A staff report should identify the relevant facts available at a given point in time. •Neighborhood opposition to a project, standing alone without reference to facts relevant to the decision, is not a legitimate basis for denial of a land use application. •Likewise, unsubstantiated opinions have little value. •Quasi-judicial hearings are not popularity contests, but forums for gathering relevant facts that bear upon the decision criteria stated in state law and local codes 7 r 1z Administrative Record • Ensure clear transcript • Describe each document being considered--References to maps or other exhibits should be clear • No rattling of papers by microphones • Decision makers should not be whispering to each other during the hearing • Decision makers should be serious and respectful at all times, no joking x;: Sx ., . ,.. ,.,.' .,i.> �'�.'�, ,.,� . ,v5 a::.,o, 4 .,... :... ��. • ... . ,,b.5.$a >.:.�.: ..,. �,.� k " .�*.. `� .:,+. �a° .?;a �;,� °a. r� ,-e': 4d a8 F °w '� $ r' '�,. oe` �? a %a � � � L ne a $ �r�•rL ? �� a � LMC 25- 130-5 : CUP 25-130-5: BASIS FOR APPROVAL OR DENIAL: Required Findings: A. That the proposed conditional use is consistent with the general plan; B. That the nature, condition, and development of adjacent uses, buildings, and structures have been considered, and that the use will not adversely affect or be materially detrimental to these adjacent uses, buildings, or structures; C. That the site for the proposed conditional use is of adequate size and shape to accommodate the use and buildings proposed; D. That the proposed conditional use complies with all applicable development standards of the zoning district; and E. That the proposed conditional use observes the spirit and intent of this zoning code [MC 25- 135-6 : Variances Required Findings: A. That there are exceptional or extraordinary circumstances or conditions applicable to the property which do not apply generally to other properties in the same vicinity and zone; and B. That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same vicinity and zone, but which is denied the property in question; and C. That the granting of such variance will not be materially detrimental to the public welfare or injurious to properties or improvements in the vicinity; and D. That in granting the variance, the spirit and intent of this zoning code will be observed; and E. That the variance does not grant special privilege to the applicant; and F. That the variance request is consistent with the general plan of the city of Lynwood. .;r `}'kz.::}� r 's ..,.+ }$� ... �,° ��", . ,.�'g�'.g„,q. a •wE• ' �'o°. � � 'e"w...M f �, 4 :,• °"� a Appeal The decision shall become effective thirty (30) days after the adoption of the resolution, unless an appeal has been filed with the city council. (Ord. #1563, §3)