CITY OF ANAHEIM PUBLIC UTILITIES BOARD OVERVIEW OF THE BROWN ACT June 28, 2017 Presented By: Daniel A. Ballin, Deputy City Attorney IV 1
What does the Act require? Ralph M. Brown Sunshine law adopted in 1953 Meetings must be open and noticed Applies to legislative bodies Agenda posting requirements o Time, place, and brief description o 72 hours notice with exceptions o Prohibits discussion of items not on agenda Every agenda must provide opportunity for the public to speak 2
What is a meeting? a majority of the legislative body in the same time and place to hear, discuss, deliberate, or take action upon any item that is within the subject matter jurisdiction of the legislative body No action required; discussion sufficient 3
Not meetings under the Act Individual contacts (no conduits) Standing committee meeting (observation only) Purely social or ceremonial occasions Meetings on community issues (open & publicized) Conferences open to the public Meetings of another legislative body (open & noticed) CAVEAT: Don t discuss PUB business with fellow board members; for last three, participation ok 4
Agenda exceptions No action or discussion allowed for any item not listed on agenda except: Questions to staff for clarification Brief activity announcement or report Provide reference or information to staff Ask staff to report back at a future meeting Direct staff to place a matter on agenda 5
Serial Meetings The Brown Act is violated whenever a majority: uses a series of communications directly or through intermediaries to discuss, deliberate, or take action on any matter within its subject matter jurisdiction No collective concurrence needed 6
More technology, More problems Serial meetings before the Digital Age: o Person to person o Telephone o Letters Serial Meetings in the present: o Text: Beware of group texts with other Board members o Electronic mail: Similar problems with email conversations or threads REPLY ALL makes inadvertent violations far more easy 7
Social Media pitfalls Law has not really caught up to social media but there is no question the Act applies Communications via any of the following social media can be problematic, especially if it relates to PUB business and fellow board members are involved: o Blogs: Blog entries if commented on by board members o Facebook: Clicking the like button on Facebook is speech o Instagram: Pictures are a form of speech o Twitter: Tweeting/retweeting, especially if those retweets have comments 8
What s the worst that could happen? Criminal Prosecution: potentially misdemeanors o Criminal investigation and prosecution (very unlikely); DA generally seeks civil compliance not criminal prosecution Civil Action: Violations may be prevented or stopped (DA or interested party) Civil Action: May also used to null and void past actions (DA or interested party) o Notice of cure within 90 days of alleged violation; 30 days to cure; 15 day statute of limitation period o Often DA sends two letters: cure and correct and the really bad one knock it off Political repercussions: This can happen even when there are no violations. DA investigations or newspaper headlines can create a cloud. 9
Brown Act violation? Every Fourth of July, PUB Member A has a huge backyard BBQ. This year, he plans to invite the entire PUB. A majority attends the party. PUB Member A posts a comment on Facebook about an upcoming agenda item. PUB Members B, C, and D, who are friends, like the comment and Member C comments on it. 10
Brown Act violation? Board Member A: I would like staff to respond to the public speaker s complaint about undergrounding on Elm Street are there problems with this project? APU staff member: We have prepared a 15 minute presentation on the status of this project. May we proceed? Board Member A: Yes and take all the time you need; we need to get to the bottom of this. Our customer is unhappy. 11
Questions? 12
ETHICS IN LOCAL GOVERNMENT: Identifying Conflicts of Interest PRESENTED BY: DANIEL J. PAYNE, DEPUTY CITY ATTORNEY JUNE 28, 2017
Principal Ethics Laws Political Reform Act -- Government Code Sections 81000-91015 FPPC Regulations -- California Code of Regulations, Title 2, Division 6 (Sections 18110-18997)
Principal Conflict of Interest Laws City of Anaheim Conflict of Interest Code -- City Council Resolution 2016-240 Conflicts of Interest in Contracts -- Government Code Sections 1090-1097.5
FPPC Conflict of Interest Analysis Preliminary Step Identify Financial Interests -- Purpose of Form 700 Five interests that may support disqualification: 1. Business Entity, Investment $2,000 2. Real Property, Interest $2,000 3. Income $500 in previous 12 months 4. Gifts $470 in previous 12 months 5. Personal Finances
FPPC Conflict of Interest Analysis FPPC Eight Step Analysis Recently Cut to Four: Step One: Reasonably foreseeable that decision will have financial effect on your financial interests? Step Two: Will the financial effect be material?
FPPC Conflict of Interest Analysis Step Three: Can you demonstrate that material financial effect on you is indistinguishable from effect on public generally? Step Four: If you have a conflict, and no applicable exemption, you may not make, participate in making, or use your position to influence decision.
Penalties for Violation FPPC May Impose: Administrative, Civil and Criminal Penalties Fines up to $5,000 per violation Orders to take required actions Orders to stop actions in violation of Act Judicial Remedies May Include: Injunctive Relief Order voiding the decision
Conflicts Under Gov. Code 1090 Contracts, Sales and Purchases -- Public Officials shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Three Part Analysis: 1. Does 1090 apply to your office/agency? 2. Are you financially interested in contract? 3. Is Contract made by your board or you as official?
Conflicts Under Gov. Code 1090 Section 1090 Enforcement: Void Contract Criminal Fines and Imprisonment Civil Penalties to $10,000 Disqualification from Future Public Office
Ethics Support System Anaheim City Clerk -- Form 700 Filing Officer -- Responsible for AB 1234 Training
Numerous Resources Online Ethics Support System
Ethics Support System FPPC Informal Advice FPPC Formal Advice FPPC Formal Opinions Attorney General Opinions
Ethics Support System City Attorney s Office
Questions?