HomeMy WebLinkAboutPost-Meeting Agenda Package - CCS_Feb16_2023 (1)
SPECIAL MEETING OF THE CITY COUNCIL
**POST-MEETING AGENDA**
Date:Thursday, February 16, 2023, 5:30 p.m.
Location:Council Chambers, 276 Fourth Avenue, Chula Vista, CA
Notice is hereby given that the Mayor of the City of Chula Vista has called and will convene a special meeting
of the City Council at the time and location stated on this agenda.
View the Meeting Live in English & Spanish: chulavistaca.gov/councilmeetings
Cox channel 24 in English only
PUBLIC COMMENTS: Public comments may be submitted to the City Council in the following ways:
In-Person. The community is welcome to make public comments at this City Council meeting. •
Submit an eComment: Visit www.chulavistaca.gov/councilmeetings, locate the meeting and click the
comment bubble icon. Select the item and click "Leave Comment." eComments can be submitted
until the conclusion of public comments for the item and are viewable online upon submittal. If you
have difficulty submitting eComments, email comments to: cityclerk@chulavistaca.gov
•
HOW TO WATCH: Live stream is available at www.chulavistaca.gov/councilmeetings. To switch the video to
Spanish, please click on "ES" in the bottom right hand corner. Meetings are available anytime on the City's
website (English and Spanish).
ACCESSIBILITY: Individuals with disabilities or special needs are invited to request modifications or
accommodations to access and/or participate in a City meeting by contacting the City Clerk’s Office at
cityclerk@chulavistaca.gov or (619) 691-5041 (California Relay Service is available for the hearing impaired
by dialing 711) at least forty-eight hours in advance of the meeting.
Pages
1.CALL TO ORDER
2.ROLL CALL
3.PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE
4.WORKSHOP
City Council workshop items typically consist of presentations and deliberation of a longer
duration than items considered at the regular Tuesday City Council meetings. Unless
otherwise noticed on this agenda, action is limited to referring matters to staff.
4.1 California's Open Meeting Laws and Ethics Requirements: Training and
Discussions on Transparency and Good Conduct for Public Officials in
Compliance with AB1234
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Department: City Attorney and City Clerk
Environmental Notice: The activity is not a “Project” as defined under Section
15378 of the California Environmental Quality Act State Guidelines; therefore,
pursuant to State Guidelines Section 15060(c)(3) no environmental review is
required.
RECOMMENDED ACTION:
Hear and participate in the training on California's open meeting laws (the Brown
Act), ethics requirements, transparency, and good conduct for public officials led
by City Attorney Glen Googins.
5.ADJOURNMENT
to the regular City Council meeting on February 21, 2023, at 5:00 p.m. in the Council
Chambers.
Materials provided to the City Council related to an open session item on this agenda are
available for public review. Please contact the City Clerk at cityclerk@chulavistaca.gov or
call (619) 691 - 5041.
Sign up at www.chulavistaca.gov to receive email notifications when City Council
agendas are published online.
City of Chula Vista City Council
February 16, 2023 Post Special Agenda Page 2 of 117
AB 1234 TRAINING
General Ethics Principles, Conflicts of Interest,
Perquisites of Office, and Government Transparency
February 16, 2023
Glen R. Googins, City Attorney and
Megan McClurg, Deputy City Attorney
with contributions from and thanks to City Clerk Kerry Bigelow
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AB 1234
HOUSEKEEPING
1
You MUST be signed in1
You must be present for the full
training 2
You will sign and receive your
certificate at the end of the training3
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PRESENTATION
OUTLINE
I. General Ethics Principles
II. Conflicts of Interest Laws
Financial, Contractual, Campaign Contributions, When Leaving Office
III. Perquisites of Office
Gift Limits, Honoraria Ban, Loans, Use of Public Funds, Mass Mailing and Transportation-Related restrictions, Bribery
IV. Government Transparency Laws
Form 700, Brown Act, Public Records Act
V. Fair Process Laws
Common Law Bias, Due Process, Incompatible Offices, Competitive Bidding, Anti-Nepotism
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I. GENERAL ETHICAL
PRINCIPLES
BROWN ACT
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ETHICS
DEFINED
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From the Greek "ethos" meaning
"character"
Now commonly understood to mean the
beliefs or ideals that characterize a
community, nation, or ideology
For our purposes: the laws and guiding
principles that govern and encourage
good conduct by public officials and
employees
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ETHICS CHALLENGES
-PUBLIC PERCEPTION-
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ETHICS CHALLENGES
-HUMAN NATURE-
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“The church is close, but the road is icy. The tavern is
far, but I will walk carefully.”
-Russian Proverb
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ETHICS CHALLENGES
-THE WORLD IS COMPLICATED-
There are A LOT OF RULES and it’s not always easy to
understand how and when they apply to any given
situation
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City of Chula Vista
CODE OF
ETHICS
8
In 2013 the City formalized its Code of
Ethics with an amendment to CVMC Chapter
2.01
The Code applies to the Mayor, the City
Council, all Boards and Commission
members, and all Senior City Management
The Code is divided into two categories-
“Guiding Principles” and “Specific
Prohibitions”
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Code of Ethics
GUIDING PRINCIPLES
Thirteen Guiding Principles (plus three more for the Board Of Ethics)
Designed to provide standards for good conduct and fair and impartial decision-making
Key Principles Include:
Acting in the best interests of the public
Putting the public’s interest above one's own personal interests.
Protecting and enhancing the image and reputation of the City
Awareness of one's financial interests to ensure that such interests do not influence one's City related conduct or actions
Avoid even the appearance of a conflict of interest
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Code of Ethics
SPECIFIC PROHIBITIONS
Thirteen Total Prohibited Acts
Designed to Provide Clear Rules of What Constitutes Unethical Behavior
Key Prohibitions Include:
Using one's office for personal gain
Use of City property for unauthorized/personal uses
Within 12 months after leaving the City appear for compensation before the City representing a private interest
Endorse or recommend for compensation a commercial product or service in the name of the City
Coerce a subordinate or other City employee to engage in political activities
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Code of Ethics
PRACTICE TIPS
Practice Tips:
1.Know and abide by the Code of Ethics
2.Always place the public’s interest above your own
3.If in doubt, ask for legal advice
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II. CONFLICTS OF
INTEREST
BROWN ACT
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Political Reform
Act
FINANCIAL
CONFLICTS
OF INTEREST
Government Code
section 87100, et seq.
14
Officials should perform duties solely in the
public’s interest, not to further their own
financial interests.
General Rule: Public officials shall not make,
participate in making, or attempt to influence
a governmental decision in which they or their
immediate family have a financial interest.
If there is a disqualifying conflict, recusal is
required
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Political Reform
Act
WHO IS A
PUBLIC
OFFICIAL?
15
A Public Official is every
Member
Officer
Employee
And certain consultants
of a state or local agency
Government Code section 82048
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Political Reform ActWHAT DOES IT MEAN TO HAVE A ROLE IN A GOVERNMENTAL DECISION
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Making
•authorizing, directing, voting on, or committing the agency to the decision
Participating in Making
•providing info, opinions, or a recommendation for the purpose of affecting
the decision
Attempting to Influence
•contacting any official in the agency for the purpose of affecting a decision
or contacting another agency on behalf of your agency
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Political Reform Act
WHAT IS A
FINANCIAL
INTEREST?
Financial interests include:
•Business Entity: if over $2,000 interest or management position
•Real Property: if over $2,000 interest (or within 500 feet of subject of decision)
•Source of Income: if over $500 within 12 months of decision
•Source of Gifts: if over $500 within 12 months of decision
•Personal Financial Effects: personal incomes, expenses, assets, or liabilities of the official or immediate family
•Campaign Contributions: if to Councilmembers or Planning Commission members in excess of $250 within 12 months*
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Political Reform Act
FPPC FOUR-PART TEST
The FPPC has created a four-part test to determine if a conflict exists:
1.Is it “reasonably foreseeable” that the decision will have a financial effect on any of the public official’s financial interest? If NO, there is no conflict. If YES, proceed to Step 2. [Reasonably foreseeable is defined in Regulation 18701]
2.Will the reasonably foreseeable financial effect be material? If NO, there is no conflict. If YES, proceed to Step 3. [Materiality standards are found in Regulation 18702]
3.Can the public official demonstrate that the material financial effect on the public official’s financial interest is indistinguishable from the effect on the public generally? If YES, then there is no conflict. If NO, then there is a conflict, and the public official must not participate unless an exception applies. [Public generally is defined in Regulation 18707]
4.Does an exception apply?18
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Political Reform Act
PRACTICE TIPS
Practice Tips:
1.Know your financial interests
2.Ask yourself whether the decision impacts (in any way) your financial interests
3.If a conflict exists, do not participate in, discuss, or influence the decision. Disclose the basis for recusal and leave the room.
4.When in doubt, seek legal advice and consider recusal
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CONTRACTUAL
CONFLICTS OF
INTEREST
Government Code
section 1090
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Government Code section 1090 prohibits self-
dealing in government contracts
Basic rule: A public official may not make or
participate in making a contract in their official
capacity if they have a financial interest
If a public official who has a financial interest
makes a contract, the contract is void and
penalties apply.
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CONTRACTUAL CONFLICTS OF INTEREST Government Code section 1090
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Govt Code 1090 applies to officials, members/officers, employees, and
sometimes consultants.
When Govt Code 1090 applies to a legislative body member, the entire
body is precluded from entering into the contract unless an exception
applies.
For employees and advisory body members, full abstention and recusal is
usually sufficient.
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CONTRACTUAL CONFLICTS OF INTEREST
Government Code section 1090
Applies to all contracts
Making a contract includes more than just voting on it
Financial interest is broadly defined
Direct or indirect
Positive or negative
Exception for remote interest in certain cases
Fact specific –seek legal advice
Limited Rule of Necessity
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Contractual Conflict of
Interest
PRACTICE TIPS
Practice Tips:
1.Ask yourself whether you will personally gain or benefit from the contract
2.Seek legal advice (this can be a tricky area)
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Conflict of Interest
CAMPAIGN CONTRIBUTIONS
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New law took effect
January 1, 2023
(SB 1439)
Councilmember or Planning
Commissioner prohibited from
participating in a decision if
received a campaign contribution
from party or participant in excess
of $250 within prior 12 months*
Councilmember or Commissioner
must return contribution or
disclose campaign contribution
conflict and recuse.
Councilmember or Planning
Commissioner prohibited from
accepting a campaign
contribution from party or
participant in excess of $250 for
12 months after decision
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Conflict of Interest
CAMPAIGN
CONTRIBUTIONS
PRACTICE TIPS
Practice Tips:
1.Review the agenda for potential conflicts
2.Be vigilant for conflicts with participants who have a financial interest and advocate for or against the decision
3.Seek legal advice (this is a new area!)
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Conflict of Interest
WHEN LEAVING OFFICE
No Lobbying Rules
GC 87406.3 provides Elected Officials and City Managers are prohibited for a period
of one year after leaving office, from representing any other person, for
compensation, by appearing before or communicating with their former agency to
influence the decision of the agency in an administrative or legislative action
CVMC 2.01.030(C)(6) provides a similar prohibition for Board and Commission
members
No Influencing Prospective Employment
GC 87407 provides no public official shall make, participate in making, or use his or
her official position to influence, any governmental decision directly relating to any
person with whom he or she is negotiating, or has any arrangement concerning
prospective employment 28
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Conflict of Interest
WHEN LEAVING
OFFICE
PRACTICE TIPS
Practice Tips:
1.Be aware that after leaving office
compensated lobbying prohibitions
apply
2.When participating in any City business
or decision, you should not be seeking a
future employment relationship with the
person or party before you
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Conflict of Interest
HYPOTHETICAL SCENARIOS
(1) A Planning Commission member is going to vote to approve a development on a property owned by her sister. Can the Planning Commission member vote on the decision to approve the development agreement?
(2) The City is considering building a park on City property on the opposite side of a street that borders a Councilmember’s backyard. Can the Councilmember vote on the decision to build the park?
(3) The City Council is voting on a contract to install solar panels on City facilities. A Councilmember who co-owns the solar company recuses herself from participating or voting to approve the contract, and the contract is awarded. Is the contract valid?
(4) Ben Boogins served as City Attorney from June 2018 -July 2022. In September 2023, a cigar store owner asks Ben to represent the business in its tobacco license revocation hearing before the City’s hearing officer. Can Mr. Boogins represent the cigar store owner?
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BRIBERY
Penal Code section 68
31
Bribery is the act of requesting, accepting, or agreeing to
receive money or any other consideration in exchange for one's
vote or action on any matter.
It is a felony under both state and federal law.
Under state law, the crime of bribery can result in prison time
(2-4 years), fines, the loss of one's public office, a ban on
holding future public office.May also result in loss of
retirement benefits (PEPRA).
Convictions under federal law can result in prison time of up to
15 years.
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III. PERQUISITES OF
OFFICE
BROWN ACT
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WHAT IS A GIFT?
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Any payment or other benefit provided to an
official that confers a personal benefit for
which the official does not provide goods or
services of equal or greater value
Includes a rebate or discount in the
price of anything unless the rebate or
discount is made in the regular course
of business to members of the public
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DISCLOSURE
OF GIFTS
Government Code
sections 89503, et seq.
Public officials must not be unduly
influenced by gifts
If you are a designated public official,
state law requires you to keep track of
and disclose in an annual report gifts
you have received in your capacity as a
public official
Designated public officials must report
all gifts received from a single source in
12-month reporting period on Form 700
if aggregate value of gift(s) is $50 or
more
FPPC has a gift tracking app that filers
can use (stores data locally on your
phone so that you can later enter it into
your Form 700) –www.fppc.ca.gov
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LIMITATIONS
ON GIFTS
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There is also a limit on the value of gifts you
may receive from any one source
Current limit: $590 in 12-month period
If you accept gifts in excess of $590 from a
single source:
You have violated the Political Reform Act
and are subject to civil and criminal
penalties
You are deemed to have a disqualifying
economic interest in any matter involving
the gift giver and you may not participate
in such matter
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GIFT
EXCEPTIONS
(not a gift)
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Gifts returned, donated, or reimbursed within 30 days
Gifts from family members or inheritance
Admission to a paid event where the official makes a speech
Admission to a paid event where the official performs a ceremonial role
Informational material
Gifts of home hospitality provided to the official
Two tickets to a political or 501(c)(3) organization fundraiser provided by the
organization
Personalized plaques or trophies valued at less than $250
Campaign Contributions (special rules apply)
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GIFT LIMIT EXEMPTIONS
(exempt from $590 limit)
Wedding gifts
Some gifts of travel within the
United States (including travel
within California)
More information later regarding
special rules for travel gifts
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GIFTS –
PRACTICE
TIPS
Be wary of gifts.
Keep track of gifts to facilitate and
assure accurate reporting.
Assume a higher value. If close to limit,
decline or return. If close to reporting
requirement, disclose it.
If you discover something you forgot,
amend your Form 700.
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BEHESTS
Government Code section
84224
A “behest" occurs when a person donates for charitable, governmental, or legislative purposes on behalf of or in response to a solicitation by an elected official
Disclosure required
When solicited by an elected official
Donor makes payments totaling $5,000 or more in a calendar year
Must disclose on Form 803 and file paper with the City Clerk within 30 days of donor's payment
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HONORARIA
Government Code
section 89502
Elected Officials, Candidates for Elective Office, Planning Commissioners, the City Manager, and the City Finance Director shall not accept any honorarium
A designated employee (see City Clerk’s website) shall not accept an honorarium from any source if the employee would be required to report the receipt of income or gifts on their Form 700
“Honorarium”: any payment for a speech, article published, or mere attendance at an event such as conference or meeting
Exceptions—for certain specified professions and charitable donations
Can give back or donate to City within 30 days to avoid violation
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MISUSE OR
UNLAWFUL
GIFTS OF
PUBLIC
FUNDS
Chula Vista Code of Ethics, Guiding Principle
City officials must strive to protect the public’s resources through diligent and judicial management and should not engage in or condone waste of City funds or property
Chula Vista Code of Ethics, Specific Prohibition
City officials may not use or permit the use of City resources for unapproved non-City activities
Penal Code section 424 and Government Code section 8314 make it unlawful to use public funds for personal or campaign activities
Public funds include money, equipment, supplies, compensated staff time, use of telephones, computers, fax machines, etc.
Violations may be charged as felonies or misdemeanors; violators may be fined, sent to jail, and/or barred from holding public office
California Constitution Article XVI, Section 6, prohibits gifts of publics funds
All public funds should be used for public purposes
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MASS
MAILINGS
Government Code
section 89001
43
Mass Mailings by an elected official using public funds are prohibited.
Mass mailings are defined as:
1. Tangible item delivered, by any means, to a person's residence, place of business, or post office box;
2. Where the tangible item either:
Features an elected officer affiliated with agency which produces or sends the mailing; or
Includes the name, office, photograph or other reference to an elected official with the agency that produces or sends the mailing;
3. Where all or any portion of the cost is paid for with public monies; AND
4. More than 200 substantially similar items are sent in a single month
Note: No current FPPC rule prohibits mass transmission of electronic communications. But still must be aware of prohibitions on use of office/ public funds for political purposes in Penal Code 424 and Govt. Code 8314
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MASS
MAILING
RULES 60
DAYS BEFORE
AN ELECTION
SB 45/Government
Code Section 89003
Sixty 60 days before an election an Elected Official cannot provide as a mass mailing the following:
An item where the Elected Official’s name appears in letter head (including roster type listing) or logo on stationary or forms, including “For Your Information” or “Compliments of” cards or stamps
An announcement of a meeting or event that:
Is sent to the Elected Official’s constituents, related to Elected Official’s duties, held by the Elected Official, and which the Elected Official plans to attend
That is an official agency event or meeting where the agency is proving the use of a facility or financial support
A business card
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TRAVEL,
LODGING, &
EXPENSE
REIMBURSEMEN
T
Government Code section
89506
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General Rule:
•Payment for travel, lodging, and reimbursement for
expenses are considered gifts under state law subject to
reporting requirements and limits.
Exceptions:
•Payment from another state, local, or federal agency or
non-profit as part of the employee’s official duties for
education, training, interagency programs of purposes
•Travel expense reimbursements where travel is for official
agency business and reimbursements are paid by the
agency
•A payment for travel that constitutes a lawful and
reported (as required) campaign contribution
•Payment from another government agency or non-profit
to reimburse travel where the official is giving a speech
or presentation
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TRAVEL GIFTS
FROM
TRANSPORTATION
COMPANIES
PROHIBITED
Cal. Const. Art. XII §7
California Constitution prohibits gifts of
travel to certain public officials by
transportation companies (dates back to
days of California Southern Pacific
Railroad’s activities in 1900’s)
Prohibition does not apply to employees
Applies to interstate or foreign carriers
Applies regardless if travel is for personal
or official business
Violation will result in forfeiture of office
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LOANS
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All Form 700 Filers must disclose loans received from
other persons
Loans from commercial banks, lending institutions, or
from close family members do not have to be
disclosed
Loans over $250 from other City employees, or
from parties with whom the City contracts are
prohibited
A personal loan over $500 to an elected official must
be in writing and set forth key terms
Practice Tip: Avoid loans from people or companies
with City business
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Perquisites of Office
HYPOTHETICAL SCENARIOS
1) The City contracts with an insurance carrier to provide liability insurance for the City and its employees. The insurance carrier holds an annual client appreciation day at Disneyland, and reaches out to offer City’s insurance manager a ticket valued at $500 for the experience. Can the insurance manager accept the ticket?
2) A jewelry shop makes a limited-edition be-jeweled Chula Vista lapel pin. The owner reaches out to the mayor and council to offer them the first opportunity to purchase the pins at a discount. Can they purchase the item? What if the lapel pin were of nominal value?
3) On a workday afternoon, a Fire Deputy learns a mountain bike he’d had his eye on is available to purchase at a local store, but only one is left and his car won’t fit it. He asks the Fire Chief if he can help him out by picking up the bike in the Chief’s City-issued truck and transporting it to the Deputy’s home in Temecula as soon as possible. Can the Fire Chief do this?
4) A Councilmember is running for re-election. His campaign manager comes by City offices to check in and offers to send mass campaign emails with the Councilmember’s picture to constituent voters from the Councilmember’s office computer while the Councilmember is in meetings. Is this prohibited?
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IV.GOVERNMENT
TRANSPARENCY
LAWS
BROWN ACT
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FORM 700
FINANCIAL
DISCLOSURE
Government Code
Section 87200
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Public Officials (elected and appointed officials
& manager level employees) are required to
disclose specified financial information
Filed on a Form 700 –Statement of Economic
Interests
The Form 700 must be completed and filed
with City Clerk when assuming office, annually,
and upon leaving office (NetFile System)
Publicly available on the City’s Website
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Form 700
DISCLOSURE
CATEGORIES
CVMC 2.02.030 contains Chula Vista’s Conflict of Interest Code
7 Disclosure Categories
Employees in positions that involve making or participating in the making of City decisions that may foreseeably have a material effect on the employee’s or employee’s family’s financial interest are listed on “Designated Employees” for purposes of the Political Reform Act
Each “Designated Employee” must file a Form 700 that includes the disclosure categories associated with their position
Updated Designated Employee and Categories list can be found on the City Clerk’s website and your individualized categories are identified when you log into your NetFile account
Our local Conflict of Interest Code must be amended when new positions are created or position responsibilities are changed, but at a minimum, must be reviewed every two years
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Form 700
REPORTING REQUIREMENTS
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•Income (except govt. income)
•Real Property (except primary residence)
•Investments
•Business Positions
•Loans (except institutional loans)
•Gifts ($50 or more from a single source in calendar year)
•Travel Payments
•Business entity ownership -10% interest or greater
Depending upon the public official’s designated categories, some or all of the following must be reported:
Rules can be complex. Consult Form Instructions or FPPC for guidance (http://fppc.ca.gov/)
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Form 700
REPORTABLE AND NON-REPORTABLE INTERESTS
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Form 700
UPCOMING FPPC FILER TRAINING
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THE RALPH M. BROWN ACT BACKGROUND
Authored by Ralph M. Brown, an
Assemblyman from Turlock, CA
Enacted by the California State
Legislature in 1953 in an effort to
safeguard the public's ability to obtain
access to and participate in local
government meetings and
deliberations
Originally a 686-word statute
Now Contained in California
Government Code §§54950-54963 57
Ralph M. Brown
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City of Chula Vista City Council
February 16, 2023 Post Special Agenda
The Brown Act
CORE PRINCIPLES
Local agencies can only
deliberate and take actions at
public meetings
Public must be notified in
advance of all meetings and
matters to be considered
Public must be given access to
information and opportunity to
provide input to decision-makers
Exceptions are limited
58
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City of Chula Vista City Council
February 16, 2023 Post Special Agenda
The Brown Act
APPLICATION
Applies to all local “legislative bodies” and their
members
City Councils and County Boards
Boards, Commissions, and Committees
Sub-Committees of a legislative body, with limited
exceptions
Regional Boards
BIDs and PBIDs per Streets and Highway Code
Does not govern conduct of City staff
59Page 62 of 117
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The Brown Act
DEFINITION OF MEETING
60
Any congregation of a majority of the members at the
same time and place to hear, discuss or deliberate an
issue in the subject matter jurisdiction of the body
No action is required; mere discussions qualify
Includes informal gatherings, with or without public
attendance or City sponsorship
Page 63 of 117
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The Brown Act
DEFINITION
OF MEETING
(continued)
Other forms of communication constituting a “meeting” include:
Writings: Written communication, including e-mails, between a majority of the members
Intermediary Communications: communications between employees or agents on behalf of a majority of members
Serial Communications: a chain of communications between members resulting in a quorum of members contacted
61
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The Brown Act
SERIAL MEETING EXAMPLES
Member
C
Member
B
Member
A
62
A chain of communications (via phone,
email,in person,etc.)involving contact from
Member A to Member B,who then
communicates with Member C would
constitute a serial meeting in the case of a
five-person body.
When a person acts as the hub of a wheel
(Member A)and communicates individually with
the various spokes (Members B and C)
regarding a matter under the jurisdiction of the
board/commission a serial meeting may have
occurred.
Member
A
Member
B
Member
C
Member
D
Page 65 of 117
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The Brown Act
MEETING EXCEPTIONS
63
Not a “meeting” if a majority of members attend:
•Conference open to the public
•Open and publicized meeting of a local group
•Open, noticed meeting of another legislative body
•Social or ceremonial event
•Open, noticed meeting of a standing committee (but can’t participate)
Gray area: seek legal advice first
•Often advisable to notice the meeting or limit attendance to less than majority
Quorum still can’t discuss city business
Page 66 of 117
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The Brown Act
MEETING EXCEPTIONS (continued)
64
Memoranda from City
Manager or City
Attorney to all City
Council Members
Communications for
purposes of calling a
special meeting or
setting an agenda
Individual contacts or
conversations between
less than a majority of
members and
members of the public
Page 67 of 117
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The Brown Act
COMMUNICATION
PRACTICE TIPS
Practice Tips:
1.Beware of “intermediary”
communications between employees or
agents on behalf of a majority of the
members -staff members should
exercise care not to disclose members’
views and positions to other members
2.If staff needs to communicate with
members by email, it is a good practice
to “BCC” the members so that a member
doesn’t inadvertently violate the Brown
Act with a “reply all”
65
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Page 69 of 117
City of Chula Vista City Council
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The Brown Act
PURPOSE OF
MEETING
AGENDA
To inform the public what will be discussed at
the meeting so they can determine whether to
monitor or participate in the meeting.
67Page 70 of 117
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The Brown Act
MEETING AGENDAS
68
Meeting Agendas inform the public of what will be discussed at the
meeting so they can determine whether to monitor or participate
The Brown Act requires that agenda item titles fully describe the issue
or action to be discussed and/or taken
The title generally does not need to be longer than 20 words
It should be clear to a member of the public what will be discussed and
what is sought regarding the item (approval, direction, acceptance, etc.)
Page 71 of 117
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The Brown Act
AGENDA TITLE EXAMPLES
Sufficient?Better?
Discuss Arts Master Plan Resolution Recommending
Amendments to City Arts Master Plan to
Add a Proposal for a West Side “Black
Box” Theater and Club at the Vogue,
and Possible Funding Sources for Same
FY19 PLAN REALLOCATIONS CONSIDER PROPOSED AMENDMENT
OF MEASURE P SPENDING PLAN AND
FY18/19 BUDGET TO CHANGE TIMING
OF EXPENDITURES IN CERTAIN
CATEGORIES
69
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The Brown Act
NOTICE OF A MEETING
70
Post in advance of the meeting
•72 hours for a Regular Meeting
•24 hours for a Special Meeting
Indicate location and time
Contain a description of items to be discussed
Post and mail to those who reques
Post prominently on the internet (and make searchable)
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The Brown Act
QUALIFIED
LOCATION
Must be held within the jurisdictional boundaries of the City, unless a specific exemption applies:
Comply with a law or court order
Inspect property outside of city
Multiagency meeting
No meeting facility within the jurisdiction
Meeting with federal/state officials on a legislative or regulatory issue
A facility outside of the City, which is the topic of discussion
Closed session at legal counsel’s office regarding pending litigation when it would reduce legal fees or costs
Location must be ADA accessible.
Remote attendance by teleconference possible.
NOTE: City Charter §307 provides additional rules for City Council meeting locations and actions.
71Page 74 of 117
City of Chula Vista City Council
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The Brown Act
REMOTE MEETINGS
Standard Rule for teleconferencing
COVID Emergency Rule: During height of COVID Emergency, an order of the Governor allowed local legislative or state bodies to hold public meetings remotely
AB 361: can hold remote meetings when state of emergency exists (sunsets Jan 1, 2024)
AB 2449 (Jan 1, 2023): long-term permission to hold hybrid meeting in specified circumstances (member emergency or other just cause)
Restriction on number of times member can attend remotely in a year
Quorum of body must be in person
Two way audio visual or two way phone and live webcasting
Additional legislation proposed for this year regarding remote meetings
72
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73
Page 76 of 117
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The Brown Act
WHAT YOU CAN TALK ABOUT AT A MEETING
74
Only items listed and
clearly described on timely
posted agenda can be
discussed or acted upon
If any question about
adequacy of description,
better not to act
Page 77 of 117
City of Chula Vista City Council
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The Brown Act
WHAT YOU
CANNOT
TALK ABOUT
AT A
MEETING
Cannot consider, discuss, deliberate or act on matters not on the agenda
Otherwise, only appropriate action is to refer item to staff and/or for consideration on a future agenda
Brief response, question or statement o.k.
Limited Exceptions:
Emergency Majority vote determines an “emergency” exists; (e.g. crippling natural disaster, terrorist act, or major work stoppage); or
Urgency Two-thirds (4 of 5) vote determines the need to take immediate action exists and agency knowledge of need arose after the agenda was posted
75Page 78 of 117
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The Brown Act
SUB-COMMITTEES
The Brown Act generally applies to all boards, commissions, committees and other bodies created by charter, resolution or formal action of a legislative body
Applies whether the body is permanent or temporary, advisory or decision making
Limited Exception –A true “Ad Hoc” Subcommittee
Comprised solely of less than a quorum of the members of the appointing body; and
Does not have continuing jurisdiction over a particular subject matter
Cannot have members of other legislative bodies or other 3rd parties
Limited duration: ideally 6 months or less
Staff created Citizen/Business Committees also exempt
Many gray areas. Seek City Attorney advice
76Page 79 of 117
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The Brown Act
CLOSED
SESSION
EXCEPTION
77
The Act limits what can be discussed behind closed doors to specified topics and circumstances
License/Permit Determination for rehabbed criminal (§54956.7)
Real Property Negotiations –Price and Terms (§54956.8)
Existing Litigation [§54956.9(a)]
Anticipated Litigation [54956.9(b)]
Liability Claims (§54956.95)
Threat to Public Safety/Services [54957(a)]
Public Employee Appointment/Employment/Performance Evaluation/Discipline/Dismissal/Release [54957(b)]
Labor Negotiations (§54957.6)
Seldom used by Board and Commissions
Page 80 of 117
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The Brown Act
CLOSED SESSION CONFIDENTIALITY
Confidential information obtained during
closed session cannot be disclosed outside the
session
Includes City negotiating positions in real estate,
labor talks, and City vulnerabilities or settlement
positions in litigation
Only a majority vote of the legislative body can
authorize disclosure
Penalties for unauthorized disclosure include
referral to the grand jury, injunctive relief, and
disciplinary action
78Page 81 of 117
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The Brown Act
RIGHTS OF THE PUBLIC
Attend, observe, and speak at meetings
Attend and speak without being required to give identifying information
Record the meeting with audio or video and take pictures
Review agendas and other documents distributed to a majority of the board
(must be available to the public at the same time)*
Request in writing that the agenda or agenda-related documents be mailed to
them
Obtain a copy of audio or video of the meeting
Criticize or complain about processes or procedures.
79* Some exceptions may apply
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The Brown Act
PUBLIC
COMMENT
80
•Agenda Items: Comment must be allowed;
reasonable time limits can be adopted by
local agency. Current City Council time limit:
5 minutes.
•Non-agenda items: Agenda must provide an
opportunity for members of the public to
directly address the legislative body on any
item of interest to the public within its
purview
•No action or discussion can occur
•Can refer to staff for information; request a
report back; request item be placed on
future agenda
•Current City Council time limit: 3 minutes
Regular Meeting
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The Brown Act
PUBLIC
COMMENT
(continued)
81
•Must allow comment on agenda items
•Comment on non-agenda items is permissible but
not required
Special Meeting
•As of January 1, 2017, AB1787 now requires twice
the allotted time be provided for translation for
non-English speakers unless simultaneously
translation equipment is available
Special Rule for Non-English
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City of Chula Vista City Council
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The Brown Act
OPEN MEETINGS AND SOCIAL MEDIA
83
AB 992 approved by Governor Newsom on Sept. 18, 2020
First amendment to the Brown Act to address public officials’ use of social media
•(1) Answer questions;
•(2) Provide information to the public, or solicit information from the public regarding a matter within the
legislative body’s subject matter jurisdiction*
•*only permitted if a majority of the legislative body do not use any social media platform to
“discuss among themselves” official business
•
A public official may communicate on social media to:
Page 86 of 117
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The Brown Act
OPEN
MEETINGS
AND SOCIAL
MEDIA
(continued)
84
A public official may NOT respond directly to
any communication on social media regarding
a matter within the subject matter jurisdiction
of the legislative body that is made, posted, or
shared by another member of the legislative
body
Although a single contact between one
public official and another normally would
not constitute a serial meeting, AB 992
prohibitions go further
Example: posting a comment or emoji in
response to another public official’s
Facebook post about an agency issue
(assuming both serve on the same
legislative body).
Page 87 of 117
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February 16, 2023 Post Special Agenda
The Brown ActOPEN MEETINGS AND SOCIAL MEDIA
Applies to all internet-based social media platforms that are
“open and accessible to the public”
Members of the general public able to access and participate in
platform free of charge
No approval needed by platform (or a person or entity other than
platform) to access
Cannot be blocked from participating (except for violation of
rules/terms of service)
Applies to comments, re-tweets, likes, dislikes, smiley faces, sad
faces, screenshots, re-posting
Facebook, Twitter, blogs, Instagram, Reddit, SnapChat, TikTok
(and more)
85
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The Brown Act
SOCIAL MEDIA RISKS
86
Increased risk of Serial
Meetings
Increased risk of bias
“pre-determination“
and due-process
violations
Emails, texts, tweets or
posts during meetings
can deny public access
to decision making
process
Brown Act applies, but
no case law exists to
clarify how and when
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The Brown Act
GOOD
POST/BAD
POST
EXAMPLE
87
Good:
•“City Council will consider the tax rates to
be set for Cannabis Businesses at our
January 15th meeting. Please come and
share your views!”
Not so good:
•“Charles Hatfield, LLC’s proposal to dam
Otay River and build a white-water
rafting park is absurd and violates CEQA!
Please join me in opposing their CUP
application at a public hearing on January
15th!”
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SOCIAL MEDIA
& THE FIRST
AMENDMENT
A public official may violate a constituent's First Amendment right by blocking certain constituents’ comments on a public social media page that is related to the official’s duties
If a public official has a public social media page that is used to communicate with the public or to inform constituents about information related to the jurisdiction, the public social media page is “related to the official’s duties”
All comments and non-verbal reactions (“likes”, for example) either need to be allowed or universally disabled
88
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February 16, 2023 Post Special Agenda
The Brown Act
VIOLATIONS
89
Civil Remedies
•Can be brought by any interested person or DA
•Invalidation Action: to void past acts
•Injunctive or Declaratory Relief: to prevent future violations
•Procedural requirements allow opportunity to cure and correct action taken
•Costs and attorneys’ fees may be awarded against agency; City may recover fees if lawsuit is frivolous.
Criminal Penalties
•Member may be subject to misdemeanor penalties if:
•Attends meeting at which action taken violates the Act; and
•Intends to deprive public of information
Loss of public trust
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The Brown Act
PRACTICE TIPS
90
Avoid sharing info about another
council/committee/commission member’s views
Do not direct or cc emails to a quorum or more of your
council/board colleagues, or “reply all” on city business
Refrain from public statements (including use of social
media) that state final positions on matters pending before
you
Review Agendas in advance of meeting and think about
Brown Act parameters
Don’t discuss items not on agenda; instead, refer them to
staff for future discussions with consensus of your board
Don’t forget to allow for public input (err on the side of
more vs. less; apply rules even-handedly)
When in doubt, don’t act
If unclear, seek advice from City Attorney’s office--in
advance whenever possible
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Public Records Act
CORE
PRINCIPLES
Government Code
sections 6250 thru
6270
92
The public has the right to see
records related to the conduct of
public business
Government must maintain and be
prepared to provide public records
in a timely manner
What constitutes a public record is
broadly defined
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Public Records Act
WHAT IS A PUBLIC RECORD?
93
Defined specifically in applicable statutes, Municipal Code,
City business practices, or policies
In the absence of specific legal definition, a record is the
document or information generated as the final output of
a business process or business decision
A record can be in any format: either physical or
electronic, structured or unstructured; and will be
retained by the responsible department in its final form
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Public Records Act
WHAT IS NOT
A PUBLIC
RECORD?
Not all information is public or disclosable; exemptions may include:
Private information about individuals (e.g., personally identifiable information, taxpayer information, medical information, etc.)
Personal information about employees
Drafts or working copies or transitory documents or notes
Details about security of critical infrastructure (e.g., electrical, water, or sewer facilities, computer networks)
Privileged documents (i.e. attorney-client privilege)
Deliberative Process: Records may also be exempt; example RFP
Balancing of competing interests' public benefit of disclosure v. need or rights to privacy (GC 6255)
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Public Records Act
RESPONSIVENESS
REQUIRED
95
A response (not necessarily the records) must
be provided within 10 days of request.
Additional time may be allowed in limited
circumstances
Additional duties include:
Provide record more quickly if you can
Help requester formulate effective request
Explain why records withheld
Can charge reasonable copy fees before
providing records, but inspection is free
Can’t charge for staff time unless creating a
record that doesn’t exist and requester
agrees in advance
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Public Records Act
PRACTICE TIPS
Practice Tips:
1.Be prepared to promptly disclose records if requested
2.Communicate carefully, especially in emails
3.It’s best not to use a private accounts to conduct City business.
4.City business conducted on private devices or accounts is subject the PRA and such records must be kept and disclosed
96
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Government Transparency Laws
HYPOTHETICAL SCENARIOS
1)Alice Ruiz is a designated Form 700 filer who is a partner in a business entity with her sibling. Each of the siblings has a 50% interest. Does she need to report that on her Form 700?
2)James Jones has $6,000 in an individual retirement account with an investment firm. The account contains stock in several companies doing business in the City. One of the stock holdings, XYZ Computers, reached a value of $2,500 during the reporting period. Does he need to report that on his Form 700?
3)Bert, a recently sworn in Chula Vista Planning Commissioner, sent a private email to Ernie and Oscar, two experienced Planning Commissioners, asking questions about Oscar’s controversial Car Wash project on their agenda to be considered at a public hearing the following week. To keep everyone in the loop, Bert bcc’d the Mayor, the City Manager and the City Attorney. Is Bert’s email to Ernie considered a meeting under the Brown Act?
97
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Government Transparency Laws
HYPOTHETICAL SCENARIOS
4)At a regular meeting of the City Council, during Council comments, Councilmember High Stakes, proposes amendments to the City Code to allow for a Cannabis Lounge that includes Off Track Betting. Councilmember Moral Outrage declares the proposal “morally repugnant,” but Councilmember Compromise convinces a majority of the group to form an Ad Hoc Subcommittee to study the idea further and report back to Council. Has the City Council violated the Brown Act? Any other issues?
5)The Board of Ethics wants to conduct a team-building session to improve relations among its members and develop a common vision on how to handle confidential ethics complaints filed anonymously with a request for confidentiality. May such a session be conducted behind closed doors
6)Lotta E. Mailer, a new member of the City’s Housing Commission, sends out an email to all other members inquiring as to their availability for a special meeting to discuss possible changes to the City’s rent control policies. 4 of 7 members respond with “reply all” emails including possible dates. Has the Brown Act been violated?
98
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Government Transparency Laws
HYPOTHETICAL SCENARIOS
7)During a general meeting, Annie, a member of the public, was asked to refrain from
taking pictures because the flash kept distracting staff and the Council. Annie
refused, and was ordered removed from chambers. Was this removal consistent
with the Brown Act?
8)The City of Bigtime owns and operates a small, but busy airport. People who are
unhappy with the noise from the airport file noise complaints. The airport seeks to
expand operations. A resident who supports the expansion files a Public Records
Act request asking for copies of all complaints, including the names and addresses of
those that complained. The City denies the request. Did the City act properly under
the PRA?
9)Bill Ding in the City’s planning department has been reviewing an EIR for a major
Pickle Ball stadium project on the City’s Bayfront. The Tennis is Better Society (TBS),
which strongly opposes the Project, has made a request under the PRA for all
communications between City staff and the Project applicant related to the Project.
Mr. Ding has been texting with the applicant’s primary Engineer, Sally Forth, about a
whole host of Project related issues, interspersed with communications about each
other’s families, vacation plans and favorite places to get adobada tacos. He declines
to provide the texts in response to the PRA request because they were made on his
personal phone and include personal matters. Is he right? 99
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IV.FAIR PROCESS
LAWS
BROWN ACT
100
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COMMON LAW BIAS
Common law is law established by judicial rulings (as opposed to statutes)
Prohibits actions or involvement by public officials in a matter where there is a
high likelihood that their personal interests could be placed above their duty of
loyalty to the public
Typical “personal interests” include financial interests (that may not be covered by
the PRA), or the material involvement of, or potential impact upon a close family
member, close friend, or affiliated group
Example: A Planning Commissioner's daughter is seeking a Conditional Use
Permit for a new car wash business. The daughter is grown (not a dependent)
and the Planning Commissioner has no financial interest in the business. The
Planning Commissioner should still recuse herself 101
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Common Law Bias
REQUIRED ANALYSIS
Subjective and Objective
Components
-What you think and feel about the potential
for divided loyalty?
-What might a reasonable observer might
think?
Factors to Consider
-How material is the interest?
-How close is the relation?
-What would the headline read?
102
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DUE
PROCESS
103
1) Notice
2) Opportunity to be heard
3) Fair and impartial decision-maker
U.S. Constitution Amend XIV, section 1
“No state shall deprive any person of life, liberty, or property without due process of law”
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Due Process
FAIR HEARING
REQUIREMENTS
104
Common Law Requirements:
Generally apply to government decisions where a quasi-judicial determination is being made
Involves acting as a trier of fact-like a jury in applying rules to a particular fact situation
Examples include:
Administrative hearing in an appeal of a Code Enforcement Case
Planning Commission or City Council decision on a Conditional Use Permit
All interested parties entitled to due process, which includes proper notice, an opportunity to be heard, and an unbiased decision-maker making decisions based upon evidence presented at hearing
Decision makers should not advocate for and express a position prior to the hearing
Ex-parte contacts-discouraged.However, disclosure at a minimum is required
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Due Process
LOCAL HEARING
REQUIREMENTS
Multiple requirements throughout the
Charter and the Code
Examples include:
1.Rules for adopting resolutions and
ordinances [Charter Sections 311 and
312]
2.Rules for Administrative Appeals of
Code Enforcement Complaints [CVMC
Chapters 1.40 and 1.41]
3.Rules for applications and hearings on
land use permits [CVMC Chapter
19.14]
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COMPETITIVE
BIDDING
REQUIREMENTS
107
Most state and local governments require
some level of competitive bidding
Competitive bidding generally requires that
the contracting agency:
Widely publicize the contract opportunity
Provide same information to everyone
Apply evaluation criteria consistently
Public Works Contract goes to lowest
responsive, responsible bidder
City contracting rules contained in Charter
Sections 1009 and 1010, and CVMC Chapter
2.56
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INCOMPATIBLE
OFFICES
Government Code
section 1099
108
Prohibits a person from simultaneously holding two
public offices that are "incompatible"(GC 1099)
First step: Are there two public offices?
•Regulated Offices are generally Elected or Appointed
•Employment with a Public Agency is not an "office" for these
purposes
Second step: Are the two offices incompatible?
•Standard: Where one office exercises supervisory, auditing or
removal power over the other.
•Consequences for Violation: Immediate forfeiture of first office
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INCOMPATIBLE
ACTIVITIES
Government Code
section 1126
109
General Rule. A local agency officer or employee shall not
engage in any employment or activity for compensation which is
inconsistent, incompatible, in conflict with, or inimical to his or
her duties as a local agency officer or employee (GC 1126)
Local Agency Control of Specifics. A local agency may define
what is prohibited and establish rules for review and approval of
outside activities by employees.
Elected Official Exempt. Rule does not apply to elected
officers (GC 1126)
Example: Should a Deputy City Attorney moonlight as a "bud-
tender" at a Chula Vista Cannabis Store?
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NEPOTISM
Nepotism is a form of common
law bias based on familial
relationship
Generally, should not participate
in matters which involve family
members
City Charter (Section 510)
expressly prohibits
appointments by City Council or
Department Head/Appointing
Authority of their family
members to salaried positions
within City
New City HR policy additionally
contains City nepotism
prohibitions that apply to City
employees
110
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CONCLUDING THOUGHTS
Put the public’s
interest above
your own
Obtain no
personal gain from
your position
Treat people fairly Seek Legal Advice!
111
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NEXT STEPS
112
Please stop by the desk in the entryway to sign your certificate of
participation as you exit the Council Chambers
Please stop by the desk in the
entryway to sign your certificate of
participation as you exit the Chambers
If you have questions after the training, please feel free to contact City
Attorney staff or City Clerk staff
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RESOURCES
Brown Act:
Attorney General Website www.ag.ca.gov/publications/brownact2003.pdf
League of California Cities Publication: “Open & Public V: A Guide to the Ralph M.
Brown Act” www.cacities.org/resources/publications
Contact City Attorney or City Clerk (cityclerk@chulavistaca.gov)
113
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RESOURCES
Political Reform Act:
Fair Political Practices Commission (FPPC): www.fppc.ca.gov
California Attorney General: www.caag.ca.us
Institute for Local Government:
www.ca-ilg.org/AB1234Compliance
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City of Chula Vista City Council
February 16, 2023 Post Special Agenda