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GOVERNANCE
ESSENTIALS
Presented by:
Ruben Duran, General Counsel
Maribel S. Medina, Deputy General Counsel
Fontana Unified School District
Board Workshop
January 30, 2012
A Policy of Open Government
“In enacting this chapter, the Legislature finds
and declares that the public commissions,
boards and councils and the other public
agencies in this State exist to aid in the
conduct of the people’s business. It is the
intent of the law that their actions be taken
openly and their deliberations be conducted
openly.” Government Code Section 54950
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“Open and Public”
“All meetings of the
legislative body of a local
agency shall be open and
public, and all persons
shall be permitted to
attend any meeting of the
legislative body of a local
agency, except as
otherwise provided in this
chapter.” Government Code
Section 54953(a)
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The Brown Act applies to
“legislative bodies”
What is a “legislative body?”
• Governing body of the agency, i.e Board of Education
• Subordinate boards and commissions created by formal action of
the governing body
• Standing committees with a regular meeting schedule and
continuing subject matter jurisdiction
What is not a “legislative body?”
• Advisory committees, composed solely of the members of the
legislative body that are less than a quorum of the legislative
body
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Meetings
Elements:
• Congregation of a
majority
• Same time and place
• To hear, discuss or
deliberate any item
• Within Board’s subject
matter jurisdiction
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Serial meetings are illegal
What is an illegal serial meeting?
• direct or indirect communication
• employed by a majority
• to develop a collective concurrence
• as to action within subject matter jurisdiction
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Serial meetings are illegal
Types of serial meetings
• Hub and spoke
• Daisy Chain
• Briefings
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Meeting Exceptions
When is a meeting not a “meeting?”
• individual contacts
• conferences*
• community meetings*
• another body of the agency*
• social or ceremonial events*
• standing committee meetings
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Meeting Exceptions continued
* Provided that a majority of the members do
not discuss among themselves, other than as
part of the scheduled program, business of a
specific nature that is within the subject
matter of the legislative body.
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Rules Governing Meetings
Types of meetings
•
•
•
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Regular
Special
Adjourned
Regular Meeting
• Agenda must be posted 72 hours in advance
• Brief description of items of business
• Posted agenda must be freely accessible to
public
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Special Meeting
• Called by presiding officer or majority of Board
• Notice must be posted 24 hours in advance
• Notice must be received by each member
unless waived
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Special Meeting
• Notice must be sent to newspapers, media
if requested in writing
• Notice must state time/place of meeting
and all business to be transacted
• Public comments limited to what is on
agenda
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Adjourned Meetings
• Regular or Special Meeting may be
adjourned to specific time and place
• If no time stated, then meeting continued
to the hour for regular meetings
• Less than a quorum may adjourn
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Adjourned Meetings
• Secretary/Clerk may adjourn to stated time and
place and provide notice in same manner as
special meeting
• Notice of adjournment must be posted on or near
door of place where meeting was held within 24
hours
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Emergency Meetings
• Defined as work stoppage or other activity that
severely impairs public health and/or safety
• Defined as crippling disaster that severely impairs
public health and/or safety
• Determined by legislative body
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• No need to comply with 24 hour notice/posting
requirement
Emergency Meetings
• Newspapers, media notified at least one hour by phone
• If phone not available, notify papers/media of purpose of
meeting and action taken
• Cannot meet in closed session
• Must comply with all special meeting requirements except
24 hour notice requirement
• Minutes of meeting must be posted ASAP
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Other Agenda Requirements
• No discussion or decision on items not on
the posted agenda
• Agendas must be publicly accessible and
distributed in advance to those who
request copies
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Agenda Requirements
Exceptions
Items added to the agenda
• Came to the District’s attention after the agenda
was posted; and
• Need to take action before the next meeting
• Two-thirds vote required
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Exceptions – continued
• Brief response to questions from public
• Clarification/reference to staff
• Brief announcements/report on activities
• Requests for future report
• Placement of items on future agenda
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Public Participation
• Not required to “register” their name or
address, i.e. speaker cards
• Rules of decorum permitted
• Time limits okay
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• Recording permitted
Public Participation
• Public to speak on any item
of interest within subject
matter jurisdiction of Board
• Public to speak on a specific
item of business before or
during the body’s
consideration
• Cannot prohibit public
criticism of policies,
procedures, programs of
District, acts of Board, or
criticism of District
employees
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Other Agenda Rules
• Agendas and contents are public records
• If document distributed at meeting, make
copy available for public inspection
• If distributed by someone else, make
available at meeting or after meeting
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Compensation Disclosure
Assembly Bill 1344
• Effective January 1, 2012 the Brown Act
was amended to regulate employment
contracts in the following ways:
• Prohibits automatic increase in “local agency
executives” contracts above cost-of-living;
• If official placed on paid administrative leave is
later convicted of crime related to abuse of
office, s/he must pay back salary paid while on
leave;
Assembly Bill 1344, continued
• If public funds are used for the legal defense of
official, and official is convicted of crime related
to abuse of office, s/he must pay back defense
costs; and
• Severance and cash settlements must be
returned if official is convicted of crime related to
abuse of office.
• All meeting notices must be posted on the
agency’s website (if it has one); and
• Special meetings to consider the executive’s
salary, salary schedule or benefits, salary and
benefits are prohibited- must be discussed at
regular meeting.
Teleconferencing
• Quorum must participate from regular location
• Teleconference location must be identified on
agenda
• Agenda posted at teleconference location
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Teleconferencing
• Location must be
accessible to public
• Agenda must
provide for public
participation
• Roll call vote
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Meeting Location
• Must be within the local jurisdiction
- Includes retreats and workshops
• Multi-Agency meetings held in boundaries of
one of the agencies
- All agencies must give notice
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Closed Sessions
• Personnel matters/labor negotiations
• Real Property matters
• Pending/threatened/contemplated
litigation
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• Student Discipline
Closed Sessions
• Matters must be disclosed on the posted
agenda
- “Safe Harbor”
• Pre and post-session announcements by Board
President or counsel
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Closed Sessions
• Who participates?
• Confidential Minute Book (if required)
- Not a public record
- Disclosed to legislative body and court if
violations are alleged
•
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Disclosure of documents?
Remedies for Violations
• Notice and opportunity to cure
• Civil action for invalidation of actions
• Attorneys fees and costs
• Criminal prosecution
- Action taken at a meeting
- In violation of the act
- Intent to deprive public of information
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GENERAL ETHICS PRINCIPLES
• Values such as trustworthiness, respect,
fairness and responsibility promote public
trust in government and should explain the
importance of avoiding even the appearance
of impropriety.
ETHICS V. ETHICS LAWS
• Ethics laws merely set minimum standards for
conduct
• Ethics goes beyond legal requirements
– About doing what we ought to do, rather than
what’s required
– Complying with ethics laws does not ensure that
you are meeting your own standards and values
• Or those of your constituents
TRUSTWORTHINESS
• Service to your community
• Truthfulness to your colleagues, staff and the
public
• Not using your public office for personal gain
• Keeping promises
RESPECT
•
•
•
•
•
Debating courteously
Avoiding personal attacks
Listening
Preparation
Including others and the public in decision
making process
FAIRNESS
•
•
•
•
•
•
Basing decisions on the merits and facts
Following procedures
Keeping an open mind
Being consistent
Being impartial
Staying present, especially during decision
making
RESPONSIBILITY
• Admitting mistakes
• Stewardship of District resources
• Taking unpopular positions when values
require
• Representing the District’s position even
when you personally disagree with it
• Safeguarding confidential information
GENERAL ETHICS PRINCIPLES
• Is it good public policy?
• Is it consistent with the District’s or the community’s
values?
• Does it meet your own sense of right and wrong?
• Is the action legal?
• The Institute for Local Government has useful
resource materials at http://www.ca-ilg.org/
PROHIBITION ON USE OF OFFICE FOR
PERSONAL GAIN
• Making decisions affecting a public official’s
economic interests (Political Reform Act)
• Contracting with one’s own agency
– Gov. Code § 1090
• Bribery
Government Code Section
1090
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Government Code Section 1090
Financial Interest in a Contract
Strict prohibition against being financially interested
in any contract made by the individual in their
official capacity.
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Government Code
Section 1090
Financial Interest in a Contract
“Financial interest” includes both direct
and indirect interest
• Payments made to the contracting party must
be returned to the public agency.
• Public agency is entitled to retain any benefit it
received.
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Violation of Section 1090
• Contracts made in violation of Section 1090
are void and unenforceable.
• Payments made to the contracting party must
be returned to the public agency.
• Public agency is entitled to retain any benefit
it received.
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Consequences for violating
Government Code 1090
• Willful violation of Section 1090 is punishable be fine,
imprisonment, and permanent disqualification from
holding office in California. (Government Code Section
1097)
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Government Code Section 1090
“Participation” in making a contract
•
•
•
•
•
•
•
Preliminary discussions
Negotiations
Compromises
Reasoning
Planning
Drawing of plans and specifications
Solicitation of bids
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Government Code Section 1090
Presumption of Influence
• Official presumed to have made any contract
executed by the district-even if he or she
disqualified himself or herself from all
participation in the making of the contract.
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Government Code Section 1090
Scope of Section 1090 Conflict
• Abstention does not cure Section 1090 problem
• Entire governing body is precluded from entering
into the contract
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Government Code Section 1090
Exceptions to Section 1090:
• Remote interest (i.e., non salaried officer of not
for profit)
• Non-interest (salary from another governmental
agency)
• Rule of Necessity
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Political Reform Act
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Political Reform Act of 1974
PRA applies to:
• Public officials
• With a financial interest
• Making or attempting to influence a decision
(Government Code Section 87100)
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Political Reform Act of 1974
When Does a Public
Official Have A
Conflict:
•
•
•
•
Reasonably foreseeable
Material financial effect
Economic interest
Different from public
generally
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Political Reform Act of 1974
The 8 Steps to Determine Conflict of Interest
• Step 1:
• Step 2:
• Step 3:
Is the individual a public official?
Is the official making, participating
in influencing a governmental
decision?
What constitutes the economic
interest of the official?
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Political Reform Act of 1974
• Step 4:
Is the economic interest directly or
indirectly affected by the decision?
• Step 5:
How will the economic interest be
affected?
• Step 6:
Is it reasonably foreseeable that the
economic interest will be materially
affected?
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Political Reform Act of 1974
Steps 7 and 8 – Exceptions
• Step 7:
Distinguishable from the public generally.
• Step 8:
Does the “legally required participation”
rule apply?
-“rule of necessity”
-no alternative source of decision
making
-not to break a tie
-not if a quorum cannot be convened
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Political Reform Act of 1974
Recusal Action Required:
•
Publicly identify interest in sufficient detail
•
•
Recuse self from discussions or acting on
matter
Leave room, unless matter on consent
agenda
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Government Code
Section 87404
Prospective employment:
Public officials must disqualify themselves from making, or
participating in making or using their official position to
influence any governmental decision directly relating to
any person with whom the public official is negotiating or
has any arrangement concerning prospective
employment.
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Gift and Travel
Restrictions
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Gifts and Travel Restrictions
• No gifts from a single
source aggregating in
excess of $420 in a single
year
• Gifts aggregating $50 or
more must be disclosed on
a Form 700
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Gift and Travel Restrictions
Exceptions to Gift Limitations
• Gifts returned or donated to charity (without
claiming a deduction)
• Gifts from family members
• Informational material (books, papers)
• Birthday presents of equal value
• Bequest or inheritance
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Gift and Travel Restrictions
Gifts of Travel
Travel payments may be subject to gift limit
restriction and/or may be reportable
(see FPPC Regulations)
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Gift and Travel Restrictions
Honoraria Ban
• No honorariums may be accepted
• Definition of honorarium: payment made in
consideration for any speech given, article
published, or attendance of any public or private
conference, convention, meeting, social event,
meal similar gathering.
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Gift and Travel Restrictions
Honoraria Exceptions
The following are not prohibited and not required
to be disclosed:
• Returned honorariums
• Honorarium donated to District’s general fund
• Honorarium made directly to a bona fide non-profit
organization
• Campaign contributions (must be reported)
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Prohibition Against Use of Public
Resources for Personal or Political
Purposes
• Public officials and employees may not use public
funds for personal purposes, including political
activity.
• Definition of public funds includes: money,
equipment, supplies, compensated staff time,
telephone, computers, fax machines, etc.
• Penalty: If misuse of public funds is more than
incidental or minimal, it may be prosecuted as a
felony. Violators may be barred from holding
office.
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Mass Mailing Restrictions
Items mailed at public expense may not:
• Feature an elected officer
• Mention an elected officer if prepared in coordination
with the elected officer
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Mass Mailing Exceptions
•
•
•
•
•
•
Letterhead
Press releases
Communications between government agencies
Intra-agency communication
Bills and legal notices
Telephone directory, organizational chart or
similar roster
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The End
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