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HomeMy WebLinkAbout01-21-2015 City Council Agenda Packet q T AGENDA jo �`'' SPECIAL MEETING SARATOGA CITY COUNCIL ��� JANUARY 21, 2015 SPECIAL MEETING—5:00 P.M.—ADMINISTRATIVE CONFERENCE ROOM, CITY HALL, 13777 FRUITVALE AVENUE ORAL COMMUNICATIONS ON NON-AGENDIZED ITEMS Any member of the public will be allowed to address the City Council for up to three (3) minutes on matters not on this agenda. The law generally prohibits the council from discussing or taking action on such items. However, the Council may instruct staff accordingly regarding Oral Communications under Council Direction to Staff. ADJOURN TO CLOSED SESSION—5:00 P.M. CONFERENCE WITH LABOR NEGOTIATORS (Gov't Code 54957.6) Agency Designated Representatives: City Manager James Lindsay, City Attorney Richard Taylor, Human Resources Manager Monica LaBossiere Employee Organizations: Northern California Carpenters Regional Council, Carpenters Forty Six Northern California Counties Conference Board and their Affiliated Local Unions (Union); Saratoga Employee Association; Saratoga Management Organization CALL JOINT MEETING TO ORDER—6:00 P.M. 1. Saratoga Ministerial Association Recommended Action: Informational Only ADJOURNMENT In accordance with the Ralph M. Brown Act, copies of the staff reports and other materials provided to the City Council by City staff in connection with this agenda are available at the office of the City Clerk at 13777 Fruitvale Avenue, Saratoga, CA 95070. Note that copies of materials distributed to the City Council concurrently with the posting of the agenda are also available on the City Website at www.saratoga.ca.us. Any materials distributed by staff after the posting of the agenda are made available for public review at the office of the City Clerk at the time they are distributed to the City Council. In Compliance with the Americans with Disabilities Act, if you need assistance to participate in this meeting, please contact the City Clerk at 408/868-1269. Notification 24 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102-35.104 ADA title II] 1 Certificate of Posting of Agenda: I, Crystal Bothelio, City Clerk for the City of Saratoga, declare that the foregoing agenda for the meeting of the City Council was posted and available for public review on January 14, 2015 at the City of Saratoga, 13777 Fruitvale Ave., Saratoga, CA 95070 and on the City's website at www.saratQg_a.ca.us. Signed this 14th day of January 2015 at Saratoga, California. Crystal Bothelio, City Clerk 2 y o{ SARgT City of Saratoga CITY COUNCIL JOINT MEETING 1956 FOVN Meeting Discussion Topics Joint Meeting with Ministerial Association January 21, 2015 16:00 p.m. Saratoga City Hall I Administrative Conference Room 6:00 p.m. Ministerial Association Updates 6:20 p.m. Community Building Programs for 2015 (Report from each organization) 6:45 p.m. Other Remarks & Wrap Up * The Regular City Council Meeting begins at 7:00 p.m. in the Civic Theater. Joint meeting attendees are invited to attend the Regular Meeting and share on overview of the joint meeting with the public during Oral Communications. Table of Contents Agenda. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Commendation for Richie Sun Staff Report . . . . . . . . . . . . . . . . . . . . . . . . . 8 Attachment A: Commendation for Richie Sun. . . . . . . . . . 9 Commendation for Assistant Sheriff Kenneth Binder Staff report . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Attachment A - Commendation for Assistant Sheriff Kenneth Binder. . . . . . . . . . . . . . . . . . . . . . . . 11 City Council Meeting Minutes Staff Report . . . . . . . . . . . . . . . . . . . . . . . . . 12 Attachment A - Minutes for the Special and Regular City Council Meeting on December 17, 2014 . . . . . . . . . . . . 13 Review of Accounts Payable Check Registers Staff Report . . . . . . . . . . . . . . . . . . . . . . . . . 21 01/06/2015 Check Register . . . . . . . . . . . . . . . . . . 22 01/13/2015 Check Register . . . . . . . . . . . . . . . . . . 27 Treasurer's Report for the Month Ended November 30, 2014 Treasurers Report for the Month Ended November 30, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Resolution Authorizing Final Disposition of Certain City Records Staff report . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Exhibit A: List of Records Proposed for Final Disposition . . . . 44 Hazardous Vegetation Program Resolution Declaring Abatement of Public Nuisance Staff Report . . . . . . . . . . . . . . . . . . . . . . . . . 47 Attachment A - Resolution Declaring Abatement of a Public Nuisance as to Specified Properties Containing Hazardous Vegetation. . . . . . . . . . . . . . . . . . . . . 49 Attachment B - 2015 Commencement Report . . . . . . . . . 51 Attachment C - Sample Informational Materials Mailed to Property Owners on Commencement Report . . . . . . . . 56 Attachment D - Resolution 14-074 Declaring Hazardous Vegetation to be a Nuisance and Setting Public Hearing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Amendment to Contract Planning Services Agreement Staff Report . . . . . . . . . . . . . . . . . . . . . . . . . 70 Attachment A - Proposed Contract Amendment . . . . . . . . 71 Attachment B - Original Contract. . . . . . . . . . . . . . . . 74 Council Direction on Tobacco Retailer Licensing Ordinance & E- Cigarette Regulations Staff Report . . . . . . . . . . . . . . . . . . . . . . . . . 95 Attachment A - Santa Clara County Tobacco Retail Licensing Fact Sheet . . . . . . . . . . . . . . . . . . . . . 96 1 Attachment B - Santa Clara County Tobacco Prevention Policy Matrix by Jurisdiction . . . . . . . . . . . . . . . . . . 98 Attachment C - City of Campbell Tobacco Retailer Licensing Ordinance . . . . . . . . . . . . . . . . . . . . . 99 Attachment D - Santa Clara County Tobacco Retailer Licensing Ordinance . . . . . . . . . . . . . . . . . . . . . 115 Attachment E - California Youth Advocacy Network E- Cigarette Fact Sheet . . . . . . . . . . . . . . . . . . . . . 129 Attachment F - Santa Clara County United for Health Grant Program Fact Sheet . . . . . . . . . . . . . . . . . . 131 City Council Handbook Staff Report . . . . . . . . . . . . . . . . . . . . . . . . . 133 Attachment A - City Council Handbook. . . . . . . . . . . . . 134 2 AGENDA �r REGULAR MEETING SARATOGA CITY COUNCIL JANUARY 21, 2015 REGULAR MEETING—7:00 P.M.—CIVIC THEATER/COUNCIL CHAMBERS AT 13777 FRUITVALE AVENUE PLEDGE OF ALLEGIANCE ROLL CALL REPORT OF CITY CLERK ON POSTING OF AGENDA The agenda for this meeting was properly posted on January 14, 2015. REPORT FROM CLOSED SESSION COMMUNICATIONS FROM COMMISSIONS & PUBLIC Oral Communications on Non-Aaendized Items Any member of the public will be allowed to address the City Council for up to three (3) minutes on matters not on this agenda. The law generally prohibits the Council from discussing or taking action on such items. However, the Council may instruct staff accordingly regarding Oral Communications under Council Direction to Staff. Oral Communications - Council Direction to Staff Instruction to Staff regarding actions on current Oral Communications. Communications from Boards and Commissions Council Direction to Staff Instruction to Staff regarding actions on current Communications from Boards & Commissions. ANNOUNCEMENTS CEREMONIAL ITEMS 1. Commendation for Richie Sun Recommended action: Present the commendation recognizing Richie Sun. 2. Commendation for Assistant Sheriff Kenneth Binder Recommended action: Present the commendation recognizing Assistant Sheriff Kenneth Binder. CONSENT CALENDAR The Consent Calendar contains routine items of business. Items in this section will be acted in one motion, unless removed by the Mayor or a Council member. Any member of the public may speak to an item on the Consent Calendar at this time, or request the Mayor remove an item from the Consent Calendar for discussion. Public Speakers are limited to three (3) minutes. 3. City Council Meeting Minutes Recommended action: Approve the City Council minutes for the Special and Regular City Council Meeting on December 17, 2014. 4. Review of Accounts Payable Check Registers Recommended action: Review and accept check registers for the following accounts payable payment cycles: 1/6/2015 Period 7 1/13/2015 Period 7 5. Treasurer's Report for the Month Ended November 30, 2014 Recommended action: Review and accept the Treasurer's Report for the month ended November 30, 2014. 6. Resolution Authorizing Final Disposition of Certain City Records Recommended action: Adopt resolution authorizing final disposition of certain city records. PUBLIC HEARINGS Applicants/Appellants and their representatives have a total of ten minutes maximum for opening statements. Members of the public may comment on any item for up to three minutes. Applicant/Appellants and their representatives have a total of five minutes maximum for closing statements. Items requested for continuance are subject to Council's approval at the Council meeting 7. Hazardous Vegetation Program Resolution Declaring Abatement of Public Nuisance Recommended action: Conduct public hearing and adopt resolution. OLD BUSINESS None NEW BUSINESS 8. Amendment to Contract Planning Services Agreement Recommended action: Authorize the City Manager to execute an amendment to an existing contract with the Metropolitan Planning Group to increase the not-to-exceed amount by$60,000 (from $45,000 to $105,000). 9. Council Direction on Tobacco Retailer Licensing Ordinance & E-Cigarette Regulations Recommended action: Provide direction to staff on whether to prepare an ordinance implementing a tobacco retailer licensing requirement and/or establishing e-cigarette regulations. 10. City Council Handbook Recommended action: Provide staff with input on the City Council Handbook. No action is needed. ADHOC & AGENCY ASSIGNMENT REPORTS Mayor Howard Miller Cities Association of Santa Clara County Council Finance Committee Valley Transportation Authority(VTA) Policy Advisory Committee VTA Board West Valley Cities Alternate West Valley Mayors and Managers Association West Valley Solid Waste Management Joint Powers Authority Vice Mayor Manny Cappello Council Finance Committee Hakone Foundation Board Santa Clara County Housing and Community Development(HCD) Council Committee Saratoga Area Senior Coordinating Council (SASCC) West Valley Sanitation District Council Member Emily Lo Hakone Foundation Board&Executive Committee KSAR Community Access TV Board Santa Clara County Library Joint Powers Authority Council Member Mary-Lynne Bernald Association of Bay Area Governments Cities Association of Santa Clara County-Selection Committee Saratoga Historical Foundation Saratoga Sister City Organization Council Member Rishi Kumar Santa Clara County Expressway Plan 2040 Policy Advisory Board Santa Clara Valley Water District Commission Saratoga Chamber of Commerce &Destination Saratoga Saratoga Ministerial Association CITY COUNCIL ITEMS CITY MANAGER'S REPORT ADJOURNMENT In accordance with the Ralph M. Brown Act, copies of the staff reports and other materials provided to the City Council by City staff in connection with this agenda are available at the office of the City Clerk at 13777 Fruitvale Avenue, Saratoga, CA 95070. Note that copies of materials distributed to the City Council concurrently with the posting of the agenda are also available on the City Website at www.saratoaa.ca.us.Any materials distributed by staff after the posting of the agenda are made available for public review at the office of the City Clerk at the time they are distributed to the City Council. In compliance with the Americans with Disabilities Act (ADA), if you need special assistance to participate in this meeting,please contact the City Clerk at (408) 868-1269. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting(28 CFR 35.102-35.104 ADA Title II) Certificate of Posting of Agenda: I, Crystal Bothelio, City Clerk for the City of Saratoga, declare that the foregoing agenda for the meeting of the City Council for the City of Saratoga was posted on January 14, 2015, at the City of Saratoga, 13777 Fruitvale Ave., Saratoga, CA 95070 and was available for public review at that location. The agenda is also available on the City's website at www.saratoga.ca.us Signed this 14th day of January 2015 at Saratoga, California. Crystal Bothelio, City Clerk NOTE: To view current or previous City Council meetings anytime, go to the City Video Archives at www.saratofza.ca.us 'v CITY OF SARATOGA CITY COUNCIL MEETING CALENDAR 2015 01/21 Regular Meeting—5:00 p.m. Closed Session,Joint Meeting with Saratoga Ministerial Association at Community center 01/23 Council Retreat—8:30 a.m.—Foothill Club 02/04 Regular Meeting—5:30 p.m. Joint Meeting with Planning Commission and Heritage Preservation Commission,Arts and Crafts Room, Community Center 02/18 Regular Meeting—6:00 p.m. Closed Session 03/04 Regular Meeting—Joint Meeting with Traffic Safety Commission 03/18 Regular Meeting—Joint Meeting with Parks&Rec Commission and PEBTAC 04/01 Regular Meeting—Joint Meeting with Library Commission, Librarians, and Friends of Library 04/13 6:00 p.m. Budget Study Session 04/15 Regular Meeting—Closed Session 04/29 6:00 p.m. Architecture 101 Study Session with Planning Commission and Heritage Preservation Commission—Saratoga Senior Center, Saunders Room 05/06 Regular Meeting—Joint Meeting with Mt.Winery and Montalvo Arts 05/20 Regular Meeting—Joint Meeting Chamber of Commerce and Destination Saratoga 06/03 Regular Meeting—Joint Meeting with HOA's in Senior Center, Saunders Room 06/17 Regular Meeting—Joint Meeting with Sheriff Office and County Fire 07/01 Regular Meeting—Joint Meeting TBD 07/15 Meeting Cancelled 08/05 Meeting Cancelled 08/19 Regular Meeting—Joint Meeting TBD 09/02 Regular Meeting—Joint Meeting with SASCC 09/16 Regular Meeting—Joint Meeting with Youth Commission 10/07 Regular Meeting—5:30 p.m. Joint Meeting with Saratoga School Districts in Senior Center, Saunders Room 10/21 Regular Meeting—Joint Meeting with Historical Foundation 11/04 Regular Meeting—Joint Meeting with West Valley—Mission Community College Board of Trustees 11/18 Regular Meeting—Joint Meeting with Senator Beall Jr. or Assembly Member Evan Low 12/02 Regular Meeting—Joint Meeting with Hakone Foundation Board of Trustees 12/16 Regular Meeting—Council Norms Study Session Unless otherwise stated, Joint Meetings and Study Sessions begin at 6:00 p.m. in the Administrative Conference Room at Saratoga City Hall at 13777 Fruitvale Avenue. SARATOGA CITY COUNCIL 7956 MEETING DATE: January 21, 2015 DEPARTMENT: City Manager PREPARED BY: Debbie Bretschneider, Deputy City Clerk SUBJECT: Commendation for Richie Sun RECOMMENDED ACTION: Present the commendation recognizing Richie Sun. BACKGROUND: Richie Sun is a Saratoga High School student. He competed at the 6th World Traditional Wushu Championship and won a Bronze medal in Traditional Shalin Fist and a Silver medal in Traditional Broadsword. ATTACHMENTS: Attachment A—Commendation for Richie Sun 8 COMMENDATION OF THE CITY COUNCIL OF THE CITY OF SARATOGA HONORING RICHIE SUN WHEREAS, Richie Sun is a sophomore at Saratoga High School and has lived in Saratoga since 2007; and WHEREAS, Richie Sun started practicing martial arts for four years ago with Master Shi Yan Yong at Shaolin Shaolin Martial Arts and has since proven himself to be a disciplined and accomplished competitor; and WHEREAS, Richie competed for the U.S. Team at the 6th World Traditional Wushu Championship in Chizhou, China in October 2014; and WHEREAS, Wushu is a Chinese martial art and competitive Wushu consists of two disciplines — forms and sparring; and WHEREAS, a total of 200 athletes from 53 countries participated in the 6th World Traditional Wushu Championship; and WHEREAS, just one year ago, Richie suffered an injury and was unable to complete, and through his determination and dedication he recovered and earned great distinction at the 6th World Traditional Wushu Championship; and WHEREAS, in the 13-18 years old category, Richie earned a Bronze medal in Traditional Shalin Fist and a Silver medal in the Traditional Broadsword; and WHEREAS, the Chinese newspaper, World Journal, highlighted Richie in an article about his achievements in martial arts. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Saratoga does hereby congratulate Richie Sun on his achievements at the 6th World Traditional Wushu Championship. WITNESS MY HAND AND THE SEAL OF THE CITY OF SARATOGA on this 21St day of January 2015. Howard A. Miller, Mayor City of Saratoga SARATOGA CITY COUNCIL 7956 MEETING DATE: January 21, 2015 DEPARTMENT: City Manager PREPARED BY: Debbie Bretschneider, Deputy City Clerk SUBJECT: Commendation for Assistant Sheriff Kenneth Binder RECOMMENDED ACTION: Present the commendation recognizing Assistant Sheriff Kenneth Binder. BACKGROUND: Captain Ken Binder has been the Division Commander of the Santa Clara County Sheriff's Office West Valley Patrol Division since 2012. In December 2014, the Santa Clara County Sheriff's Office announced Ken's promotion to Assistant Sheriff overseeing the Enforcement Bureau. Assistant Sheriff Binder will introduce the new commander of the Santa Clara County Sheriff's Office West Valley Patrol Division, Captain Rick Sung. ATTACHMENTS: Attachment A—Commendation for Assistant Sheriff Kenneth Binder 10 COMMENDATION OF THE CITY COUNCIL OF THE CITY OF SARATOGA HONORING ASSISTANT SHERIFF KENNETH BINDER WHEREAS,Assistant Sheriff Kenneth Binder has been with the Santa Clara County Sheriff's Office for 15 years; and WHEREAS, during his time with the Santa Clara County Sheriff's Office, Ken served as a Deputy in Court Security, Patrol, Field Training Officer, worked in the Sexual Assault Investigations Unit, and in 2004, he was promoted to Sergeant in 2004 and worked in Jails and then as a Homicide Detective in Investigations, where he distinguished himself by solving several homicides; and WHEREAS,Ken was promoted to Lieutenant in 2009 and served as patrol Watch Commander and as Academy Coordinator for the Sheriff's Justice Training Center; and WHEREAS, in 2011, Ken was promoted to Captain, where he commanded the Investigations Bureau before being selected to become the Division Commander of the Sheriff's Office West Valley Patrol Division in 2012; and WHEREAS, also in 2012, Kenneth participated in the 2481h Session of the FBI National Academy, which is an intensive 10-week academy featuring advance investigative, management, and fitness training; and WHEREAS, during Ken's time as Division Commander of the Sheriff's Office West Valley Patrol Division, Saratoga was named safest city in California and 12th safest city in the United States, he organized and launched an Annual Crime Prevention Forum, interacted with residents and provide timely safety information through a variety of means, including use of Nextdoor.com, and worked with the City of Saratoga to further safety initiatives by adding a new Traffic-School Liaison Motor Deputy in Saratoga; and WHEREAS, in December 2014, the Santa Clara County Sheriff's Office announced Ken's promotion to the position of Assistant Sheriff, where he will be overseeing the Enforcement Bureau, which is comprised of three patrol divisions. NOW, THEREFORE,BE IT RESOLVED that the City Council of the City of Saratoga does hereby extend its sincere appreciation to Kenneth Binder for his dedicated service and contributions to the City of Saratoga and wishes him the best of luck in his future endeavors. WITNESS MY HAND AND THE SEAL OF THE CITY OF SARATOGA this 21 st day of January 2015. Howard A. Miller, Mayor City of Saratoga SARATOGA CITY COUNCIL 7956 MEETING DATE: January 21, 2015 DEPARTMENT: City Manager's Office PREPARED BY: Crystal Bothelio, City Clerk SUBJECT: City Council Meeting Minutes RECOMMENDED ACTION: Approve the City Council minutes for the Special and Regular City Council Meeting on December 17, 2014. BACKGROUND: Draft City Council minutes for each Council Meeting are taken to the City Council to be reviewed for accuracy and approval. Following City Council approval, minutes are retained for legislative history and posted on the City of Saratoga website. The draft minutes are attached to this report for Council review and approval. FOLLOW UP ACTION: Minutes will be retained for legislative history and posted on the City of Saratoga website. ATTACHMENTS: Attachment A-Minutes for the Special and Regular City Council Meeting on December 17, 2014 12 MINUTES WEDNESDAY, DECEMBER 17,2014 SARATOGA CITY COUNCIL SPECIAL MEETING The City Council held a Joint Meeting with the Hakone Foundation Board of Trustees at 6:00 p.m. in the Administrative Conference Room at City Hall at 13777 Fruitvale Avenue. SARATOGA CITY COUNCIL REGULAR MEETING Mayor Miller called the Regular Meeting to order at 7:02 p.m. in the Civic Theater at 13777 Fruitvale Avenue and led the Pledge of Allegiance. ROLL CALL PRESENT Mayor Howard Miller, Vice Mayor Manny Cappello, Council Members Emily Lo, Mary-Lynne Bemald, Rishi Kumar ABSENT: None ALSO PRESENT: James Lindsay, City Manager Richard Taylor, City Attorney John Cherbone, Public Works Director Mary Furey, Finance & Administrative Services Director Michael Taylor, Recreation&Facilities Director Christopher Riordan, Senior Planner Brian Babcock, Administrative Analyst I REPORT OF CITY CLERK ON POSTING OF AGENDA City Clerk Crystal Bothelio reported that the agenda for this meeting was properly posted on December 12, 2014. COMMUNICATIONS FROM COMMISSIONS & PUBLIC Oral Communications on Non-Auendized Items Robert Lanz shared his concerns regarding the death of Audrie Pott, cyber bullying, active shooter scenarios, and encouraged the City Council to do what it can to protect young people. Trish Cypher read a letter regarding Plan Bay Area and expressed objections to Plan Bay Area. Oral Communications- Council Direction to Staff None Communications from Boards and Commissions Ann Waltonsmith, Chair of the Hakone Foundation Board of Trustees, provided an overview of the City Council's Joint Meeting with the Hakone Foundation Board of Trustees. She also noted that in 2015, Hakone will begin celebrating its centennial. The celebration will run through 2017 to recognize important events in the history of Hakone Gardens. She also invited the public to Page 1 of 8 13 visit Hakone Gardens and shared that the City and Hakone Gardens will soon be working together to create a master plan for Hakone Gardens. Council Direction to Staff None ANNOUNCEMENTS Mayor Miller announced programs in the Saratoga Recreation Activity Guide, which includes the City's newsletter, the Saratogan. Vice Mayor Cappello announced Fly Me to the Moon, a dance held in partnership between the Saratoga Youth Commission and Saratoga Area Senior Coordinating Council (SASCC). The event will take place on Saturday, January 24, 2015 from 6:00 p.m. to 10:00 p.m. at the Saratoga Prospect Center and is intended to promote intergenerational connections. People of all ages are invited to attend. Council Member Kumar announced the third annual Christmas Karaoke event at Blue Rock Shoot on Friday, December 19, 2014 from 7:30 p.m. to 10:30 p.m. The event is free and organized by the Saratoga Cares Foundation. On January 31 in the afternoon at Saratoga Library, Saratoga Cares will also be holding a bicycle safety forum for youth. Parents and children are invited to attend to learn more about bicycle safety. Mayor Miller added that despite recent rainfall, California is still experiencing drought conditions and residents should continue doing their part to save water. CEREMONIAL ITEMS 1. Commendation Honoring Outgoing Traffic Safety Commissioner Nancy Kirk Recommended action: Read and present commendation. Mayor Miller presented the commendation to Nancy Kirk and recognized her service to the City of Saratoga. 2. Commissioner Appointment and Oath of Office Recommended action: Adopt the resolution appointing Rina Shah and Paula Cappello to the Heritage Preservation Commission and John Chen to the Traffic Safety Commission. Mayor Miller introduced the item. RESOLUTION NO. 14-072 CAPPELLO/LO MOVED TO ADOPT THE RESOLUTION APPOINTING RINA SHAH AND PAULA CAPPELLO TO THE HERITAGE PRESERVATION COMMISSION AND JOHN CHEN TO THE TRAFFIC SAFETY COMMISSION. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. Page 2 of 8 14 City Clerk Crystal Bothelio administered the Oath of Office to Rina Shah, Paula Cappello, and John Chen. SPECIAL PRESENTATIONS None CONSENT CALENDAR 3. City Council Meeting Minutes Recommended action: Approve the City Council minutes for the Special City Council Meeting on December 2, 2014 and the Special and Regular City Council Meeting on December 3, 2014. CAPPELLO/LO MOVED TO APPROVE THE CITY COUNCIL MINUTES FOR THE SPECIAL CITY COUNCIL MEETING ON DECEMBER 2,2014 AND THE SPECIAL AND REGULAR CITY COUNCIL MEETING ON DECEMBER 3, 2014. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 4. Review of Accounts Payable Check Registers Recommended action: Review and accept check registers for the following accounts payable payment cycles: 12/2/2014 Period 6 12/9/2014 Period 6 CAPPELLO/LO MOVED TO ACCEPT CHECK REGISTERS FOR THE FOLLOWING ACCOUNTS PAYABLE PAYMENT CYCLES: 12/2/2014 PERIOD 6 AND12/9/2014 PERIOD 6. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR.NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 5. Treasurer's Report for the Month Ended October 31, 2014 Recommended action: Review and accept the Treasurer's Report for the month ended October 31, 2014. CAPPELLO/LO MOVED TO ACCEPT THE TREASURER'S REPORT FOR THE MONTH ENDED OCTOBER 31, 2014. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 6. Approval of Sport User Agreements - 2015 Recommended action: Approve Sport User Agreements with American Youth Soccer Organization, Saratoga Little League, Quito Little League, De Anza Youth Soccer League, West Valley Lacrosse Club, West Valley Youth Soccer League, CISL (Adult Soccer League), and Saratoga Pony League for the use of Saratoga City parks and Prospect High School for organized sport use, and authorize the City Manager to execute the same. Page 3 of 8 15 CAPPELLO/LO MOVED TO APPROVE SPORT USER AGREEMENTS WITH AMERICAN YOUTH SOCCER ORGANIZATION, SARATOGA LITTLE LEAGUE, QUITO LITTLE LEAGUE,DE ANZA YOUTH SOCCER LEAGUE, WEST VALLEY LACROSSE CLUB,WEST VALLEY YOUTH SOCCER LEAGUE, CISL (ADULT SOCCER LEAGUE),AND SARATOGA PONY LEAGUE FOR THE USE OF SARATOGA CITY PARKS AND PROSPECT HIGH SCHOOL FOR ORGANIZED SPORT USE, AND AUTHORIZE THE CITY MANAGER TO EXECUTE THE SAME. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 7. 2015 Hazardous Vegetation Program Commencement Resolution Recommended action: Approve resolution declaring hazardous vegetation(weeds) as a public nuisance and setting a public hearing on January 21, 2015 to consider objections to the Abatement List. RESOLUTION NO. 14-073 CAPPELLO/LO MOVED TO APPROVE RESOLUTION DECLARING HAZARDOUS VEGETATION (WEEDS) AS A PUBLIC NUISANCE AND SETTING A PUBLIC HEARING ON JANUARY 21, 2015 TO CONSIDER OBJECTIONS TO THE ABATEMENT LIST. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR.NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 8. Second Amendment to Independent Contractor Agreement with PlaceWorks Extending the Term of the Agreement Recommended action: 1. Approve Second Amendment to Independent Contractor Agreement with PlaceWorks to extend the term of the Agreement to June 30, 2015. 2. Authorize the City Manager to execute the same. CAPPELLO/LO MOVED TO: 1)APPROVE SECOND AMENDMENT TO INDEPENDENT CONTRACTOR AGREEMENT WITH PLACEWORKS TO EXTEND THE TERM OF THE AGREEMENT TO JUNE 30, 2015; AND 2) AUTHORIZE THE CITY MANAGER TO EXECUTE THE SAME. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 9. Housing Element Implementation Ordinance Recommended action: Waive the second reading and adopt the proposed ordinance. Mayor Miller removed this item from the Consent Calendar to comment upon it. Mayor Miller invited public comment on the item. No one requested to speak. Page 4 of 8 16 ORDINANCE NO. 324 CAPPELLO/BERNALD MOVED TO WAIVE THE SECOND READING AND ADOPT THE PROPOSED ORDINANCE. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. PUBLIC HEARINGS None OLD BUSINESS None NEW BUSINESS 10. Presentation and Council Direction on linkAges TimeBank Program Recommended action: Receive presentation on the linkAges TimeBank Program and provide staff with direction on introduction and launch of the program in Saratoga. City Clerk Crystal Bothelio presented the staff report on this item and invited representatives of the Palo Alto Medical Foundation to give a presentation to the City Council on TimeBank. Vandana Pant, Palo Alto Medical Foundation Senior Director of Strategic Initiatives, and Christina Araiza, Palo Alto Medical Foundation Community Engagement Manager, delivered a presentation to the City Council. Mayor Miller invited public comment on the item. No one requested to speak. CAPPELLO/LO MOVED TO DIRECT STAFF TO WORK WITH THE PALO ALTO MEDICAL FOUNDATION TO LAUNCH THE LINKAGES TIMEBANK PROGRAM IN THE CITY OF SARATOGA. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR.NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 11. Review of Median Banner Policy Recommended action: Receive report and direct staff accordingly. Brian Babcock, Administrative Analyst,presented the staff report. Mayor Miller invited public comment on the item. No one requested to speak. CAPPELLO/LO MOVED TO MAKE NO CHANGES TO THE MEDIAN BANNER POLICY AT THIS TIME AND TO REVIEW THE POLICY ONLY AS NEEDED. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. Page 5 of 8 17 Mayor Miller invited a student from Notre Dame High School on stage to introduce herself. 12. Review of the Cox Avenue/Saratoga-Sunnyvale Road/Wardell Road Intersection Recommended action: Receive report and direct staff accordingly. Public Works Director John Cherbone presented the staff report. Mayor Miller invited public comment on the item. No one requested to speak. BERNALD/KUMAR MOVED TO DIRECT THE TRAFFIC SAFETY COMMISSION TO REVIEW AND CONSIDER IMPROVEMENTS TO THE COX AVENUE/SARATOGA-SUNNYVALE ROAD/WARDELL ROAD INTERSECTION, AS PART OF THE COMMISSION'S WORK PLAN. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR.NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 13. Commission Qualifications and Terms Expiring in 2015 Recommended action: Accept the list of Commission qualifications and terms expiring in the 2015 calendar year. City Clerk Crystal Bothelio presented the staff report. Mayor Miller invited public comment on the item. No one requested to speak. CAPPELLO/LO MOVED TO ACCEPT THE LIST OF COMMISSION QUALIFICATIONS AND TERMS EXPIRING IN THE 2015 CALENDAR YEAR. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. 14. Adoption of City Council Agency Assignments Recommended action: Approve the resolution adopting the 2015 City Council agency assignments. City Clerk Crystal Bothelio presented the staff report. Mayor Miller invited public comment on the item. No one requested to speak. Vice Mayor Cappello noted a typo in the spelling of Mayor Miller's name on the Finance Committee assignment. Page 6 of 8 18 RESOLUTION NO. 14-074 LO/KUMAR MOVED TO APPROVE THE RESOLUTION ADOPTING THE 2015 CITY COUNCIL AGENCY ASSIGNMENT,WITH THE CORRECTION TO MAYOR MILLER'S NAME. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR.NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. ADHOC &AGENCY ASSIGNMENT REPORTS Mayor Howard Miller Valley Transportation Authority Policy Advisory Committee (PAC)—Mayor Miller reported that he attended the Valley Transportation Authority(VTA) Board Meeting as the alternate and PAC Chair. During the meeting, a report on the status of the expansion of Bay Area Rapid Transit (BART) to Santa Clara County. Additionally, Envision Silicon Valley—a transit oriented sales tax currently expected to go before voters in 2016—was discussed. Vice Mayor Manny Cappello Saratoga Area Senior Coordinating Council (SASCC)—Marta Weinstock has been appointed as interim Executive Director. Additionally, an appeal letter requesting donations and sponsorships will be going out soon. SASCC will also be seeking pro-bono design services for potential renovations to the Senior Center. SASCC has also started planning for next year's health fair. Saratoga Chamber of Commerce—during the last meeting, the Board discussed various options for hiring an Executive Director. This included a possible merger with the Los Gatos Chamber of Commerce as well as establishing a business improvement district. Council Member Emily Lo No report CITY COUNCIL ITEMS Mayor Miller shared that the City Council Retreat is coming up on January 23, 2015. He shared that it is an opportunity for the City Council to discuss priorities for the City in a more informal manner. Topics will include financial decisions, commission work plans, and community engagement. CITY MANAGER'S REPORT City Manager James Lindsay provided a status report on the recent storm. He shared that the storm impacted the City, but damage was minimal and he is proud of the response of City crews. Council Member Lo asked for an update on the recruitment of a Community Development Director. City Manager James Lindsay shared that a selection will be made before the holiday furlough. Page 7 of 8 19 ADJOURNMENT CAPPELLO/LO MOVED TO ADJOURN THE MEETING AT 9:33 P.M. MOTION PASSED. AYES: MILLER, CAPPELLO, LO, BERNALD, KUMAR. NOES: NONE. ABSTAIN: NONE. ABSENT: NONE. Minutes respectfully submitted: Crystal Bothelio, City Clerk City of Saratoga Page 8 of 8 20 SARATOGA CITY COUNCIL 995fi CQ L!F O RNP MEETING DATE: January 21,2015 DEPARTMENT: Finance&Administrative Services PREPARED BY: Gina Scott,Accounting Technician SUBJECT: Review of Accounts Payable Check Registers RECOMMENDED ACTION: Review and accept check registers for the following accounts payable payment cycles: 1/6/2015 Period 7 1/13/2015 Period 7 BACKGROUND: The information listed below provides detail for weekly City check runs. Checks issued for$20,000 or greater are listed separately as well as any checks that were void during the time period. Fund information,by check run,is also provided in this report. REPORT SUMMARY: Attached are Check Registers for: Prior Check Register Ending Total Checks Ending Type of Checks Date Starting Check# Check# Checks Amount Released Date Check# Accounts Payable 1/6/15 127110 127146 37 100,876.00 01/06/15 12/17/14 127109 Accounts Payable 1/13/15 127147 127219 73 677,921.09 01/13/15 1/6/15 127146 Accounts Payable checks issued for$20,000 or greater: Date Check# Issued to Fund Dept. Purpose Amount 01/06/15 127118 Chrisp Company Gas Tax PW Striping Program 55,550.45 01/13/15 127160 Comp Shared Risk/ABAG Worker's Comp General Insurance 36,762.31 01/13/15 127184 Mark Thomas&Company CIP Street Project PW Quito Road Bridge 21,088.70 01/13/15 127192 1SCC Office of the Sheriff General IPS Law Enforcement 1 383,378.33 01/13/15 127199 lRegistrar of Voters General General 2014 Election 45,993.00 01/13/15 127208 1 Shute Mihaly&Weinberger General Legal Attorney Services 20,897.69 Accounts Payable checks voided during this time period: AP Date I Check#I Issued to Reason Status Amount N/A ADVERTISING,NOTICING AND PUBLIC CONTACT: Pursuant to Government Code 54954.2,this item was properly posted as a City Council agenda item and included in the packet made available on the City's website in advance of the meeting. A copy of the agenda packet is also made available at the Saratoga Branch Library each Monday in advance of the Council meeting. ATTACHMENTS: Check Registers in the'A/P Checks By Period and Year'report format 21 SUNGARD PUBLIC SECTOR PAGE NUMBER: 1 DATE: 01/06/2015 CITY OF SARATOGA VENCHKII TIME: 12:54:33 CHECK REGISTER - FUND TOTALS ACCOUNTING PERIOD: 7/15 FUND FUND TITLE AMOUNT 111 GENERAL FUND 34,277.91 231 VILLAGE LIGHTING DISTRICT 30.68 241 ARROYO DE SARATOGA LNDSCP 68.00 243 CARNELIAN GLEN LANDSCAPE 68.00 244 CUNNINGHAM/GLASGOW LND 135.00 245 FREDERICKSBURG LANDSCAPE 102.00 246 GREENBRIAR LANDSCAPE 230.00 247 KERWIN RANCH LANDSCAPE 270.00 248 LEUTAR COURT LANDSCAPE 75.00 249 MANOR DRIVE LANDSCAPE 130.00 251 MCCARTYSVILLE LANDSCAPE 250.00 252 PRIDES CROSSING LANDSCAPE 405.00 254 SUNLAND PARK LANDSCAPE 260.00 255 TRICIA WOODS LANDSCAPE 34.00 271 BEUACHAMPS L&L 68.00 272 BELLGROVE L&L 1,710.00 273 GATEWAY L&L 129.40 274 HORSESHOE DRIVE L&L 135.00 275 QUITO L&L 75.00 276 TOLLGATE L&L 80.00 277 VILLAGE COMMERCIAL L&L 17.26 278 BROOKGLEN L&L 50.00 413 CIP FACILITY PROJECT FUND 829.36 481 GAS TAX FUND 57,100.92 621 OFFICE SUPPORT 716.97 622 IT SERVICES 1,028.71 623 VEHICLE & EQUIPMENT MAINT 325.61 624 BUILDING MAINTENANCE 2,274.18 TOTAL REPORT 100,876.00 22 SUNGARD PUBLIC SECTOR PAGE NUMBER: 1 DATE: 01/06/2015 CITY OF SARATOGA VENCHKII TIME: 12:54:13 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION------- AMOUNT 127110 11111 01/06/15 234 A T & T 63211 EL QUITO IRRIGATION 17.05 127110 11111 01/06/15 234 A T & T 63211 SUPERTRUNK 418.15 127110 11111 01/06/15 234 A T & T 63211 PROSPECT ROAD 32.28 127110 11111 01/06/15 234 A T & T 63211 HISTORICAL PARK IRRIG 17.26 127110 11111 01/06/15 234 A T & T 63211 BIG BASIN WAY IRRIG 17.26 127110 11111 01/06/15 234 A T & T 63211 TITUS/PROSPECT MED 17.26 TOTAL CHECK 519.26 127111 11111 01/06/15 17 AAA FIRE PROTECTION SERVI 64513 FIRE ALARM TEST 192.41 127112 11111 01/06/15 35 ACCENT GRAPHICS 61111 BUS CARDS/NAME PINS 180.93 127112 11111 01/06/15 35 ACCENT GRAPHICS 61111 BUS CARDS/NAME_ PINS 164.87 127112 11111 01/06/15 35 ACCENT GRAPHICS 61111 BUS CARDS/NAME PINS 36.37 127112 11111 01/06/15 35 ACCENT GRAPHICS 61111 BUS CARDS/NAME PINS 161.36 TOTAL CHECK 543.53 127113 11111 01/06/15 1186 ADVANCED FUEL SERVICES, I 62144 NOVEMBER FUEL TESTING 200.00 127114 11111 01/06/15 152 AMERICAN PLANNING ASSOCIA 62251 2015 MEMBER-RIORDAN 455.00 127115 11111 01/06/15 197 ARROWHEAD MOUNTAIN SPRING 62614 WATER SERVICE 123.93 127116 11111 01/06/15 314 BAY TELECOM 81161 ALARM WIRING 829.36 127117 11111 01/06/15 1159 CHAVAN & ASSOCIATES, LLP 65131 FY 13/14 AUDITING SERVICE 41.00 127117 11111 01/06/15 1159 CHAVAN & ASSOCIATES, LLP 65131 FY 13/14 SINGLE & REPORT 2,500.00 TOTAL CHECK 2,541.00 127118 11111 01/06/15 935 CHRISP COMPANY 21132 RETENTION HELD PO#72 -2,421.95 127118 11111 01/06/15 935 CHRISP COMPANY 81161 STRIPING PROGRAM 53,594.51 127118 11111 01/06/15 935 CHRISP COMPANY 81161 STRIPING PROGRAM 4,377.89 TOTAL CHECK 55,550.45 127119 11111 01/06/15 176 CIENEGA LANDSCAPING 64541 DEC AZULE PARK 395.00 127119 11111 01/06/15 176 CIENEGA LANDSCAPING 64547 DEC QUITO LLA 75.00 127119 11111 01/06/15 176 CIENEGA LANDSCAPING 64547 DEC GREENBRIAR SEAGUL 95.00 127119 11111 01/06/15 176 CIENEGA LANDSCAPING 64547 DEC GREENBRIAR AZULE 135.00 127119 11111 01/06/15 176 CIENEGA LANDSCAPING 64547 DEC BROOKGLEN PARK 50.00 127119 11111 01/06/15 176 CIENEGA LANDSCAPING 64541 DEC KEVIN MORAN PARK 275.00 127119 11111 01/06/15 176 CIENEGA LANDSCAPING 64541 DEC CONGRESS SPRINGS 400.00 TOTAL CHECK 1,425.00 127120 11111 01/06/15 1152 CORODATA RECORDS MANAGEME 62631 NOV OFF-SITE STORAGE 123.35 127121 11111 01/06/15 366 ECONOMIC DRIVING SCHOOL 64261 INSTRUCTOR-DRIVER ED 270.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC ARROYO DE SARA 68.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC BEAUCHAMPS LLA 68.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC CARNELIAN GLEN 68.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC CUNNINGHAM/GLAS 135.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64541 DEC DOWNTOWN 126.00 127122 11111 01/06/15 45.4 GACHINA LANDSCAPE MANAGEM 64541 DEC DWNTWN NEWSPAPER 68.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC FREDRICKSBURG 102.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC GATEWAY 102.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC KERWIN 270.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC LEUTAR CT 75.00 23 SUNGARD PUBLIC SECTOR PAGE NUMBER: 2 DATE: 01/06/2015 CITY OF SARATOGA VENCHKII TIME: 12:54:13 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION------- AMOUNT 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64548 DEC LIBRARY 464.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64543 DEC MEDIANS 3,587.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC PRIDES CROSSING 405.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC TOLLGATE 80.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64547 DEC TRICIA WOODS 34.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64541 DEC BEAUCHAMPS MTC 188.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64541 DEC BLANEY PLAZA MTC 196.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64541 DEC PARKING DIST MTC 270.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64541 DEC GARDINER PARK MTC 144.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 64543 DEC AUSTIN WAY MTC 167.00 127122 11111 01/06/15 454 GACHINA LANDSCAPE MANAGEM 81161 SAND BAGS 921.25 TOTAL CHECK 7,538.25 127123 11111 01/06/15 455 GARDENLAND POWER EQUIPMEN 64549 CHAINSAW SERVICE 226.85 127124 11111 01/06/15 488 HOME DEPOT CREDIT SERVICE 61341 PARKS SUPPLIES 713.49 127124 lilii 01/06/15' 488 HOME DEPOT CREDIT SERVICE 61331 STREETS SUPPLIES 133.34 " TOTAL CHECK 846.83 127125 11111 01/06/15 63 INTERSTATE TRAFFIC CONTRO 61312 VEH CHARGING STATIONS 125.61 127126 11111 01/06/15 1078 JUST LEAKS, INC. 64522 ROOF REPAIRS 518.00 127126 11111 01/06/15 1078 JUST LEAKS, INC. 64522 ROOF REPAIRS 365.28 TOTAL CHECK 883.28 127127 11111 01/06/15 500 KITTY XU 24211 REFUND FACILITY 500.00 127128 11111 01/06/15 100 KSAR 68121 4 BROADCASTS 2,500.00 127129 11111 01/06/15 194 LIEBERT, CASSIDY WHITMORE 66211 EMP LAW CONF 2015 500.00 127130 11111 01/06/15 221 LORAL LANDSCAPING, INC 64547 DEC BELLGROVE 1,710.00 127130 11111 01/06/15 221 LORAL LANDSCAPING, INC 64547 DEC HORSESHOE 135.00 127130 11111 01/06/15 221 LORAL LANDSCAPING, INC 64547 DEC MANOR DR 130.00 127130 11111 01/06/15 221 LORAL LANDSCAPING, INC 64547 DEC MCCARTYSVILLE 250.00 127130 11111 01/06/15 221 LORAL LANDSCAPING, INC 64547 DEC SUNLAND PARK 260.00 TOTAL CHECK 2,485.00 127131 11111 01/06/15 327 MCMINN, CHRISTINE 64261 INSTRUCTOR-DANCE 50.00 127132 11111 01/06/15 996 MEGAPATH 63213 ISP SVC 12/16-1/15/15 739.96 127133 11111 01/06/15 328 METROPOLITAN PLANNING GRO 65411 HOUSING ELEMENT 5,735.75 127133 11111 01/06/15 328 METROPOLITAN PLANNING GRO 65411 CONTRACT PLANNER SRVC 1,600.00 127133 11111 01/06/15 328 METROPOLITAN PLANNING GRO 22119 SUB14-0003 1,050.00 TOTAL CHECK 8,385.75 127134 11111 01/06/15 499 CARPENTERS LOCAL 2236 (MI 21262 DED:3000 DUES, 286.00 127135 11111 01/06/15 135 NORTH BAY BLDG MAINTENANC 64511 JANITORIAL SERVICES 494.00 127136 11111 01/06/15 145 OFFICE DEPOT INC. 61111 OFFICE SUPPLIES 52.17 127136 11111 01/06/15 145 OFFICE DEPOT INC. 61111 OFFICE SUPPLIES 12.88 TOTAL CHECK 65.05 127137 11111 01/06/15 60 ONTRAC 61112 DELIVERY CHARGES 5.35 24 SUNGARD PUBLIC SECTOR PAGE NUMBER: 3 DATE: 01/06/2015 CITY OF SARATOGA VENCHKII TIME: 12:54:13 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION------ AMOUNT 127137 11111 01/06/15 60 ONTRAC 61112 DELIVERY CHARGES 29.41 TOTAL CHECK 34.76 127138 11111 01/06/15 173 PACIFIC GAS & ELECTRIC 63111 BUILDINGS 130.13 127138 11111 01/06/15 173 PACIFIC GAS & ELECTRIC 63111 GATEWAY SERVICE 27.40 127138 11111 01/06/15 173 PACIFIC GAS & ELECTRIC 63111 MONTE VISTA DRIVE 23.54 127138 11111 01/06/15 173 PACIFIC GAS & ELECTRIC 63111 PARKS/OPEN SPACE 10.18 127138 11111 01/06/15 173 PACIFIC GAS & ELECTRIC 63111 VILLAGE LIGHTING 30.68 TOTAL CHECK 221.93 127139 11111 01/06/15 1092 PALACE ART & OFFICE SUPPL 61121 OFFICE SUPPLIES 593.62 127140 729 TERESA PHILLIPS VOID: MULTI STUB CHECK 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 671.37 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 959.10 127141 11111 01/06/15 T29 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE ' 575.46 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 238.05 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 383.64 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 287.73 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 287.73 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 47.61 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 479.55' 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 191.82 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 191.82 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 1,297.20 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 287.73 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 258.75 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 690.00 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 191.82 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 287.73 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 287.73 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 410.55 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 82.11 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 82.11 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 445.05 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 191.82 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 132.48 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 165.60 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 191.82 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 287.73 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 479.55 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 95.91 127141 11111 01/06/15 729 TERESA PHILLIPS 64261 INSTRUCTOR-DANCE 143.52 TOTAL CHECK 10,323.09 127142 11111 01/06/15 1246 STATEWIDE TRAFFIC SAFETY 61331 STREETS SUPPLIES 13.63 127143 11111 01/06/15 256 STEVENS CREEK QUARRY INC 81121 STREETS SUPPLIES 390.91 127143 11111 01/06/15 256 STEVENS CREEK QUARRY INC 81121 DISCOUNT TAKEN -4.99 127143 11111 01/06/15 256 STEVENS CREEK QUARRY INC 81121 STREETS SUPPLIES 246.45 127143 11111 01/06/15 256 STEVENS CREEK QUARRY INC 81121 DISCOUNT TAKEN -3.15 TOTAL CHECK 629.22 127144 11111 01/06/15 313 THE MERCURY NEWS 61113 SERVICE THRU 3/23/15 40.30 25 SUNGARD PUBLIC SECTOR PAGE NUMBER: 4 DATE: 01/06/2015 CITY OF SARATOGA VENCHKII TIME: 12:54:13 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION-------. AMOUNT 127145 11111 01/06/15 432 WEST VALLEY COLLECTIONS 62616 DEC CONGRESS SP BIN 330.83 127146 11111 01/06/15 696 ZAG TECHNICAL SERVICES, I 64315 IT SUPPORT SERVICES 288.75 TOTAL FUND 100,876.00 TOTAL REPORT 100,876.00 26 SUNGARD PUBLIC SECTOR PAGE NUMBER: 1 DATE: 01/13/2015 CITY OF SARATOGA VENCHKII TIME: 12:01:03 CHECK REGISTER - FUND TOTALS ACCOUNTING PERIOD: 7/15 FUND FUND TITLE AMOUNT 111 GENERAL FUND 548,048.39 231 VILLAGE LIGHTING DISTRICT 2,929.45 232 AZULE LIGHTING DISTRICT 256.95 233 SARAHILLS LIGHTING DIST 267.30 251 MCCARTYSVILLE LANDSCAPE 97.68 252 PRIDES CROSSING LANDSCAPE 26.41 255 TRICIA WOODS LANDSCAPE 10.18 271 BEUACHAMPS L&L 390.35 272 BELLGROVE L&L 466.10 274 HORSESHOE DRIVE L&L 10.18 275 QUITO L&L 846.55 276 TOLLGATE L&L 53.98 311 2001 LIBRARY GO BONDS 925.00 411 CIP STREET PROJECTS FUND 23,872.16 413 CIP FACILITY PROJECT FUND 30,411.04 414 CIP ADMIN PROJECTS FUND 1,484.48 431 CIP GRANT - STREET REPAIR 188.79 481 GAS TAX FUND 5,837.19 612 WORKERS COMP FUND 37,191.07 622 IT SERVICES 4,515.19 623 VEHICLE & EQUIPMENT MAINT 2,156.23 624 BUILDING MAINTENANCE 10,089.02 631 VEHICLE/EQUIP REPLACEMENT 7,847.40 TOTAL REPORT 677,921.09 27 SUNGARD PUBLIC SECTOR PAGE NUMBER: 1 DATE: 01/13/2015 CITY OF SARATOGA VENCHKII TIME: 12:00:31 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION------- AMOUNT 127147 11111 01/13/15 234 A T & T 63211 MNTHLY RECURRING CHRG 179.55 127147 11111 01/13/15 234 A T & T 63211 PROSPECT CENTER 78.34 127147 11111 01/13/15 234 A T & T 63211 BLANEY IRRIGATION 16.74 127147 11111 01/13/15 234 A T & T 63211 PROSPECT CTR ALARMS 199.21 127147 11111 01/13/15 234 A T & T 63211 CORP YRD EMERG LINES 40.83 127147 11111 01/13/15 234 A T & T 63211 ALRM SYS CIVIC THEATR 92.44 127147 11111 01/13/15 234 A T & T 63211 SR CTR ALARMS COM CTR 32.87 127147 11111 01/13/15 234 A T & T 63211 GATEWAY-IRR CONTROL 16.74 127147 11111 01/13/15 234 A T & T 63211 POSTAGE MACH-CPY RM 15.27 127147 11111 01/13/15 234 A T & T 63211 PHONE LINES & PARKS 17.57 127147 11111 01/13/15 234 A T & T 63211 EMERG LN-RECREATION 15.27 127147 11111 01/13/15 234 A T & T 63211 EMERG LN-CM OFFICE 17.05 127147 11111 01/13/15 234 A T & T 63211 EMERG LN-VM MAILBOX 76.26 127147 11111 01/13/15 234 A T & T 63211 AM 1610 RADIO SARA 17.05 127147 11111 01/13/15 234 A T & T 63211 BOOK-GO-ROUND ALARM 32.47 127147 11111 01/13/15 234 A T & T 63211 CS PARK HVP FOR IRRIG 33.32 127147 11111 01/13/15 234 A T & T 63213 PROSPECT INTERNET 92.00 TOTAL CHECK 972.98 127148 11111 01/13/15 500 AL ZEINY 43481 TRP14-0411 125.00 127149 11111 01/13/15 500 ANNETTE STRANSKY 81121 MCWILLIAMS HOUSE ITEM 125.00 127150 11111 01/13/15 1187 ASSOCIATED SERVICES COMPA 61133 COFFEE SERVICE 138.87 127151 11111 01/13/15 1269 BMC SOFTWARE, INC. 61213 SOFTWARE AGREEMENTS 2,273.04 127152 11111 01/13/15 51 CALIFORNIA MUNICIPAL STAT 64153 CAFR STATS 475.00 127153 11111 01/13/15 99 CAMPBELL UNION HIGH SCHOO 62622 FIELD RNTL FALL 2014 19,600.00 127154 11111 01/13/15 692 CBSC 21932 2ND Q 14/15 CBSC FEES 1,003.50 127155 11111 01/13/15 179 CIM AIR, INC 64514 HVAC REPAIRS 1,449.44 127155 11111 01/13/15 179 CIM AIR, INC 64514 HVAC REPAIRS 540.00 TOTAL CHECK 1,989.44 127156 11111 01/13/15 643 CMRTA C/O CITY OF MENLO P 62251 CMRTA RNWL ANN/JULIE 100.00 127157 11111 01/13/15 930 COLE SUPPLY COMPANY, INC. 61341 BATHROOM SUPPLIES 837.67 127158 11111 01/13/15 235 COMCAST 63213 MTHLY SVC 12/26-1/25 129.03 127159 11111 01/13/15 991 COMCAST 63213 MTHLY SVC 12/19-1/18 35.28 127160 11111 01/13/15 924 COMP SHARED RISK POOL/ABA 67211 Q PREMIUM 1/1-3/31/15 36,762.31 127161 11111 01/13/15 320 CYGANY INC 61341 PARKS SUPPLIES 534.00 127162 11111 01/13/15 1 DEPARTMENT OF REVENUE 62325 DEC 2014 PARKING CIT 87.50 127163 11111 01/13/15 562 DEPT OF ENVIRONMENTAL HEA 64731 HHWASTE PROGRAM 2014 676.33 127164 11111 01/13/15 1136 DIVISION OF THE STATE ARC 21931 OCT-DEC 2014 SB1186 152.70 127165 11111 01/13/15 378 EKIM PAINTING - NORTH, IN 81161 PAINTING EXTERIOR JPCC 9,700.00 28 SUNGARD PUBLIC SECTOR PAGE NUMBER: 2 DATE: 01/13/2015CITY OF SARATOGA VENCHKII TIME: 12:00:31 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION------- AMOUNT 127166 11111 01/13/15 1043 EMILY LO 21941 CANDIDATE REIMB COSTS 118.00 127167 11111 01/13/15 416 EVANS WEST VALLEY SPRAY 81161 WEED CONTROL 4,500.00 127168 11111 01/13/15 419 EVENT SERVICES 62615 PROSPECT PORTA POTTY 304.50 127169 11111 01/13/15 682 FEHR ENGINEERING COMPANY 81142 GENERATOR DESIGN WORK 720.00 127170 11111 01/13/15 454 GACHINA LANDSCAPE MANAGEM 64549 BLANEY PLAZA MULCH 407.50 127170 11111 01/13/15 454 GACHINA LANDSCAPE MANAGEM 61342 ANNUAL COLOR GATEWAY 840.00 127170 11111 01/13/15 454 GACHINA LANDSCAPE MANAGEM 64549 SOD RPR BEAUCHAMPS 341.00 127170 11111 01/13/15 454 GACHINA LANDSCAPE MANAGEM 64541 GARB CANS BIG BASIN 122.00 127170 11111 01/13/15 454 GACHINA LANDSCAPE MANAGEM 64549 IRRIGATION RPR-DAGMAR 164.79 127170 11111 01/13/15 454 GACHINA LANDSCAPE MANAGEM 64541 GARB CANS BIG BASIN 122.00 TOTAL CHECK 1,997.29 127171 11111 01/13/15 648 HEALTH EDUCATION SERVICES 61133 FACILITIES SUPPLIES 337.88 127172 11111 01/13/15 489 HORIZON DISTRIBUTORS, INC 61341 PARKS SUPPLIES 54.30 127173 11111 01/13/15 14 HYDROTEC IRRIGATION EQUIP 64549 IRRIGATION REPAIRS 97.37 127173' 11111 01/13/15 14 HYDROTEC IRRIGATION EQUIP 64549 IRRIGATION REPAIRS 77.31 TOTAL CHECK 174.68 127174 11111 01/13/15 19 IAN GEDDES TREE CARE, INC 64544 TREE RMVL-PARAMOUNT 5,800.00 127174 11111 01/13/15 19 IAN GEDDES TREE CARE, INC 64544 REMOVE PINE@PROSPECT 1,540.00 TOTAL CHECK 7,340.00 127175 11111 01/13/15 1163 INSIGHT PUBLIC SECTOR, IN 64312 SOFTWARE SUPPORT 742.22 127175 11111 01/13/15 1163 INSIGHT PUBLIC SECTOR, IN 64312 SOFTWARE SUPPORT 725.72 TOTAL CHECK 1,467.94 127176 11111 01/13/15 61 INTERSTATE BATTERY SYSTEM 61361 STREETS SUPPLIES 434.78 127177 11111 01/13/15 500 JEAN TIEN 43481 TRP14-0430 125.00 127178 11111 01/13/15 500 JOHN CHEN 21941 CANDIDATE REIMB COSTS 118.00 127179 11111 01/13/15 524 KIRK, ROBERT 21391 MED REIMB OCT-DEC 600.00 127180 11111 01/13/15 500 KISHAN & AMITA SHENOI 43481 TRP14-0478 125.00 127181 11111 01/13/15 929 KOPPEL & GRUBER PUBLIC FI 65514 L&L ADMIN SVC OCT-DEC 1,888.70 127182 11111 01/13/15 178 LEAGUE OF CALIFORNIA CITI 62211 2015 CITY MEMBER DUES 12,017.66 127183 11111 01/13/15 500 MARILYN MARCHETTI 61164 BADGES FOR COMMISSION 86.12 127184 11111 01/13/15 665 MARK THOMAS & COMPANY 81142 QUITO RD BRIDGES PROJECT- 15,935.70 127184 11111 01/13/15 665 MARK THOMAS & COMPANY 81142 QUITO RD BRIDGES PROJECT- 5,153.00 TOTAL CHECK 21,088.70 127185 11111 01/13/15 500 MARTHA HO 43481 TRP14-0454 125.00 127186 11111 01/13/15 500 MARY-LYNNE BERNALD 21941 CANDIDATE REIMB COSTS 118.00 29 SUNGARD PUBLIC SECTOR PAGE NUMBER: 3 DATE: 01/13/2015 CITY OF SARATOGA VENCHKII TIME: 12:00:31 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION------- AMOUNT 127187 11111 01/13/15 1267 MOSCONE EMBLIDGE SATE & 0 65281 CODE COMPLIANCE SRVC 755.50 127188 11111 01/13/15 79 MUNISERVICES LLC 64154 BL SRV ENDING 12/31 4,115.01 127189 11111 01/13/15 110 NBS-GOVT FINANCE GROUP 71113 REPORTING SERVICES 925.00 127190 11111 01/13/15 126 NORDAGRAR INTERNATIONAL, 81121 STREETS SUPPLIES 997.19 127191 11111 01/13/15 135 NORTH BAY BLDG MAINTENANC 64511 JANITORIAL SERVICES 570.00 127192 11111 01/13/15 1 OFF OF SHERIFF-FISCAL SVC 64811 JAN LAW ENFORCEMENT 383,378.33 127193 11111 01/13/15 145 OFFICE DEPOT INC. 61111 OFFICE SUPPLIES 25.41 127193 11111 01/13/15 145 OFFICE DEPOT INC. 61111 OFFICE SUPPLIES 25.40 127193 11111 01/13/15 145 OFFICE DEPOT INC. 61111 OFFICE SUPPLIES 91.53 TOTAL CHECK 142.34 127194 11111 01/13/15 1087 OSCAR URVIZO TELLEZ/OSCAR 64544 PINE TREE RMVL & DUMP 4,375.00 127194 11111 01/13/15 1087 OSCAR URVIZO TELLEZ/OSCAR 64544 PINE TREE RMVL & DUMP 6,250.00 TOTAL CHECK 10,625.00 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 AZULE LIGHTING 256.95 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 BEAUCHAMPS 49.35 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 BELLGROVE CIRCLE 466.10 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 BUILDINGS 4,910.51 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 HORSESHOE DR 10.18 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 MCCARTYSVILLE 20.37 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 PARKS/OPEN SPACE 470.36 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 PRIDES CROSSING 26.41 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 QUITO LIGHTING 846.55 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 SARAHILLS LIGHTING 267.30 1271.95 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 TOLLGATE 18.51 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 TRAFFIC SIGNALS 1,195.00 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 TRICIA WOODS 10.18 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 VILLAGE LIGHTING 2,405.47 127195 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 CITYWIDE ST LIGHTS 1,230.94 TOTAL CHECK 12,184.18 127196 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 81143 ENGINEERING REVIEW 1,000.00 127197 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 CITYWIDE ST LIGHTS 26.71 127197 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 61362 NATURAL GAS VEHICLE 12.80 127197 11111 01/13/15 173 PACIFIC GAS & ELECTRIC 63111 VILLAGE LIGHTING 523.98 TOTAL CHECK 563.49 127198 11111 01/13/15 890 PEELLE TECHNOLOGIES, INC 81148 DOCUMENT SCANNING SVC 1,484.48 127199 11111 01/13/15 1 REGISTRAR OF VOTERS 62321 11/4/14 ELECTION 45,993.00 127200 11111 01/13/15 410 RICH VOSS TRUCKING INC 81161 DELIVER SAND BAG MAT 340.00 127201 11111 01/13/15 500 RISHI KUMAR 21941 CANDIDATE REIMB COSTS 118.00 127202 11111 01/13/15 55 ROSS RECREATION EQUIPMENT 81161 PRE SCHOOL PLAYGROUND INS 19,866.04 30 SUNGARD PUBLIC SECTOR PAGE NUMBER: 4 DATE: 01/13/2015 CITY OF SARATOGA VENCHKII TIME: 12:00:31 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT ------DESCRIPTION------- AMOUNT 127203 11111 01/13/15 87 SAN JOSE WATER COMPANY 63112 BUILDINGS 496.23 127203 11111 01/13/15 87 SAN JOSE WATER COMPANY 63112 PARKS/OPEN SPACE 1,817.14 127203 11111 01/13/15 87 SAN JOSE WATER COMPANY 63112 TOLLGATE 35.47 127203 11111 01/13/15 87 SAN JOSE WATER COMPANY 63112 MEDIANS/PARKWAYS 817.24 TOTAL CHECK 3,166.08 127204 11111 01/13/15 69 SASCC 68113 Q3 ADULT DAYCARE GRNT 5,500.00 127204 11111 01/13/15 69 SASCC 68112 Q3 COMMUNITY SERVICES 4,635.00 127204 11111 01/13/15 69 SASCC 68111 Q3 SERVICE SUPPORT 5,250.00 TOTAL CHECK 15,385.00 127205 11111 01/13/15 505 SC FIRE DEPARTMENT 64261 INSTRUCTOR-CPR 140.00 127206 11111 01/13/15 1236 SC FUELS/SOUTHERN COUNTIE 61362 FUEL 988.07 127207 11111 01/13/15 136 SCOTTY'S AUTOMOTIVE 64611 MAINTENANCE VEH#116 62.50 127207 11111 01/13/15 136 SCOTTY'S AUTOMOTIVE 64611 MAINTENANCE VEH#122 169.19 127207 11111 01/13/15 136 SCOTTY'S AUTOMOTIVE 64611 MAINTENANCE VEH#107 69.19 TOTAL CHECK 200.88 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65212 CTY ATTN ADMIN SRVCS 41.60 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65219 CTY ATTN CITY CLERK 2,537.60 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65211 CTY ATTN CITY MANAGER 1,747.20 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65214 -CTY ATTN CODE ENFORCE 5,179.20 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65213 CTY ATTN COM DEV 1,705.60 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65217 CTY ATTN COUNCIL MTGS 2,704.00 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65218 CTY ATTN HUMAN RES 166.40 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65215 CTY ATTN PUBLIC WORKS 3,536.00 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 22119 CTY ATTN PUBLIC WORKS 852.80 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65216 CTY ATTN REC/RSK MGMT 249.60 127208 1111101/13/15 154 SHUTE MIHALY & WEINBERGER 61112 CTY ATTN REIMB EXP 24.57 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65256 CTY ATTN WESTLAW 269.55 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65219 GEN LGL CITY CLERK 613.20 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65214 GEN LGL CODE ENFORCE 42.80 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65215 GEN LGL PUBLIC WORKS 280.90 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 22119 GEN LGL PUBLIC WORKS 613.20 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65216 GEN LGL REC/RSK MGMNT 43.80 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65256 GEN LGL WESTLAW 239.67 127208 11111 01/13/15 154 SHUTE MIHALY & WEINBERGER 65214 CE LITIGATION 50.00 TOTAL CHECK 20,897.69 127209 11111 01/13/15 1077 SUNNYVALE BUILDING MAINTE 64551 WILDWOOD TH TRASH RMV 198.00 127209 11111 01/13/15 1077 SUNNYVALE BUILDING MAINTE 64551 FRIDAY PRK JANITORIAL 700.00 127209 11111 01/13/15 1077 SUNNYVALE BUILDING MAINTE 64551 WEEKEND PARK RESTROOM MAI 715.00 TOTAL CHECK 1,613.00 127210 11111 01/13/15 277 T.A.K. 'S EQUIPMENT SALES 77211 SOD CUTTER 7,847.40 127211 11111 01/13/15 308 TESTING ENGINEERS 81143 SOIL TESTING AND ENG 620.00 127211 11111 01/13/15 308 TESTING ENGINEERS 81143 SOIL TESTING AND ENG 620.00 127211 11111 01/13/15 308 TESTING ENGINEERS 81143 SOIL TESTING & ENG 429.21 127211 11111 01/13/15 308 TESTING ENGINEERS 81143 SOIL TESTING & ENG 188.79 TOTAL CHECK 1,858.00 127212 11111 01/13/15 1261 THE FRUITGUYS 61192 WEEKLY WELLNESS SNACK 209.76 127212 11111 01/13/15 1261 THE FRUITGUYS 61192 WEEKLY WELLNESS SNACK 219.00 31 SUNGARD PUBLIC SECTOR PAGE NUMBER: 5 DATE: 01/13/2015 CITY OF SARATOGA VENCHKII TIME: 12:00:31 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION------- AMOUNT TOTAL CHECK 428.76 127213 391 US BANK PURCHASING CARD P VOID: MULTI STUB CHECK 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61133 FACILITIES SUPPLIES 1,012.54 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 62131 ADVERTISING 15.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66112 COUNCIL MTG SUPPLIES 290.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66212 CONFERENCE LODGING 498.60 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66112 COUNCIL MEETINGS 1,007.52 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61111 OFFICE SUPPLIES 48.83 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61111 RETURN SUPPLIES -7.63 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66111 COUNCIL CANDIDATES 47.79 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61112 POSTAGE 1.15 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66112 MAYOR MEETING 48.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66111 STAFF RETREAT 241.20 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66111 VOLUNTEER OF THE YEAR 90.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P ' 66112 MEETING '19.78 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 64263 GREAT GETAWAY SNACKS 64.34 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 64263 GREAT GETAWAY DEP 87.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61165 YOUTH COM SUPPLIES 130.60 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 64263 GREAT GETAWAY TRIP 1,953.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66212 LCC CONF LODGING 166.20 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61132 JANITORIAL SUPPLIES 50.95 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61133 FACILITIES SUPPLIES 64.07 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61341 PARKS SUPPLIES 1,036.05 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66211 QAC EDUCATION-JAVIER 60.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61341 RETURN SUPPLIES -131.43 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 62131 ADVERTISING 46.50 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66321 CDD ORAL BOARD EXP 71.45 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66211 LCW CONF LODGING 329.94 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66211 NBS REVENUE WRKSHP 110.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61111 OFFICE SUPPLIES 65.60 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61133 FACILITIES SUPPLIES 8.05 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66212 LASERFICHE CONF TRVL 180.20 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61211 CABLES 157.70 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 64312 SOFTWARE SUPPORT 180.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 81121 VILLAGE PROJ BOLLARDS 114.25 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61111 OFFICE SUPPLIES 79.54 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66111 CREW MEALS-STORM DAYS 318.35 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66111 COFFEE SUPPLIES 76.60 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 62251 MMANC MEMBERSHIP 75.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 62112 PLUG N PAY 30.00 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 66111 MEETING EXPENSES 55.90 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61312 SUPPLIES/TOOLS 357.94 127214 11111 01/13/15 391 US BANK PURCHASING CARD P 61312 CR FOR SUPPLIES/TOOLS -173.27 TOTAL CHECK 8,877.31 127215 11111 01/13/15 402 VISTA LANDSCAPE & MAINTEN 64548 CIVIC CENTER PLANTS 2,320.00 127216 11111 01/13/15 902 WEST VALLEY TRAILWAYS 64263 1/9 EXCURSION 950.00 127217 11111 01/13/15 544 WHEEL WORKS 64611 MAINTENANCE VEH#110 335.03 127218 11111 01/13/15 500 YAN ZHAO 21941 CANDIDATE REIMB COSTS 118.00 127219 11111 01/13/15 447 ZEE MEDICAL SERVICE 61111 CTYWIDE FIRST AID SUP 279.11 32 SUNGARD PUBLIC SECTOR PAGE NUMBER: 6 DATE: 01/13/2015 CITY OF SARATOGA VENCHKII TIME: 12:00:31 CHECK REGISTER ACCOUNTING PERIOD: 7/15 FUND - 009 - DISBURSEMENT FUND CHECK NUMBER CASH ACCT DATE ISSUED --------------VENDOR-------------- ACCT -------DESCRIPTION------- AMOUNT TOTAL FUND 677,921.09 TOTAL REPORT 677,921.09 33 G y SARATOGA CITY COUNCIL 1�51i MEETING DATE: January 21,2015 DEPARTMENT: Finance &Administrative Services PREPARED BY: Ann Xu,Accountant SUBJECT: Treasurer's Report for the Month Ended November 30,2014 RECOMMENDED ACTION: Review and accept the Treasurer's Report for the month ended November 30,2014. BACKGROUND: California government code section 41004 requires that the City Treasurer submit to the City Clerk and the legislative body a written report and accounting of all receipts, disbursements, and fund balances. The Municipal Code of the City of Saratoga,Article 2-20, Section 2-20.035 designates the City Manager as the City Treasurer. This report is prepared to fulfill this requirement. The following attachments provide various financial transaction data for the City of Saratoga's Funds collectively as well as specifically for the City's General (Operating) Fund, including an attachment from the State Treasurer's Office of Quarterly LAIF rates from the 1St Quarter of 1977 to present. FISCAL STATEMENT: Cash and Investments Balance by Fund As of November 30, 2014, the City had $68,482 in cash deposit at Comerica bank, and $17,041,892 on deposit with LAIF. Council Policy on Working Capital Reserve Funds, adopted on April 20, 1994, states that: for cash flow purposes,to avoid occurrence of dry period financing,pooled cash from all funds should not be allowed to fall below $2,000,000. The total pooled cash balance as of November 30, 2014 is $17,110,374 and exceeds the minimum limit required. Cash Summary Unrestricted Cash Comerica Bank $ 68,482 Deposit with LAIF $ 17,041,892 Total Unrestricted Cash $ 17,110,374 The following Fund Balance schedule represents actual funding available for all funds at the end of the monthly period. This amount differs from the above Cash Summary schedule as assets and liabilities are components of the fund balance. As illustrated in the summary below, Total Unrestricted Cash is adjusted by the addition of Total Assets less the amount of Total Liabilities to arrive at the Ending Fund Balance— which represents the actual amount of funds available. 34 Adjusting Cash to Ending Fund Balance Total Unrestricted Cash $ 17,110,374 Plus: Assets 472,016 Less: Liabilities (2,069,523) Ending Fund Balance $ 15,512,867 Fund Balance Designations In accordance with Governmental Accounting Standards Board(GASB) Statement No. 54,Fund Balance Reporting and Governmental Fund Type Definitions, the components of fund balance are categorized as follows:"non-spendable fund balance",resources that are inherently non-spendable from the vantage point of the current period; "restricted fund balance",resources that are subject to enforceable legal restrictions; "committed fund balance",resources whose use is constrained by limitations the government imposes upon itself through formal action at its highest level of decision making and remains binding unless removed in the same manner; "assigned fund balance", resources that reflects a government's intended use of resources,such intent would have to be established at either the highest level of decision making,by a body, or an official designated for that purpose; and"unassigned fund balance",net resources in excess of what can properly be classified in one of the other four categories. Currently, the City's fund balance reserves fall into one of the four spendable categories;restricted, committed, assigned, or unassigned fund balance. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION The City would not be in compliance with Government Code Section 41004. ATTACHMENTS A—Change in Total Fund Balances by Fund under GASB 54 B—Change in Total Fund Balances by CIP Project C—Change in Cash Balance by Month D—Change in Operating Cash Balance by Month E—Local Agency Investment Fund(LAIF) Quarterly Apportionment Rates 35 ATTACHMENT A CHANGES IN TOTAL FUND BALANCE UNDER GASB 54 Fund Increase/ Fund Balance (Decrease) Current Current Balance Fund Description 7/1/14 Jul-Oct Revenue Expenditure Tranfer In Transfer Out 11/30/14 General Fund Restricted Fund Balances: Environmental Services 413,182 413,182 Committed Fund Balances: Hillside Stability 992,934 - 992,934 Assigned Fund Balances: Capital&Efficiency Reserve 1,928,915 1,833,345 95,570 Facility Reserve 600,000 - 600,000 Carryforwards 118,788 - 118,788 Unassigned Fund Balances: Working Capital 2,930,184 - 2,930,184 Fiscal Uncertainty 1,500,000 - 1,500,000 Development Services 705,459 - 705,459 Compensated Absences 223,846 - - - 223,846 Other Unassigned Pre YE distribution 2,422,326 2,245,129 1,728,904 1,694,329 - 211,772 General Fund Total 11,835,634 (2,245,129) 1,728,904 1,694,329 - 1,833,345 7,791,735 Special Revenue Landscape/Lighting Districts 733,831 (92,061) 30,902 59,846 1,000 - 613,826 Capital Project Street Projects 799,946 (127,803) 5,249 21,873 730,000 1,385,520 Park and Trail Projects 560,784 72,856 - 3,800 443,445 1,073,285 Facility Projects 206,036 (50,813) 5,608 4,754 479,900 635,977 Administrative Projects 166,819 (6,956) 1,709 - 220,000 41,000 340,571 Tree Fund Projects 73,186 606 600 3,154 - - 71,238 Park In-Lieu Fees Projects 372,031 - - - 372,031 CIP Grant Street Projects (1,896) (7,727) - 97,909 (107,532) CIP Grant Park&Trail Projects 22,874 (5,493) 7,000 1,507 22,874 Gas Tax Fund Projects 926,527 239,788 - 79,203 1,087,112 CIP Fund Total 3,126,307 114,460 20,165 212,200 1,873,345 41,000 4,881,077 Debt Service Library Bond 897,786 (688,195) 911 - - - 210,502 Internal Service Fund Liability/Risk Management 283,125 (130,247) 93,750 5,880 240,748 Workers Compensation 281,642 (31,891) 54,042 2,776 301,017 Office Support Fund 53,121 1,578 14,527 3,589 65,636 Information Technology Services 262,069 (38,839) 106,250 40,445 289,035 Equipment Maintenance 36,349 7,391 75,000 27,314 91,427 Building Maintenance 199,869 (45,813) 218,750 81,933 290,873 Equipment Replacement 508,880 43,360 50,000 40,611 561,630 Technology Replacement 152,788 12,172 16,250 5,849 - - 175,361 Total City 18,371,402 (3,093,213) 2,409452 2 174 772 1,874,346 1 874 46 15,512,867 36 ATTACHMENT B FUND BALANCES BY CIP PROJECT Fund Increase/ Fund Balance (Decrease) Current Current Balance CD'Funds/Projects 7/1/14 Jul-Oct Revenue Expenditure Transfer In Transfer Out 11/30/14 Street Projects Annual Street Resurfacing 37,147 (34,307) 5,249 7,336 - 754 Residential Street Construction - - - 300,000 300,000 Roadway Safety&Traffic Calming 755 (38,373) (27,401) 50,000 39,783 Highway 9 Safety Project-Phase 11(Ped Paths) 6,054 40,587 - 46,641 Highway 9 Safety Project-Phase III(Bicycles) 24,514 - 24,514 Highway 9 Safety Project-Phase IV 90,000 - 90,000 Big Basin Way Turnaround - - 50,000 50,000 Village LED Streetlights 5,180 (172) - 5,007 Annual Sidewalks Project 39,437 (15,234) 50,000 74,202 Annual Storm Drain Upgrade 10,899 (8,957) 50,000 51,942 Village-Streetscape Improvements 25,059 - 25,059 Village-Phase II Design 13,363 (9,318) - 4,045 Village-Phase It Construction 289,294 (2,529) 41,938 - 244,828 ELCamino Grande SD Pump - - 150,000 150,000 Saratoga Hills SD Pump 10,000 10,000 Storm Drain Capture Device 30,000 30,000 Wildcat Creek Outfall - 40,000 40,000 Fourth Street Bridge 100,000 - 100,000 Quito Road Bridge Replacement Design 59,500 (59,500) - UndergroundProject 98,744 - - - 98,744 Total Street Projects 799,946 (127,803) 5,249 21,873 730,000 1,385,520 Parks&Trails Projects Park/Trail Repairs 1,038 (4,051) - - 25,000 21,987 Playground Safety Equipment 16,478 (7,122) - 9,356 Fibar Playground Improvement' 4,020 (4,020) - - Turf Reduction Renovation - - 25,000 25,000 Hakone Garden Matching Funds 250,000 149,955 - 399,955 Hakone Garden Upper Moon House 125,000 - - 125,000 Wildwood Bridge Rehab 60,499 (54,480) 3,800 - 2,220 Quarry Park Plan Implement - (2,677) - 293,445 290,768 Quarry Park Row Acquisition - 100,000 100,000 Joe's Trail at Saratoga/De Anza 33,997 - 33,997 Guava/Fredericksburg Entrance 45,880 45,880 Saratoga to Sea Quarry Master Plan 23,872 4,750 - - 19,122 Total Parks&Trails Projects 560,784 72,856 3,800 443,445 1,073,285 Facility Projects Facility Projects 39,761 (40,344) 4,045 100,000 95,372 Security Locks 37,096 - 45,000 82,096 City Hall Emergency Power Backup 53,445 (14,620) - 38,825 Master Electrical Board - - - - 140,000 140,000 Theater Improvements 66,061 4,151 5,608 709 - 75,111 Theater MP Improvements - - - - 64,900 64,900 Community Center Cool Roof 90,000 90,000 Pre-School Play Structure - 40,000 40,000 McWilliams House Improvements 3,703 - 3,703 Library Building Exterior Maintenance Projects 5,970 - - - 5,970 Total Facility Projects 206,036 50,813 5,608 4,754 479,900 635,977 37 ATTACHMENT B(Cont.) FUND BALANCES BY CIP PROJECT Fund Increase/ Fund Balance (Decrease) Current Current Balance CIP Funds/Projects 7/1/14 Jul-Oct Revenue Expenditure Transfer In Transfer Out 11/30/14 Administrative Projects Financial System Upgrade 3,534 3,534 COMB Document Imaging Project 78,673 (2,211) - 76,461 Development Technology - (1,245) 1,709 - - 463 LLD Initiation Match Program - 50,000 1,000 49,000 General Plan Update - 100,000 - 100,000 Village Facade Program 3,821 (3,500) 20,000 20,321 Business Development Incentive Program 1,600 - 1,600 Wildfire Protection Plan 25,000 - - 25,000 Risk Management Project Funding 54,192 - 50,000 40,000 64,192 Total Administrative Projects 166,819 (6,956) 1,709 - 220,000 41,000 340,571 Tree Fund Projects Citywide Tree Planting Program 50,311 606 600 3,154 - - 48,363 Tree Dedication Program 21,125 - - - 21,125 SMSCF Tree Donation Program 1,750 - - - 1,750 Total Tree Fund Projects 73,186 606 600 3,154 71,238 CIP Grant Street Projects Highway 9 Safety Improvements Phase H (1,896) (1,562) - - (3,458) Saratoga Ave Sidewalk (75,744) - (75,744) Village Phase H-Construction (6,718) 95,879 (102,598) Quito Road Bridges 76,298 2,030 74,268 Total CIP Grant Street Projects (1,896) (7,727) 97,909 (107,532) CIP Grant Park&Trail Projects AB8939 Beverage Container Grant Funding 10,065 - 10,065 Joe's Trail at Saratoga/De Anza 12,809 - - 12,809 Saratoga Village Creek Trail-Desi 5,493 7,000 1,507 - Total CIP Grant Park&Trail Projects 22,874 (5,493) 7,000 1,507 22,874 Park In-Lieu Fees Projects - - - - Quarry Park Plan Implement 280,631 280,631 Saratoga Village Creek 50,000 50,000 Unallocated Park Fees 41,400 41,400 Total parkin-Lieu Fees Projects 372,031 - - 372,031 Gas Tau Fund Projects Annual Street Resurfacing 171,702 239,788 43,080 368,410 Prospect/Saratoga OBAG Inprovement 544,825 - - 544,825 Fruitvale Avenue Median 100,000 - 100,000 Arroyo de Arguello Storm Drain 70,000 36,123 33,878 Quito Road&Paseo Olivos Storm Drain 40,000 - - 40,000 Total Gas Tax Fund Projects 926,527 239,788 - 79,203 - - 1,087,112 Total CIP Funds 3,126,307 114,460 20,165 212,200 1,873,345 41,000 4,881,077 38 ATTACHMENT C CHANGE IN CASH BALANCE BY MONTH �% a Ad � $ ^ � + � � $ Qo & . e4 ] tw �a , @ 7 c � \ \ \ \ CD§ a § ƒ k \ / % ƒ � / m E -z3 / m 39 ATTACHMENT D Local Agency Investment Fund Quarterly Apportionment Rates March June September December 1977 5.68 5.78 5.84 6.45 1978 6.97 7.35 7.86 8.32 1979 8.81 9.10 9.26 10.06 1980 11.11 11.54 10.01 10.47 1981 11.23 11.68 12.40 11.91 1982 11.82 11.99 11.74 10.71 1983 9.87 9.64 10.04 10.18 1984 10.32 10.88 11.53 11.41 1985 10.32 9.98 9.54 9.43 1986 9.09 8.39 7.81 7.48 1987 7.24 7.21 7.54 7.97 1988 8.01 7.87 8.20 8.45 1989 8.76 9.13 8.87 8.68 1990 8.52 8.50 8.39 8.27 1991 7.97 7.38 7.00 6.52 1992 5.87 5.45 4.97 4.67 1993 4.64 4.51 4.44 4.36 1994 4.25 4.45 4.96 5.37 1995 5.76 5.98 5.89 5.76 1996 5.62 5.52 5.57 5.58 1997 5.56 5.63 5.68 5.71 1998 5.70 5.66 5.64 5.46 1999 5.19 5.08 5.21 5.49 2000 5.80 6.18 6.47 6.52 2001 6.16 5.32 4.47 3.52 2002 2.96 2.75 2.63 2.31 2003 1.98 1.77 1.63 1.56 2004 1.47 1.44 1.67 2.00 2005 2.38 2.85 3.18 3.63 2006 4.03 4.53 4.93 5.11 2007 5.17 5.23 5.24 4.96 2008 4.18 3.11 2.77 2.54 2009 1.91 1.51 0.90 0.60 2010 0.56 0.56 0.51 0.46 2011 0.51 0.48 0.38 0.38 2012 0.38 0.36 0.35 0.32 2013 0.28 0.24 0.26 0.26 2014 0.241 0.221 0.24 40 of SAg SARATOGA CITY COUNCIL IUifs MEETING DATE: January 21, 2015 DEPARTMENT: City Manager's Office PREPARED BY:Debbie Bretschneider, Deputy City Clerk SUBJECT: Resolution Authorizing Final Disposition of Certain City Records RECOMMENDED ACTION: Adopt resolution authorizing final disposition of certain city records. REPORT SUMMARY: On November 6, 2013, the City Council approved a new Records Retention Schedule. In accordance with the schedule, staff and the City Attorney review archived documents to determine those that are nonessential and can, therefore,be shredded. In order to comply with State law,processing expired records for destruction is a multi-step process: 1. Staff in each department identifies records for which the retention period has expired in accordance with the approved records retention schedule. Each box is looked through to make sure it does not include records that must be retained. 2. Department directors review and approve the list of records to be destroyed in their departments. 3. The City Clerk and City Attorney review and approve a combined list of all expired records. 4. The list of records is presented to the City Council along with a resolution authorizing the shredding of listed documents. Records may not be shredded without the authorization of the City Council. At this time, staff has identified 51 boxes of expired records and is requesting authorization from the Council to proceed with shredding the documents. FOLLOW UP ACTION: Consistent with the City's standard policy, the records will be held for seven days for review pursuant to the Public Records Act. If no request for review is submitted, they will be promptly destroyed. If a request for review is submitted, the records will be destroyed between 20 and 30 days after they have been made available for review. 41 ATTACHMENTS: Attachment 1 -Resolution Authorizing the Final Disposition of Certain City Records Attachment 2 -Exhibit A: List of Records Proposed for Final Disposition 556489.1 42 RESOLUTION NO. 15- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA AUTHORIZING THE FINAL DISPOSITION OF CERTAIN CITY RECORDS WHEREAS, Government Code Section 34090 et seq. authorizes City department heads to destroy certain records, documents, instruments,books or paper after the same are no longer required with the approval of the legislative body by resolution and the written consent of the City Attorney. NOW, THEREFORE,the City Council of the City of Saratoga hereby resolves as follows: 1. Department heads are hereby authorized to have shredded those certain records, documents, instruments, books or paper under their charge as described in Exhibit `A. 2. The records, documents, instruments,books or paper described in Exhibit `A shall be held for seven days for review pursuant to the Public Records Act prior to shredding. If no request for review is submitted within that time, they shall be promptly destroyed. If a request for review is submitted, the records shall be destroyed not less than twenty days and not more than thirty days after the records have been made available for review. The above and foregoing resolution was passed and adopted at a regular meeting of the Saratoga City Council held on the 21St day of January, 2015 by the following vote: AYES: NOES: ABSENT: ABSTAIN: Howard A. Miller, Mayor ATTEST: Crystal Bothelio, City Clerk CITY ATTORNEY CONSENT TO DESTRUCTION OF THE RECORDS, DOCUMENTS, INSTRUMENTS, BOOKS OR PAPER DESCRIBED IN EXHIBIT `A.: Richard Taylor City Attorney 43 Jan. 2015 Destruction List Date of Box # Dept. Description Disposal Retention Record series CMO1 City Clerk scanned, terminated contracts 2000-2003 12/31/2014 Closed + 10 16D city clerk scanned, terminated contracts 1962-1985 1/1/2006 Closed+10 31 B City Clerk scanned, Terminated contracts 2001-2003 1/1/2015 Closed+10 236 City Manager scanned, misc. reference files 2006-2010 1/1/2015 Current year+2 138-11 Recreation Accounts Payable Jan. 2009-Dec. 2009 1/1/2015 Audit+4 Rental Contracts, reservation receipts, invoices, calendars 01-01-04 thru 12-31 397 Recreation 10 12-31-2014 Current year+4 400 Recreation Rental Contracts 06-01-2009 thru 05-30-2010 12/31/2014 Current year+4 401 Recreation Teacher Payments 12-31-2006 thru 12-31-2010 12/31/2014 Current year +4 402 Recreation Teacher payments 01-01-2006 thru 12-31-2010 12/31/2014 Current year+4 Rental Contracts, reservation receipts, invoices, calendars 01-01-04 thru 12-31 397 Recreation 10 12-31-2014 Current year +4 400 Recreation Rental Contracts 06-01-2009 thru 05-30-2010 12/31/2014 Current year+4 401 Recreation Teacher Payments 12-31-2006 thru 12-31-2010 12/31/2014 Current year+4 402 Recreation Teacher payments 01-01-2006 thru 12-31-2010 12/31/2014 Current year+4 509 Finance Payroll Reports, Pay Period # 13/07 to#14/07, Record Dates 06/07 To 07/07 12-31-2014 Audit (AU)+6 510 Finance Payroll Reports, Pay Period #5/07 to#7/07, Record Dates 02/07 TO 03/07 12-31-2014 Audit +6 517 Finance Payroll Reports, Pay Period #9/07 to#12/07, Record Dates 04/07 TO 06/07 12-31-2014 Audit+6 518 Finance Payroll Reports, Pay Period #1/06 to#34/07, Record Dates 12/06 TO 02/07 12-31-2014 Audit+6 529 Finance Employee Timesheets, Record Dates 07/05 TO 06/06 12-31-2014 Audit+6 531 Finance Employee Timesheets, Record Dates 06/05 TO 01/06 12-31-2014 Audit +6 Payroll MonthEnd Reports, Cummulative Register, Review Listing, Monthly Accrual-To-Date Register, Monthly Accrual Register, Record Dates 07/05 TO 538 Finance 06/06 12-31-2013 Audit+6 Accounts Payable Check Registers, Record Dates 7/18/2007; 7/25/2007 and 561 Finance 8/1/2007 12/31/2012 Audit + 4 Accounts Payable Check Registers, Record Dates 8/8/2007; 8/15/2007 and 562 Finance 8/22/1007 12/31/2012 Audit + 4 Accounts Payable Cjeck Registers, Record Dates 8/20/2007; 9/5/2007; 563 Finance 9/12/2007; 9/19/2007 and 9/26/2007 12/31/2012 Audit + 4 Accounts Payable Check Register, Record Dates 10/03/2007; 10/10/2007; 564 Finance 10/17/2007 and 10/24/2007 12/31/2012 Audit + 4 Accounts Payable Cjheck Registers, Record Dates 10/31/2007; 11/7/2007 and 565 Finance 11/20/2007 12/31/2012 Audit + 4 Accounts Payable Check Registers, Record Dates 11/28/2007; 12/5/2007; 566 Finance 12/12/2007 and 12/19/2007 12/31/2012 Audit + 4 Accounts Payable Check Registers, Record Dates 1/9/2008; 1/16/2008; 567 Finance 1/123/2008 and 1/31/2008 12/31/2012 Audit + 4 Accounts Payable Check Registers, Record Dates 2/7/2008; 2/14/2008; 568 Finance 2/21/2008 and 2/28/2008 12/31/2012 Audit + 4 Accounts Payable Check Registers, Record Dates 3/5/2008; 3/12/2008; 569 Finance 3/19/2008; 3/26/2008; 4/2/2008 and 4/9/2008 12/31/2012 Audit + 4 Accounts Payable Checks Register, Record Dates 4/16/2008; 4/23/2008 and 570 Finance 4/30/2008 12/31/2012 AU +4 Accounts Payable Checks Register, Record Dates 5/7/2008; 5/14/2008; 571 Finance 5/21/2008 and 5/28/2008 12/31/2012 AU +4 Accounts Payable Checks Register, Records Dates 6/4/2008; 6/11/2008; 572 Finance 6/18/2008 and 6/25/2008 12/31/2012 AU +4 7/16/2008; 7/23/2008; 7/30/2008; 8/6/2008; 8/13/2008; 8/20/2008 and 573 Finance 8/27/2008 12/31/2012 AU +4 Purchase Order Log FY 2007/08; Accounts Payable Checks Register Reports 574 Fianace FY 04/05, 05/06 and Purchase Orders FY 2007/08 12/31/2012 AU +4 627 Finance Employee time sheets FY 07/08 12-31-2014 AU + 6 648 Finance AP-FY 2009/10 Weekly Check Run 12/31/2014 AU +4 649 Finance AP-FY 2009/10 Weekly Check Run 12/31/2014 AU +4 650 Finance AP-FY 2009/10 Weekly Check Run 12/31/2014 AU +4 651 Finance AP-FY 2009/10 Weekly Check Run 12/31/2014 AU +4 652 Finance AP-FY 2009/10 Weekly Check Run 12/31/2014 AU +4 653 Finance AP-FY 2009/10 Weekly Check Run 12/31/2014 AU + 4 657 Finance FY 2009/10 Cash Receipts 12/31/2014 AU + 4 658 Finance FY 2009/10 Cash Receipts 12/31/2014 AU + 4 659 Finance FY 2009/10 Cash Receipts 12/31/2014 AU + 4 660 Finance FY 2009/10 Cash Receipts 12/31/2014 AU + 4 661 Finance FY 2009/10 Cash Receipts 12/31/2014 AU + 4 662 Finance FY 2009/10 Cash Receipts 12/31/2014 JAU + 4 663 Finance FY 2008/09 Parking citations, bank deposit slips, A/R inv./payments 12/31/2014 JAU + 4 45 664 Finance FY 2009/10 Parking citations, bank deposit slips, A/R inv/ payments 12/31/2014 AU +4 692 Finance AP FY 2008-09 Closed purchase orders 12-31-2013 AU +4 723 Finance A-Z Cash Receipt backup FY 2009-10 12/31/2014 AU+4 758 Finance Treasurer Report FT 2007-08 6/30/2013 Closed+5 46 SARATOGA CITY COUNCIL 7956 MEETING DATE: January 21, 2015 DEPARTMENT: City Manager's Office PREPARED BY: Crystal Bothelio, City Clerk SUBJECT: Hazardous Vegetation Program Resolution Declaring Abatement of Public Nuisance RECOMMENDED ACTION: Conduct public hearing and adopt resolution. BACKGROUND: At the December 17, 2014 City Council meeting, the City Council approved a resolution declaring hazardous vegetation to be a public nuisance. Adoption of this resolution served as the first step in launching the annual weed abatement process conducted by the Santa Clara County Department of Agriculture's Weed Abatement Program. The purpose of the Santa Clara County Department of Agriculture Weed Abatement Program is to prevent fire hazards posed by vegetative growth and the accumulation of combustible materials. The County Department of Agriculture provides weed abatement services to a number of cities in the County, including Saratoga. Parcels in Saratoga that represent a potential hazard due to weeds or other combustible debris have been identified and listed in the attached 2015 Commencement Report, prepared and maintained by the County of Santa Clara. Following the December 17, 2014 meeting, notices were sent to owners or properties on the Commencement Report indicating that hazardous vegetation or debris has been identified on their property and hazardous materials must be abated. The notice also informed property owners of the public hearing on January 21, 2015. During the public hearing, property owners may voice objections to the listing of their property on the Commencement Report. To continue the weed abatement process, the Council should adopt the attached resolution. If approved, the County will be authorized to perform an inspection of properties on the Commencement Report to determine if properties meet Weed Abatement Program requirements. Property owners will have until April 15, 2015 to abate their property. 47 If the attached resolution is approved, a public hearing will also be set for March 18, 2015. While the City Council is only required to hold one public hearing for owners to raise objections to properties on the Commencement Report, the City Council has traditionally held two public hearings for this purpose. As with the January 21, 2015 public hearing, property owners listed in Attachment A may request that their property be removed from the Commencement Report at the March public hearing. Property owners that do not comply with minimum fire safety standards by April 15, 2015 will be charged a $250 inspection fee and the property will be scheduled for abatement by the County contractor. If abatement work is completed by a County contractor, the property owner will be assessed the contractor's fees to perform the work plus a County administrative fee of$169 per parcel. There are no fiscal impacts to the City of Saratoga as a result of the Weed Abatement Program. The Santa Clara County Department of Agriculture expenses are recovered through the Weed Abatement Program administrative fees charged to property owners. ADVERTISING,NOTICING AND PUBLIC CONTACT: The County of Santa Clara mailed notices to owners of properties on the Commencement Report. Additionally, a legal advertisement announcing the public hearing was printed in the San Jose Mercury News. ATTACHMENTS: Attachment A-Resolution Declaring Abatement of a Public Nuisance as to Specified Properties Containing Hazardous Vegetation Attachment B - 2015 Commencement Report Attachment C - Sample Informational Materials Mailed to Property Owners on Commencement Report Attachment D -Resolution 14-074 Declaring Hazardous Vegetation to be a Nuisance and Setting Public Hearing Date 48 RESOLUTION 15- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA DECLARING ABATEMENT OF A PUBLIC NUISANCE AS TO SPECIFIED PROPERTIES CONTAINING HAZARDOUS VEGETATION WHEREAS, the Saratoga City Council declared hazardous vegetation to be a public nuisance through adoption of Resolution 14-073 at the December 17, 2014 City Council Meeting; and WHEREAS, the Office of the County Agricultural Commissioner subsequently gave notice to all property owners of specific properties identified as containing hazardous vegetation (weeds) described by common name or by reference to the tract, block, lot, code area and parcel number on the report prepared by and on file in the Office of the City Clerk and of the County Agricultural Commissioner; and WHEREAS, the notice sent to owners of properties specified in Exhibit A, attached to this resolution, that the City Council would hold a public hearing on January 21, 2015 to consider any protests or objections to the declaration of a nuisance on pre-specified properties so as to require the owners of these properties to remove the hazardous vegetation or be subject to a subsequent order for abatement authorizing the County Agricultural Commissioner to perform the abatement; and WHEREAS, a public hearing on said notice was held on January 21, 2015; and WHEREAS, final action on any protests or objections to the proposed removal of weeds has been made by the City Council; NOW, THEREFORE BE IT RESOLVED, that the hazardous vegetation (weeds) on specified properties listed on Exhibit A (attached) is declared to be public nuisance and the County Agricultural Commissioner is hereby designated as the person to cause notice to be given in the manner and form provided in Saratoga City Code Section 7-15.060, and as the person to thereafter cause abatement of the seasonal and recurring hazardous vegetation (weed) nuisance as determined by resolution dated December 17, 2014, and as to specified properties as determined by this resolution. NOW, THEREFORE, BE IT FURTHER RESOLVED, that the notice specified in the preceding paragraph shall require that owners of the properties identified in Exhibit A abate the hazardous vegetative nuisance or demonstrate at a public hearing before the City Council on March 18, 2015 why the City Council should not order the County to abate such hazardous vegetation nuisance thereafter at the property owner's expense. Attachments: Exhibit A—2015 Weed Abatement Program Commencement Report 49 The above and foregoing resolution was passed and adopted at a regular meeting of the Saratoga City Council held on the 21"day of January 2015 by the following vote: AYES: NOES: ABSENT: ABSTAIN: Howard A. Miller, Mayor ATTEST: DATE: Crystal Bothelio, City Clerk 50 2015 WEED ABATEMENT PROGRAM COMMENCEMENT REPORT CITY OF SARATOGA Situs APN EXHIBIT A CITY/STATE 20851 WARDELL RD 366-14-041 "LEE,ARTHUR C AND HARA,DEBRA 10856 LINDA VISTA DR CUPERTINO CA 95014-4749 21981 PROSPECT RD 366-31-007 "SHIE,YAW SHI AND WANG,JING 21981 PROSPECT RD SARATOGA CA 95070-0000 21781 PROSPECT RD 366-32-002 'BALL,NIGEL AND PAMELA" 21781 PROSPECT RD SARATOGA CA 95070-0000 12445 PASEO CERRO 386-11-021 "ALI, SYED" 435 SERRAMONTE BL COLMA CA 94014-3226 18597 COX AV 386-13-059 "MONDAL, SUDHRITY K AND GHOSH, 18597 COX AV SARATOGA CA 95070-4107 12260 SARATOGA- RD 386-30-035 WEST VALLEY MUSLIM ASSN 12370 SUNNYVALE- SARATOGA CA 95070 13025 SARATOGA AV 389-06-017 MVS COMPANY LP PO BOX 2067 SARATOGA CA 95070 18596 COX AV 389-13-008 "DOSS, ROGER E TRUSTEE" 18596 COX AV SARATOGA CA 95070-4108 18854 AFTON AV 389-17-010 "LITVIN,MIGUEL E AND ANAMARIA 18854 AFTON AV SARATOGA CA 95070-4653 18774 AFTON AV 389-17-015 "NGUYEN, CHRISTIAN H AND VO, 18774 AFTON AV SARATOGA CA 95070-4653 13239 CARRICK AV 389-17-032 'BEDDING,NADINE A TRUSTEE" 13239 CARRICK AV SARATOGA CA 95070-4604 19127 BONNET WY 389-21-001 "TUCKER,JUSTIN AND KAREN T" 19127 BONNET WY SARATOGA CA 95070-5215 0 ASPESI DR 389-25-001 PACIFIC GAS AND ELECTRIC CO 111 ALMADEN BL SAN JOSE CA 95113-2002 19010 PORTOS DR 389-30-002 "HU,JINGCAO AND KAN,LAN" 19010 PORTOS DR SARATOGA CA 95070-5121 13601 MYREN DR 389-37-039 "YALLA, SRINIVAS R AND PEDARLA, 607 GRAYSON WY MILPITAS CA 95035 20210 MERRICK DR 393-42-005 "LUKE, CHARLES A" 20210 MERRICK DR SARATOGA CA 95070-4936 14141 SOBEY RD 397-03-002 "ORANGI, SOHY" 14141 SOBEY RD SARATOGA CA 95070-5605 18860 TEN ACRES RD 397-03-038 "SPAUNBURG,JOEL R AND 18860 TEN ACRES RD SARATOGA CA 95070-5639 14478 SOBEY RD 397-04-022 "CHAD,EUGENE Y AND ROSSANA B" 595 SAN ANTONIO AV SAN DIEGO CA 92106-3467 14923 SOBEY RD 397-04-126 "BOCA,MILE" 14923 SOBEY RD SARATOGA CA 95070-6235 14921 SOBEY RD 397-04-127 "VAJDIC,BRANISLAV" PO BOX 3423 SARATOGA CA 95070 14521 QUITO RD 397-05-028 "HINZ,LESTER F" P 0 BOX 97 SANTA CLARA CA 95052 14416 OLD WOOD RD 397-05-042 "PITZEN,DAVID H AND JENNIFER L" 14416 OLD WOOD RD SARATOGA CA 95070-5633 23 records of 104 Santa Clara County Weed Abatement Program Pagel 51 2015 WEED ABATEMENT PROGRAM COMMENCEMENT REPORT CITY OF SARATOGA Situs APN EXHIBIT A CITY/STATE 18680 VESSING RD 397-06-030 "MINETTI,VITO AND MARIA P 18680 VESSING RD SARATOGA CA 95070-5672 15488 EL CAMINO 397-08-076 "ABHARI,AL TRUSTEE&ET AL" 15488 EL CAMINO GRANDE SARATOGA CA 95070-6258 14581 FRUITVALE AV 397-17-010 "JAVADI, SORAYA AND SAEED" 13046 TWELVE HILLS RD CLARKSVILLE MD 21029 14805 FRUITVALE AV 397-18-027 BANK OF AMERICANA SUCC 1800 TAPO CANYON RD SIMI VALLEY CA 93063 14875 BARANGA LN 397-18-039 "TATE,RONALD M AND LINDA 22 S SANTA CRUZ AV 2ND LOS GATOS CA 95030 14553 VIA DE 397-40-016 "CIFFONE,DONALD L AND JOY A 14553 VIA DE MARCOS SARATOGA CA 95070-6147 14577 VIA DE 397-40-017 "URRUTIA,RICARDO J AND ELLEN" 14577 VIA DE MARCOS SARATOGA CA 95070-6147 14961 VIA DE 397-40-020 "RAMAKRISHNA, SUDHAKAR AND 14961 VIA DE MARCOS SARATOGA CA 95070-0000 18540 ALLENDALE AV 397-43-008 "CABE,JANET H TRUSTEE' 18540 ALLENDALE AV SARATOGA CA 95070-5235 18394 MONTPERE WY 403-23-029 "MARHAMAT,MAJID" 212 PRINCE ST LOS GATOS CA 95032-1113 15120 QUITO RD 410-40-018 "HUYNH,PAUL HONG NGOC AND 15120 QUITO RD SARATOGA CA 95070 0 MT EDEN RD 503-09-006 M E V CORP 22020 MT EDEN RD SARATOGA CA 95070-9729 22060 MT EDEN RD 503-09-021 "MUILENBURG,MICHAEL S" 22060 MT EDEN RD SARATOGA CA 95070-9729 22040 MT EDEN RD 503-09-022 "MCAFEE,ERIC A AND MARGUERITE 22040 MT EDEN RD SARATOGA CA 95070-9729 22530 MT EDEN RD 503-10-067 "GARROD, VINCE S TRUSTEE&ET 22530 MT EDEN RD SARATOGA CA 95070-0000 13905 PIERCE RD 503-13-018 "JOHNSON, PHILIP N TRUSTEE&ET 14435 BIG BASIN WY#184 SARATOGA CA 95070 0 MT EDEN RD 503-13-039 "HORVATH,DAGMAR M" 15209 BLUE GUM CT SARATOGA CA 95070-6268 0 MT EDEN RD 503-13-067 "ALI, SYED AND SHAISTA" 22653 GARROD RD SARATOGA CA 95070-0000 22551 MT EDEN RD 503-13-117 "SMIT,CARL E AND COLES, 1219 EDEN LN ANNAPOLIS MD 21403 0 MT EDEN RD 503-13-128 "IRANY,FRED Z AND CHRIS 13937 PIERCE RD SARATOGA CA 95070 22215 MT EDEN RD 503-13-138 "KEENAN,JOHN E AND CHERYL L 22215 MT EDEN RD SARATOGA CA 95070-0000 22122 MT EDEN RD 503-13-143 AZ CHEMICALS INC ETAL 8226 RINCONADA CT NEWARK CA 94560 0 MT EDEN RD 503-13-144 "CHAPEL,JUDY" PO BOX 22439 SAN DIEGO CA 92192-2439 46 records of 104 Santa Clara County Weed Abatement Program Page 2 52 2015 NEED ABATEMENT PROGRAM COMMENCEMENT REPORT CITY OF SARATOGA Situs APN EXHIBIT A CITY/STATE MT EDEN RD 503-13-145 CHAPEL,JUDY P O BOX 22439 SAN DIEGO CA 92192-2439 13765 PIERCE RD 503-14-008 "MCCABE,DAVID A AND PAMELA Y PO BOX 707 "ONETANGI,WAIHEKE " 13615 VAQUERO CT 503-14-034 "COCHRANE,JAMES B AND 13615 VAQUERO CT SARATOGA CA 95070-4804 0 PIERCE RD 503-15-019 "TERZIC,JOHN" 12943 PIERCE RD SARATOGA CA 95070-3713 13600 SURREY LN 503-16-013 "JUANG,RUDY YUH-JUH AND SHAU- 13600 SURREY LN SARATOGA CA 95070-4257 13540 SURREY LN 503-16-015 "BAKKE,KRISTIAN V AND MINOO A 13540 SURREY LN SARATOGA CA 95070-4257 20940 COMER DR 503-16-076 "MCSWEENEY,WILLIAM TRUSTEE" 20940 COMER DR SARATOGA CA 95070-3710 21020 COMER DR 503-17-063 "YAGER,ROBERT A AND MARION E 21020 COMER DR SARATOGA CA 95070-3710 12901 FOOTHILL LN 503-18-026 "OVELAND,CHARLES A AND 12901 FOOTHILL LN SARATOGA CA 95070-3712 12973 PIERCE RD 503-18-060 "FAN,YU AND LIU,YING" 12973 PIERCE RD SARATOGA CA 95070-3752 12979 FOOTHILL LN 503-18-066 "BUSH,JOHN R AND PATRICIA J 12979 FOOTHILL LN SARATOGA CA 95070-3712 14639 BIG BASIN WY 503-25-013 HONG BO INVESTMENT GROUP LLC 21991 SCENIC HEIGHTS WY SARATOGA CA 95070 14651 BIG BASIN WY 503-25-015 "OCP DEVELOPMENT,INC" 415 BUNDY AV SAN JOSE CA 95117-0000 0 ELVA AV 503-27-081 "ISIDORO,FRANK W AND MERNA L 15041 PARK DR SARATOGA CA 95070-6421 20895 CANYON VIEW DR 503-28-004 "WOROBEY,ANN M" 20895 CANYON VIEW DR SARATOGA CA 95070-5763 20905 SULLIVAN WY 503-28-005 "SCHAFER,BRUCE F TRUSTEE" 20905 SULLIVAN WY SARATOGA CA 95070-5738 20915 SULLIVAN WY 503-28-006 "BAHL,SWARAN B AND KENNETH S 14645 BIG BASIN WY SARATOGA CA 95070-6081 0 CANYON VIEW DR 503-28-008 "HASHEMIEH,JULIA ET AL" 106 HEINTZ CT LOS GATOS CA 95032-5036 20851 CANYON VIEW DR 503-28-075 "TANG,YAW-SHING AND WAN-I G" 20851 CANYON VIEW DR SARATOGA CA 95070-5888 20867 CANYON VIEW DR 503-28-089 "LAW,EDWIN AND VICKY 20867 CANYON VIEW DR SARATOGA CA 95070-5888 21271 SARATOGA RD 503-29-006 "BOWLES,JOHN A TRUSTEE&ET AL" 21271 SARATOGA HILLS RD SARATOGA CA 95070-5375 21352 SARATOGA RD 503-29-027 "SPEAR,LORIJEAN TRUSTEE" 21352 SARATOGA HILLS RD SARATOGA CA 95070-5306 21150 SARATOGA RD 503-29-042 "WONG,KENLEY HAY AND NANCY" 21150 SARATOGA HILLS RD SARATOGA CA 95070-5306 69 records of 104 Santa Clara County Weed Abatement Program Page 3 53 2015 WEED ABATEMENT PROGRAM COMMENCEMENT REPORT CITY OF SARATOGA Situs APN EXHIBIT A CITY/STATE 21050 SARATOGA RD 503-29-099 "HEGER, CHARLES E AND SHIRLEY M 21050 SARATOGA HILLS RD SARATOGA CA 95070-5372 21421 SARATOGA RD 503-29-124 "STEIMLE,ANTHONY E AND ENG, 21421 SARATOGA HILLS RD SARATOGA CA 95070-5377 13845 PIKE RD 503-30-003 "LIU,QINGXIANG AND ZHOU, LING" 13845 PIKE RD SARATOGA CA 95070-5346 13857 PIKE RD 503-30-042 "HORNER,JAMES F AND KATHLEEN 13857 PIKE RD SARATOGA CA 95070-5346 14150 DORENE CT 503-31-054 "FAN, SHERMAN S AND LILY L" 14150 DORENE CT SARATOGA CA 95070-9727 14134 DORENE CT 503-31-058 "ZHU,LIANG" 14134 DORENE CT SARATOGA CA 95070-9727 21800 MT EDEN RD 503-31-077 "LEE,TING PIE AND CHIANG, 21800 MT EDEN RD SARATOGA CA 95070-9722 13957 ALBAR CT 503-31-087 "SEIFERT,MICHAEL E AND MOORE, 13957 ALBAR CT SARATOGA CA 95070-9718 13947 ALBAR CT 503-31-088 "HWANG,LILY L AND JOSEPH J" 13966 ALBAR CT SARATOGA CA 95070-9718 13921 DAMON LN 503-31-098 "LEMPERT, DAVID EMMANUEL&" 13921 DAMON LN SARATOGA CA 95070-9720 21761 HEBER WY 503-31-100 "PALMER, WILLIAM T AND 21761 HEBER WY SARATOGA CA 95070-9700 13966 ALBAR CT 503-31-107 HWANG,LILY L AND HWANG, 13966 ALBAR CT SARATOGA CA 95070-9718 0 PIERCE RD 503-46-005 CHATEAU MASSON LLC 15055 LOS GATOS BL#350 LOS GATOS CA 9532 13877 UPPER HILL CT 503-50-041 "JOHNSON, WAYNE C AND C A" 13877 UPPER HILL CT SARATOGA CA 95070-5332 21243 DEEPWELL CT 503-55-039 "SCHULMAN, STEVEN A AND 21243 DEEPWELL CT SARATOGA CA 95070-5709 0 TOLL GATE RD 503-62-027 "GADDIS, STEPHEN B" 420 SELBY LN ATHERTON CA 94027-4043 14190 PALAMINO WY 503-68-002 "NGUYEN, BAO MANH AND 2210 WINDING HILLS CT SAN JOSE CA 95138-0000 21786 VIA REGINA 503-69-007 "DOWNS, HAROLD R AND CARROLL, 21786 VIA REGINA SARATOGA CA 95070-4876 21800 VIA REGINA 503-69-010 "SHAO,FANG-FEI P AND HSIAO, 21800 VIA REGINA SARATOGA CA 95070-4845 21851 VIA REGINA 503-69-030 "DER TOROSSIAN,PAPKEN S AND 21851 VIA REGINA SARATOGA CA 95070-4861 21781 VIA REGINA 503-69-034 "MOAZENI,MEHDI AND 21781 VIA REGINA SARATOGA CA 95070-4805 21995 VIA REGINA 503-69-039 "FAGGIN, MARZIA TRUSTEE&ET 3640 COUNTRY CLUB DR REDWOOD CITY CA 94061 14805 MASSON CT 503-72-014 "CERNEA, RAUL A AND OCTAVIA" 889 AGNEW RD SANTA CLARA CA 95054-0000 92 records of 104 Santa Clara County Weed Abatement Program Page 4 54 2015 WEE® ABATEMENT PROGRAM COMMENCEMENT REPORT CITY OF SARATOGA Situs APN c_XI—IIBIT A CITY/STATE 21531 SARATOGA DR 503-72-028 "NAGARAJAN,VINOD AND RAMANI, 21531 SARATOGA HEIGHTS SARATOGA CA 95070-5758 21750 VINTAGE LN 503-72-037 "BEDARD,CHARLES J AND OTT, 21750 VINTAGE LN SARATOGA CA 95070-9713 21770 CONGRESS LN 503-75-008 "PEZZANI,MICHELLE E TRUSTEE" 21770 CONGRESS HALL LN SARATOGA CA 95070 21756 CONGRESS LN 503-75-010 "WALKER,MARGARET VIVIEN S 21756 CONGRESS HALL LN SARATOGA CA 95070-9714 0 CONGRESS LN 503-75-016 "LUTHRA,ANKUR TRUSTEE" 14151 TEERLINK WY SARATOGA CA 95070-9735 14930 VINTNER CT 503-75-018 "ZARNEGAR, SAMSON" 14930 VINTNER CT SARATOGA CA 95070-9712 19370 SARATOGA- RD 510-06-005 "DUC,DANIEL A AND LYNN K" 105 HOGANS VISTA SEQUIM WA 98382 15780 HIDDEN HILL PL 510-24-024 "POZOS,CARYL B TRUSTEE" 15780 HIDDEN HILL PL LOS GATOS CA 95030 15027 BOHLMAN RD 517-13-009 "SAMPLE, STEPHEN P AND PHI, 15027 BOHLMAN RD SARATOGA CA 95070-6354 15600 BELNAP DR 517-14-085 "SUN,YUE AND LILI" 15600 BELNAP DR SARATOGA CA 95070-0000 15400 PEACH HILL RD 517-22-072 "ARIMILLI,V TRUSTEE&ET AL" 15400 PEACH HILL RD SARATOGA CA 95070 NO SITUS 517-38-002 "PELIO,IDAMARIE" 14573 BIG BASIN WY SARATOGA CA 95070 104 records of 104 Santa Clara County Weed Abatement Program page 5 55 2015 Return Reply Form SEIVER ADAM J AND ANN M IMPORTANT: Please complete this form and mail back to the Weed TRA: 14007 Abatement Program no later than January 15, 2015. Thank you. SEIVER ADAM J AND ANN M 27869 SADDLE CT LOS ALTOS HILLS CA 94022-1810 * 1 a z - 0 7 - 0 3 1 Please check the box that applies for each parcel (see explanations below): Parcel Number Site Address A B C 182-07-031 27869 SADDLE LH ❑ El D A I am no longer the owner of this property,and the new owner information is listed below. Please return Reply Form immediately. B I intend to maintain this parcel in a manner consistent with the Minimum Fire Safety Standards from April 30,2004 through the end of the fire season(typically runs through October).All parcels on the abatement list remain subject to inspection to ascertain compliance.Non- compliance by the deadline will result in an Inspection fee or the abatement of weeds by the County contractor and the resulting charges added to the property tax. C I request that the County Contractor perform weed abatement work ori this parcel.Charges for this work will be added to my property tax bill.Work may commence on or about March 12th,2015. Please provide any additional information such as new owners, presence of piping, irrigation, crops or other improvement. If your property is fenced/locked, please provide instructions on how to enter the property. If you are no longer the owner of the property identified by this mailing, please notify the County immediately. If you sell your property after December 1st ,2014, it is your responsibility to notify the new owner and to include the obligation to pay any abatement costs in your agreement of sale. Without taking this action, you will be liable for all hazard abatement charges assessed to the property. Thank you Please check if you feel this parcel is environmentaly sensitive Signature Name (please print) Date Day time phone 56 TRA 15 Notice to Des, Weeds NOTICE IS HEREBY GIVEN that on December 17, 2014, pursuant to Article II of Chapter 6 of the Saratoga City Code, the City Council passed a resolution declaring that weeds, rubbish, refuse, obstructions or other dangerous materials as hereafter described, existing upon your property,or upon the adjacent street,constitutes a public nuisance,which must be abated by the removal and destruction thereof. NOTICE IS FURTHER GIVEN that property owners shall, without delay, remove and destroy all such weeds or brush or rubbish or other materials from their property and the abutting one-half of the street in front and alleys, if any, behinds such property and between the lot lines thereof as extended, or in front of which, said weeds are removed and such cost will constitute a lien upon such lots or lands until paid and will be collected upon the next tax roll upon which general municipal taxes are collected. All property owners having any objection to the proposed nuisance abatement are hereby notified to attend a meeting of the City Council, Council Chambers of City Hall at 13777 Fruitvale Ave., Saratoga, California, to be held on Wednesday, January 21, 2015, at 7:00 p.m., or as soon thereafter as the matter can be heard,when their objections will be heard and given due consideration. The language and format for this notice is required by California Health and Safety Code Sections 14891 Et. Seq. (over) 57 SARATOGA WEED ABATEMENT PROGRAM SCHEDULE January 212015 Commencement hearing to consider objections to abatement list. April 15, 2015 PARCEL ABATEMENT DEADLINE Parcel must be free from hazardous vegetation by this date or an Inspector will order abatement. July/August 2015 Assessment Hearing to protest abatement charges. 2015 COUNTY WEED ABATEMENT FEES If this is your first year in the Weed Abatement Program,you will be responsible for a fee of$41.00 per parcel to cover the cost-of creating:and.maintaining a file in our database. Please be advised that the property owner of any parcel found to be non-compliant on or after the April 15th deadline will be charged an inspection fee of$250.00 and the property will be scheduled for abatement by the County contractor. If you complete the abatement work before the County contractor performs the abatement,you will not incur further charges. Should the abatement work be performed by a County contractor,you will be assessed the contractor's charges plus a County administrative fee of$169.00 per parcel. 2015 COUNTY CONTRACTOR'S WEED ABATEMENT PRICE LIST A) Disc Work* PARCEL SIZE: 1St Disc + 2"d Disc =Total Discs 0-12,500 sq.ft. $188.49 $126.36 $314.85 12,501sq.ft.- 43,560sq.ft. $219.02 $157.97 $376.99 Larger than 1 Acre $93.72 $83.19 $176.91 (PER ACRE) ** It is required that parcels be disced twice a year. The cost for the first discing is higher due to additional work normally required during the first discing. B)HANDWORK $3.05 PER 100 sgft C) FLAIL 6 Foot Mower $2.11 PER 1000 sgft MOWING 12 Foot Mower$2.11 PER 1000 sqft D) LOADER WORK $102.67 PER HOUR E) DUMP TRUCK $94.77 PER HOUR F)BRUSH WORK $3.05 PER 100 sgft G) DEBRIS REMOVAL $36.10 PER HOUR H) DUMP FEE 100% Added to orders with debris removal at 100% of the dump site charge. *Please note this program does not offer herbicide application as a method of abatement. (over) 58 County of Santa Clara �oUNT Department of Agriculture and Environmental Management Weed Abatement Division 1553 Berger Drive Building 1 law San Jose,CA 95112 (408)282-3145 Fax(408)286-2460 November 13,2014 IMPORTANT NOTICE TO ABATE WEEDS Dear Property Owner: To protect your property and the surrounding area from possible fire, your jurisdiction contracts with the County of Santa Clara to operate a Weed Abatement Program. The County is providing this notice and information packet to you as part of the Program. Please read the information carefully and call us for clarification or additional information. Your jurisdiction has or will adopt a resolution declaring your property as one that may contain potential fire hazards from weeds or other debris. In addition,your jurisdiction will be conducting a public hearing to consider an abatement order requiring you to remove any hazardous vegetation or combustible debris. The public hearing will be held on the date and at the place stated in the attached notice to destroy weeds. The public hearing provides an opportunity for you to raise any objections and/or concerns to the requirement that you remove fire-hazardous vegetation and/or debris from your property prior to the deadline provided in the attached abatement schedule. The Weed Abatement Program works in coordination with parcel owners if their property is habitat to protected species of plants and/or animals. If you believe your parcel includes an environmentally sensitive habitat, please check the box and explain this on the reply form to assist us in determining the best approach to weed abatement at your property. If after the public hearing the Weed Abatement Program is approved for your property, the County is authorized by its contract with the cities and by state law to perform an inspection of your property to determine whether the property has been cleared of hazards according to Minimum Fire Safety Standards (see enclosed brochure). Inspections will begin after the abatement deadline for your jurisdiction. This notice does not relieve you of your responsibility to complete the necessary work prior to the deadline for your jurisdiction. If this is your first year in the Weed Abatement Program, you will be responsible for a fee of$41.00 per parcel to cover the cost of creating and maintaining a file in our database. If you fail to complete the abatement work prior to the County inspection of your property, you will be responsible for an inspection fee of$250 per parcel and your property will be scheduled for abatement by the County contractor. If you complete the abatement work before the County contractor, you will not incur further charges. Should the abatement work be completed by a County contractor, you will be assessed the contractor's charges plus a County administrative fee of$169 per parcel. The County will use the least costly method of abatement considering the physical characteristics of your property and environmental concerns. Fees are detailed in the attached price list. The total amount will be included as a special assessment on your property tax bill following confirmation of the charges by Board of Supervisors: Mike Wasserman,Cindy Chavez,Dave Cortese,Ken Yeager,S.Joseph Simitian County Executive: Jeffrey V.Smith 59 your jurisdiction. Notice of the date of that meeting will be posted at a location prescribed by your jurisdiction(typically at the Civic Center)at least three days prior to the meeting. You can avoid all costs, other than the first year fee, by completing the abatement work yourself according to Minimum Fire Safety Standards (see enclosed brochure) prior to the abatement deadline for your jurisdiction and maintaining the Minimum Fire Safety Standards for the duration of fire season, which typically runs through October. Parcels will be removed from the program after three (3) consecutive years of voluntary compliance (work completed prior to the deadline). In preparation for this program, please complete and return the enclosed Reply so that we are aware of your intentions regarding the maintenance of your property. If you designate in your reply that you intend to abate the weeds yourself, you are expected to complete the abatement before the deadline listed on the abatement schedule and maintain fire safe conditions for the duration of the fire season. Responding that you intend to provide maintenance yourself does not release you from this responsibility to have the maintenance completed before your deadline and repeated as necessary to maintain Minimum. Fire Safe Standards. County contractors will proceed to abate hazardous vegetation as necessary after the deadline for your jurisdiction. Enclosed you will find the following information: A Reply Form specific to your property. Please complete and return promptly. A Notice to Destroy Weeds informing you of an upcoming public meeting that you must attend if you have any objections to the proposed removal of hazardous vegetation or debris from your property. A Weed Abatement Program Schedule for your city and a current County price list. A Brochure about the Santa Clara County Weed Abatement Program. Please be aware that any abatement performed by the County contractor must be in compliance with all applicable environmental protection regulations. If your property falls within an area designated as possible habitat for burrowing owls or any other protected species of bird or animal, the methods used to remove vegetation may be regulated by specific laws or local ordinances. If you are no longer the owner of the property identified by this mailing, please notify the County immediately. If you sell your property after the date of this letter, it is your responsibility to notify the new owner and to include the obligation to pay any abatement costs in your agreement of sale. Without taking this action,you will be responsible for all hazard abatement charges assessed to the property. Our goal is voluntary compliance with the Minimum Fire Safety Standards, and it is our objective to ensure that all properties remain safe from fire. If you have any questions about your property or need on- site advice to help you achieve compliance with the Minimum Fire Standards, please call the Santa Clara County Weed Abatement Program at(408)282-3145. 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CD a = a c w c x cfl a x n a' Cn m < cD < v N O 7 C9 N N N o 7 (mi' N O O a J 6�'N E Q`L.N N O 0.��•0 CS�n CD 3 0 n m N ._ ,. < o N co m m a m =cn m c 3 m m m in vi 62 RESOLUTION 14-073 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA DECLARING HAZARDOUS VEGETATION (WEEDS)TO BE A PUBLIC NUISANCE AND SETTING A PUBLIC HEARING DATE TO CONSIDER DECLARATION AS TO SPECIFIC PROPERTIES ON JANUARY 21,2015 WHEREAS, hazardous vegetation, including weeds and brush, is growing in the City of Saratoga upon certain streets, sidewalks, highways, roads, and private property; and WHEREAS,the weeds, brush, and rubbish create a fire hazard and/or health; and WHEREAS, said weeds, brush, and rubbish constitute a public nuisance; NOW, THEREFORE, the City Council of the City of Saratoga hereby resolves that the following: 1. That weeds, brush, and/or rubbish that create a fire hazard and/or health hazard are a public nuisance; 2. That the nuisance exists or recurs upon the streets, sidewalks, highways, roads, and private property, noted by common name or by reference to the tract, block, lot, code area, and parcel number, on a report prepared by and on file in the Office of the County Fire Marshal and/or the County Agricultural Commissioner; 3. That notice of the Public Hearing, described in paragraph 4 below at which the City Council will consider declaring a public nuisance as to specific properties, is herby ordered to be given to the owners of those specific properties identified in the report noted in paragraph 2 above; 4. That it is ordered that Wednesday, the 21St day of January 2015, during a Public Hearing at the regular meeting of the Saratoga City Council that will begin at 7:00 p.m. in the Saratoga Civic Theater located at 13777 Fruitvale Avenue in Saratoga, is hereby fixed as the time and place where objections to the proposed Declaration of Nuisance as to Specific Properties requiring destruction and removal of hazardous vegetation (weeds) shall be heard and given due consideration; 5. That the County Fire Marshal and/or the County Agricultural Commissioner is hereby designated as the person to cause notice to be given in the manner and form provided in Article 15, Chapter 7 of the Saratoga City Code, and as the person to hereafter cause abatement of the seasonal and recurring hazardous vegetation (weed) nuisance described above. 63 The above and foregoing resolution was passed and adopted at a regular meeting of the Saratoga City Council held on the 17th day of December 2014 by the following vote: AYES: Mayor Howard A. Miller, Vice Mayor Manny Cappello, Council Member Emily Lo, Mary-Lynne Bernald, Rishi Kumar NOES: None ABSENT: None ABSTAIN: None 0j I Howard A. Miller, Mayor ATTEST: 6V91t DATE: I?' 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BACKGROUND: The City has been contracting with the Metropolitan Planning Group to assist the Planning Division in maintaining its day-to-day workload during the recent vacancy period of the Community Development Director position. Metropolitan Planning Group has been performing well under the contract and the City is proposing to extend their services to cover for the recent vacancy of one of the City's two Planner positions. The City hopes to have the vacant planner position filled by April once the recruitment for a Senior Building Inspector is completed. FISCAL STATEMENT: There will be no impact to the FY 2014/15 budget as expenditures for the contract planner will be less than the salary savings from the vacant planner position. ATTACHMENTS: A. Proposed contract amendment B. Original contract 70 CITY OF SARATOGA AMENDMENT TO INDEPENDENT CONTRACTOR AGREEMENT THIS Amendment Agreement is made at Saratoga, California by and between the CITY OF SARATOGA, a municipal corporation ("City"), and Metropolitan Planning Group ("Contractor"), who agree as follows: WHEREAS, City and Contractor entered into an independent contractor agreement dated August 25, 2014 ("Original Agreement"); and WHEREAS, City and Contractor wish to amend the Original Agreement in order to change the term and total payment amount by entering into this Amendment to the Original Agreement. ---The remainder of this page is intentionally left blank--- 71 NOW THEREFORE, the parties hereto agree as follows: 1. Amended Payment Terms. The payment terms included as Exhibit B to the Original Agreement are hereby extended with additional payment terms attached as Exhibit B to this Amendment. IN WITNESS WHEREOF, the parties hereto have executed this Amendment. City of Saratoga: Contractor: By: By: James Lindsay, Date Date City Manager (Name). (Title) Attest: Crystal Bothelio, Date City Clerk Approved as to Form: Richard S. Taylor, Date City Attorney Attachments: Exhibit B -Additional Payment Terms 72 EXHIBIT B PAYMENT 1. TOTAL COMPENSATION . City shall pay Contractor at the rates set forth on the attached rate schedule, exhibit B-1. The total compensation (including equipment, supply, and expense costs) pursuant to Exhibit A - Scope of Work of this Agreement shall not exceed $105,000. 2. INVOICES Contractor shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for work performed prior to the invoice date. Hourly Rates schedule is shown on Exhibit B-1. Invoices shall be sent to the City no later than the 15th of the month following the month term being invoiced for. Invoices shall contain the following information: i. Serial identifications of bills for each applicant/project, i.e. Invoice No.1 on each individual invoice sheet. ii. Reference the City's application number per applicant/project (as identified on the City transmittal cover sheets) on each individual invoice sheet. iii. The beginning and ending dates of the billing period on each individual invoice sheet. iv. A summary cover sheet containing the total contract amount, the amount of prior billings, the total due this period, and the remaining balance available for all remaining billing periods. 3. MONTHLY PAYMENTS City shall make monthly payments, based on such invoices, for satisfactory progress in completion of the Scope of Work. 4. REIMBURSABLE EXPENSES There shall be no right to reimbursement of expenses incurred by Contractor except as specified in Exhibit A to this Agreement. 73 Contract For:Planning Service CITY OF SARATOGA STANDARD INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENT is made at Saratoga, California by and between the CITY OF SARATOGA, a municipal corporation ("City"), and Metropolitan Planning Group "Contractor"), who agree as follows: RECITALS WHEREAS, City requires the services of a qualified contractor to provide the work product described in Exhibit A of this Agreement; and WHEREAS, City lacks the qualified personnel to provide the specified work product; and WHEREAS, Contractor is duly qualified to provide the required work product; and WHEREAS, Contractor is agreeable to providing such work product on the terms and conditions hereinafter set forth. NOW THEREFORE, the parties hereto agree as follows: 1. RESULTS TO BE ACHIEVED Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the work product described in Exhibit A ("Scope of Work"). Contractor is not authorized to undertake any efforts or incur any costs whatsoever under the terms of this Agreement until receipt of a fully executed Purchase Order from the Finance Department of the City of Saratoga. 2. TERM The term of this Agreement commences on August 25, 2014 and extends through June 30, 2015 or the completion of the project, whichever occurs first, unless it is extended by written mutual agreement between the parties, provided that the parties retain the right to terminate this Agreement as provided in Exhibit D at all times. 3. PAYMENT City shall pay Contractor for work product produced pursuant to this Agreement at the time and in the manner set forth in Exhibit B ("Payment"). The payments specified in Exhibit B shall be the only payments to be made to Contractor in connection with Contractor's completion of the Scope of Work pursuant to this Agreement. Contractor City of Saratoga Independent Contractor Agreement 74 Page 1 of 21 Contract For:Planning Servic shall submit all billings to City in the manner specified in Exhibit B; or, if no manner is specified in Exhibit B, then according to the usual and customary procedures and practices which Contractor uses for billing clients similar to City. 4. FACILITIES AND EQUIPMENT Except as set forth in Exhibit C ("Facilities and Equipment"), Contractor shall, at its sole cost and expense, furnish all facilities and equipment, which may be required for completing the Scope of Work pursuant to this Agreement. City shall furnish to Contractor only the facilities and equipment listed in Exhibit C according to the terms and conditions set forth in Exhibit C. 5. GENERAL PROVISIONS City and Contractor agree to and shall abide by the general provisions set forth in Exhibit D ("General Provisions"). In the event of any inconsistency between said general provisions and any other terms or conditions of this Agreement, the other term or condition shall control insofar as it is inconsistent with the General Provisions. 6. EXHIBITS All exhibits referred to in this Agreement are attached hereto and are by this reference incorporated herein and made a part of this Agreement. 7. CONTRACT ADMINISTRATION This Agreement shall be administered on behalf of City by Christopher Riordan, Senior Planner ("Administrator"). The Administrator has complete authority to receive information, interpret and define City's policies consistent with this Agreement, and communicate with Contractor concerning this Agreement. All correspondence and other communications shall be directed to or through the Administrator or his or her designee. 8. NOTICES All notices or communication concerning a party's compliance with the terms of this Agreement shall be in writing and may be given either personally, by certified mail, return receipt requested, or by overnight express carrier. The notice shall be deemed to have been given and received on the date delivered in person or the date upon which the postal authority or overnight express carrier indicates that the mailing was delivered to the address of the receiving Party. The Parties shall make good faith efforts to provide advance courtesy notice of any notices or communications hereunder via telefacsimile. However, under no circumstances shall such courtesy notice satisfy the notice requirements set forth above; nor shall lack of such courtesy notice affect the validity of service pursuant to the notice requirement set forth above. Any Party hereto, by giving ten (10) days written notice to the other, may designate any City of Saratoga Independent Contractor Agreement 75 Page 2 of 21 Contract For:Planning Service other address as substitution of the address to which the notice or communication shall be given. Notices or communications shall be given to the Parties at the addresses set forth below until specified otherwise in writing: Notices to Contractor shall be sent to: Geoff I. Bradley, AICP Metropolitan Planning Group 579 Clyde Avenue, Suite 340 Mountain View, CA 94043 Notices to City shall be sent to: James Lindsay, City Manager City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 With a copy (which copy shall not constitute notice) to: City Clerk City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 9. ENTIRE AGREEMENT This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to Contractor's completion of the Scope of Work on behalf of City and contains all of the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No amendment, alteration, or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. City of Saratoga Independent Contractor Agreement Page 3 of 21 76 Contract For:Planning Servic CONTRACTOR: By: Date: SIPOW, Print Name: e-o- her ly&-cU e-Li Position: A \ l CITY OF TO A, a municipal corporation B Date: I �� Y• ame: ames Lindsay Tit City Manager APPROVED AS TO FORM: By: Date: f City Attorney Attachments Exhibit A -- Scope of Work Exhibit B -- Contract Payment and Reporting Schedule Exhibit B-1 -- Rate Schedule Exhibit C -- Facilities and Equipment Exhibit D -- General Provisions Exhibit E -- Insurance Requirements City of Saratoga Independent Contractor Agreement Page 4 of 21 77 Exhibit A SCOPE OF WORK Summary of Work to be Performed: On request of the Senior Planner, contractor will review applications submitted to the Community Development Department for completeness and compliance with the City Code and state laws governing City approvals. Contractor will work with applicants and City staff to obtain information necessary to complete review and will make recommendations for City actions to the Senior Planner or the Senior Planner's designee. Contractor shall assign personnel with a suitable level of experience to provide the services requested. 630283.1 78 Contract For:Planning Servic EXHIBIT B PAYMENT 1. TOTAL COMPENSATION . City shall pay Contractor at the rates set forth on the attached rate schedule, exhibit B-1. The total compensation (including equipment, supply, and expense costs) pursuant to Exhibit A - Scope of Work of this Agreement shall not exceed $45,000. 2. INVOICES Contractor shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for work performed prior to the invoice date. Hourly Rates schedule is shown on Exhibit B-1. Invoices shall be sent to the City no later than the 15th of the month following the month term being invoiced for. Invoices shall contain the following information: i. Serial identifications of bills for each applicant/project, i.e. Invoice No.1 on each individual invoice sheet. ii. Reference the City's application number per applicant/project (as identified on the City transmittal cover sheets) on each individual invoice sheet. iii. The beginning and ending dates of the billing period on each individual invoice sheet. iv. A summary cover sheet containing the total contract amount, the amount of prior billings, the total due this period, and the remaining balance available for all remaining billing periods. 3. MONTHLY PAYMENTS City shall make monthly payments, based on such invoices, for satisfactory progress in completion of the Scope of Work. 4. REIMBURSABLE EXPENSES . There shall be no right to reimbursement of expenses incurred by Contractor except as specified in Exhibit A to this Agreement. City of Saratoga Independent Contractor:agreement Page 6 of 21 Exhibit B—Payment 79 Contract For:Planning Service: EXHIBIT B-1 RATE SCHEDULE METROPOLITAN PLANNING GROUP 2014 Rate Sheet Staff Hourly Rate= Principal $175 Principal Planner $155 Project Manager $135 Senior Urban Designer $130 Senior Planner $125 Environmental Planner $115 Urban Designer $110 Associate Planner $100 Assistant Planner $80 Planning Tech/Admin $60 City of Saratoga Independent Contractor Agreement Page 7 of 21 Exhibit B-1 —Rate Schedule 80 Contract For:Planning Servic EXHIBIT C FACILITIES AND EQUIPMENT City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Contractor's use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing said physical facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility which may involve incurring any direct expense, including, but not limiting the generality of this exclusion, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Contractor shall not use such services, premises, facilities, supplies or equipment for any purpose other than in the performance of Contractor's obligations under this Agreement. City of Saratoga Independent Contractor Agreement Page 8 of 21 Exhibit C—Facilities and Equipment 81 Contract For:Planning Service; EXHIBIT D GENERAL PROVISIONS 1. INDEPENDENT CONTRACTOR At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. Contractor shall complete the Scope of Work hereunder in accordance with currently approved methods and practices in Contractor's field. City shall have the right to control Contractor only with respect to specifying the results to be obtained from Contractor pursuant to this Agreement. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Likewise, no relationship of employer and employee is created by this Agreement between the City and Contractor or any subcontractor or employee of Contractor. Nothing contained in this Agreement shall be construed as limiting the right of Contractor to engage in Contractor profession separate and apart from this Agreement so long as such activities do not interfere or conflict with the performance by Contractor of the obligations set forth in this Agreement. Interference or conflict will be determined at the sole discretion of the City. 2. STANDARD OF PERFORMANCE Contractor shall complete the Scope of Work required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Contractor is engaged in the geographical area in which Contractor practices its profession. All work product of whatsoever nature which Contractor delivers to City pursuant to this Agreement shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of quality normally observed by a person practicing in Contractor's profession. 3. TIME Contractor shall devote such time to the Scope of Work pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Contractor's obligations pursuant to this Agreement. 4. CONTRACTOR NO AGENT Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 5. BENEFITS AND TAXES Contractor shall not have any claim under this Agreement or otherwise against City for seniority, City of Saratoga Independent Contractor Agreement Page 9 of 21 Exhibit D—General Provisions 82 Contract For:Planning Servic vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, including, but not limited to, federal and state income taxes, and in connection therewith Contractor shall indemnify and hold City harmless from any and all liability that City may incur because of Contractor's failure to pay such taxes. City shall have no obligation whatsoever to pay or withhold any taxes on behalf of Contractor. 6. ASSIGNMENT PROHIBITED No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. However, with the consent of the City given in writing, Contractor is entitled to subcontract such portions of the work to be performed under this Agreement as may be specified by City. 7. PERSONNEL a. Qualifications. Contractor shall assign only competent personnel to complete the Scope of Work pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, Contractor shall, immediately upon receiving notice from city of such desire of City, cause the removal of such person or persons. b. Employment Eligibility. Contractor shall ensure that all employees of Contractor and any subcontractor retained by Contractor in connection with this Agreement have provided the necessary documentation to establish identity and employment eligibility as required by the Immigration Reform and Control Act of 1986. Failure to provide the necessary documentation will result in the termination of the Agreement as required by the Immigration Reform and Control Act of 1986. c. Prevailing Wages. This is a public works contract within the meaning of Part 7 of Division 2 of the California Labor Code (Sections 1720 et seq.). In accordance with California Labor Code Section 1771, all contractors and subcontractors on this public work project shall pay not less than current prevailing wage rates as determined by the California Department of Industrial Relations ("DIR"). Pursuant to Section 1773 of the California Labor Code, the City has obtained the general prevailing rate of wages and employer payments for health and welfare, vacation, pension and similar purposes in the City of Saratoga, a copy of which is on file City of Saratoga Independent Contractor Agreement Page 10 of 21 Exhibit D—General Provisions 83 Contract For:Planning Service; at 13777 Fruitvale Avenue, Saratoga, California at the office of the Public Works Director, and shall be made available for viewing to any interested party upon request. 8. CONFLICT OF INTEREST a. In General. Contractor represents and warrants that, to the best of the Contractor's knowledge and belief, there are no relevant facts or circumstances which could give rise to a conflict of interest on the part of Contractor, or that the Contractor has already disclosed all such relevant information. b. Subsequent Conflict of Interest. Contractor agrees that if an actual or potential conflict of interest on the part of Contractor is discovered after award, the Contractor will make a full disclosure in writing to the City. This disclosure shall include a description of actions, which the Contractor has taken or proposes to take, after consultation with the City to avoid, mitigate, or neutralize the actual or potential conflict. Within 45 days, the Contractor shall have taken all necessary steps to avoid, mitigate, or neutralize the conflict of interest to the satisfaction of the City. c. Interests of City Officers and Staff. No officer, member or employee of City and no member of the City Council shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Contractor nor any member of any Contractor's family shall serve on any City board or committee or hold any such position which either by rule, practice or action nominates, recommends, or supervises Contractor's operations or authorizes funding to Contractor. 9. COMPLIANCE WITH LAWS a. In General. Contractor shall take reasonable care to observe and comply with all laws, policies, general rules and regulations established by City and shall comply with the common law and all laws, ordinances, codes and regulations of governmental agencies, (including federal, state, municipal and local governing bodies) applicable to the performance of the Scope of Work hereunder, including, but not limited to, all provisions of the Occupational Safety and Health Act of 1979 as amended. b. Licenses and Permits. Contractor represents and warrants to City that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Contractor to practice its profession. Contractor represents and warrants to City City of Saratoga Independent Contractor Agreement Page 11 of 21 Exhibit D—General Provisions 84 Contract For:Planning Servic that Contractor shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Contractor to practice its profession. In addition to the foregoing, Contractor shall obtain and maintain during the term hereof a valid City of Saratoga Business License. c. Funding Agency Requirements. To the extent that this Agreement may be funded by fiscal assistance from another entity, Contractor shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. d. Drug-free Workplace. Contractor and Contractor's employees and subcontractors shall comply with the City's policy of maintaining a drug-free workplace. Neither Contractor nor Contractor's employees and subcontractors shall unlawfully manufacture, distribute, dispense, possess or use controlled substances, as defined in 21 U.S. Code Section 812, including marijuana, heroin, cocaine, and amphetamines, at any facility, premises or worksite used in any manner in connection with performing services pursuant to this Agreement. If Contractor or any employee or subcontractor of Contractor is convicted or pleads nolo contendere to a criminal drug statute violation occurring at such a facility, premises, or worksite, the Contractor, within five days thereafter, shall notify the City. e. Discrimination Prohibited. Contractor assures and agrees that Contractor will comply with Title VII of the Civil Rights Act of 1964 and other laws prohibiting discrimination and that no person shall, on the grounds of race, creed, color, disability, sex, sexual orientation, national origin, age, religion, Vietnam era veteran's status, political affiliation, or any other non-merit factors be excluded from participating in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. 10. DOCUMENTS AND RECORDS a. Property of City. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda or other written documents or materials prepared by Contractor pursuant to this Agreement shall become the property of City upon completion of the work to be performed hereunder or upon termination of this Agreement. b. Retention of Records. Until the expiration of five years after the furnishing of any services pursuant to this Agreement, Contractor City of Saratoga Independent Contractor Agreement Page 12 of 21 Exhibit D—General Provisions 85 Contract For:Planning Service; shall retain and make available to the City or any party designated by the City, upon written request by City, this Agreement, and such books, documents and records of Contractor (and any books, documents, and records of any subcontractor(s)) that are necessary or convenient for audit purposes to certify the nature and extent of the reasonable cost of services to City. c. Use of Recycled Products. Contractor shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. d. Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility" as per the sample below. Seal and Signature of Registered Professional with report/design responsibility. 11. CONFIDENTIAL INFORMATION Contractor shall hold any confidential information received from City in the course of performing this Agreement in trust and confidence and will not reveal such confidential information to any person or entity, either during the term of the Agreement or at any time thereafter. Upon expiration of this Agreement, or termination as provided herein, Contractor shall return materials which contain any confidential information to City. Contractor may keep one copy for its confidential file. For purposes of this paragraph, confidential information is defined as all information disclosed to Contractor which relates to City's past, present, and future activities, as well as activities under this Agreement, which information is not otherwise of public record under California law. 12. RESPONSIBILITY OF CONTRACTOR Contractor shall take all responsibility for the work, shall bear all losses and damages directly or City of Saratoga Independent Contractor Agreement Page 13 of 21 Exhibit D—General Provisions 86 Contract For:Planning Servic indirectly resulting to Contractor, to any subcontractor, to the City, to City officers and employees, or to parties designated by the City, on account of the performance or character of the work, unforeseen difficulties, accidents, occurrences or other causes to the extent predicated on active or passive negligence of the Contractor or of any subcontractor. 13. INDEMNIFICATION Contractor and City agree that City, its employees, agents and officials shall, be fully protected from any loss, injury, damage, claim, lawsuit, cost, expense, attorneys fees, litigation costs, defense costs, court costs or any other cost to the extent arising out of or in any way related to the negligent performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the parties to be interpreted and construed to provide the fullest protection possible under the law to the City. Contractor acknowledges that City would not enter into this agreement in the absence of the commitment of Contractor to indemnify and protect City as set forth below. a. Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless City, its employees, agents and officials, from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs (including, without limitation, costs and fees of litigation) of any kind whatsoever without restriction or limitation, incurred in relation to, as a consequence of or arising out of or in any way attributable actually, allegedly or impliedly, in whole or in part, to the performance of this Agreement. All obligations under this provision are to be paid by Contractor as they are incurred by the City. b. Limitation on Indemnity. Without affecting the rights of City under any provision of this agreement or this section, Contractor shall not be required to defend, indemnify and hold harmless City as set forth above for liability attributable to the active negligence, sole negligence, or willful misconduct of City, provided such active negligence, sole negligence, or willful misconduct is determined by agreement between the parties or the findings of a court of competent jurisdiction. c. Scope of Contractor Obligation. The obligations of Contractor under this or any other provision of this Agreement will not be limited by the provisions of any workers' compensation act or similar act. Contractor expressly waives its statutory immunity under such statutes or laws as to City, its employees and officials. d. Subcontractors. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, sub tier contractor or any other person or entity involved by, for, with or on behalf of Contractor City of Saratoga Independent Contractor Agreement Page 14 of 21 Exhibit D—General Provisions 87 Contract For:Planning Service; in the performance or subject matter of this Agreement. In the event Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. e. In General. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns, or heirs of Contractor and shall survive the termination of this agreement or this section. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this Agreement is not a construction contract. By execution of this Agreement, Contractor acknowledges and agrees that it has read and understands the provisions hereof and that this paragraph is a material element of consideration. City approval of the insurance contracts required by this Agreement does not relieve the Contractor or subcontractors from liability under this paragraph. 14. INSURANCE REQUIREMENTS Contractor shall procure and maintain for the duration of the contract insurance as set forth in Exhibit E. The cost of such insurance shall be included in the Contractor's bid. 15. DEFAULT AND REMEDIES a. Events of default. Each of the following shall constitute an event of default hereunder: 1. Failure to perform any obligation under this Agreement and failure to cure such breach immediately upon receiving notice of such breach, if the breach is such that the City determines the health, welfare, or safety of the public is immediately endangered; or 2. Failure to perform any obligation under this Agreement and failure to cure such breach within fifteen (15) days of receiving notice of such breach, if the breach is such that the City determines that the health, welfare, or safety of the public is not immediately endangered, provided that if the nature of the breach is such that the City determines it will reasonably require more than fifteen (15) days to cure, Contractor shall not be in default if Contractor promptly commences the cure and diligently proceeds to completion of the cure. b. Remedies upon default. Upon any Contractor default, City shall have the right to immediately suspend or terminate the Agreement, City of Saratoga Independent Contractor Agreement Page 15 of 21 Exhibit D—General Provisions 88 Contract For:Planning Servic seek specific performance or contract with another party to perform this Agreement. c. No Waiver. Failure by City to seek any remedy for any default hereunder shall not constitute a waiver of any other rights hereunder or any right to seek any remedy for any subsequent default. 16. TERMINATION Either party may terminate this Agreement with or without cause by providing 10 days notice in writing to the other party. The City may terminate this Agreement at any time without prior notice in the event that Contractor commits a material breach of the terms of this Agreement. Upon termination, this Agreement shall become of no further force or affect whatsoever and each of the parties hereto shall be relieved and discharged here-from, subject to payment for acceptable services rendered prior to the expiration of the notice of termination. Notwithstanding the foregoing, the provisions of this Agreement concerning retention of records, City's rights to material produced, confidential information, consultant's responsibility, indemnification, insurance, dispute resolution, litigation, and jurisdiction and severability shall survive termination of this Agreement. 17. DISPUTE RESOLUTION The parties shall make a good faith effort to settle any dispute or claim arising under this Agreement. If the parties fail to resolve such disputes or claims, they shall submit them to non-binding mediation in California at shared expense of the parties for at least 8 hours of mediation. If mediation does not arrive at a satisfactory result, arbitration, if agreed to by all parties, or litigation may be pursued. In the event any dispute resolution processes are involved, each party shall bear its own costs and attorneys fees. 18. LITIGATION If any litigation is commenced between parties to this agreement concerning any provision hereof or the rights and duties of any person in relation thereto, each party shall bear its own attorneys' fees and costs. 19. JURISDICTION AND SEVERABILITY This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be in that state and venue shall be in Santa Clara County, California. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. City of Saratoga Independent Contractor Agreement Page 16 of 21 Exhibit D—General Provisions 89 Contract For:Planning Service, 20. NOTICE OF NON-RENEWAL Contractor understands and agrees that there is no representation, implication, or understanding that the City will request that work product provided by Contractor under this Agreement be supplemented or continued by Contractor under a new agreement following expiration or termination of this Agreement. Contractor waives all rights or claims to notice or hearing respecting any failure by City to continue to request or retain all or any portion of the work product from Contractor following the expiration or termination of this Agreement. 21. PARTIES IN INTEREST This Agreement is entered only for the benefit of the parties executing this Agreement and not for the benefit of any other individual, entity or person. 22. WAIVER Neither the acceptance of work or payment for work pursuant to this Agreement shall constitute a waiver of any rights or obligations arising under this Agreement. The failure by the City to enforce any of Contractor's obligations or to exercise City's rights shall in no event be deemed a waiver of the right to do so thereafter. City of Saratoga Independent Contractor Agreement Page 17 of 21 Exhibit D—General Provisions 90 Contract For:Planning Servic EXHIBIT E INSURANCE Please refer to the insurance requirements listed below. Those that have an "X" indicated in the space before the requirement apply to Contractor's Agreement (ignore any not checked). Contractor shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements to: Administrative Services Officer, City of Saratoga, 13777 Fruitvale Avenue, Saratoga, CA 95070. Contractor shall furnish City with copies of original endorsements affecting coverage required by this Exhibit E. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require Contractor's insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications. X Commercial General/Business Liability Insurance with coverage as indicated: X $2,000,000 per occurrence/$2,000,000 aggregate limits for bodily injury and property damage $ per occurrence bodily injury/$ per occurrence property damage Coverage for X, C, U hazards MUST be evidenced on the Certificate of Insurance If the standard ISO Form wording for "OTHER INSURANCE", or other comparable wording, is not contained in Contractor's liability insurance policy, an endorsement must be provided that said insurance will be primary insurance and any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers shall be in excess of Contractor's insurance and shall not contribute to it. X Auto Liability Insurance with coverage as indicated: X $2,000,000 combined single limit for bodily injury and property damage City of Saratoga Independent Contractor Agreement Page 18 of 21 Exhibit E-Insurance 91 Contract For:Planning Service: $ per person/$ per accident for bodily injury $ per occurrence for property damage $ 500,000 combined single limit for bodily injury and property damage Garage keepers extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the consultant, regardless of where the vehicles are kept or driven. X Professional/Errors and Omissions Liability with coverage as indicated: X $1,000,000 per loss/ $2,000,000 aggregate $5,000,000 per loss/ $5,000,000 aggregate Contractor must maintain Professional/Errors & Omissions Liability coverage for a period of three years after the expiration of this Agreement. Contractor may satisfy this requirement by renewal of existing coverage or purchase of either prior acts or tail coverage applicable to said three-year period. X Workers' Compensation Insurance X Including minimum $1,000,000 Employer's Liability The Employer's Liability policy shall be endorsed to waive any right of subrogation as respects the City, its employees or agents. The Contractor makes the following certification, required by section 1861 of the California Labor Code: I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract X Additional Insured Endorsement(s) for Commercial General/Business Liability coverage naming the City of Saratoga, its officers, employees and agents as additional insured. (NOTE: additional insured language on the Certificate of Insurance is NOT acceptable without a separate endorsement such as Form CG 20 10) City of Saratoga Independent Contractor Agreement Page 19 of 21 Exhibit E-Insurance 92 Contract For:Planning Servic X The Certificate of Insurance MUST provide 30 days notice of cancellation, (10 days notice for non-payment of premium). NOTE: the following words must be crossed out or deleted from the standard cancellation clause: ". . . endeavor to . . ." AND ". . . but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives." All subcontractors used must comply with the above requirements except as noted below: As to all of the checked insurance requirements above, the following shall apply: a. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials and employees; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. b. City as Additional Insured. The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor, premises owned, occupied or used by the Contractor, or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. c. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. 2. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. City of Saratoga Independent Contractor Agreement Page 20 of 21 Exhibit E -Insurance 93 Contract For:Planning Servic, 3. Coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. d. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A: VII City of Saratoga Independent Contractor Agreement Page 21 of 21 Exhibit E-Insurance 94 y of SAfigT SARATOGA CITY COUNCIL 1956 c�ciFoik MEETING DATE: January 21, 2015 DEPARTMENT: City Manager's Office PREPARED BY: Crystal Bothelio, City Clerk SUBJECT: Council Direction on Tobacco Retailer Licensing Ordinance & E-Cigarette Regulations RECOMMENDED ACTION: Provide direction to staff on whether to prepare an ordinance implementing a tobacco retailer licensing requirement and/or establishing e-cigarette regulations. BACKGROUND: Annually, the Santa Clara County Public Health department, Tobacco-Free Coalition of Santa Clara County and Community Advocate Teens of Today would rate cities based on efforts to enforce tobacco laws and local policies related to tobacco sales and preventing minors from using tobacco. Before the 2014 ratings were released, the County Public Health Department met with City staff and provided recommendations for improving Saratoga's tobacco control policies. One of the recommendations included adoption of a tobacco retailer licensing ordinance. At that time,with permission from the Mayor, an agenda item to provide the City Council with the opportunity to consider and provide direction on tobacco retailer licensing requirements was scheduled for the January 21, 2015 City Council Meeting. At the November 5, 2014 City Council Meeting, former Council Member Chuck Page with support from Mayor Howard Miller, requested that the Council also consider including e- cigarettes in the City's regulations for the sale and use of tobacco products. Consequently, staff is combining these two related items and seeking Council direction on whether to prepare an ordinance establishing tobacco retailer licensing requirements and/or extend tobacco regulations to e-cigarettes. Tobacco Retailer Licensing Laws Tobacco retailer licensing laws have been used by cities throughout the State as a mechanism for strengthening tobacco controls. Under this type of law, tobacco retailers are required to obtain a special license or permit to sell tobacco products in the local jurisdiction. In many jurisdictions, tobacco retailer permit ordinances are adopted to prevent minors from purchasing or using tobacco products through restrictions on location or density of retailers, annual fees that are commonly used to fund enforcement efforts (such as undercover police operations to determine if a retailer is selling tobacco to minors), and penalties for violation that provide retailers with incentive to comply with licensing requirements. A number of communities in California have also reported that tobacco retailer licensing laws have resulted in a decline in tobacco product sales. Contra Costa County, City of Berkeley, City of San Francisco, San Luis Obispo, Davis, and Sacramento County have all observed decreases in tobacco sales following adoption and implementation of retailer licensing requirements. Several jurisdictions in Santa Clara County have adopted tobacco retailer licensing laws. These include Santa Clara County, Campbell, Gilroy, Morgan Hill, and San Jose. The City of Campbell adopted an ordinance instituting tobacco retailer licensing requirements in 2012 and applies to all retailers that sell tobacco products or tobacco paraphernalia. The Campbell law requires that the tobacco retailer license be prominently displayed, clerks selling tobacco products must be at least 18 years of age and must check the identification of all customers who appear to be 27 years old or younger. Additionally, Campbell has instituted escalating penalties for retailers, with or without a permit, who repeatedly violate the requirements of the law. The County of Santa Clara's tobacco retailer regulations include similar provisions, with additional limitations on where tobacco retailers may be located. The County prohibits retailers from being located within 1000 feet of a school or 500 feet from an existing retailer. Additionally, the County prohibits retailers from covering more than 15% of window space with signage of any sort or selling flavored tobacco products. The Campbell and Santa Clara County ordinances are attached to this report. Tobacco retailer licensing ordinances can vary widely in scope. Below staff has identified common components of tobacco retailer licensing laws and various options associated with those elements. COMPONENT OPTIONS Retailers Subject to the Law ❑ Apply to all traditional tobacco product retailers (cigarettes, cigars, etc.) ❑ Apply to retailers that sell non-traditional tobacco products (e-cigarettes, smokeless tobacco products—snuff or chewing tobacco, etc.) ❑ Apply to retailers that sell tobacco paraphernalia (pipes, rolling paper, etc.) Special Requirements & ❑ Establish annual licensing fee to cover license program Prohibitions costs, including administration and enforcement ❑ Consider violations of any tobacco law as a violation of licensing law ❑ Require license to be displayed in prominent location ❑ Require ID check for customers who appear under age 27 ❑ Prohibit self-service displays ❑ Require clerks selling tobacco to be 18 years or older ❑ Prohibit minors from entering establishments with tobacco retailer license Consequences ❑ Establish escalating penalties for repeated or future violations (for example, suspend privilege to sell tobacco or tobacco products for 30 days for 1 st violation, 60 days for 2nd violation, etc.) for retailers with or without a permit ❑ Establish time period during which violations are tracked for escalating penalties (for example, violations are tracked for period of 5 years) ❑ Prohibit tobacco products from being displayed during suspension period or without permit ❑ Prohibit advertisement of tobacco products during suspension period or without permit ❑ Increase suspension periods/penalties for retailers who sell without a license ❑ Seize and destroy tobacco products and paraphernalia offered for sale without a license ❑ Assess fine for violation(s) IL ❑ Allow retailer to pay a fine in lieu of license suspension Eligibility ❑ Require retailer to be at a fixed location ❑ Prohibit permits from being issued for tobacco retailing at temporary or reoccurring temporary events (i.e. farmers' market) ❑ Prohibit tobacco retail stores from containing a pharmacy ❑ Prohibit tobacco retailers from being located near schools or youth-populated areas ❑ Require new retailer locations to be a specified minimum distance from existing tobacco retailers ❑ Limit number of available licenses based on population ❑ Prohibit retailers from primarily selling tobacco or tobacco products (for example, discount cigarette store) ❑ Prohibit retailer from also providing restaurant or bar services ❑ Limit licenses to retailers that sell alcohol for off-site consumption ❑ Prohibit smoking on tobacco retailer premises Additional Requirements ❑ Prohibit sale of individual cigars ❑ Prohibit sale of drug paraphernalia ❑ Prohibit retailers from covering more than 15% of windows with signs ❑ Prohibit permits from be transferred ❑ Prohibit sale of flavored tobacco products Tobacco Retailers in Saratoga Currently, there are 8 retailers in the City of Saratoga that sell tobacco or tobacco products. These retailers are listed here. STORE NAME ADDRESS 76 Gas Station 14395 Big Basin Way Safeway 12876 Sarato a-Sunn vale Road CVS/Pharmacy 12940 Sarato a-Sunnyvale Road The Bank 14421 Big Basin Way Valero Gas Station 12600 Saratoga Avenue Vine Life 14572 Big Basin Way, Suite A 76 Gas Station 12015 Saratoga-Sunnale Road Stop N Save 12304 Saratoga-Sunnvale Road E-Cigarette Regulations As electronic cigarettes (e-cigarettes) grow in popularity, many jurisdictions have started considering the impacts of e-cigarettes and whether to regulate them. E-cigarettes are battery- powered devices that use a heating element to turn a liquid solution containing nicotine into a vapor, which is inhaled by the user. These devices do not contain tobacco. Proponents of e-cigarette regulations believe that e-cigarettes are marketed to appeal to minors and young adults and may lead users to smoking conventional cigarettes, thereby increasing the use of tobacco products. Additionally,proponents have also expressed concerns about the lack of regulation and toxicity of chemicals in the liquid nicotine solutions, the long-term health effects of e-cigarette use and exposure to secondhand vapors, safety of e-cigarette devices (citing reports of these devices exploding or catching fire), and incidents of children and pets being accidentally poisoned after ingesting liquid nicotine products. Attachment C includes additional information from the California Youth Advocacy Network about some of the reasons why proponents advocate for e-cigarette regulations. In Santa Clara County, several local governments have adopted ordinances include e-cigarettes in tobacco regulations. These jurisdictions include Santa Clara County, Cupertino, and Sunnyvale. JURISDICTION REGULATIONS Santa Clara County Use of e-cigarettes is prohibited wherever smoking is prohibited —common areas of multi-unit housing, County buildings, and recreational areas. Retailers of e-cigarettes must obtain tobacco retailer license. Cupertino Use of e-cigarettes is prohibited wherever smoking is prohibited —City property, parking areas, and recreational areas. Sunnyvale Use of e-cigarettes is prohibited wherever smoking is prohibited L —outdoor eating areas,parks (excluding golf courses), and City property (excluding sidewalks and streets). Potential Santa Clara County Grant Funding Last year, the County of Santa Clara Public Health Department received a$1.9 million grant to address chronic health issues, such as tobacco use and exposure to secondhand smoke,poor nutrition, lack of physical activity, and limited access to disease prevention, risk reduction, and management opportunities. The County is expected to make a portion of this grant available to cities undertaking efforts that support the goals of the grant program. In preliminary discussions with County staff, it appears that at least some of the costs associated with developing a tobacco retailer licensing ordinance or e-cigarette ordinance would be eligible for refund through the County's grant. The Public Health Department is expected to send out additional information to cities in the County about the funding opportunity in early 2015. Additionally, a presentation about the grant program is scheduled for the Cities Association of Santa Clara County January 2015 meeting. ATTACHMENTS: Attachment A - Santa Clara County Tobacco Retail Licensing Fact Sheet Attachment B - Santa Clara County Tobacco Prevention Policy Matrix by Jurisdiction Attachment C - City of Campbell Tobacco Retailer Licensing Ordinance Attachment D - Santa Clara County Tobacco Retailer Licensing Ordinance Attachment E - California Youth Advocacy Network E-Cigarette Fact Sheet Attachment F - Santa Clara County United for Health Grant Program Fact Sheet BUILDING HEALTHY, SAFE COMMUNITIES peopleWhere . Protecting Youth from Tobacco in Santa Clara County Fact Sheet Youth Tobacco Use www.sccphd.org/tobacco9% of youth in Santa Clara County currently smoke cigarettes.' Nearly 90% of adult smokers in the United States report that they tried their first Visit our -• - to cigarette before the age of 18.2 In Santa Clara County twelve is most learn • ' about what common age that youth have tried their first cigarette.3 you can .. to help prevent kids access to Tobacco is Accessible to Youth in Stores tobacco. 4W • Nearly 40% of Santa Clara County students who report smoking cigarettes within the last 30 days, reported that they acquired them • from a store.4 Of those who purchased directly from a store, less than a quarter (23%) were asked to show proof of age.4 Tobacco Products & Advertising Common Near Schools _� • ' • More than 1 in 5 stores in Santa Clara County that sell tobacco are � located within 1,000 feet of a school.5 • 64.9% of stores surveyed had unhealthy exterior store advertisements for unhealthy products such as tobacco, alcohol, and junk food with tobacco being the number one advertised product.5 • 87% of stores that sell tobacco near schools have candy, mint, and liquor flavored non-cigarette tobacco products.5 "Our primary goal as health advocates is to . starting to smoke by keeping . . . . - -Dr. Sara Cody, County Health Officer IS IN A Simple Solution: Tobacco Retail Licensing • The current California state tobacco retail licensing law is insufficient. Retailers pay a one-time fee of $100 to the Board of Equalization (BOE), with no cost to re-new the license. This law is not used to enforce the tobacco sales to minors law—in fact, no state licensee has ever been penalized by the BOE for selling tobacco to minors. • Local tobacco retail licensing (TRL) is needed to better enforce sales to minors laws, and include strong enforcement provisions and financial deterrents for violations. • As of April 2014, the cities of San Jose, Campbell, Morgan Hill, and the county of Santa Clara have adopted tobacco retail licensing and other cities in Santa Clara County are considering tobacco retail licensing programs. Santa Clara County 96 PUBM HEALTH The Community Supports Tobacco Retail Licensing A survey of voters in Santa Clara County conducted in 2011 found:6 • 88% of Santa Clara County voters support tobacco retail licensing ordinances. SN • 80% of Santa Clara County voters would support a tobacco licensing fee of a few 1` hundred dollars a year as long as that fee \\ would be used to enforce the law against ' selling cigarettes to minors. mementos Ij • 89% of Santa Clara County voters would support suspending the tobacco license of any \ retail store that repeatedly violates the law against selling cigarettes to minors. • 74% of Santa Clara County voters support no tobacco sales within 1,000 feet of schools. _` ♦ CBBATEB TOBACCO Tobacco Retail Licensing is Effective Before and After Sales Data Tobacco retail licensing is a self-funding program that gives local jurisdictions the authority to hold retailers accountable for selling tobacco to minors. San Luis Obispo 17% As of June 2012, more than 105 cities/towns and counties in California have adopted strong City of Berkeley 38% tobacco retail licensing ordinances and have seen the rates of youth access to tobacco reduced dramatically.' City of San 22.3% 11.3% Francisco Note: Annual fees range from $30 to$665 with the majority of fees being between $200 to $352. Davis 30.5% 4.7/0 For more information or questions, please contact the Center for Chronic Disease and Injury Prevention (CDIP) at 408.793.2700 Sources: 'California Student Tobacco Survey(2012) 2Surgeon General Report:Preventing Tobacco Use Among Youth and Young Adults(2012) 3California Healthy Kids Survey(2009-10) Santa Clara County 'California Healthy Kids Survey(2008) ����'� 'California Department of Public Health Healthy Stores for a Healthy Community Survey(2014) 'The Center for Tobacco Policy and Organizing Survey(2011) 97 HEALTH 'The Center for Tobacco Policy and Organizing Website(2012) Tobacco Prevention Policies by Santa Clara County Jurisdiction The chart below outlines what tobacco prevention policies each jurisdiction in Santa Clara County has adopted.The chart outlines local policies that include stronger restrictions than what is already imposed by Federal and State policies. F-----------------------------F-------------------------------------------------r-------------------------------------------------------------------------------------------------------------------------- Smoke-free Indoor Air Policies Smoke-free Outdoor Air Policies Tobacco Retail Policies I I I Jurisdiction Multi-Unit Parks& Dining Service Common Tobacco Retail Limit Sales � I I � Worksites* ; Entryways I Housing(MUH)J Trails Areas Areas Areas of MUH Permit Near Schools II * I I I I I I I I I Campbell I X I I X I I X I X I I I x I I I I I I I I I I I I I I I I I I I I I I I I County of Santa I I I I I I I I I I I X ; X ; X ; X ; X ; X ; X ; X ; X ; Clara I I I I I I -------- I I I -----I ------ 1 * i i i i * Cupertino x x x x ----------------------------- ------------------------ ------------------------ --------------F-----------4-----------------F-------------F--------------------f---------------------f---------------------I Gilroy X* X* x X ------------------------ ------------------------ -------------- ----------- ----------------- ------------- --------------------+-_------------------- --------------------- -----------------------------I I I I I I I I I I Los Altos ; ; i X _____________________________ ________________________f________________________ ______________f___________ _________________ _____________ --------------------f---------------------¢--------------------- Los Altos Hills n/a i I I I I I I I I I I I n/a I I I I I I I I I I ; I II I I I I I I I I Los Gatos ; ; ; x ; x ; ; ; ; ; ; ----------------------------- ------------------------ ------------------------ -------------- ----------- ----------------- ------------- --------------------}---------------------¢---------------------; I I I I I I I I I I I Milpitas ; ; ; x ; ; ; ; ; ; ; ----------------------------- ------------------------ ------------------------ -------------- ----------- ----------------- ------------- --------------------+---------------------+--------------------- I I I I I I I I I I I I I I I I I I I I I I I Monte Sereno I n a I I n a I n a I n a I n a I I n a I n/a I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I Morgan Hill � � � x I� x I� x � x � � x I I I I I I I I I I I I I I I I I ----I I I I I I I I I I I I I I I I I I I I I I I I I I I Mountain View x* x* x x x ----------------I -----------------------I -----------------------I ------I ----I -------I ------I-------------------- --------------------- ----------------------------- I _____________ _ _ ________ _______ __________ _______ I _____________________ !i Palo Alto ; I !I X x* _______x*--___-- - X ' 1 ' r-----------------------------r------------------------ ------------------------r-------------- ----------- ------------r-------------------- ------------------------------------------1 I I I I I I I I I I I I I I I I I I I I I I San Jose x* x x x x x I I I I I I I I I I I L_____________________________L________________________L________________________L______________L___________1__.________._______L_____________L____________________1_____.________._____._-_1_______.________.______I I Santa Clara x* L-----------------------------L------------------------L------------------------L--------------L-----------1-----------------L-------------L--------------------1---------------------1--------------------- Saratoga x x I I I I I I I I I I I I I I * I I I I I I I I I ; ; ; x L-----------------------------L------------------------L------------------------L--------------L___________1_________________L_____________L____________________1_--------------------1___________---------- I I I I I I I I I I I I I Sunnyvale x xI I I I * I I I I I I ; L-----------------------------L------------------------L------------------------L--------------L-----------------------------L-------------L------------------------------------------1_____________________I *Worksites—Refers to jurisdictions that have adopted policies with provisions that are stronger than the State Smoke-free Workplace Law(Labor Code 6404.5). *Campbell—Adopted a policy prohibiting smoking in tobacco-only shops("smoking lounges").Additional State workplace exemptions still exist *Cupertino—Includes stronger restrictions than State Smoke-free Workplace law but still allows smoking in hotel rooms.Smoking not allowed in entryways/operable windows of stores where food/beverages are sold or consumed.Smoking not allowed within 25 ft.of all prohibited areas. *Gilroy—50%of outdoor dining areas much be smoke-free;Parks allows designated smoking areas *Mountain View— Worksite policy includes stronger restrictions than State Smoke-free Workplace law but still allows smoking in hotel rooms;Smoking prohibited in picnic areas of parks,only. *Palo Alto—50%of outdoor dining areas must be smoke-free;Smoking not allowed within 25 feet of entryways,except between the areas of 10pm-6am *San Jose—Includes stronger restrictions than State Smoke-free Workplace law but still allows smoking in hotel rooms,and tobacco retailer shops *Santa Clara-Adopted a policy prohibiting smoking in tobacco-only shops("smoking lounges"),current businesses were grandfathered in.Additional State workplace exemptions still exist *Saratoga-Includes stronger restrictions than State Smoke-free Workplace law but still allows smoking in hotel rooms,designated rooms of health facilities *Sunnyvale—*60%of outdoor dining areas must be smoke-free 98 Created by SCC Public Health Department,last updated 11.18.2014 SUMMARY OF TOBACCO RETAILER LICENSE ORDINANCE- CAMPBEL COMPONENT OPTIONS Retailers Subject to the Law ✓ Apply to all traditional tobacco product retailers(cigarettes, cigars,etc.) ✓ Apply to retailers that sell non-traditional tobacco products(e- cigarettes, smokeless tobacco products—snuff or chewing tobacco,etc.) ✓ Apply to retailers that sell tobacco paraphernalia(pipes,rolling paper,etc.) Special Requirements& ✓ Establish annual licensing fee to cover license program costs, Prohibitions including administration and enforcement ✓ Consider violations of any tobacco law as a violation of licensing law ✓ Require license to be displayed in prominent location ✓ Require ID check for customers who appear under age 27 ✓ Prohibit self-service displays ✓ Require clerks selling tobacco to be 18 years or older ✓ Prohibit minors from entering establishments with tobacco retailer license Consequences ✓ Establish escalating penalties for repeated or future violations(for example,suspend privilege to sell tobacco or tobacco products for 30 days for Ist violation,60 days for 2nd violation,etc.)for retailers with or without a permit 1St Violation—30 day suspension 2nd Violation—60 day suspension 3rd Violation—Permit revoked ✓ Establish time period during which violations are tracked for escalating penalties(for example,violations are tracked for period of 5 years) Violations tracked for period of 60 months ✓ Prohibit tobacco products from being displayed during suspension period or without permit ✓ Prohibit advertisement of tobacco products during suspension period or without permit ✓ Increase suspension periods/penalties for retailers who sell without a license 1St Violation—Ineligible for permit for 30 days 2nd Violation—Ineligible for permit for 1 year 3`d Violation—Ineligible for permit for 5 years ✓ Seize and destroy tobacco products and paraphernalia offered for sale without a license Eligibility ✓ Require retailer to be at a fixed location ✓ Prohibit smoking on tobacco retailer premises Additional Requirements ✓ Prohibit sale of flavored tobacco products 99 ORDINANCE NO, 2165 BEING AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAMPBELL APPROVING A TEXT AMENDMENT (PLN2012-199) TO ENACT CHAPTER 5.58 (TOBACCO RETAILER PERMIT) AND AMEND SECTION 6.10.020 (NUISANCE ABATEMENT AND ADMINISTRATIVE PENALTIES). After notification and public hearing, as specified by law and after presentation by the Community Development Director, proponents and opponents, the hearing was closed. After due consideration of all evidence presented, the City Council of the City of Campbell does ordain as follows: SECTION ONE: It is the intent of the City Council, in enacting this ordinance, to provide for the public health, safety, and general welfare by regulating the operation of lawful businesses to avoid circumstances which facilitate violations of state, federal, and local laws and by discouraging violations of laws forbidding the distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by state or federarlaw are criminally proscribed. SECTION TWO: The City Council finds and determines that the adoption of the proposed Text Amendment is exempt from CEQA under Section 15061(b)(3) whereby CEQA applies only to projects which have the potential to cause a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to further CEQA review. SECTION THREE: Chapter 5.58 of the Campbell Municipal Code is enacted in whole as set forth in Exhibit A attached. SECTION FOUR: Section 6.10.020 of the Campbell Municipal Code is hereby amended as set forth in Exhibit B attached. Additions are indicated by italics and underscoring. Portions of Section 6.10.020 not shown in italics and underscoring type are not changed. SECTION FIVE: This Ordinance shall become effective thirty (30) days following its passage and adoption and shall be published, one time within fifteen (15) days upon passage and adoption in the Campbell Express, a newspaper of general circulation in the City of Campbell, County of Santa Clara. PASSED AND ADOPTED this 4th day of December, 2012, by the following roll call vote: AYES: COUNCILMEMBERS: Baker, Waterman, LOW, Kotowski NOES: COUNCILMEMBERS: Cristina ABSENT: COUNCILMEMBERS: none ABSTAIN: COUNCILMEMBERS: none - APPROVED ` Michael F. Kotowski, Mayor ATTEST: Anne Bybee, City Clerk 100 Exhibit A Chapter 5.58 TOBACCO RETAILER PERMIT Sections: 5.58.010 Purpose. 5.5 8.020 General Regulations. 5.58.030 Application Procedure. 5.58.040 Issuance of Permit. 5.58.050 Permit Renewal and Expiration. 5.58.060 Fee for Permit. 5,58.070 Permit Conveys a Limited, Conditional Privilege. 5.58.080 Compliance Monitoring. 5.58.090 Tobacco Retailing without a Per[pit. 5.58.100 False and Misleading Advertising Prohibited. 5.58.110 Penalties and Enforcement. 5.58.120 Suspension or Revocation of Permit. 5.58.130 Revocation of a Wrongly Issued Permit. 5.58.140 Suspension or Revocation Process. 5.58.150 Hearing. 5.58.160 New Permit after Revocation. 5.58.170 Nondiscrimination. 5.58.180 Severability. 5.58.190 Definitions. 5.58,010 Purpose. This chapter is intended to set forth a local permit process for tobacco retailers to ensure that retailers comply with tobacco control laws and city business standards to protect the public health, safety and welfare. Individuals who wish to act as a tobacco retailer within the city must first obtain and maintain a valid Tobacco Retailer's Permit pursuant to these provisions for each location at which that activity is to occur. It is the responsibility of each proprietor to be informed of all laws applicable to tobacco retailing, including those laws affecting the issuance of a Tobacco Retailer's Permit. 5.58.024 General Regulations. Every person within the city who operates as a tobacco retailer is required to obtain and maintain a valid Tobacco Retailer's Permit. Every person within the city who operates as a tobacco retailer with a valid Tobacco Retailer's Permit shall comply with each of the following conditions: (a) Location. Tobacco retailing activities shall be conducted at a fixed location and within the enclosed area of the tenant space completely accessible to the general public during the hours of business operation: (b) Display of Permit. Each Tobacco Retailer Permit shall be prominently displayed in a publicly visible location at the permitted location: 101 (c) Minimum Age for Persons Selling Tobacco, No Person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing: (d) Minimum Ave for the purchase of Tobacco. No Person engaged in tobacco retailing shall sell or transfer tobacco product or tobacco paraphernalia to a person whose legal age is under minimum age established by state law for the purchase or possession of tobacco products: (e) Positive Identification Required. Persons engaged in tobacco retailing may not sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of twenty-seven (27) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess a tobacco product or tobacco paraphernalia: (f) Onsite Smog ing Prohibited. Persons engaged in tobacco retailing shall not permit smoking inside or in any adjacent outdoor area owned, leased, or operated in the permitted premises. In addition, no person engaged in tobacco retailing shall permit smoking within twenty (20) feet of any doorway, window, opening, or other vent into the permitted premises. Further, no person engaged in tobacco retailing shall permit the presence or placement of usable ash receptacles within the permitted premises, such as ash trays or ash cans: (g) Self-Service Disl2lqys Prohibited. Tobacco retailing by means of a self-service display is prohibited: (h) Permit Nontransferable. A Tobacco Retailer's Permit may not be transferred from one person to another or from one location to another. A new Tobacco Retailer's Permit is required whenever the proprietor(s) of a tobacco retailing location change. 5.58.030 Ateplication Procedure. All applications shall be submitted on a form supplied by the City of Campbell Finance Department and shall contain the following information: (a) Application materials: (1) The name, address, and telephone number of each proprietor of the business seeking a permit: (2) The business name, address, and telephone number of the single fixed location for which a permit is sought: (3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the "authorized address") required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above: 2 102 (4) Proof that the location for which a Tobacco Retailer's Permit is sought has been issued a valid state tobacco retailer's permit by the California Board of Equalization: (5) Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five years: (6) Such other information as the city deems necessary for the administration or enforcement of this chapter as specified on the application form required by this section: (7) The application shall be signed by each proprietor or an authorized agent thereof: (b) A permitted tobacco retailer shall inform the city in writing of any change in the information submitted on an application for a Tobacco Retailer's Permit within ten (10) business days of a change: (c) All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code section 6250 et seq.) or any other applicable law, subject to the laws' exemptions. 5.58.040 Issuance of Permit. Upon the receipt of a complete application for a Tobacco Retailer's Permit and the permit fee required by this chapter, the city shall issue a permit, except as otherwise provided in this chapter. The term of a Tobacco Retailer permit is one year and may be renewed annually. A permit will not be issued if substantial evidence demonstrates that one or more of the following exists: (a) The information presented in the application is inaccurate or false. intentionally supplying inaccurate or false information shall be a violation of this chapter: (b) The application seeks authorization for tobacco retailing at a location for which a Tobacco Retailer Permit has been denied pursuant to this chapter. However, this subparagraph shall not constitute a basis for denial of a permit if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction, and is not associated with the previous applicant in any way: (c) The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a pennit to be issued: (d) The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter(e.g., mobile vending), that is unlawful pursuant to the Campbell Municipal Code, or that is unlawful pursuant to any other law: 3 103 5.58.050 Permit Renewal and_Exniration. (a) Renewal of Permit. Each tobacco retailer shall apply for a renewal of the Tobacco Retailer's Permit and submit the permit fee no later than thirty (30) days prior to expiration of the term.. A Tobacco Retailer's Permit is invalid if the appropriate fee has not been paid in full or if the term of the permit has expired. (b) Expiration of Permit. A Tobacco Retailer's Permit not timely renewed shall expire at the end of its term. To renew a permit not timely renewed pursuant to subparagraph (a), the proprietor must: (1) Submit the permit fee and application renewal form; and, (2) Submit a signed affidavit affirming that the proprietor: (i) has not sold and will not sell any tobacco product or tobacco paraphernalia after the permit expiration date and before the permit is renewed; or (ii) has waited the appropriate ineligibility period established for tobacco retailing without a permit, as set forth in Section 5.58.160 of this chapter, before seeking renewal of the permit. 5.58.060 Fee for Permit. The fee to issue or to renew a Tobacco Retailer's Permit shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover any amount up to the cost of administration of this chapter, including, for example, issuing a permit and administering the permit program, but shall not exceed the cost of the regulatory program authorized by this chapter. Fees are nonrefundable except as may be required by law. 5.58.070 Permit Conveys a Limited, Conditional Privilege. (a) Nothing in this chapter shall be construed to grant any person obtaining and maintaining a Tobacco Retailer's Permit any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. (b) Nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this code limitation, the Campbell Municipal Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a Tobacco Retailer Permit does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5. 5.58.080 Com fiance Monitorin . (a) Compliance with this chapter shall be monitored by the city. Any peace officer may enforce the penal provisions of this chapter. The city may designate any number of additional Persons to monitor compliance with this chapter. 4 104 (b) Inspections may be conducted so as to allow the city to determine, at a minimum, if a tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco products and paraphernalia. (c) The city shall not enforce any law establishing a minimum age for tobacco purchasers or possession against a purchaser of tobacco that otherwise might be in violation of such law because of the person's age if the potential violation occurs when: (1) The purchaser (hereinafter referred to as "youth decoy") is participating in a compliance check supervised by a peace officer or a code enforcement official of the city; (2) The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this chapter; or (3) The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Santa Clara County Department of Health or the California Department of Health Services. 5.58.090 Tobacco Retailing without a Permit. (a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the city finds based on a preponderance of evidence, after notice and an opportunity to be heard consistent with Campbell Municipal Code Section 5.58.150 et. seq. that any person has engaged in tobacco retailing at a location without a valid Tobacco Retailer's Permit, either directly or through the person's agents or employees, the person shall be ineligible to apply for, or to be issued, a Tobacco Retailing Permit as follows: (1) After a first violation of this section at a location within any sixty (60) month period, no Tobacco Retailer Permit shall be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until thirty (30) days have passed from the date of the violation: (2) After a second violation of this section at a location within any sixty (60) month period, no Tobacco Retailer Permit shall be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until one calendar year has passed from the date of the second violation: (3) After of a third or subsequent violation of this section at a location within any sixty (60) period, no new permit may issue for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction), until five calendar years have passed from the date of the most recent violation: (b) Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and permit ineligibility periods shall continue to apply to a location unless: 5 105 (1) The location has been fully transferred to a new proprietor (s); and (2) The new proprietor(s) provide the city with clear and convincing evidence that the new proprietors) have acquired or is acquiring the location in an arm's length transaction, and are not associated with the prior proprietor(s) in any way. (c) Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the city or any peace officer and shall be forfeited after the person, the person's agents or employees, or ally other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity, consistent with Section 5.58.140, to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this chapter. The decision by the city may be appealed pursuant to Section 5.58.150. Forfeited tobacco products and tobacco paraphernalia may be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law has expired without the filing of 4 lawsuit or, if such a suit is filed, after judgment in that suit becomes final. (d) For the purposes of the civil remedies provided in this chapter: (1) Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter constitutes a separate violation; or (2) Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter constitutes a separate violation. 5.58.100 False and Misleading Advertising Prohibited. A tobacco retailer without a valid Tobacco Retailer Permit or whose permit has been revoked shall be unable to: (1) Keep tobacco products and tobacco paraphernalia within public view. (2) Display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location. 5.5$.110 Penalties and Enforcement. In the course of Tobacco retailing or in the operation of the business or maintenance of the location for which a permit has been issued, it shall be a violation of this chapter for a permittee, or any of the permittee's agents or employees, to violate any local, state, or federal law applicable to Tobacco Products, Tobacco Paraphernalia, or Tobacco Retailing. (a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity- 6 106 (b) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen (18) years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented: (c) Violations of this chapter are subject to a civil action brought by the city attorney, punishable by a civil fine not less than two hundred and fifty dollars ($250) and not exceeding one thousand dollars ($1,000) per violation: (d) Violations of this chapter may, in the discretion of the city attorney, be prosecuted as infractions or misdemeanors pursuant to Section 5.60.010 of this Title: (e) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter: (f) Violations of this chapter are hereby declared to be public nuisances pursuant to Campbell Municipal Code Section 6.10.020(a)(6)(Q): (g) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. 5.58.1.20 Suspension or Revocation of Permit. A permit issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor may be suspended or revoked pursuant to section 5.58.140 of this chapter. Nothing in this chapter shall be construed to vest in any person obtaining and maintaining a Tobacco Retailer's Permit any status or right to act as a tobacco retailer in contravention of any provision of law. In addition to any other penalty authorized by law, a Tobacco Retailer's Permit may be suspended and/or revoked as set forth below if any court of competent jurisdiction detennines, or the city finds based on a preponderance of the evidence, after the permittee is afforded notice and an opportunity to be heard pursuant to Section 5.58.140, that the permittee, or any of the permittee's agents or employees, has violated subsection 5.58.020(d): (a) After a first violation of subsection 5.58.020(d) at a location within a 60 month period suspension of the Tobacco Retailer Permit shall be for a period no less than thirty (30) calendar days: (b) After a second violation of subsection 5.58.020(4) at a location within a 60 month period, suspension of the Tobacco Retailer Permit shall be for a period no less than sixty (60) calendar days. (c) After a third violation of subsection 5.58.020(d) at a location within a 60 month period the 7 107 Tobacco Retailer Permit shall be revoked. 5.58.130 Revocation of a 'Wrongly Issued Permit. A Tobacco Retailer's Permit shall be revoked if the city finds, after the permittee is afforded notice and an opportunity to be heard consistent with the procedure set forth in Campbell Municipal Code Section 5.58.150 et. seq., that one or more of the bases for denial of a permit under section 5.58.040 existed at the time application was made or at any time before the permit issued. The decision by the city to revoke shall be the final decision. Such a revocation shall be without prejudice to the filing of a new permit application. 5.58.140 Suspension or Revocation of a Tobacco Retailer Permit or Forfeiture of Seized Tobaceo and Tobacco Paraphernalia Process. The city may suspend or revoke a Tobacco Retailer's Permit pursuant to Section 5.58.120 or 5.58.130 or deem seized tobacco and/or tobacco paraphernalia as forfeit pursuant to Section 5.58.090(c). Before the city suspends or revokes a permit or deems seized tobacco and/or tobacco paraphernalia as forfeit, the city shall provide written notice of the suspension or revocation of a permit or the pending forfeiture by personal delivery or First Class certified United States mail. The notice shall provide for the suspension or revocation of the permit or forfeiture of the seized items fifteen calendar days after mailing or personal delivery of the notice unless the permittee requests a hearing. The notice shall instruct the pennittee on how to file a request for a hearing consistent with Section 5.58. 150 et. seq. The notice shall be addressed to the Permittee at the address provided in the Permittee's application, or other more reliable address if known to the city. if after the passage of fifteen calendar days from the mailing or personal delivery of the notice, the permittee has not requested a hearing, the suspension, revocation, or forfeiture shall become final. 5.58.150 Hearin (a) The Permittee can request a hearing before the city council on a decision of the city to suspend and/or revoke a Tobacco Retailer Permit or deem seized tobacco and tobacco paraphernalia. The request must be filed with the city clerk within fifteen calendar days following the mailing or personal delivery of written notice of the suspension and/or revocation. (b) The city clerk shall schedule a public hearing for the appeal to be considered by the city council. Notice of such hearing shall be mailed to the Permittee at least ten days prior to the hearing. Notice of such hearing shall also be mailed to the property owner of the property for which the permit was issued at the address listed for the property owner on the last equalized assessor's role. (c) The hearing shall be placed on the city council agenda within sixty calendar days after filing of the request, provided that the city council may continue from time to time any hearing held by it. (d) The city council shall conduct a de novo hearing and may approve or deny the appeal based on the grounds set forth in Sections 5.58.090(c) through 5.58.140 , as applicable. The council shall afford the Permittee an opportunity at the hearing to present any relevant evidence, and shall thereafter render its decision in writing, setting forth it findings. 8 108 5.58.160 New Permit after Revocation. (a) After first revocation at a location within any sixty-month (60) period, no new permit may issue for the location until one calendar year has passed from the date of revocation. (b) After second or more revocations at a location within any sixty-month (60) period, no new permit may issue for the location until five calendar years days have passed from the date of the most recent revocation. 5.5.1'70 Nondiscrimination. No person shall discharge, refuse to hire, or in any tanner discriminate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter. 5.58-180 Severability. if any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affget the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this ordinance, or its application to any other person or circumstance. The campbell city council hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. 5.58.190 Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: "Arm's Length Transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an Arm's Length Transaction. "City" means the City of Campbell and each of its officers and employees designated to enforce or administer the provisions of this chapter. "Permittee" means a Tobacco Retailer or their authorized representative and/or employee with a valid Tobacco Retailer's Permit. "Person" means any natural person, partnership, cooperative association, corporation, personal representative,receiver, trustee, assignee, or any other legal entity. "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business. 9 109 "Self-Service Display" means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display. "Smoking" means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind). "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of Smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products. "Tobacco Product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the united states food and drug administration for use in treating nicotine or tobacco dependence. "Tobacco Retailer" means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia. "Tobacco Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. 10 110 Exhibit B Chapter 6.1.0 NUISANCE ABATEMENT AND ADMINISTRATIVE PENALTIES (Amended) Section.: 6.10.020 -Nuisance conditions. (a) It is declared a public nuisance for any premises in the city to be maintained in such manner so as to be injurious to the health, or to be indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or for anyone to cause, or engage in any conduct that is injurious to the health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. Such public nuisances shall include, but are not limited to: (1) Overgrown, dead, decayed or diseased trees, weeds and other vegetation that: (A) Is likely to harbor rats, vermin, and other similar nuisances, (B) Constitutes a fire hazard or a condition dangerous to the public health, safety and general welfare, or (C) Constitutes an unsightly appearance or otherwise detracts from the aesthetic or property values of the neighboring properties; (2) The presence or accumulation on a premises of any of the following for a period exceeding two weeks, except when the premises have been approved for such storage use under the laws and regulations of the city: (A) Debris, rubbish, scrap materials and trash, (B) Broken or discarded household furnishings, appliances, boxes and cartons and similar materials, (C) An area exceeding one hundred square feet containing lumber and building materials not being used for construction on the premises, (D) Vehicle parts and tires, or (E) Construction equipment and machinery except when in use for construction on the premises; (3) Objects including, but not limited to,unprotected and/or hazardous pools, ponds, ice boxes, refrigerators, or excavations that tend to attract children or other curious individuals,and which present a threat to the health, safety or welfare of such individuals; 111 (4) Structures or buildings,both permanent and temporary, or other lot improvements, which are subject to any of the following conditions: (A) Are structurally unsafe, either entirely or in part, (B) Constitute a fire hazard, (C) A building or structure which is not completed within a reasonable time or for which the permit for such construction has expired, (D) Unoccupied buildings which have been left unlocked or otherwise open or unsecured from intrusion by persons, animals or the elements, (E) A building that has been so damaged by fire, wind, earthquake or flood, or has become so dilapidated that it is structurally unsafe or otherwise unfit for human habitation, (F) Have faulty weather protection including, but not limited to, crumbling, cracked, missing, broken, or loose exterior plaster or other siding, roofs, foundations or floors (including lack of paint or other protective finish), missing windows or doors, (G) Fences and walls which are in a hazardous condition, or (H) Broken windows constituting hazardous conditions and inviting trespassers and malicious mischief; (5) Maintenance of premises so out of harmony or conformity with the maintenance standards of adjacent properties as to cause substantial diminution of the enjoyment, use, or property values of such adjacent properties, as determined by an enforcement officer; (6)Nuisance activity, or real property that has been the situs for nuisance activity including, but not limited to: (A) Disturbing the peace, (B) Illegal drug activity, (C) Public drunkenness, (D) Drinking alcoholic beverages in public, (E)Harassment of passersby, (F) Illegal gambling, (G) Prostitution, 112 (H)The sale of stolen goods, (1) Acts of violence, (J) Public urination or defecation, (K) Acts of vandalism, (L) Acts of lewd conduct, (M) Unreasonably loud noise, (N) Loitering, (0) Excessive littering, (P) A violation of the provisions of Campbell Municipal Code Sections 5.12.030, 5.12.150, 5.12.180, 5.16.010, 6.04.020, 6.04.030, 6.04.050, 6.04.080,or 20.16.010, (Q) A violation of any of the provisions of Campbell Municipal Code Chapters 5.08.010, 5.24, 5.28, 5.29, 5.30, 5.36, 5.48, 5.58, 6.11, 11.04, 11..08, 11.12, 11.16, 11.32 or 13.04 (R) A violation of any of the provisions of Campbell Municipal Code Titles 7, 14, 17 or 18, (S) A violation of any of the provisions of Campbell Municipal Code Title 21, or any use of real property for a purpose or in a manner other than approved under the provisions of Title 21 (T)The use or maintenance of property in a manner contrary to a court order or judgment in an action in which the City is a party, regarding the use or maintenance of the property; (U) Any condition that would constitute a nuisance pursuant to Chapter 10.44 of the Campbell Municipal Code. (7) Placing any encroachment upon or obstruction in or to any sidewalks, street, alley, lane, court, park, or other public place without the approval of the city; (8) Obstructing the free passage or use, in the customary manger, of any sidewalk, public park, square, street, or highway; or (9) The maintenance or use of property in the city in a manner that violates, or real property that has been the situs of a violation of, any provision of any state or federal law or regulation. 113 (b)Nothing contained in this chapter shall prohibit persons from participating in any activity which the city is precluded from proscribing under the United States Constitution or the California Constitution. 114 SUMMARY OF TOBACCO RETAILER LICENSE ORDINANCE- SANTA CLARA COUNTY COMPONENT OPTIONS Retailers Subject to the Law ✓ Apply to all traditional tobacco product retailers(cigarettes, cigars,etc.) ✓ Apply to retailers that sell non-traditional tobacco products(e- cigarettes, smokeless tobacco products—snuff or chewing tobacco,etc.) Special Requirements& ✓ Establish annual licensing fee to cover license program costs, Prohibitions including administration and enforcement ✓ Require license to be displayed in prominent location ✓ Require ID check for customers who appear under age 30 ✓ Prohibit self-service displays ✓ Require clerks selling tobacco to be 18 years or older Consequences ✓ Establish escalating penalties for repeated or future violations(for example,suspend privilege to sell tobacco or tobacco products for 30 days for 1st violation,60 days for 2nd violation,etc.)for retailers with or without a permit 152 Violation within 24 Months-30 calendar day suspension 2nd Violation within 24 Months-90 calendar day suspension 3`d Violation or More within 24 Months- 1 year suspension ✓ Establish time period during which violations are tracked for escalating penalties(for example,violations are tracked for period of 5 years) Fines tracked for period of 1 year Suspensions tracked for period of 24 months ✓ Prohibit tobacco products from being displayed during suspension period or without permit ✓ Prohibit advertisement of tobacco products during suspension period or without permit ✓ Assess fine for violation(s) 15t Violation within 1 Year-$100 Fine 2nd Violation within 1 Year-$200 Fine 3`1 Violation or More within 1 Year-$500 Fine Eligibility ✓ Require retailer to be at a fixed location ✓ Prohibit permits from being issued for tobacco retailing at temporary or reoccurring temporary events(i.e. farmers'market) ✓ Prohibit tobacco retail stores from containing a pharmacy ✓ Prohibit tobacco retailers from being located near schools or youth-populated areas Must be 1000 feet from school ✓ Require new retailer locations to be a specified minimum distance from existing tobacco retailers Must be 500 feet from existing retailer Additional Requirements ✓ Prohibit retailers from covering more than 15%of windows with signs ✓ Prohibit permits from be transferred ✓ Prohibit sale of flavored tobacco products 115 ORDINANCE NO. NS-300.873 AN ORDINANCE OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA AMENDING CHAPTER XXIII OF DIVISION A18 OF THE SANTA CLARA COUNTY ORDINANCE CODE RELATING TO PERMITS FOR RETAILERS OF TOBACCO PRODUCTS AND/OR ELECTRONIC SMOKING DEVICES Summary D Q This Ordinance amends Chapter XXIII of Division A18 of the p County of Santa Clara Ordinance Code to require that -0 retailers of electronic smoking devices obtain permits and that Q retailers of electronic smoking devices and/or tobacco . . products meet certain requirements to operate in the O unincorporated areas of the County. THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA N ORDAINS AS FOLLOWS: O SECTION 1. Chapter XX1II of Division A18 of the Ordinance Code of the County of Santa Clara relating to tobacco retailer permits is hereby amended to be titled and to read as follows: CHAPTER XXIII. PERMITS FOR RETAILERS OF TOBACCO PRODUCTS AND/OR ELECTRONIC SMOKING DEVICES See. A18-367. Intent. This chapter is adopted (1) to ensure compliance with the business standards and practices of the County, (2) to encourage responsible retailing of tobacco products and electronic smoking devices, (3) to discourage violations of laws related to tobacco products and electronic smoking devices, especially those that prohibit or discourage the sale or distribution of tobacco products and electronic smoking devices to minors, and (4) to protect the public health and welfare. This chapter does not expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or alter the penalties provided by such laws. Ordinance NS-300.873 re Page 1 of 13 rev 4/24/14 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 116 See. A18-368. Definitions. For the purposes of this chapter, the following definitions shall apply: (a) Arm's length transaction means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two or more informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction. (b) Department means the County's Department of Environmental Health and any agency or person designated by the director of the Department of Environmental Health to enforce or administer the provisions of this chapter. (c) Electronic smoking device means (1) an electronic and/or battery-operated device that can deliver an inhalable dose of nicotine to the user or (2) any product intended or sold for use with such a device. "Electronic smoking device" includes any product meeting this definition, regardless of whether it is manufactured, distributed, marketed or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, electronic vape, vaporizer or any other product name or descriptor. (d) Ownership means possession of a ten-percent or greater interest in the stock, assets, or income of a business, other than a security interest for the repayment of debt. (c) School means a public or private elementary, middle,junior high or high school. (f) Tobacco product means any product containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body. Tobacco product does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. (g) Retailer means any person who sells, exchanges, or offers to sell or exchange, for any form of consideration, tobacco products and/or electronic smoking devices. "Retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or Ordinance Ns-300.$73 re Page 2 of 13 rev 4124114 Permits for Retailers of Tobacco Products and/or Electronic smoking Devices 117 electronic smoking devices sold, exchanged, or offered for sale or exchange. See. A18W369. Requirements and prohibitions. (a) Permit required. It shall be unlawful for any person to act as a retailer of tobacco products and/or electronic smoking devices in an unincorporated area of the County without first obtaining and maintaining a valid retailer permit pursuant to this chapter for each location at which that activity is to occur. (b) Lawful business operation. It shall be a violation of this chapter for any retailer to violate any local, state, or federal law applicable to tobacco products, electronic smoking devices, or the retailing of such products. (c) Display of permit. Each retailer permit shall be prominently displayed in a publicly visible place at the permitted location. (d) Notice of minimum age for purchase of electronic smoking devices. Retailers shall post conspicuously, at each point of purchase, a notice stating that selling electronic smoking devices to anyone under 18 years of age is illegal and subject to penalties. Such notice shall be subject to the approval of the Public Health Department. (e) Positive identification required. No retailer shall sell or transfer a tobacco product or electronic smoking device to another person who appears to be under 30 years of age without first examining the customer's identification to confirm that the customer is at least the minimum age under state law to purchase and possess the tobacco product. (f) Minimum age for persons selling tobacco or electronic smoking devices. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products or electronic smoking devices shall engage in retailing. (g) False and misleading advertising prohibited. A retailer either without a valid retailer permit or with a suspended retailer permit: (1) Shall keep all tobacco products and electronic smoking devices out of public view. (2) Shall not display any advertisement relating to tobacco products or electronic smoking devices that promotes the sale or distribution of such products from the retailer's location or that could lead a reasonable consumer to believe that tobacco products or electronic smoking devices can be obtained at that location. (h) Limitation on storefront advertising. No more than 15 percent of the square footage of the windows and clear doors of an establishment used for retailing shall Ordinance NS-300,873 re Page 3 of 13 rev 4124114 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 118 bear advertising or signs of any sort, and all advertising and signage shall be placed and maintained in a manner that ensures that law enforcement personnel have a clear and unobstructed view of the interior of the premises, including the area in which the cash registers are maintained, from the exterior public sidewalk or entrance to the premises. However, this latter requirement shall not apply to an establishment where there are no windows, or where existing windows are located at a height that precludes a view of the interior of the premises by a person standing outside the premises. (i) Flavored tobacco products. No retailer shall sell a tobacco product containing, as a constituent or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or smoke produced by the tobacco product. (j) Vending machines prohibited. No tobacco product or electronic smoking device shall be sold, offered for sale, or distributed to the public from a vending machine or appliance, or any other coin or token operated mechanical device designed or used for vending purposes, including but not limited to, machines or devices that use remote control locking mechanisms. (k) Self-service display prohibited. (1) Except as permitted in paragraph (2), no electronic smoking device shall be sold, offered for sale, or openly displayed for sale in a manner that is accessible to the general public without the assistance of the retailer or an employee of the retailer. (2) Paragraph (1) shall not apply to the display of electronic smoking devices by a retailer that (i) primarily sells tobacco products and/or electronic smoking devices, (ii) generates more than 60 percent of its gross revenues annually from the sale of tobacco products, tobacco paraphernalia, or electronic smoking devices, (iii) does not permit any person under 18 years of age to be present or enter the premises at any time, (iv) does not sell alcoholic beverages or food for consumption on the premises, and (v) posts a sign outside the retail location that clearly, sufficiently and conspicuously informs the public that persons under 18 years of age are prohibited from entering the premises. Sec. A18-370. Eligibility requirements for a permit. (a) No retailer permit may be issued to authorize retailing at other than a fixed location. For example, retailing by persons on foot or from vehicles is prohibited. Ordinance NS-300.873 re Page 4 of 13 rev 4/24/14 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 119 (b) No retailer permit may be issued to authorize retailing at a temporary or recurring temporary event. For example, retailing at flea markets and farmers' markets is prohibited. (c) No retailer permit may be issued to authorize retailing at any location where the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription drugs are offered for sale, provided, however, that the prohibition contained in this subsection (c) shall not apply to (1) existing retailers of tobacco products operating lawfully on the date immediately prior to this chapter becoming effective and (2) existing retailers of electronic smoking devices operating lawfully on the date immediately prior to amendment of this chapter to regulate the retailing of electronic smoking devices. (d) No retailer permit may be issued to authorize retailing at any location within 1,000 feet of a school, as measured by the shortest distance traveled from any entrance of the proposed location for retailing to the parcel boundary of the school, provided, however, that the prohibition contained in this subsection (d) shall not apply to the following: (1) Any retailer of tobacco products operating lawfully on the date immediately prior to this chapter becoming effective; (2) Any retailer of electronic smoking devices operating lawfully on the date immediately prior to amendment of this chapter to regulate the retailing of electronic smoking devices; and (3) Any lawfully operating retailer of tobacco products and/or electronic smoking devices that would otherwise become ineligible to receive or renew a retailer permit due to the creation or relocation of a school. (e) No retailer permit may be issued to authorize retailing at a location which is within 500 feet of a location occupied by another retailer, as measured by the shortest distance traveled from any entrance of the proposed location to any entrance of the existing location, provided, however, that the prohibition contained in this subsection (e) shall not apply to (1) existing retailers of tobacco products operating lawfully on the date immediately prior to this chapter becoming effective and (2) existing retailers of electronic smoking devices operating lawfully on the date immediately prior to amendment of this chapter to regulate the retailing of electronic smoking devices. (f) Any exemption granted to a retailer pursuant to this section shall cease to apply upon the earlier of the following to occur: (1) The retailer fails to timely renew the retailer permit pursuant to Section A18-373(b) of this chapter. (2) A new person obtains ownership in the business. Ordinance NS-300.873 re Page 5 of 13 rev 4/24114 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 120 Sec. A18-371. Application procedure. (a) It is the responsibility of each retailer to be informed of all laws applicable to retailing, including those laws affecting the issuance of a retailer permit. No retailer may rely on the issuance of a retailer permit as a determination by the County that the retailer has complied with all laws applicable to retailing. A retailer permit issued contrary to this chapter, contrary to any other law, or on the basis of false or misleading information supplied by a retailer shall be revoked pursuant to Section A18-372 of this chapter. (b) All retailer permit applications shall be submitted on a form supplied by the Department. (c) A permitted retailer shall inform the Department in writing of any change in the information submitted on an application for a retailer permit within 14 calendar days of a change. (d) All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (Government Code Section 6250 et seq.) or any other applicable law, subject to the laws' exemptions. Sec. A18-372. Issuance of permit. (a) Upon the receipt of a complete application for a retailer permit, the application fee, and the annual permit fee, the department shall issue a retailer permit unless substantial evidence demonstrates that one or more of the following bases for denial exists: (1) The information presented in the application is inaccurate or false. (2) The application seeks authorization for retailing at a location for which this chapter prohibits issuance of a retailer permit. (3) The application seeks authorization for retailing by a person to whom this chapter prohibits issuance of a retailer permit. (4) The application seeks authorization for retailing that is prohibited pursuant to this chapter (e.g., mobile vending) or that is unlawful pursuant to any other law. (b) A retailer permit shall be revoked if the Department finds that one or more of the bases for denial of a retailer permit under this section existed at the time application was made or at any time before the retailer permit issued. Such a revocation shall be without prejudice to the filing of a new permit application. Ordinance NS-300.873 re Page 6 of 13 rev 4/24/14 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 121 (c) A decision to deny issuance of a retailer permit or to revoke a retailer permit that has been wrongly issued may be appealed pursuant to Section Al 8-381 of this chapter. Sec. A18-373. Permit term, renewal, and expiration. (a) Term of permit. The term of a retailer permit is one year. A retailer permit is invalid upon expiration. (b) Renewal of permit. The Department shall renew a valid retailer permit upon timely payment of the annual permit fee. The Department may, in its discretion, agree to renew any expired retailer permit within the three-month period following expiration if the retailer pays the annual permit fee and applicable late charges. For every calendar month, or fraction thereof, that a retailer fails to renew an expired retailer permit, a late charge equal to 20 percent of the annual permit fee shall be assessed. A retailer permit renewed within three calendar months of expiration shall be treated as if timely renewed. (c) Issuance of permit after revocation or expiration of permit. To apply for a new retailer permit more than three calendar months after expiration of a retailer permit or following revocation of a retailer permit that was wrongly issued, a retailer must submit a complete application for a retailer permit, along with the application fee and annual permit fee. The Department shall issue a retailer permit pursuant to the requirements of Section A18-372 of this chapter. Sec. A18-374. Permits nontransferable. (a) A retailer permit may not be transferred from one person to another or from one location to another. Whenever a new person obtains ownership in a business for which a retailer permit has been issued, a new retailer permit shall be required, but any exemption granted pursuant to Section A18.370 of this chapter shall cease to apply. (b) Notwithstanding any other provision of this chapter, prior violations of this chapter at a location shall continue to be counted against a location and permit ineligibility and suspension periods shall continue to apply to a location unless: (1) One hundred percent of the interest in the stock, assets, or income of the business, other than a security interest for the repayment of debt, has been transferred to one or more new owners; and (2) The County is provided with clear and convincing evidence, including an affidavit, that the business has been acquired in an arm's length transaction. Ordinance NS-300.873 re Page 7 of 13 rev 4/24/14 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 122 Sec. A18-375. Permit conveys a limited, conditional privilege. Nothing in this chapter shall be construed to grant any person obtaining and maintaining a retailer permit any status or right other than the limited, conditional privilege to act as a retailer at the location in the County identified on the face of the permit. Sec. A18-376. Fees. The Department shall not issue or renew a retailer permit prior to full payment of any applicable fees. The Board of Supervisors shall, from time to time, establish by resolution the fees to issue or to renew a retailer permit. The fees shall be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a permit, administering the permit program, retailer education, retailer inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this chapter. All fees and interest earned from such fees shall be used exclusively to fund administration and enforcement of this chapter. Sec. A18-377. Compliance monitoring. (a) Compliance with this chapter shall be monitored by the Department. In addition, any peace officer may enforce the penal provisions of this chapter. The County Executive may designate any number of additional persons to monitor and facilitate compliance with this chapter. (b) The Department or other person designated to enforce the provisions of this chapter shall check each retailer at least once per 12-month period to determine if the retailer is complying with all laws applicable to retailing, other than those laws regulating youth access to tobacco products or electronic smoking devices. Nothing in this paragraph shall create a right of action in any retailer or other person against the County or its agents. Sec. A18-378. Prevention of sales to youth. (a) The Public Health Department or other persons designated to enforce the provisions of this chapter shall, in conjunction with the Sheriff s Office, check each retailer at least twice per 12-month period to determine whether the retailer is conducting business in a manner that complies with laws regulating youth access to tobacco products or electronic smoking devices. Nothing in this paragraph shall Ordinance NS-300.873 re Page 8 of 13 rev 4124114 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 123 create a right of action in any retailer or other person against the County or its agents. (b) The County shall not enforce any law establishing a minimum age for tobacco product or electronic smoking device purchases or possession against a person who otherwise might be in violation of such law because of the person's age ("Youth Decoy") if the potential violation occurs when: (1) The Youth Decoy is participating in a compliance check supervised by a peace officer or a code enforcement official of the County; (2) The Youth Decoy is acting as an agent of a person designated by the County to monitor compliance with this chapter; or (3) The Youth Decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the County or the California Department of Public Health. Sec. A18-379. Penalties for a violation by a retailer with a permit. (a) In addition to any other penalty authorized by law, an administrative fine shall be imposed and a retailer permit shall be suspended if any court of competent jurisdiction determines, or the Department finds based on a preponderance of the evidence, after the retailer is afforded notice and an opportunity to be heard, that the retailer, or any of the retailer's agents or employees, has violated any of the requirements, conditions, or prohibitions of this chapter, has pled guilty, "no contest" or its equivalent to such a violation, or has admitted to a such a violation. (b) Amount of fine. Each such violation shall be subject to an administrative fine as follows: (1) A fine not to exceed $100.00 for a first violation within one year; (2) A fine not to exceed $200.00 for a second violation within one year; and (3) A fine not to exceed $500.00 for each additional violation within one year. (c) Time period for permit suspension. (1) For a first violation of this chapter at a location within any 24-month period, the retailer permit shall be suspended for up to 30 calendar days. (2) For a second violation of this chapter at a location within any 24-month period, the retailer permit shall be suspended for up to 90 calendar days. (3) For each additional violation of this chapter at a location within any 24- month period, the retailer permit shall be suspended for up to one year. (d) Waiver of penalties for first violation. The Department may waive any penalties for a retailer's first violation of any requirement, condition or prohibition of this chapter, other than a violation of a law regulating youth access to tobacco products or electronic smoking devices, if the retailer admits the violation in writing and Ordinance NS-300.873 re Page 9 of 13 rev 4/24/14 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 124 agrees to forego a hearing on the allegations. Regardless of the Department's waiver of penalties for a first violation, the violation will be considered in determining the penalties for any future violation. (e) Corrections period. The Department shall have discretion to allow a retailer a period of time to correct any violation of any requirement, condition or prohibition of this chapter, other than a violation of a law regulating youth access to tobacco products or electronic smoking devices. If a retailer's violation is corrected within the time allowed for correction, no penalty shall be imposed under this section. (f) Appeals. Any penalties imposed under this section may be appealed pursuant to Section Alb-381 of this chapter. Sec. A18-380. Penalties for retailing without a permit. (a) In addition to any other penalty authorized by law, an administrative fine and an ineligibility period for application or issuance of a retailer permit shall be imposed if a court of competent jurisdiction determines, or the Department finds based on a preponderance of evidence, after notice and an opportunity to be heard, that any person has engaged in retailing at a location without a valid retailer permit, either directly or through the person's agents or employees, has pled guilty, "no contest" or its equivalent to such a violation, or has admitted to such a violation. (b) Amount of fine. Each such violation shall be subject to an administrative fine as follows: (1) A fine not to exceed $100.00 for a first violation within one year; (2) A fine not to exceed $200.00 for a second violation within one year; and (3) A fine not to exceed $500.00 for each additional violation within one year. (c) Time period for permit ineligibility. (1) For a first violation of this section at a location within any 24-month period, no new retailer permit may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction) until 30 calendar days have passed from the date of the violation. (2) For a second violation of this section at a location within any 24-month period, no new retailer permit may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm's length transaction) until 90 calendar days have passed from the date of the violation. (3) For each additional violation of this section at a location within any 24- month period, no new retailer permit may be issued for the person or the location (unless ownership of the business at the location has been Ordinance NS-300.873 re Page 10 of 13 rev 4/24/14 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 125 transferred in an arm's length transaction) until one year has passed from the date of the violation. (d) Waiver of penalties for first violation. The Department may waive any penalties for a retailer's first violation of this section, unless the violation also involves a violation of a law regulating youth access to tobacco products or electronic smoking devices, if the retailer admits the violation in writing and agrees to forego a hearing on the allegations. Regardless of the Department's waiver of penalties for a first violation, the violation will be considered in determining the penalties for any future violation. (e) Appeals. Any penalties imposed under this section may be appealed pursuant to Section A18-381 of this chapter. See. A18-381. Appeals. (a) A decision to deny issuance of a retailer permit, to revoke a retailer permit that has been wrongly issued, or to impose penalties for a violation of this chapter can be appealed to a hearing officer, subject to the following requirements and procedures. The hearing officer shall be the director of the Department, his or her designee, or another individual selected by the County. (b) All appeals must be in writing, state the grounds asserted for relief and the relief sought, and be filed with the director of the Department or his or her designee within ten calendar days of receipt of notice of the appealed action. if such an appeal is made, it shall stay enforcement of the appealed action. (c) No later than 15 calendar days after receipt of the appeal, the hearing officer shall set an appeal hearing at the earliest practicable time and shall give notice of the hearing to the parties at least ten calendar days before the date of the hearing. (d) Neither the provisions of the Administration Procedure Act (Government Code Section 11500 et seq.) nor the formal rules of evidence in civil or criminal judicial proceedings shall apply to such hearing. At the hearing, the hearing officer may admit any evidence, including witnesses, relevant to the determination of the matter, except as otherwise provided in Section Alb-382(c) of this chapter. A record of the hearing shall be made by any means, including electronic recording, so long as a reasonably accurate and complete written transcription of the proceedings can be made. (e) The hearing officer may continue the hearing from time to time, in his or her sole discretion, to allow for orderly completion of the hearing. (f) After the conclusion of the hearing, the hearing officer shall issue a written decision, which shall be supported by substantial evidence. Notice of the written decision, including findings of facts, conclusions of law, and notification of the Ordinance NS-300.873 re Page 11 of 13 rev 4124/14 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 126 time period in which judicial review may be sought pursuant to Code of Civil Procedure Section 1094.6, shall be served upon all parties no later than 20 calendar days following the date on which the hearing closed. Any decision rendered by the hearing officer shall be a final administrative decision. Sec. A18-382. Enforcement. (a) Any violation of this chapter is hereby declared to be a public nuisance. (b) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. (c) Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of 18 years old, such a person shall not be required over his or her objection to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. (d) Violations of this chapter may be remedied by a civil action brought by the County, including but not limited to, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief. For the purposes of the civil remedies provided in this chapter, each day on which a tobacco product or electronic smoking device is offered for sale in violation of this chapter, and each individual retail tobacco product or electronic smoking device that is distributed, sold, or offered for sale in violation of this chapter, shall constitute a separate violation of this chapter. (e) The District Attorney shall have discretion to prosecute violations of this chapter as infractions or misdemeanors. (f) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. II 11 II II 11 Ordinance NS-360.873 re Page 12 of 13 rev 4124114 Permits for Retailers of Tobacco Products and/or Electronic Smoking Devices 127 SECTION 2, This ordinance shall become operable 60 days after final approval from the Board of Supervisors. PASSED AND ADOPTED by the Board of Supervisors of the County of Santa Clara, State of California, on JUN 24 014 , 2014, by the following vote: AYES: CHAVU, COMSE, SIMMAN, W ASSERMAN, YEAGER NOES: ABSENT: ABSTAIN: A 1,-e;4 MIKE WASSERMAN, President Board of Supervisors Signed and certified that a copy of this document has been delivered by electronic or other means to the President, Board of Supervisors. ATTEST: REGAD Z Clerk of the Board of Supervisors APPROVED S TO FORM AND LEGALITY: JE Dep ty County Counsel 909347 Ordinance NS-300.873 re Page 13 of 13 rev 4124114 F ermits for Retailers of Tobacco Products and/or Electronic Smoking Devices 128 California Youth Advocacy Network page 1 of 2 E-cigarettes 4010 WHAT ARE E-CIGARETTES? Electronic cigarettes, also called electronic nicotine delivery systems (ENDS), are designed to mimic the size, shape, and use of a conventional cigarette. A battery powers a heater, or atomizer, that vaporizes a solution usually containing nicotine and flavor additives suspended in propylene glycol or glycerin. Many e-cigarettes are rechargeable and users purchase replacement cartridges or refill vials. KEY POINTS: WHAT ARE THE RISKS? • More than 400 e-cigarette brands are available for There are limited independent published studies on sale in the U.S.' the safety and risks of e-cigarettes. Some studies have • There have been no national prevalence studies. indicated that: The Tobacco Vapor Electronic Cigarette Association . Quality control and labeling of nicotine levels is claims there are 4 million users in the U.S. and an inaccurate, including detectable nicotine levels in estimated $1 billion in sales annually.2 "no nicotine" labeled e-cigarettes.' • E-cigarette awareness among U.S. adults increased . Exhaled vapor is a mixture of water, propylene from 16.9% in 2009 to 32.2% in 2010 and ever use glycol and low levels of nicotine, tobacco specific quadrupled.3 nitrosamines, and other impurities.4 In one study, • The U.S. Food and Drug Administration (FDA) vapor did slightly increase particulate matter levels has the authority to regulate e-cigarettes as tobacco in indoor air.' products, but has not yet done so.' • Metal and silicate particles have been found in • E-cigarettes may undermine current prevention cartomizer fluid and aerosol.12 and cessation efforts by normalizing the action . One study showed increased short-term airway of`smoking' or `vaping', triggering relapse and resistance after use of an e-cigarette.6 encouraging initiation. • Some e-cigarette users refill their own cartridges. • FDA has not approved e-cigarettes as cessation Exposure to dangerous concentrations of nicotine devices. There are other proven safe and effective through skin contact, inhalation, or ingestion is a methods to quit smoking. ' possible risk.' M 13 info@cyanonline.org 1 (916) 339-3424 1 www.cyanonline.org facebook.com/cyanfan © 2013, California Youth Advocacy Network 129 twitter.com/CYANonline Access and Marketing •.•- • • E-cigarette marketing emphasizes: • Variety of attractive flavors • Odorless, smokeless WHY QUIT? FIN • Social acceptanceSWITCH TO BLU • Cost savings Have Ike Freedom lo Smoke Anywhere _4 11 ON FIN • Technological innovation = - All flavors Made in 1he U-S.k • Freedom to use anywhere 8 • E-cigarettes are widely marketed on the internet, in television commercials, in magazine advertisements, and with celebrity endorsements. • Prices range from under $10 to $100 and up. • Not covered by health warning requirements and TV/radio commercial bans of cigarettes, cigars, and smokeless tobacco products.' • Disposable e-cigarettes, rechargeable kits, and refill cartridges are widely available for purchase on the internet, at mall kiosks, in convenience stores, and in some retail stores and tobacco shops. • U.S. tobacco companies are developing or purchasing e-cigarette brands-RJ Reynolds'VUSE,Altria's NuMark and Green Smoke, Lorillard's Blu, Swisher Sweets' e-swisher.Io OPPORTUNITIES FOR ACTION " • EXPAND EXISTING SMOKE-FREE AIR LAWS TO INCLUDE E-CIGARETTES. The U.S. Department of Transportation, Air Force, State of New Jersey, and King County of Washington State are among jurisdictions that have enacted rules restricting public use of e-cigarettes. • INCLUDE E-CIGARETTES IN YOUTH ACCESS RESTRICTIONS. The States of California, New York, and others have banned the sale of e-cigarettes to minors. Other options to limit access are e-cigarette provisions in retail licenses and the enactment of full sales bans, as in the case of Australia, China, and Brazil. • REGULATE MARKETING OF E-CIGARETTES. Local governments have an interest in protecting consumers from false and misleading claims about products for sale, including e-cigarettes. Enforcing existing advertising protections may reduce marketing exposure. 1 U.S.Food and Drug Administration.(n.d.).Electronic cigarettes.Accessed November 14,2012,from www.fda.gov/newsevents/publichealthfocus/ucml72906.htm. 2 McGann,M.A.(March 2013).E-cigarettes ignite a debate over the safety of liquid nicotine.Inside Jersey Accessed June 5,2013,from http://www.nj.com/inside jersey/index. ssf/special_reports/e-cigarettes_ignite_a_debate_over_the_safety_of_liquid_nicotine.html. 3 Regan,AK,Promoff,G,et.al.(2013).Electronic nicotine delivery systems:Adult use and awareness of the`e-cigarette'in the USA.Tobacco Control Journal,22(1),19-23. 4 U.S.Food and Drug Administration.(2009).Summary of results:Laboratory analysis of electronic cigarettes conducted by FDA.Accessed November 14,2012,from www fda.gov/newsevents/publichealthfocus/ucml73146.htm. 5 Pellegrino,RM,Tinghino,B,et.al.(2012).Electronic cigarettes:An evaluation of exposure to chemicals and fine particulate matter(PM).Annali di Igiene,24(4),279-88. 6 Vardavas,Cl,Anagnostopoulos,N,et.al.(2012).Short-term pulmonary effects of using an electronic cigarette:Impact on respiratory flow resistance,impedance,and exhaled nitric oxide.CHEST,141(6), 1400-1406. 7 Yamin,CK,Bitton,A,et.al.(2010).E-cigarettes:A rapidly growing internet phenomenon.Ann Intern Med,153,607-609. 8 Blu Cigs.Accessed November 14,2012,from www.blucigs.com. 9 Centers for Disease Control and Prevention.(n.d.).Selected actions of the U.S.government regarding the regulation of tobacco sales,marketing,and use.Accessed November 14,2012,from www.edc.gov/tobacco/data_statistics/by_topic/policy/legislation/index.htm. 10 Felberbaum,M.(April 25,2013).Marlboro maker Altria to jump into e-cigarettes.CNSnews.com. Accessed June 5,2013,from http://cnsnews.com/news/article/marlboro- maker-altria jump-e-cigarettes. 11 ChangeLab Solutions.(2012).Electronic cigarettes:How they are-and could be-regulated. Accessed November 14,2012,from http://changelabsolutions.org/sites/ default/files/E-cigarette_FactSht_FINAL_(CLS_20120530)_October2l_2011_0.pdf. 12 Williams,M.,Villarreal,A.,Bozhilov,K.,Talbot,P.(2013).Metal and silicate particles including nanoparticles are present in electronic cigarette cartomizer fluid and aerosol. PLOS one.8(3)e57987. BUILDING HEALTHY, SAFE COMMUNITIES Where people live, learn,play and work Santa Clara County - United for Health Partnerships to Improve Community Health Project Project Background In September 2014, the Santa Clara County Public Health Department (SCCPHD) was awarded $1 .9 million to address chronic www.sccphd.org disease and related risk factors, including: Visit our website to • Tobacco use and exposure to secondhand smoke learn more about these efforts. ' Poor nutrition • Lack of physical activity • Limited access to chronic disease prevention, risk reduction, and ' management opportunities r The Partnerships to Improve Community Health (PICH) grant builds w; on fifteen years of Centers for Disease Control & Prevention funded community health programs for chronic disease prevention. PICH will leverage past lessons learned and expand the evidence that demonstrates how policy, systems, and environmental change contributes to improvements in short- and long-term health outcomes. SCCPHD is one of 49 awardees receiving this funding. Project Overview • Awarded $1 .9 million for one year; with two additional years of funding at the same level (based on availability of funds & project progress) • Project period is 9/30/2014 through 9/29/2017 ' -50% of award will go out to the community through subcontracts UNITED FOR HEALTH Santa Ciara County • Requirements: 2014-2019 • Strategies focus on changing policies, systems and environments to improve population-level health • Reach at least 750 of total County population • Impact priority populations and reduce health disparities • Strategies respond to recent health assessments and health, improvement plan (ex. SCC Community Health Improvement Plan; Communities of Excellence in Tobacco Control) 01 • Strategies are evidence- or practice-based '^AAA • Strategies are implemented with the support of existing multi-sector coalition Santa Clara County 131 PUBM HEAL?M Santa Clara County - United for Health Project Goals Promote Tobacco-Free •Reduce exposure to secondhand smoke in multi-unit housing Intermediate Health •Reduce youth access&exposure to tobacco products in stores Outcomes: -Reduced exposure to Healthy *Increase access and use of CalFresh EBT(formerly food stamps)at farmers'markets tobacco& •Increase access to healthy food&decrease access to unhealthy products in stores "' secondhand Beverage *Increase access to healthy food&beverages through organizational wellness smoke Environmentspolicies -Increased daily consumption of fruits& -Increase access to safe community recreational spaces for physical activity vegetables Active and Saf� •Increase access to walking/biking paths,trails,and active transportation Environmentsopportunities -Increased *Increase physical activity&active transportation through organizational policies physical activity -Increased use of community- based resources -Increase access to diabetes prevention services through clinical practice changes and related to better community organization linkages control of chronic diseases Reduce •.rities in Implementation, and Health Outcomes Improving Community Health Through Cross-Sector Collaboration & Engagement Achievement of the above stated goals and objectives is meant to be accomplished SCCPHD anticipates releasing $850,000 in through broad community engagement and subcontracts in year one of this project cross-sector participation. period. Approximately 10 agreements will be developed to meet the project goals �' = F m91nity loalition/lILP"', Ir-_-Im described above through a mostly sector SCCPHD will convene a multi-sectoral based approach. Media and community coalition and leadership team communications, and evaluation service comprised of local organizations, decision agreements will be included in this process. makers, and community members to participate actively in the planning and Tentative timeline for RFP release is January implementation of the project goals and 2015. objectives. Santa Oara County For more information or questions, please contact the PUBLIC Center for Chronic Disease and Injury Preventiont�ZDIP) at 408.793.2700 HEALTH used under license from bigstock.com SARATOGA CITY COUNCIL 7956 MEETING DATE: January 21, 2015 DEPARTMENT: City Manager's Office PREPARED BY: Crystal Bothelio, City Clerk SUBJECT: City Council Handbook RECOMMENDED ACTION: Provide staff with input on the City Council Handbook. No action is needed. BACKGROUND: Last year, staff began preparing a handbook for Council Members to serve as a general reference document with pertinent information about service on the City Council. The handbook contains information about the structure of the City, day-to-day Council business, City Council policies, and state laws that affect elected officials. The handbook is only a general reference and does not set policy or law. Staff is bringing forward this item to solicit input from the City Council on the handbook. As the users of the handbook, Council feedback on content of the draft handbook will help make it a useful tool for Saratoga City Council Members. ATTACHMENTS: Attachment A - City Council Handbook 133 CITY OF SARATOGA CITY COUNCIL HANDBOOK � l '� ti � �...pu..=�y�•�.• � � � S ,�.� ��9f'FAy//may }:y �`L • :'� '. .��r r�r�** � - - '�'`i � ice. �• PREPARED JANUARY , 1956 • y 1. �!'1t`,�uy '�^`:t1Y-}. 1 iP Y� .ate M,ta�bm� hl� _ ^�.s��w �r�•�..r _ TABLE OF CONTENTS INTRODUCTION.......................................................................................................................3 ABOUT THE CITY OF SARATOGA..............................................................................................3 Saratoga Governance Structure...................................................................................................................3 CityDepartments .........................................................................................................................................3 GeneralLaw City...........................................................................................................................................4 Elections.......................................................................................................................................................5 CITY COUNCIL MEETINGS.........................................................................................................5 City Council Meeting Absences....................................................................................................................5 Special Meetings, Study Sessions,Joint Meetings, and Site Visits...............................................................5 AnnualRetreat.............................................................................................................................................6 ClosedSessions ............................................................................................................................................6 CityCouncil Agenda Packet..........................................................................................................................6 Agenda Items and the Agenda Planner........................................................................................................6 Typesof Agenda Items.................................................................................................................................7 PublicComment...........................................................................................................................................8 Lengthof Meetings ......................................................................................................................................8 Record of Council Meetings & Minutes........................................................................................................8 COUNCIL RESPONSIBILITIES& POWERS...................................................................................8 Appointment of City Manager and City Attorney ........................................................................................9 SaratogaCommissions .................................................................................................................................9 Roleof the Mayor.......................................................................................................................................10 Council Member Assignments....................................................................................................................10 CommunityInvolvement............................................................................................................................11 Laws & Policies...........................................................................................................................................11 Adjudication & Due Process.......................................................................................................................12 CityProperty ..............................................................................................................................................12 Fees &Assessments...................................................................................................................................13 LaborNegotiations.....................................................................................................................................13 Litigation.....................................................................................................................................................13 Budget........................................................................................................................................................13 Contracts....................................................................................................................................................14 ETHICS, PUBLIC RECORDS, AND OPEN MEETINGS ..................................................................14 PoliticalReform Act....................................................................................................................................14 Disclosure of Campaign Contributions and Expenses ................................................................................15 MandatoryEthics Training .........................................................................................................................16 City of Saratoga Code of Ethics and Values................................................................................................16 California Public Records Act......................................................................................................................17 TheBrown Act............................................................................................................................................17 CityRecords................................................................................................................................................18 COUNCIL POLICIES.................................................................................................................19 CouncilNorms of Operation.......................................................................................................................19 MayoralRotation Policy.............................................................................................................................19 E-Communications Policy...........................................................................................................................19 SaratogaRules of Order.............................................................................................................................20 DAY-TO-DAY COUNCIL BUSINESS...........................................................................................20 135 CouncilStipend & Benefits.........................................................................................................................20 CouncilCalendar.........................................................................................................................................20 CouncilNewsletter.....................................................................................................................................21 Accessto City Email....................................................................................................................................21 Communications and Inquiries...................................................................................................................21 CouncilMeeting Meals...............................................................................................................................21 Change of Contact Information..................................................................................................................21 Accessto City Hall ......................................................................................................................................21 APPENDIX .............................................................................................................................22 Saratoga City Council HI ndb3600k—Page 2 of 22 INTRODUCTION The purpose of this handbook is to serve Saratoga Council Members as a reference document. It includes general information about the City of Saratoga, local government principles, Saratoga policies and procedures, and laws that affect locally elected officials. Included with the guide are forms, reference materials, and other documents. Please keep in mind that this is only a general guide and does not set policy or law. Please consult with the City Attorney for advice on legal matters. ABOUT THE CITY OF SARATOGA Saratoga is home to nearly 30,000 residents and spans approximately 12.4 square miles. The City is located in the foothills of the Santa Cruz Mountains, approximately 26 miles east of the Pacific Coast, 10 miles southwest of Downtown San Jose, and 50 miles south of San Francisco. Saratoga Governance Structure The City of Saratoga was incorporated in 1956 and operates under a Council-Manager form of government. In the Council-Manager form of government, the Council is the governing body of the City, elected by the public, and the manager is hired by the council to carry out the policies established by the Council. The Council provides legislative direction while the City Manager is responsible for day-to-day administrative operations of the City based on the Council's directions. As such, City Council Members should work through the City Manager rather than giving directions to staff members. The City Manager also serves as the Council's chief advisor and is responsible for preparing the budget and hiring and firing personnel. Roughly 90% of California cities and majority of U.S. cities operate under the Council-Manager form of government. In addition to appointing the City Manager, the City Council is also responsible for appointing the City Attorney. The City Manager and City Attorney are the only two staff members who report directly to the City Council. There are a total of 5-members on the Saratoga City Council, elected at large by Saratoga voters. City Departments The City of Saratoga has a total of 5 departments: City Manager's Office, Community Development, Finance and Administrative Services, Public Works, and Recreation and Facilities. Law enforcement is provided by the Santa Clara County Sheriff's Office by contract. OSaratoga City Council Hfilook—Page 3 of 22 City Manager's Office Community Development Finance&Administrative Services City Manager Public Works Recreation&Facilities Sheriff's Office Assistant City Attorney 0ty,Attotrmy Special Counsel Heritage Preservation Library Parks&Recreation L City Commissions Planning Traffic Safety Youth General Law City There are three forms of municipal incorporation in the State of California. These include general law cities, charter cities, and consolidated city and county. The bulk of California cities, about eighty percent, are general law cities. There is only one consolidated city and county, San Francisco. Saratoga is a general law city and therefore derives its powers from and organizes itself according to acts of the State legislature. Fundamental laws that govern general law cities are part of the California Government Code. This includes the powers and structure of general law cities. Although State law establishes the overall powers and structure of general law cities, these cities can also institute local laws that are codified into a municipal code. Saratoga City Council HI 3800k—Page 4 of 22 Elections Council Members are elected at-large by Saratoga voters during staggered elections (every two years) to serve four-year terms. The Mayor and Vice Mayor serve 1-year terms and are chosen by fellow Council Members during the annual reorganization meeting in December. The City of Saratoga consolidates its elections with the County of Santa Clara. The Santa Clara County Registrar of Voters oversees voter registration, preparation of the ballots and voter information materials, and collection and tabulation of the ballots. The City Clerk is the Elections Official for the City of Saratoga and oversees nominations of candidates, ballot measures, and referenda. CITY COUNCIL MEETINGS Regular City Council Meetings take place on the first and third Wednesday of the month at 7:00 p.m. in the Civic Theater. Generally, the City Council takes a one or two meeting recess during the summer months. Meetings held on or near major holidays may also be canceled. Council authorization is needed to cancel regular meetings. City Council Meeting Absences Per Government Code Section 36513, if a Council Member is absent from all regular City Council Meetings for 60 consecutive days, without permission, that Council Member's position will become vacant. If a Council Member is unable to attend a meeting, he or she should notify the Mayor, City Manager, and City Clerk. The Mayor is responsible for excusing Council absences from regular meetings. Council Members may participate in a regular or special meeting by phone if advance notice is given to the City Clerk. When a member of the Council participates in a meeting by phone, the agenda must note the location from which the Council Member is participating in the meeting. An agenda must also be posted at the remote location and members of the public must be able to participate in the meeting from that location. Special Meetings, Study Sessions, Joint Meetings, and Site Visits Special meetings and study sessions are also held throughout the year for a variety of purposes. Special meetings are scheduled when the Council is required to take action on an item outside of the regular meeting schedule. Study sessions are conducted to allow the City Council to evaluate a single matter in a more in-depth manner. Both special meetings and study sessions are typically scheduled in the evening on weekdays. Prior to regular meetings, the City Council commonly holds joint meetings with community groups and key stakeholders at 6:00 p.m. For example, the Council holds joint meetings with OSaratoga City Council HI 3d9ook—Page 5 of 22 each of the City's Commissions, the Saratoga Chamber of Commerce, and owners of the Mountain Winery. Additionally, the City Council usually conducts Commission Interviews prior to the joint meeting. Site visits are also occasionally scheduled in advance of the regular meeting, if necessitated by an item on the agenda, such as an appeal of a Planning Commission decision on a project. Site visits are usually held the Monday or Tuesday morning prior to the regular meeting. For the purpose of the Brown Act, study sessions,joint meetings, Commission interviews, and site visits are considered special meetings. Annual Retreat The Council holds an annual daylong retreat in January or February. During the annual retreat, the Council establishes priorities and a work plan for the year. The Mayor sets the agenda for the retreat. Closed Sessions Closed sessions are sometimes scheduled before joint meetings as needed to discuss sensitive matters, as authorized by the Brown Act. Litigation, personnel matters, labor negotiations, real estate negotiations, and public security are some of the issues that can be discussed during closed session. City Council Agenda Packet The City Clerk will send out the agenda packet by email for regular meetings no less than 72 hours prior to meeting. The packet contains an agenda for the meeting as well as staff reports on each item on the agenda. The size of the packet will vary based on the items on the agenda. An electronic copy of the packet is provided at regular meetings via iPad or laptop. The packet is not distributed in paper format. The public can access the packet through the City of Saratoga's website. Printed copies packet are also provided at the Saratoga Library and City Hall for public review and placed in the Civic Theater lobby for review during the meeting. Agenda Items and the Agenda Planner Items may be placed on the agenda by the Mayor or the City Manager. Additionally, Council Members may request that items be added to a future meeting by making the request at the end of a regular meeting during the Council Items portion of the meeting. If a second Council Member supports the request, the item will be added to a future meeting. The City Manager and City Clerk hold weekly meetings with the Mayor and Vice Mayor to discuss upcoming agenda items and set the agenda of future meetings. O Saratoga City Council HInob 40ook—Page 6 of 22 Future agenda items are identified on the Agenda Planner, which is sent to the City Council every week via email. The Agenda Planner shows which meeting agenda items will go before the City Council, which section of the agenda the item will appear under, and the staff person preparing the report on the item. AGENDA PLANNER DATE CMO F&AS CDD PW REC 11/3/2014 9,a..m.Site Visit: Planning Commission Appeal- 14521/14523 Big Basin Way 11/5/2014 6:00 p.m.Joint Meeting-West ♦Check Register(Furey) 2nd Reatline-Annual Catle •PUblId Hearing-LLA valley d_of Trustees UpdaI.,(Riordon) a11—Pill-H iea.ng- ♦CAFRPresentation [Legal Ad-10/31&11/15] Covina(Che,bone) •City Counlil Minutes(City B."O [Legal Ad-10/241 Clerk) 2n1Reading Zoning ♦Business Code Updates Amendment-Fatima Villa ♦Award of Contract Hakone ®Proclamation Recognizing the (FureY1 (Mc mickl ,Plan Oesign ry of Wert Valley [Legal Ad-10/241 [Legal Ad-10/31&11/151 nseltant Cherbone) Callege(BretschnelI •Planning Commission e ®Proclamation Declaring Appeal-14521/14523 Big tAPPlcatonntoDa November as Pancreatic Cancer Basin Way(Foszati) Oitrrict-Saratoga Creek Tail (Bretscltneitle,jn[ [Legal Ad-10/24] (Ho,voncikl =t' td,from 1A- z of S[a[e 0.oute 85 Express lanevProloct(CILV Clerk) ♦, Bea(CIty CI-) — wed to 11/19 VAA, Code Updates(City DI) [Legal Ad-10/241 ♦Requestfor Funding fpr n Bloom Applicaflon (Bobco aq i 11/19/2014 6:00 p.m.Joint Meeting-State ♦Check RegNW,(Forey) 'Approval ofthe Housing nator Jim Beall,Jr. Element&Introduce Related 2ntl Beading-Business Zoning Chan¢es(Riordan) unci(Minutes(Ciry Co de Updates(Furey) [Legal Atl-11/21 Cle,k)Ce EARATOGA CIP COUNCIL AGENDA PLANNER 1 10/22/2014 Types of Agenda Items There are six different types of items that routinely appear on regular City Council agendas. These include ceremonial items, special presentations, consent calendar items, public hearings, old business, and new business. - Ceremonial items include proclamations and commendations that recognize an individual, group, or cause. - Special presentations are typically informational only and do not require Council action. Generally, special presentations are limited to 10 minutes or less. - Items on the consent calendar are items of routine business and are passed in one motion, unless a member of the public or Council removes the item from the consent calendar to discuss it or seek additional information. - Public hearings generally require special notice and are often required by State law for certain items, such as amendments to the zoning code. Public hearings may also have special public input requirements. For example, appellants and applicants during a public hearing on a Planning Commission decision appeal are each given ten minutes for opening statements then five minutes each for closing remarks. - Old business items have previously appeared on a Council agenda. - Items that have not been on a Council agenda previously are heard under New Business. OSaratoga City Council Hjn�book—Page 7 of 22 Public Comment Members of the public comment may comment on any item on the agenda and may discuss items not on the agenda under "Oral Communications on Non-Agendized Items." Public speakers are limited three minutes. Per Council Norms of Operation, if there are more than twenty identified speakers for a single item, the Mayor may reduce the amount of time allowed per speaker to two minutes. Length of Meetings In 2013, the City Council adopted a resolution (included in the appendix) establishing guidelines for the length of City Council and Commission meetings. The goal of the guidelines is to prevent meetings from extending beyond midnight. If a meeting runs till 10:00 p.m., the presiding officer should determine if the meeting will continue past midnight if all items on the agenda are heard. If the presiding officer believes that the meeting will not adjourn by midnight then the presiding officer should request a motion continue a sufficient number of agenda items to the next regular meeting to allow the meeting to conclude by midnight. Record of Council Meetings & Minutes In 2009, the City Council adopted a resolution declaring the video recording of Council and Planning Commission meetings to be the true meeting record. Regular meetings and other meetings that occur in the Civic Theater are video recorded and shown live on KSAR and the City's website. Past meeting videos are also available on the City website. This resolution also approved use of"action" minutes for City Council and Planning Commission meetings. Action minutes document each action taken during a meeting, as opposed to serving as a transcript or summary of a meeting. A copy of this resolution is included in the appendix. In addition to meeting videos and minutes, materials distributed to the Council during the regular meeting (such as letters, speakers slips, or desk items) are scanned following the meeting and posted on the City of Saratoga website. COUNCIL RESPONSIBILITIES & POWERS The City Council has numerous responsibilities and powers, such as setting policy for the City, adopting laws, and setting the budget. The various roles and responsibilities of the City Council are described in this section. O Saratoga City Council HInob 42ook—Page 8 of 22 Appointment of City Manager and City Attorney The City Council is responsible for appointing the City Manager and City Attorney. These are the only two staff positions that report directly to the City Council. Both positions serve at the will of the City Council. Because both the City Manager and City Attorney report directly to the City Council, the Council is responsible for performing an annual evaluation for staff in both positions. The City Manager's evaluation is generally conducted in June while the City Attorney's evaluation is held in July. The terms of both the City Manager and City Attorney's employment are established by contract. Saratoga Commissions In addition to these two staff appointments, the City Council makes appointments to the City's Commissions. There are a total of six Commissions: the Heritage Preservation Commission, Library Commission, Parks and Recreation Commission, Planning Commission, Traffic Safety Commission, and Youth Commission. Created by Council legislation, all of Saratoga's Commissions were established to provide citizen input and advice in specific areas. As advisory bodies, the Commissions are not authorized to set City policy. However, the Planning and Heritage Preservation Commissions are authorized to make decisions on certain types of applications. These decisions may generally be appealed to the City Council. Most of the City's Commissions are comprised of five or seven members. The Library and Parks and Recreation Commissions have five members. The Heritage Preservation Commission, Planning Commission, and Traffic Safety Commission have seven members. The Youth Commission has a total of eleven members, who are Saratoga residents in school grades seven through twelve. The term of a Commission appointment is 4 years, not including the Youth Commission, in the case of an unexpected vacancy, or if the need to realign Commission terms. Commissioners may serve up to two full terms. A partial term is not considered a full term. If a Commissioner has served two full terms, he or she may apply to serve on that Commission again after a 1-year break. Youth Commissioners serve two-year terms and may not serve consecutive terms. Prior to appointment, applicants for a Commission position are interviewed by the City Council. Interviews usually take place in the evening before the joint meeting. However, due to the large volume of Youth Commission applicants, interviews for Youth Commissioners are usually held on non-Council Meeting evenings and may be held on two separate nights. Applicants are required to attend a Commission meeting to be eligible to interview with the City Council. If the City Council is able to make a selection following interviews, the oath of office is usually administered at the next regular meeting of the City Council. Saratoga City Council H1nob 43ook—Page 9 of 22 All Commissioners serve at the pleasure of the City Council and may be removed through Council action. Additionally, if a Commissioner is absent from three regular meetings in a 12- month period without permission from the Chair (or in the case of the Chair, the Mayor), the Commissioner's office becomes vacant. The Commissioner may request that the vacancy be excused by filing a letter with the City Clerk within 30-days of the effective date of vacancy. Any Youth Commissioner who misses two meetings within a school year will be automatically removed from the Commission, unless the absence is approved by the City Council. Role of the Mayor The Mayor acts as the primary spokesperson and official representative of the City Council, unless that responsibility is delegated by the Mayor, or otherwise assigned by a majority vote of the City Council. The Mayor presides at all meetings of the City Council, including regular meetings, special meetings,joint meetings, and closed sessions. The Mayor calls meetings to order, leads the Pledge of Allegiance, and generally facilitates the meeting. The Mayor also executes official City documents, warrants and correspondence approved by City Council. This includes resolutions, ordinances, and proclamations. The Mayor serves as the primary contact for the City Manager to provide direction and advice regarding routine planning and operational issues (i.e. meeting schedules, dispositions of correspondences, etc.). Nothing in this section is intended to suggest that the position of Mayor wields formal power or authority in excess of the other members of the City Council. Rather, the person serving as Mayor is to be recognized as the leader of the Council, or first among equals. The Vice Mayor serves and performs the functions as Mayor in the absence of the Mayor. Council Member Assignments In addition to City Council meetings, Council Members are assigned to various outside agencies and Council committees. Every December, the City Council reviews and updates the City Council assignments. This includes assignments such as the City of Saratoga representative on the West Valley Solid Waste Management Authority, Santa Clara County Cities Association, and appointment to the Saratoga Finance Committee. The assignments are established by the Mayor and voted upon by the entire Council. Before assignments are finalized, Council Members may make assignment requests to the Mayor. If a Council Member is unable to attend a meeting, he or she should notify their alternate (if one is assigned). At the end of each regular City Council meeting, Council Members provide the rest of the Council with updates on ad hoc and agency assignments. ® Saratoga City Council Hal db ok—Page 10 of 22 The Deputy City Clerk maintains an Outlook calendar of assignment meetings that Council Members can access online or through a smart phone. The calendar is also distributed to the Council weekly. If a regular meeting has been rescheduled or a special meeting is expected, the Deputy City Clerk will update the calendar upon receiving notification from members of the Council of the changes to the meeting schedule. Community Involvement Council Members frequently attend community events, participate in neighborhood meetings, and are members of local groups. Council Members receive numerous invitations to attend events, such as ribbon cuttings, cultural festivals, and fundraisers. In addition to the Saratoga community, Council Members are also engaged on a regional basis. Council Members may receive to invitations to attend in regional events or may participate in organizations, such as the League of California Cities. Laws & Policies The City Council is responsible for providing direction on preparation of laws and policies, as well as adopting them. With a few exceptions, local legislation is adopted by ordinance. Ordinances are adopted in two parts. First, a public hearing is conducted for the first reading of the ordinance. Then, the Council adopts the ordinance at a future meeting through the second reading. The ordinance then goes into effect 30-days later. Most ordinances are then codified into the City Code. However, some ordinances that do not set law or affect the Municipal Code are not codified. The Planning Commission must review ordinances that affect the zoning regulations of the Municipal Code (Chapter 15) before Council consideration of the ordinance. When the Planning Commission reviews the ordinance, it makes a recommendation to the Council on the ordinance. Policies that set standards or guidelines for City operations are typically adopted by resolution. Examples include the City's e-communications policy or median banner program policy. However, policies may also be adopted by ordinance. Resolutions do not require a first or second reading. The City Council also adopts and approves changes to the General Plan, which outlines acceptable land uses within the City. The General Plan provides guidelines for growth and land development now, as well as a long-term vision for the future. Consequently, all land use decisions must be consistent with the plan. The City of Saratoga's General Plan includes 7 elements required by the State. These elements provide a policy framework and goals on special topics, such as noise, circulation, or housing. Additionally, the General Plan contains several different area plans and specific plans to provide guidance for particular regions of the City. Saratoga City Council Han d�ook—Page 11 of 22 The public has the right to create or challenge legislation. The public can do so through the ballot initiative or referendum process. Ballots initiatives propose local legislation by placing the matter on the ballot for decision by the voters. Referenda are citizen-initiated challenges to recent Council-adopted legislation, which is placed on the ballot for decision by the voters. Ordinances and some resolutions are subject to referendum. Additionally, members of the public may challenge a City decision or policy through a lawsuit. Adjudication & Due Process Certain matters require adjudication by the Council, such as appeals of Planning Commission decisions. These matters require the Council to provide due process and fair treatment to the parties involved. During hearings on Planning Commission appeals, hearings typically follow the following process: 1. Mayor announces the item and explains process for hearing. 2. Staff gives report, followed by Council Member questions for staff. 3. Appellant and/or representative gives opening remarks for up to 10 minutes. Council may ask appellant and/or representative questions. 4. Applicant and/or representative gives opening remarks for up to 10 minutes. Council may ask applicant and/or representative questions. 5. Public comment on the item, not including appellant or applicant. The public may comment for up to 3 minutes, unless there are 20 or more people requesting to speak and the City Council has agreed to reduce the comment time to 2 minutes per person. 6. Applicant and/or representative gives closing remarks for up to 5 minutes. Council may ask appellant and/or representative questions. 7. Appellant and/or representative gives closing remarks for up to 5 minutes. Council may ask applicant and/or representative questions. 8. Mayor closes the public hearing. If the City Council has additional questions for the appellant or applicant after the public hearing is closed, the other party must be given opportunity to respond. 9. Council discusses item. 10. Council takes action (uphold, reverse, or modify the Planning Commission decision or refer back to the Planning Commission for further action directed by the Council). Hearings on Planning Commission appeals are de novo hearings. Consequently, the City Council may review all aspects of a project that has been appealed. City Property The City Council is responsible for making decisions related to City property, including the purchase, sale, and type of use allowed for City property. Examples of City property include, City buildings, parks, road right-of-way, and trails. # Saratoga City Council Hai dktook—Page 12 of 22 Fees & Assessments The City Council has the authority to set fees for City facilities and services. For example, the City charges fees for building and planning approvals. These fees may not exceed the reasonable cost of providing those facilities or services. Additionally, the City Council may create assessment districts or zones within existing districts to pay for public facilities. These assessments require property owner approval. There are a number of landscaping assessment district zones in the City of Saratoga. The City maintains the landscaping in these zones and pays for the cost of maintenance through an assessment collected through the property tax bill of property owners. Labor Negotiations The City Council oversees and provides direction on negotiation of labor agreements. The City has some form of agreement with several different groups. These include: City Manager contract, City Attorney contract, Saratoga Management Organization memorandum of understanding (MOU), Saratoga Employee Association MOU, Northern California Carpenters Regional Council, Carpenters Forty Six Northern California Counties Conference Board and Their Affiliated Local Unions (Union) MOU, and unrepresented employees resolution. Litigation In the event that the City is sued or chooses to initiate litigation, the City Council is responsible for providing direction on the litigation. The City Attorney serves as the chief counsel on legal matters and selects counsel to represent the City in litigation in consultation with the City Council. Budget In June of each year, the City Council adopts an annual Operating and Capital Budget and update to the five-year Capital Improvement Plan for the following fiscal year running July 1 to June 30. This budget document serves as the City's annual financial and operational plan and includes the City's fiscal policies to provide guidance in the implementation of the budget. At the beginning of the calendar year, a report on the status of the mid-year budget and updated five-year forecast is presented to the Council. This mid-cycle review allows the Council to implement any current year course corrections or directives for the upcoming fiscal year. In the spring, the Council holds a Budget Study Session to review operating and capital budget recommendations. The final proposed budget is then presented to the Council for review in May and for adoption in June. The Capital Improvement Plan (CIP) Project Process Policy, establishes procedure for staff and City Council Members to propose capital projects. Members of the Council may nominate a project to the CIP Candidate List during the Council Items portion of regular meetings. If the project is supported by at least one other Council Member, the project will be added to the CIP Candidate List for review during the Council Retreat. OSaratoga City Council Hal dlyok—Page 13 of 22 Prior to the Retreat, staff will collect additional information about the candidate projects, such as preliminary project scope, cost, and timeline. All current funded and unfunded CIP project information is then distributed to the Council to prepare for review and discussion at the Retreat. During the Council Retreat, the Council will provide consensus direction on which projects will proceed to the Proposed Capital Budget as is, with changes, eliminated from consideration, or added to the CIP Unfunded Project List for review the next year. In the spring, projects are reviewed with Council a final time during the Budget Study Session. Direction from the study session is used to prepare the CIP that is presented as part of the proposed budget in May. Contracts Per the Public Contract Code and City purchasing policy, certain contracts must go before the City Council for approval. Service contracts that are $25,000 or more require Council approval. Public Works contracts, where something is being built or constructed, that are over $175,000 require Council approval. Funding for a contract must already be reflected in the budget before the City Manager can sign it, even if the contract is within the City Manager's signing authority. Additionally, Government Code 1090, with a few limited exceptions, prohibits the City from making a contract in which a City Council Member has a financial interest, even if the Council Member does not participate in the decision. ETHICS, PUBLIC RECORDS, AND OPEN MEETINGS There are a number of State laws that Council Members must comply with. Some of the most significant State laws include the Political Reform Act (Gov't Code 81000 et seq.), Public Records Act (Gov't Code 6250 et seq.), and the Brown Act (Gov't Code 54950 et seq.). Additionally, the Saratoga City Council adopted its own Code of Ethics and Values in 2008 to promote and maintain the highest standards of personal and professional conduct in the City's government. Political Reform Act The Political Reform Act is intended to prevent potential conflicts of economic interest. The law requires that most state and local government officials disclose their personal income and assets, as well as disqualify themselves from participating in decisions that may impact their personal economic interests. As a result, local elected officials in Saratoga must annually disclose their economic interests through the Form 700—Statement of Economic Interests. The Form 700 is filed annually with the City Clerk. The annual statement is typically due during the first week of April. The Form 700 must also be filed when assuming and leaving office. State law establishes a number of mandatory Form 700 filers, which includes Council Members. Local governments are also required to adopt their own Conflict of Interest Codes to specify positions (outside of the list of mandatory filers determined by the State) that must disclose OSaratoga City Council Ha14t5ook—Page 14 of 22 economic interests. The Code includes a listing of all positions in the organization that involve making or participating in making decisions that could have a material effect on any financial interest. This includes making substantive recommendations that are regularly approved without significant amendment or modification, as well advising or making recommendations to a decision-maker directly or without significant intervening substantive review. The Political Reform Act also requires that the Conflict of Interest Code and list of positions required to disclose financial interests be reviewed and updated as needed every to years. A copy of the Conflict of Interest Code is included in the appendix and available on the City of Saratoga website. The Form 700 is public record. Any member of the public is permitted to inspect and copy any statement during normal business hours. If a public official has a conflict of interest, the Political Reform Act may require the official to disqualify himself or herself from making or participating in a governmental decision, or using his or her official position to influence a governmental decision. In general, the Political Reform Act provides that a conflict of interest exists where: • An official makes, participates in, or uses his or her official position to influence governmental decisions; • It is foreseeable that the decision will affect the official's financial interest; • The effect of the decisions on the official's financial interest will be material; and • The effect of the decision on the official's financial interest will be distinguishable from its effect on the public generally. This is a summary of a more complicated set of rules. For more information, see the website of the Fair Political Practices Commission at www.fppc.ca.gov. A conflict of interest may exist under other rules as well. Council Members are encouraged to consult with the City Manager whenever they believe they may have a conflict. Disclosure of Campaign Contributions and Expenses In addition to disclosing economic interests, the FPPC requires that office holders with an open campaign committee file regular campaign disclosure statements. Committees are required to file several campaign finance disclosure statements throughout the year and just before the election using the Form 460— Recipient Committee Campaign Statement or the Form 470— Officeholder and Candidate campaign Statement Short Form. The Form 460 must be filed semiannually with the City Clerk by July 31 for the period from January 1 to June 30 and by January 31 for the period between July 1 and December 31. Office holders may also be required to file additional disclosures with the City Clerk during election years if an office holder uses committee funds to contribute to a candidate or ballot measure. Contributions and expenditures, including loans and non-monetary contributions or expenditures, in the amount of$100 or more must be itemized on the report. The name, address, occupation, and employer of individuals who have contributed $100 or more, including # Saratoga City Council Hai 800k—Page 15 of 22 loans and non-monetary contributions, must be noted in the itemized report. Contributions and expenditures that are less than $100 do not need to be itemized, but must still be reported. Cash contributions and expenditures of$100 or more are prohibited. Additionally, anonymous contributions of$100 or more in a calendar year are not permitted. If a donation is made by an intermediary on behalf of another individual or organization, the intermediary must disclose his or her full name, address, occupation, employer, as well as the full name, address, occupation, and employer of the donor. Individuals who receive less than $1,000 in campaign contributions or spend less than $1,000 in a calendar year may use the Form 470, a shorter version of the Form 460, for semi-annual disclosures. Additionally, Council Members who receive a stipend from the City and do not have an open campaign committee must file the Form 470 with the City Clerk annually. The City Clerk will send reminders and copies of the disclosure forms to City Council Members prior to the filing deadlines. Mandatory Ethics Training The Political Reform Act also requires members of local legislative bodies that receive any type of compensation, salary, stipend, or reimbursement for expenses from the local agency, to participate in a minimum of 2 hours of ethics training every two years. This training is commonly referred to as Assembly Bill (AB) 1234 Training. Because the members of the Saratoga City Council receive a stipend, Council Members are required to participate in ethics training every two years. The City Clerk is responsible for maintaining ethics training records and notifying those subject to ethics training when their certification expires. The Fair Political Practices Commission provides free online AB 1234 ethics training that meets ethics training requirements. For more information, please visit http://www.fppc.ca.gov/index.php?id=477. Additional information about the Political Reform Act is available online on the following websites: • http://ag.ca.gov/publications/coi.pdf? • http://www.ca-ilg.org/ethics-transparency The appendix also includes additional information about the Political Reform Act and local government ethics. City of Saratoga Code of Ethics and Values In 2008, the Council adopted the City of Saratoga Code of Ethics and Values with the intent of establishing the highest standard of professional conduct among the City's elected officials, Commissioners, and staff. The Code of Ethics and Values is included in the appendix. # 9b Saratoga City Council Ha,n ook—Page 16 of 22 California Public Records Act The California Public Records Act was adopted in 1968 and allows any member of the public to inspect local government records. While there are a few exceptions to the law, the public may generally request any public record. Government Code Section 6252 defines public records as "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 or characteristics." Examples of public records include Council Meeting Minutes, resolutions, agreements, and City email communications. A summary of the California Public Records Act is available on the Attorney General's website at http://ag.ca.gov/publications/summary_public_records_act.pdf?. Additionally, a booklet on the Public Records Act is included in the appendix. The Brown Act Passed in the 1950s, the Brown Act guarantees the public's right to attend and participate in the meetings of local legislative bodies. The State law requires that: - Meetings of a legislative body are properly noticed and open to the public; - Members of the public have the opportunity to comment before or during the meeting on agenda items or items not on the agenda; and - The legislative body conducts votes (except those permitted to take place in closed session) in a public meeting. There generally may be no action or discussion by Council Members on any item not appearing on the posted agenda. Council Members may only briefly respond to statements made or questions posed about items not on the agenda; they may request that the topic be agendized for a future meeting. The Brown Act also requires that Council meetings be held in a facility that is accessible to handicapped individuals. The definition of "meeting" includes any action among a majority of the Council to hear, discuss, or deliberate upon an item that is within the subject matter jurisdiction of the Council. The Brown Act specifically prohibits the use of any series of communications of any kind (e.g., telephone, fax, or email) directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the Council's authority. A Council majority may attend the following gatherings without following meeting notice requirements and other rules pertaining to regular meetings (provided City business is not discussed as part of the meeting or in breaks): (1) meetings or conferences on general issues that are not City specific; (2) meetings organized by others to address topic(s) of local community concern; and (3) social or ceremonial functions. Regular and Special Meeting agendas must include opportunities for public input. A public comment period is allowed at the beginning portion of the meeting when members of the public may speak to any relevant topic, regardless of whether that issue is on the agenda for OSaratoga City Council Hal gl ok—Page 17 of 22 that meeting. Council Members may only briefly respond to statements made or questions posed about items not on the agenda, and then request that the topic be agendized for a future meeting. The public is also allowed to speak to each item on the agenda as it is being discussed in the meeting. Public testimony in both portions of the meeting is limited, typically to three minutes. Although the City encourages individuals testifying before City Commissions and the City Council to identify themselves to facilitate staff follow-up where needed, the Brown Act makes clear that the City may not require that disclosure or require any other information. Additionally, the Council may not prohibit public criticism of the policies, procedures, programs, or services of the Council or of the acts or omissions of the Council. Any person attending an open and public meeting of the City Council has the right to record the proceedings with an audio or video tape recorder or a still or motion picture camera unless it constitutes a persistent disruption of the proceedings. In addition to the above provisions, the Brown Act includes rules for proper noticing of various types of public meetings, regulations relating to the conduct of closed sessions, and penalties for the conduct of an unlawful meeting. The Brown Act is complex. Questions concerning the Act should be directed to the City Manager, City Attorney, or City Clerk. A summary of the Brown Act is available on the Attorney General's website at http://ag.ca.gov/publications/brownAct2003.pdf?. A booklet on the Brown Act is included in the appendix. City Records The City maintains records in accordance with the Council adopted retention schedule. This document details the various types of records that the City possesses and states how long different records must be retained. City Council authorization is required before any records may be destroyed. Staff prepares a request for disposition of City records twice per year. City keeps records in both paper and electronic format. Records that have permanent retention periods, are retrieved frequently, have historical value, or inform operations of the City are converted to electronic format and stored in the City's electronic document management system — Laserfiche. Examples of these records include resolutions, contracts, and City publications. # Saratoga City Council Hai 9E ook—Page 18 of 22 COUNCIL POLICIES From time to time, the City Council adopts policies that regulate and guide Council actions. These policies are generally resolutions and referred to as Council Policies. Council Norms of Operation The Council Norms of Operation was first adopted in 2004 and has been revised several times since then. The Council Norms of Operation establishes standards for Council operations in six broad areas: meeting operations, relations with City staff, Council and Commission relationships and relationships with other government bodies, handling of litigation, business of the Council, and rules of order. The full policy is included in the appendix. Mayoral Rotation Policy In 2010, the Council adopted a policy to establish a rotational order for the position of Mayor and Vice Mayor. Each December, the Council elects one of its members to serve as Mayor and one to serve as Vice Mayor. Council Members are placed into the queue for Mayor and Vice Mayor based on when they are elected and the number of votes they receive. Council Members elected in the same election are placed in the queue based on the number of votes they receive. In years where there is a contest for 3 positions on the Council, the Council Member who receives the third least votes will not be placed in the queue for Mayor or Vice Mayor unless one of the eligible Council Members is unable to serve. Council Members who are appointed are also not eligible to be placed in the rotation for Mayor or Vice Mayor. The policy for rotation of Mayor and Vice Mayor is included in the appendix. E-Communications Policy The City's E-Communications Policy, adopted in 2010, describes proper use of electronic media and devices by Council Members and Commissioners. The policy requires both Council Members and Commissioners to use a City-issued email account for all email communications associated with City business, including emails from the public on an upcoming agenda topic. Personal email accounts may not be used to conduct official City business. The policy also prohibits discussion or exchange of facts about City issues via e- communications. This may include email, online forums, social media, or blogs. This provision is intended to prevent conflicts with the requirements of the Brown Act. Additionally, when emails or other forms of e-communication are sent to a quorum of the Council from a member of the public, the Mayor or Mayor's designated representative is OSaratoga City Council Hal Took—Page 19 of 22 expected to respond on behalf of the Council. Staff is available to assist with preparing responses. During Council Meetings, use of e-communications (for example, use of a phone, sending emails, or text messaging) is prohibited. This does not include telephone calls or other messages sent in the event of an urgent family matter. Saratoga Rules of Order In 2009, the Council moved from Robert's Rules of Order to the Saratoga Rules of Parliamentary Procedure. The City's rules of order are based on Rosenberg's Rules of Order, a simplified version of rules of parliamentary procedure. The rules of order were adopted as part of an amendment to the City Council Norms of Operation. DAY-TO-DAY COUNCIL BUSINESS Council Stipend& Benefits Members of the City Council receive a stipend of$3,000 per year, paid out in monthly payments. Additionally, Council Members may elect to participate in the California Public Employees' Retirement System (CaIPERS) while in office. Council Members may choose to participate in CaIPERS at any point while in office, but retirement membership is effective on the date the Council Member elects to participate in the retirement benefit— not the date elected office. Council Members, who choose to participate in the CaIPERS retirement program, contribute 7% of their stipend to the program. The City also contributes to the retirement plan. Effective January 1, 2013, new members are eligible for the CAPERS 2% at 60 years plan. Additionally, Council Members in the CAPERS retirement plan are also eligible to participate in the CAPERS health plan. The elected official is responsible for paying 100% of the cost of the health plan. Council Members interested in CaIPERS retirement benefits and health plan are encouraged to speak with the Human Resources Manager. Council Calendar The City maintains a calendar of City Council meetings, events, and activities. This includes regular Council Meetings, closed sessions, Council assignments, and events taking place in the community. Staff also uses the Council Calendar to track when Council Members are out of town. The calendar is maintained in Outlook and Council Members can access the calendar through their phones and other smart devices. Additionally, the calendar is sent out weekly with the Council Newsletter. ® Saratoga City Council Hal gbb ok—Page 20 of 22 If changes in assignment meeting schedules occur, members of the Council can send those to the Deputy City Clerk who will update the Council Calendar accordingly. Council Newsletter Every week, City staff sends out a newsletter to the City Council containing news and updates from each of the City's departments. The newsletter also includes weekly updates from the Sheriff's Office and call information for the Santa Clara County Fire Department. Access to City Email City email addresses are issued to every member of the City Council. The City email account can be accessed using the Microsoft Outlook Web App and instructions on how to access City email accounts is included in the appendix. Staff is available to help Council Members who wish to access their City email account through their phone or other smart devices. Communications and Inquiries Per the City Council Norms of Operation, written communications (including letters and emails) sent to the Mayor and City Council Members will be circulated to all members of the Council by staff. In the event that a response is warranted or required, staff will work with the Mayor to prepare a response. The response will be distributed to the City Council. Written communications will be provided in electronic format or hard copy. Paper copies will be left in Council Member inboxes in the City Manager's Office copy room. Council Meeting Meals The City has a longstanding practice of providing dinner for City Council meetings that begin at 6:00 p.m. or earlier and are expected to extend beyond 7:00 p.m. Staff should be informed of any dietary restrictions or needs. Additionally, meals are provided for lunch meetings and upon request for morning and evening meetings. Change of Contact Information In the event that a Council Member's contract information, such as address or phone number, changes, the Council Member should contact the City Clerk and complete an updated Authorization to Release Personal Information. Access to City Hall Doors to the City Manager's Office/Administrative Services building, Community Development/Public Works Building, and Civic Theater can be unlocked during non-business hours using an electronic key card. A key card is issued to each Council Member. OSaratoga City Council Hal gook—Page 21 of 22 Council Policies Council Norms of Operation (includes Saratoga Rules of Order) Mayoral Rotation Policy E-Communications Policy Meeting Length Guidelines Action Minutes City of Saratoga Conflict of Interest Code City of Saratoga Code of Ethics and Values Day-to-Day Council Business Email Access Instructions Granicus/i Legislate Agenda Packet Access Instructions Local Government Resources Understanding the Basics of County and City Revenues The People's Business: A Guide to the California Public Records Act Open & Public IV: A Guide to the Ralph M. Brown Act Understanding the Basics of Public Service Ethics Laws OSaratoga City Council Hal gk ok—Page 22 of 22 CITY OF SARATOGA CITY COUNCIL NORMS OF OPERATION (Adopted via Resolution 13-061) Section 1. OPERATION OF CITY COUNCIL MEETINGS A. City Council Meetings shall be run following the outline listed in Section 6.13. of this document. Each item shall be introduced by the Mayor and heard in accordance with the Rules of Parliamentary Procedure attached hereto as Exhibit A. B. The Mayor may place an item anywhere on the agenda. Two City Council members may place an item on the agenda. C. A single City Council Member may place on item on the agenda under City Council Member Items. Items under this manner shall have a limited staff report, if appropriate. No significant resources (more than three hours of staff time) shall be used by staff until the Council gives direction on the item. The Mayor shall determine when three hours of effort has been utilized. D. If an item appears again in a future Council meeting, it shall be heard under Old Business. Items placed under public hearings shall only be those that are defined by law as requiring a special notice and a public hearing or those called by City Council on its own volition. E. In order to ensure that all members of the public have an opportunity to speak and that the Council is able to complete its business,there will be a three-minute limitation on comments by the public except for applicants and appellants at public hearings or as otherwise provided by law. In order to effectively enforce this rule, the City Clerk will monitor the time for each speaker with an electronic timer. The timer will beep at the one- minute remaining point, and again at the three-minute point. If there are more than twenty (20) identified speakers for one item at the beginning of the public comment period or public hearing,the Mayor may adjust the three-minute time down to two minutes per speaker. F. Closed sessions of the City Council shall generally be conducted prior to the 7:00 p.m. business portion of regular meetings. If necessary, Closed Sessions not completed prior to the 7:00 p.m. business portion will be considered at the conclusion of the business portion of the meeting, or as otherwise determined by the City Council. Special Council Meeting may be called by the Mayor with proper public notice. G. Members of Council should not engage in debate with a member of the public or Staff at Council meetings since these debates seldom resolve concerns and many times inflame feelings at a public meeting. Any concerns by a member of Council over the behavior or work of a City employee during a Council meeting should be directed to the City Manager privately to ensure the concern is resolved. H. Prior to the close of the public hearing or comment period Councilmembers may ask 1 157 questions of anyone in the audience. The public hearing and comment period are the times for Council to receive evidence. Once the hearing or comment period is closed, the Council deliberates based on that evidence. While Council may elect to re-open a hearing or comment period(assume no prejudice to the rights of an applicant or appellant) it should make every effort to get all the information it needs while the hearing or comment period is still open. If the Council asks questions after the final presentation of the applicant/appellant in a permit-related hearing the Council would need to provide the applicant/appellant with an opportunity to rebut the answers to the questions. While these rules need not apply as strictly to hearings where due process is less of an issue (i.e., an ordinance amendment) a uniform set of rules for all public hearings and comment periods is desirable. I. The Mayor may, with Council concurrence, schedule Council review of agenda items out of their prescribed order on the printed agenda if a large number of the public are present to speak on agenda item. J. Persons in the audience will refrain from behavior which will disrupt the public meeting. This will include making loud noises, clapping, shouting,booing, hissing or engaging in any other activity in a manner that disturbs, disrupts or impedes the orderly conduct of the meeting. Persons in the audience will refrain from creating,provoking or participating in any type of disturbance involving unwelcome physical contact. Persons in the audience will refrain from using cellular phones and/or pagers while the meeting is in session. Appropriate attire, including shoes and shirts, are required in the Council Chambers and other Council meeting rooms at all times. Persons in the audience will not place their feet on the seats in front of them.No food, drink(other than bottled water with a cap), or chewing gum will be allowed in the Council Chambers and other Council meeting rooms, except as otherwise pre-approved by City staff. All persons entering the Council Chambers and other Council meeting rooms, including their bags,purses,briefcases and similar belongings, may be subject to search for weapons and other dangerous materials. Section 2. CITY COUNCIL RELATIONS WITH CITY STAFF A. There shall be mutual respect from both Staff and Councilmembers of their respective roles and responsibilities when and if expressing criticism in public session. B. City Staff shall acknowledge the Council as policy makers and the City Council shall acknowledge Staff as administering the Council's policies. C. All written requests for information or questions by City Councilmembers to Staff shall be directed to the City Manager, City Attorney, City Clerk, or Department Managers (wit h a copy to the City Manager). All complaints should be submitted to the City Manager or, if a complaint concerns the City Manager, to the City Attorney. D. All written informational material requested by individual Councilmembers shall be submitted by Staff to all Councilmembers with the notation indicating which Councilmember requested the information. 2 158 E. Council shall not attempt to coerce Staff in the making of appointments,the awarding of contracts, the selection of consultants, the processing of development applications, the granting of City licenses or permits. The Council shall not attempt to change or interfere with the operating policies and practices of any City department. F. Mail that is addressed to the Mayor and City Council shall be circulated by the City Clerk to the City Council with a comment as to which Staff person will be assisting the Mayor in preparing a response. The Mayor's response, in addition to the original communication,will be submitted to the City Council for their information. G. The City Clerk shall not open mail addressed to an individual Councilmember unless requested to do so by the Councilmember. H. Individual Councilmembers shall not direct Staff to initiate any action or prepare any report that is significant in nature or initiate any project or study. All such direction shall be provided by the City Manager or by action of a majority of the City Council at a City Council meeting. Councilmembers may ask for limited resources and information for items that are on an agenda as long as any information is distributed to all City Councilmembers Section 3. CITY COUNCIL AND COMMISSION RELATIONSHIP AND RELATIONSHIPS WITH OTHER CITY COMMISSIONS AND OTHER BODIES A. Members of the City Council should not attempt to influence or publicly criticize commission recommendations, or to influence or lobby individual commission members on any item under their consideration. It is important for commissions to be able to make objective recommendations to the City Council on items before them. Members of Council that attempt to strongly influence commission positions on an item may prejudice or hinder their role in reviewing the commission's recommendation as a member of the City Council. B. Individual Councilmembers and Commissioners shall have the right to attend meetings of other governmental bodies but shall refrain from speaking or becoming involved in the meeting's discussions. If asked a question,the Councilmember persert or Commissioner should indicate that he/she can only provide a personal opinion and does not speak for the Council or Commission as a whole. C. If a member of the City Council or a Commission appears before another governmental agency or organization except as a member of outside agency appointed by the City Council to give a statement on an issue affecting the City,the Councilmember or Commissioner should first indicate the majority position and opinion of the Council or Commission (if any). Personal opinions and comments may be expressed only if the Councilmember or Commissioner clarifies that these statements do not represent the position of the City Council or Commission. 3 159 Section 4. CITY COUNCIL HANDLING OF LITIGATION AND OTHER CONFIDENTIAL INFORMATION A. City Councilmembers shall keep all written materials and verbal information provided to them on matters that are confidential under State law in complete confidence to insure that the City's position is not compromised. No disclosure or mention of information in these materials shall be made to anyone other than Councilmembers, the City Attorney or City Manager. B. All negotiations and other contacts concerning matters that have come before the City Council in closed session(including,but not limited to,property acquisition or disposal, a pending claims or litigation, and/or employee negotiations) with the other party and/or party's agents or other representatives shall be limited to, and made by, the designated City staff representative handling the negotiations, claim or litigation unless the City Council has directed that a specific Council member to assist staff in negotiations. Except as authorized above, no Councilmember who has participated in any closed session shall have any contact or discussion with the other party or its agents or representatives concerning the matter under consideration except during public meetings of the City Council. All public statements, information and press releases shall be handled exclusively by the City's designated spokesperson. Section 5. BUSINESS OF THE CITY COUNCIL A. Seating Arrangement of the City Council—The Mayor shall be seated on the left of the five members of the City Council. The Vice Mayor shall be seated to the right of the Mayor. The Councilmember with the most seniority shall be seated to the right of the Vice Mayor and the remaining Councilmember shall be seated to the right of the most senior Council member. The outgoing Mayor shall be seated to the far right of the Vice Mayor. When there is no outgoing Mayor the remaining Councilmembers shall be seated based upon length of service on the City Council with the most senior member seated to the right of the Mayor. In the case of members having been elected at the same time, seniority shall be determined by the number of votes received at the election. The highest vote getter shall be considered senior and so on. The City Clerk shall arrange nameplates at the Council dais at all Council meetings to assure this seating arrangement is followed. B. City Council Reorganization—The City Council Reorganization shall be held at a special meeting before the first regular meeting of December and after the certification of the election results during election years. The floor shall be open to nominations for the purpose of electing a Mayor and Vice Mayor to serve for the following year. Such elections shall be made by majority vote of the Council members present at the meeting. The Mayor and Vice Mayor shall assume the duties of their respective offices immediately upon election. The Mayor and Vice Mayor shall serve a one-year term at the pleasure of the Council. In election years the date of the special meeting referenced above may be changed by the City Clerk as necessary to ensure compliance with State election laws. 4 160 C. Mayor and Council Roles—The Mayor shall act as the primary spokesperson and official representative of the City Council,unless such responsibility is delegated by the Mayor, or otherwise assigned by a majority vote of the City Council. The Mayor shall preside at all regular, adjourned, and special meetings of the City Council, including joint meetings with commissions and closed sessions. The Mayor shall execute all official City documents, warrants and correspondence approved by City Council. The Mayor shall serve as the primary contact for the City Manager to provide direction and advice regarding routine planning and operational issues (i.e. meeting schedules, dispositions of correspondences, etc.)Nothing in this section is intended to suggest that the position of Mayor wields formal power or authority in excess of the other members of the City Council. Rather,the person serving as Mayor is to be recognized as the leader of the Council, or first among equals. The Vice Mayor shall serve and perform the functions as Mayor in the absence of the duly elected Mayor. D. Council Committee/Agency Assignments Every December immediately following the City Council reorganization the Mayor shall announce that new appointments for Committee/Agency Assignments are necessary. A list of committee/agency assignments shall be given to each Councilmember and each Councilmember shall provide the City Clerk with a list of the Committee/Agency Assignments in which the Councilmember is interested. The Mayor shall propose appointments for Council approval at the City Council meeting immediately following the reorganization. E. Ex Parte Communications An Ex Parte Communication occurs when a Council member receives information from a member of the public outside of a public meeting concerning a matter to be heard by the City Council. Ex Parte communications are an inherent part of the City of Saratoga's commitment to allowing City residents ample opportunity to consult with elected officials both inside and outside of public meetings. At the same time, the City is committed to the principle that the business of the public should be conducted in public, to ensure that citizens are afforded the opportunity to participate in the making of decisions that affect their lives, and the means to evaluate choices made by the City and its officers. Where a City Councilmember has received information outside of a public meeting that the Councilmember believes has a bearing on the decision and that is not reflected in the staff report presented to the Council and the public, the Councilmember should provide that information to the rest of the Council and the public following the staff report and prior to beginning of public testimony on the matter. This will allow the public and other members of the Council to consider the information in forming their views on the decision at hand. In addition,persons affected by the decision will also have the opportunity to know the evidence on which the decision is to be based and have an opportunity to comment on it and, if need be, to rebut it. This approach allows all members of the public access to elected officials and to the rationale for decisions made by those officials. 5 161 F. Issuing Proclamations and Commendations A proclamation is prepared at the discretion of the Mayor to proclaim a specific date or event. Proclamations are prepared for signature by the Mayor. They may be presented at a City Council meeting or at an event or meeting outside the City Council meeting. A commendation is prepared at the discretion of the Mayor. A commendation may be issued for accomplishments such as: • Athletic/academic accomplishments • Act of heroism • Youth Accomplishments • A Community Organization's Citizen of the Year • A Community Organization's Business Person of the year • Outgoing elected officials • Outgoing City Commissioners Commendations are prepared for signature by the Mayor. They may be presented at a City Council meeting or at an event or meeting outside the City Council meeting. Section 6. RULES OF ORDER AND PROCEDURE FOR CITY COUNCIL MEETINGS A. Time of Meetings Regular meetings of the City Council shall be held on the first and third Wednesday of each month in the Civic Theater commencing at 7:00 p.m. Special meetings shall be held as necessary and convenient on the second or fourth Tuesday of the month commencing at 7:00 p.m. or at such other time as may be necessary or convenient. B. Order of Agenda The following is the usual order of agenda items for regular Council meetings. The Mayor with the concurrence of Council can change the order in which items on the agenda are heard. • Open Session—The Mayor opens the meeting in the Administration Conference Room at City Hall, to allow the public an opportunity to comment on closed session items before the Council adjourns to Closed Session, as required by law. Commission interviews are also done at this time. • Joint Meeting with City Commissions—Reserved time for Commission members to meet with the City Council for their yearly update. • Closed Session — Immediately following open session, the Council adjourns to closed session in the Administration Conference Room at City Hall. Start times may vary depending on volume of closed session items and the estimated time required to conduct the closed session. The items are listed on the agenda as required by law; however this meeting is not open to the public. • Mayor's Report on Closed Session—The Mayor is required to announce any action taken during closed session before reconvening to the open session of the regular meeting. 6 162 • Call to Order—the Mayor calls the regular meeting to order. • Pledge of Allegiance - The Mayor may lead or call upon a member of the public or staff to lead the pledge. • Roll Call — A quorum constituting 3 of the 5 members of the Council is required to conduct any Council meeting. The City Clerk calls the roll. • Report of Posting of the Agenda—The City Clerk reports on the posting of the agenda as required by law. • Oral Communications — During this portion, any persons who wish to address the City Council on a subject not on the agenda may do so. Oral communications are not intended as the means for debate or decision-making, but only for making a presentation in person. Comment shall be limited to three minutes for members of the public who wish to speak • Communications from City Commissions — Reserved time for Commission Chairs, or designated representative, to report information to the City Council or request direction. • Council Direction to Staff—Reserved time for the City Council to request follow up on Oral/Commission Communications. • Announcements - Reserved time for the Mayor to make special announcements. • Ceremonial Items—These items include presentation of proclamations, commendations, appointments, administration of Oath of Office and special introductions. • Special Presentations — reserved time for groups, agencies, persons to speak to the Council on special items. • Consent Calendar—These items are routine and non-controversial items of business. Items in this section will be acted in one motion, unless removed by the Mayor or a Councilmember. Any member of the public may speak to an item on the Consent Calendar, or request the Mayor remove an item for discussion. Resolutions concerning decisions made at previous meetings are for the purpose of memorializing the decision to assure the accuracy of the findings, the prior vote, and any conditions imposed. • Public Hearings — There are two kinds of public hearings, those required by law and those called by the City Council of its own volition. In either event, the purpose is to provide an opportunity for all interested persons to be heard. Applicants/Appellants and their representatives have a total of ten minutes maximum for opening statements. Members of the public may comment on any item for up to three minutes. Applicant/Appellants and their representatives have a total of five minutes maximum for closing statements • Old Business — These are general items, which have been considered by the Council at a previous meeting. • New Business — These are general items, which have not been previously considered by the Council. • Council Reports on Committees— Provides members of the Council an opportunity to report on agency/commission assignments. • City Councilmember Items — Provides members of the Council an opportunity to introduce discussion/action on items not currently before the Council for consideration. • City Manager Items—City Manager or City Attorney may bring up other items of interest or make announcements under this section. • Adjournment—The Mayor may adjourn the meeting to a date specific. If no date specific is announced, the next meeting will be the next regularly scheduled Council meeting. 7 163 C. Disruptive Comments and/or Conduct No person who addresses the Council shall make any belligerent,personal, impertinent, irrelevant, redundant, slanderous, loud,threatening, abusive or disparaging remark, statement or commentary toward the Council, staff or other individuals in a manner which disrupts, disturbs or otherwise impedes the orderly conduct of the Council meeting,nor shall any such person engage in any other disorderly conduct which so disrupts, disturbs or impedes the orderly conduct of the meeting. Any violation of this rule shall be grounds for terminating the person's comment period. Continued inappropriate behavior or comments, after having been directed to discontinue, also shall be grounds for removal from the meeting. Council shall not be belligerent or make disparaging commentary toward the speaker.Nothing in this section shall prohibit or discourage orderly criticism of any City decision or policy within the limits of these rules. If a member of the public fails to follow these rules after being warned once,the Council may bar that individual from further testimony for the evening or remove the person from the meeting. 8 164 CIT'1 OF SA RA'IIC G A RUILDS C P PA RLIAMENTA RM PHO CEIIUIRE' Saratoga's runes ofparliamanlaryl procedure ara suppariad by llha following four flriniciplws: 1. Mulas should astabllish ardor. The first purposes of the rules ciflparliamantaryl procadune is la est abllisll a ftramework for the oidei ly conducit of meetings. 2. Rullas should ba claar. Simple rules lead 1ci wider understanding and participation. Comf lex rules create tveo classes; those veho understand and participate and those wliei do not flully understand and do not flully f articiip ata. ?I. Rules should ba usarl-fi•ienidly. That is, the rules must be simpla enuugli that aitizans feel they have been able to p anticipate in 11he f r ciwess. 4. Rules shau:ld eniforcle 1ha will of tha majarity whila pralaeting the rights of tha minicirity. The ultimate purpose of the rules ciflf rciciedure is to eneounage disclussion and to facilitate decision-making by the body. In a democr awy, the majeiritm rules. T11e rules must enable the majority tuff express itself and flashicn a result, while permittingl the mineiritM to also axpress itselflllblut ncit dominate); and fully) participate in the process. The Chair arson Should Talde a Bauk Sciat During Discussions Whila all mamberls of tha govarning bocy shou d know and understand 1ha runes ofparlliamanlaryl procedure, ill is llha chairpersons(uhah, who is changed willh applying llha ruffles of cianlduct. The clhah shaulc be we 11 verlsad :in thosa mulles, bacausa llha uhairl, fbn all intents and purposas, malas llha finall rulling cin the ruaas. In fhcit, all decisions by 1ha chain arw final unlass overruled by the governing body ilsalf. Baciausa the chain cionducils the meeting, 11 :is common uourtasy fbrl 1ha chair to lakla a lass aalive roaci than other) mlambers oflthe body in dabales and disciussicins. This does not rraan that 1ha chair should not particiipate in tha debata or discussion. Cn llhci conttlaryl, as a mlembetl oflthe Cody, the chair has full fighlls la particlipata in abates, discussions anic decision-makling. Tha chair) should, however), slrlive la be 1ha hast to spear at the dilsclussicin avid debata stage, and should not makle cr saeiond a mlcilion unlass he cr sha is aonvinclad that nut other) mamlbarl of 1ha body will] do so. Thiel Basic plormat for an Aglenda Item Discuiision All City Council and Carrimission meetings hava a wnitlen, publishac agenda. Tha mewling:is gavarnac by tha agenda anc the agenda canstiilutes tha agraad-upon road mlap for 1Ihw mewling. Each agenda item should t w handled by the chair in tha following basic fbrmall. ' These rules of parliamenilar)]praceduire are based on"hloscnllerg's RluAcLv cfOrdeir: Slimple Parliamenilary] Procedures for i1he 2]s1 Century"written bN Uaw RasarnNarg and puHishad bN 1he League ofIC a]ifdrnia Gtim in 2(103. Tte plrocedwies set fartll in Rloscii1lerg's have];eer madiflec sliglhilIN 10 reflect cusil am,plracilice,and splecific cade requirements in Saralagla. While iliese rules have Heen drafted to carifunn 10 requirements aflSliate lane and i1he Sarataga Clity Cade,in i1he evert of a ccmflicl Eetween these praceduires and thase laws,tha:Iami9 shall gaverri. 165 First, the al aii shaulc 6ciailyl ainnounaci the agenda item nurrbear and shauld cload)l stala whail the sub"laat is. 'Ilhe ahaii shauld then announaea thea format that will be fblllowod. If an}l mcarrbear of thea bocy has a oonfllicil of idaresl, that member announces 11 he conff Cit and necad f r recusal anc laavcas the dais at this dime. Seaeiond, ftilllow:ing That agenda formal, 1ha ahaii should inviila tha appicapr:iate pcacaplla i a report on 1ha ilem, including any neacamimendatian theyl miplhl have. '➢hca approplriatca person may ba the chair, a member aflthe govcamn ng bcadyl, a staflflplerson, or a aommilllee chair changed wiilh praviding informatian about 1ha agenda itcami. Third, llhca chain should ask membans of 1ha bodyl ifltheyl hava any licachnicall quaslions for calarifioalion. At ilhis plcainl, members of 1ha governing bodm may ask clarifying questions to the pcacaplla wha ieplorted on 1he item, and theyl shauld be givan tima to respond. 19ourtli, ilf a chair shou d invita public commamis car, if aplplrcaplr:iale al a formal public haarinpl, oplen the haaring. Spcaaklers are 1}lplicallM limited to 3 minutes; shcarler time lim:ls maM be imploscad if numarous mcamibars aflthe public indioata a dasinca to speak la tha subjeol. Al tha conclusion of 1he plubl:ia commanls, tha chair should announce that pull lic inpuil has conclludad (Jar that the public haaring, as the aasa may ba, is closed). Bifth, the chair shauld invillca mcamibers aflthe bady to maks remarks on 1Ihe mailler. This is an opportunity fbn members of 1ha body to state thein views on 1ha sub jact baftara anyl farm ial mal ions ai a made. Sixth, the ahaii shaulc inv:)a a motion from the gcavcaming bcadyl miambers. 'lha chair should announca the name cif lthe member who makas the mail ion. Seaveantli, the ahaii shaulc detarrrina iflany member of 1ha body wishes li a scacaond the motion. 13hca chair should annaunaa the nama of tha membcm who seconds the mialion. 11 is normally gooc ppiacticae fbr a mallion to raquiia a saconc befoia p(rocecading w:ilh ill, Ica ensura thal it is not just one miember cif the body who is inlaiesled :in a plaraicular approach. Howavar, a scaaonc is not an absolute i aquii emenil, and 1ha ahaii can plraaaed with aansidenallion and a vote can the motion avan whcan there is no saconc. This is as malter left to tha discuatian aflthe ahaii. Eiglithl, if 1ha mailion is mac ca and seoondcad, tha chair should miakla sura evaryone undersl ands the mal ion. Th i s is dons in onca ofl thncaca walls: 1. The al ai i can ask thea makar of tha motion 1 a r epleall it; J. The ahaii can repeal lho motion; or 3. The ahaii can ask 11 ha secrellaryl on 11 ha cicark ofIthe badyl 10 riepeal the motion. Mn th, tha chain should novo :i nvJ1 a di scussi can cafI the motion byl 1 ha mum burs of I the govcarn:ing t ody. If lhare is na desired d:iscussican or the discaussion has ended, the ahaii should announce that the t ody will vota on the motion. If lhare has bacon no disaussion or 166 a vciry brieif discussion, thea vole should prioceieid immiadiatcalA, and there is no need to rapeal the motion. If lhate has t caan substanliaa discaussion, it is ncarmallyl bcist to malcei surra every ona underisl ands the motion byl rapaating it. Tenth, the ahair lakes a vale. Simplyl asking fear the "ayles" and than thea "nayls" :is normallyl suffioiant. If members of Thea bodA do not vcala, then 1Ihoy, "abstain." Unlcass specaifio lavas or ptocaedutes ptcavida othcarwise, a s:impla majority dellarmines whealhet 1Ihca mot:ican passes or :is dafaatad. Elewinth, tha chair should anncaunca tha result of the vote and should announoei what aolion(iflanA: the bcadyl has taken. In annaunaing the riasull, the ahair shcau:ld indieala 1ha namcas caflthe miambets, if anyl, who vollcad in 1ha miincarity on 1ha motion. This announcaemcaml might take the following fdrm: "31ha motican passes bA a vola of 3-2, with Smith and Jcancis dissenting. Wei havci passed 1ha mcallion requiring 10 dayls' notioei for all future meetings of This governing body." Motions in G eanfaral Motions aria llho vehioles for decis:ionmaking. It is usually best 1Ica have a motion t cafbrca the governing body prior to discaussing an agenda flem, to healp cavcaryone fdaus on 1ha motican before them. The chair usual l y in:i I i atcas l hei m al i on byl: 1. Inv:iling 1Iho momit cars to mak a a motion: "A motion all this dime would bo in ordar." 3. rluggesling a mot.ican to 1Iho mcimibers, for examplla: "A micnlion would ba in ardor that wci give 10-dayls' notioa in the futrlrci for all our mcieitings." 3. Making the micalion. As ncaleid, the ahair has civery tight as a member of lhei bodyl 1Ica make a motican, but normally should do so onlyl Ube or she washes a motion to be miade t ut no other mieimber seems willing to do so. The Thlnaei Basi a Mcatf cans Thme moticans arca thci mosl comm can: 4. Tha Hasaic mcati an. Tho basic motion is 1ha one that puts f6miarid a decision for ocansiderallion. A basic rr alion mighil be: "I move That we cmeata a five-membar comm:ilteci to plan and purl on out annual fundraiser." 3. The mention alta amifand. If a memt ar wants to change a basic motion That is uncari discussion, he or she would micavca to amend i1. A motion Ica amcind might ba: "I move That we amend 1ha mcalion to haven a 14-mieambet committee." A 167 motion to amcand tak as 1ha basin motion That is bufona thea body anc saekls to change it in scamie way. 6. THei siuWitillute m otican. If a mcamiban wants to aompllcrtelyl c o awa}l vuith tha basi e mical i on underi d:i seussi an and put a nava motif an bafora the gcavcarning bod}l, ha or she would "micavca a subslitutca motion." A subslitutca mot-ion might ba: "I move as subst:itcll e micas ion thal we cianee l the annual fundnaisan th:i s ycaan." Mullions to amianc and substitute motions ane often cicanfusud. But Ihuy ane quile diffdrunl, and sca is iIhc iii affcacit, if passed. A motion to amend seeks to ruta:in the t as:ici motion on the floor, but to modify]it in soma W U. A substitute motion seeks to thiiow uuil the basic miolion on i1hu floor and subsilitute a naw and diffdrunt mollion fon iil. 'Ilha decision as to whethan a micilion is naallyl a moilion to amend ori a substillula motion is Icafi to 1ha ahaiii. So thall if a mumiban makas what thall memt car calls a mialion to amend, buil the cihair ccrterm:incas it is wally a subslitutu motion, tha chair's dcasignailion governs. When Multiple Motions Are Heifl t a THe G over nin g Body Up to thrau motions maybe on the f cion s:rrultanaousl}l. Tha chair may nejcacit a fourth mullion until the thnue that aura on 1ha f oori have bean nascalvad. When Iwo on three motions ane an the flocir(aftcan motions and se(ionds) at 1ha sama tima, Ihu finst motca should ba on lila laasil mot=ion made. So, fear examplca, assume 1ha firisl moilion is a basica "motion to heave a fivae-memt car commiltea to plan and pull on ouii annual fundriaisen." During the discussion oflthlis motion, a member might make a second motican to "amend the main motion II ca have a 10-mcamibur committee, not a fiiva-member ciommitllee, to plan and put on our annual fundraiser." And perhaps, during That disaussiican, as mamit car makes yell a Itliiid mot=ion as a "subsilitutca mofan that we nal blame an annual fundraisan thus ycaan." '➢he propan proacadurca would ba as follows. Flirisl, the cihairi would deal withl lila 1Ihird (the last) mollion on tha floors, Ihu sut stipule micalion. A ften di seussi on and dabal a, a motca would be l aken first on thle thirid motion. If 1ha subst it ul e miolion passes, it would bu a substituila fon 1ha basin motion and would calim:inale it. Tha finsl micalion woulc be micial, as would 1hu second moilion (wHicih soughlt to amend thle first motion), and thle action on thle agenda item would t ci eompl ile. No vote would bci takcin can thle first or seacand motions. On ltlei othcar hanc, iiflthca substitula molion (thle third mot=ion) failcad, thci chla:ir would prioccacac to cican&idcaraaliori of 1ha second (now the last) mullion on the flocar, 1Iha mot=ion to amend. lflthle subslituta motion failed, 111a cihaiir wound thlen dial wilIh thle second (novo thle last) molIion can the flocar, ilhci moticin to amand. The c isaussion and dat ale would focus strictly on thle amendmanil (should 1ha aomimiittau ba fivae or Ull mcamt cars). If lila motion to amiand passed, the chair would novo movae to considan 1Ihca main motion (Ithe first motion) as amiandad. If tha mot=ion 168 la amearid f�ilead, 1Ihea chair would naw micavea to considear the main rr alion (the finsil motion) in itis original fbrmal, nal ameandead. Tlhiiid, the ahaiii wcauld now decal wilh the finsl moJon thail was placead Gari the fllcacm. Thea original motion would either be in its origina format (five-membear commiflee) or, if amended, would bei in ails ameindeid fcirmat(l0-memtear commilteei'. And thea question on thea f oor fbr discussicm and decision would be whethear a commitlae should plan and put on thea annual fiindnaisaii. 7Mo Dfibate cu Not to Debate The basic ru ea of mail ions is that they ara subjecil to c isieussion and debala. Accordingly, baasic moticiris, motions to amend, and substitue motions are all eligible, each in ilheain turn, for full discussion beafl`mea and by 1ha body. Thea debatea can continue as long as meamibears (if Ithe body wish to discuss an ilem, subjaat to thea decision ciflthe chair That it is times to rn avea on and lake action. Thearea area exceapil ions lo thea generiall rule cafl fnee and open dobal a on moil i ons. Thea eaNiceptions all] apply when lheare is a deasiriei oflthea bocy to micavea on. The fbllcawing rrcalions are not debataatIa (thal :i s, wheari the fl`alIowing motions are made and seacondead, Ihea chair musl immediately calll for a vole of 1he body without c abate on the motion): A motion to aadjouin, This motion, ifpaassead, reaquireas the body Ica immeadiaately adjourns to its next reagularly schedulead meeling. This moilion requires a simpla majonity votes. A moilion to reccs,& This malion, iflpassead, nequireas 1ha body to immedialely lakle a rieeeass. Normally, the chair dealermineas thea lleangh of ilhea reeeass, which may range ftom a few minwleas to an hcaun. 11 requirieis a simples majcarily vote. A motion ala fix We time to adjourn. This mcalion, iflpasseid, riequires thea bocy to adjcaurn thea meauting at Iho speaeifia time sell in 1ha rrcalion. Fl or eaxample, the motion rrighl be: "I rr avea wa adjcaurn This meealing al m:idnighil." It reaquireas a simples majcariity vote. A motion to tables. This rrcalion, ifIpassead, inc aqu:ireas ciseussicari oflthe ageanda ilam 10 be halted and the ageandaa :item to be placead on"hold." The moilion may ccanilain a sped fie lime in which 1ha illeam can coma back to ilhea body: "I moves wa Mable This iturr until our neagullan meiating Kiri Oclobeui." Cr thea motion may ecantain no speeifiica tirre fbri 1hu retim oflthe item, in which case a motican to lake thea :item cafllthe lable and bring it backl to the body wi l have to be taklen at a future meeiling. A motion Ica tablea an item (J ar to br'ng it t ackl to the t ody) riequireas a simples majcarily votes. A motion to limit dellatc. The micast common form caflthis motion is to say: "I move the preavious question" or"I moves thea queslion" or "I call fcan the question." Whean a memberi cafIthe beady rrAles such a micalion, the miamber is reaallly saying: "I've had enough dabato. Ilet's geil on with Thea votes." When such a moticari is madea, thea chair should aaskl fbri a seaccand to ilhea motican, stop debail a, and vote on the motion Ica lirrit dubala. Thea motion to limit dubala neaquireas a two-thirids vote cafIthe beady. Note that a motican to ]limit dabatea aould :inaludei a timea limit. Flori eaxample: "I rrcavei wa limit cabate can this agenda itami to 1fl minutos." Bvean in this format, 11a motion to Ilimiii debatea requires a two-thirds votea of the t ody. A sim:illar moiI ion is a motion to object ila considearation of an iteami. This 169 micalion :is not debatable, and :iflpassed, piiec:ludcis 1ha body]fiiom uvun considuring an item an the agenda. It alsca requires a two-lhiiids vale. Majority and Super-Majority Votes In a domocnacyl, decisions anis made wilh a simple mia'ority vale. A tia vote means thea motion f�ils. So :in a fiivu-trumber body], a votes of^I-2 passers the motion. A vote of12-3 wilh one abstention means the motion flails. If one member is absent on rcaausnad and the voila is 2-:1, thea motion sil i ll f�i l s. All mcalions require a simple majarilyl, buil thnmci are a f6w eaxcaeptions. The oxciafltions occur whean thci bodyl is taking an acilion that ufftictivulyl auils cifllthe aabiliily ofla minority of thea body]to 1laklea an aciJon or discuss an item. These axtraordinaryl rr alions reaquira a twca-iihirds majority]Ila supeir-majority] to pass: Motion fa limit dEihate. Whnalhar a member says, "I mcavna the provicius question," "I move ilhu queslion," "I ciall for the quu9llion" ars"I move Iolimit debate," it all] amicaunts Ica an altcimpil to caul off Ihei ability cafIthe minority]to discuss an item, and it raquireis a two- thirds vote to pass. Motion to close nominations. When cahcaosing offiaems cafIthe body], such as the cahairi, nominailions ara in ordear e:ilhaii from a nominaling aommittnaca on from 1Ihea flooii of Ihei body]. A motion Ica close nominations effecalivelYl cuts off tho right of Ihei minariq to nominala offiaears, and it nciqu:ircis a twlo-thirds vote to pass. Motion to object to 11he consideration of a question. Normally], such a rr alion is unneacassar51, tmausci thci objealionable item can bei tabled on doftiated straighl up. Hlowcivcir, whein mcimbors cafl a b odyl do nal even waml an item can the agenda to b u cacansidened, thein such a micalion is Kiri order. 11 is noel debatab Ila, and it squires a Iwo-thirds vollu to pass. Ma lican to suspend the rules. This motican is debatable, but iniquities a twca-1Ihirds voila to pass. If iho body]has ills awn rulcis cafIordear, cacandual on procedure, this motican allows the bcadyl to suspend thea ruffles fbti a partieulan purpose. Hcar examplca, thea bodY1(a pnivale calub, might havea a reale prohibiting the atileanc anae at miuetings byl non-club meamburs. A motion Ica suspend thci rules wcaulc be in order ]Ica allcaw a non-calub memo cir to altend a mending of thea club can a particular data or on a particaular ageinda item. Thea Motiun to Reconsider Tlhure is a special and unique motion thail requires a bit oflexplanalion all] byl :ilsult thea motican to raconsidear. A tenell of pan:liamenilary piucaedum is final:ilM. After vigor aus discussion, debate and a votna, Ihare must ba scamei alosutie to thea issuca. And so, aftcir a votes is taken, Ilea malter is c eiemed closed, sub'eal onlyl to reopening ifla prcapur mot:ican to tieaonsider is miadu. The silandarfc s r reaconsidoration arei set fcarll in the CilM Coda. 170 Counteiiy aind Ucicorumi 'Ilha rulers aflorclar area meaml to ciraato an atmospheirei whore lhei mcimibars aflthe body) and the members of lhei publics can attond to business eiffic:iemlly, fairly and with full participation. And at the sama time, it is up to the chair and the members of lhei body to maintain common ciaun eisy and deaarum. Unlciss the scilting is varyl informall, it is alwa}is beisl for onlM one parson al a timiei to haves thea floor, and ill is allways best for everyl speaker to be firsil reciognizod by the chair 11 ciflrirci proaeed:ing to spaakl. Thee chair should always einsure lhat clabate and discussion oflan agonda itomi focus on the itorri and 1ha po iciM in qucisilion, not on the parsonaliticis aflthe members of thea body). Dleballei on poliaM :is hcialthM; clabate on persanalitieis is not. 'Ilha chair has llhci right to cut offAisaussion thall is ilao porsonal, too laud or too crude. Dleballa and discussion should 11ci focuseid, buil free and open. In lhei imleireisil of time, the cihair may, however, limit lhei time allotileid to spoakars, :inaludind members of lhei body. Can a miamber aflthe 11 oclM inlempl thea spciakler? The geinaral reale is na. 'Ilhare arca, howavar, axaepticins. A speiakler may be interrupted for the following rciasons: Privilege. 'Ilho propeii inlemplion would be: "Paint of pn:ivilege." 'Ilhei chair would then askl llhci intorruptem to "state your poinl." Appnopniate poinils oflpnivilege reilato to anything That would inlenfene willh the normal ciomiffvirl of llha meciling. Por axamplo, llhci room miaM be loci hot or loci cold, or a blowing fan miighl imleirfOrei with a person's ability to heiaii. C nden. The pnopen interruption would bcr "Hoint oflondeir." Again, lhei chair would ask ilhei inileirrupplem to "slates your paint." Appropriate paints oflordem iielale to anything lhat would not bei cionsideuied appropriailei aanducil of llhci meciling; fon oxample, if lhei chain miovad on to a vote on a motion ilhat pcirmiits deballei without allowing that discussion on Globate. Appeal. Iflthe chain makes a ruling ilhal a memllcin oflthe body)disagnecis wilh, 1Iha1 miemben miaM appeal llhci roiling oflthe chain. If the mialion is seconclad and aflleii deibale, if it(lasses b}1 a simple miaioli ty vale, then lhei ruling oflthe chain is doemed ravemsed. Call for ondens oil lAe day. 'phis is simply anolll eir way of saMing, "Bet's return to tho agenda." Ifla mieimben bolieves 1Ihal llhci bodM has driftcid fiiomi the agneied-upon agenda, such a cial may 11 ci madc. It does not neiquine a vote, and when llhci chain disaovcirs That lhei agenda 1 as nal been f011owcid, llhci chair simplM romiinds the body to raturni to lhei ageinda iteim ptiofleidy bcifore them. Iflthe chair fails Ila do so, llha chain's delleirminatlian may bei appeal)eid. W itHdrava a motion. Duping dcill ate anc discussion of a motion,thea maklen of the mialion on llhci floors, at any timiei, may inlerruipl a spciakleir Ila wilhdnaw his an hcui motion from the floor. Tha motion is immediately deemac! withlch awn, allhaugH lhei chair may ask lhle penson who seconded lhei mialion ifhei or she wishes to makla llha motion, and any alhan mcimibem may make lhei moilion if prapemly necognizcid. 171 Special Notes About Public Input Tha ruffles out inwd hene hulpl make macitings very] publia-friendly. But in additicin, and pan icularly for the chain, iil is wise iia remambar thnea spwaial ruffles ilhal apply to each agenda item: Rule O nw: Teil l thea publ is whal thea boc y will t w doing. Mules Two: Kleepl 1hw publ:ia :informcad while ilha body is doing i1. Mules THIi ewe: Whan the bcadyl has acted, lull the public what thw body did. Aubilic inpul :is casswntial to a haalthyl dcarricicniacy, and acammiunitM partiaipaticin in public mecalings is an importanil e:lwment caflthat input. 711hw challenge f r anycana chairing a publ:ia mcaaling is to aaaommodatca public inplul in a timely and clime-sansilive way, while maintaining silwad)l prograss i1hrough ilha agwnda itcamis. 'Dhw rulcas pricasentwd here fear conducating a mewling are offOrac as i1ciols for wffoctiuw Icaadan9hip and as a means of cavwloping sound put lic policy. P•`SARAIOGA\RE SOLIUTI\Rosenbcrg'<.Rules of Chde112ndRea din g010609(04-73-09;.doc 172 REISC LUTION NO. l(1-0021 RESIOLUTIC N C F THE CITYI COUNC IIJ 01l THF C I VYI C F SIARATO GA IMPIJEMENTING A PO LICYI FO R RIC 11ATIO N O P MAYOR AND MICE MAYIOR VNHERIHAS, Ca if6rnia Gavarnmant C cda Sacrticn 3680:1 pravic as that the Mayar and Mayor Pra Tam (if la general lava city is saleclad by a major ly voila (if tha City Council; and WHEREAS, said Gavarnmanl C odea Section c Jas not raquira nar provida for any particular procadure for salaciling the Mayor; and WHDREAS; lha Saratoga Muniaipal Code doas noel prov:ida a proeacLira fdr salccrtin€l thea Mayar and tha Mayor Pro 'Berri; and WHEREAS, an Deaambar 116, 2009, thea Saraloga City Council was provk ad wilh samples cflotheir California eitias' policia9 regarcing mayaral ralation; and WHEREAS, on Deaambar 16, 2009, tha Saratoga City Council caansidared astablisling a C aLaraail policy thail would prauide a melll ad for the salacaticri of Mayaja and Viae Mayor for the City of 'Saratoga; and WHEREAS, on December 16, 2009, tha Saratoga Cily Council waled to :implament a mayorall rotation poliay lhat wauld plana ilhe caounc:il caandidatas w:ilh the twa highast vote s in any arie alecalion inta a queuci to rotale into the position oflMayor ane Vliea Mayor. In eacah 'Saraloga Cily Council alecat:ioni, the candidalla withl 111a mast vales is placaed first ini the iaolat:ian cflthlat graup, ilho candk ate w11lh thle secand hig11esl votes is placed sccaor.ic; and WHEREAS, on Deaambeir 16, 2009,illi a Saratoga Cilly C ouneil direaled silaff la brain€l bacak a rasclution astablishind Council's nawly imiplamentad mayoral rollatian pohay at the next scahadulcd raguIar C ounail meeting on January Al, AlI(I. NOW, TIHDREIIHORIDI, BE IT RESOLVE11 tlial thea City Cauncil of the City oft'Sarartoga adapts a raesolut:ion asilablislling a mayoral ralat:ion pallicy whereby lha twa council caand:idatas w:ilh 1he highest votes in any onic e:lacilion are plaead into a clLaaue to ralaile into 111e pas:ilion oflMayor and Vlicae Mayar. In caacahl Saratoga C iity Counacill elcaat:icin, thca can&dala with thla most votcas is to be plaecad first in lha rotation of lhat group, thle caanididata with)illic saconad highest votes is to be placed secand. 11ha Mayar and Vlicc Mayar ane ahasen annually t y thle Cil Iy Council ffom annor.ag its members by thca affirmative vote of lhrce on more of 1ha Cour.acil Memit crs. In eacah City C ounac:iI caleclion, the person with 1Ihc most votes shla]] be plaecc first in thle ralat:ion of Mat group, the seeand hiighost vote getter w:111 bca plaaad seacond, arae in the yc ars whlena lhorc :is a thlind seat canleasl, thea lhirac highlest votca getter will ba placed lhirid:in thlat raalat:icin. Hlowowir, ilhca Council mcmbeara whlo raeccaivad ilhca thlind most votes :in an c lecilion glean filling thrlee seals will] not bei :in thle queuca fora eilhar Vicca Mayrir cr Mayon but waulc ba in notailion should Mea Cour.acil members IIraid]t:ianal ly notaling Ida thle V:icaea Maypra or Mayon position bca unavailabla ila serve in lhat rala. 173 In c asci of apflo:in:lmiant la the Clityl Council to fill a vaciancyl, that paiison will not be plac ai in riotalion foci iIha position of Mayen on Vida Mayjor. Each r.iaw election will daterm:ina the iiota:lion only fpm the group in thla:l elac tion. Shauilc any Chily Cour.ciil mamber nail be available la taka their regular pilace in the established rotation, the naxl person in 111a notalion will be aleval ad to the Mica MayKm's postilion and 111a rotation will continua as previously sat. BE IT HUIRTHIFJIM RE SOLVED, 1ha abava and fbriegoing rasoluti cin was passac. and adoptai at a regular meci ing of lha Satiatoga City Council held cin the 201h day oflJlaruary 2(110 byl the fbllow:ing vale: AY1HII: Counciilmarrbcm Chuck Aage, Hawarid Millcm, Mayer Mathllecm King NCES: Counciilmcffnbcni Gill Huntcni ABSTAIN: Nana ABSENT: Cour.ciilmiambaii Sus:ia Nagpal Kathlaen M. King, May AYIIEST: Ann 'lulilivan, City Cllcnik 174 lean Mayor avid Vice Mayor By Rotatiani M eth ac Mayor anc Vicc Mayor By Election 1998.95 ELECIIONRESIUITS 911 am (Mayor)* 9h ami (Mayor) E lleici iar Year 11. Wadey 2. %fait Bclgosianl IViae Mayalil Bagosian IlVice Maycrl Oaks 1999-2(10(1 BaElasian(Mayar) Bo®asian(IVay(in) Nor Bilecticir Yean Mehi ffEly(Vice M cyan) M ehafley(Vice Maycir) 20(10-01 ELECTION RER LIS Meh[ffey (Mayer) M ahAficiy(M ayor) Election Year 1. Bagcisi<Iri 2. %all ansa 0 h `Krelit+fib ice Maycir) S1 tit it QVicE M ay ar 20(11-02 9trElit(M ayon)* 91 veil (Maycin) Nor 9lectier Yean Bakeu(Vico M ayar)* HAEm(%ice M ay(in)* 2CI02-C'I EILECIION RE9LUr. Bclgcrsiar (Ma)ler) Sltieil l)Maycu( Election Yeiar 1. 9trE it 2. Kirig Waltcnsmith I%iae Maycri) Waltorismitil (Vice Ma)jar; 3. Kline 0103-014 Waltonsmil h(M ayar) W all ons rr ith(M ay(n) Nor Ellect for Yecrtr SI rElit(Viae M aycin) k in€l QVice Mayor) 2(041-05 ELECTION RESULI.' Strait IMayar) kingIWycu( Eleicticrn Year 1. Kao 2. Waltansmith King(�We Maycin) k Iin(i QVice Mayor) 2(10_1 016 Kin®(M ) �- a or * Kline(M ayon)* ayor)* N cv Ellecl for Year Kline(Vice M ay(in)* Kaa(VicEi M agar) 2(ICIE-C7 ELECTION RESULTS Kao lMayor) Klacl(Maycin) EWeictior, Yeian 31. PagE 2. King W a ItonsmO (VicE M ay on) W all Clrl:R it h 1%ice Mayc n) 3. h u ni er 2CI0-j-CIO W altansmith (Maycir)* W a 11 ons rr it h(Mayor)' Ncn Ellecticv Near Pa®e(VicE1 M aycin) Pa€le(dice Maycin) 2(ICI8-(SI ELECTIOA HISIULTS Pa@EI QMaycvj Pak e i M ayor) alt iclior YEiar 1. Millen 2. Naill:al M inEl(VICE M ayou) King Q�ice Maycin) 20019-10 Kin€l(Mayor)* King(M ayor)* Nor Election Year Hunter(�ice Maycin)* 1-unl en(VicEi M ayor)' * Indicates end cii temm cin Cl(iuncil ■ Aitvns far Mcryar nrd Vicei Mayan area cin Ei yecin in lercpil ftrcur Lleceimbeir i a DEicen tl ea ■ 19519:Maycu01hnw dieid it cfjice,1 ugust;I, 19519.Bcgcissiari was aesiglr ated Mcycr Ptro Teirrpane vt it it i hEi Ma)lor's glosil icv vciaart until the riext Council Reorgcinizaliari. ■ 2062-03:Shtit A elected cis MaNard}l Cawicilmcljarity crus cf trotaticn. ■ 2063-04:Sprit it trE lirquishes plocei it troilaitian.Eacil jubjeiSlueinil Ceuricll Fllcissiticn mcvEis u� in ratcliar. ■ 20661-01• "Nctvnal"rataticn re-estatllishec. 175 RDSOLUTION NO. 10—026 RESO LU TIC N C H THE CITU COUNCIL C H THE CITY OF SARATOGA AUCFITINC AN E-COMMUNICA TIONS PIOLICY HOR THE CITSd CO UNCIL A NIS CITY CC M M ISSIO NS WHEIREAS, the City of Saraitoga saeks to prom cite effectivei use of(0acilranic com municatiaris by City C aunci I mcimbers and C ommissionsrs in carie Liat:ing CiiiN business and to create a syslam thal a]lows aompl ianca A ith slatei and lac ara:l laws flauarning alectronic com municatiaris inol Wing the Regards Rlatcir6on Act,tt a Pub I iia Rlacords Act,the Brawn Acrt, and state enc fcic arae ru I e9 of eividence; and WHEREAS,the City Council aicaptad an interim policy fkir a triad pleriod in July 2009 for usa by the Cily C ouncil and Planning Camm:ission and now Aistas to adopt a final policy fkir use 1:N the City) Coungil and all Cily Commission exaerll 111•a Yloutt Commiss:ian. NOW, THEREFORB, BE IT RHSOLVEU THAT: Thle attashad City Cauncil and Camrrissions E:laatronic Communisations Ho:licy is hlareby adopteic. 11ha at ova and foregoing resolut:i(in was passad and adoplad al a ragular maeiting of thla Sarataga C ity Counici:l Meld an thle 191h day of May 20:1 CI by tho following vote: A'MBS: Counsilmeimtar Chluakl Aage, Haward Milaeui, Visa MaNar Jail] Hunleir, Mayor Kalhlleeni Kling NOBS: 1\ona ABS11AIN: 1\once ABSHNT: Maaant(ISusie Nagpal) fUhllaar.i M. IQinig, Mayor ATTEST: Ann�ulivarii. City CIaAl Elata 176 CITY OF SARATC CA City Council an d Comm ission s I]leictron is Comm un ication s Palicy Adopted May 19, 201 C I. Purposei: Usti of ti]actronic media:is nocassary aric usciflu] for City Claunc:i] and Commission miambers in ardor to impravo communisation arrc efficiently peirfkirm thle:ir City dutaos. 'Iho plurposei of lhlis policy is to insure lhla proper use aflthe City's elaatronia mcidia and to sat null tho policy 1Ihei CAN Caunsi] and Commission miambers veil: follow whon using eileallrania mcidia and lhla C:ily's eileslranic samimiunicatian system. This poliaN will also insurci that usci of City eileatronic meadia complies with applicabla law, inducing tho Ilubhic Mecords Act and Brown Aat. If lis pol iay is appti cable to all C:il y Counail members and Comm i 9sion ers except members oil tha Youth Commission. I]. Ucifin itions A. City's Elcicitronici Com municiallion Syslleim —Cily-awnad dev:ieeis or praducils c cisignod to eileciftanica.IN praaess, transmit, on storci information such as computeris, phonies, cell and smart phanos,printers, modams, data files, and e-mai]. B. User —a Counail miamberi or Clarrimissionen who uses the City's eloatronia commun:ieat:ion system. C. E-Communication—cdecilranic toxt or visual communisation and attachmanits distributed via ei-mai], websites, inislanit mieissag:i ng, text messaging, twitleiii, or comparab.ci sarviccls. D. Ehicitronici Mcidia— a mieithod foii processing or transm:iilting infbrmailion in olecilramic form, including E-Clammunicatian, sofllwarei programs and iIho Internet. 111. C einemal Pr ocied urcis A. Praaed urcis for Electronic Communications. All Counail mieimbars and Commissioncirs veil l be issued accounts fbr use afl City cilecilran:ia media for E- Communication on C:illy businciss. E-Communisations by mature rcipriesents and rciflects upon tho City's public imago and integrity. Useirs should insure iIhat i hohi mcissages arc respectful, professional, and arca consisteir.it with City policies. E-Communication should be wr:itlen or alhariw;ise prasantad :in the samia priofess:ionial and rcispectfu] manneri as papar aormnunicatians. The Clity's E.aatronic Clammiunioatian System shall be used anlN for City bus:inass. H. No Use all Personal E-Communication. Uscirs shlal. riot usa their hlome or business E- Communication accounts or addresscis for any aommunieat:ion pariainiing ala City 177 t usiniess. Whean using E-Communicallion, users stlaulld communicalla witli tha pubtis and staff lso:lealy v:iaa their designated City H-Commun:iciat:ion adcrasses. Users shall] not ciomminigle E-Cammunicatian pertaining to City busir.iass Willi H-Clommunimat:ion parlaining 10 their Home ar business. C. Elcicitronici Com municiations licitmlciein Council mcimheirs or Comm issioncros Conecruing City Business. Cammunications from (1; a Council membar to anothar Council membear or mearnt ears cioncierning Cilly bus:inass, aric (2) a Commissioner i a anal har Commissianear or Commissianars caor.icaerniing Comm:issican business sHould tea "anca way" and marked 'Tor Informaticm Only—Uci Not Rlaply." D. Elcautronia Com municaallian by a Quorum oll the Council and Cam mission or a Council and Commission Standing Committ(ici. A majorilly of the members of 1Iha Council or a Ccammission shla:ll not sand car exchange facts at out car engage in disaussionsi ragarding City issues via H-Clamirnunioatican, :including chal rooms, nievus groups, on-lana forums, weblogs, lwitler f6ads, or list-sarvas (caallecitively rafaniad to as "Internet forums"). D. Ehictnonici Camimuniciafians ihrom the Fluhlicl. The public may eleatronicaally samirnunicaata with)thea Counail and Commissian tfulouah thle City's Wabs:ila at: wwvu.sarato ag .ca.us. 1) H-Clommun:icaat:ican from thle put]ic adcrassed i a thle City Counail will] be distrit Wad to aacH Claunicil meambar and E-Camirnunicaat:ian adcrassed to a Commi ssi or. will bei d:i strait uil ad to each member of thle Commission. l3- Communisationi addressed to thle ClauniciI or a Commissian alsa will t a forwardeac i a thlc Clity Clark. Thle Mayor, or M aycar's designatcid reipraseanlativca, :in caansultalion Mthl staff]if ncicaessary, will respond on t ahalf of the Counail to E- Communisationi ac drassad to thle Council. The Camirnission chair or Comm:issior stafflliaisoni will respand an behlalfloflthe Camimission la E-Carnmunioatian ac drassad to the Clommission. 2) H-Communisation from thle publica ac drassad to mora tHan a quorum of 1Iha City Council or Commissian shall t a forwardac by the racipiams to the City CII ark (for tha City Cauncil) or staff l liaison fdr thle Commission. Thlese H-Communisationis veil] be d:istr:it utad and rasponided to ini aacordarice wiilh paragraptl E.1, at ave. 3) Upan race:ipll of an E-Communicallion addressac to lass iIhan a quorum of tha Cilly Council or Commissian, tHc recipient may: l; tread it as an individual commun:icaation to vuhichl fic or stla maN or may r.ical respond; 2) inform 1Iha Council or Commission of thea commun:icaat:icin at a properly noticaed maating; car 3) ask tHat ill be f0miarded Ila thle full Counicill or Commission as part oflits infcarmationi paakal for the ne)at available Clounc:i] or Commission meatinig. Such E- Communicailion may also be forwarded to staff for raspor.ise as scat out in Secilion G, bealow. WHan a Usar responds la individual E-Communicatian frarr the public, and das:iras to forwaic thle rasponsa la thle Clouncill or Commissian,lie or Council and C ammisslan ElecUanic Commuir*caitiars Acilicy Aa€le�I afl4 178 shei sl all forward his or heir raspor.ise and thea individual E-Camimunioatian to ilhei City Clerk ar Commission :liaison for inalusian in thea Counail ar Cammission'si :informational Flaakat at 11.10 mixt availablei Counail ar Cammission meeting. f. Cit31 Eleeti coria Communications with the P uhlie. City staff veil] posit officio] information on upcoming znd prior City Counail muet:ings, woiikshlops ar.ic events an tho City Wobsite. Council and Commission agandas and minutas vuil:l be posted foci 1110 cunenit and prior aalenidaii Haan. Additional materials maN be posted al tha discmatkin of the City Maniageii an Manager's das:ignae. C. Use aft E-Comm uniiaation During Machin gs. Ciq Counail mi0mbaiis shall not use E- Commur ical iori at any dime dun:ing a mueting oftthe City Cour ail at whliah hei ori stile is in atllandanice. No Comm:issionem may usa E-Communicalion at any time during a maeting of tha Comimiss:ian oflwh:iah he an siha is a memban at whliah Ila ori she is in atllenidanca. The floragaing limitation shall not apply la reaaipt aftteleiphonie galas cm text miossagas from family mamibeirs in the evanil of an urgant family matter; a Council member on Corr missianar washing llo respand to suahl a message during thei meelling shall do so during a recess or shall oxausa him or hersalf flnam the mieieting to plana thei iieturn gala or text ini a manner that duos disrupt the meelling. H. Cit)l Participation in lntcrucll Forumis. '11h0 City) will nat geneiiallN answer quast:ians or respand to aammenls made in Inteirnat forums. 'Ilho City will post answeirs la sivah quoslions an its website if the questions aiie doemeid important IN the Mayon or by t110 City Manager or at the dinectiuri of thea City Caunc:il. If a Counail mamib0r desires staff to prepare a nasponse to a queslion on aommenit ruceivad by E-Communication or mads in an lnilurnut fkrum, the Counail and Commission miembeii may forwand 1110 question an commanll to tho C:illy N ainag0r and raqueisll thall staff pneipara an appnoprialla response in a wasor.iable fleiriod of time. Iflprupatiatian afla rosponise will raquim signiifiaanl staff lime to neiseiarahl or draft the rosponisa, an :inllemim reisponise to thl0 questioner an oommenitar will be sent as saan as possible ackdowlodging reaaipt(if tthe inquiry ar.ic informing thea sor.idem that a neisponsa is b6ng prepared. IV. Specific Procedures A. Rcitcntion of E-Mail. The City alectnon:iaally aiichlives E-aumimiun:iaait:ions in accordanicu withl thea City's Rlecoiids Rleteinllion sohledule. B-oommur.icallions That aonstillul0 pralimiinmy diiafts, riailosi, or intra-agenay or intaragonay mamioranda that are nat iietainied by the City in the ordinary coursa of business are not required lla bo arahiveid and should b0 delated prior to neigularly schledulud aiichliv:ing. '11h0 City Clerk and Ct:ily Atlornoy area available to assisll users ir.i determining how to addross questions concerning llho application cif I thlese piioceduiies. B. Puhlic Rekord s Act. Ctity reaonds, whlellheir papen ar eleiatronic, are governed by thle public disclosure racluiruments of the Public Rucords Ad. I]isclusune may be naquirad rugardless oft who winds or reic0ives a communiciation ar daaum unl. In the event that the City neiauives a requesl for disc:losuiie (if tCity neiaords llhat irial Was E-Carrimumiaatiun, the Council acid Cammissian Electranic Communiu6onis Aalicy Aai€je 3 of 4 179 parson rasporis:ibl a for II ha requested records mush usa His or filar basil efforts to praserva all City H-Clommunigation ciovared by tha raquast unllil thla rasponsivei H- C lamimiuniciati(ins hava been iduntifiad. Mequests for discilosura of any CiilN records applicable to E-Communicalion or allhar alactronig records of any usar subjact to IIhis policy shah ba submilled la thla City Clark- C. Ccmfid(ntiality. l) Claliforria lava requiras That gartain information be ireiatad as confidential and not be distributed iIci others inside cir outsida ilia City who do not Have aull ariaatian to viaw sugh information. Council mamibars cir Commissianars miay occasiona.11N receiiva confidential alecilranici information. Sarnia axamiples of confidential infcirmalion ara: persannal regards, iriterna:l inivestigallior.is, information relaling to litigation or potential litigation, atilcirnaN-client communisation, information ralating to :labor negotiations, or infarmiation relating to sonfic ar.itial real estate negotialior.is. Wharf Courigi:l and Commission membars rageiva confidential information, it shaulc be mankac "Confidential Informaticin" sci thall Coungil anc Commission miambers are alertad to Ilia natura of tha information. 2) Confidential iriformiation should not ba sent cir forwarded to individuals or arititiias not anathlorized to recaive lhlat ir.ifcirmation and should nail be sent or forwarded ilei City employees not authlorizad to viaw such ir.ifcirmiationi. 3) Claunciil and Clommiission miambers shall exercise gaution in sanding corifidantial information by E-Camimunicailion as gamiparad to wiitlan mamiaranda, "I attars or phana calls, bagausa of tha ease wilh whighl sughl in16rmaticn can loss corifidaritiality by iniadvartar.it or ir.itentianal diversion or ra-transmiission by cilhars. 4) The City Attorney should be goritagl ad ggnuaming any questions aboul whither a communigartion is gonfidarlial. M. Cumpliancie vvdtH tHis Ploliay: 11 is ilia rasporisibility ciflevery usar to insura thlat lila or stile is in compliance with this Elagtronic Communications Ploligy. Cauncil and Commis siori Electfoniic Cammunicerlicins Policy Paae 4 al 4 180 RESOLUTION 13.067 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA ESTABLISHING GUIDELINES FOR THE LENGTH OF CITY COUNCIL AND COMMISSION MEETINGS WHEREAS, in order to promote opportunities for public participation and transparency of City business, the City Council at its October 2, 20113 Council Meeting directed staff to prepare this resolution establishing guidelines for the length of City Council and Commission meetings; and WHEREAS, opportunities for public participation in City Council or Commission meetings are greatly reduced when meetings continue past midnight; and WHEREAS, to ensure that the public can participate in the decision making process and City business is done in a transparent manner, both City Council and Commission meetings should conclude by midnight except in extraordinary circumstances; and WHEREAS, if a meeting runs until 10:00 p.m., the presiding officer should determine if the meeting will continue past midnight if all the items on the agenda are heard;and WHEREAS, if the presiding officer believes that the meeting will not adjourn by midnight if all the items on the agenda are heard, the presiding officer should request a motion to continue a sufficient number of agenda items to the next regular meeting to allow the current meeting to end by midnight. NOW, THEREFORE, be it resolved that the City Council hereby approves the above guidelines for the length of City Council and Commission meetings. The above and foregoing resolution was passed and adopted at a regular meeting of the Saratoga City Council held on the 16th day of October 2013 by the following vote: AYES: Council Member Chuck Page, Manny Cappello, Howard Miller, Vice Mayor Emily Lo, Mayor Jill Hunter NOES: None ABSENT: None ABSTAIN: None <<j U. IL Jill Hunter, Mayor ATTEST: PA- tj DATE: lLOt�j ryst 1 Bothelio, City Clerk 518951.2 181 RESOLUTION NO, 09-052 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA ESTABLISHING"ACTION" MINUTES FORMAT FOR COUNCIL AND PLANNING COMMISSION MEETINGS WHEREAS, it is the responsibility of the City Clerk to keep an accurate legal record of the actions and proceedings of the legislative body. The record of proceedings used is referred to as "Minutes"; and WHEREAS, the record of"Minutes"are not transcriptions, nor an exact record of discussions and conversations; and WHEREAS, in 2007,the City of Saratoga implemented the paperless agenda/packet and began video-streaming City Council and Planning Commission meetings; and WHEREAS,the video archive on the City's website and the DVD recordings are a true record of City Council and Planning Commission meetings and are available to the public. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Saratoga does hereby approve the implementation of"Action"minutes format for creating the record of actions and proceedings of the legislative body(City Council and Planning Commission). BE IT FURTHER RESOLVED, the above and foregoing resolution was passed and adopted at a regular meeting of the Saratoga City Council held on the 16'b day of September 2009 by the following vote: AYES: Councilmember Susie Nagpal,Howard Miller,Jill Hunter, Vice Mayor Kathleen King, Mayor Chuck Page NOES: None ABSENT: None ABSTAIN: None Chuc Page,Mayo ATTEST- Ann , City Clerk 182 RESOLUTION NO. 14-061 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA REAFFIRMING THE CITY OF SARATOGA CONFLICT OF INTEREST CODE WHEREAS, the City of Saratoga's Conflict of Interest Code (Code) was adopted by Resolution No. 01-011 on February 21, 2001 and adopted by reference the Fair Political Practices Commission ("FPPC") Model Conflict of Interest Code set forth at Title 2, section 18730 of the California Code of Regulations; WHEREAS,the Political Reform Act requires biennial review of the Code and the Code has been updated on a regular basis, most recently by Resolution 12-022 in 2012; and WHEREAS,the City has completed its review of the Code for 2014 and determined that no changes are needed at this time to the list of designated positions required to disclose personal economic interests. NOW,THEREFORE BE IT RESOLVED,that the City Council of the City of Saratoga does hereby reaffirm the City of Saratoga's Conflict of Interest Code list of designated positions required to file as adopted in Resolution 01-11, amended by Resolution 12-022, and shown Exhibit B attached hereto. The Key to Disclosure Categories portion of Exhibit B is amended to reflect changes to the descriptions of the disclosure categories adopted by the FPPC since the last Code update. The above and foregoing resolution was passed and adopted at a regular meeting of the Saratoga City Council held on the 1st day of October 2014 by the following vote: AYES: Mayor Emily Lo, Vice Mayor Howard Miller, Council Member Manny Cappello, Chuck Page, ]ill Hunter NOES: None ABSENT: None ABSTAIN: None Emily Lo, Mayor A EST: DATE: rr st 1 Bothelio, City Clerk 183 EXHIBIT B—Con fllict eifl lntereist Cod ci List oil Dlesignaiteid Poi tions DBSICNATED POSITIONS LIISCLC SURE CAIIEGORY City Managar's Offiaci A Nough E City Cllenk Public Works Departmiarnt A tWough E Public Works Dirciator Put lic Works Managar—Paiiks AL it 1 i c Works Managar— Streel s and Bl eell Senior Civil Enginaen A ssoaial e Bnginaen Community Davalopment Daparlment A thriough E Community Davalopment Diractor Building Offiiaial Seniors Mannar City{ Arboriisit Mociraatian Dapartment A thriougfl E Rlciaraatian Dinactari Bacilities Suparvison Sen:ion Rlacnieallion Suparvison Admin:isitrialive Scir iaas Daparlment A thfough E Administrialive Serviaas Diracton Information Tachnology Administraton Human Rlasouiiccis Managers Clommiissiions & Clamrrittaas A thriougtl E Hlerilage Plnesenvatian IJibnary Parks and Rlaaneation Planning 'lnaffic 9aftity Pcidastri an, Bqucislrian& Bicyc:la Trails 184 Hakone Foundation Board of Directors A through E (only those investments, business positions, and sources of income of the type which engage in business with the Hakone Foundation; and interests in real property within a two-mile radius of any property owned or used by the Hakone Foundation) Consultants City Geotechnical Consultant A through E (only those investments,business positions, and sources of income of the type which engage in land development, construction or the acquisition or sale of real property; interests in real property in the jurisdiction, including within a two-mile radius of any property owned or used by the City of Saratoga) City Surveyor A through E(only those investments, business positions, and sources of income of the type which engage in land development, construction or the acquisition or sale of real property, interests in real property in the.jurisdiction, including within a two-mile radius of any property owned or used by the City of Saratoga) Other Consultants* *Consultants shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation: The City Manager may determine in writing that a particular consultant, although a "designated position," is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements described in this section. Such written determination shall include a description of the consultant's duties and, based upon that description,a statement of the extent of disclosure requirements. The City Manager's determination is a public record and shall by retained for public inspection in the same mariner and location as this Conflict of Interest Code. KEY TO DISCLOSURE CATEGORIES Category A-1: Investments less than 10%ownership Category A-2: Investments greater than 10%D ownership Category B: Deal Property Category C: Income, Loans and Business Positions Category D: Income- Gifts Category E: Income—Gifts,Travel Payments,Advances and Reimbursements r 626920.1 185 RESIO LUITI ON NO. 08—W10 RESIO LUTI ON OA THE CITY CO UNCIL C F SIARA TO GA ESITABLI SIHIING A CODE OF ETHICSI AND VIADUIESI A. Thle proper operation ofldumocnallic gomernmcinl requires that dociision-rvaklers be independent, :imiparlial, anc acaounilable to thlci people they servie,- H. Thle City of Saralo€Ia seeks to promote and maintain thlu hlighlest standards of personal and prof iissional clone uat in thle Clity's 8ovarnmur.it; C. The City vvi;ll bencifit by having all ellactad and appointed officials, Cily empllayaus, voluntucros, and oilhcros whlo pari ic:ipate in thle city's government subscribe to thesiu values and take thlu t:imiu to unc cirstanc blow lhuy applly to iIhciir spucifiici nesponsib:iliticis; and D. Thlu City sacks public acinfiiduncie in the City',i sicirvicesi and publlic trust oflitsi decision-malars and aacorcingly blas dellurminied That our ducisiionis and our vvoAl must miuet thle most demanding ethliaal standards and demonstrate thle hi€Ihust lluvelsi of achievemcirC -11HEREPCRE, BE IT RESOUVIED thlal thle City Council henuby: I . Adopts the atllachud Coda of Elhics and Vla:luus- 2. Diructsi 1Ihci City Clenkl to post thle Coda on the City wubsiitu and to distribute copies to all] City Commisis:ionurs, slaff, and volunteers. HASISaEII AND AUCHTFIDI by the City Councill of thle City of Saratoga, State of l California, this : 6tH day oflJully, 2008, by thle following mote: AYIES: Cour ci:lrrambers Aileen Kaci, Jilll Huntcm, Math]aen Kling Viae Mayor Chluckl Page, Mayor Ann Waltonsimithl NOES: Nor.iu ABSENT: Nor.iu ABSTA IN: None Ann Waltorismith, Mayon ATITIEST: Ann Sulllivan Ading City Clark 186 City cit Sairaitaigai Code of E1Hics and Malues Preamble 31hu prof er operation of de moerati a government required thal decii si cin-makers be i nde penidenit, impar)is, and acuountat l e la the pe of l e dle y Eierve. The C i ty of Saral oga has adofted lhlis Code of BillicEi &Value:i to promote and maintain the hlighlest standards of pemanal and prafe mior.ial eior.iducit in the City's governmer.it. All] c]ectad and appoinlled officials, City employe es, voluniteers, and others whlo participate in the aity'Ei government are required to :iubscribe to this C adc, underEitand how it app hi cis to their speed fi c resf ansibillitic s, and pracitica:ills nir.ie core vaauc s in the it wark. Because we seek publics confident in thle C pity's servicies and publ:ia trust of its deuisian- makers, ow deeisicros and aur work rr.ust meet the most demanding ethical standards and demor.istrate thle highe st levels cif achievement in folllowing Ibis code. j.. �si a Reprt sc ntadvc o the C;i o Sarato , I wiMl be eth,icai f �I f gl� In pracit:icie,thlisi value looks l:iklc: a. I ami trustworthy, acting w:illh the utmosl :integrity and moral ciourage. b. I arra truthful, do what l say I will] do, and ami dependable. c. I make impartial dcah6ons, free of bribed, unlawful gifts, narraw political initerestrs, and fiinanciial and other persanal intere:ils that impair my indepcWenue of judgment or acitioni. d. I ami fair, distribulling benefiils and burdens according to uonsi:Rent and equitable ciriteria. e. l extend equal apportunitie:i and due pracie:is to all] pariesi in matteirs under con:uderaticin. If l engage in unilateral meetings and discusis:ions, l do so without making veiling deciisions. f. I show respect frir persons, cior.ifidances, and information desiigr.iated a:i "cionfide ntial." g. I use my title(s) only when cionducrting official City busiinesis, for:infbrmalion purposes, or as an indication of baah1graund and expertise, carefully cionsidering whethler l am exceeding or appearing to excieed my authority. 2. Ali a&,priesientative of the Cary of SariatogG, I will be priofemianal. In pracrtice, iihis value looks like: a. I apply my knowladge and expertise to my amigned activities and to 1he inlerpenianal relationships that are f art of my job in a consistenl, cior.ifidanit, ciarn pe tent, and pradueti ve rr.anne r. b. l approach my job and work)-related relatianshlips with a posillive attiluca. a. I kdc ep my professional knowledge and shills current and growing. 3. .1 61 a heprtsc ntalivc of thea Cit))of Sariatogla, I wild be serivice-orientea. Aage 11 cf 3 187 In pracrticiu, thisi valuei looks like: a. I providei friendly, receiplive, courteousi sianiice to cvurNonc. .b. I am atlluneid to, and ciare aboul, the neicids and issueis ofIcitizens,publici officials, and city workers. c. In my:intoracticrosi with cionstituents, l am inteireisteic, ungagm, and tiesponsive. 4. As a Repriesieintatitie of the City of Saratoga, IwX Ilei fiisciahi responsible. In praoice, this value locks]like: a. I makci decis:ionsi afileir pruideint cionsideralion of 1Ihoir financiiall impacrt, takiing pini a aeciaunt the long-•term firianeial neeids of the C:illy, eispeciiallIN its finarieiall stabii 1 ity. b. I deimonstrale cioncieirn for thlei ptiopeir usei of City asseitsi (e.g.,pemsonnea, time, property, eiqu:iplmanl, funds) and ftllow eislabl:ished plroceidunes. a. I miakei good financiial deic:isions thail sieiek to ptieseirNiu programs and serv:iaus fcm City rcis:idcnils. 5. As a Repreiseiritcfivei of the Gityl of SGratoga, I wild bei reispeculful. In flracticie, this valuei .lookl,,i hiker a. I willl histcin carcifullly to thle views of alhleirs and tiefrain from iinteitnpling others during discussions of C.it)l busiinciss. b. I will bei succiincit and direct in umpreissing my views. c. I will not debate with sitaff on membeto of lhei publici in publics meietings. d. I will avoid using acuionyms and will eixfllain thein meaning when Way must bei wieid. 6. A,,i a hlellriesientatitie cf the City of SariGfoga, 11 will be ongariLtit. In ptiacilicei, 1Ihis value looks likle: a. I acct in an eifficieinl manner, making decis:ionsi and reiciommendations based upon neisearoh and facia i, it ak inig ii nil a eonsi deirati on short and long it enm goal)s. b. I follow thrloughl in a r(isipor.is:ibllei way, keieping otheirs infrirm ad, anc rcisponidinig :in a time) fasihian. a. I ami respectfitll of eistabllishleid City promisses and gu:ideilines. d. I reciogn:iaei that I am parr of a team and will shoulder mid share of rusponisilil:ities in reipresieinling thci City. ei. I will atlend all mieetings of ciommitlees to wh:iah I ami assiignud and mieietings wililh collleiaguesi in neiarby jurisdictions ar will work)to fired another to atlend in my placie. 7. As a Reprieiseimlailivei of fhe Otyl of Saratoga, I wild bei corrimiunicatiue. In practicie, this valuei .look),,i likci: a. I conivay thei City's carci for and ciommitmianit to its aitiounis. b. I aommunicatei :in various ways lhlat I am appraaahable, open-minded avid willing to plarticipailu in dialog. c. I ungagei :in effective 11wo-waN communkiation, by histteining careifully, adding Page 2 of 3 188 questions, and deitermining an appropriate reisponso which adds values to acmvensaticros. 8. Aria hleprtsintativi of the Cit}l of Sana toga, I will be eollaborativi. In pracitiae, this valuci looks like: ai. I acct in a cooperative manncir with groups and other individuals, wonkling together in a spirit afltolenanae and understanding. b. l warkl towards comieniswi building and gain value fiiom diverse apinions. c. I aacompl:isih 1Ihe goals and respansiibilitiesi of my individual posiitioni, while resipacting my nolci ass a member ofIa team. d. I aamiiden the broaden ragionad acid Slates-wide impliaait:ions of ilhe City'si deaisicins and issuesi. ci. I act in a comitrnctiva manner when uxprcissing aanacirn about ar disagreuing with the sitalementsi of I others. 9. �si a Represi ntadvi of the City)of Saratoga, I wilil be progressiivc. In preict:iau, thisi valuci looks lira: a. I cixhibil a pruactiva, innavalive aippraaah to salting goals and conducting the City',i businassi. b. l display a style that maintains consistcnl standards, but isi also sewiffiva to the meed Min compromiisie, "thinking oulside thci box." and improving exiAing paradigms wheni neaeissiary. c. I promote :intalhigcinl and lhaughtfull innovat,ian in order to forward the City's policy agenda and City scirvuiaesi. Pagle 3 of 3 189 Checking Your Outlook Mailbox Remotely Marospft' Outlook- ebApp Security(show explanation) This is a public or shared computer This is a private computer © Us.e the light version of Outlook Web App User name: Password: Connected to Microsoft Exchange @ 2010 Microsoft Corporation.All rights reserved. Step 1: Enter this address into your browser's address bar: https://xmaiI.saratoga.ca.us Step 2: A prompt will appear. Enter the necessary information below to proceed: Domain\user name I (your windows login name) Password I your windows login password Client I Premium Security I Select public or private (depending on your preference) Security(hide explanation) Public or shared computer Select this option if you use Outlook%Aleb Access on a public computer. Private computer Select this option If you are the only person who uses this computer. Your Exchange server will allow a longer period of inactivity before logging you off. Warning.By selecting this option you acknowledge that the computer complies with your organization's security policy. Step 3: Select Sign In Step 4: Please log off when you are finished by selecting Sign Out at the top right 190 To change your password Step 1: Click on Options at the top right and select Change Your Password Wilook-WebAppsign=_ Administrator Mail > Deleted Items G Items jo Find Sorworie Options Q a Favorites New- Delete- Move- Empty view- w Options Inbox(65) Set Automatic Replies... B8fCf1 Entire,Mailbox Unread Mail 65• Change Your Password... Sentltems Anange by Cate Create an Inbcx Rule... There are no items to s, See All Options... A Administrator P [A Inbox(65) Select a Therne ()rafts � Y Sent Items ❑ � L._ [}elated hems Cil GeoTrust Cil IBM Junk E-mail 6 CA MIS F&I Notes IQ RSS Feeds 1> [)� Search Folders Step 2: Enter your current password, type a new password, and then type it again to confirm it. Then select Save. MlookWeb App _ignout Administrator Mail > Options: Manage Myself - My Mail Account Organize E-Mail Mail Spelling Calendar General Regional Password SfMIME Groups setfinlYs Change Password Phone Enter your current password,type a neer Black or Allow password,and then type it again to confirm it. After saving,you might need to re-enter your user name and password and sign in again.You'll be notified when your password has been changed successfully. Qomain\user name: COS.Nnadministrator Current password: 90009 New password; 00000000000 Confirm new Password:aaassessasa i' Save 40 191 GRANICUS/i Legislate Agenda Packet Access Instructions Viewing the Agenda Packet on the City Website: Navigate to the City Council Tab. From the City Council Agendas & Minutes menu, select Agenda Packets & Meeting Videos. le•9dbv M1.alr I &.M. I PAy 1.1I 1 tU I p -I-,�I -' A RA l 1 lj k.rn J m.K.c�n:.nrm r oil CITY NEWS y[rNr�! IYaJbrNm.1PeElutiaa 4ue fa0fusry N SI]lt1136 TN C�of$w'ropiama xtewaY mnxa.«a ry ..I � ..I ., t 1.1 Fro u�w..P94wT. �+M�vmnf= 3va®wm Pvl.n w� 0 Y�ID[A.Am.r�n aaeW�'rs 9 YNue�M•wq ww Y'a'al Lulr�m wxs+,ID[.L - C:lµullrolrc FIISEAiw+n SGnb:eµvr fx[m xln SHM SSM(OI]ht 6ssll A�P.� t'�I�t>� P�'rr�'� 7EY!C+Rr+Y Wh SO*Iq'/II�s req s Y�Yur AL51 L?t NTS � � . s - $USIN ESSES � �w..v VtSlT9lt5 VJ T�I�M.artY h=r Wm�rM a.w�d Mvwr Select the "Agenda" to view the packet for a City Council Meeting. After the meeting, you will also be able to view the meeting video by selecting "Video." OTY COUNCIL AGENDAS&MEETINGS .dl'..�cw Mf.+ps�^ aa• rte.€a-�...� „y-. wi.MucmAhn-k.c.Mn9�C 4]e�:m Ur�fw {KR—p�yd+ to eumxg+ss enavmwe.�A uc�+r.�rorau dwrrm.oa .�m.!>eoa. pkueA»NVJW v:uxll2rrnn}1liornh i....l..� -,.I I.•e.�l.a i. 1R mmww•rYaral�R+vmxia Mrrtm¢YrAirAl•N vbm ne nsi.�kr,4x. •� Sta-mt.nka w,�l Op®m7,E,m L LIJTA[:1' � C�Ip Oes oq��cm_ w..�r--.v mn Iran dL+v'a xoj,II+ +.oI MIZ 'xv IDIO 1L91 9"Li SYI .bOM1 rs6W IwF IVY: rs•!a. rsV05 IFii cfr'l ctl[:ia[1L bs1].IDIY aIDSIm yePgy r,.. CRVC.'n[.-.\r'R Qx'S,)GI+ G�:am Asrcis 4'J.v r 2..11+ ^� R•A3:r•w ti'afti CfiY[OLJT`CA x•�n Ka.[P,IDIs mn 3Vm ywa9i y'lD:q CRY'rr l'yCR, m5.]]I+&sh t5m Asro:l \'4aa. Citt'cu4'VL1 ba[f,2o[.Wh]em p[[n➢1 vJSs' RP'Y WIP'C0. SYp 13.DYlk Olh l+m!qN Y'µp 192 Click on the hyperlinks to see staff reports, attachments, and other documents. ACEINDA AGENDA REGULAR MFRTIAiG REGULAR MEETING SARATOGA CFIY COUNCIL y SARATOGA CITY COUNCIL ' Wedsra by.Oece 1Y4Mndax.D.—I.,17,2814 rvrr TeeuTauoeaee.ea.xxe x,, xace.•waexTmc-nr rx-elvx rm nrcwvca. .r e>m slumvu4.nne•e ,.T urrrr�'a�2ly.=.wvevcx. oma eu.ea m m,.mer - - ur<.�sewrsu i xap�Y�stl�la pe�PaaYWlmaelwb erY M®Reeanwweawev ae lelenwnneiNrcsrim tr.�F�+.+[..ro- p4�y�e 6.s�cgeQlrE +warm. �Ys'+l++�eyelrni'14s¢iW1Yel.pKpTeroY aawF C 1 e;rbMTe@WpL� nwiy/age.A;a.eyeyar[.we�a � -nx.�e.�rJrre_ P�raee 5�[tlmYd3�afd�a After meeting videos have been posted, clicking on the agenda item will open the video of the Council Meeting. Viewing the Packet through Granicus iLegislate App: Open the iLegislate app and select the meeting you want to see the packet for. You may need to select the refresh button. 1—W Eau agpirJa_ Phr..V Cpmml-ion 1/14115 7.W PM CITY CDUNCIL 17ll T114 hDD PM City Oounell 460ewonation 1y;1141..0 PM Fene1 Vd d Forum 11ra14 7'00 PM (f updated 1121152AC PM 193 After selecting the meeting, you should see all the agenda items for that meeting. Agendas CITY COUNCIL Chengc view CEREMONIAL ITEMS 1 C mnertdalion Honing Outg ing Tragic Safety Commiss—Nancy Kirk 2 CamrKss1p Appointment MCI Oath of Office SPECIAL PRESENTATIDNS CONSENT CALENDAR 3 Cny Councit Heeling Minutes 4 Rave.of Accounts Payable Check Registers 5 T unWs Repos for ane Month Ended October 91,2014 6 Appmml of Spat User Agreanants-2015 7?015 Hazardous Vegetation Program Corrin—emenl Reaoluean B Second Amemlmem to Independent Conlrwor Agn—nanl with P000Wxks Extending the Tim W me Agreement 9 HousN Etemcnt tmytementation Ordrmnce PUBLIC HEARINGS OLD BUSINESS NEW BUSINESS 10 Presentation and Council Direclion on rnkAges TlmeBank Program ?. (1i Updated 1112116 2:41 PM d It I (- If you select one of the items, it will open a new screen with the item title, recommended action, attachments, and space to make notes. sb. ,WK_ crry COUNCIL hem Detail. —Teh 7 2016 Hmardpvs Vegetation Rognvn '� Stan Report Commencement Resolution A9aeMnent A-Resohnaxt Oectanng Ha ulroous Vegetation(wee"as a ,. PubW Nuisance and SMtng Public H*&,og.Data Atiapanen!B- Approve raaolutwn tleclanrg nazartlova 2015 vegetatwn(weeds)aS a public twisance and Abatemenl LiSV Setting a public hearing on January 21.2015 ColcdMnl Repcn to consider ntyecdons to the Abatement Let. Attacement C-S.W. O.wi t, mat Weaale Hared w Pmpen:es on sPwsaca�..�.m. neeewtAw.. Mr Nates 0 194 Any notes made here will be stored to you account and accessible, if you log into il-egislate using your account. However, notes, highlights, or bookmarks within an attachment, are only stored on the device where they were made. snenrrxnnn cou5xu i� scRwto[:anlr elw.•.t-L� IauYexxF+»L.uTlee�: RE[laxelE�11ED.Yf 1YGt. Mw.+e.wa.n an�anr�ev •awn m:w.a.l w.v• ��nr�n rrve �Ivl�.+l+ae rr!wy= M4.brnr e*.rxrrr-•.Vd!F.eeexhxAm+nn.a lR.MkemnLix: .beam Y.:r°u•o..e .x 6Hlk[.i +LL e xat.Y4n•.et n.`^NY�n [va'err4gv'm..Fn w:r rn +s.....i=w, �1TEwnvrc lxo..k+rK.eerxnrrc m.nn..•rr�Yi r�xw[ ealuwV'.wrP m^.1 w�.rcn rnn� xrtlyee..Kmx N rv^.Mn:.w.n o+kµpll�mm.�`A JwN R�•rtt✓k W.xSa�tn+a.r� xn.l�.wyfmr®.em.LL..lr f*eme...,o.a R W E R T Y 4 I o P V .wl.as.e�em,a,.,•I.b A 5 D F G H J K L rou3ns w«.e.n.vn x.r:n[•N,sr cwr•mrw�.+.�Iwe�rArrc- mmr.um n._gmy.om..0 e..eax...l.n e}xaxmp.rnr Z %. C V 6 N M If notes are made in the "My Notes" section of the "Item Details," an icon will appear in the packet view of the app. <A&W. CITY CGUNCIL Go-go v- 1 CammeMatlon .3 Owgmrrp RAa 5D10y Commisyia r Nancy Kirk rr� 2 C*MnVSSluva!Apporgmdnl and O.1th of of," �g SPECIAL PRESENTATIONS CONSENTCiLENDM 3 City Council Meating Mhotee J Ret++iaw of Accounts Payable Check RegW- 5 Treasurers Report fa Ne M-11,Ended October 31,2014 B Approval of Spxt User Agreane n•2015 7 2015 HuNdm Vegetation Program Coa+Aentemanl Rekoludon 8 Setond Arn dc~l to Ind"endent Cw hecto!Agroemenl wdh PlamW ells E the T of the Agreement 9 Housing Eke ImplemaL I.n Ordnance PUBLIC HEARINGS OLOBUSINESS NEW BUSINESS 10 Presentation and Comdl Q—tion an 1lnkAges TimeBad[Prog a 11 Ra w of Median Owner Polity U' Us~'1f1RMq?k41 P.M IN is 195 You can remove agenda packets for your device by selecting "Edit" from the "Agendas" page. €m � ngenoee ,ow. PWwurig Gommis&an 1110MS T:W PM CITY W LINCIL 12M 711d 7.W PM C11y cv,"l FewgauiMt 12 —T:W PM F—Vt Fprym 11-479p PM t'. U"te 1112£152Ap PM ui Pick the agenda to be removed and select "Delete." 1NUISTWPM P4Mnp 1 1M4T57W RM 12M.1111 TM RM . CItt CIX1NCJL M1111 Tapp PM 122M1 T(q RM yCawol plpgyablpn 12IXt4 T+p0 PM ..i.,.... . 115`117MPM Fray 11b10 Fort+n 11 'pp PM 011,esi 1/121152 a9PlA (,' L"0 VJWSZMM, Q 196 UNDERSTANDING THE BASICS OF and : ion I INSTITUTE FOR LOCAL GOVERNMENT Generous Support for this Publication Provided by: aMuniFinancial Prepared by Charles Summerell, Institute Staff Special thanks to the following individuals whose time and effort contributed to this publication: Dan Carrigg, Legislative Director, League of California Cities Michael G.Colantuono,Colantuono&Levin, P.C. Michael Coleman,Coleman Advisory Services Jean Kinney Hurst, Legislative Representative,California State Association of Counties Zane Johnson, Director of Finance and Administrative Services,City of Tracy Pat Leary,Assistant Chief Administrative Officer,Yolo County Richard A. Milligan, Deputy City Attorney,City of Riverside Joseph W. Pannone,Aleshire&Wynder, LLP Joe Saccio, Deputy Director,Administrative Services Department,City of Palo Alto Bill Statler, Director of Finance&Information Technology,City of San Luis Obispo Betsy Strauss,Special Counsel, League of California Cities Christine M.Vuletich, Director of Finance,City of South Lake Tahoe Brent Wallace, Executive Director,County Administrative Officers Association of California All final decisions about the content, tone and formatting of this publication were made by the Institute for Local Government. UNDERSTANDING THE BASICS OF COUNTY AND CITY REVENUES ©2oo8 by The Institute for Local Government 1400 K Street,Suite 301 Sacramento,CA 95814 (916)658-8208 • FAX(916)444-7535 • www.ca-ilg.org 198 UNDERSTANDING THE BASICS OF COUN and Ni .. CITY REVE , I-JES Introduction .....................................................................................i Taxes.................................................................................................5 Service Charges, Assessments and Fees...................................... ii Revenues from Other Government Agencies ..............................13 Rent for Use of Public Property Including Streets...................... 15 Fines, Forfeitures and Penalties................................................... 15 Other Revenues .............................................................................16 Public Involvement in the Revenue Process................................17 199 200 • Introduction Counties and cities do many things to How do counties and cities pay for improve the quality of life for everyone such services and facilities?The in California. Each one of California's short answer is they rely on a variety 38 million residents lives within the of revenues.The actual mix varies boundaries of one of the state's 58 between counties and cities,based counties. Over 31 million people— on the roles they play in our system more than 8o percent—live in one of government. The combination and of California's 478 cities. level of revenues also varies from Counties and cities share similar county to county and city to city. roles in providing a vast array of This pamphlet provides a basic municipal services to residents.These overview of the sources of county and services include public safety (police, city revenues. fire and emergency services),land use planning, parks and recreation, How to Use This Information social services, and the justice system. California state and local finance is a Those local governments also provide very complex subject.This pamphlet important facilities, including roads, is intended only as a general overview. flood protection, sewers,water, solid For specific questions on public waste disposal and other utilities. finance topics,the Institute for Local Counties have an additional role as Government recommends that readers a delivery channel for many state consult with a public finance attorney services, such as foster care,public or other expert.This pamphlet is not health care,jails and elections. intended as legal advice. Footnotes?s.?r F A fully footnoted version of this pamphlet is available online at www.ca-ilg.org/ revenuebasics. RevenuesLInderstanding the Basics of County and City KEY CITY REVENUE STREAMS The Big Picture: Service fees and charges for city utilities City and County Revenues Statewide such as water,sewer and garbage collection are the largest source of city CITY REVENUE SOURCES revenues,but use of these funds is limited to covering the cost of providing these Fines,Forfeitures&Penalities 1 services. Major sources of city revenue Use of Money&Property 3% Other Revenues 14% for day-to-day operations and services Revenues from Other come from sales and use tax, property tax, Service Char es business license tax (a tax on businesses Taxes 35% in the city,usually measured by gross receipts),transient occupancy (or hotel bed)tax and utility user tax. 00- KEY COUNTY REVENUE STREAMS Revenues from the federal and state government are the largest source of funding for health and human services. Property taxes, sales and use taxes, COUNTY REVENUE SOURCES vehicle license fees (collected by the Department of Motor Vehicles on annual Fines, Forfeitures&Penalities 2% car registration bills) are the primary Use of Money&Property 1 Other Revenues 7% funding sources for many county services that don't have a dedicated state or Revenues from Other G Taxes 22/ federal funding source. Service Charges Source:State Controll 's Office,Cities Annual Report and Counties Annual Report (2004-05).City reven '-s do not include the City and County of San Francisco�I The Annual Reports are pr ared by the State Controller's Office from information provided by cities and counties each year.These charts reflect way that the State Controller's Office organizes the information it receives,not the way they are presented in this pamphlet. 2 Institute for • Government The State-Local Fiscal Relationship since 1978 Over the past 30 years, substantial restrictions have been placed on the ability of cities and counties to control their major fiscal resources.They relied on these revenues to fund police and other law enforcement services, fire protection, parks,libraries, schools,hospitals and public health.This timeline summarizes the milestones in the decline in local control over local finances and efforts to restore stability in local budgets. 1978 1992 Proposition 13 Education Revenue ■ Sets the general-purpose property Augmentation Fund (ERAF) tax rate at 1 percent of assessed ■ In response to a severe budget value, cutting local property taxes by deficit,the state met its legal more than half obligation to fund schools by ■ Transfers control over property tax diverting specified amounts of local allocation to the state property taxes into an"Education ■ Restricts the purposes for which Revenue Augmentation Fund" or government obligation bonds can ERAF in each county. ERAF funds be issued are then transferred to local school entities. ■ Requires two-thirds voter approval for special taxes (see page 5) ■ Although intended as a temporary measure,the tax shift remains in ■ Requires two-thirds legislative effect. approval for new state taxes ■ In fiscal year 2007-08 the tax shift 1986 is estimated to cost cities, counties Proposition 62 and special districts more than $7 ■ Requires majority voter approval billion. for general taxes in most cities and counties �996 Proposition 218 ■ Prohibits local transaction taxes ■ Requires two-thirds voter approval or sales taxes on the sale of real for special taxes property within a typical city, county, or district ■ Requires majority voter approval for general taxes ■ Requires parcel taxes to be enacted as special tax Understanding the Basics of ■ Imposes new procedural and Proposition 1A substantive requirements for Proposition 1A was a ballot measure benefit assessments approved by voters in November 2004. ■ Imposes new procedural and The measure was sponsored by a substantive requirements for certain coalition of local agencies and others types of fees and charges including to protect against future reduction or water and sewer rates diversion of property tax and sales tax ■ Allows taxes, assessments, and fees and strengthen the state's obligation to to be reduced by voter initiative reimburse local governments for state- mandated programs. The measure 2004 protects local sales tax and vehicle Vehicle License Fee— license fees, and allows the state in Property Tax Swap future years to borrow,but not simply As part of the negotiations take,local property tax. surrounding a state budget deficit, cities and counties agreed to exchange state general fund revenues they received to offset vehicle license fee reductions for a like amount of property tax revenues from ERAF. The exchange was part of a larger agreement to secure state support for a fiscal reform ballot measure, Proposition 1A (see below). SOMETHING INTERESTING TO KNOW: ROLES AND RESPONSIBILITIES County Assessor—The assessor sets values on property and produces an annual property tax assessment roll. County Auditor-Controller—The auditor-controller receives the assessed values from the assessor and calculates the amount of property tax due. County Treasurer-Tax Collector—The treasurer-tax collector administers the billing,collection,and reporting of property tax revenues levied annually throughout California for not only the county,but also cities, schools,and special districts. Taxes Tax revenues are an important source governments and the local share may of funding for both county and city be used for any lawful purpose of the services. In addition to local taxes, local government which receives the counties rely significantly on tax tax (typically,the city in which the sale dollars allocated from the state and takes place, or the county if the sale federal governments. takes place outside a city). Counties and cities may impose a Two-thirds of voters must agree to variety of taxes.Taxes fall into one of adopt, increase, or extend a special tax. two categories: general or special. A special tax does not need to be any Counties and cities may use revenues particular type of tax. from a general tax for any legitimate property Tax public purpose. A majority of voters must approve the decision to impose, How the Tax is Calculated increase, or extend a general tax. A The property tax is a tax on certain general tax may only be submitted for kinds of property. It is based on the voter approval at an election for city value of the property. council or board of supervisors. The property tax is a state tax A special tax is a tax imposed for administered by counties. Counties a specific purpose. For example, a and cities do not impose and cannot city might increase the sales tax by increase the property tax except as adding a use tax for the acquisition described below. Taxable property of open space or for transportation includes "real property" (land and the projects,but that special tax may only buildings that are on it), as well as be used for its express purpose. The things like boats, aircraft and business basic sales tax to which it is added, equipment. however, remains a general sales tax, divided between state and local Understanding the Basics of • and City Revenues Sample Property Tax Calculation 2006 Purchase Price $ 300,000 2oo6 Property Tax Obligation (i%) $ 3,000 2007 Increase in Property Value (2%—limitation under Proposition 13) $ 6,000 2007 Property Value $ 306,000 2007 Property Tax Obligation (i%) $ 3,060 Note that other kinds of governmental charges (for example, benefit assessments,school bonds,ambulance services,etc.) are included on the bill that includes property tax bills,which will raise the amount higher than the one percent base tax rate. Under Proposition 13,the maximum Property that declines in value may tax rate permitted on real property for be reassessed downward. County general purposes is one percent of the assessors have procedures for property's assessed value. For property requesting a downward adjustment that has been owned prior to 1978-79, in value which would result in a the starting point is what the property reduction in the property tax. was worth in 1975-76.There is an annual adjustment for inflation which How are Property cannot exceed two percent per year. Tax Revenues Distributed? The one percent maximum rate can Proposition 13 transferred the be increased to pay for the acquisition authority to determine where property or improvement of real property if the tax revenues go to the Legislature. voters approve such an increase by a Generally, property taxes are allocated two-thirds margin.The maximum rate within a county based upon the cannot be increased to cover operating historical share of the property tax expenses, even with voter approval. received by local agencies prior to Proposition 13. However,those If a property changes hands,then allocations have changed over the the assessed value becomes what the years;the most significant change buyer paid for the property.This value being the ERAF property tax shift. (for the purpose of taxation) then can Proposition 1A restricts the Legislature increase at the lower of inflation or two to following certain procedures before percent per year. Changes in assessed allocating property tax from counties, value above the two percent limit are cities, and special districts to schools; also allowed for the market value of and before changing the allocations improvements. between counties, cities, and special districts. 6 Institute for • Government 110- SOMETHING INTERESTING TO KNOW: USE TAXES The sales tax has a relative called the"use tax."The use tax is imposed on purchasers Sales and Use Tax whenever sales tax does not apply, such as Consumers are familiar with the for goods purchased out of state which will experience of going to a store,buying be used in California. something, and then having an amount added for sales tax. means if you bought an item for ten The sales tax is actually imposed dollars and the cash register receipt on retailers for the privilege of shows 73 cents for sales tax,then selling tangible personal property in about 60 cents of that sales tax goes California. Services are exempt from to the state—50 cents to the state the sales tax as well as certain items, general fund. About 10 cents come like most groceries and medicine. back to local governments (5 cents Retailers typically pass this tax along to for counties to fund health social the consumer. The sales tax is assessed service and mental health programs as a percentage of the amount and 5 cents for counties and cities to purchased. fund public safety services).A fourth component exists in certain counties The "base" sales tax rate of 7.25 and cities which have increased the percent has a number of components. use tax rate to fund programs such For example, the state imposes a basic as transportation, criminal justice sales tax rate of 6.25 percent. This facilities, and the acquisition of open space. COMPONENTS OF 7.25%SALES TAX RATE Purchase Pri ■ State General Fund 504 County and City Operations Local Public Safety(Prop.172) 54 ■ Local Revenue Fund (County Programs) 54 Sales Tax 734 — ■ Countywide Transportation 34 In addition to the base,statewide rate of 7.25 percent,local voters may authorize additional sales and use taxes(technically known as "transactions and use taxes"because they have certain,technical dierences from other sales taxes). These measures add a certain amount—like a cent or a fraction of a cent—to the sales tax rate. Understanding the Basics of County and City Revenues 100- SOMETHING INTERESTING TO KNOW:SALES TAX FOR PUBLIC SAFETY Proposition 172,a ballot measure approved in 1993, placed a one-half percent sales tax in the California Constitution to be used only for local public safety activities.The state distributes Proposition 172 revenues to each county based on its proportionate share of statewide taxable sales. In many counties,cities also receive a share of those funds. Their share is based on property tax losses resulting from the state's diversion of property taxes away from local government in the mid-1990s to satisfy the state's constitutional obligation to fund schools. Locally, counties may impose a sales Business License Tax and use tax up to 1.25 percent. Cities may impose a sales and use tax at the Cities may impose business license taxes on persons or entities doing rate of up to one percent. Payment of business within the city. Majority voter the city sales tax is credited against payment of the county sales tax,which approval is necessary to impose or simply means you don't have to pay increase this tax unless revenue from the taxes will be set aside for a specific twice for the local share—only once. Cities keep all of the local sales tax purpose. collected within the city; counties keep Business license taxes are most the local sales tax collected outside city commonly based on a business' overall boundaries. revenues (a concept known as "gross In addition to the base, statewide receipts") They are also sometimes rate of 7.25 percent, local voters based on the quantity of goods may authorize additional sales and produced, number of employees, use taxes (technically known as number of vehicles, square footage of "transactions and use taxes"because space occupied by the business, or a they have certain, technical differences combination of factors. from other sales taxes).These ■ Cities set their own tax rates. measures add a certain amount—like ■ If a business operates in more than a cent or a fraction of a cent—to the one city, a city may only tax that sales tax rate. The combined rate of the portion of the business's activities additional taxes may not exceed two conducted within the city. percent. This has occurred in many m In most cases,business license areas of the state, and for this reason, taxes are not levied for regulatory most residents pay a sales tax rate that purposes (as the term "license" is 7.75 percent or higher. might imply) but to raise revenues for general municipal purposes. If a city regulates certain types of 8 Institute for • Government businesses,the fee imposed to Cities and counties may set their own pay for the cost of regulation may TOT rates.Voter approval is necessary not exceed the reasonable cost of to impose or increase this tax. regulating the business. Utility User Tax (UUT) Transient Occupancy Tax (TOT) or Hotel Bed Tax Cities may impose a tax on utilities such as gas, electricity,telephone, Visitors to an area also pay local taxes. water and cable television. Counties Such taxes help support public services may impose a utility user tax on the and facilities that make an area a consumption of electricity, gas,water, good destination for business or sewer, telephone, telegraph, and cable vacation travel. television services in county areas A key form of visitor tax is called outside city boundaries. One hundred the transient occupancy tax (often and fifty cities and four counties known by the acronym "TOT") or (Alameda, Los Angeles, Sacramento hotel bed tax. Counties and cities may and San Francisco) levy utility user tax persons staying 3o days or less in taxes; most residents and businesses hotels, motels and similar lodgings, in the state pay UUT. including mobile homes. Typically, the Utility companies usually collect utility lodging provider collects the tax from user's taxes from their customers as guests and turns the funds over to the part of their regular billing procedures. county or city. They send the funds collected to the Counties may charge transient city or county which imposed the tax. occupancy taxes on individuals staying Cities and counties may set their own in hotels and other lodgings in the UUT rates. Majority voter approval county area outside city limits,while is necessary to impose or increase cities charge the tax on individuals this tax. staying within city limits. 110- SOMETHING INTERESTING TO KNOW:SALES TAX AND THE INTERNET California collects sales tax only on sales where the seller has a physical presence in the state. Many Internet, telephone and mail-order sellers do not have such a presence. Purchasers of taxable items from such out of state sources must pay the use tax, but as a practical matter this obligation is difficult to enforce. Thus, in many cases,the purchase of a tangible item through the Internet,telephone or mail-order will not result in payment of sales tax. Unpaid state and local sales and use tax from Internet,telephone and mail-order sales currently exceeds$1 billion per year and is expected to grow substantially as Internet commerce evolves. kjqderstanding the Basics of • and City Revenues Parcel Tax A parcel tax is a special tax on a property value. Cities may impose the parcel—or unit—of real property. tax at up to one half of that amount, Unlike the property tax, a parcel tax which is credited to the payment of is not based on the value of property. the county tax. Majority voter approval Instead,parcel taxes are generally is necessary to impose or increase based on a flat per-parcel rate. Parcel this tax. taxes require two-thirds voter approval and are imposed for any number of Property Transfer Tax purposes, including funding police (Charter Cities) and fire services,neighborhood Some charter cities have enacted a improvement and revitalization, and property transfer tax on the value of open space protection. real estate that is sold.They set their Documentary Transfer Tax own rates. Majority voter approval is necessary to impose or increase A documentary transfer tax is a tax this tax. For more information about imposed on the transfer of interests charter cities, see www.cacities.org/ in real estate. Counties may tax at chartercities. a rate of 55 cents per $500 of the Service Charges, Assessments and Fees Utility Rates Utility rates are fees for utility services improvements and debt service. charged to users who pay for county Indeed, federal grant rules require or city-provided water, sewer, and local agencies to allocate overhead and electric or other utility services. Utility indirect costs to all their programs rates cover some or all of the cost and services, so that federally funded of providing the service,which may programs do not pay more than their include operations, maintenance, proportionate share of these costs. overhead, capital improvements and debt service. Regulatory Fees Benefit Assessments Regulatory fees pay for the cost of public programs or facilities Assessments are charges on real necessary to regulate a business or property or businesses to pay for other activity or mitigate the impacts facilities or services within an of the fee payer on the community. area which benefit real property Examples include a fee to pay for the or businesses. A common type cost of administering the licensing of assessment is one used to pay of pesticide applications or a fee to for landscaping and lighting in a inspect restaurants for health and neighborhood.The amount of the safety compliance. While cities and assessment must reflect the benefit to counties impose regulatory fees, the property or business that results the state does,too. So, for example, from the improvements.Assessments the state imposes a regulatory fee on property are typically collected on makers of paint containing lead through the owner's annual property to fund health care programs that tax bill. address lead poisoning. User Fees Development Impact Fees A city or county may impose fees, Development impact fees are charges and rates for services and imposed on new construction (like facilities it provides. Examples include new houses, apartments, shopping fees for checking plans for new centers, or industrial plants). They construction or for recreation classes. pay for improvements and facilities The amount of a fee may not exceed required to serve new development the cost of providing the service. This and to reduce the impacts of new cost may include overhead, capital development on a community. County'J,iderstanding the Basics of Revenues ■ Development impact fees pay for community amenities such as streets, sewers,parks and schools. They may not be used for day-to-day operating expenses. ■ The ordinance or resolution establishing the fee must explain the connection between the development project and fee. Thus a library impact fee must be connected to the demand for library services created by the construction of a new neighborhood. New development cannot be asked to pay for a new library a community needs or wants for other reasons. ■ The amount of the fee must not exceed the cost of providing the service or improvement that the fee pays for. 12 Institute for • Government Revenues from Other Government Agencies Revenues from other governments Motor Vehicle License Fee fall into two main categories: The Motor Vehicle License Fee (VLF) 1) State-administered revenues is a tax on ownership of a registered 2) Grants vehicle. All revenue from vehicle license fees must be distributed to Over half of county revenues statewide counties and cities. About three- come from state and federal sources. quarters of VLF revenues fund county This reflects the role of counties health and welfare programs. At one in implementing state policy and time, VLF was a major revenue source programs for health and human for cities. However,with the "Vehicle services. License Fee—Property Tax Swap" in Gas Tax 2004, VLF now contributes only about one percent of general revenues to the The state imposes an 18-cent per average city budget. gallon tax on gasoline (the federal government taxes gasoline, too). These Health and Welfare funds are apportioned to cities and Realignment counties, primarily on the basis of Counties receive funds from a their populations, and local gas tax dedicated statewide sales tax and a receipts must be spent on research, portion of motor vehicle license fees planning, construction, improvement which support county-operated social and maintenance of public streets, services, health, public health and highways, and mass transit. mental health programs and services. 10- SUBVENTIONS Subventions are a type of financial support provided by one level of government to another.The state levies certain taxes that are provided to counties and cities.The motor vehicle license fee and the motor vehicle fuel tax are examples. Most subventions are restricted to particular programs (for example,gas tax receipts can only be used for streets and transportation).Some can be spent as a county or city's leaders think best(such as vehicle license fees). Local agencies also receive reimbursement for revenue lost as a result of various tax exemptions and reductions. Examples include the homeowners' property tax exemption,which eliminates the property tax on a small portion of the assessed valuation of owner-occupied residential property. Understanding the Basics of • and City Revenues SOMETHING INTERESTING TO KNOW Maintenance of Effort Requirements When cities and counties receive funding for programs from the state or federal government,such funding may come with strings attached.A common condition is that the city or county commit to a certain level of funding.This commitment is called maintenance of effort or MOE. Realignment revenues come with a maintenance of effort requirement. Grant Funding ■Categorical grants support a defined program area.Categorical grants typically go to local agencies that meet predetermined funding criteria or compete for project funding through an application process. ■ Block grants provide funding to a broad functional area. For example,federal Community Development Block Grant (CDBG) funds support local housing and economic development activities. These funds are referred to as the State and Federal Mandates Realignment Allocation. State and Federal laws sometimes In 1991, the state shifted ("realigned") direct counties and cities to provide responsibility for funding a large particular programs or services. The legal requirement, or mandate, to portion of health and social services provide these programs or services does programs to counties in exchange not always come with adequate state or for allowing increased administrative Federal funding to support it. Legislative flexibility in those programs. The requirements to provide programs or state only funds part of the programs' services without such support are called cost; counties must provide a share of unfunded mandates. funding. California's constitution generally Federal and State Grants prohibits unfunded mandates. to Counties Counties and cities may file claims Federal and state grants comprise a for reimbursement of certain state large proportion of county revenues. mandated costs. However, the process These funds are largely restricted to typically takes several years. During that particular uses. Examples include time, cities and counties are spending specific human services, such as money to comply with the mandate. grants for health,mental health, social California voters tried to tighten up the and child welfare services and related system in 2004, with the passage of administration. Grants typically do Proposition 1A. This measure required not pay for the full cost of a program; the state to suspend state mandates in recipient agencies typically pay a share any year when the Legislature does not of these costs with funding from provide full funding. local sources. 14 Institute for • Government Rent for Use of Public Property Including Streets Earnings on Investments Franchise Fees Counties and cities earn interest on Another revenue source is franchise investments. State law specifies what fees. Franchise fees are a form of kinds of investments are okay. Charter rent for use of public streets and cities have more investment flexibility. roadways. Examples of businesses that pay franchise fees include trash Rents, Royalties collectors, cable television companies, and Concessions electric utilities and oil and natural Another way cities and counties pay gas pipeline companies. Federal and for public services is to charge rent state law limits the amount of some for use of the public's property.An franchise fees (for example,video example is royalties from natural and cable television franchise fees). resources taken from land the Franchise fees for provision of video public owns. Others include selling services (like television programming) advertisements in publications or are overseen by the state. receiving a percentage of net profits from concessionaires operating on public property. Fines, Forfeitures and Penalties Violations of the law often result in a ■ State law apportions revenues for fine of some kind. parking violations and surcharges Fines, forfeitures, and penalties may between issuing agencies and the be imposed for many reasons.Typical counties. examples include traffic violations, ■ A city or county may impose fines, court fines and penalties and interest forfeitures and penalties for civil on late or unpaid taxes. violation of local ordinances. ■ State law determines the ■ Bail for local code violations is distribution of fines and bail established by the local courts with forfeitures imposed by the state. input from the city or county. Other Revenues There are a number of other city and Financial Management for Elected county revenues. One example is the Officials, Institute for Local sale of surplus property.These are a Government (www.ca-ilg.org/ very small part of the revenue story for financeguide) most cities and counties. All About Cities, League of California Resources for Further Information Cities (http://www.cacities.org/index.j California Local Government Finance sp?zone=locc&previewStory=3162) Almanac: Data, statistics, analyses on Legislative Analyst's Office, Local California City and County Finance Government Section (www.lao.ca.gov/ (www.califomiacityfinance.com/) laoapp/main.aspx?type=3&CatID=8) What Do Counties Do?, California State Association of Counties (http://www. csac.counties.org/default.asp?id=2) 16 Institute for • Government Public Involvement in the Revenue Process Taxes Voters have an important say on taxes. charge, because those charges are For general taxes, a majority of voters typically imposed only on people who voting in an election is needed to request a service and not on everyone impose, increase, or extend a general who owns or uses property. tax.A general tax is one which may To impose a property-related fee, be used for any lawful city or county the agency must first hold a public purpose. hearing.At the hearing, a majority of Special taxes are those that fund a affected property owners can prevent specific purpose.Two-thirds of voters the fee's adoption by filing written voting in an election must agree to protests.A successful majority protest adopt, increase, or extend a special tax. is rare because it is difficult to get a majority of property owners to Assessments participate in a protest proceeding. Assessments are charges on land Even protests which do not meet collected through the property tax the legally required 50 percent of all bill.Assessments pay for public property owners get the attention improvements or services within a of elected officials and can lead to specific area (known as a"district"). revisions in fee proposals. A majority of the property owners If a majority of affected property subject to the charge must approve owners do not protest the fee, and the the assessment in a mailed ballot.The fee pays for sewer,water, or refuse owners'votes are weighted according collection,then the fee is approved. to how much their property will be No other process is required. charged.This means those who would For other property-related fees, pay more have a bigger say in whether the assessment is approved because however, an election comes next. they will pay a larger portion of the The agency imposing the fee has a choice between asking the voters assessment. generally to approve the fee or only the Property-Related Fees owners of the property who would pay the fee. If the agency asks the voters Another kind of charge which requires for their input,then approval of the public participation is known as fee requires atwo-thirds vote. If the property-related fees.These include agency asks just the affected property user fees or charges for property- owners to vote,then approval requires related services. They do not include a majority vote. most of the fees local governments Understanding the Basics of • and City Revenues 17 Other Revenues With few exceptions,virtually all other revenues, such as planning permit application fees, parking meter rates, recreation facility use charges or fines and penalties, require appropriate notice and opportunities for public comment. 219 ABOUT THE INSTITUTE FOR LOCAL GOVERNMENT The Institute for Local Government is the nonprofit research affiliate of the League of California Cities and the California State Association of Counties. Its mission is to serve as a source of independent research and information for California's communities and their leaders. The Institute's current program areas include: • Climate Change Healthy Communities • Collaborative Governance Initiative Land Use and Housing • Communities for Healthy Kids Public Service Ethics • Fiscal Stewardship INSTITUTE FOR LOCAL GOVERNMENT 1400 K Street,Suite 301 Sacramento,California 95814 Telephone:916.658.8208 Fax:916.444.7535 www.ca-ilg.org For additional copies of this publication,contact CityBooks at (916) 658-8257 or visit www.cacities.org/store. SKU:776 Price: • i�4 V aE + •�yf 1 e•ii. I� ,MwftJ1 k4T ` 1 :F THE PEOPLE ' S BUSINESS : A Guide to the California Public Records Act OFEAGUE CITIES ACKNOWLEDGEMENTS AUTHORS OF THE PEOPLE'S BUSINESS The League gratefully acknowledges the work of the Public Records Act Publication Committee,which authored this guide.Each member devoted countless hours to this project,and the League sincerely thanks each of them. Gregory P.Priamos,Chair Craig Labadie City Attorney,Riverside City Attorney,Concord Timothy T. Coates Juli Christine Scott Greines,Martin,Stein,&Richland,LLP Chief Assistant City Attorney,Burbank Eric W. Danly Kristina R.Scott City Attorney,Cloverdale and Petaluma Deputy City Attorney,Los Angeles Meyers Nave Eileen M.Teichert Roxanne M. Diaz City Attorney,Sacramento City Attorney,Hidden Hills Richards,Watson&Gershon Paul H.Zarefsky Deputy City Attorney,San Francisco Shawn D. Hagerty City Attorney,Santee Best Best&Krieger Jolie Houston City Attorney,Los Altos Berliner Cohen The League also thanks the following individuals for their assistance in reviewing and commenting on drafts of this publication: Amy Albano,City Attorney,Thousand Oaks;Jason Alcala,Assistant City Attorney, Livermore;Michael Jenkins,City Attorney,Diamond Bar,Hermosa Beach,Rolling Hills,and West Hollywood; Randi Johl'City Clerk,Lodi;Michelle Marchetta Kenyon,City Attorney,Calistoga,Rohnert Park,and Moraga; Colleen Nicol,City Clerk,Riverside;Lisa Pope,City Clerk,Malibu;Shalice Reynoso,City Clerk,Buena Park; and Brian Weinberger,Consultant,Senate Local Government Committee. In addition,the League thanks the law firms of Greines,Martin,Stein,&Richland and Best Best&Krieger for their help with final edits,and a special thanks to Cindy Cekander of Best Best&Krieger for her invaluable assistance. LEAGUE STAFF Patrick Whitnell General Counsel Kourtney Burdick Deputy General Counsel Rhonda Boglin Legal Assistant 222 THE PEOPLE 'S A GUIDE TO THE PUBLIC RECORDS ACT -.. �a p � •7 A - -� . ASO CH. 1: INTRODUCTION AND OVERVIEW CH. 2: THE BASICS CH. 3: RESPONDING TO A PUBLIC RECORDS REQUEST CH. 4: EXEMPTIONS CH. 5: JUDICIAL REVIEW AND REMEDIES CH. 6: RECORDS MANAGEMENT THE PEOPLE'S BUSINESS: A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT OFEAGUE CITIES Copyright©2008 League of California Cities All rights reserved.This publication,or parts thereof,may not be reproduced in any form without the permission of the League of California Cities. it 224 TABLE OF CONTENTS FOREWORD:.............................................................................................................................................iv CHAPTER 1: INTRODUCTION AND OVERVIEW Fundamental Right of Access to Information..........................................................................................2 Fundamental Right of Privacy and Need for Efficient and Effective Government.................................3 AchievingBalance....................................................................................................................................3 Proposition59...........................................................................................................................................3 Beyondthe Law........................................................................................................................................4 CHAPTER2: THE BASICS AgenciesCovered....................................................................................................................................6 WhatAre Public Records?........................................................................................................................6 WhoCan Request Records?....................................................................................................................7 CHAPTER 3: RESPONDING TO A PUBLIC RECORDS REQUEST Typesof Requests...................................................................................................................................10 Formof the Request...............................................................................................................................11 Contentof the Request..........................................................................................................................11 TheDuty to Respond..............................................................................................................................11 Timingof the Response..........................................................................................................................11 Extending the Response Time................................................................................................................11 Assistingthe Requester.........................................................................................................................12 LocatingRecords....................................................................................................................................12 RedactingRecords..................................................................................................................................13 Typesof Responses................................................................................................................................13 Waiver.....................................................................................................................................................13 No Duty to Create a Record or to Create a Privilege Log.....................................................................13 Timingof Disclosure...............................................................................................................................13 Fees.........................................................................................................................................................14 CHAPTER 4: EXEMPTIONS Overviewof Exemptions........................................................................................................................18 SpecificExemptions...............................................................................................................................19 Architectural and Official Building Plans.......................................................................................19 Attorney Client Communications and Attorney Work Product....................................................19 Code Enforcement Records...........................................................................................................20 Drafts...............................................................................................................................................20 ElectionInformation.......................................................................................................................21 Identityof Informants.....................................................................................................................21 Law Enforcement Records.............................................................................................................22 Library Circulation Records............................................................................................................25 LicenseeFinancial Information......................................................................................................25 MedicalPrivacy Laws.....................................................................................................................25 OfficialInformation Privilege..........................................................................................................27 Pending Litigation or Claims..........................................................................................................28 Personal Contact Information........................................................................................................29 PersonnelRecords.........................................................................................................................29 Public Contracting Documents......................................................................................................31 Real Estate Appraisals and Engineering Evaluations....................................................................32 Recipients of Public Services.........................................................................................................32 Taxpayer Information.....................................................................................................................33 Trade Secrets and Other Proprietary Information.........................................................................33 Utility Customer Information..........................................................................................................33 PublicInterest Exemption......................................................................................................................34 Effect of Proposition 59 on Exemptions................................................................................................35 CHAPTER 5: JUDICIAL REVIEW AND REMEDIES Overview.................................................................................................................................................44 The Trial Court Process and Decision....................................................................................................44 AppellateReview....................................................................................................................................45 AttorneyFees and Costs........................................................................................................................46 CHAPTER 6: RECORDS MANAGEMENT PublicMeeting Records.........................................................................................................................50 ElectronicRecords..................................................................................................................................51 ElectronicDiscovery...............................................................................................................................52 Records Retention and Destruction Laws.............................................................................................52 APPENDIX: Frequently Requested Information and Records...............................................................55 225 1 FOR TOM The goal of this publication is to provide a comprehensive overview of the California Public Records Act for local government officials and employees,the public and the news media.This guide offers practical advice to assist local agencies in complying with the requirements of the Act and other related state laws.The guide is focused on settled law and is not intended to resolve emerging and unresolved legal issues. The League thanks the following organizations representing diverse views and constituencies that reviewed,or were given the opportunity to review,this publication: Association of California Water Agencies California School Boards Association California Association of Sanitation Agencies California Special Districts Association California Attorney General's Office California State Association of Counties California Common Cause Californians Aware California District Attorneys Association City Clerks Association of California California First Amendment Coalition Community College League of California California Newspaper Publishers Association First Amendment Project California Redevelopment Association League of Women Voters of California This publication is current as of March,2008.Updates to the publication responding to changes in the Public Records Act and related laws including court interpretations are available at www.cacities.org/opengov. As used in this guide,"local agency"means all public agencies to which the Public Records Act applies.This publication is not intended to provide legal advice.A local agency's legal counsel is responsible for advising its governing body and staff,and should always be consulted when legal issues arise. Additional copies of this publication as well as an individual table of"Frequently Requested Information and Records"may be purchased by visiting CityBooks online at www.cacities.org/store. IV 226 INTRODUCTIONCHAPTEf� 1 : ' FUNDAMENTAL RIGHT OF ACCESS TO INFORMATION FUNDAMENTAL RIGHT OF PRIVACY AND NEED FOR EFFICIENT AND EFFECTIVE GOVERNMENT ACHIEVING BALANCE PROPOSITION 59 BEYOND THE LAW CHAPT E R 1 . _ r INTRODUCTION AND OVERVIEW10 1 ` -- 60 F 1 ■ FUNDAMENTAL RIGHT OF ACCESS TO INFORMATION The California Public Records Act' (the'Act")is an indispensable component of California's commitment to open government.The purpose of the Act is to give the public access to information that enables them to monitor the functioning of their government.'The Act's fundamental precept is that Practice Tip: governmental records shall be disclosed to the public,upon request,unless there is a legal basis not to Express legal authority do so. is required to justify The Act provides for two types of access.One is a right to inspect public records: denial of access to public records. "Public records are open to inspection at all times during the office hours of the state or local The perception that agency and every person has a right to inspect any public record,except as hereafter provided."' disclosure of a record could lead to potential The other is a right to prompt availability of copies of those records: embarrassment of the "Except with respect to public records exempt from disclosure by express provisions of law, local agency,alone,is each state or local agency,upon a request for a copy of records that reasonably describes an not a legal basis for denying access. identifiable record or records,shall make the records promptly available to any person upon payment of fees covering direct costs of duplication,or a statutory fee if applicable.Upon request, an exact copy shall be provided unless impracticable to do so."' These rights of access are by no means unlimited and do not extend to records that are exempt from disclosure.In fact,the Act was the culmination of a 15-year effort by the Legislature to create a comprehensive general records law that attempted to accumulate all the exemptions in one location. Previously,one was required to look at the law governing the specific type of record in question in order to determine its disclosability.The Act now expressly states or references other laws that are the sources of legal authority permitting records to be withheld.' 2 TEil?$EOPLE'S BUSINESS 0 Chapter 1: Introduction and Overview ■ FUNDAMENTAL RIGHT OF PRIVACYAND NEED FOR EFFICIENT AND EFFECTIVE GOVERNMENT Two recurring interests underlie many of the exemptions from disclosure.First,many exemptions under the Act are based on protecting an individual's fundamental right to privacy and permit withholding of, for example,certain personnel or medical records.6 If personal information is required from a person (for example,a government employee or appointee,or an applicant for government employment/ appointment,as a precondition for the employment or appointment),a court would likely recognize a privacy interest in such information.7 However,if information is provided voluntarily in order to acquire a benefit,the information relates to serious wrongdoing,or the information is associated with an applicant's qualifications,a court is less likely to recognize a privacy right.' Second,a number of exemptions are based on the government's need to perform its assigned functions in a reasonably efficient and effective manner,such as maintaining confidentiality of investigative records, official information,pending litigation records,and preliminary drafts.In addition,a record may be withheld whenever the public interest in nondisclosure clearly outweighs the public interest in disclosure.9 The deliberative process privilege combines these two interests in affording a measure of privacy to decision makers and concurrently aiding in the efficiency and effectiveness of government.10 ■ACHIEVING BALANCE In enacting the California Public Records Act,the Legislature struck a balance between two competing,fundamental = interests.The legislative findings declare that access to information concerning the conduct of the people's business - is a fundamental and necessary right for every person in the state and that the Legislature is"mindful of the right of " individuals to privacy."11 The Act balances these competing interests by preserving an"island of privacy upon the broad sea of enforced disclosure."12 For the past forty years,courts -have also balanced these competing interests in deciding whether to order disclosure of records.13 In administering the provisions of the Act,agencies must often balance the right of public access against the right of privacy and the need for governmental efficiency and effectiveness. ■ PROPOSITION 59 In November 2004,the voters approved Proposition 59,amending the California Constitution to include the public's right to access public records."The people have the right of access to information concerning the conduct of the people's business,and,therefore,the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny"14 Proposition 59 expressly states that"[tlhis subdivision does not repeal or nullify,expressly or by implication, any constitutional or statutory exception to the right of access to public records...that is in effect on the effective date of this subdivision,including,but not limited to,any statute protecting the confidentiality of law enforcement and prosecution records."15 The courts have not yet squarely ruled whether Proposition 59 provides the public with a greater right of access than is provided under the Act. THE PEOPLE'S BUSINESS 0 Chapter 1: Introduction and Overvie229 3 _ ■ BEYOND THE LAW The Act itself provides that"except as otherwise prohibited by law,a state or local agency may adopt requirements for itself that allow for faster,more efficient,or greater access to records than 1: prescribed by the minimum standards set forth in this chapter."16 A v number of local agencies have gone beyond the mandates of the Act by adopting their own"sunshine ordinances"to afford greater public access. To encourage local agencies'compliance,the Act provides for a mandatory award of court costs and attorney's fees to a prevailing plaintiff.A plaintiff need not obtain all of the requested records in order to be the prevailing party in litigation.A plaintiff is also considered the prevailing party if the lawsuit ultimately motivated the agency to provide the requested records.17 " This publication is intended to help local agencies navigate the Act,comply with the spirit and intent of the Act,and interpret the Act in furtherance of open government.This publication is further intended to help members of the public understand their rights of access to public information,as well as the limitations on those rights. Endnotes 1 Gov.Code,§§6250 et seq.All code references are to the California Code unless otherwise indicated. 2 U.S.Dept.of Justice v.Reporters Com.for Freedom of Press(1989)489 U.S.749;CBS,Inc.v.Block(1986)42 Cal.3d 646;Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 3 Gov.Code,§6253,subd.(a). 4 Gov.Code,§6253,subd.(b). 5 Gov.Code,§§6254,subd.(k),6276.02 et seq. 6 Cal.Const.,art.I,§1;Gov.Code,§§6254,subd.(c),6254,subd.(k),6255;New York Times Co.v.Superior Court (1990)218 Cal.App.3d 1579. 7 San Gabriel Tribune v.Superior Court(1983) 143 Cal.App.3d 762;Braun v.City of Taft(1984) 154 Cal.App.3d 332; Wilson v.Superior Court(1996)51 Cal.App.4th 1136;Cal.FirstAmend.Coalition v.Superior Court(1998)67 Cal. AppAth 159;Eskaton Monterey Hospital v.Myers(1982) 134 Cal.App.3d 788. 8 Calif.State Univ,Fresno Assn.v.Superior Court(2001)90 Cal.App.4th 810;San Gabriel Tribune v.Superior Court (1983) 143 Cal.App.3d 762;Register Diu Freedom Newspaper,Inc.v.County of Orange(1984) 158 Cal.App.3d 893; CBS,Inc.v.Block(1986)42 Cal.3d 646;Eskaton Monterey Hospital u Myers(1982)134 Cal.App.3d 788;BRV,Inc.v. Superior Court(2006) 143 Cal.App.4th 742. 9 Gov.Code,§6255. 10 See"Deliberative Process Privilege,"p.35. 11 Gov.Code,§6250;Cal.Const.,art.I,§3,subd.(b)(3). 12 Black Panther Party v.Kehoe(1974)42 Cal.App.3d 645. 13 Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325;Wilson v.Superior Court(1996)51 Cal.App.4th 1136; American Academy of Pediatrics v.Lungren(1997) 16 CalAth 307;Britt v.Superior Court(1978)20 Ca1.3d 844. 14 Cal.Const.,art.I,§3,subd.(b)(1). 15 Cal.Const.,art.I,§3,subd.(b)(5). 16 Gov.Code,§6253,subd.(e). 17 Roberts v.City of Palmdale(1993)19 Cal.App.4th 469;Belth v.Garamendi(1991)232 Cal.App.3d 896. 4 TkiB@EOPLE'S BUSINESS■ Chapter 1: Introduction and Overview CHAPTEf� 2 : THE BASICS mom n r AGENCIES COVERED WHAT ARE PUBLIC RECORDS? WHO CAN REQUEST RECORDS? CHAPT E R 2 : - THE BASICS ■AGENCIES COVERED The Act applies to state and local agencies.For purposes of the Act,a state agency is defined to mean "every state office,officer,department,division,bureau,board and commission or other state body or agency."'A local agency includes a county,city(whether general law or chartered),city and county,school district,municipal corporation,special district,community college district or political subdivision.2 This encompasses any committees,boards,commissions or departments of those entities as well.Nonprofit entities that are legislative bodies under the Brown Act are also subject to the Act.Private nonprofit entities that are delegated legal authority to carry out public functions are also subject to the Act if they are funded with public money.' The Act does not apply to the Legislature or the judicial branch.4 The Legislative wp Open Records Act covers the Legislature.5 Most court records are disclosable as + a matter of public right of access to courts under the First Amendment of the United States Constitution.6 ■WHAT ARE PUBLIC RECORDS? The Act defines"public records"as"any writing containing information relating F to the conduct of the public's business prepared,owned,used,or retained by any state or local agency regardless of physical form or characteristics."' A writing is defined as"any handwriting,typewriting,printing,photostating, photographing,photocopying,transmitting by electronic mail or facsimile,and every other means of recording upon any tangible thing any form of communication or representation, including letters,words,pictures,sounds,or symbols,or combinations thereof,and any record thereby created,regardless of the manner in which the record has been stored."8 The definition of a public record is quite broad and is intended to encompass much more than written or printed documents.A public record is subject to disclosure under the Act"regardless of its physical form or characteristics."9 For example,email messages and other electronic information are public records if they otherwise meet the statutory definition. 6 232 THE PEOPLE'S BUSINESS 0 Chapter 2: The Basics Over the years the courts have both broadened and limited the scope of the definition of a"public record."First,it is clear that the term"public records"encompasses more than simply those documents that public officials are required by law to keep as official records.Courts have held that a public record is one that is"necessary or convenient to the discharge of[an]official duty" such as a status memorandum provided to the City Manager on a pending project.10 Second,courts have observed that merely because the writing is in the possession of the local agency,it is not automatically a public record.It must relate to the conduct of the public's business.11 For example,records containing purely personal information unrelated to the conduct of the people's business, such as an employee's personal address list or grocery list,are considered outside the scope of the Act.12 ■WHO CAN RECZUEST RECORDS? All"persons"have the right to inspect and copy disclosable public records.A"person"need not be a resident of California or a citizen of the United States to make use of the Act.13"Persons"include corporations,partnerships,limited liability companies,firms or association S.14 Often requesters include persons who have filed claims or lawsuits against the government,or who are investigating the possibility of doing so,or who just want to know what their government officials are up to.Local agencies and their officials are entitled to access public records on the same basis as any other person."Further,local agency officials may access public records of their own agency that are otherwise exempt when authorized to do so as part of their official duties.16 With certain exceptions,neither the media nor a person who is the subject of a public record has any greater right of access to public records than any other person.17 THE PEOPLE'S BUSINESS 0 Chapter 2: The Basics 233 7 Endnotes 1 Gov.Code,§6252,subd.(f).Excluded from the definition of state agency are those agencies provided for in article IV(except section 20(k))and article VI of the Cal.Constitution. 2 Gov.Code,§6252,subd.(a). 3 Gov.Code,§6252,subd.(a),85 Ops.Cal.Atty.Gen.55(2002). 4 Gov.Code,§6252,subds.(a),(b);Mack v.State Bar of Cal. (2001)92 Cal.AppAth 957. 5 Gov.Code,§1070 6 Pantos v.City and County of San Francisco(1984) 151 Cal.App.3d 258;Champion v.Superior Court(1988)201 Cal. App.3d 777 7 Gov.Code,§6252,subd.(e). 8 Gov.Code,§6252,subd.(g). 9 Gov.Code,§6252,subd.(e). 10 Braun v.City of Taft(1984) 154 Cal.App.3d 332;San Gabriel Tribune v.Superior Court(1983) 143 Cal.App.3d 762. 11 Gov.Code,§6252,subd.(e);Braun v.City of Taft(1984) 154 Cal.App.3d 332;San Gabriel Tribune v.Superior Court (1983) 143 Cal.App.3d 762. 12 San Gabriel Tribune v Superior Court(1983)143 Cal.App.3d 762. 13 Gov.Code,§6252,.subd.(c);Connell v.Superior Court(1997)56 Cal.AppAth 601. 14 Gov.Code,§6252,subd.(c). 15 Gov.Code,§6252.5;Los Angeles Unified School Dist.v Superior Court(2007) 151 Cal.AppAth 759. 16 Gov.Code,§6252,subd.(b).See also Gov.Code,§54957.2. 17 Marylander v.Superior Court(2002)81 Cal.AppAth 1119;Los Angeles Police Dept.v.Superior Court(1977)65 Cal. App.661.See"Information That Must Be Disclosed,"P.22;"Requests for Journalistic or Scholarly Purposes,"p.24. 8 234 THE PEOPLE'S BUSINESS 0 Chapter 2: The Basics CHAPTER 3 : RESPONDING TO A PUBLIC RECORDS REQUEST t ,f TYPES OF REQUESTS FORM OF THE REQUEST CONTENT OF THE REQUEST THE DUTY TO RESPOND TIMING OF THE RESPONSE EXTENDING THE RESPONSE TIME ASSISTING THE REQUESTER LOCATING RECORDS REDACTING RECORDS TYPES OF RESPONSES WAIVER NO DUTY TO CREATE A RECORD OR TO CREATE A PRIVILEGE LOG TIMING OF DISCLOSURE FEES �r CHAPT E R 3 : RESPONDING TO A -� PUBLIC RECORDS REQUEST ■TYPES OF REC_UESTS There are two ways to gain access to a public record—inspecting the record at the local agency's offices, or obtaining a copy from the local agency.The local agency may not dictate to the requester which option must be used.That is the requester's decision.Indeed,a requester does not have to choose between inspection and copying but instead can choose both options.For example,a requester may first inspect a set of records,and then,based on that review,decide which records should be copied. Practice Tip: A requester may inspect public records during the local agency's regular office hours.'This does not mean If the public records request that a requester has a right to demand to see a record and immediately gain access to it.The right to does not make clear whether inspect is constrained by an implied rule of reason to protect records against theft,mutilation,or accidental the requester wants to damage,prevent interference with the orderly functioning of the office,and generally avoid chaos in record inspect or obtain a copy of archives.'Moreover,the agency's time to respond to an inspection request is governed by the deadlines set the record or records being forth below,which give the agency a reasonable opportunity to search for,collect,and,if necessary,redact sought,the local agency exempt information prior to the records being disclosed in an inspection.3 should seek clarification from the requester without If a copy of a record has been requested,the local agency generally must provide an exact copy except delaying the process of where it is"impracticable"to do so.'The term"impracticable"does not necessarily mean that compliance searching for,collecting,and with the public records request would be inconvenient or time-consuming to the local agency.Rather, redacting or"whiting out" exempt information in the it means that the agency must provide the best or most complete copy of the requested record that is records. reasonably possible.5 As with the right to inspect public records,the same rule of reasonableness applies to the right to obtain copies of records.Thus,the custodian may impose reasonable restrictions on general requests for copies of voluminous classes of documents.6 The Act does not provide for a standing or continuing request for documents that may be generated in the future.However,the Brown Act provides that a person may make a request to receive a mailed copy of the agenda,or all documents constituting the agenda packet for any meeting of the legislative body.This request shall be valid for the calendar year in which it is filed.' to THE PEOPLE'S2WINESS■ Chapter 3: Responding to a Public Records Request ■ FORM OF THE REQUEST A public records request may be made in writing or orally,in person or by phone."Further,a written request may be made in paper or electronic form and may be mailed, emailed,faxed,or personally delivered.A practice Tip: local agency may ask,but not require,that the requester put an oral request in writing.In general,a written request is preferable to an oral request because it provides a record of when the request was made and d public records request is different than a question or what was requested,and helps the agency respond in a more timely and thorough manner. series of questions posed to local agency officials or ■ CONTENT OF THE REQUEST employees.The Act creates A public records request must reasonably describe an identifiable record or records.9 It must be focused no duty to answer written and specific10 and clear enough so that the agency can decipher what record or records are being sought." or oral questions submitted A request that is so open-ended that it amounts to asking for all of a department's files is not reasonable. by members of the public. If a request is not clear or is overly broad,the local agency still has a duty to assist the requester in But if an existing and readilyavailable record contains reformulating the request to make it more clear or less broad.12 information that would A request does not need to precisely identify the record or records being sought.For example,a requester directly answer a question, from a customer service may not know the exact date of a record or its title or author,but if the request is descriptive enough for standpoint,it is advisable to the local agency to understand which records fall within its scope,the request is reasonable.Requests may either answer the question identify writings somewhat generally by their content.13 or provide the record in No magic words need be used to trigger the local agency's obligation to respond to a request for records. response to the question. The content of the request must simply indicate that a public record is being sought.Occasionally,a requester may incorrectly refer to the federal Freedom of Information Act("FOIA)as the legal basis for the request.This does not excuse the agency from responding if the request seeks public records.A public records request need not state its purpose or the use to which the record will be put by the requester.14 A requester does not have to justify or explain the reason for exercising a fundamental right.15 ■THE DUTY TO RESPOND Under no circumstances should a local agency simply not respond to a public records request.Even if the Practice Tip: request does not reasonably describe an identifiable record,the requested record does not exist,or the Though not legally required,a local agency may find it record is exempt from disclosure,the agency must respond.16 convenient to use a written form for public records ■TIMING OF THE RESPONSE requests,particularly for Time is critical in responding to public records requests.A local agency must respond promptly,but no those instances when a later than ten calendar days from receipt of the request,to notify the requester whether records will be requester"drops in"to an disclosed.17 If the request is received after business hours or on a weekend or holiday,the next business office and asks for one or more records.The local day may be considered the date of receipt.The ten-day response period starts with the first calendar day agency cannot require after the date of receipt.18 If the tenth day falls on a weekend or holiday,the next business day is considered the requester to use a the deadline for responding to the request.19 The time limit for responding to a public records request is not particular form,but having necessarily the same as the time within which the records must be disclosed to the requester.20 the form and even having agency staff assist with ■ EXTENDING THE RESPONSE TIME filling out the form may help A local agency may extend the ten-day response period for up to 14 additional calendar days because of agencies better identify the information sought,follow the need: up with the requester using • To search for and collect the requested records from field facilities or other establishments separate the contact information from the office processing the request; provided,and provide more effective assistance to the • To search for,collect,and appropriately examine a voluminous amount of separate and distinct records requester. demanded in a single request; THE PEOPLE'S BUSINESS 0 Chapter 3: Responding to a Public Rt2&7s Request 11 • To consult with another agency having substantial interest in the request(such as a state agency),or among two or Practice Tip: more components of the local agency(such as two city If a local agency is having departments)with substantial interest in the request;and/or difficulty responding to a public records request within • In the case of electronic records,to compile data,write _ the 10-day response period, programming language or a computer program,or to and there are not grounds construct a computer report to extract data.21 to extend the response period for an additional 14 No other reasons justify an extension of time to respond to a days,the agency may obtain public records request.For example,a local agency may not an extension by consent extend the time on the basis that it has other pressing business,or that the employee most knowledgeable of the requester.Often a about the records sought is on vacation or otherwise unavailable. requester will cooperate with the agency,particularly If a local agency exercises its right to extend the response time beyond the ten-day period,it must do so if the requester believes the in writing,stating the reasons for the extension and the anticipated date of the response within the 14-day agency is acting reasonably extension period.22 The agency does not need the consent of the requester to extend the time for response. and conscientiously in processing the request.It is 0 ASSISTING THE REQUESTER also advisable to document in writing any extension Local agencies must provide assistance to requesters who are having difficulty making a focused and agreed to by the requester. effective request.23 To the extent reasonable under the circumstances,a local agency must: • Assist the requester in identifying records that are responsive to the request or the purpose of the request,if stated; • Describe the information technology and physical location in which the records exist;and • Provide suggestions for overcoming any practical basis for denying access to records.24 Alternatively,the local agency may satisfy its duty to assist the requester if it gives the requester an index of record S.25 Ordinarily an inquiry into a requester's purpose in seeking access to a public record is inappropriate'26 but such an inquiry may be proper if it will help assist the requester in making a focused request that reasonably describes identifiable records.27 ■ LOCATING RECORDS A local agency must make a reasonable effort to search for and locate the record or records that have been requested.211 No bright-line test exists to determine whether an effort is reasonable.That determination will depend on the facts and circumstances surrounding each request.In general,upon the local agency's receipt of a public records request,those persons or offices within the agency that would most likely be in possession of responsive records should be consulted in an effort to locate such records. The right to access public records is not without limits.A local agency is not required to perform a"needle in a haystack"search to locate the record or records sought by the requester.29 Nor is it compelled P to undergo a search that will produce a"huge volume"of material in response to the request.30 On the other hand,an agency typically will endure some burden–at times,a significant burden–in its 1 — records search.Usually that burden alone will be insufficient to justify FL noncompliance with the request.31 Nevertheless,if the request imposes - a substantial enough burden,an agency may decide to withhold the requested records on the basis that the public interest in nondisclosure - �- clearly outweighs the public interest in disclosure.32 12 THE PEOPLE'S2WINESS 0 Chapter 3: Responding to a Public Records Request ■ REDACTING RECORDS Some records contain information that must be disclosed,along with information that is exempt from disclosure.A local agency has a duty to provide such a record to the requester in redacted form if the practice Tip: nonexempt information is"reasonably segregable"from that which is exempt,33 unless the burden of Care should be taken redacting the record becomes too great.34 What is reasonably segregable will depend on the circumstances. in deciding whether to If exempt information is inextricably intertwined with nonexempt information,the record may be withheld disclose,withhold,or redact in its entirety.35 a record.when a public records request presents ■TYPES OF RESPONSES novel or complicated After conducting a reasonable search for requested records,a local agency has only a limited number of issues or implicates policy possible responses.If a search yields no responsive records,the agency must inform the requester.If the concerns or third party rights,it is advisable to agency locates a responsive record,it must decide whether to: consult with the local • Disclose the record; agency's legal counsel before making this decision. • Withhold the record;or • Disclose the record in redacted form. In responding to a written public records request,if the local agency does not have the record or has decided to withhold it,or if the requested record is disclosed in redacted form,the agency's response must be in writing,and must identify by name and title each person responsible for the decision.36 If the record is withheld in its entirety or provided to the requester in redacted form,the local agency must state the legal basis under the Act for its decision not to comply fully with the request.37 Statements like "we don't give up those types of records"or"our policy is to keep such records confidential"will not suffice. ■WAIVER Generally,whenever a local agency discloses an otherwise exempt public record to any member of the practice Tip: public,the disclosure constitutes a waiver of most of the exemptions contained in the Act for all future requests for the same information.31 There are a number of statutory exceptions to the waiver provisions, A local agency should always document that it including disclosures made through discovery or other legal proceedings and disclosures to another is supplying the record to governmental agency that agrees to treat the disclosed material as confidential.39 the requester.The fact and sufficiency of the response ■ NO DUTY TO CREATE A RECORD OR TO CREATE A PRIVILEGE LOG may become points of A local agency has no duty to create a record that does not exist at the time of the request.40 There is also dispute with the requester. no duty to reconstruct a record that was lawfully discarded prior to receipt of the request. Any response that denies in whole or in part an oral The Act does not require a local agency to create a"privilege log"or list that identifies the specific records public records request being withheld.41 The response only needs to identify the legal grounds for nondisclosure.If the agency should be put in writing. creates a privilege log for its own use,however,that document may be considered a public record and may be subject to disclosure in response to a later public records request. ■TIMING OF DISCLOSURE Although the law precisely defines the time for responding to a public records request,it is less precise in defining the deadline for disclosing records.The Act simply states that copies of records must be provided "promptly"42 As for when a requester must be given access to inspect records,the Act is silent,but it is generally assumed that the same standard of promptness applies.Further,the Act states that nothing therein"shall be construed to permit an agency to delay or obstruct the inspection or copying of public record S,"43 which signals the importance of promptly disclosing records to the requester. THE PEOPLE'S BUSINESS 0 Chapter 3: Responding to a Public Rt23gs Request 13 Neither the ten-day response period nor the additional fourteen-day P � Practice Tip: extension may be used to delay or The local agency may wish obstruct the inspection or copying t to maintain a separate file 44 s for copies of records that of public records. For example, have been withheld and requests for commonly disclosed those produced(including records that are held in a manner redacted versions)in that allows for prompt disclosure ' the event there is a legal should not be withheld because of the challenge to the decision statutory response period. regarding the disclosure. � As a practical matter,records often 4 f ' 1 r are disclosed at the same time the �. local agency responds to the request. But in some cases,that time frame for disclosure is not feasible because of the volume of records encompassed by the request. ■ FEES Practice Tip: The public records process is in many respects cost-free to the requester.No fees may be charged to When faced with a reimburse the local agency's costs incurred to search for a record,review a record,redact a record,assist a voluminous public records requester in formulating a request,or respond to a request.Nor may the local agency charge a fee for the request,a local agency requester's inspection of a record,even if staff time is expended in the inspection.For example,if concern has numerous options for the security of records requires that an agency employee sit with the requester during the inspection, —for example,asking the or if a record must be redacted before it can be inspected,the agency may not bill the requester for this requester to narrow the expenditure of staff time. request,asking the requester to consent to a later The local agency may charge a fee for the direct costs of duplicating a record when the requester is deadline for responding to seeking a copy,45 or it may charge a statutory fee,if applicable.46 Direct costs of duplication include costs of the request,and providing reproduction,and conceivably the cost of staff time expended in making a copy of the record.47 An agency responsive records(whether redacted or not)ds a may require payment in advance before providing the requested copies;48 however,no payment can be "rolling"basis,rather than required merely to look at a record where copies are not sought. in one complete package. Although permitted to charge a fee for duplication costs,a local agency may choose to reduce or waive It is sometimes possible for the agency and requester that fee.49 For example,the agency might waive the fee in a particular case because the requester to work cooperatively to is indigent;or it might generally choose to waive fees below a certain dollar threshold because the streamline a public records administrative costs of collecting the fee would exceed the revenue to be collected.An agency may also request,with the result that set a customary copying fee for all requests that is below the amount that reflects actual duplication costs. the requester obtains the records or information the requester truly wants,while the burdens on the agency in complying with the request are reduced. 14 THE PEOPLE'S2"INESS 0 Chapter 3: Responding to a Public Records Request Endnotes 1 Gov.Code,§6253,subd.(a). 2 Bruce v.Gregory(1967)65 Cal.2d 666;Rosenthal v.Hansen(1973)34 Cal.App.3d 754;64 Ops.Cal.Atty.Gen.317 (1981). 3 See"Timing of the Response,"p.11. 4 Gov.Code,§6253,subd.(b). 5 Rosenthal v.Hansen(1973)34 Cal.App.3d 754. 6 Rosenthal v.Hansen(1973)34 Cal.App.3d 754;64 Ops.Cal.Atty.Gen.317(1981). 7 Gov.Code,§54954.1;see also Gov.Code§65092[standing request for notice of public hearing],Cal.Code Regs., tit.14,ch.3,§§15072,15082 and 15087[standing requests for notice related to environmental documents]. 8 Los Angeles Times v.Alameda Corridor Transportation Authority(2001)88 Cal.AppAth 1381. 9 Gov.Code,§6253,subd.(b). 10 Rogers v.Superior Court(1993) 19 Cal.App.4th 469. 11 Cal.FirstAmend.Coalition v.Superior Court(1998)67 Cal.AppAth 159. 12 See"Assisting the Requester,"p.12. 13 Cal.FirstAmend.Coalition v.Superior Court(1998)67 Cal.AppAth 159. 14 See Gov.Code,§6257.5;ACLUFoundation v.Deukmejian(1982)32 Cal.3d 440. 15 Gov.Code,§6250;Cal.Const.,article I,§3.. 16 Gov.Code,§6253. 17 Gov.Code,§6253,subd.(c). 18 Civ.Code,§10. 19 Civ.Code,§11. 20 See"Timing of Disclosure,"p.13. 21 Gov.Code,§6253,subds.(c)(1)-(4). 22 Gov.Code,§6253,subd.(c). 23 Gov.Code,§6253.1;State Board of Equalization v.Superior Court(1992) 10 Cal.AppAth 1177. 24 Gov.Code,§6253.1,subds.(a)(1)-(3). 25 Gov.Code,§6253.1,subd.(d)(3). 26 See Gov.Code,§6257.5. 27 Gov.Code,§6253.1,subd.(a). 28 Cal.FirstAmend.Coalition v.Superior Court(1998)67 Cal.AppAth 159. 29 Cal.First Amend.Coalition v.Superior Court(1998)67 Cal.AppAth 159. 30 Cal.FirstAmend.Coalition v.Superior Court(1998)67 Cal.AppAth 159. 31 Cal.FirstAmend.Coalition v.Superior Court(1998)67 Cal.AppAth 159. 32 ACLUFoundation v.Deukmejian(1982)32 Cal.3d 440;see also 64 Ops.Cal.Atty.Gen.317(1981). 33 Gov.Code,§6253,subd.(a);ACLUFoundation v.Deukmejian(1982)32 Cal.3d.440. 34 ACLUFoundation v.Deukmejian(1982)32 Cal.3d.440. 35 ACLUFoundation v.Deukmejian(1982)32 Cal.3d.440. 36 Gov.Code,§§6253,subd.(d),6255,subd.(b). 37 Gov.Code,§6255,subd.(b). 38 Gov.Code,§6254.5;86 Ops.Cal.Atty.Gen.132(2003). 39 Gov.Code,§6254.5. THE PEOPLES BUSINESS 0 Chapter 3: Responding to a Public Rt2els Request 15 40 Gov.Code,§6252,subd.(e);Haynie v.Superior Court(2001)26 CalAth 1061;71 Ops.Cal.Atty.Gen.235(1988). 41 Haynie v.Superior Court(2001)26 CalAth 1061. 42 Gov.Code,§6253,subd.(b);88 Ops.Cal.Atty.Gen.153(2005);89 Ops.Cal.Atty.Gen.39(2006). 43 Gov.Code,§6253,subd.(d). 44 Gov.Code,§6253,subd(d). 45 Gov.Code,§6253,subd.(b). 46 Gov.Code,§6253,subd.(b);85 Ops.Cal.Atty.Gen.225(2002);see,e.g.,Gov.Code,§81008. 47 North County Parents Organization v.Dept.of Education(1994)23 Cal.AppAth 144. 48 Gov.Code,§6253,subd.(b). 49 Gov.Code,§6253,subd.(e);North County Parents Organization v.Dept.of Education(1994)23 Cal.AppAth 144. 16 THE PEOPLE'S242INESS 0 Chapter 3: Responding to a Public Records Request y- Pr r' OVERVIEW OF EXEMPTIONS - SPECIFIC EXEMPTIONS Architectural and Official Building Plans - Attorney Client Communications `►,� and Attorney Work Product Code Enforcement Records Drafts Election Information Identity of Informants Law Enforcement Records Library Circulation Records Licensee Financial Information Medical Privacy Laws Official Information Privilege Pending Litigation or Claims Personal Contact Information Personnel Records Public Contracting Documents Real Estate Appraisals and Engineering Evaluations Recipients of Public Services Taxpayer Information Trade Secrets and Other Proprietary Information Utility Customer Information PUBLIC INTEREST EXEMPTION EFFECT OF PROPOSITION 59 ON EXEMPTIONS CHAPTER 4 . ( - EXEMPTIONS Ari f W Y ■ OVERVIEW OF EXEMPTIONS The underlying purpose of the Act is to assure broad access to public records.Any grounds for denying access to public records must be found in the enumerated exemptions of the Act.'The Act's general policy Practice Tip: of disclosure can only be accomplished if the exemptions are narrowly construed.As a result,courts—both When evaluating a record as a matter of statutory interpretation and now by constitutional mandate—construe exemptions under the for purposes of determining Act narrowly.2 whether it falls within This means that in responding to a record request,the local agency must allow access to the record unless any exemption under the Act,a local agency should it can identify an exemption within the Act that would justify nondisclosure of the information.Moreover, always bear in mind that in circumstances where a record may contain some information that is subject to an exemption and other it might also be subject information that is not,the local agency must produce the record,but may redact the information that is to nondisclosure under exempt. other statutes such as the Evidence Code or Penal As discussed below,many of the exemptions are very specific and pertain to particular types of public Code.' records such as certain personnel,police,or medical records.Two exemptions,however,have a broader scope and may apply even if a record does not fall within any other exemption contained in the Act.First, the Act exempts records that are otherwise exempt from disclosure under other statutes.3 Second,the Act's"public interest"or"catchall"provision allows nondisclosure where the local agency demonstrates on the facts of a particular case that the public interest in nondisclosure clearly outweighs the public interest in disclosure.4 18 244 THE PEOPLE'S BUSINESS Chapter 4: Exemptions ■ SPECIFIC EXEMPTIONS Architectural and Official ficial Building Plans Certain of the materials submitted by third parties to local agencies may qualify for federal copyright protection.6 In addition,local agencies may claim a copyright in many of their own records. The Act exempts records,"the disclosure of which is exempted or prohibited pursuant to federal or state law...."7 Federal copyright law defines"architectural work"as the"design of a building as embodied in any tangible medium of expression, including building,architectural plans,or drawings."'The law includes architectural plans as"original works of authorship"which have an automatic federal copyright protection.9 Architectural plans are therefore protected under the federal copyright -� law and may be inspected,but cannot be copied without the permission of the owner."Fair use of copyrighted materials"does not require disclosure or the right to copy architectural plans.The Fair Use rule is a defense to a copyright infringement " action;itis not proper to use the Fair Use rule offensively in order to obtain copyrighted materials."' State law addresses inspection and duplication of building plans and authorizes inspection of the plans by the public."The official copy of building plans maintained by a local agency's building department may be inspected,but may not be copied without first requesting the written permission of the licensed or registered professional who signed the document and the original or current property owner.A request for written permission from the professional must be accompanied by a statutorily prescribed affidavit signed by the person requesting practice Tip: to make copies,attesting that the copy of the plans shall only be used for the maintenance,operation These statutory and use of the building,that the drawings are instruments of professional service and are incomplete requirements do not without the interpretation of the certified,licensed or registered professional of record,and that a licensed prohibit duplication of architect who signs and stamps plans,specifications,reports,or documents shall not be responsible for reduced copies of plans damage caused by subsequent unauthorized changes to or uses of those plans.12 After receiving this that have been distributed required information,the professional cannot unreasonably withhold written permission to make copies to local agency decision- of the plans.13 making bodies as part of the agenda materials for Additionally,the California Attorney General has determined that interim grading documents,including a public meeting. geology,compaction,and soils reports are public records.14 Attorney Client Communications and Attorney Work Product The Act specifically exempts from disclosure"records,the disclosure of which is exempted or prohibited pursuant to federal or state law,including,but not limited to,the provisions of the Evidence Code relating to privilege."15 The Act's exemptions protect attorney client privileged communications and attorney work product,as well as,more broadly,other work product prepared for use in pending litigation or claims.16 Even after litigation is concluded,an attorney's billing entries remain exempt from disclosure under the attorney client privilege or attorney work product doctrine insofar as they describe an attorney's impressions,conclusions,opinions,legal research or strategy.17 Similarly,retainer agreements between a local agency and its attorneys may constitute confidential communications that fall within the attorney client privilege.1'A local agency may waive the privilege and elect to produce the agreements.19 Only the local agency's governing board may waive the privilege.20 THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 245 19 Code Enforcement Records Local agencies may pursue code enforcement through administrative or criminal proceedings,or a combination of both.Records of code enforcement cases for which criminal sanctions are sought may be subject to the same disclosure rules as police and other law enforcement records,including the rules for investigatory records and files,as long as there is a concrete and definite prospect of criminal enforcement.21 Records of code enforcement cases being prosecuted administratively do not qualify as law enforcement records.22 However,some administrative code enforcement information,such as names and contact information of complainants,may be exempt from disclosure under the official information privilege,the identity of informant privilege,or the public interest exemption.21 Drafts The Act exempts from disclosure"[p]reliminary drafts,notes,or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business,if the public interest in withholding those records clearly outweighs the public interest in disclosure."24 The purpose of the "drafts"exemption is to provide a measure of privacy for writings concerning pending agency action. The exemption was adapted from the federal Freedom of Information Act("FOIA'),which exempts from disclosure"inter-agency or intra-agency memorandums or letters which would not be available by law to a Practice Tip: party other than an agency in litigation with the agency"25 The California Supreme Court has observed that By adopting written policies the FOIA"memorandums"exemption is based on the policy of protecting the decision making processes or developing consistent of government agencies,and in particular the frank discussion of legal or policy matters that might be practices of discarding inhibited if subjected to public scrutiny26 preliminary deliberative writings,local agencies may The courts have held that the"drafts"exemption in the Act has essentially the same purpose as the facilitate candid internal "memorandums"exemption in the FOIA,and that the"drafts"exemption protects deliberative materials policy debate.Such policies produced in the process of making agency decisions,but not factual materials.27 Some courts have and practices may exempt from disclosure even distinguished between pre-decisional advisory opinions,recommendations and policy deliberations, preliminary drafts that have which are exempt,and memoranda of factual material or purely factual material contained in and not yet been discarded,so severable from deliberative memoranda.28 However,in discussing the closely-related deliberative process long as the drafts are not privilege,which is also based on the FOIA"memorandums"exemption,the California Supreme Court maintained by the local has observed that the fact/opinion distinction may be misleading because even purely factual material agency in the ordinary course may expose the deliberative process.According to the California Supreme Court,the key question under of business,and the public interest in nondisclosure the FOIA"memorandums"exemption is whether the disclosure of materials would expose an agency's clearly outweighs the public decision making process in such a way as to discourage candid discussion within the agency and thereby interest in disclosure. undermine the agency's ability to perform its functions.29 To qualify for the"drafts"exemption: • the record must be a preliminary draft,note,or memorandum; • that is not retained by the local agency in the ordinary course of business;and • the public interest in withholding the record must clearly outweigh the public interest in disclosure.30 The courts have observed that preliminary materials that are not customarily discarded or that have not in fact been discarded pursuant to policy or custom must be disclosed.31 What distinguishes the"drafts" exemption from the deliberative process privilege is a focus on whether the records containing deliberative information are normally retained by the local agency.If the records are normally retained,they do not qualify for the exemption.This is in keeping with the purpose of the FOIA"memorandums"exemption of prohibiting the"secret law"that would result from confidential memos retained by local agencies to guide their decision-making. 20 246 THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions Election Information Voter Registration Information Voter registration information,including the home street address,telephone number, email address, precinct number,or other number given by the Secretary of State,is confidential and cannot be disclosed except as specified in the Elections Code.Similarly,the signature of the voter shown on the voter registration card is confidential and shall not be disclosed to any person,except as provided in the Aye Elections Code.32 Voter registration information may be provided " Z11 Jr.� to any candidate for federal,state,or local office;any committee .` 4.4J6' fie� for or against an initiative or referendum measure for which legal �• publication is made;and to any person for election,scholarly, V , journalistic or political purposes,or for governmental purposes as , determined by the Secretary of State.33 Identifying information contained in voter registration records including a California Driver's License,California ID card,or other unique identifier used by the State of California is confidential and ✓f: 9 shall not be disclosed to any person(including those entitled to A - . voter registration information).34 When a person's vote is challenged,the voter's home address or signature may be released to the challenger,elections officials,and other persons as necessary to make,defend or adjudicate a challenge.31 The elections official shall permit a person to view the signature of a voter for the purpose of determining whether the signature matches a signature on an affidavit of registration or a petition.The signature cannot be copied.36 Information or data compiled by public officers or employees that reveals the identity of persons who have requested bilingual ballots or ballot pamphlets is not a public record and shall not be provided to any person other than those public officers or employees who are responsible for receiving and processing those requests.37 Initiative, Recall,and Referendum Petitions Any petition to which a voter has affixed his or her signature for a statewide,county,city,and/or district initiative,referendum,recall or matters submitted under the Education Code is not a public record and is not open to inspection except by the public officers and/or employees whose duty it is to receive,examine or preserve the petitions.This prohibition extends to all memoranda prepared by county elections officials in the examination of the petitions indicating which voters have signed particular petitions.3' If a petition is found to be insufficient,the proponents and their representatives may inspect the memoranda of insufficiency to determine which signatures were disqualified and the reasons for the disqualification.39 Identity of Informants A local agency has a privilege to refuse to disclose and to prevent another from disclosing the identity of a person who has furnished information in confidence to a law enforcement officer or representative of a local agency charged with administration or enforcement of a law.This privilege applies where the information purports to disclose a violation of a law of the United States,the State of California or another public entity,and where the disclosure is forbidden by state or federal law.It also applies where the disclosure of the identity of the informant is against the public interest because there is a necessity for THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 247 21 preserving the confidentiality of the informant's identity that outweighs the necessity for disclosure in the interest of justice.40 This privilege extends to disclosure of the contents of the informant's communication if the disclosure would tend to disclose the identity of the informant.41 Law Enforcement Records Overview Law enforcement records are generally exempt from disclosure except for certain specific types of information that must be disclosed.42 The actual investigation files and records are themselves exempt from disclosure,but the Act requires the local agency to disclose certain information derived from them.43 The type of information that must be disclosed differs depending upon whether it relates to,for example,calls to the police department for assistance,the identity of an arrestee,information relating to a traffic accident,or certain types of crimes, including,for example,car theft,burglary,or arson.The identities of victims of certain types of crimes,including minors and victims of sexual assault,are required to be withheld if requested by the victim,or the victim's guardian if the victim is a minor.44 Those portions of any file that reflect the analysis and conclusions of the investigating officers may also be withheld.45 Certain information that may be required to be released may be withheld where the disclosure would endanger a witness or interfere with the successful completion of the investigation.The disclosure exemption extends indefinitely,even after the investigation is closed.46 Release practices vary by local agency.Some local agencies provide a written summary of information being disclosed,some release only specific information upon request,while others release reports with certain matters redacted.Other local agencies release reports upon request with no redactions except as mandated by statute.Some local agencies also release 911 tapes47 and booking photos,although this is not required under the Act.41 If it is your local agency's policy to release police reports upon request,it is helpful to establish an internal process to control the release of the identity of minors or victims of certain types of crimes;or to ensure that releasing the report would not endanger the safety of a person involved in an investigation or endanger the completion of the investigation. Exempt Records Practice Tip: The Act generally exempts most law enforcement records from disclosure,including: Many departments that • Complaints to or investigations conducted by a local or state police agency choose not to release entire . Records of intelligence information or security procedures of a local or state police agency reports develop a form that can rt filled out with the • Any investigatory or security files compiled by any other local or state police agency requisite public information. • Customer lists provided to a local police agency by an alarm or security company • Any investigatory or security files compiled by any state or local agency for correctional,law enforcement or licensing purposes.49 Information that Must be Disclosed There are three general categories of information contained in law enforcement investigatory files that must be disclosed: information that must be disclosed to victims,their authorized representatives and insurance carriers;information relating to arrestees;and information relating to complaints or requests for assistance. 22 248 THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions Disclosure to Victims,Authorized Representatives, Insurance Carriers: Except where disclosure would endanger the successful completion of an investigation,or a related investigation,or endanger the safety of a witness,certain information relating to specific listed crimes must Practice Tip: be disclosed upon request to: The release of traffic accident information is • A victim covered under the vehicle • The victim's authorized representative Code,which requires the • An insurance carrier against which a claim has been or might be made law enforcement agency to disclose the entire contents • Any person suffering bodily injury,or property damage or loss. of a traffic accident report to The type of crimes listed to which this requirement applies include arson,burglary,fire,explosion,larceny, persons who have a"proper robbery,carjacking,vandalism,vehicle theft,or a crime defined by statute.50 interest"in the information, including the driver or The type of information that must be disclosed(except where it endangers safety of witnesses or the authorized representative, investigation itself)includes: guardian,conservator or parent of a minor driver, • Name and address of persons involved in or witnesses to incident(other than confidential informants) injured person,owners • Description of property involved of vehicles or property damaged by the accident, • Date,time and location of incident persons who may be liable • All diagrams;statements of the parties to the incident for breach of warranty and an attorney who declares • Statements of all witnesses(other than confidential informants).51 under penalty of perjury that Arrestees Regarding Information he or she represents any The Act mandates that the following information be released pertaining to every individual arrested by such person.12 the local law enforcement agency except where releasing the information would endanger the safety of persons involved in an investigation or endanger the successful completion of the investigation or a related investigation: • Full name and occupation of the arrestee • Physical description including date of birth,color of eyes and hair,sex,height and weight Practice Tip: • Time,date and location of arrest Most police departments • Time and date of booking have some form of daily desk or press log that • Factual circumstances surrounding arrest contains all or most of • Amount of bail set arrestee information.The Act does not require a • Time and manner of release or location where arrestee local agency to grant a is being held single requester to be given • All charges,including outstanding warrants,parole or access on a subscription probation holds,that the arrestee is being held on.53 basis to records that may be created in the future. Complaints or Requests for Assistance It applies only to records The Act provides that the following information must be disclosed relative to complaints or requests existing at the time of the for assistance received by the law enforcement agency—subject to the restrictions imposed by the request.54 Further,there Penal Code: is no obligation to provide the information in the • Time and nature of the response format requested if that is not the format used by the • To the extent the crime alleged or committed or any other incident is recorded,the time,date and local agency to store the location of occurrence,and the time and date of report information or to create • Factual circumstances surrounding crime/incident copies for its own use." THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 249 23 • General description of injuries,property or weapons involved • Names and ages of victims shall be disclosed,except the names of victims of certain listed crimes may be withheld upon request of victim or parent of minor victim.These listed crimes include various Penal Code sections which relate to topics such as sexual abuse,child abuse,hate crimes and stalking.56 The Penal Code provides that except as required by criminal discovery provisions,no law enforcement officer or employee of a law enforcement agency shall disclose to any arrested person,or to any person who may be a defendant in a criminal action,the address or telephone number of any person who is a victim of or witness to the alleged offenses? Requests for Journalistic or Scholarly Purposes Practice Tip: Where a request states,under penalty of perjury,that it is made for a scholarly,journalistic,political or governmental purpose,or for an investigative purpose by a licensed private investigator,and that it will not Law enforcement information such as complaint or be used directly or indirectly or furnished to another to sell a product or service to any individual or group incident information that of individuals,the Act requires the disclosure of the name and address of every individual arrested by the may otherwise be subject local agency and the current address of the victim of a crime,except for specified crimes.s$Any address to disclosure is confidential information furnished pursuant to this authorization may not be used directly or indirectly,or furnished to to the extent it includes another to sell a product or service and is subject to statutory restrictions that preclude the furnishing of reports of suspected child this information to an arrested person or a defendant in a criminal action.59 or elder abuse or neglect, or information contained in Mental Health Detention Information reports of suspected abuse All information and records obtained in the course of providing services to a mentally disordered individual or neglect.To avoid potential who is gravely disabled and/or a danger to others or himself,and who is detained(often referred to as criminal liability,local agencies should only disclose a"detainee")and taken into custody by a peace officer,are confidential and may only be disclosed to reports of suspected child enumerated recipients and for purposes specified in state law.60 Willful,knowing release of confidential or elder abuse or neglect mental health detention information can create liability for civil damages.61 or information contained in such reports as permitted by Elder Abuse Records state law. Reports of suspected abuse or neglect of an elder or dependent adult,and information contained in such reports,are confidential and may only be disclosed as permitted by state laW.62 The prohibition against unauthorized disclosure applies regardless of whether a report of suspected elder abuse or neglect is from someone who is a"mandated reporter"(any person that has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult,whether or not for compensation)or from someone else.63 Unauthorized disclosure of suspected elder abuse or neglect information is a misdemeanor.64 Juvenile Records Practice Tip: Police and Court Records Some local courts have Records or information gathered by law enforcement agencies relating to the detention of or taking a minor their own rules regarding into custody or temporary custody are confidential and subject to release only in certain circumstances and inspection of juvenile by certain specified persons and entities.65 Juvenile court case files are subject to inspection only by specific records,which may differ listed persons and are governed by both statute and state court ruleS.66 from county to county and may change from time to Different provisions apply to dissemination of information gathered by a law enforcement agency time.Care should be taken relating to the taking of a minor into custody where it is provided to another law enforcement agency, to periodically review the including a school district police or security department or other agency or person who has a legitimate rules as the presiding judge need for information for purposes of official disposition of a case.67 A law enforcement agency shall of each juvenile court makes release the name of and descriptive information relating to any juvenile who has escaped from a secure their own rules. detention facility68 24 250 THE PEOPLES BUSINESS Chapter 4: Exemptions Child Abuse Reports Reports of suspected child abuse or neglect,including reports from those who are"mandated reporters" (for example,teachers and public school employees and officials,physicians,children's organizations, community care facilities,etc.),and child abuse and neglect II investigative reports that result in a summary report being filed with the Department of Justice are confidential and may only i be disclosed to the persons and agencies listed in state law.69 Unauthorized disclosure of confidential child abuse or neglect information is a misdemeanor.70 Library Circulation Records Library circulation records that are kept to identify the borrowers, I and library and museum materials presented solely for reference or exhibition purposes,are exempt from disclosure." Further, all registration and circulation records of any library that is in whole or in part supported by public funds are confidential.Such records remain confidential and shall not be disclosed except to persons acting within the scope of their duties within the administration of the library,pursuant to written authorization by the individual to whom the records pertain,or by superior court order.72 The confidentiality of library circulation records does not extend to statistical reports of registration and circulation,or to records of fines collected by the library.73 Licensee Financial Information When a local agency requires that applicants for licenses,certificates or permits submit personal financial data,that information is exempt from disclosure.74 one frequent example of this is the submittal of sales or income information under a business license tax requirement.However,this exemption does not apply to financial information filed by an existing licensee or franchisee to justify a rate increase,presumably because those affected by the increase have a right to know its basis.75 Medical Privacy Laws State and federal medical privacy laws that may apply to records of local agencies include the physician/ patient privilege,the Confidentiality of Medical Information Act,and the Health Insurance Portability and Accountability Act.76 The exemptions from and prohibitions against disclosure contained in these laws are incorporated into the Act.77 Local agencies that receive or maintain individually identifiable health information may comply with the requirements of the physician/patient privilege,the Confidentiality of Medical Information Act,and the Health Insurance Portability and Accountability Act by citing appropriate sections of the Act,as well as applicable medical privacy laws and regulations,in declining to disclose protected,individually identifiable health information.78 Physician/Patient Privilege State law gives patients a privilege to refuse to disclose,and to prevent others from disclosing,confidential communications between patients and their physicians.79 The privilege extends to confidential patient/ physician communications that are disclosed to third parties where reasonably necessary to accomplish the purpose for which the physician was consulted.80 Patient information in the possession of a local agency may be subject to the privilege. THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 251 25 Confidentiality of Medical Information Act State law prohibits providers of health care,health care service plans and contractors,as these terms are defined in the law,from disclosing individually identifiable medical information of a patient,enrollee or subscriber without first obtaining authorization,subject to certain exceptions."'State law also obligates Practice Tip: employers to establish appropriate procedures to ensure the confidentiality of individually identifiable Patient medical information medical information,and prohibits employers from disclosing or permitting the disclosure or use of provided to local agency individually identifiable medical information without first obtaining authorization,subject to certain emergency medical exceptions.82 Local agencies that are not providers of health care,health care service plans or contractors personnel to assist in as defined in state law may possess individually identifiable medical information protected under state law providing emergency medical that originated with providers of health care,health care service plans or contractors.113 care may be subject to the physician/patient privilege Local agencies are also obligated as employers to protect individually identifiable medical information if providing the privileged protected under state law.Patients whose individually identifiable medical information is used or disclosed information is reasonably in violation of the state law may recover compensatory damages,limited punitive damages,limited necessary to accomplish attorneys'fees and their litigation costS.84 violations of state law that result in economic loss or personal the purpose for which the physician was consulted. injury of patients are subject to criminal penalties,and damages are available for negligent release of protected records.85 Persons and entities that negligently disclose records protected under state law may be liable for administrative fines or civil penalties.116 Knowingly and willfully obtaining,using,or disclosing information protected under state law is subject to substantial administrative fines or civil penalties.87 Health Insurance Portability and Accountability Act Congress enacted the Health Insurance Portability and Accountability Act in 1996 to improve portability and continuity of health insurance coverage and to combat waste,fraud and abuse in health insurance and health care delivery through the development of a health information system and establishment of standards and requirements for the electronic transmission of certain health information.88 The Secretary of the U.S.Department of Health and Human Services has issued privacy regulations governing use and disclosure of individually identifiable health information.89 Persons that knowingly and in violation of federal law use or cause to be used a unique health identifier,obtain individually identifiable health information relating to an individual, or disclose individually identifiable health information to another person are subject to substantial fines and imprisonment of not more than one year,or both,and to increased fines and imprisonment for violations under false pretenses or with the intent to use individually identifiable health information for commercial advantage,personal gain,or malicious harm.90 Federal law also permits the Health and Human Services Secretary to impose civil penalties.91 Workers'Compensation Benefits A local agency may not release records pertaining to the workers'compensation benefits for an individually identified employee because they are exempt from disclosure as"personnel,medical,or similar files,the disclosure of which would constitute an unwarranted invasion of privacy"92 The Act further prohibits the disclosure of records otherwise exempt or prohibited from disclosure pursuant to federal and state law.93 In addition,state law prohibits a person or public or private entity who is not a party to a claim for workers' compensation benefits from obtaining individually identifiable information obtained or maintained by the Division of Workers'Compensation on that claim.94"[Ijndividually identifiable information"means"any 26 252 THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions data concerning an injury or claim that is linked to a uniquely identifiable employee,employer,claims administrator,or any other person or entity."95 If a public records request falls within this broad definition as a request for"data concerning an injury or claim"that is linked to a local agency employee or other uniquely identifiable individual,then the record(s)may not be disclosed. 41! Once an application for adjudication has been filed,certain information may be subject to disclosure;96 however,some of the personal information may still be protected under the Act.97 Requests for such information after adjudication must identify the requester and state the reason for the request.If the purpose of such a request is related to pre- employment screening,the administrative director must notify the person about whom the information is requested and include a warning about discrimination against persons who have filed claims for workers'compensation benefits.Further,a residence address shall not be disclosed except to law enforcement agencies,the district attorney,other - governmental agencies or for journalistic purposes.Individually identifiable information y is not subject to subpoena in a civil proceeding without notice and a hearing at which ` the court is required to balance the respective interests—privacy and public disclosure. Individually identifiable information may be used for certain types of statistical research by specifically listed persons and entities.98 Official ficial In formation Privilege A local agency has a privilege to refuse to disclose official information.99"Official Information"includes: • Information that is protected by a state or federal statutory privilege or;and • Information,the disclosure of which is against the public interest,due to necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.100 The local agency has the right to assert the privilege both to refuse to disclose and to prevent another from disclosing official information.101 Where the disclosure is prohibited by state or federal statute,the privilege is absolute.In all other respects,it is conditional and requires a judge to weigh the necessity for preserving the confidentiality of information against the necessity for disclosure in the interest of justice.(This is similar to the weighing process provided for in the Act—allowing nondisclosure when the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.)102 This is typically done through confidential judicial review.103As part of the weighing process a court will look at the consequences to the public,including the effect of the disclosure on the integrity of public processes and procedures.104 There are a number of cases arising out of this statute.105 While many of the cases interpreting this privilege involve law enforcement records,other cases arise out of licensing and accreditation-type activities.The courts address these types of cases on an individualized basis and further legal research should be done within the context of particular facts.The statute defines"official information"as"information acquired in confidence by a public employee in the course of his or her duty and not open,or officially disclosed,to the public prior to the time the claim of privilege is made."106 However,the courts have somewhat expanded on the statutory definition by determining that certain types of information,such as police investigative files and medical information,are"by[their] nature confidential and widely treated as such"and thus protected from disclosure by the privilege.107 Although there is no case law directly on point,this privilege,along with the informant privilege,may be asserted to protect the identities of code enforcement complainants and whistleblowers. THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 253 27 Pending Litigation or Claims The Act exempts from disclosure"(r)ecords pertaining to pending litigation to which the public agency is a party,or to claims made pursuant to[the California Government Claims Act]until the pending litigation or claim has been finally adjudicated or otherwise settled."108 Although the phrase"pertaining to"pending litigation or claims might seem broad,the courts nevertheless have construed the exemption narrowly, consistent with the underlying policy of the Act to promote access to public records.The exemption applies only to documents specifically prepared by,or at the direction of,the local agency for use in litigation.This includes records ` prepared not simply for an ongoing case,but those specifically prepared in anticipation of a future lawsuit,such as an incident report.109 It may sometimes be difficult to determine whether a particular record was prepared specifically for use in litigation or for other purposes related to the underlying incident.For example,an incident report may be prepared either in anticipation of defending a potential claim,or simply for risk management purposes.In order for the exemption to apply in those circumstances,the local agency would have to prove that the dominant purpose of the record was to be used in defense of Iitigation.110 It is important to remember that even members of the public that have sued a local agency are entitled to use the Act to obtain documents that may be relevant to the litigation,so long as the documents were not specifically prepared by the local agency for use in anticipated or pending litigation,and do not fall within some other exemption under the Act or other statute.The mere fact that the litigant might also be able to obtain the documents in discovery is not a ground for rejecting the request under the Act."' The pending litigation exemption does not prevent members of the public from obtaining records submitted to the local entity by litigants,such as a claim for monetary damages filed prior to a lawsuit.This is because the document has been prepared by the litigant and not by the local agency.112 once litigation has concluded and is no longer"pending,"records previously shielded from disclosure by the exemption must be produced,unless covered by another exemption or statutory privilege.The public Practice Tip: may therefore obtain copies of depositions from closed cases.113 Documents concerning settlement of a claim,whether prepared by a litigant or the local agency,such as medical records,payment warrants, In responding to a request for documents concerning minutes of a claims settlement committee meeting,or investigative reports,must be produced unless settlement of a particular shielded from disclosure by other exemptions of the Act or other statutes.114 matter,it is critical to pay While medical records are subject to a constitutional right of privacy,and generally exempt from production close attention to potential under the Act and other statutes,"'the litigant may be deemed to have waived the right to confidentiality application of other exemptions under the Act by submitting them to the public entity in order to obtain a settlement.116 Similarly,investigative reports in or other statutory privileges. claims involving law enforcement activity may fall within specific exemptions for law enforcement reports'17 It is recommended that you or reports prepared in anticipation of litigation may fall within the attorney client privilege."'Particular seek the advice of your local records or information relevant to settlement of a closed case may also be subject to nondisclosure agency counsel. under the public interest exemption to the extent the local agency can show that the public interest in nondisclosure clearly outweighs the public interest in disclosure.119 There is considerable overlap between the pending litigation exemption and both the attorney client privilege 120 and attorney work product protection.121 However,the exemption for pending litigation is not limited solely to documents that fall within either the attorney client privilege or work product protection.122 Moreover,while the exemption for pending litigation expires once the litigation is no longer pending,the attorney client privilege and work product protection are ongoing.123 28 254 THE PEOPLES BUSINESS 0 Chapter 4: Exemptions The attorney client privilege may come into play simultaneously with specific exemptions under the Act or other statutory privileges that could require a court to undertake confidential inspection of documents practice Tip: in order to determine application of the exemptions.The Act specifically references an Evidence Code provision that provides a court may not review privileged attorney client communications in camera for Itis important to separate potential attorney purposes of determining whether the privilege is established.124 Thus,in a writ of mandate proceeding a client communications local agency may have to submit other documents for inspection to allow the court to determine whether from other records a particular exemption applies,such as evaluating whether the public interest in nondisclosure clearly and make certain that outweighs the public interest in disclosure under the public interest exemption.But the court cannot privileged attorney client conduct an in camera review of documents that the local agency contends are subject to the attorney communications are not client privilege. unintentionally submitted to the court for inspection. Personal Contact Information Court decisions have ruled that individuals have a substantial privacy interest in their personal contact information.However,a fact-specific analysis must be conducted to determine whether the public interest exemption protects this information from disclosure,that is,whether the public interest in nondisclosure clearly outweighs the public interest in disclosure.121 Application of this balancing test has yielded varying results,depending on the circumstances of the case. For example,courts have allowed nondisclosure of the names,addresses and telephone numbers of airport noise complainants.126 In that instance,the anticipated chilling effect on future citizen complaints weighed heavily in the court's decision. In other situations,courts have ordered disclosure of personal information contained in applications for licenses to carry concealed weaponS,127 the names and addresses of residential water customers who exceeded their water allocation under a rationing ordinance,128 and the names of donors to a university- affiliated foundation,even though those donors had requested anonymity.129 Posting Personal Information of Elected/Appointed Officials on the Internet Practice Tip: The Act prohibits a state or local agency from posting on the Internet the home address or telephone In situations where personal number of any elected or appointed officials without first obtaining their written permission.130 This section contact information clearly also prohibits someone from knowingly posting on the Internet the home address or telephone number cannot be kept confidential, of any elected or appointed official or the official's"residing spouse"or child,and either threatening or inform the affected members intending to cause imminent great bodily harm.It also prohibits a person,business or association from of the public that their publicly posting or displaying on the Internet the home address or telephone number of any elected or personal contact information appointed official where the official has made a written demand not to disclose his address or phone is subject to disclosure number.If an official makes such a written demand,it must include a statement describing a threat or fear pursuant to the Act. for the safety of the official or any person residing at the official's home address.The written demand is effective for four years,regardless of the length of the official's term of office.Remedies include injunctive or declarative relief,misdemeanor or felony prosecution,and treble damages of not less than$4,000.131 Personnel Records "Personnel,medical,or similar files,the disclosure of which would constitute an unwarranted invasion of personal privacy"are exempt from disclosure.132 The express policy declaration at the beginning of the Act"bespeaks legislative concern for individual privacy as well as disclosure."113 Courts have continued to recognize that public employees have a constitutionally protected interest in their personnel files;however, recent decisions from the California Supreme Court have determined that public employees do not have a reasonable expectation of privacy in their names and salary information and their dates of employment. This interpretation also applies to police officers absent unique,individual circumstances.134 THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 255 29 In addition,the public interest exemption may protect certain personnel records from disclosure.135 In determining whether to allow access to personnel files,the courts have determined that the tests are Practice Tip: essentially the same.The extent of the employee's privacy interest in certain information and the harm California courts continue from its unwarranted disclosure is weighed against the public interest in disclosure.The public interest in to look for guidance to disclosure will be considered in the context of the extent to which the disclosure of the information will provisions of the Federal Freedom of Information Act shed light on the local agency's performance of its duties.136 (FOIA),on which the Act Concerning allegations of non-law enforcement public employee misconduct,courts have upheld the was modeled,as well as public interest against disclosure of"trivial or groundless charges."When"the charges are found true,or federal cases interpreting the FOIA relative r discipline is imposed,"the public interest favors disclosure.In addition,"where there is reasonable cause to personnel records.131 believe the complaint to be well founded,the right of public access to related public records exists."131 Peace Officer Personnel Records Peace officer personnel records fall within the category of records,"the disclosure of which is exempted or prohibited pursuant to federal or state law...."These records are confidential and privileged.139 The discovery and disclosure of the personnel records of peace officers are governed exclusively by statutory provisions contained in the Evidence Code and Penal Code.Peace officer personnel records and records of citizen complaints". . .or information obtained from these records. . ."are confidential and"shall not"be disclosed in any criminal or civil proceeding except by discovery pursuant to statutorily prescribed Practice Tip: procedures.140 The appropriate procedure Peace officer"personnel records"include personal data,medical history,appraisals and discipline, for obtaining information complaints and investigations relating to events perceived by the officer or relating to the manner in which in protected peace officer his or her duties were performed,and any other information the disclosure of which would constitute an personnel files is to file a unwarranted invasion of privacy.141 The names,salary information and employment dates and departments motion commonly known as a"Pitchess"motion,which of peace officers have been determined to be disclosable records.142 by statute entails a two-part While the Penal and Evidence Code privileges are not per se applicable in federal court,federal common process involving first a law recognizes a qualified privilege for"official information"and considers government personnel files to determination by the court regarding good cause for be"official information."143 Such a qualified privilege in federal court results in a very similar weighing of the disclosure and materiality of potential benefits of disclosure against potential disadvantages.144 the information sought,and Employment Contracts and Employee Salaries a subsequent confidential review by the court of the Every employment contract between a state or local agency and any public official or public employee files,where warranted.14-1 is a public record that is not exempt under either the personnel or public interest exemption.146 Thus,for example,one court has held that two letters in a city firefighter's personnel file were part of his employment contract and could not be withheld under either the employee's right to privacy in his personnel file or the public interest exemption.141 With or without an employment contract,the names and salaries(including performance bonuses and overtime)of public employees,including peace officers,are subject to disclosure under the Act.148 Public employees do not have a reasonable expectation that their salaries will remain a private matter.In addition, there is a strong public interest in knowing how the government spends its money.Therefore,absent unusual circumstances,the names and salaries of public employees are not subject to either the personnel exemption or the public interest exemption.Similarly,peace officer salary information is not exempted from disclosure under the Act.Thus,absent unique,individual circumstances such as where a peace officer's anonymity is essential to his or her safety,the names and salaries of peace officers are subject to disclosure under the Act.149 30 256 THE PEOPLE'S BUSINESS Chapter 4: Exemptions Contractor Payroll Records State law establishes requirements for maintaining and disclosing certified payroll records for workers employed on public works projects subject to payment of prevailing wages.150 State law requires contractors to make certified copies of payroll records available to employees and their representatives, representatives of the awarding body,the Department of Industrial Relations,and the public.151 Requests are to be made through the awarding agency or the Department of Industrial Relations,and the requesting parry is required to reimburse the cost of preparation to the contractor,subcontractors,and the agency through which the request is made prior to being provided the records.15'Contractors are required to file certified copies of the requested records with the requesting entity within ten days of receipt of a written request.153 However,state law also limits access to contractor payroll records. Employee names,addresses and social security numbers must be redacted from certified payroll copies provided to the public or any local agency by the awarding body or the Department of Industrial Relations.114 Only the name and social security number are to be redacted from certified payroll copies provided to joint labor- management committees established pursuant to the federal Labor Management Cooperation Act of 1978.155 The name and address of the contractor or subcontractor may not be redacted.116 The Director of the Department of Industrial Relations has adopted regulations governing release of certified payroll records and applicable fees.157 Such regulations require that requests for certified payroll records be in writing and contain certain specified information regarding the awarding body,the contract and the contractor;require awarding agency acknowledgement of requests;specify required contents of awarding agency requests to contractors for payroll records;and set fees to be paid in advance by persons seeking payroll records.158 Test Questions and Other Examination Data The Act exempts from disclosure test questions,scoring keys and other examination data used to administer a licensing examination,examination for employment,or academic examination,except as provided in the portions of the Education Code that relate to standardized tests.159 Thus,for example,a local agency is not required to disclose the test questions it uses for its employment examinations.State law provides that standardized test subjects may,within 90 days of the release of test results to the test subject,have limited access to test questions and answers upon request to the test sponsor 160 This limited access may be either through an in-person examination or by release of certain information to the test subject.161 The Education Code also requires that test sponsors prepare and submit certain reports regarding standardized tests and test results to the California Postsecondary Education Commission.162 All such reports and information submitted to the Commission are public records subject to disclosure under the Act.163 Public Contracting Documents Final contracts with local agencies are generally disclosable public records due to the public's right to determine whether public resources are being spent for the benefit of the community as a whole or the benefit of only a limited few.164 when the bids or proposals leading up to those final contracts become disclosable depends largely upon the types of contracts involved. For example,local agency contracts for construction of public works,and procurement of goods and non-professional services are typically awarded to the lowest responsive,responsible bidder through a competitive bidding process.165 Bids for these contracts are usually submitted to local agencies under seal THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 257 31 and then publicly opened at a designated time and place.These bids are public records and disclosable as soon as they are opened. Other local agency contracts for acquisition of professional services or disposition of property are awarded to the successful proposer through a competitive proposal process.As part of this process,interested parties submit proposals that are evaluated by the local agency and are used to negotiate with the winning Practice Tip: proposer. Local agencies should clearly While the public has a strong interest in scrutinizing the process leading to the selection of the winning advise bidders and proposers proposer,the local agency's interest in keeping these proposals confidential frequently outweighs the in their Requests for Bids and public's interest in disclosure until negotiations with the winning proposer are complete.166 If a winning Requests for Proposals what proposer has access to the specific details of other competing proposals,then the local agency is greatly bid and proposal documents impaired in its ability to secure the best possible deal on its constituents'behalf will be disclosable public records and when they will Some local agencies pre-qualify prospective bidders through a request for qualifications process.The gre- be disclosable to the public. qualification packages submitted,including questionnaire answers and financial statements,are exempt public records and are not open to public inspection.167 Nevertheless,documents containing the names of contractors applying for pre-qualification status are public records and must be disclosed.In addition,the contents of pre-qualification packages may be disclosed to third parties during the verification process,in an investigation of substantial allegations or at an appeal hearing. Real Estate Appraisals and Engineering Evaluations The Act requires the disclosure of the contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or a local agency relative to the acquisition of property,or to prospective public supply and construction contracts,but only when all of the property has been acquired or when all of the contract agreement obtained.161 By its plain terms,this exemption only applies while the acquisition or prospective contract is pending.Once all the property is acquired or all of the contract agreement obtained,the exemption will not apply.In addition,this exemption is not intended to supersede the law of eminent domain.169 Thus,for example,this exemption would not apply to appraisals of owner-occupied residential property of four units or less,where disclosure of such appraisals is required by the Eminent Domain Law or related laws such as the California Relocation Assistance Act.170 Recipients of Public Services Disclosure of information regarding food stamp recipients is prohibited.171 Subject to certain exceptions, disclosure of confidential information pertaining to applicants for or recipients of public social services for any purpose unconnected with the administration of the welfare department also is prohibited.172 This latter prohibition does not create a privilege.173 Housing Authority Tenants Leases and lists or rosters of tenants of the Housing Authority are confidential and shall not be open to inspection by the public,but shall be supplied to the respective governing body on request.174 A Housing Authority has a duty to make available public documents and records of the Authority for inspection,except any applications for eligibility and occupancy that are submitted by prospective or current tenants of the Authority.175 The Act exempts from disclosure records that are the residence address of any person contained in the records of the Department of Housing and Community Development,if the person has requested confidentiality of that information in accordance with section 18081 of the Health and Safety Code.176 32 258 THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions Taxpayer Information Where information that is required from any taxpayer in connection with the collection of local taxes is received in confidence and where the disclosure of that information would result in an unfair competitive disadvantage to the person supplying the information,the information is exempt from disclosure."'Sales and use tax records may be used only for tax administration.Unauthorized disclosure or use of confidential information contained in these records can give rise to criminal liability.178 Trade Secrets and Other Proprietary Information As part of the award and administration of public contracts,businesses will often give local agencies information that the businesses would normally consider to be proprietary.There are three exemptions that businesses often use to attempt to protect this proprietary information–the official information privilege, the trade secret privilege,and the public interest exemption.171 However,California's strong public policy in favor of disclosure of public records precludes local agencies from protecting most business information.Both the official information privilege and the public interest exemption require that the public interest in nondisclosure clearly outweighs the public interest in disclosure.While these provisions were designed to protect legitimate privacy interests,California courts have consistently held that when individuals or businesses voluntarily enter into the public sphere,they diminish their privacy interests.180 Courts have further concluded that the public interest in disclosure overrides alleged privacy interests.For example,a court ordered a university to release the names of anonymous contributors who received license agreements for luxury suites at the school's sports arena. Another court ordered a local agency to release a waste disposal contractor's private financial statements used by the local agency to approve a rate increase.181 The trade secret privilege is for information,including a formula,pattern,compilation,program,device, method,technique or process,that: (1)derives independent economic value,actual or potential,from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use;and(2)is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.182 However,even when records contain trade secrets,local agencies must determine whether disclosing the information is in the public interest.When businesses give local agencies proprietary information,courts will examine whether disclosure of that information serves the public interest.183 The Act contains several exemptions that address specific types of information that may constitute a trade secret—pesticide safety ' and efficacy information,184 air pollution data,18'and corporate siting information.186 Other exemptions cover types of information that could include but are not limited to trade secrets—for example,certain information on plant production,utility systems development data,and 8 8 2 2 w market or crop reports.187 � � ��' �� � ' Utility Customer Information - 1{a�4VUAi�� RS Personal information expressly protected from disclosure under the Act includes names,credit histories,usage data,home addresses and telephone numbers of local agencies' utility customers.18'This exception is not absolute,and customers'names,utility usage data and home A addresses may be disclosable in certain situations.For example,disclosure is required when requested either by a customer's agent or authorized family member,18'an officer or employee of another governmental agency when necessary for performance of official duties,190 by court THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 259 33 order or request of a law enforcement agency relative to an ongoing investigation,191 when the local agency determines the customer used utility services in violation of utility policies,192 or if the local agency determines the public interest in disclosure clearly outweighs the public interest in nondisclosure.193 Utility customers who are local agency officials with authority to determine their agency's utilities usage policies have lesser protection of their personal information because their names and usage data are disclosable upon request.194 ■ PUBLIC INTEREST EXEMPTION The Act establishes a"public interest"or"catchall"exemption that permits local agencies to withhold a record if the agency can demonstrate that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.195 Weighing the public interest in nondisclosure and the public interest in disclosure under the public interest exemption is often described as a balancing test."The Act does not specifically identify the public interests that might be served by not making the record public,but the nature of those interests may be inferred from specific exemptions contained in the Act.The scope of the public interest exemption is not limited to Practice Tip: specific categories of information or established exemptions or privileges.Each request for records must be The public interest considered on the facts of the particular case in light of the competing public interests.191 exemption balancing test weighs only public The records and situations to which the public interest exemption may apply are open-ended,and when interests—the public it applies,the public interest exemption alone is sufficient to justify nondisclosure of local agency records. interest in disclosure The courts have relied exclusively on the public interest exemption to uphold nondisclosure of local agency and the public interest records containing names,addresses and phone numbers of airport noise complainants,proposals to lease in nondisclosure.Agency airport land prior to conclusion of lease negotiations,and information kept in a public defender's database interests or requester interests that are not also about police officers.191 public interests are not The public interest exemption is versatile and flexible,in keeping with its purpose of addressing considered.199 circumstances not foreseen by the Legislature.For example,in one case,the court held local agencies could properly consider the burden of segregating exempt from nonexempt records when applying the balancing test under the public interest exemption.200 In that case,the court held that the substantial burden of redacting exempt information from law enforcement intelligence records outweighed the marginal and speculative benefit of disclosing the remaining nonexempt information.In another case, the court applied the balancing test to the time of disclosure to hold that public disclosure of competing proposals for leasing city airport property could properly await conclusion of the negotiation process.201 The requirement that the public interest in nondisclosure must"clearly outweigh"the public interest in disclosure for records to qualify as exempt under the public interest exemption is important and emphasized by the courts.Justifying nondisclosure under the public interest exemption demands a clear overbalance on the side of confidentiality.202 Close calls usually do not qualify for an exemption.There are a number of examples of cases where a clear overbalance was not present to support nondisclosure under the public interest exemption.The courts have held that the following are ` all subject to disclosure under the public interest exemption balancing j test: the identities of individuals granted criminal conviction exemptions to work in licensed day care facilities and the facilities employing them; records relating unpaid aid state warrants;court records of a settlement p between the insurer for a school district and a minor sexual assault victim; applications for concealed weapons permits;letters appointing then rescinding an appointment to a local agency position;and the identities and license agreements of purchasers of luxury suites in a university arena.201 34 260 THE PEOPLE'S BUSINESS Chapter 4: Exemptions Deliberative Process Privilege The public interest exemption incorporates the deliberative process privilege.2114 Like the"drafts" exemption,the deliberative process privilege derives from the F01A"memorandums"exemption and its implementation of the executive or deliberative process privilege.201 Congress'main concern in enacting the"memorandums"exemption was that frank discussion of legal or policy matters might be inhibited if subject to public scrutiny,and that efficiency of government would be greatly hampered if,with respect to Practice Tip: such matters,local agencies were forced to operate in a fishbowl.206 The main difference between the deliberative The deliberative process privilege is based on the policy of protecting the decision-making processes process privilege and the of government agencies,and the notion that access to a broad array of opinions and the freedom to closely related"drafts" seek all points of view,to exchange ideas,and to discuss policies in confidence are essential to effective exemption is that the governance in a representative democracy.The deliberative process privilege is similar to the common deliberative process law privilege protecting against the disclosure of the mental processes of legislators.To prevent injury to privilege may exempt from disclosure records that an the quality of executive decisions,the courts have focused on protecting communications to the decision agency normally retains. maker before the decision is made.Courts have treated communications subsequent to the legislative decision as outside of the recognized privilege.207 The California Supreme Court has acknowledged that even purely factually material may be exempt from disclosure because it exposes the deliberative process.In applying the deliberative process privilege,courts focus more on the effect of the records' release and less on the nature of the records sought.The key question is whether the disclosure of materials would expose an agency's decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.208 The California Supreme Court has applied this analysis to uphold nondisclosure of the Governor's calendars concerning both past and future meetings.California appellate courts have relied on the deliberative process privilege to uphold nondisclosure of the names and qualifications of applicants for temporary appointment to a local board of supervisors,names and background information about applicants for a county supervisor's seat,and the telephone numbers of calls made and received by local agency council members from cellular phones and second phones in home offices.209 ■ EFFECT OF PROPOSITION 59 ON EXEMPTIONS At the November 2,2004 general election,the voters of ;: `} ► California passed Proposition 59 which amended the California Constitution to include a public right of access to public records. The Constitution specifically provides: "The people have the right of access to information concerning the conduct of the people's business,and therefore the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny"210 Thus,after enactment of Proposition 59,the right of public access to documents is not simply statutory,but a basic right under the Constitution.In furtherance of that goal,the constitutional provision states that a"statute,court rule,or other authority,including,those in effect on the effective date of this subdivision,shall be broadly construed if it furthers the people's right of access,and narrowly construed if it limits the right of access."211 It also provides that any statute enacted after its effective date that limits the right of access must be adopted with findings identifying the interest protected by the limitation and the need for protecting that interest.212 THE PEOPLE'S BUSINESS 0 Chapter 4: Exemptions 261 35 Although Proposition 59 elevated the right of access to public records to constitutional stature,it appears to be simply declarative of existing law in terms of existing statutory exemptions.For example,while the Constitution states that an existing exemption must be narrowly construed'213 this is consistent with longstanding case -� authority214 Moreover,the Constitution states that"[t]his subdivision does not repeal or nullify,expressly or by implication,any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of - — this subdivision,including,but not limited to,any statute protecting the confidentiality of law enforcement and prosecution records."215 No published opinion has extensively analyzed the impact of Proposition 59 on the exemptions in the Act. However,one court summarily noted that as to construction of the specific exemptions under the Act,it was simply declarative of existing law.216 In addition,in three separate opinions,the California Attorney General has concluded that Proposition 59 did not alter the application of exemptions under the Act that existed at the time of its enactment.217 Enactment of Proposition 59 underscores the general principle that public access to records is the rule,and nondisclosure the exception,only to be invoked in narrow circumstances after careful consideration.218 36 262 THE PEOPLES BUSINESS Chapter 4: Exemptions Endnotes 1 State of California ex rel Division of Industrial Safety v.Superior Court(1974)43 Cal.App.3d 778;Fairley v.Superior Court(1998)66 Cal.AppAth 1414. 2 San Gabriel Tribune v.Superior Court(1983)143 Cal.App.3d 762;Fairley v.Superior Court(1998)66 Cal.AppAth 1414;see"Effect of Proposition 59 on Exemptions,"p.35. 3 Gov.Code,§6254,subd.(k). 4 Gov.Code,§6255;see also"Public Interest Exemption,"p.34. 5 See,for example,"Attorney Client Communications and Attorney Work Product,"P.19 and"Medical Privacy Laws," p.25. 6 U.S.C.title 17. 7 Gov.Code,§6254,subd.(k). 8 17 U.S.C.§101. 9 17 U.S.C.§102(A)(8). 10 17 U.S.C.§107. 11 Health&Saf.Code,§19851. 12 Health&Saf.Code,§19851. 13 Health&Saf.Code,§19851. 14 89 Ops.Cal.AttyGen.39(2006). 15 Gov.Code,§6254,subd.(k). 16 Fairley x Superior Court(1998)66 Cal.AppAth 1414;see also"Official Information Privilege,"p.27. 17 U.S.v.Amlani(9th Cir.1999)169 F.3d 1189;Clarke v.American Commerce Nat.Bank(9th Cir.1992)974 F.2d 127; Smith v.Laguna Sur Villas Community Assn. (2000)79 Cal.AppAth 639. 18 Bus.&Prof.Code,§6149 [a written fee contract shall be deemed to be a confidential communication within the meaning of section 6068,subdivision(e)of the Business&Professions Code and section 952 of the Evidence Code]; Evid.Code,§952["Confidential communication between client and lawyer"];Evid.Code,§954[attorney client privilege]. 19 Evid.Code§912.See also Gov.Code§6254.5 and"Waiver",p.13. 20 See Rules Prof.Conduct,rule 3-600. 21 Gov.Code,§6254,subd.(f);State of California ex rel.Division of Industrial Safety v.Superior Court(1974)43 Cal. App.3d 778;Haynie v.Superior Court(2001)26 CalAth 1061;see"Law Enforcement Records,"p.22. 22 State of California ex rel.Division of Industrial Safety v.Superior Court(1974)43 Cal.App.3d 778;Haynie v.Superior Court(2001)26 CalAth 1061. 23 San Jose v.Superior Court(1999)74 Cal.AppAth 1008;see"Official Information Privilege,"p.27,"Identity of Informants,"p.21,and"Public Interest Exemption,"p.34. 24 Gov.Code,§6254,subd.(a). 25 Gov.Code,§6254,subd.(a);5 U.S.C.§552(b)(5). 26 Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 27 Citizens for a Better Environment v.Department of Food and Agriculture(1985) 171 Cal.App.3d 704. 28 Citizens for a Better Environment v.Department of Food and Agriculture(1985) 171 Cal.App.3d 704. 29 Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 30 Citizens for a Better Environment v.Department of Food and Agriculture(1985) 171 Cal.App.3d 704. 31 Citizens for a Better Environment v.Department of Food and Agriculture(1985) 171 Cal.App.3d 704. 32 Gov.Code,§6254.4. 33 Elec.Code,§2194. 34 Gov.Code,§6254.4(c). 35 Elec.Code,§2194,subd.(c). 36 Elec.Code,§2194,subd.(c)(2). 37 Gov.Code,§6253.6. 38 Gov.Code,§6253.5. 39 Gov.Code,§6253.5. 40 Evid.Code,§1041;People v.Navarro(2006) 138 Cal.AppAth 146. 41 People a Hobbs(1994)7 CalAth 948. 42 Gov.Code,§6254,subd.(f). 43 Haynie v.Superior Court(2001)26 CalAth 1061;65 Ops.Cal.Atty.Gen.563(1982). THE PEOPLES BUSINESS 0 Chapter 4: Exemptions 263 37 44 Gov.Code,§6254,subd.(f)(2). 45 Rackauckas v.Superior Court(2002) 104 Cal.AppAth 169. 46 Rivera v.Superior Court(1997)54 Cal.AppAth 1048;Williams v.Superior Court(1993)5 CalAth 337. 47 Haynie v.Superior Court(2001)26 CalAth 1061 [911 tapes]. 48 86 Ops.Cal.Atty.Gen.132(2003) [booking photos]. 49 Gov.Code,§6254,subd.(f). 50 Gov.Code,§13951,subd.(b). 51 Gov.Code,§6254,subd.(f). 52 Veh.Code,§20012. 53 Gov.Code,§6254,subd.(f)(1). 54 Rosenthal v.Hansen(1973)34 Cal.App.3d 754. 55 Gov.Code,§6253.9,subd.(a). 56 Gov.Code,§6254,subd.(f)(2). 57 Pen.Code,§841.5,subd.(a). 58 Gov.Code,§6254,subd.(f). 59 Gov.Code,§6254,subd.(f)(3);Pen.Code,§841.5;Los Angeles Police Dept.v. United Reporting Pub.Corp.(1999) 528 U.S.32 [120 S.Ct.483]. 60 Welf.&Inst.Code,§§5150,5328. 61 Welf.&Inst.Code,§5330. 62 Welf.&Inst.Code,§15633. 63 Welf.&Inst.Code,§15633. 64 Welf.&Inst.Code,§15633. 65 Welf.&Inst.Code,§§827,828;see Welf.&Inst.Code,§827.9[applies to Los Angeles County only];see also TN.G. v.Superior Court(1971)4 Cal.3d 767[release of information regarding minor who has been temporarily detained and released without any further proceedings.] 66 Wel£&Inst.Code,§827. 67 Wel£&Inst.Code,§828,subd.(a);Cal.Rules of Court,rule 5.552(g). 68 Welf.&Inst.Code,§828,subd.(b). 69 Pen.Code,§§11165.6,11165.7,11167.5&11169. 70 Pen.Code,§11167.5,subd.(a). 71 Gov.Code,§6254,subd.(j). 72 Gov.Code,§6267. 73 Gov.Code,§§6254,subd.(j)&6267. 74 Gov.Code,§6254,subd.(n). 75 San Gabriel Tribune v.Superior Court(1983)143 Cal.App.3d 762. 76 Evid.Code,§990 et seq.;Civ.Code,§56 et seq.;42 U.S.C.§1320d. 77 Gov.Code,§6254,subd.(k). 78 Both section 6254,subd.(c)and section 6254,subd.(k)of the Act probably apply to most records protected under the physician/patient privilege,the Confidentiality of Medical Information Act,or the Health Insurance Portability and Accountability Act.Section 6254,subdivision(c)of the Act exempts from disclosure"[p]ersonnel,medical, or similar files the disclosure of which would constitute an unwarranted invasion of personal privacy."Section 6254,subdivision(k)of the Act exempts"[r]ecords,the disclosure of which is exempted or prohibited pursuant to federal or state law,including,but not limited to,provisions of the evidence Code relating to privilege.' Protected individually identifiable health information is probably also exempt from disclosure under the"public interest" exemption in section 6255 of the Act. 79 Evid.Code,§994. 80 Evid.Code,§992. 81 Civ.Code,§§56.10,subd.(a),56.05,subd.(g)."Provider of health care"as defined means persons licensed under section 500 and following of the Business and Professions Code or section 1797 and following of the Health and Safety Code,and clinics,health dispensaries or health facilities licensed under section 1200 and following of the Health and Safety Code."Health care service plan"as defined means entities regulated under Health and Safety Code section 1340 and following."Contractor"as defined means medical groups,independent practice associations, pharmaceutical benefits managers and medical service organizations that are not providers of health care or health care service plans. 82 Civ.Code,§56.20. 83 Civ.Code,§56.05,subd.(g). 84 Civ.Code,§56.35. 38 264 THE PEOPLES BUSINESS Chapter 4: Exemptions 85 Civ.Code,§56.36,subds.(a),(b). 86 Civ.Code,§56.36,subd.(c)(1). 87 Civ.Code,§56.36,subd.(c)(2). 88 Health Insurance Portability and Accountability Act of 1996,Pub.L.No.104-192,§261(Aug.24,1996) 110 Stat. 1936;42 U.S.C.§1320d. 89 42 U.S.C.§1320d-1-d-3,Health and Human Services Summary of the Privacy Rule,May,2003.The final privacy regulations were issued in December,2000 and amended in August,2002.The definitions of"health information" and"individually identifiable health information"in the privacy regulations are in 45 Code of Federal Regulations part 160.103.The general rules governing use and disclosure of protected health information are in 45 Code of Federal Regulations part 164.502. 90 42 U.S.C.§1320d-6.Federal law defines"individually identifiable health information"as any information collected from an individual that is created or received by a health care provider,health plan,employer or health care clearing house,that relates to the past,present,or future physical or mental health or condition of an individual,the provision of health care to an individual,or the past,present or future payment for the provision of health care to an individual,and that identifies the individual,or with respect to which there is a reasonable basis to believe that the information can be used to identify the individual. 91 42 U.S.C.§1320d-5. 92 Gov.Code,§6254,subd.(c). 93 Gov.Code,§6254,subd.(k). 94 Lab.Code,§138.7,subd.(a). 95 Lab.Code,§138.7. 96 Lab.Code,§§5501.5&138.7. 97 Gov.Code,§6254,subd.(c). 98 Lab.Code,§138.7. 99 Evid.Code,§1040. 100 White v.Superior Court(2002) 102 Cal.App.4th Supp.1. 101 Evid.Code,§1040,subd.(b). 102 Gov.Code,§6255. 103 The term"in camera"refers to a review of the document in the judge's chambers outside the presence of the requesting party. 104 Shepherd v.Superior Court(1976) 17 Cal.3d 107. 105 Department of Motor Vehicles v.Superior Court(2002) 100 Cal.AppAth 363;California State University,Fresno Assn., Inc.v.Superior Court(2001)90 Cal.App.4th 810;County of Orange v.Superior Court(2000)79 Cal.AppAth 759. 106 Evid.Code,§1040,subd.(a). 107 Department of Motor Vehicles v.Superior Court(2002) 100 Cal.App.4th 363. 108 Gov.Code,§6254,subd.(b). 109 Fairley v.Superior Court(1998)66 Cal.AppAth 1414;City of Hemet v.Superior Court(1995)37 Cal.AppAth 1411. 110 Fairley v.Superior Court(1998)66 Cal.App.4th 1414;City of Hemet v.Superior Court(1995)37 Cal.AppAth 1411. 111 Wilder v.Superior Court(1998)66 CaLAppAth 77. 112 Poway Unified School Dist.x Superior Court(1998)62 Cal.AppAth 1496. 113 City of Los Angeles x Superior Court(1996)41 Cal.AppAth 1083. 114 Register Div.of Freedom Newspapers,Inc.v.County of Orange(1984) 158 Cal.App.3d 893. 115 See"Medical Privacy Laws,"p.25. 116 Register Div.of Freedom Newspapers,Inc.v.County of Orange(1984) 158 Cal.App.3d 893. 117 See"Law Enforcement Records,"p.22. 118 D.I.Chadbourne,Inc.v.Superior Court(1964)60 Ca1.2d 723;City of Hemet v.Superior Court(1995)37 Cal.AppAth 1411. 119 Gov.Code,§6255. 120 Evid.Code,§950 et seq. 121 Code Civ.Proc.,§2018.030. 122 City of Los Angeles v.Superior Court(1996)41 Cal.AppAth 1083. 123 Roberts v.City of Palmdale(1993)5 CalAth 363 [attorney client privilege];Fellows v.Superior Court(1980) 108 Cal. App.3d 55 [work product protection]. 124 Gov.Code,§6259;Evid.Code,§915,subd.(a). 125 Gov.Code,§6255,subd.(a). 126 City of San Jose v.Superior Court(1999)74 Cal.AppAth 1008. 127 CBS,Inc.v.Block(1986)42 Cal.3d 646. THE PEOPLES BUSINESS 0 Chapter 4: Exemptions 265 39 128 New York Times Co.v.Superior Court(1990)218 Cal.App.3d 1579. 129 California State University,Fresno Assn.,Inc.v.Superior Court(2001)90 Cal.AppAth 810. 130 See Gov.Code,§6254.21,subd.(f) [containing a non-exhaustive list of individuals who qualify as"elected or appointed official[s]"]. 131 Gov.Code,§6254.21. 132 Gov.Code,§6254,subd.(c). 133 Black Panther Party v.Kehoe(1974)42 Cal.App.3d 645;American Civil Liberties Union Foundation v.Deukmejian (1982)32 Cal.3d 440. 134 International Federation of Professional and Technical Engineers,Local 21,AFL-CIO V.Superior Court(2007)42 CalAth 319;Commission on Peace Officer Standards And Training v.Superior Court(2007)42 CalAth 278. 135 Gov.Code,§6255;BRV,Inc.v.Superior Court(2006) 143 Cal.AppAth 742;see also,Copley Press,Inc.v.Superior Court(2006)39 CalAth 1272;see Chapter 4(c). 136 International Federation of Professional and Technical Engineers,Local 21,AFL-CIO v.Superior Court(2007)42 CalAth 319;Commission on Peace Officer Standards And Training v.Superior Court(2007)42 CalAth 278;BRV Inc. v.Superior Court(2006) 143 Cal.AppAth 742;American Federation of State etc.Employees v.Regents of University of California(1978)80 Cal.App.3d 913. 137 American Federation of State etc.Employees v.Regents of University of California(1978)80 Cal.App.3d 913; Bakersfield City School Dist.v.Superior Court(2004) 118 Cal.AppAth 1041. 138 City of San Jose v.Superior Court(1999)74 Cal.AppAth 1008;Detroit Edison Co.v.NLRB(1979)440 U.S. 301 [court found a reasonable expectation of privacy in one's personnel files];American Civil Liberties Union Foundation v.Deukmejian(1982)32 Cal.3d 440. 139 Gov.Code,§6254,subd.(k);Pen.Code,§832.7;City of Hemet v.Superior Court(1995)37.Cal.App.4th 1411. 140 Pen.Code,§832.7;Evid.Code,§§1043,1046. 141 Pen.Code,§832.8. 142 International Federation of Professional and Technical Engineers,Local 21,AFL-CIO v.Superior Court(2007)42 CalAth 319;Commission on Peace Officer Standards And Training v.Superior Court(2007)42 CalAth 278. 143 Sanchez v.City of Santa Ana(9th Cir.1990)936 E2d 1027,cert.denied(1991)502 U.S.957;Miller v.Pancucci (C.D.Cal.1992) 141 F.R.D.292. 144 Evid.Code,§1043 et seq.;Guerra v.Board of Trustees(9th Cir.1977)567 F.2d 352;Kerr v. United States Dist. Court for Northern Dist.(9th Cir.1975)511 E2d 192,aff'd,(1976)426 U.S.394;Garrett v City and County of San Francisco(9th Cir.1987)818 E2d 1515. 145 People v.Mooc(2001)26 CalAth 1216;People v.Thompson(2006) 141 Cal.AppAth 1312;City of San Jose v.Superior. Court(1998)67 Cal.AppAth 1135. 146 Gov.Code,§6254.8. 147 Braun v.City of Taft(1984) 154 Cal.App.3d 332. 148 International Federation of Professional and Technical Engineers,Local 21,AFL-CIO v.Superior Court(2007)42 CalAth 319[holding that the names and salaries of public employees earning$100,000 or more per year,including peace officers,are subject to disclosure under the Act]. 149 Commission on Peace Officer Standards And Training v.Superior Court(2007)42 CalAth 278. 150 Lab.Code,§1776. 151 Lab.Code,§1776,subd.(b). 152 Lab.Code,§1776,subd.(c). 153 Contractors and subcontractors that fail to do so may be subject to a penalty of$25 per worker for each calendar day until compliance is achieved.Lab.Code,§1776,subds.(d),(g). 154 Lab.Code,§1776,.subd.(e). 155 Lab.Code,§1776,subd.(e). 156 Lab.Code,§1776,subd.(e). 157 Lab.Code,§1776,subd.(i);see Lab.Code§16400 et seq. 158 California Code Regs.,tit.8,§§16400,16402. 159 Gov.Code,§6254,subd.(g). 160 Ed.Code,§99157,subd.(a);Brutsch v.City of Los Angeles(1982)3 Cal.AppAth 354. 161 Ed.Code,§9915,subds.7(a)&(b). 162 Ed.Code,§§99153&99154. 163 Ed.Code,§99162. 164 California State University,Fresno Assn.,Inc.v.Superior Court(2001)90 Cal.AppAth 810. 165 Pub.Contract Code,§22038. 166 Gov.Code,§6255;Michaelis,Montanari&Johnson v.Superior Court(2006)38 CalAth 1065. 167 Pub.Contract Code,§§10165,10506.6,10763,20101,20111.5,20209.7,20209.26&20651.5. 40 266 THE PEOPLES BUSINESS 0 Chapter 4: Exemptions 168 Gov.Code,§6254,subd.(h). 169 Gov.Code,§6245,subd.(h). 170 Gov.Code,§7267.2,subd.(c). 171 Welf.&Inst.Code,§18909. 172 Welf.&Inst.Code,§10850. 173 Jonon v.Superior Court(1979)93 Cal.App.3d 683. 174 Health&Saf.Code,§34283. 175 Health&Saf.Code,§34332,subd.(c). 176 Gov.Code,§6254.1. 177 Gov.Code,§6254,subd.(i);see also Rev.&Tax.Code,§7056. 178 Rev.&Tax Code,§§7056&7056.5. 179 Evid.Code,§§1040&1060;Gov.Code,§§6254,subd.(k),6255. 180 California State University,Fresno Assn.,Inc.v.Superior Court(2001)90 Cal.AppAth 810;Braun v.City of Taft (1984) 154 Cal.App.3d 332;San Gabriel Tribune v.Superior Court(1983) 143 Cal.App.3d 762. 181 California State University,Fresno Assn.,Inc.v.Superior Court(2001)90 Cal.AppAth 810;San Gabriel Tribune v. Superior Court(1983) 143 Cal.App.3d 762. 182 Civ.Code,§3426.1,subd.(d).This trade secret definition is set forth in the Uniform Trade Secrets Act("UTSA") at Civil Code section 3426.1,subdivision(d).However,Civil Code section 3426.7,subdivision(c)states that any determination as to whether disclosure of a record under the Act constitutes a misappropriation of a trade secret shall be made pursuant to the law in effect before the operative date of the UTSA. At that time,California used the Restatement definition of a trade secret,which was lengthy. See Uribe v.Howie(1971) 19 Cal.App.3d 194. Accordingly,it is not clear that the trade secret definition that applies generally under the UTSA is the trade secret definition that applies in the context of a public records request. 183 Uribe v.Howie(1971) 19 Cal.App.3d 194. 184 Gov.Code,§6254.2. 185 Gov.Code,§6254.7. 186 Gov.Code,§6254.15. 187 Gov.Code,§6254,subd.(e). 188 Gov.Code,§6254.16. 189 Gov.Code,§6554.16,subd.(a). 190 Gov.Code,§6254.16,subd.(b). 191 Gov.Code,§6254.16,subd.(c). 192 Gov.Code,§6254.16,subd.(d). 193 Gov.Code,§6254.16,subd.(f). 194 Gov.Code,§6265.16,subd.(e). 195 Gov.Code,§6255;Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 196 CBS Broadcasting,Inc.v.Superior Court(2001)91 Cal.App.4th 892. 197 Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 198 City of San Jose v.Superior Court(1999)74 Cal.AppAth 1008;Michaelis,Montanari&Johnson v.Superior Court (2006)38 CalAth 1065;Coronado Police Officers Assn.v.Carroll(2003) 106 Cal.AppAth 1001. 199 Coronado Police Officers Assn.v.Carroll(2003) 106 Cal.AppAth 1001. 200 American Civil Liberties Union Foundation v.Deukmejian(1982)32 Cal.3d 440. 201 Michaelis,Montanari&Johnson v.Superior Court(2006)38 CalAth 1065. 202 Black Panther Party v.Kehoe(1974)42 Cal.App.3d 645. 203 CBS Broadcasting Inc.,v.Superior Court(2001)91 Cal.AppAth 892;Connell v.Superior Court(1997)56 Cal.AppAth 601;Copley Press,Inc.,v.Superior Court(1998)63 Cal.AppAth 367;CBS,Inc.v.Block(1986)42 Cal.App.3d 646; Braun v.City of Taft(1984) 154 Cal.App.3d 332;California State University,Fresno Assn.v.Superior Court(2001)90 Cal.AppAth 810. 204 Gov.Code,§6255. 205 Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 206 Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 207 Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 208 Times Mirror Co.v.Superior Court(1991)53 Cal.3d 1325. 209 California FirstAmendment Coalition v.Superior Court(1998)67 Cal.App.4th 159;Wilson v.Superior Court(1996) 51 Cal.AppAth 1136;Rogers v.Superior Court(1993) 19 Cal.AppAth 469. 210 Cal.Const.,art.I,§3,subd.(b)(1). 211 Cal.Const.,art.I,§3,subd.(b)(2). 212 Cal.Const.,art.I,§3,subd.(b)(2). THE PEOPLES BUSINESS 0 Chapter 4: Exemptions 267 41 213 Cal.Const.,art.I,§3,subd.(b)(2). 214 New York Times v.Superior Court(1990)218 Ca1.App.3d 1579;San Gabriel Tribune v.Superior Court(1983) 143 Cal.App.3d 762;Rogers v.Superior Court(1993) 19 Cal.App.4th 469. 215 Cal.Const.,art.I,§3,subd.(b)(5);International Federation of Professional and Technical Engineers,Local 21,AFL- CIO v.Superior Court(2007)42 CalAth 319. 216 BRU,Inc.v.Superior Court(2006) 143 Cal.App.4th 742. 217 87 Ops.Cal.Atty.Gen.181 (2004);88 Ops.Cal.Atty.Gen.16(2005);89 Ops.Cal.Atty.Gen.204(2006). 218 International Federation of Professional and Technical Engineers,Local 21,AFL-CIO v.Superior Court(2007)42 CalAth 319. 42 268 THE PEOPLES BUSINESS Chapter 4: Exemptions CHAPTER 5 : JUDICIAL REVIEW AND REMEDIES A..Apr s OVERVIEW THE TRIAL COURT PROCESS AND DECISION APPELLATE REVIEW ATTORNEY FEES AND COSTS CHAPT E R 5 JUDICIAL REVIEW AND REMEDIES Lam_. ■ OVERVIEW The Act establishes a special,expedited judicial process to resolve disputes over the public's right to inspect or receive copies of public records.' In contrast to other governmental transparency laws such as the Ralph M.Brown Act,2 the Act contains no criminal penalties for a local agency's failure to comply with the Act.Rather,the Act is enforced through an expedited civil judicial process in which any person may ask Practice Tip: a judge to compel a public agency to disclose a public record or a class of public records.'A person who Although the Act does not successfully enforces his or her rights under the Act is entitled to receive reasonable attorney fees and contain criminal penalties, court costs.°This chapter discusses the special rules that apply to lawsuits brought to enforce the Act. violations of the Act can lead to public criticism of 0 THE TRIAL COURT PROCESS AND DECISION both the local agency and the individuals involved, Any person may file a civil action for injunctive or declaratory relief or writ of mandate to enforce his or her payment of attorney fees by right to inspect or receive a copy of any public record under the Act.5 The action may be filed in any court the local agency,and other of competent jurisdiction,which typically is the superior court in the county where the records or some non-criminal sanctions. part of them are maintained.6 The Act does not contain a specific time period in which the action must be Certain local agencies may filed.Therefore,such action must be filed in a manner consistent with traditional actions for injunctive or also have local"sunshine" ordinance policies that declaratory relief or writ of mandate and would be subject to any limitations periods or equitable concepts make violations of the Act such as laches applicable to such actions. grounds for discipline of A local agency may not commence an action for declaratory relief to determine the agency's obligation to employees or officials. disclose records to a member of the public under the Act.'Allowing a local agency to seek declaratory relief to determine whether it must disclose records to a member of the public would frustrate the Legislature's purpose of furthering the fundamental right of every person in the state to have prompt access to information in the possession of local agencies.However,a local agency is a"person"under the Act and may maintain an action to compel the disclosure of records under the Act.' 44 THIMPLE'S BUSINESS ■ Chapter 5: Judicial Review and Remedies A lawsuit brought to enforce the Act is not subject to the normal time periods that apply to other civil actions.The judge in each case will establish the times for responsive pleadings and for hearings with the object of securing a decision at the earliest possible time.9 If the judge determines,based upon a verified petition,that certain public records are being improperly withheld from a member of the public,the judge will order the officer or person withholding the records to disclose the public record or show cause why he or she should not do so.10 In a typical action under the Act,the parties will file written arguments with the court to explain why the records should be disclosed or withheld.The court will also hold a hearing to give the parties an opportunity to argue the case.If permitted by the rules of evidence."The judge may examine the record or records at issue in camera,that is,in the judge's chambers and out of the presence and hearing of others,to help decide the case.12 The judge must decide the - case based on a review of the record or records(if such review is permitted),the papers filed by the parties,any oral argument,and additional evidence as the court may allow.13 If the court finds that the public official's decision to refuse disclosure is not justified under the Act,the judge shall order the public official to make the record public.14 If the judge determines that the public official was justified in refusing to make the record public,he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.15 The court may also order some of the records to be disclosed while upholding the decision to withhold other records. In addition,the court may order that portions of the records be redacted and compel the disclosure of the remaining portions of the records. A local agency must disclose the public records pursuant to the trial court's order unless a party obtains a stay of the order or judgment through a petition to the appellate court.Absent a stay,any person who fails to obey the order of the court shall be ordered to show cause why he or she is not in contempt of court.16 ■APPELLATE REVIEW As part of the expedited judicial review process established by the Act,a trial court's order is not considered to be a final judgment subject to the normal and often lengthy appeal process.In place of a normal appeal,such orders are subject to immediate review through the filing of a petition to the appellate court for the issuance of an extraordinary writ.17 This manner of providing for appellate review through an extraordinary writ procedure rather than a normal appeal has been held to be constitutional.18 A parry seeking review of a trial court's order must file a petition for review with the appellate court within 20 days after he or she is served with a written notice of entry of the order,or within such further time not exceeding an additional 20 days as the trial court may for good cause allow.If the written notice of entry of the order is served by mail,the period within which to file the petition is increased by five days.19 If a party wishes to prevent the disclosure of public records pending appellate review of the trial court's decision,that party must ask the appellate court for a stay of the order or judgment.The appellate court shall not grant such a stay unless the petitioning party demonstrates both that it will sustain irreparable damage because of the disclosure and that it is probable that the party will succeed on the merits of the case in the appellate court.20 THE PEOPLE'S BUSINESS 0 Chapter S: Judicial Review and Reme2z74 45 Because the trial court's decision is not a final judgment for which there is an absolute right of appeal,the appellate court may decline to review the case without a hearing or without issuance of a detailed written opinion.However,since the intent of substituting writ review for the normal appeal process is to provide for speedier appellate review,not to provide for less appellate review,an appellate court may not deny an apparently meritorious writ petition that is timely presented and procedurally sufficient merely because the petition presents no important issue of law or because the court considers the case less worthy of its attention than other matters.21 Once a court of appeal accepts a petition for review,the appellate process proceeds in much the same fashion as a normal appeal. e I The appellate court will establish a briefing schedule and set the matter for a hearing once briefing is complete.The scope of review is equivalent to the scope of review on appeal,and an appellate court will consider the merits of a trial court's order as if the case were on appeal.22 The appellate court will conduct an independent review of the trial court's ruling,with the factual findings made by the trial court being upheld if based on substantial evidence.21 The decision of the appellate court,whether to deny review or on the merits of the case,is subject to discretionary review by the California Supreme Court through a petition for review. While the trial court's decision regarding disclosure of records is not subject to the normal appeal process, other decisions of the trial court related to a lawsuit under the Act are subject to appeal.Thus,a trial court's decision to deny attorney fees and costs under the Act is subject to appeal and is not subject to the extraordinary writ process.24 Similarly,an award of sanctions in a public records case is subject to appeal rather than a petition for an extraordinary writ.25 ■ATTORNEY FEES AND COSTS If the plaintiff prevails in the litigation,the judge must award court costs and reasonable attorney fees to the plaintift26 A plaintiff will be considered the prevailing party if the lawsuit results in the disclosure of some or all of the requested records.This means that the plaintiff will likely be considered the prevailing parry even when he or she has only achieved a partial victory in the lawsuit.27 In addition,a plaintiff may be considered the prevailing party when the local agency discloses some or all of the records after the lawsuit is filed but prior to a court order requiring such disclosure,if the agency's disclosure was the result of or prompted by the lawsuit.28 On the other hand,if the local agency did not decline to provide the records but, acting diligently,was only able to disclose them after the filing of the lawsuit,the plaintiff will likely not be considered the prevailing party because the lawsuit did not result in or prompt the disclosure.29 A member of the public may be entitled to an award of attorney fees and costs even when he or she is not denominated as the"plaintiff'in the action.30 If the party is the functional equivalent of a plaintiff in a Public Records Act lawsuit—that is,if the party's intent to invoke the Act prompted the litigation—that party may be considered the prevailing plaintiff under the Act. The local agency,not the public official who made the decision,must pay any award of costs and fees.The award does not become a personal liability of the public official who made the decision not to disclose the public record s.31 46 THIPLE'S BUSINESS ■ Chapter 5: Judicial Review and Remedies The successful local agency defendant may seek an award of attorney fees and court costs against an unsuccessful plaintiff,but the agency will only obtain such an award in very limited circumstances.Only when the court finds that the plaintiff's case is clearly frivolous may it award court costs and reasonable attorney fees to the local agency32 Endnotes 1 Gov.Code,§§6258,6259. 2 Gov.Code,§54950 et seq. 3 Gov.Code,§6258. 4 Gov.Code,§6259,subd.(d). 5 Gov.Code,§6258. 6 Gov.Code,§6259,subd.(a). 7 Filarsky v.Superior Court(2002)28 Cal.4th 419. 8 Los Angeles Unified School Dist.v.Superior Court(2007) 151 Cal.AppAth 759. 9 Gov.Code,§6258. 10 Gov.Code,§6259,subd.(a). 11 Evid.Code.§915. 12 Gov.Code,§6259,subd.(a). 13 Gov.Code,§6259,subd.(a). 14 Gov.Code,§6259,subd.(b). 15 Gov.Code,§6259,subd.(b). 16 Gov.Code,§6259,subd.(c). 17 Gov.Code,§6259,subd.(c). 18 Powers v.City of Richmond(1995)10 CalAth 85. 19 Gov.Code,§6259,subd.(c). 20 Gov.Code,§6259,subd.(c). 21 Powers v.City of Richmond(1995)10 CalAth 85. 22 State Bd.of Equalization v.Superior Court(1992)10 Cal.AppAth 1177. 23 Times Mirror Co.v.Superior Court(1991)53 Ca1.3d 1325. 24 Los Angeles Times v.Alameda Corridor Transportation Authority(2001)88 Cal.AppAth 1381. 25 Butt v.City of Richmond(1996)44 Cal.AppAth 925. 26 Gov.Code,§6259,subd.(d). 27 Los Angeles Times v.Alameda Corridor Transportation.Authority(2001)88 Cal.AppAth 1381. 28 Rogers v.Super.Ct.(1993) 19 Cal.AppAth 469;Belth v.Garamendi(1991)232 Cal.App.3d 896. 29 Motorola Communication&Electronics,Inc.v.State Dept.of General Services(1997)55 Cal.AppAth 1340;Rogers v. Superior Court(1993) 19 Cal.AppAth 469. 30 Fontana Police Depart.v.Villegas Banuelos(1999)74 Cal.AppAth 1249. 31 Gov.Code,§6259,subd.(d). 32 Gov.Code,§6259,subd.(d);Butt v.City of Richmond(1996)44 Cal.AppAth 925. THE PEOPLE'S BUSINESS 0 Chapter S: Judicial Review and Reme2z76 47 48 TH PLEAS BUSINESS ■ Chapter 5: Judicial Review and Remedies R � t � . r CHAPTEf� 6 : RECORDS MANAGEMENT PUBLIC MEETING RECORDS ELECTRONIC RECORDS ELECTRONIC DISCOVERY RECORDS RETENTION AND DESTRUCTION LAWS Y%J1r CHAPT E R 6 : RECORDS MANAGEMENT ■ PUBLIC MEETING RECORDS Practice Tip: Any person may request to receive a copy of a local agency meeting agenda or agenda packet by mail.' If requested,the agenda material must be made available in appropriate alternative formats to persons with Some agencies have found it useful to adopt disabilities.z If a local agency receives a written request to send agenda materials by mail,the materials electronic records policies must be mailed when the agenda is posted or distributed to a majority of the agency's legislative body, governing such issues as: whichever occurs first.3 Requests for mailed copies of agendas or agenda packets are valid for the calendar what electronic records year in which they are filed,but must be renewed after January 1 of each subsequent year."Local agency (for example, emails)are legislative bodies may establish a fee for mailing agenda materials.5 The fee may not exceed the cost of considered"retained in providing the service.6 Failure of a requester to receive agenda material is not a basis for invalidating action the ordinary course of taken at the meeting for which agenda material was not received.7 business"for purposes of the Act;whether personal Writings that are distributed to all or a majority of all members of a legislative body in connection with a electronic devices(like matter subject to discussion or consideration at a public meeting of the body are public records(subject computers,personal data to the exemptions in the Act)and must be made available upon request without delay,,Where such assistants,cell phones, etc.)may be used n nonexempt writings are distributed during a public meeting,in addition to making them available for public store or send electronic inspection at the meeting(if prepared by the agency or member of its legislative body)or after the meeting communications concerning (if prepared by another person),they must be made available in appropriate alternative formats upon the agency,or whether request by a person with a disability9 The agency may charge a fee for a copy of this record;however,no agency devices must be surcharge may be imposed on persons with disabilities.10 Records pertaining to agenda items must be used;etc. made available for public inspection at a location listed in the meeting agenda if the records are distributed less than 72 hours prior to the meeting." 50 27 ff HE PEOPLE'S BUSINESS 0 Chapter 6: Records Management ■ ELECTRONIC RECORDS "Public records"subject to the Act include"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 or characteristics."12 Therefore,records subject to the Act include records in any media,including electronic media,in which government agencies may possess records.This is underscored by the definition of"writings"treated as public records,which includes any"transmitting by electronic mail or facsimile,and Practice Tip: every other means of recording upon any tangible thing any form of communication or representation, Local agencies should including letters,words,pictures,sounds,or symbols or combinations thereof,and any record thereby consult with legal created,regardless of the manner in which the record has been stored."13 Some provisions of the Act deal counsel concerning disclosure of metadata explicitly with electronic records. or GIS information. The Act obligates agencies to provide electronic copies of existing,nonexempt records that are requested in an electronic format that the agency has already used for itself or transmission to another agency,unless doing so would compromise the security or integrity of the original record,or any proprietary software in which it is maintained,or unless otherwise prohibited by law.14 Duplication costs of electronic records are limited to the direct cost of producing the electronic copy.15 However,requesters may be required to bear additional costs of producing the electronic copy,such as programming and computer services costs,if the records are only produced at regularly scheduled intervals,or production of the record would require data compilation,extraction or programming.16 Agencies are not required to reconstruct electronic copies of records no longer available to the agency in electronic format.17 Electronic records may include"metadata,"or data about data contained in a record that is not visible in the text.For example,metadata may describe how,when or by whom particular data was collected,and contain information about document authors,other documents,or commentary or notes.No provision of the Act expressly addresses metadata,and no reported court opinions have considered whether or the extent to which metadata is subject to disclosure.Nor does the Act or its case law provide guidance on whether agencies have a duty to disclose electronic public records that contain exempt metadata if the agency is unable to electronically remove the metadata. Electronic records maintained by local agencies may also include geographic information system(GIS)records and GIS technology that permits storage,processing and display of geographical 6 Fye information.Many local agencies use GIS programs and databases for a broad range of purposes,including the creation and editing of maps depicting property and facilities of importance to the I agency and the public.As with metadata,the Act does not expressly address,and no published cases discuss,GIS information disclosure. The Act permits government agencies to develop and commercialize computer software and to benefit from copyright protections for agency-developed software.Computer software developed by state or local agencies,including computer mapping systems, computer programs,and computer graphics systems,is not a public record subject to the Act.18 As a result, public agencies are not required to provide copies of agency-developed software pursuant to the Act.The Act authorizes state and local agencies to sell,lease,or license agency-developed software for commercial or noncommercial use.19 The exception for agency-developed software does not affect other public agency electronic records.20 THE PEOPLE'S BUSINESS■ Chapter 6: Records Management 277 51 ■ ELECTRONIC DISCOVERY Practice Tip: The importance of maintaining a written document retention policy is evident by revisions to Rule 26 of the The definition of"public Federal Rules of Civil Procedure,which took effect December 1,2006.Rule 26 requires parties in federal records"for purposes of court litigation to address the production and preservation of electronic records.These rule changes do the Act and state records not require a local agency to alter its routine management or storage of electronic information.They do, retention laws are different, however,illustrate the importance of having formal document retention policies. and because local agency officials retain some In general,once federal court litigation begins,a local agency has a duty to preserve information for discretion under the Act and discovery.In some cases,the local agency may have to suspend the routine operation of its information state records retention laws systems in order to preserve information relevant to the litigation. concerning what records an agency retains,the fact ■ RECORDS RETENTION AND DESTRUCTION LAWS that a particular type of The Act is not a records retention statute.The Act does not prescribe what type of information a public public record is subject to disclosure under the Act agency may gather or keep,or provide a method for correcting records." its sole function is to provide for does not necessarily mean disclosure.22 Other provisions of state law govern retention of public records. that local agencies must Local agencies generally must retain public records for a minimum of two years,although some records retain such records. may be destroyed sooner.23 For example,duplicate records that are less than two years old may be destroyed if no longer required.24 State law does not permit destruction of records affecting title to or liens on real property,court records,records required to be kept by statute,and the minutes,ordinances, or resolutions of the legislative body or city board or commission.21 Most local agencies adopt records retention schedules as a key element of a records management system.The Secretary of State has provided local governments with records management guidelines.26 However,there is no definition of the"public records"subject to state records retention statutes.27 The Attorney General has opined that the definition of"public records"for purposes of the records retention statutes is"a thing which constitutes an objective lasting indication of a writing,event or other information,which is in the custody of a public officer and is kept either(1)because a law requires it to be kept or(2)because it is necessary or convenient ' to the discharge of the public officer's duties and was made or + retained for the purpose of preserving its informational content r for future reference."28 Under this definition,local agency officials retain some discretion concerning what agency records must be kept pursuant to state records retention laws.Similarly,the Act allows for local agency discretion concerning what preliminary drafts,notes or interagency or intra-agency memoranda are retained in the ordinary course of business.29 52 278'HE PEOPLE'S BUSINESS 0 Chapter 6: Records Management Endnotes 1 Gov.Code,§54954.1. 2 Gov.Code,§54954.1. 3 Gov.Code,§54954.1. 4 Gov.Code,§54954.1. 5 Gov.Code,§54954.1. 6 Gov.Code,§54954.1. 7 Gov.Code,§54954.1. 8 Gov.Code,§54957.5,subd.(a). 9 Gov.Code,§54957.4,subd.(c) 10 Gov.Code,§54957.5,subd.(d). 11 Gov.Code,§54957.5,subds.(b)(1),(2). 12 Gov.Code,§6252,subd.(e),emphasis added. 13 Gov.Code,§6252,subd.(g). 14 Gov.Code,§6253.9,subd.(a). 15 Gov.Code,§6253.9,subd.(a)(2). 16 Gov.Code,§6253.9,subd.(b). 17 Gov.Code,§6253.9,subd.(c).See"No Duty to Create a Record or to Create a Privilege Log,"p.13. 18 Gov.Code,§6254.9,subds.(a),(b). 19 Gov.Code,§6254.9,subd.(a). 20 Gov.Code,§6254.9,subd.(d). 21 Los Angeles Police Dept.v.Superior Court(1977)65 Cal.App.3d 661. 22 Los Angeles Police Dept.v.Superior Court(1977)65 Cal.App.3d 661. 23 Gov.Code,§34090,subd.(d). 24 Gov.Code,§34090.7. 25 Gov.Code,§34090,subds.(a),(b),(c),(e). 26 The Secretary of State's Local Government Records Management Guidelines may be viewed at http://Www.sos.ca.gov/archives/locgov/localgovrm7.tidf. 27 64 Ops.Cal.Atty.Gen.317(1981). 28 64 Ops.Cal.Atty.Gen.317(1981). 29 Gov.Code,§6254,subd.(a).See"Drafts,"p.20. THE PEOPLES BUSINESS■ Chapter 6: Records Management 279 53 54 280FHE PEOPLE'S BUSINESS■ Chapter 6: Records Management APPENDIX : FREQUENTLY REQUESTED INFORMATION AND RECORDS THE PEOPLE'S BUSINESS: A Guide to the California Public Records Act OF LEAGUE CITIES 281 56 282 THE PEOPLE ' S BUSINESS : A Guide to the California Public Records Act LEAGUE OF CALIFORNIA CITIES Frequently Requested information and Records This table is intended as a general guide on the applicable law and is not intended to provide legal advice.The facts and circumstances of each request should be carefully considered in light of the applicable law.A local agency's legal counsel should always be consulted when legal issues arise. Information/RecordS Requested Must the information/Record Applicable Generally Be Disclosed? Agenda materials distributed to Yes Gov.Code,§54957.5.For additional information,see p.50 a legislative body relating to an of"The People's Business: A Guide to the California Public open session item Records Act,"hereafter referred to as"the Guide". Calendars of Elected officials Probably not,but note that Times Mirror Co.v.Superior Court(1991)53 Cal.3d. 1325 there is no published appellate and Rogers v.Superior Court(1993)19 Cal.App.4th 469 for court decision on this issue a discussion of the deliberative process privilege.See also, post-Prop.59.' 87 Ops.Cal.Atty.Gen.181 (2004)"88 Ops.Cal.AttyGen.16 (2005);89 Ops.Cal.Atty.Gen.204(2006),as to scope of Prop. 59.For additional information,see p.35 of the Guide. Contact information—Names, No Gov.Code,§6254(f)(2).For additional information,see p.29 addresses,and phone numbers of of the Guide. crime victims or witnesses Citizen complaints against peace Yes Pen.Code,§832.7(c).For additional information,see p.30 officers—annual summary report of the Guide. to AG Citizen complaint information— No City of San Jose v.San Jose Mercury News(1999)74 Cal. names,addresses,and telephone AppAth 1008.For additional information,see p.30 of the numbers Guide. Claims for damages Yes Poway Unified School District v.Superior Court(1998)62 Cal.App.4th 1496. Election petitions No,except to proponents if petition Gov.Code,§6253.5;Elec.Code,§§17200,17400,and (initiative,referendum and found to be insufficient. 18650;Evid.Code,§1050.For additional information, recall petitions) see p.21 of the Guide. Emails between government staff It depends. Generally,emails are deleted by administrative policy and are not retained in the ordinary course of business.(See§ 6254(x)).See also Times Mirror v.Superior Court(1991)53 Cal.3d 1325;Rogers v.Superior Court(1993)19 Cal.App.4th 469 for a discussion of the deliberative process privilege. For additional information,see p.35 of the Guide. 1 The analysis with respect to elected officials may not necessarily apply to executive officers such as City Managers or Chief Administrative Officers, and there is no case law directly addressing this issue. 57 283 Frequently Requested Information and Records, Continued information/Recordinformation/Records Requested Must the Applicable Authority Generally Be Disclosed? Employment Agreements/ Yes Gov.Code,§§6254.8 and 53262(b).For additional Contracts information,see p.30 of the Guide. Form 700(Statement of Yes2 Gov.Code,§81008 Economic Interests)and Campaign Statements Grading documents including Yes 89 Ops.Cal.Atty.Gen.39(2006);but see Gov.Code,§ geology reports,compaction 6254(e).For additional information,see p. 19 of the Guide. reports,and soils reports submitted in conjunction with an application for a building permit Juvenile Court Records No T.N.G. v Superior Court(1971)4 Cal.3d.767;Welt&Inst. Code,§§827 and 828.For additional information,see p.24 of the Guide. Legal billing statements Generally,yes,as to amount billed. Gov.Code,§6254(k);Evid.Code,§950,et seq.;Smith v. No,as to any billing detail which Laguna Sun Villas Community Assoc. (2000)79 Cal.App.4th reflects an attorney's impressions, 639,United States v Amlani, 169 F3d 1189(9th Cir.1999); conclusions,opinions or legal Clarke v.American Commerce National Bank,974 F2d. research or strategy. 127(9th Cir.1992);but see Gov.Code,§6254(b)as to the disclosure of billing amounts reflecting legal strategy in pending litigation.For additional information,see p. 19,28 of the Guide. Library Circulation Records No Gov.Code,§6254(j)and 6267.For additional information, see p.25 of the Guide. Medical Records No Gov.Code,§6254(c).For additional information,see p.25 of the Guide. Mental Health detentions No Welf.&Inst.Code,§5328.For additional information, (5150 reports) see p.24 of the Guide. Minutes of Closed Sessions No Gov.Code,§54957.2(a).For additional information, see p. 19,34,35 of the Guide. Notices/Orders to property Yes Gov.Code,§6254.7(c).For additional information,see p.20 owner re: housing/building code, of the Guide. violations Official Building Plans Inspection only.Copies provided Health&Sat Code,§ 19851;see also 17 U.S.C.§§101 and (architectural drawings and plans) under certain circumstances. 102.For additional information,see p. 19 of the Guide. Personal Financial Records No Gov.Code,§7470,7471,7473;see also Gov.Code,§ 6254(n).For additional information,see p.25 of the Guide. 2 It should be noted that these statements must be made available for inspection and copying not later than the second business day following the day on which the request was received. 58 284 Frequently Requested Information and Records, Continued information/Recordsinformation/Record Applicable Authority Generally Be Disclosed? Personnel For additional information,see p.29-31 of the Guide. • Employee inspection of own Yes,with exceptions. Lab.Code,§1198.5.This section applies to charter cities. personnel file See Gov.Code,§31011.For peace officers,see Gov. Code,§3306.5. • Names and salaries(including Yes,absent unique,individual International Federation of Professional and Technical performance bonuses and overtime) circumstances.However,other Engineers,Local 21,AFL-CIO,et al.v.Superior Court of public employees,including peace personal information such as social (2007)42 CalAth 319. officers security numbers,home telephone numbers and home addresses are generally exempt from disclosure per Gov.Code,§6254(c). • Test Questions,scoring keys,and No Gov.Code,§6254(g) other examination data. Police For additional information,see p.22-25 of the Guide. • Citizen complaint policy Yes Pen.Code,§832.5(a)(1) • Criminal history No Pen.Code,§13300 et seq.;Pen.Code,§11105 et seq. • Criminal investigative reports No Gov.Code,§6254(f);Haynie v.Superior Court(2001)26 including booking photos,audio CalAth 1061. recordings,dispatch tapes,911 tapes and in-car video • Crime reports Yes Gov.Code,§§6254(f),6255 • Gang intelligence information No Gov.Code,§6254(f);79 Ops.Cal.Atty Gen.206(1996). • In custody death reports to AG Yes Gov.Code,§12525 • List of concealed weapon permit Yes Gov.Code,§6254(u)(1);CBS,Inc.v.Block(1986)42 holders Cal.3d 646. • Concealed weapon permits and Yes,except for home/business Gov.Code,§6254(u)(1);CBS,Inc.v.Block(1986)42 applications address and medical/psychological Cal.3d 646. history. • Officer's personnel file No This information can only be disclosed through a Pitchess motion.Pen.Code,§§832.7 and 832.8;Evid.Code,§§ 1043-1045. • Peace officer's name,employing Yes,absent unique,individual Commission on Peace Officer Standards and Training agency and employment dates circumstances. v.Superior Court(2007)42 CalAth 278. • Names of officers involved in critical Yes,absent unique,individual Commission on Peace Officer Standards and Training v. incidents circumstances. Superior Court(2007)42 CalAth 278;New York Times v. Superior Court(1997)52 Cal.AppAth 97. • Traffic accident reports Yes,to certain parties. Veh.Code,§ 16005[only disclose to those needing the information,such as insurance companies,and the individuals involved]. 59 285 Frequently Requested Information and Records, Continued information/Records Requested Must the information/Record Applicable Authority Generally Be Disclosed? Public Contracts Bid Proposals,RFP proposals Yes,but only after negotiations are Michaelis v.Superior Court(2006)38 Cal.4th 1065; complete. but see Gov.Code,§6255 and Evid.Code,§1060. For additional information,see p.31-32 of the Guide. • Financial information submitted No Gov.Code,§§6254(a),(h)and(k),6254.15 and 6255; for bids Schnabel v.Superior Court of Orange County(1993)5 Cal.App.4th 704,718.For additional information, see p.31-32 of the Guide. • Trade secrets No Evid.Code,§1060;Civ.Code,§3426,et seq.For additional information,see p.33 of the Guide. Purchase price of real property Yes,after the agency acquires the Gov.Code,§7275 property. Real Estate For additional information,see p.32 of the Guide. • Property information(such as selling Yes 88 Ops.Cal.Atty.Gen.153(2005) assessed value,square footage, number of rooms) • Appraisals and offers to purchase Yes,but only after conclusion of the Gov.Code,§6254(h);Note that Gov.Code,§7267.2 property acquisition. requires release of more information to the property owner while the acquisition is pending. Report of arrest not resulting in No,except as to peace officers or Lab.Code,§432.7 conviction peace officer applicants. Settlement Agreements Yes Register Division of Freedom Newspapers v.County of Orange(1984)158 Cal.App.3d 893.For additional information,see p.28 of the Guide. Software, including mapping No Gov.Code,§6254.9;88 Ops.Cal.Atty.Gen.153(2005). systems For additional information,see p.51 of the Guide. Taxpayer information received No Gov.Code,§6254(1).For additional information,see in connection with collection of p.33 of the Guide. local taxes Telephone Records of Elected Yes,as to expense totals.No, See Rogers v.Superior Court(1993)19 Cal.AppAth 469. Officials as to phone numbers called. For additional information,see p.35 of the Guide. Utility usage data No,with certain exceptions. Gov.Code,§6254.16.For additional information,see p.33 of the Guide. Voter information No Gov.Code,§6254.4.For additional information,see p.21 of the Guide. 60 286 OF AIGUE CITIES THE PEOPLE'S BUSINESS: A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT 1400 K Street,Sacramento,CA 95814 Phone: (916)658-8200 1 Fax: (916)658-8240 www.cacities.org Price: $40.00 SKU 1800 Pr 1i I�P f ' OPEN & PUBLIC IV: A Guide to the Ralph M. Brown Act -2ND EDITION, REVISED JULY 20I0- OFEAGUE CITIES ACKNOWLEDGEMENTS The League thanks the following individuals for their work on this update to the original publication: EDITORIAL BOARD EDITORIAL BOARD FOR OPEN &PUBLIC IV FOR OPEN &PUBLIC IV, Michael Jenkins,Chair 2ND EDITION Jenkins&Hogin LLP Michael Jenkins,Chair City Attorney Jenkins&Hogin LLP Cities of Diamond Bar,Hermosa Beach, City Attorney Rolling Hills and West Hollywood Cities of Diamond Bar,Hermosa Beach, Rolling Hills and west Hollywood Sonia Rubio Carvalho Best,Best&Krieger Lori Barker City Attorney City Attorney Cities of Azusa,Claremont,and Yorba Linda City of Chico Debra E. Corbett Theresa E. Fuentes City Attorney Assistant City Attorney City of Tracy City of Pasadena Theresa E. Fuentes Thomas D.Jex Deputy City Attorney Burke,Williams&Sorensen City of Pasadena Assistant City Attorney City of Hemet Daniel S. Hentschke General Counsel Martin Koczanowicz San Diego County Water Authority Cota Cole&Associates City Attorney Gerald L. Hobrecht City of Grover Beach City Attorney City of Vacaville Yana Welinder Colantuono&Levin,PC Hilda Cantu Montoy Assistant City Attorney Montoy Law Office City of Auburn City Attorney City of San Joaquin Paul Zarefsky Deputy City Attorney Eileen M.Teichert City and County of San Francisco City Attorney City of Sacramento League staff.- Patrick Whitnell,General Counsel Kourtney Burdick,Deputy General Counsel Janet Reynolds,Legal Secretary/Office Manager The editors thank Manuela Albuquerque,Retired City Attorney,Berkeley;Steven L.Dorsey,Richards, Watson&Gershon;Whitnie Henderson,Association of California water Agencies;Craig Labadie,City Attorney,Concord;Tom Newton,California Newspaper Publishers Association;Ted Prim,Attorney General's Office;Cindra J.Smith,Community College League of California;and JoAnne Speers,Institute for Local Government,for their invaluable assistance. 289 THE RIGHT OF ACCESS BROAD COVERAGE NARROW EXEMPTIONS PUBLIC PARTICIPATION IN MEETINGS CONTROVERSY BEYOND THE LAW-GOOD BUSINESS PRACTICES ACHIEVING BALANCE HISTORICAL NOTE TABLE OF CONTENTS FOREWORD CFIAPTER1: IT IS THE PEOPLE'S BUSINESS Theright of access ..............................................................................................................................2 Broadcoverage....................................................................................................................................3 Narrowexemptions..............................................................................................................................3 Public participation in meetings..........................................................................................................4 Controversy..........................................................................................................................................4 Beyond the law—good business practices.........................................................................................4 Achievingbalance................................................................................................................................5 Historicalnote.......................................................................................................................................5 CHAPTER2: LEGISLATIVE BODIES What is a"legislative body"of a local agency?...................................................................................8 What is not a"legislative body"for purposes of the Brown Act?......................................................10 CHAPTER 3: MEETINGS BrownAct meetings.............................................................................................................................14 Six exceptions to the meeting definition.............................................................................................14 Collectivebriefings...............................................................................................................................17 Retreats or workshops of legislative bodies.......................................................................................17 Serialmeetings.....................................................................................................................................17 Informalgatherings..............................................................................................................................19 Technological conferencing.................................................................................................................19 Locationof meetings............................................................................................................................20 CHAPTER 4:AGENDAS, NOTICES,AND PUBLIC PARTICIPATION Agendas for regular meetings.............................................................................................................24 Mailed agenda upon written request..................................................................................................25 Notice requirements for special meetings..........................................................................................25 Notices and agendas for adjourned and continued meetings and hearings....................................25 Notice requirements for emergency meetings...................................................................................26 Educational agency meetings .............................................................................................................26 Notice requirements for tax or assessment meetings and hearings.................................................26 Non-agenda items................................................................................................................................26 Respondingto the public.....................................................................................................................27 The right to attend and observe meetings..........................................................................................28 Records and recordings.......................................................................................................................29 The public's place on the agenda........................................................................................................30 CHAPTER 5: CLOSED SESSIONS Agendasand reports............................................................................................................................35 Litigation................................................................................................................................................36 Real estate negotiations.......................................................................................................................37 Publicemployment...............................................................................................................................38 Labornegotiations................................................................................................................................40 Labor negotiations—school and community college districts...........................................................40 Other Education Code exceptions.......................................................................................................41 Grandjury testimony ...........................................................................................................................41 License applicants with criminal records............................................................................................41 Publicsecurity......................................................................................................................................41 Multijurisdictional drug law enforcement agency..............................................................................41 Hospital peer review and trade secrets..............................................................................................42 The confidentiality of closed session discussions..............................................................................42 CHAPTER 6: REMEDIES Invalidation............................................................................................................................................46 Civil action to prevent future violations...............................................................................................47 Costs and attorney's fees....................................................................................................................47 Criminalcomplaints..............................................................................................................................47 Voluntaryresolution.............................................................................................................................48 291 • i - I i PEN & PUBLIC IV A GUIDE TO THE RALPH M. BROWN ACT low I� CH. 1: IT IS THE PEOPLE'S BUSINESS CH. 2: LEGISLATIVE BODIES CH. 3: MEETINGS CH. 4:AGENDAS, NOTICES,AND PUBLIC PARTICIPATION CH. 5: CLOSED SESSIONS CH. 6: REMEDIES OPEN & PUBLIC IV: A GUIDE TO THE RALPH M. BROWN ACT, 2ND EDITION Revised July 2010 L oEAIGUE CITIES Copyright©2000,2007,2010 League of California Cities All rights reserved.This publication,or parts thereof,may not be reproduced in any form without the permission of the League of California Cities. 293 FOREWORD The goal of this publication is to explain the requirements of the Ralph M.Brown Act,California's open meeting law,in lay language so that it can be readily understood by local government officials and employees,the public and the news media.We offer practical advice—especially in areas where the Brown Act is unclear or has been the subject of controversy—to assist local agencies in complying with the requirements of the law. A number of organizations representing diverse views and constituencies have contributed to this publication in an effort to make it reflect as broad a consensus as possible among those who daily interpret and implement the Brown Act.The League thanks the following organizations for their contributions: Association of California Healthcare Districts Association of California Water Agencies California Association of Sanitation Agencies(CASA) California Attorney General—Department of Justice City Clerks Association of California California Municipal Utilities Association California Redevelopment Association California School Boards Association California Special Districts Association California State Association of Counties Community College League of California California First Amendment Project California Newspaper Publishers Association Common Cause League of Women Voters of California This publication is current as of June 2010.Updates to the publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment. This publication is not intended to provide legal advice.A public agency's legal counsel is responsible for advising its governing body and staff and should always be consulted when legal issues arise. To improve the readability of this publication: • Most text will look like this; • Practice tips are in the margins; • Hypothetical examples are printed in blue;and • Frequently asked questions,along with our answers,are in shaded text. Additional copies of this publication may be purchased by visiting CityBooks online at www.cacities.org/store. 294 CHAPT E R 1 : IT IS THE PEOPLE'S BUSINESS h e ■THE RIGHT OF ACCESS Two key parts of the Brown Act have not changed since its adoption in 1953.one is the Brown Act's initial section,declaring the Legislature's intent: "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 that their deliberations be conducted openly." Practice Tip: "The people of this State do not yield their sovereignty to the agencies which serve them.The The key to the Brown people,in delegating authority,do not give their public servants the right to decide what is good Act is a single sentence. for the people to know and what is not good for them to know.The people insist on remaining In summary,all meetings shall be open informed so that they may retain control over the instruments they have created. and public except The people reconfirmed that intent 50 years later in the November 2004 election by adopting Proposition when the Brown Act 59,amending the California Constitution to include a public right of access to government information: authorizes otherwise. "The people have the right of access to information concerning the conduct of the people's business,and,therefore,the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny."2 The Brown Act's other unchanged provision is a single sentence: ';411 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.'3 That one sentence is by far the most important of the entire Brown Act.If the opening is the soul,that sentence is the heart of the Brown Act. 2 295DPEN&PUBLIC IV Chapter 1:It Is the People's Business ■ BROAD COVERAGE The Brown Act covers members of virtually every type of local government body,elected or appointed, decision-making or advisory.Some types of private organizations are covered,as are newly-elected members of a legislative body,even before they take office. Similarly,meetings subject to the Brown Act are not limited to face-to-face gatherings.They also include any communication medium or device through which a majority of a legislative body discusses,deliberates or takes action on an item of business outside of a noticed meeting.They include meetings held from remote locations by teleconference. New communication technologies present new Brown Act challenges.For example,common e-mail practices of forwarding or replying to messages can easily lead to a serial meeting prohibited by the Brown Act,as can participation by members of a legislative body in an Internet chatroom or blog dialogue. Communicating during meetings using electronic technology(such as laptop computers,personal digital assistants,or cellular telephones)may create the perception that private communications are Practice Tip: influencing the outcome of decisions;some state legislatures have banned the practice.On the other Think of the government's hand,widespread cablecasting and web streaming of meetings has greatly expanded public access to the house as being made of decision-making process. glass.The curtains may be drawn only to further the ■ NARROW EXEMPTIONS public's interest. The express purpose of the Brown Act is to assure that local government agencies conduct the public's business openly and publicly.Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.' Generally,public officials should think of themselves as living in glass houses,and that they may only draw the curtains when it is in the public interest to preserve confidentiality.Closed sessions may be held only as specifically authorized by the provisions of the Brown Act itself. The Brown Act,however,is limited to meetings among a majority of the members of multi-member government bodies when the subject relates to local agency business.It does not apply to independent conduct of individual decision-makers. It does not apply to social,ceremonial,educational,and other gatherings as long as a majority of the members of a body don't discuss issues related to their local agency's business.Meetings of temporary advisory committees—as distinguished from standing committees—made up solely of less than a quorum of a legislative body are not subject to the Brown Act. The law does not apply to local agency staff or employees,but they may facilitate a violation by acting as a conduit for discussion,deliberation, - - or action by the legislative body.' The law,on the one hand,recognizes the need of individual local officials to meet and discuss matters with their constituents.On the other hand,it requires—with certain specific exceptions to protect the community and preserve individual rights—that the decision- making process be public.Sometimes the boundary between the two is not easy to draw. OPEN &PUBLIC IV 41 Chapter 1:It Is the People's Business 296 3 ■ PUBLIC PARTICIPATION IN MEETINGS In addition to requiring the public's business to be conducted in open,noticed meetings,the Brown Act also extends to the public the right to participate in meetings.Individuals,lobbyists,and members of the news media possess the right to attend,record,broadcast,and participate in public meetings.The public's participation is further enhanced by the Brown Act's requirement that a meaningful agenda be posted in advance of meetings,by limiting discussion and action to matters listed on the agenda,and by requiring that meeting materials be made available. Legislative bodies may,however,adopt reasonable regulations on public testimony and the conduct of public meetings,including measures to address disruptive conduct and irrelevant speech. i E' ■ CONTROVERSY Not surprisingly,the Brown Act has been a source of confusion and controversy since its inception.News media and government watchdogs often argue the law is toothless, pointing out that there has never been a single criminal conviction for a violation.They often suspect that closed sessions are being misused. r Public officials complain that the Brown Act makes it difficult to respond to constituents and requires public discussions of items better discussed privately—such as why a particular person should not be appointed to a board or commission.Many elected officials find the Brown Act inconsistent with their private business experiences.Closed meetings can be more efficient;they eliminate grandstanding and promote candor.The techniques that serve well in business—the working lunch,the sharing of information through a series of phone calls or emails,the backroom conversations and compromises—are often not possible under the Brown Act. As a matter of public policy,California(along with many other states)has concluded that there is more to be gained than lost by conducting public business in the open.Government behind closed doors may well be efficient and business-like,but it may be perceived as unresponsive and untrustworthy. ■ BEYOND THE LAW—GOOD BUSINESS PRACTICES Practice Tip: Violations of the Brown Act can lead to invalidation of an agency's action,payment of a challenger's Transparency is a attorney's fees,public embarrassment,even criminal prosecution.But the Brown Act is a floor,not a ceiling foundational value for for conduct of public officials.This guide is focused not only on the Brown Act as a minimum standard,but ethical government also on meeting practices or activities that,legal or not,are likely to create controversy.Problems may crop practices.The Brown up,for example,when agenda descriptions are too brief or vague,when an informal get-together takes Act is a floor,not a on the appearance of a meeting,when an agency conducts too much of its business in closed session or ceiling,for conduct. discusses matters in closed session that are beyond the authorized scope,or when controversial issues arise that are not on the agenda. The Brown Act allows a legislative body to adopt practices and requirements for greater access to meetings for itself and its subordinate committees and bodies that are more stringent than the law itself requires.6 Rather than simply restate the basic requirements of the Brown Act,local open meeting policies should strive to anticipate and prevent problems in areas where the Brown Act doesn't provide full guidance.As with the adoption of any other significant policy,public comment should be solicited. 4 297OPEN&PUBLIC IV Chapter 1:It Is the People's Business A local policy could build on these basic Brown Act goals: • A legislative body's need to get its business done smoothly; • The public's right to participate meaningfully in meetings,and to review documents used in decision- making at a relevant point in time; • A local agency's right to confidentially address certain negotiations,personnel matters,claims and practice Tip: litigation;and The Brown Act should • The right of the press to fully understand and communicate public agency decision-making. be viewed as a tool to facilitate the business An explicit and comprehensive public meeting and information policy,especially if reviewed periodically, of local government can be an important element in maintaining or improving public relations.Such a policy exceeds the agencies.Local policies absolute requirements of the law—but if the law were enough this guide would be unnecessary.A narrow that go beyond the legalistic approach will not avoid or resolve potential controversies.An agency should consider going minimum requirements beyond the law,and look at its unique circumstances and determine if there is a better way to prevent of law may help instill potential problems and promote public trust.At the very least,local agencies need to think about how their public confidence and agendas are structured in order to make Brown Act compliance easier.They need to plan carefully to make avoid problems. sure public participation fits smoothly into the process. ■ACHIEVING BALANCE The Brown Act should be neither an excuse for hiding the ball nor a mechanism for hindering efficient and orderly meetings.The Brown Act represents a balance among the interests of constituencies whose interests do not always coincide.It calls for openness in local government,yet should allow government to function responsively and productively. There must be both adequate notice of what discussion and action is to occur during a meeting as well as a normal degree of spontaneity in the dialogue between elected officials and their constituents. The ability of an elected official to confer with constituents or colleagues must be balanced against the important public policy prohibiting decision-making outside of public meetings. In the end,implementation of the Brown Act must ensure full participation of the public and preserve the integrity of the decision-making process,yet not stifle government officials and impede the effective and natural operation of government. ■ HISTORICAL NOTE In late 1951,San Francisco Chronicle reporter Mike Harris spent six weeks looking into the way local agencies conducted meetings.State law had long required that business be done in public,but Harris discovered secret meetings or caucuses were common.He wrote a 10-part series on"Your Secret Government"that ran in May and June 1952. out of the series came a decision to push for a new state open meeting law. Harris and Richard(Bud)Carpenter,legal counsel for the League of California Cities,drafted such a bill and Assembly Member Ralph M.Brown agreed to carry it.The Legislature passed the bill and Gov.Earl Warren signed it into law in 1953. The Ralph M.Brown Act,known as the"Brown Act",has evolved under a series of amendments and court decisions,and has been the model for other open meeting laws—such as the Bagley-Keene Act,enacted in 1967 to cover state agencies. OPEN &PUBLIC IV 41 Chapter 1:It Is the People's Business 298 5 Assembly Member Brown is best known for the open meeting law that carries his name.He was elected to the Legislature in 1942 and served 19 years,including the last three years as Speaker.He then became an appellate court justice. Endnotes 1 California Government Code section 54950 2 California Constitution,Art.1,section 3(b)(1) 3 California Government Code section 54953(a) 4 This principle of broad construction when it furthers public access and narrow construction if a provision limits public access is also stated in the amendment to the state's Constitution adopted by Proposition 59 in 2004. California Constitution,Art.1,section 3(b)(2) 5 California Government Code section 54952.2(c);Wolfe v.City of Fremont(2006) 144 Cal.AppAth 533 6 California Government Code section 54953.7 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo. ca.gov. 6 299DPEN&PUBLIC IV Chapter 1:It Is the People's Business CHAPTEf� 2 : LEGISLATIVE BODIES ro .— WHAT IS A"LEGISLATIVE BODY" OF A LOCAL AGENCY? WHAT IS NOT A"LEGISLATIVE BODY" FOR PURPOSES OF THE BROWN ACT? j i CHAPT LEGISLATIVE BODI I The Brown Act applies to the legislative bodies of local agencies.It defines"legislative body"broadly to include just about every type of decision-making body of a local agency' ■WHAT IS A"LEGISLATIVE BODY" OF A LOCAL AGENCY? A"legislative body"includes: • The"governing body of a local agency or any other local body created by state or federal statute."2 This includes city councils,boards of supervisors,school boards and boards of trustees of special districts.A"local agency"is any city,county,school district,municipal corporation,redevelopment agency,district,political subdivision,or other public agency.3 A housing authority is a local agency under the Brown Act even though it is created by and is an agent of the state.4 The California Attorney General has opined that air pollution control districts and regional open space districts are also covered.'Entities Practice Tip: created pursuant to joint powers agreements are local agencies within the meaning of the Brown Act.6 The prudent presumption is that an • Newly-elected members of a legislative body who have not yet assumed office must conform to advisory committee or the requirements of the Brown Act as if already in office.'Thus,meetings between incumbents and task force is subject to newly-elected members of a legislative body,such as a meeting between two outgoing members and a the Brown Act.Even member-elect of a five-member body,could violate the Brown Act. if one clearly is not,it may want to comply with the Brown Act. Q. On the morning following the election to a five-member legislative body of a local agency, Public meetings may two successful candidates,neither an incumbent,meet with an incumbent member of the reduce the possibility of legislative body for a celebratory breakfast.Does this violate the Brown Act? misunderstandings and A. It might,and absolutely would if the conversation turns to agency business.Even though the controversy. candidates-elect have not officially been sworn in,the Brown Act applies.If purely a social event, there is no violation but it would be preferable if others were invited to attend to avoid the appearance of impropriety. 8 301 OPEN &PUBLIC IV 0 Chapter 2:Legislative Bodies • Appointed bodies—whether permanent or temporary,decision-making or advisory—including planning commissions,civil service commissions and other subsidiary committees,boards,and bodies. Volunteer groups,executive search committees,task forces,and"blue ribbon committees"created by formal action of the governing body are legislative bodies.When the members of two or more legislative bodies are appointed to serve on an entirely separate advisory group,the resulting body may be subject to the Brown Act.In one reported case,a city council created a committee of two members of the Practice Tip: city council and two members of the city planning commission to review qualifications of prospective It can be difficult to planning commissioners and make recommendations to the council.The court held that their joint determine whether mission made them a legislative body subject to the Brown Act.Had the two committees remained a subcommittee of separate and met only to exchange information,they would have been exempt from the Brown Act.8 a body falls into the category of a standing • Standing committees of a legislative body,irrespective of their composition,which have either:(1)a committee or an exempt continuing subject matter jurisdiction,or(2)a meeting schedule fixed by charter,ordinance,resolution, temporary committee. or formal action of a legislative body.'Even if comprised of less than a quorum of the governing body, suppose a committee is a standing committee is subject to the Brown Act.For example,if a governing body creates long-term created to explore the renewal of a franchise committees on budget and finance or on public safety,those are standing committees subject to the or a topic of similarly Brown Act.Further,function over form controls.For example,a statement by the legislative body that limited scope and "the advisory committee shall not exercise continuing subject matter jurisdiction"or the fact that duration.Is it an exempt the committee does not have a fixed meeting schedule is not dete rmi native.10"Formal action"by a temporary committee legislative body includes authorization given to the agency's executive officer to appoint an advisory or a non-exempt committee pursuant to agency-adopted policy." standing committee? The answer may depend • The governing body of any private organization either:(1)created by the legislative body in order to on factors such as how exercise authority that may lawfully be delegated by such body to a private corporation,limited liability meeting schedules are company or other entity or(2)that receives agency funding and whose governing board includes a determined,the scope member of the legislative body of the local agency appointed by the legislative body as a full voting of the committee's member of the private entity's governing board."These include some nonprofit corporations created charge,or whetherthe committee exists by local agencies.13 If a local agency contracts with a private firm for a service(for example,payroll, long enough to have janitorial,or food services),the private firm is not covered by the Brown Act.14 When a member of a "continuing jurisdiction." legislative body sits on a board of a private organization as a private person and is not appointed by the legislative body,the board will not be subject to the Brown Act.Similarly,when the legislative body appoints someone other than one of its own members to such boards,the Brown Act does not apply. Nor does it apply when a private organization merely receives agency funding." Q: The local chamber of commerce is funded in part by the city.The mayor sits on the chamber's board of directors.Is the chamber board a legislative body subject to the Brown Act? A: Maybe.If the chamber's governing documents require the mayor to be on the board and the city council appoints the mayor to that position,the board is a legislative body.If,however, the chamber board independently appoints the mayor to its board,or the mayor attends chamber board meetings in a purely advisory capacity,it is not. Q: If a community college district board creates an auxiliary organization to operate a campus bookstore or cafeteria, is the board of the organization a legislative body? A: Yes.But,if the district instead contracts with a private firm to operate the bookstore or cafeteria, the Brown Act would not apply to the private firm. OPEN &PUBLIC N 0 Chapter 2:Legislative Bodies 302 9 • Certain kinds of hospital operators.A lessee of a hospital(or portion of a hospital)first leased under Health and Safety Code subsection 32121(p)after Jan.1,1994,which exercises"material authority" delegated to it by a local agency,whether or not such lessee is organized and operated by the agency or by a delegated authority.16 ■WHAT IS NOT A"LEGISLATIVE BODY" FOR PURPOSES OF THE BROWN ACT? • A temporary advisory committee composed solely of less than a quorum of the legislative body that serves a limited or single purpose,that is not perpetual,and that will be dissolved once its specific task is completed is not subject to the Brown Act.17 Temporary committees are sometimes called ad hoc committees,a term not used in the Brown Act.Examples include an advisory committee composed of less than a quorum created to interview candidates for a vacant position or to meet with representatives of other entities to exchange information on a matter of concern to the agency,such as traffic congestion.18 • Groups advisory to a single decision-maker or appointed by staff are not covered.The Brown Act applies only to committees created by formal action of the legislative body and not to committees created by others.A committee advising a superintendent of schools would not be covered by the Brown Act. However,the same committee,if created by formal action of the school board,would be covered." Q. A member of the legislative body of a local agency informally establishes an advisory committee of five residents to advise her on issues as they arise. Does the Brown Act apply to this committee? A. No,because the committee has not been established by formal action of the legislative body. Q. During a meeting of the city council,the council directs the city manager to form an advisory committee of residents to develop recommendations for a new ordinance.The city manager forms the committee and appoints its members;the committee is instructed to direct its recommendations to the city manager.Does the Brown Act apply to this committee? A. Possibly,because the direction from the city council might be regarded as a formal action of the body notwithstanding that the city manager controls the committee. • Individual decision makers who are not elected or appointed members of a legislative body are not covered by the Brown Act.For example,a disciplinary hearing presided over by a department head or a meeting of agency department heads are not subject to the Brown Act since such assemblies are not those of a legislative body." • County central committees of political parties are also not Brown Act bodies.21 10 303 OPEN &PUBLIC IV 0 Chapter 2:Legislative Bodies Endnotes 1 Taxpayers for Livable Communities v.City of Malibu(2005) 126 Cal.App.4th 1123 2 California Government Code section 54952(a) 3 California Government Code section 54951.But see:Education Code section 35147,which exempts certain school councils and school site advisory committees from the Brown Act and imposes upon them a separate set of rules. 4 Torres a Board of Commissioners(1979)89 Cal.App.3d 545 5 71 Ops.Cal.Atty.Gen.96(1988);73 Ops.Cal.Atty.Gen.1(1990) 6 McKee v Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force(2005) 134 Cal.AppAth 354 7 California Government Code section 54952.1 8 Joiner v.City of Sebastopol(1981) 125 Cal.App.3d 799 9 California Government Code section 54952(b) 10 79 Ops.Ca1.Atty.Gen.69(1996) 11 Frazer v.Dixon Unified School District(1993)18 Cal.AppAth 781 12 California Government Code section 54952(c)(1)(B).The same rule applies to a full voting member appointed prior to February 9,1996 who,after that date,is made a non-voting board member by the legislative body. California Government Code section 54952(c)(2) 13 California Government Code section 54952(c)(1)(A);International Longshoremen's and Warehousemen's Union v.Los Angeles Export Terminal(1999)69 Cal.AppAth 287;Epstein v.Hollywood Entertainment Dist.77 Business Improvement District(2001)87 Cal.AppAth 862;see also:81 Ops.Cal.Atty.Gen.281(1998);85 Ops.Cal.Atty.Gen.55 14 International Longshoremen's and Warehousemen's Union v.Los Angeles Export Terminal(1999)69 Cal.AppAth 287, 300 fn.5 15 "The Brown Act,"California Attorney General(2003),p.7 16 California Government Code section 54952(d) 17 California Government Code section 54952(b);see also:Freedom Newspapers,Inc.v.Orange County Employees Retirement System Board of Directors(1993)6 CalAth 821 18 Taxpayers for Livable Communities v.City of Malibu(2005) 126 Cal.AppAth 1123 19 56 Ops.Cal.Atty.Gen.14(1973) 20 Wilson a San Francisco Municipal Railway(1973)29 Cal.App.3d 870 21 59 Ops.Cal.Atty.Gen.162(1976) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. OPEN &PUBLIC N 0 Chapter 2:Legislative Bodies 304 11 12 305 OPEN &PUBLIC IV ■ Chapter 2:Legislative Bodies ,i CHAPTER 3 : MEETINGS BROWN ACT MEETINGS SIX EXCEPTIONS TO THE MEETING DEFINITION COLLECTIVE BRIEFINGS RETREATS OR WORKSHOPS OF LEGISLATIVE BODIES SERIAL MEETINGS INFORMAL GATHERINGS TECHNOLOGICAL CONFERENCING LOCATION OF MEETINGS r - CHAPT MEETINGS The Brown Act only applies to meetings of local legislative bodies.The Brown Act defines a meeting as: "... any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss,or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains."' Under the Brown Act,the term"meeting"is not limited to gatherings at which action is taken but includes deliberative gatherings as well. ■ BROWN ACT MEETINGS Brown Act gatherings include a legislative body's regular meetings,special meetings,emergency meetings and adjourned meetings. • "Regular meetings"are meetings occurring at the dates,times,and location set by resolution,ordinance, or other formal action by the legislative body and are subject to 72-hour posting requirements.z • "Special meetings"are meetings called by the presiding officer or majority of the legislative body to discuss only discrete items on the agenda under the Brown Act's notice requirements for special meetings.3 • "Emergency meetings"are a limited class of meetings held when prompt action is needed due to actual or threatened disruption of public facilities and are held on little notice.4 • 'Adjourned meetings"are regular or special meetings that have been adjourned or re-adjourned to a time and place specified in the order of adjournment,with no agenda required for regular meetings adjourned for less than five calendar days as long as no additional business is transacted.5 ■ SIX EXCEPTIONS TO THE MEETING DEFINITION The Brown Act creates six exceptions to the meeting definition:6 Individual Contacts The first exception involves individual contacts between a member of the legislative body and any other person.The Brown Act does not limit a legislative body member acting on his or her own.This exception recognizes the right to confer with constituents,advocates,consultants,news reporters,local agency staff or a colleague. 14 307 OPEN &PUBLIC IV 0 Chapter 3:Meetings Individual contacts,however,cannot be used to do in stages what would be prohibited in one step.For example,a series of individual contacts that leads to discussion,deliberation or action among a majority of the members of a legislative body is prohibited.Such serial meetings are discussed below. Conferences The second exception allows a legislative body majority to attend a conference _ or similar gathering open to the public that addresses issues of general interest to the public or to public agencies of the type represented by the legislative body. Among other things,this exception permits legislative body members to attend annual association conferences of city,county,school,community college,and other local agency officials,so long as those meetings are open to the public. However,a majority of members cannot discuss among themselves,other than t- as part of the scheduled program,business of a specific nature that is within their local agency's subject matter jurisdiction. Community Meetings The third exception allows a legislative body majority to attend an open and publicized meeting held by another organization to address a topic of local community concern.Again,a majority cannot discuss among themselves,other than as part of the scheduled program,business of a specific nature that is within their local agency's subject matter jurisdiction.Under this exception,a legislative body majority may attend a local service club meeting or a local candidates'night if the meetings are open to the public. "I see we have four distinguished members of the city council at our meeting tonight," said the chair of the Environmental Action Coalition. "I wonder if they have anything to say about the controversy over enacting a slow growth ordinance?" The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses,deliberates,or takes action on an item during the meeting of the other organization.There is a fine line between what is permitted and what is not,hence, members should exercise caution when participating in these types of events. Q. The local chamber of commerce sponsors an open and public candidate debate during an election campaign.Three of the five agency members are up for re-election and all three participate.All of the candidates are asked their views of a controversial project scheduled for a meeting to occur just after the election.May the three incumbents answer the question? A. Yes,because the Brown Act does not constrain the incumbents from expressing their views regarding important matters facing the local agency as part of the political process the same as any other candidates. OPEN &PUBLIC IV 0 Chapter 3:Meetings 308 15 Other Legislative Bodies The fourth exception allows a majority of a legislative body to attend an open and publicized meeting of:(1)another body of the local agency and(2)a legislative body of another local agency'Again,the majority cannot discuss among themselves,other than as part of the scheduled meeting,business of a specific nature that is within their local agency's subject matter jurisdiction.This exception allows,for example,a city council or a majority of a board of supervisors to attend a controversial meeting of the planning commission. Nothing in the Brown Act prevents the majority of a legislative body from sitting together at such a meeting. They may choose not to,however,to preclude any possibility of improperly discussing local agency business and to avoid the appearance of a Brown Act violation.Further,aside from the Brown Act,there may be other reasons,such as due process considerations,why the members should avoid giving public testimony or trying to influence the outcome of proceedings before a subordinate body. Q. The entire legislative body intends to testify against a bill before the Senate Local Government Committee in Sacramento.Must this activity be noticed as a meeting of the body? A. No,because the members are attending and participating in an open meeting of another governmental body which the public may attend. Q. The members then proceed upstairs to the office of their local Assembly member to discuss issues of local interest. Must this session be noticed as a meeting and be open to the public? A. Yes,because the entire body may not meet behind closed doors except for proper closed sessions.The same answer applies to a private lunch or dinner with the Assembly member. Standing Committees The fifth exception authorizes the attendance of a majority at an open and noticed meeting of a standing committee of the legislative body,provided that the legislative body members who are not members of the standing committee attend only as observers(meaning that they cannot speak or otherwise participate in the meeting).' Q. The legislative body establishes a standing committee of two of its five members,which meets monthly.A third member of the legislative body wants to attend these meetings and participate. May she? A. She may attend,but only as an observer;she may not participate. Social or Ceremonial Events The sixth and final exception permits a majority of a legislative body to attend a purely social or ceremonial occasion.Once again,a majority cannot discuss business among themselves of a specific nature that is within the subject matter jurisdiction of the local agency. Nothing in the Brown Act prevents a majority of members from attending the same football game,parry, wedding,funeral,reception,or farewell.The test is not whether a majority of a legislative body attends the function,but whether business of a specific nature within the subject matter jurisdiction of the local agency is discussed.So long as no local agency business is discussed,there is no violation of the Brown Act. 16 309 OPEN &PUBLIC IV 0 Chapter 3:Meetings ■ COLLECTIVE BRIEFINGS None of these six exceptions permits a majority of a legislative body to meet together with staff in advance of a meeting for a collective briefing.Any such briefings that involve a majority of the body in the same place and time must be open to the public and satisfy Brown Act meeting notice and agenda requirements. ■ RETREATS OR WORKSHOPS OF LEGISLATIVE BODIES There is consensus among local agency attorneys that gatherings by a majority of legislative body members at the legislative body's retreats,study sessions,or workshops are covered under the Brown Act.This is the case whether the retreat,study session,or workshop focuses on long-range agency planning,discussion of critical local issues,or on team building and group dynamics.9 Q. The legislative body wants to hold a team-building session to improve relations among its members. May such a session be conducted behind closed doors? No, this is not a proper subject for a closed session,and there is no other basis to exclude the public. Council relations are a matter of public business. ■ SERIAL MEETINGS one of the most frequently asked questions about the Brown Act involves serial - meetings.At any one time,such meetings involve only a portion of a legislative , body,but eventually involve a majority. c The problem with serial meetings is the process,which deprives the public of an opportunity for meaningful participation in legislative body decision-making.The Brown Act provides that"[a]majority of the members of a legislative body shall not,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 - - business that is within the subject matter jurisdiction of the legislative body"10 The serial meeting may occur by either a"daisy-chain"or a"hub-and-spoke" Ar, sequence.In the daisy-chain scenario,Member A contacts Member B,Member B contacts Member C,Member C contacts Member D and so on,until a quorum has discussed,deliberated or taken action on an item within the legislative body's subject matter jurisdiction. The hub-and-spoke process involves,for example,a staff member(the hub)communicating with members of a legislative body(the spokes)one-by-one for a decision on a proposed action,"or a chief executive officer briefing a majority of redevelopment agency members prior to a formal meeting and, in the process,information about the members' respective views is revealed.Each of these scenarios violates the Brown Act. A legislative body member has the right,if not the duty,to meet with constituents to address their concerns. That member also has the right to confer with a colleague or appropriate staff about local agency business. An employee or official of a local agency may engage in separate conversations or communications outside of an open and noticed meeting"with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency if that person does not communicate to members of the legislative body the comments or position of any other member or members of the legislative body."12 The Brown Act has been violated however,if several one-on-one meetings or conferences leads to a discussion,deliberation or action by a majority.In one case,a violation occurred when a quorum of a city council directed staff by letter on an eminent domain action.13 OPEN &PUBLIC IV 0 Chapter 3:Meetings 310 17 A unilateral written communication to the legislative body,such as an informational or advisory memorandum,does not violate the Brown Act.14 Such a memo,however,may be a public record." The phone call was from a lobbyist."Say, I need your vote for that project in the south area. How about it?" "Well, I don't know,"replied Board Member Aletto."That's kind of a sticky proposition.You sure you need my vote?" "Well,I've got Bradley and Cohen lined up and another vote leaning.With you I'd be over the top." Moments later,the phone rings again."Hey, I've been hearing some rumbles on that south area project,"said the newspaper reporter."I'm counting noses. How are you voting on it?" Neither the lobbyist nor the reporter has violated the Brown Act,but they are facilitating a violation. The board member may have violated the Brown Act by hearing about the positions of other board members and indeed coaxing the lobbyist to reveal the other board members'positions by asking "You sure you need my vote?"The prudent course is to avoid such leading conversations and to caution lobbyists,staff and news media against revealing such positions of others. The mayor sat down across from the city manager."From now on,"he declared,"I want you to provide individual briefings on upcoming agenda items.Some of this material is very Practice Tip: technical,and the council members don't want to sound like idiots asking about it in public. When briefing Besides that,briefings will speed up the meeting." legislative body members,staff must Agency employees or officials may have separate conversations or communications outside of exercise care not an open and noticed meeting"with members of a legislative body in order to answer questions to disclose other or provide information regarding a matter that is within the subject matter jurisdiction of the local members'views and agency if that person does not communicate to members of the legislative body the comments or positions. position of any other member or members of the legislative body."76 Members should always be vigilant when discussing local agency business with anyone to avoid conversations that could lead to a discussion,deliberation or action taken among the majority of the legislative body. "Thanks for the information,"said Council Member Kim."These zoning changes can be tricky, and now I think I'm better equipped to make the right decision." "Glad to be of assistance,"replied the planning director."Any idea what the other council members think of the problem?" The planning director should not ask,and the member should not answer.A one-on-one meeting that involves communicating the comments or position of other members violates the Brown Act. The agency's Web site includes a chat room where agency employees and officials participate anonymously and often discuss issues of local agency business. Members of the legislative body participate regularly. Does this scenario present a potential for violation of the Brown Act? Yes,because it is a technological device that may serve to allow for a majority of members to discuss,deliberate or take action on matters of agency business. A member of a legislative body contacts two other members on a five-member body relative to scheduling a special meeting. Is this an illegal serial meeting? No,the Brown Act expressly allows this kind of communication,though the members should avoid discussing the merits of what is to be taken up at the meeting. 18 311 OPEN &PUBLIC IV Chapter 3:Meetings Particular care should be exercised when staff briefings of legislative body members occur by email because of the ease of using the"reply to all"button that may inadvertently result in a Brown Act violation. ■ INFORMAL GATHERINGS Often members are tempted to mix business with pleasure—for example,by holding a post meeting gathering.Informal gatherings at which local agency business is discussed or transacted violate the law if they are not conducted in conformance with the Brown Act."A luncheon gathering in a crowded dining room violates the Brown Act if the public does not have an adequate opportunity to hear or participate in the deliberations of members. Thursday at 11:30 a.m.,as they did every week,the board of directors of the Dry Gulch Irrigation District trooped into Pop's Donut Shoppe for an hour of talk and fellowship.They sat at the corner window,fronting on Main and Broadway,to show they had nothing to hide. Whenever he could,the managing editor of the weekly newspaper down the street hurried over to join the board. A gathering like this would not violate the Brown Act if board members scrupulously avoided talking about irrigation district issues.But it is the kind of situation that should be avoided.The public is unlikely to believe the board members could meet regularly without discussing public business.A newspaper executive's presence in no way lessens the potential for a violation of the Brown Act. Q. The agency has won a major victory in the Supreme Court on an issue of importance. The presiding officer decides to hold an impromptu press conference in order to make a statement to the print and broadcast media.All the other members show up in order to make statements of their own and be seen by the media. Is this gathering illegal? A. Technically there is no exception for this sort of gathering,but as long as members do not state their intentions as to future action to be taken and the press conference is open to the public,it seems harmless. ■TECHNOLOGICAL CONFERENCING In an effort to keep up with information age technologies,the Brown Act now specifically allows a legislative body to use any type of teleconferencing to meet,receive public comment and testimony,deliberate,or conduct a closed session."While the Brown Act contains specific requirements for conducting a teleconference,the decision to use teleconferencing is entirely discretionary within the body. "Teleconference"is defined as"a meeting of a legislative body,the members of which are in different locations,connected by electronic means,through either audio or video,or both."19 In addition to the specific requirements relating to teleconferencing,the meeting must comply with all provisions of the Brown Act otherwise applicable.The Brown Act contains the following specific requirements:20 • Teleconferencing maybe used for all purposes during any meeting; • At least a quorum of the legislative body must participate from locations within the local agency's jurisdiction; • Additional teleconference locations maybe made available for the public; OPEN &PUBLIC IV 0 Chapter 3:Meetings 312 19 • Each teleconference location must be specifically identified in the notice and agenda of the meeting, including a full address and room number,as may be applicable; Practice Tip: Legal counsel for the Agendas must be posted at each teleconference location,even if a hotel room or a residence; local agency should Each teleconference location must be accessible to the public and have technology,such as a be consulted before speakerphone,to enable the public to participate; teleconferencing a The agenda must provide the opportunity for the public to address the legislative body directly at each meeting. teleconference location;and • All votes must be by roll call. Q. A member on vacation wants to participate in a meeting of the legislative body and vote by cellular phone from her car while driving from Washington, D.C.to New York.May she? A. She may not participate or vote because she is not in a noticed and posted teleconference location. The use of teleconferencing to conduct a legislative body meeting presents a variety of new issues beyond the scope of this guide to discuss in detail.Therefore,before teleconferencing a meeting,legal counsel for the local agency should be consulted. ■ LOCATION OF MEETINGS The Brown Act generally requires all regular and special meetings of a legislative body,including retreats and workshops,to be held within the boundaries of the territory over which the local agency exercises jurisdiction.21 An open and publicized meeting of a legislative body may be held outside of agency boundaries if the purpose of the meeting is one of the following: • Comply with state or federal law or a court order,or for a judicial conference or administrative proceeding in which the local agency is a parry; • Inspect real or personal property,which cannot be conveniently brought into the local agency's territory, provided the meeting is limited to items relating to that real or personal property; Q. The agency is considering approving a major retail mall.The developer has built other similar malls,and invites the entire legislative body to visit a mall outside the jurisdiction.May the entire body go? A. Yes,the Brown Act permits meetings outside the boundaries of the agency for specified reasons and inspection of property is one such reason.The field trip must be treated as a meeting and the public must be able to attend. • Participate in multiagency meetings or discussions,however,such meetings must be held within the boundaries of one of the participating agencies,and all involved agencies must give proper notice; • Meet in the closest meeting facility if the local agency has no meeting facility within its boundaries or at its principal office if that office is located outside the territory over which the agency has jurisdiction; 20 313 OPEN &PUBLIC IV 0 Chapter 3:Meetings • Meet with elected or appointed federal or California officials when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction; • Meet in or nearby a facility owned by the agency,provided that the topic of the meeting is limited to items directly related to the facility;or • Visit the office of its legal counsel for a closed session on pending litigation,when to do so would reduce legal fees or costs.22 In addition,the governing board of a school or community college district may hold meetings outside of its boundaries to attend a conference on nonadversarial collective bargaining techniques,interview candidates for school district superintendent,or interview a potential employee from another district.23 A school board may also interview members of the public residing in another district if the board is considering employing that district's superintendent. Similarly,meetings of a joint powers authority can occur within the territory of at least one of its member agencies,and a joint powers authority with members throughout the state may meet anywhere in the state.24 Finally,if a fire,flood,earthquake,or other emergency makes the usual meeting place unsafe,the presiding officer can designate another meeting place for the duration of the emergency.News media that have requested notice of meetings must be notified of the designation by the most rapid means of communication available.21 OPEN &PUBLIC IV 0 Chapter 3:Meetings 314 21 Endnotes: 1 California Government Code section 54952.2(a) 2 California Government Code section 54954(a) 3 California Government Code section 54956 4 California Government Code section 54956.5 5 California Government Code section 54955 6 California Government Code section 54952.2(c) 7 California Government Code section 54952.2(c)(4) 8 California Government Code section 54952.2(c)(6) 9 "The Brown Act,"California Attorney General(2003),p.10 10 California Government Code section 54952.2(b)(1) 11 Stockton Newspaper Inc.v.Redevelopment Agency(1985) 171 Cal.App.3d 95 12 California Government Code section 54952.2(b)(2) 13 Common Cause v.Stirling(1983) 147 Cal.App.3d 518 14 Roberts v.City of Palmdale(1993)5 CalAth 363 15 California Government Code section 54957.5(a) 16 California Government Code section 54952.2(b)(2) 17 California Government Code section 54952.2;43 Ops.Cal.Atty.Gen.36(1964) 18 California Government Code section 54953(b)(1) 19 California Government Code section 54953(b)(4) 20 California Government Code section 54953 21 California Government Code section 54954(b) 22 California Government Code section 54954(b)(1)-(7) 23 California Government Code section 54954(c) 24 California Government Code section 54954(d) 25 California Government Code section 54954(e) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. 22 315 OPEN &PUBLIC IV ■ Chapter 3:Meetings CHAPTEI� 4 : AGENDAS, NOTICES, AND PUBLIC PARTICIPATION .-*' 71 its AGENDAS FOR REGULAR MEETINGS MAILED AGENDA UPON WRITTEN REQUEST NOTICE REQUIREMENTS FOR SPECIAL MEETINGS NOTICES AND AGENDAS FOR ADJOURNED AND CONTINUED MEETINGS AND HEARINGS NOTICE REQUIREMENTS FOR EMERGENCY MEETINGS EDUCATIONAL AGENCY MEETINGS NOTICE REQUIREMENTS FOR TAX OR ASSESSMENT MEETINGS AND HEARINGS NON-AGENDA ITEMS RESPONDING TO THE PUBLIC THE RIGHT TO ATTEND MEETINGS RECORDS AND RECORDINGS THE PUBLIC'S PLACE ON THE AGENDA CHAPTOR.- AGENDAS, NOTICES, AND PUBLIC PARTICIPA ON �1. r Effective notice is essential for an open and public meeting.Whether a meeting is open or how the public may participate in that meeting is academic if nobody knows about the meeting. ■AGENDAS FOR REGULAR MEETINGS Every regular meeting of a legislative body of a local agency—including advisory committees,commissions, or boards,as well as standing committees of legislative bodies—must be preceded by a posted agenda that advises the public of the meeting and the matters to be transacted or discussed. The agenda must be posted at least 72 hours before the regular meeting in a location"freely accessible to Practice Tip: members of the public."'The courts have not definitively interpreted the"freely accessible"requirement. Putting together a The California Attorney General has interpreted this provision to require posting in locations accessible meeting agenda requires to the public 24 hours a day during the 72-hour period,but any of the 72 hours may fall on a weekend.z careful thought. Posting may also be made on a touch screen electronic kiosk accessible without charge to the public 24 hours a day during the 72-hour period.3 However,only posting an agenda on an agency's Web site is inadequate since there is no universal access to the internet.The agenda must state the meeting time and place and must contain"a brief general description of each item of business to be transacted or discussed at the meeting,including items to be discussed in closed session." Q. The agenda for a regular meeting contains the following items of business: • "Consideration of a report regarding traffic on Eighth Street" • "Consideration of contract with ABC Consulting" Are these descriptions adequate? A. if the first is,it is barely adequate.A better description would provide the reader with some idea of what the report is about and what is being recommended.The second is not adequate.A better description might read"consideration of a contract with ABC Consulting in the amount of$50,000 for traffic engineering services regarding traffic on Eighth Street." 24 OPEN &Pualgiv ■ Chapter 4:Agendas,Notices,and Public Participation Q The agenda includes an item entitled"City Manager's Report,"during which time the city manager provides a brief report on notable topics of interest,none of which are listed on the agenda. Is this permissible? A. Yes,so long as it does not result in extended discussion or action by the body. A brief general description may not be sufficient for closed session agenda items.The Brown Act provides safe harbor language for the various types of permissible closed sessions.Substantial compliance with the safe harbor language is recommended to protect legislative bodies and elected officials from legal challenges. - - ■ MAILED AGENDA UPON WRITTEN REQUEST The legislative body,or its designee,must mail a copy of the agenda or,if requested,the - entire agenda packet,to any person who has filed a written request for such materials.These copies shall be mailed at the time the agenda is posted.If requested,these materials must be made available in appropriate alternative formats to persons with disabilities. A request for notice is valid for one calendar year and renewal requests must be filed Jan. 1 of each year.The legislative body may establish a fee to recover the cost of providing the service.Failure of the requesting person to receive the agenda does not constitute grounds for invalidation of actions taken at the meeting.5 *' ■ NOTICE REQUIREMENTS FOR SPECIAL MEETINGS There is no express agenda requirement for special meetings,but the notice of the special meeting effectively serves as the agenda and limits the business that may be transacted or discussed.Written notice must be sent to each member of the legislative body(unless waived in writing by that member)and to each local newspaper of general circulation,and radio or television station that has requested such notice in writing.This notice must be delivered by personal delivery or any other means that ensures receipt,at least 24 hours before the time of the meeting. The notice must state the time and place of the meeting,as well as all business to be transacted or discussed.It is recommended that the business to be transacted or discussed be described in the same manner that an item for a regular meeting would be described on the agenda—with a brief general description.As noted above,closed session items should be described in accordance with the Brown Act's safe harbor provisions to protect legislative bodies and elected officials from challenges of noncompliance with notice requirements.The special meeting notice must also be posted at least 24 hours prior to the special meeting in a site freely accessible to the public.The body cannot consider business not in the notice.6 ■ NOTICES AND AGENDAS FOR ADJOURNED AND CONTINUED MEETINGS AND HEARINGS A regular or special meeting can be adjourned and re-adjourned to a time and place specified in the order of adjournment.'If no time is stated,the meeting is continued to the hour for regular meetings.Whoever is present(even if they are less than a quorum)may so adjourn a meeting;if no member of the legislative body is present,the clerk or secretary may adjourn the meeting.If a meeting is adjourned for less than five calendar days,no new agenda need be posted so long as a new item of business is not introduced.$A copy of the order of adjournment must be posted within 24 hours after the adjournment,at or near the door of the place where the meeting was held. OPEN&PUBLIC IV 0 Chapter 4:Agendas,Notices,and Public 848cipation 25 A hearing can be continued to a subsequent meeting.The process is the same as for continuing adjourned meetings,except that if the hearing is continued to a time less than 24 hours away,a copy of the order or notice of continuance must be posted immediately following the meeting.9 ■ NOTICE REQUIREMENTS FOR EMERGENCY MEETINGS The special meeting notice provisions apply to emergency meetings,except for the 24-hour notice.10 News media that have requested written notice of special meetings must be notified by telephone at least one hour in advance of an emergency meeting,and all telephone numbers provided in that written request must be tried.If telephones are not working,the notice requirements are deemed waived.However,the news media must be notified as soon as possible of the meeting and any action taken. News media may make a practice of having written requests on file for notification of special or emergency meetings.Absent such a request,a local agency has no legal obligation to notify news media of special or emergency meetings—although notification may be advisable in any event to avoid controversy. ■ EDUCATIONAL AGENCY MEETINGS The Education Code contains some special agenda and special meeting provisions,17 however,they are generally consistent with the Brown Act.An item is probably void if not posted.12 A school district board must also adopt regulations to make sure the public can place matters affecting district's business on meeting agendas and to address the board on those items.13 ■ NOTICE REQUIREMENTS FOR TAX ORASSESSMENT MEETINGS AND HEARINGS The Brown Act prescribes specific procedures for adoption by a city,county,special district,or joint powers authority of any new or increased general tax or assessment.14At least one public meeting must be held to allow public testimony on the tax or assessment.In addition,there must also be at least 45 days notice of a public hearing at which public testimony may be given before the legislative body proposes to act on the tax or assessment.The agency may recover the reasonable costs of the public meetings, hearings,and notice.'-' The Brown Act exempts certain fees,standby or availability charges,recurring assessments,and new or increased assessments that are subject to the notice and hearing requirements of the Constitution.16 As a practical matter,the Constitution's notice requirements have preempted this section of the Brown Act. ■ NON-AGENDA ITEMS The Brown Act generally prohibits any action or discussion of items not on the posted agenda.However, there are three specific situations in which a legislative body can act on an item not on the agenda:17 • When a majority decides there is an"emergency situation"(as defined for emergency meetings); Practice Tip: When two-thirds of the members present(or all members if less than two-thirds are present)determine Subject to very limited there is a need for immediate action and the need to take action"came to the attention of the local exceptions,the Brown agency subsequent to the agenda being posted."This exception requires a degree of urgency.Further, Act prohibits any an item cannot be considered under this provision if the legislative body or the staff knew about the action or discussion need to take immediate action before the agenda was posted.A new need does not arise because staff of an item not on the forgot to put an item on the agenda or because an applicant missed a deadline;or posted agenda. • When an item appeared on the agenda of,and was continued from,a meeting held not more than five days earlier. 26 OPEN &PU]@Ll(9IV 0 Chapter 4:Agendas,Notices,and Public Participation The exceptions are narrow,as indicated by this list.The first two require a specific determination by the legislative body.That determination can be challenged in court and,if unsubstantiated,can lead to invalidation of an action. "I'd like a two-thirds vote of the board,so we can go ahead p and authorize commencement of phase two of the East Area Project,"said Chair Lopez. "It's not on the agenda. But we learned two days ago that we finished phase one ahead of schedule—believe it or not—and I'd like to keep it that way. Do I hear a motion?" { The desire to stay ahead of schedule generally would not satisfy k "a need for immediate action."Too casual an action could invite a court challenge by a disgruntled resident. The prudent course is to place an item on the agenda for the next meeting and not risk invalidation. "We learned this morning of an opportunity for a state grant,"said the chief engineer at the regular board meeting,"but our application has to be submitted in two days.We'd like the board to give us the go ahead tonight,even though it's not on the agenda." A legitimate immediate need can be acted upon even though not on the posted agenda by following a two-step process: • First, make two determinations:(a)that there is an immediate need to take action and (b)that the need arose after the posting of the agenda.The matter is then placed on the agenda. • Second,discuss and act on the added agenda item. RESPONDING TO THE PUBLIC The public can talk about anything within the jurisdiction of the legislative body,but the legislative body generally cannot act on or discuss an item not on the agenda.What happens when a member of the public raises a subject not on the agenda? While the Brown Act does not allow discussion or action on items not on the agenda,it does allow members of the legislative body,or its staff,to"briefly respond"to comments or questions from members of the public,provide a reference to staff or other resources for factual information,or direct staff to place the issue on a future agenda. In addition,even without a comment from the public,a legislative body member or a staff member may ask for information,request a report back,request to place a matter on the agenda for a subsequent meeting(subject to the body's rules or procedures),ask a question for clarification,make a brief announcement,or briefly report on his or her own activities.18 However,caution should be used to avoid any discussion or action on such items. Council Member A: I would like staff to respond to Resident Joe's complaints during public comment about the repaving project on Elm Street—are there problems with this project? City Manager:The public works director has prepared a 45-minute power point presentation for you on the status of this project and will give it right now. Council Member B:Take all the time you need;we need to get to the bottom of this.Our residents are unhappy. OPEN &PUBLIC IV Chapter 4:Agendas, Notices,and Public 82Ocipation 27 It is clear from this dialogue that the Elm Street project was not on the council's agenda,but was raised during the public comment period for items not on the agenda. Council MemberA properly asked staff to respond;the city manager should have given at most a brief response. If a lengthy report from the public works director was warranted,the city manager should have stated that it would be placed on the agenda for the next meeting.Otherwise,both the long report and the likely discussion afterward will improperly embroil the council in a matter that is not listed on the agenda. ■THE RIGHT TO ATTEND AND OBSERVE MEETINGS A number of other Brown Act provisions protect the public's right to attend,observe,and participate in meetings. Members of the public cannot be required to register their names,provide other information,complete a questionnaire,or otherwise"fulfill any condition precedent"to attending a meeting.Any attendance list,questionnaire,or similar document posted at or near the entrance to the meeting room or circulated at a meeting must clearly state that its completion is voluntary and that all persons may . attend whether or not they fill it out.19 No meeting can be held in a facility that prohibits attendance based on race,religion color,national origin,ethnic group identification,age,sex,sexual orientation,or disability,or that is inaccessible to the disabled.Nor can a meeting be held where the public must make a payment or purchase in order to be present.20 This does not mean however that the public is entitled to free entry to a conference attended by a majority of the legislative body21 While a legislative body may use teleconferencing in connection with a meeting,the public must be given notice of and access to the teleconference location.Members of the public must be able to address the legislative body from the teleconference location.22 Action by secret ballot,whether preliminary or final,is flatly prohibited.23 Q: The agenda calls for election of the legislative body's officers. Members of the legislative body want to cast unsigned written ballots that would be tallied by the clerk,who would announce the results. Is this voting process permissible? A. No.The possibility that a public vote might cause hurt feelings among members of the legislative body or might be awkward—or even counterproductive—does not justify a secret ballot. There can be no semi-closed meetings,in which some members of the public are permitted to attend as spectators while others are not;meetings are either open or closed.24 The legislative body may remove persons from a meeting who willfully interrupt proceedings.If order still cannot be restored,the meeting room may be cleared.Members of the news media who have not participated in the disturbance must be allowed to continue to attend the meeting.The legislative body may establish a procedure to re-admit an individual or individuals not responsible for the disturbance.21 28 OPEN &PUM IV 0 Chapter 4:Agendas,Notices,and Public Participation ■ RECORDS AND RECORDINGS The public has the right to review agendas and other writings distributed by any person to a majority of the legislative body in connection with a matter subject to discussion or consideration at a meeting.Except for privileged documents,those materials are public records and must be made available upon request without delay26 A fee or deposit as permitted by the California Public Records Act may be charged for a copy of a public record.27 Q: In connection with an upcoming hearing on a discretionary use permit,counsel for the legislative body transmits a memorandum to all members of the body outlining the litigation risks in granting or denying the permit. Must this memorandum be included in the packet of agenda materials available to the public? A: No.The memorandum is a privileged attorney-client communication. Q: In connection with an agenda item calling for the legislative body to approve a contract, staff submits to all members of the body a financial analysis explaining why the terms of the contract favor the local agency. Must this memorandum be included in the packet of agenda materials available to the public? A. Yes.The memorandum has been distributed to the majority of the legislative body,relates to the subject matter of a meeting,and is not a privileged communication. A legislative body may discuss or act on some matters without considering written materials.But if writings are distributed to a majority of a legislative body in connection with an agenda item,they must also be available to the public.A writing distributed to a majority of the legislative body less than 72 hours before the meeting must be made available for inspection at the time of distribution at a public office or location designated for that purpose;and the agendas for all meetings of the legislative body must include the address of this office or location.28 A writing distributed during a meeting must be made public: • At the meeting if prepared by the local agency or a member of its legislative body;or • After the meeting if prepared by some other person.29 Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency is subject to the Public Records Act;however,it may be erased or destroyed 30 days after the taping or recording.Any inspection of a video or tape recording is to be provided without charge on a video or tape player made available by the local agency.30 The agency may impose its ordinary charge for copies.31 In addition,the public is specifically allowed to use audio or video tape recorders or still or motion picture cameras at a meeting to record the proceedings,absent a reasonable finding by the legislative body that noise,illumination,or obstruction of view caused by recorders or cameras would persistently disrupt the proceedings.12 Similarly,a legislative body cannot prohibit or restrict the public broadcast of its open and public meetings without making a reasonable finding that the noise,illumination,or obstruction of view would persistently disrupt the proceedings.33 OPEN&PUBLIC IV 0 Chapter 4:Agendas,Notices,and Public 822cipation 29 THE PUBLIC'S PLACE ON THE AGENDA Every agenda for a regular meeting must allow members of the public to speak on any item of interest,so long as the item is within the subject matter jurisdiction of the legislative body. Further,the public must be allowed to speak on a specific item of business before or during the legislative body's consideration of it.34 Must the legislative body allow members of the public to show videos or make a power point presentation during the public comment part of the agenda,as long as the subject matter is relevant to the agency and is within the established time limit? Probably,although the agency is under no obligation to provide equipment. Practice Tip: Public speakers cannot be compelled to give Moreover,the legislative body cannot prohibit public criticism of policies,procedures,programs,or their name or address as services of the agency or the acts or omissions of the legislative body itself. But,the Brown Act provides no a condition of speaking. immunity for defamatory statements.35 The clerk or presiding officer may request speakers to complete a speaker card or identify May the presiding officer prohibit a member of the audience from publicly criticizing an themselves for the agency employee by name during public comments? record,but must respect No,as long as the criticism pertains to job performance. a speaker's desire for anonymity. During the public comment period of a regular meeting of the legislative body,a resident urges the public to support and vote for a candidate vying for election to the body. May the presiding officer gavel the speaker out of order for engaging in political campaign speech? There is no case law on this subject.Some would argue that campaign issues are outside the subject matter jurisdiction of the body within the meaning of Section 54954.3(a). Others take the view that the speech must be allowed under paragraph(c)of that section because it is relevant to the governing of the agency and an implicit criticism of the incumbents. The legislative body may adopt reasonable regulations, including time limits,on public comments.Such regulations should be enforced fairly and without regard to speakers'viewpoints.The legislative body has discretion to modify its regulations regarding time limits on public comment if necessary.For example,the time limit could be shortened to accommodate a lengthy agenda or lengthened to allow additional time for discussion on a complicated matte r.36 The public does not need to be given an opportunity to speak on an item that has already been considered by a committee made up exclusively of members of the legislative body at a public meeting,if all interested members of the public had the opportunity to speak on the item before or during its consideration,and if the item has not been substantially changed.37 Notices and agendas for special meetings must also give members of the public the opportunity to speak before or during consideration of an item on the agenda but need not allow members of the public an opportunity to speak on other matters within the jurisdiction of the legislative body38 30 OPEN &PUMIV Chapter 4:Agendas, Notices,and Public Participation Endnotes 1 California Government Code section 54954.2(a)(1) 2 78 Ops.Cal.Atty.Gen.327(1995) 3 88 Ops.Cal.Atty.Gen.218(2005) 4 California Government Code section 54954.2(a)(1) 5 California Government Code section 54954.1 6 California Government Code section 54956 7 California Government Code section 54955 8 California Government Code section 54954.2(b)(3) 9 California Government Code section 54955.1 10 California Government Code section 54956.5 11 Education Code sections 35144,35145 and 72129 12 Carlson v.Paradise Unified School District(1971) 18 Cal.App.3d 196 13 California Education Code section 35145.5 14 California Government Code section 54954.6 15 California Government Code section 54954.6(g) 16 See:Cal.Const.Art.XIIIC,XIIID and California Government Code section 54954.6(h) 17 California Government Code section 54954.2(b) 18 California Government Code section 54954.2(a)(2) 19 California Government Code section 54953.3 20 California Government Code section 54961(a);California Government Code section 11135(a) 21 California Government Code section 54952.2(c)(2) 22 California Government Code section 54953(b) 23 California Government Code section 54953(c) 24 46 Ops.Cal.Atty.Gen.34(1965) 25 California Government Code section 54957.9 26 California Government Code section 54957.5 27 California Government Code section 54957.5(d) 28 California Government Code section 54957.5(b) 29 California Government Code section 54957.5(c) 30 California Government Code section 54953.5(b) 31 California Government Code section 54957.5(d) 32 California Government Code section 54953.5(a) 33 California Government Code section 54953.6 34 California Government Code section 54954.3(a) 35 California Government Code section 54954.3(c) 36 California Government Code section 54954.3(b);Chaffee v.San Francisco Public Library Com.(2005) 134 Cal. AppAth 109;75 Ops.Cal.Atty.Gen.89(1992) 37 California Government Code section 54954.3(a) 38 California Government Code section 54954.3(a) Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. OPEN&PUBLIC IV ■ Chapter 4:Agendas,Notices,and Public 824cipation 31 32 OPEN &PUSMIV ■ Chapter 4:Agendas,Notices,and Public Participation CHAPTER 5 : CLOSED SESSIONS os Ir �,. ,. AGENDAS AND REPORTS LITIGATION REAL ESTATE NEGOTIATIONS PUBLIC EMPLOYMENT LABOR NEGOTIATIONS LABOR NEGOTIATIONS-SCHOOL AND COMMUNITY COLLEGE DISTRICTS OTHER EDUCATION CODE EXCEPTIONS GRAND JURY TESTIMONY LICENSE APPLICANTS WITH CRIMINAL RECORDS PUBLIC SECURITY MULTIJURISDICTIONAL DRUG LAW ENFORCEMENT AGENCY HOSPITAL PEER REVIEW AND TRADE SECRETS THE CONFIDENTIALITY OF CLOSED SESSION DISCUSSIONS CHAPT CLOSED SESSIONS The Brown Act begins with a strong statement in favor of open meetings;private discussions among a majority of a legislative body are prohibited,unless expressly authorized under the Brown Act. It is not enough that a subject is sensitive,embarrassing,or controversial.Without specific authority in the Brown Act for a closed session,a matter must be discussed in public.As an example,a board of police commissioners cannot generally meet in closed session,even though some matters are sensitive and the commission considers their disclosure contrary to the public interest.' Practice Tip: Meetings of a legislative body are either fully open or fully closed;there is nothing in between.Closed Meetings are either sessions may involve only the members of the legislative body and only agency counsel,management open or closed.There is and support staff,and consultants necessary for consideration of the matter that is the subject of closed no"in between." session.Individuals who do not have an official role in advising the legislative body on closed session subject matters must be excluded from closed session discussions.z Q. May the lawyer for someone suing the agency attend a closed session in order to explain to the legislative body why it should accept a settlement offer? A. No,attendance in closed sessions is reserved exclusively for the agency's advisors. In general,the most common purpose of a closed session is to avoid revealing confidential information that may,in specified circumstances,prejudice the legal or negotiating position of the agency or compromise the privacy interests of employees.Closed sessions should be conducted keeping those narrow purposes in mind. 34 327 OPEN&PUBLIC N 0 Chapter S:Closed Sessions In this chapter,the grounds for convening a closed session are called"exceptions"because they are exceptions to the general rule that meetings must be conducted openly.In some circumstances,none of the closed session exceptions apply to an issue or information the legislative body wishes to discuss privately.In these cases,it is not proper to convene a closed session,even to protect confidential information.For example,the Brown Act does not authorize closed sessions for general contract negotiations. Practice Tip: Some problems over ■AGENDAS AND REPORTS closed sessions arise Closed session items must be briefly described on the posted agenda and the description must state because secrecy itself the specific statutory exemption.An item that appears on the open meeting portion of the agenda may breeds distrust.TheBrown act does not not be taken into closed session until it has been properly agendized as a closed session or unless it is require closed sessions properly added as a closed session item by a two-thirds vote of the body after making the appropriate and legislative bodies urgency findings. may do well to resist the tendency to call a closed The Brown Act supplies a series of fill-in-the-blank sample,agenda descriptions for various types of session simply because authorized closed sessions,which provide a"safe harbor"from legal attacks.These sample agenda it may be permitted.A descriptions cover license and permit determinations,real property negotiations,existing or anticipated better practice is to go litigation,liability claims,threats to security,public employee appointments,evaluations and discipline, into closed session only labor negotiations,multi-jurisdictional drug cases,hospital boards of directors,and medical quality when necessary. assurance committees.3 If the legislative body intends to convene in closed session,it must include the section of the Brown Act authorizing the closed session in advance on the agenda and it must make a public announcement prior to the closed session discussion.In most cases,the announcement may simply be a reference to the agenda item.4 Following a closed session the legislative body must provide an oral or written report on certain actions taken and the vote of every elected member present.The timing and content of the report varies according practice Tip: to the reason for the closed session.'The announcements may be made at the site of the closed session, so long as the public is allowed to be present to hear them. Pay close attention to closed session agenda If there is a standing or written request for documentation,any copies of contracts,settlement agreements, descriptions.using the or other documents finally approved or adopted in closed session must be provided to the requestor(s) wrong label can lead to after the closed session,if final approval of such documents does not rest with any other party to the invalidation of an action taken in closed session. contract or settlement.If substantive amendments to a contract or settlement agreement approved by all parties requires retyping,such documents may be held until retyping is completed during normal business hours,but the substance of the changes must be summarized for any person inquiring about them.6 The Brown Act does not require minutes,including minutes of closed session.A confidential"minute book"may be kept to record actions taken at closed sessions.'If one is kept,it must be made available to members of the legislative body,provided that the member asking to review minutes of a particular meeting was not disqualified from attending the meeting due to a conflict of interest.'A court may order the disclosure of minute books for the court's review if a lawsuit makes sufficient claims of an open meeting violation. OPEN&PUBLIC IV 0 Chapter S: Closed Sessions 328 35 ■ LITIGATION There is an attorney/client relationship,and legal counsel may use it for privileged written and verbal communications—outside of meetings—to members of the legislative body.But protection of the attorney/ client privilege cannot by itself be the reason for a closed session.' The Brown Act expressly authorizes closed sessions to discuss what is considered litigation.The rules that apply to holding a litigation closed session involve complex,technical definitions and procedures.The essential thing to know is that a closed session can be held by the body to confer with,or receive advice from,its legal counsel when open discussion would prejudice the position of the local agency in litigation in which the agency is a party.10 The litigation exception under the Brown Act is narrowly construed and does not permit activities beyond a legislative body's conferring with its own legal counsel.For example,it is not permissible to hold a closed session in which settlement negotiations take place between a legislative body and an adverse party or to hold a closed session for the purpose of participation in a mediation." The California Attorney General believes that if the agency's attorney is not a participant,a litigation closed session cannot be held.12 In any event,local agency officials should always consult the agency's attorney before placing this type of closed session on the agenda,in order to be certain that it is being done properly. Litigation that may be discussed in closed session includes the following three types of matters: Existing litigation May the legislative body agree to settle a lawsuit in a properly-noticed closed session, without placing the settlement agreement on an open session agenda for public approval? Yes,but the settlement agreement is a public document and must be disclosed on request. Furthermore,a settlement agreement cannot commit the agency to matters that are required to have public hearings. In general,the most common purpose of a closed session is to avoid revealing confidential information that may,in specified circumstances,prejudice the legal or negotiating position of the agency or compromise the privacy interests of employees.Closed sessions should be conducted keeping those narrow purposes in mind. Grounds for convening a closed session in this chapter are called"exceptions"because they are exceptions to the general rule that meetings must be conducted openly.In some circumstances, none of the closed session exceptions apply to an issue or information the legislative body wishes to discuss privately.It is improper in these cases,to convene a closed session,even to protect confidential information.For example,the Brown Act does not authorize closed sessions for general contract negotiations. Existing litigation includes any adjudicatory proceedings before a court,administrative body exercising its adjudicatory authority,hearing officer,or arbitrator.The clearest situation in which a closed session is authorized is when the local agency meets with its legal counsel to discuss a pending matter that has been filed in a court or with an administrative agency and names the local agency as a party.The legislative body may meet under these circumstances to receive updates on the case from attorneys,participate in developing strategy as the case develops,or to consider alternatives for resolution of the case.Generally,an agreement to settle litigation may be approved in closed session.However,an agreement to settle litigation that requires actions that are subject to public hearings cannot be approved in closed session.13 36 329 OPEN&PUBLIC N 0 Chapter S:Closed Sessions Threatened litigation against the local agency Closed sessions are authorized for legal counsel to inform the legislative body of specific facts and circumstances that suggest that the local agency has significant exposure to litigation.The Brown Act lists six separate categories of such facts and circumstances.14 The legislative body may also meet under this exception to determine whether a closed session is authorized based on information provided by legal counsel or staff. Initiation of litigation by the local agency A closed session may be held under the pending litigation exception when the legislative body seeks legal advice on whether to protect the agency's rights and interests by initiating litigation. In certain cases,the circumstances and facts justifying the closed session must be publicly noticed on the agenda or announced at an open meeting.Before holding a closed session under the pending litigation exception,the legislative body must publicly state which of the three basic situations apply.It may do so simply by making a reference to the posted agenda. Certain actions must be reported in open session at the same meeting following the closed session.Other actions,as where final approval rests with another party or the court,may be announced when they become final and upon inquiry of any person. Each agency attorney should be aware of and should make other disclosures that may be required in specific instances. ■ REAL ESTATE NEGOTIATIONS A legislative body may meet in closed session with its negotiator to discuss the purchase,sale,exchange, or lease of real property by or for the local agency.A"lease"includes a lease renewal or renegotiation. The purpose is to grant authority to the legislative body's negotiator on price and terms of payment." Caution should be exercised to limit discussion to price and terms of payment without straying to other related issues such as site design,architecture,or other aspects of the project for which the transaction is contemplated.16 Q. May other terms of a real estate transaction,aside from price and terms of payment,be addressed in closed session? A. No.However, there are differing opinions over the scope of the phrase"price and terms of payment"in connection with real estate closed sessions.Many agency attorneys believe that any term that directly affects the economic value of the transaction falls within the ambit of"price and terms of payment."Others take a narrower,more literal view of the phrase. The agency's negotiator may be a member of the legislative body itself.Prior to the closed session,or on the agenda,the legislative body must identify its negotiator,the real property that the negotiations may concern and the names of the persons with whom its negotiator may negotiate.17 After real estate negotiations are concluded,the approval and substance of the agreement must be reported.If its own approval makes the agreement final,the body must report in open session at the public meeting during which the closed session is held.If final approval rests with another party,the local agency must report the approval as soon as informed of it.Once final,the substance of the agreement must be disclosed to anyone who inquires. OPEN&PUBLIC IV 0 Chapter S: Closed Sessions 330 37 T "Our population is exploding,and we have to think about new school sites," said Board Member Jefferson. "Not only that,"interjected Board Member Tanaka,"we need to get rid of a couple of our older facilities." "Well,obviously the place to do that is in a closed session,"said Board Member O'Reilly."Otherwise we're going to set off land speculation.And if we even mention closing a school,parents are going to be in an uproar." A closed session to discuss potential sites is not authorized by the Brown Act. The exception is limited to meeting with its negotiator over specific sites— which must be identified at an open and public meeting. ■ PUBLIC EMPLOYMENT The Brown Act authorizes a closed session"to consider the appointment,employment,evaluation of performance,discipline,or dismissal of a public employee or to hear complaints or charges brought against the employee."18 The purpose of this exception—commonly referred to as the"personnel exception"—is to avoid undue publicity or embarrassment for an employee or applicant for employment and to allow full and candid discussion by the legislative body;thus,it is restricted to discussing individuals,not general personnel policies.19 The body must possess the power to appoint,evaluate,or dismiss the employee to hold a closed session under this exception.20 That authority may be delegated to a subsidiary appointed body21 An employee must be given at least 24 hours notice of any closed session convened to hear specific complaints or charges against him or her.This occurs when the legislative body is reviewing evidence, which could include live testimony,and adjudicating conflicting testimony offered as evidence.The employee has the right to have the specific complaints and charges discussed in a public session rather Practice Tip: than closed session.22 If the employee is not given notice,any disciplinary action is null and void.23 Discussions of who to appoint to an advisory body and whether Q. Must 24 hours notice be given to an employee whose negative performance evaluation is to or not to censure a be considered by the legislative body in closed session? fellow member of the legislative body must be A. No,the notice is reserved for situations where the body is to hear complaints and charges held in the open. from witnesses. However,an employee is not entitled to notice and a hearing where the purpose of the closed session is to consider a performance evaluation.The Attorney General and the courts have determined that personnel performance evaluations do not constitute complaints and charges,which are more akin to accusations made against a person.24 Correct labeling of the closed session on the agenda is critical.A closed session agenda that identified discussion of an employment contract was not sufficient to allow dismissal of an employee.2-1 An incorrect agenda description can result in invalidation of an action and much embarrassment. 38 331 OPEN&PUBLIC N 0 Chapter S:Closed Sessions For purposes of the personnel exception,"employee"specifically includes an officer or an independent contractor who functions as an officer or an employee.Examples of the former include a city manager, district general manager or superintendent.An example of the latter is a legal counsel or engineer hired on contract to act as local agency attorney or chief engineer. Elected officials,appointees to the governing body or subsidiary bodies,and independent contractors other than those discussed above are not employees for purposes of the personnel exception.21 Action on individuals who are not"employees"must also be public—including discussing and voting on appointees to committees,or debating the merits of independent contractors,or considering a complaint against a member of the legislative body itself. Practice Tip: The personnel exception specifically prohibits discussion or action on proposed compensation in The personnel exception closed session,except for a disciplinary reduction in pay.Among other things,that means there can specifically prohibits be no personnel closed sessions on a salary change(other than a disciplinary reduction)between discussion or action on any unrepresented individual and the legislative body.However,a legislative body may address the proposed compensation in closed session compensation of an unrepresented individual,such as a city manager,in a closed session as part of a labor except for a disciplinary negotiation(discussed later in this chapter),yet another example of the importance of using correct agenda reduction in pay. descriptions. Reclassification of a job must be public,but an employee's ability to fill that job may be considered in closed session.Any closed session action to appoint,employ,dismiss,accept the resignation of,or otherwise affect the employment status of a public employee must be reported at the public meeting during which the closed session is held.That report must identify the title of the position,but not the names of all persons considered for an employment position.27 However,a report on a dismissal or non-renewal of an employment contract must be deferred until administrative remedies,if any,are exhausted.21 "I have some important news to announce,"said Mayor Garcia."we've decided to terminate the contract of the city manager,effective immediately.The council has met in closed session and we've negotiated six months severance pay." "Unfortunately,that has some serious budget consequences,so we've had to delay phase two of the East Area Project." This may be an improper use of the personnel closed session if the council agenda described the item as the city manager's evaluation.In addition,other than labor negotiations,any action on individual compensation must be taken in open session. Caution should be exercised to not discuss in closed session issues,such as budget impacts in this hypothetical,beyond the scope of the posted closed session notice. Q. The school board is meeting in closed session to evaluate the superintendent and to consider giving her a pay raise.May the superintendent attend the closed session? A. The superintendent may attend the portion of the closed session devoted to her evaluation,but may not be present during discussion of her pay raise.Discussion of the superintendent's compensation in closed session is limited to giving direction to the school board's negotiator.Also,the clerk should be careful to notice the closed session on the agenda as both an evaluation and a labor negotiation. OPEN&PUBLIC IV 0 Chapter S: Closed Sessions 332 39 ■ LABOR NEGOTIATIONS The Brown Act allows closed sessions for some aspects of labor negotiations.Different provisions (discussed below)apply to school and community college districts. A legislative body may meet in closed session to instruct its bargaining representatives,which may be Practice Tip: one or more of its members,29 on employee salaries and fringe benefits for both union and non-union Prior to the closed employees.For represented employees,it may also consider working conditions that by law require session,the legislative negotiation.These sessions may take place before or during negotiations with employee representatives. body must hold an Prior to the closed session,the legislative body must hold an open and public session in which it identifies open and public its designated representatives. session in which it identifies its designated During its discussions with representatives on salaries and fringe benefits,the legislative body may also representatives. discuss available funds and funding priorities,but only to instruct its representative.The body may also meet in closed session with a conciliator who has intervened in negotiations.30 The approval of an agreement concluding labor negotiations with represented employees must be reported after the agreement is final and has been accepted or ratified by the other party.The report must identify the item approved and the other party or parties to the negotiation.31 The labor sessions specifically cannot include final action on proposed compensation of one or more unrepresented employees.For purposes of this prohibition,an"employee"includes an officer or an independent contractor who functions as an officer or an employee.Independent contractors who do not serve in the capacity of an officer or employee are not covered by this closed session exception. ■ LABOR NEGOTIATIONS—SCHOOL AND COMMUNITY COLLEGE DISTRICTS Employee relations for school districts and community college districts are governed by the Rodda Act, where different meeting and special notice provisions apply.The entire board,for example,may negotiate in closed sessions. Four types of meetings are exempted from compliance with the Rodda Act: (1) A negotiating session with a recognized or certified employee organization; (2) A meeting of a mediator with either side; (3) A hearing or meeting held by a fact finder or arbitrator;and (4) A session between the board and its bargaining agent,or the board alone,to discuss its position regarding employee working conditions and instruct its agent.32 Public participation under the Rodda Act also takes another form.33 All initial proposals of both sides must be presented at public meetings and are public records.The public must be given reasonable time to inform itself and to express its views before the district may adopt its initial proposal.In addition,new topics of negotiations must be made public _ within 24 hours.Any votes on such a topic must be followed within 24 _ hours by public disclosure of the vote of each member.34The final vote must be in public. 40 333 OPEN&PUBLIC N ■ Chapter S:Closed Sessions ■ OTHER EDUCATION CODE EXCEPTIONS The Education Code governs student disciplinary meetings by boards of school districts and community college districts.District boards may hold a closed session to consider the suspension or discipline of a student,if a public hearing would reveal personal,disciplinary,or academic information about the student contrary to state and federal pupil privacy law.The student's parent or guardian may request an open meeting.35 Community college districts may also hold closed sessions to discuss some student disciplinary matters, awarding of honorary degrees,or gifts from donors who prefer to remain anonymous.36 Kindergarten through 12th grade districts may also meet in closed session to review the contents of the statewide assessment instrument.37 ■ GRAND JURY TESTIMONY Practice Tip: A legislative body,including its members as individuals,may testif in private before a grand jury,either Attendance by the entire legislative body before individually or as a group.3'Attendance by the entire legislative body before a grand jury would not a grand jury would not constitute a closed session meeting under the Brown Act,since the body would not be meeting to make constitute a closed decisions or reach a consensus on issues within the body's subject matter jurisdiction. session meeting under the Brown Act. ■ LICENSE APPLICANTS WITH CRIMINAL RECORDS A closed session is permitted when an applicant,who has a criminal record,applies for a license or license renewal and the legislative body wishes to discuss whether the applicant is sufficiently rehabilitated to receive the license.If the body decides to deny the license,the applicant may withdraw the application. If the applicant does not withdraw,the body must deny the license in public,immediately or at its next meeting.No information from the closed session can be revealed without consent of the applicant,unless the applicant takes action to challenge the denial.39 ■ PUBLIC SECURITY Legislative bodies may meet in closed session to discuss matters posing a threat to the security of public buildings,essential public services,including water,sewer,gas,or electric service,or to the public's right of access to public services or facilities over which the legislative body has jurisdiction.Closed session meetings for these purposes must be held with designated security or law enforcement officials including the Attorney General,district attorney,agency attorney,sheriff or chief of police,or their deputies or agency security consultant or security operations manage r40 Action taken in closed session with respect to such public security issues is not reportable action. ■ MULTIJURISDICTIONAL DRUG LAW ENFORCEMENT AGENCY A joint powers agency formed to provide drug law enforcement services to multiple jurisdictions may hold closed sessions to discuss case records of an on-going criminal investigation,to hear testimony from persons involved in the investigation,and to discuss courses of action in particular cases.41 The exception applies to the legislative body of the joint powers agency and to any body advisory to it.The purpose is to prevent impairment of investigations,to protect witnesses and informants,and to permit discussion of effective courses of action.42 OPEN&PUBLIC IV 0 Chapter S: Closed Sessions 334 41 ■ HOSPITAL PEER REVIEW AND TRADE SECRETS Two specific kinds of closed sessions are allowed for district hospitals and municipal hospitals,under other provisions of law.43 1. A meeting to hear reports of hospital medical audit or quality assurance committees,or for related deliberations.However,an applicant or medical staff member whose staff privileges are the direct subject of a hearing may request a public hearing. 2. A meeting to discuss"reports involving trade secrets"—provided no action is taken. A"trade secret"is defined as information which is not generally known to the public or competitors and which:(1)"derives independent economic value,actual or potential"by virtue of its restricted knowledge;(2) is necessary to initiate a new hospital service or program or facility;and(3)would,if prematurely disclosed, create a substantial probability of depriving the hospital of a substantial economic benefit. The provision prohibits use of closed sessions to discuss transitions in ownership or management,or the district's dissolution.44 ■THE CONFIDENTIALITY OF CLOSED SESSION DISCUSSIONS It is not uncommon for agency officials to complain that confidential information is being leaked from closed sessions.The Brown Act prohibits the disclosure of confidential information acquired in a closed session by any person present and offers various remedies to address willful breaches of confidentiality.4' It is incumbent upon all those attending lawful closed sessions to protect the confidentiality of those Practice Tip: discussions.One court has held that members of a legislative body cannot be compelled to divulge the There is a strong content of closed session discussions through the discovery process.46 Only the legislative body acting as interest in protecting a body may agree to divulge confidential closed session information;regarding attorney/client privileged the confidentiality communications,the entire body is the holder of the privilege and only the entire body can decide to waive of proper and lawful 47 closed sessions. the privilege. Before adoption of the Brown Act provision specifically prohibiting disclosure of closed session communications,agency attorneys and the Attorney General long believed that officials have a fiduciary duty to protect the confidentiality of closed session discussions.The Attorney General issued an opinion that it is"improper"for officials to disclose information received during a closed session regarding pending litigation'41 though the Attorney General has also concluded that a local agency may not go so far as to adopt an ordinance criminalizing public disclosure of closed session discussions.49 In any event,the Brown Act now prescribes remedies for breaches of confidentiality.These include injunctive relief,disciplinary action against an employee,and referral of a member of the legislative body to the grand jury.',, The duty of maintaining confidentiality,of course,must give way to the obligation to disclose improper matters or discussions that may come up in closed sessions.In recognition of this public policy,the Brown Act exempts from its prohibition against disclosure of closed session communications disclosure of closed session information to the district attorney or the grand jury due to a perceived violation of law,expressions of opinion concerning the propriety or legality of actions taken in closed session,including disclosure of the nature and extent of the illegal action,and disclosing information that is not confidential." 42 335 OPEN&PUBLIC N 0 Chapter S:Closed Sessions The interplay between these possible sanctions and an official's first amendment rights is complex and beyond the scope of this guide.Suffice it to say that this is a matter of great sensitivity and controversy. "I want the press to know that I voted in closed session against filing the eminent domain action,"said Council Member Chang. "Don't settle too soon,"reveals Council Member Watson to the property owner,over coffee. "The city's offer coming your way is not our bottom line." The first comment to the press is appropriate—the Brown Act requires that certain final votes taken in closed session be reported publicly.52 The second comment to the property owner is not—disclosure of confidential information acquired in closed session is expressly prohibited and harmful to the agency. Endnotes 1 61 Ops.Cal.Atty.Gen.220(1978) 2 82 Ops.Cal.Atty.Gen.29(1999) 3 California Government Code section 54954.5 4 California Government Code sections 54956.9 and 54957.7 5 California Government Code section 54957.1(a) 6 California Government Code section 54957.1(b) 7 California Government Code section 54957.2 8 Hamilton v.Town of Los Gatos(1989)213 Cal.App.3d 1050;2 Cal.Code Regs.section 18702.1(c) 9 Roberts v.City of Palmdale(1993)5 CalAth 363 10 California Government Code section 54956.9;Shapiro v.Board of Directors of Center City Development Corp.(2005) 134 Cal.AppAth 170(agency must be a party to the litigation). 11 Page v.Miracosta Community College District(2009) 180 Cal.AppAth 471 12 "The Brown Act,"California Attorney General(2003),p.40 13 Trancas Property Owners Association a City of Malibu(2006) 138 Cal.App.4th 172 14 Government Code section 54956.9(b) 15 California Government Code section 54956.8 16 Shapiro v.San Diego City Council(2002)96 Cal.AppAth 172;see also—Ops.Cal.Atty.Gen.—(May 21,2010) (20 10 WL 2150433)(concluding it is impermissible for a redevelopment agency to meet in closed session to discuss the terms of a rehabilitation loan to a business that was leasing property from the agency when the terms and conditions of the lease itself were not also a matter of discussion.) 17 California Government Code section 54956.8 18 California Government Code section 54957(b) 19 63 Ops.Cal.Atty.Gen.215(1980);but see:Duvall v.Board of Trustees(2000)93 Cal.AppAth 902(board may discuss personnel evaluation criteria,process and other preliminary matters in closed session). 20 Gillespie v.San Francisco Public Library Commission(1998)67 Cal.AppAth 1165;85 Ops.Cal.Atty.Gen.77(2002) 21 Gillespie v.San Francisco Public Library Commission(1998)67 Cal.AppAth 1165;80 Ops.Cal.Atty.Gen.308(1997). Interviews of candidates to fill a vacant staff position conducted by a temporary committee appointed by the governing body may be done in closed session. 22 Morrison v.Housing Authority of the City of Los Angeles(2003) 107 Cal.AppAth 860 23 California Government Code section 54957 24 78 Ops.Cal.Atty.Gen.218(1995);Bell v.Vista Unified School District(2000)82 CaLApp.4th 672; Furtado v.Sierra Community College(1998)68 Cal.App.4th 876;Fischer v.Los Angeles Unified School District(1999) 70 Cal.AppAth 87 25 Moreno v.City of King(2005) 127 Cal.AppAth 17 26 California Government Code section 54957 27 Gillespie v.San Francisco Public Library Commission(1998)67 Cal.AppAth 1165 28 California Government Code section 54957.1(a)(5) OPEN&PUBLIC IV 0 Chapter S: Closed Sessions 336 43 29 California Government Code section 54957.6 30 57 Ops.Cal.Atty.Gen.209(1974) 31 California Government Code section 54957.1(a)(6) 32 California Government Code section 3549.1 33 California Government Code section 3540 34 California Government Code section 3547 35 California Education Code section 48918,but see Rim of the World Unified School District v.Superior Court(2003) 104 Cal.AppAth 1393(Section 48918 preempted by the Federal Family Educational Right and Privacy Act in regard to expulsion proceedings.) 36 California Education Code section 72122 37 California Education Code section 60617 38 California Government Code section 54953.1 39 California Government Code section 54956.7 40 California Government Code section 54957 41 McKee v.Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force(2005) 134 Cal.AppAth 354 42 California Government Code section 54957.8 43 California Government Code section 54962 44 California Health and Safety Code section 32106 45 Government Code section 54963 46 Kleitman v.Superior Court(1999)74 Cal.AppAth 324,327;see also:California Government Code section 54963 47 Roberts v.City of Palmdale(1993)5 CalAth 363 48 80 Ops.Cal.Atty.Gen.231(1997) 49 76 Ops.Cal.Atty.Gen.289(1993) 50 California Government Code section 54963 51 California Government Code section 54963 52 California Government Code section 54957.1 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.orglopengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. 44 337 OPEN&PUBLIC W 0 Chapter S:Closed Sessions 1�6 CHAPTEf� 6 : REMEDIES Alt A. A Iva 1 � INVALIDATION CIVIL ACTION TO PREVENT FUTURE VIOLATIONS COSTS AND ATTORNEY'S FEES CRIMINAL COMPLAINTS VOLUNTARY RESOLUTION CHAPTE ' - M r REMEDIES t 1 f Certain violations of the Brown Act are designated as misdemeanors,although by far the most commonly used enforcement provisions are those that authorize civil actions to invalidate specified actions taken in violation of the Brown Act and to stop or prevent future violations.Still,despite all the safeguards and remedies to enforce them,it is ultimately impossible for the public to monitor every aspect of public officials' interactions.Compliance ultimately results from regular training and a good measure of self- regulation on the part of public officials.This chapter discusses the remedies available to the public when that self-regulation is ineffective. ■ INVALIDATION Any interested person,including the district attorney,may seek to invalidate certain actions of a legislative body on the ground that they violate the BrownAct.1 violations of the Brown Act,however,cannot be invalidated if they involve the following types of actions: • Those taken in substantial compliance with the law; • Those involving the sale or issuance of notes,bonds or other indebtedness,or any related contracts or agreements; • Those creating a contractual obligation,including a contract awarded by competitive bid for other than compensation for professional services,upon which a party has in good faith relied to its detriment; • Those connected with the collection of any tax;or • Those in which the complaining parry had actual notice at least 72 hours prior to the meeting at which the action is taken. Before filing a court action seeking invalidation,a person who believes that a violation has occurred must send a written"cure or correct"demand to the legislative body.This demand must clearly describe the challenged action,the nature of the claimed violation,and the"cure"sought.This demand must be sent within 90 days of the alleged violation or 30 days if the action was taken in open session but in violation of Section 54954.2,which requires(subject to specific exceptions)that only properly agendized items are acted on by the governing body during a meeting.2 The legislative body then has up to 30 days to cure and correct its action.If it does not act,any lawsuit must be filed within the next 15 days. 46 339 OPEN &PUBLIC IV 0 Chapter 6:Remedies The purpose of this requirement is to offer the body an opportunity to consider whether a violation has occurred and to weigh its options before litigation is filed.The Brown Act does not specify how to cure or correct a violation;the best method is to rescind the action being complained of and to start over. Although just about anyone has standing to bring an action for invalidation,'the challenger must show prejudice as a result of the alleged violation.4 An action to invalidate fails to state a cause of action against the agency if the body deliberated but did not take an actions Practice Tip: A lawsuit to invalidate ■ CIVIL ACTION TO PREVENT FUTURE VIOLATIONS must be preceded by a demand to cure and The district attorney or any interested person can file a civil action asking the court to: correct the challenged • Stop or prevent violations or threatened violations of the Brown Act by members of the legislative body action in order to give of a local agency; the legislative body an opportunity to consider • Determine the applicability of the Brown Act to actions or threatened future action of the legislative body; its options. • Determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid under state or federal law;or • Compel the legislative body to tape record its closed sessions. — It is not necessary for a challenger to prove a past pattern or practice of violations by the - local agency in order to obtain injunctive relief.A court may presume when issuing an injunction that a single violation will continue in the future where the public agency refuses to admit to the alleged violation or to renounce or curtail the practice.6 Note,however,that u a court may not compel elected officials to disclose their recollections of what transpired in � . e a closed session.? . Upon finding a violation of the Brown Act pertaining to closed sessions,a court may compel JW the legislative body to tape record its future closed sessions.In a subsequent lawsuit to enforce the Brown Act alleging a violation occurring in closed session,a court may upon motion of the plaintiff review the tapes if there is good cause to think the Brown Act has been violated,and make public the relevant portion of the closed session recording. ■ COSTS AND ATTORNEY'S FEES Someone who successfully invalidates an action taken in violation of the Brown Act or who successfully enforces one of the Brown Act's civil remedies may seek court costs and reasonable attorney's fees.Courts have held that attorney's fees must be awarded to a successful plaintiff unless special circumstances exist that would make a fee award against the public agency unjust.'When evaluating how to respond to assertions that the Brown Act has been violated,elected officials and their lawyers should assume that attorneys fees will be awarded against the agency if a violation of the Act is proven. An attorney fee award may only be directed against the local agency and not the individual members of the legislative body.If the local agency prevails,it may be awarded court costs and attorney's fees if the court Practice Tip: finds the lawsuit was clearly frivolous and lacking in merit.9 Attorney's fees will likely be awarded if a ■ CRIMINAL COMPLAINTS violation of the Brown Act is proven. A violation of the Brown Act by a member of the legislative body who acts with the improper intent described below is punishable as a misdemeanor70 A criminal violation has two components.The first is that there must be an overt act—a member of a legislative body must attend a meeting at which action is taken in violation of the Brown Act." "Action taken"is not only an actual vote,but also a collective decision,commitment or promise by a OPEN&PUBLIC IV 0 Chapter 6:Remedies 340 47 majority of the legislative body to make a positive or negative decision.12 If the meeting involves mere deliberation without the taking of action,there can be no misdemeanor penalty. A violation occurs for a tentative as well as final decision.13 In fact,criminal liability is triggered by a member's participation in a meeting in violation of the Brown Act—not whether that member has voted with Practice Tip: the majority or minority,or has voted at all. Training and exercising The second component of a criminal violation is that action is taken with the intent of a member"to deprive good judgment can the public of information to which the member knows or has reason to know the public is entitled"by the help avoid Brown Act Brown Act.14 conflicts.If an arguably meritorious procedural As with other misdemeanors,the filing of a complaint is up to the district attorney.Although criminal challenge is raised,it prosecutions of the Brown Act are uncommon,district attorneys in some counties aggressively monitor may be more prudent to public agencies'adherence to the requirements of the law. voluntarily re-notice and reconsider the action ■VOLUNTARY RESOLUTION subject to the challenge. Arguments over Brown Act issues often become emotional on all sides.Newspapers trumpet relatively minor violations,unhappy residents fume over an action,and legislative bodies clam up about information better discussed in public.Hard lines are drawn and rational discussion breaks down.The district attorney or even the grand jury occasionally becomes involved.Publicity surrounding alleged violations of the Brown Act can result in a loss of confidence by constituents in the legislative body.There are times when it may be preferable to consider re-noticing and rehearing,rather than litigating,an item of significant public interest, particularly when there is any doubt about whether the open meeting requirements were satisfied. At bottom,agencies that regularly train their officials and pay close attention to the requirements of the Brown Act will have little reason to worry about enforcement. Endnotes 1 California Government Code section 54960.1.Invalidation is limited to actions that violate the following sections of the Brown Act:section 54953(the basic open meeting provision);sections 54954.2 and 54954.5(notice and agenda requirements for regular meetings and closed sessions);54954.6(tax hearings);and 54956(special meetings). Violations of sections not listed above cannot give rise to invalidation actions,but are subject to the other remedies listed in section 5490.1. 2 California Government Code section 54960.1 (b)and(c)(1) 3 McKee v Orange Unified School District(2003) 110 Cal.AppAth 1310 4 Cohan v.City of Thousand Oaks(1994)30 Cal.AppAth 547,556,571 5 Boyle v.City of Redondo Beach(1999)70 Cal.AppAth 1109,1117-18 6 California Alliance for Utility Safety and Education(CAUSE)v.City of San Diego(1997)56 Cal.AppAth 1024; Common Cause v.Stirling(1983)147 Ca1.App.3d 518,524.Accord Shapiro v.San Diego City Council(2002)96 Cal. App.4th 904,916&fn.6 7 Kleitman v.Superior Court(1999)74 Ca1.App.4th 324,334-36 8 Los Angeles Times Communications,LLC v.Los Angeles County Board of Supervisors(2003) 112 Cal.AppAth 1313, 1324-27 and cases cited therein. 9 California Government Code section 54960.5 10 California Government Code section 54959.A misdemeanor is punishable by a fine of up to$1,000 or up to six months in county jail,or both.California Penal Code section 19.Employees of the agency who participate in violations of the Brown Act cannot be punished criminally under section 54959.However,at least one district attorney instituted criminal action against employees based on the theory that they criminally conspired with the members of the legislative body to commit a crime under section 54949. 11 California Government Code section 54959 12 California Government Code section 54952.6 13 61 Ops.Cal.Atty.Gen.283(1978) 14 California Government Code section 54959 Updates to this publication responding to changes in the Brown Act or new court interpretations are available at www.cacities.org/opengovernment.A current version of the Brown Act may be found at www.leginfo.ca.gov. 48 341 OPEN &PUBLIC IV 0 Chapter 6:Remedies I I� I I J 6 do -Ito a -- OF AIGUE CITIES OPEN & PUBLIC f\/- A GUIDE TO THE RALPH M. BROWN ACT, 2ND EDITION 1400 K Street,Sacramento,CA 95814 Phone:(916)658-8200 1 Fax:(916)658-8240 www.cacities.org Price: $25.00 SKU 789 UNDERSTANDING THE BASICS OF ID SERVICL FTI-��I ics LAWS Principles and California i® 344 THE INSTITUTE IS GRATEFUL TO THE FOLLOWING FIRMS FOR THEIR COMMITMENT TO PUBLIC SERVICE ETHICS: Aleshire &Wynder LLP Best Best& Krieger LLP Burke Williams&Sorensen, LLP Hanson Bridgett Kronick Moskovitz Tiedemann &Girard Liebert Cassidy Whitmore Richards Watson &Gershon Renne Sloan Holtzman Sakai LLP Special thanks to the following individuals whose time and effort contributed to this publication: Da lea Fong,JD,Program Coordinator, Institute for Local Government Michael Martello,JD,Institute for Local Government Volunteer All final decisions about the content, tone and formatting of this publication were made by the Institute for Local Government. Understanding the Basics of Public Service Ethics ©2013 by the Institute for Local Government 1400 K Street,Suite 205 Sacramento, CA 95814 (916)658-8208 ®Printed on Recycled Paper SOV INK, 345 stitute for Local Government www.ca-ilg.org Chapter 1: About This Guide UNDERSTANDING THE BASICS OF Public Service Ethics Laws CHAPTER 1: ABOUT THIS GUIDE Understanding California Ethics Laws...............................................................................................2 Laws as Minimum Standards...................................................................................................3 The Limits of This Information.................................................................................................3 Endnotes and Additional Information...............................................................................................4 CHAPTER 2: PERSONAL FINANCIAL GAIN LAWS Receiving Special Favors or Money for Official Actions......................................................................7 BasicRules.................................................................................................................................7 Penalties.....................................................................................................................................7 California Law Penalties.........................................................................................................7 FederalPenalties....................................................................................................................8 Disqualification Based on Financial Interests Under the Political Reform Act ................................. 10 BasicRules...............................................................................................................................10 SpecialIssues..........................................................................................................................15 What Kinds of Economic Interests Are a Concern? ................................................................15 What Happens if an Official is Disqualified? ..........................................................................17 Effect of Disqualification.......................................................................................................18 Penalties...................................................................................................................................19 Political Reform Act Penalties...............................................................................................19 Effect on Agency and Those Affected by Agency's Decision...................................................19 Interests in Agency Contracts Barred .............................................................................................20 BasicRules...............................................................................................................................20 Exceptionsto Rules ................................................................................................................21 Non-Interest Exception.........................................................................................................21 Remote Interest Exception ...................................................................................................21 LimitedRule of Necessity.....................................................................................................22 Special Rule for School District Boards..................................................................................22 Penalties .................................................................................................................................22 Employment-Related Restrictions...................................................................................................23 BasicRules...............................................................................................................................23 Penalties .................................................................................................................................23 Endnotes and Additional Information.............................................................................................24 Understanding the Basics of Public Service Ethics Laws CHAPTER 3: PERK ISSUES, INCLUDING COMPENSATION, USE OF PUBLIC RESOURCES AND GIFT LAWS CompensationIssues.....................................................................................................................29 BasicRules...............................................................................................................................29 Counties..............................................................................................................................29 SpecialDistricts....................................................................................................................29 Cities...................................................................................................................................30 Local Agency Chief Executives and Staff...............................................................................31 Special Issue: Speaking and Other Fees...............................................................................32 Basic No-Honoraria Rule.......................................................................................................32 Exceptions to No-Honoraria Rules.........................................................................................32 Penalties...................................................................................................................................33 Reimbursementof Expenses..........................................................................................................34 BasicRules...............................................................................................................................34 When May Expenses Be Reimbursed? ..................................................................................34 Process Requirements.........................................................................................................34 Amounts..............................................................................................................................34 Penalties...................................................................................................................................35 CaliforniaLaw Penalties.......................................................................................................35 FederalLaw Penalties ..........................................................................................................35 Restrictions on Use of Public Resources.........................................................................................36 BasicRules...............................................................................................................................36 No Personal or Political Use of Public Resources...................................................................36 No Use of Public Resources on Ballot Measure Related Activities...........................................36 Prohibition against Mass Mailings atPublic Expense ................................................................................................................36 Penalties...................................................................................................................................37 Giftsto Public Officials....................................................................................................................38 BasicRules...............................................................................................................................38 What to Do About Unwanted Gifts? ......................................................................................40 Penalties...................................................................................................................................41 CaliforniaLaw Penalties .......................................................................................................41 FederalLaw Penalties ..........................................................................................................41 I ncome Tax Violations...........................................................................................................42 Useof Campaign Funds..................................................................................................................43 BasicRule ................................................................................................................................43 Penalties...................................................................................................................................43 Endnotes and Additional Information............................................................................................44 ii 3Institute for Local Government I www.ca-ilg.org Chapter 1: About This Guide CHAPTER 4: TRANSPARENCY LAWS Economic Interest Disclosure.......................................................................................................... 51 BasicRules...............................................................................................................................51 Penalties..............................................................................................................................52 Campaign Contribution Disclosure.................................................................................................53 BasicRules...............................................................................................................................53 Penalties...................................................................................................................................54 Charitable Fundraising Disclosure...................................................................................................55 BasicRules...............................................................................................................................55 Penalties...................................................................................................................................56 Penalties for Extortion under State and Federal Law..............................................................56 HonestServices Fraud..........................................................................................................56 The Public's Right to Access Records..............................................................................................57 BasicRules...............................................................................................................................57 Penalties...................................................................................................................................58 Conducting the Public's Business in Public .................................................................................... 59 BasicRules...............................................................................................................................59 Penalties...................................................................................................................................62 Nullification of Decision........................................................................................................62 CriminalSanctions...............................................................................................................62 Other Consequences ...........................................................................................................62 The Public's Right to Participate in Meetings...................................................................................63 BasicRules...............................................................................................................................63 Posting and Following the Agenda........................................................................................63 The Public's Right to Material Not Included in the Agenda Packet...........................................63 SpecialIssues ..........................................................................................................................63 Taping or Recording of Meetings Is Allowed .........................................................................63 Sign-In Must Be Voluntary ....................................................................................................63 The Public's Right to be Heard .............................................................................................64 Penalties .................................................................................................................................65 Nullificationof Decision........................................................................................................65 CriminalSanctions...............................................................................................................65 OtherMeasures...................................................................................................................65 Potential Civil Rights Violations.............................................................................................65 Endnotes and Additional Information.............................................................................................66 CHAPTER 5: FAIR PROCESS LAWS AND MERIT-BASED DECISION-MAKING The Right to Fair and Unbiased Decision-Makers............................................................................72 BasicRules...............................................................................................................................72 Effectof Violations..................................................................................................................73 Effecton Decision ...............................................................................................................73 Due Process Violations.........................................................................................................73 Understanding the Basics of Public Service Ethics La3 ss$ iii Vote-Trading....................................................................................................................................74 BasicRules...............................................................................................................................74 Penalties...................................................................................................................................74 PersonalLoans...............................................................................................................................75 BasicRules...............................................................................................................................75 Penalties...................................................................................................................................75 Decisions May Not Benefit Family...................................................................................................76 BasicRules...............................................................................................................................76 Penalties...................................................................................................................................76 Restrictions and Disqualification Requirements Relating to Campaign Contributions......................77 BasicRules...............................................................................................................................77 AffectedOfficials .................................................................................................................77 Kinds of Proceedings Affected..............................................................................................78 Actions That Must Be Taken .................................................................................................78 Penalties .................................................................................................................................79 Agency Staff and Political Activities ................................................................................................80 BasicRules...............................................................................................................................80 Employment Decisions,Soliciting Support and Campaign Contributions................................80 Engaging in Political Activities During Work Hours or While in Uniform....................................80 Penalties...................................................................................................................................80 Holding Multiple Public Offices.......................................................................................................81 BasicRules...............................................................................................................................81 SpecialIssues .........................................................................................................................82 Employees who Run for the Governing Board of Their Public Agency Employers....................82 IndividualAgency Guidelines................................................................................................82 Penalties...................................................................................................................................82 Competitive Bidding Processes for Public Contracts .......................................................................83 BasicRules...............................................................................................................................83 Exceptions................................................................................................................................83 Emergency..........................................................................................................................83 Professional Services...........................................................................................................83 SpecialServices...................................................................................................................83 Design-Build ........................................................................................................................84 Penalties...................................................................................................................................84 Whistle-Blowing Protections...........................................................................................................85 BasicRules...............................................................................................................................85 Penalties...................................................................................................................................85 Endnotes and Additional Information.............................................................................................86 Index..............................................................................................................................................89 iv 3Insstitute for Local Government I www.ca-ilg.org CHAPTER 1 : About This Guide What Is an "Ethics" Law? Defining the subgroup of laws that constitute "ethics"laws is an imprecise undertaking. For those involved in public service, "ethics laws"tend to be those laws whose central purpose is to preserve the public's trust in its public institutions and those who serve in them. Trustworthiness is a key ethical value.1 For more information on these principles,see www.ca-ilg.org/EthicsLaws. 1 350 Chapter 1:About This Guide Understanding California Ethics Laws California has a complex set of ethics laws to guide Each chapter of this guide is organized around one local officials in their service to their communities. of these four principles and will discuss a variety of How does the well-intentioned local official keep track specific topics and penalties associated with violation of them all? of the laws. Keeping four core principles in mind helps: » Chapter 1/Personal Financial Gain.This chapter Public officials may not use their offices for covers the prohibitions against receiving special personal financial gain. favors or money for official actions,stepping aside from the decision-making process when there is an Holding public office does not entitle one to economic interest in the outcome,and restrictions personal advantages and perks. on employment in certain capacities after leaving Transparency promotes public trust and public office. confidence. » Chapter 2/Gifts and Other Perks.This chapter Merit-based decision-making based on fair focuses on laws and regulations related to processes produces the best results for the public. compensation, reimbursement of expenses, restrictions on the use of public resources,gifts to public officials,and the use of campaign funds. Types of Ethics Laws Many of these ethics laws are prohibitions:they forbid certain actions that would undermine the public's trust that decisions are being made to benefit the public's interests(as opposed to the personal or political interests of the decision-maker).Making decisions in the public's interest is also a key responsibility of public service(responsibility is another key ethical value).2 Prohibitions deter betrayals of the public's trust by creating penalties for such betrayal. Laws against misusing public resources are a form of prohibitory law,as are laws that prevent a decision-maker from being involved in a decision if the decision-maker has a real or perceived conflict of interest.Laws against bribery or other forms of "pay to play"are another important ethics law prohibition. TRANSPARENCY REQUIREMENTS other ethics laws simply require transparency:they provide the public and the media with information on how the public's business is being conducted,who is receiving campaign contributions and gifts from whom,and what kinds of financial interests a public official has.With transparency laws,the public judges whether a public official or group of public officials is acting in a trustworthy fashion—typically as part of the elections process.Transparency laws also encourage trustworthy behavior by reminding public officials that their actions will likely be scrutinized and judged. FAIRNESS other ethics laws require that public agency decision-making processes meet minimum standards of fairness.Fairness is another key ethical value.3 2 35Institute for Local Government I www.ca-ilg.org Chapter 1:About This Guide Chapter 3/Transparency.This chapter focuses on This means that public officials facing ethical issues various disclosure requirements, including campaign are well-advised to engage in a two-step analysis: contributions,economic interests,and charitable >> Step One: Is a given course of action consistent fundraising.Other topics include conducting public with one's own values and analysis of what would business in a public manner,the public's right to constitute the"ethical"course of conduct. participate in meetings,and the right to access >> Step Two:What will the public's perception be of public records. course of conduct,given the information the public Chapter 4/Fair Processes and Merit-Based is likely to have available? Decision-Making.This chapter focuses on prohibitions against vote-trading, restrictions on A helpful tool for analyzing the second question is personal loans,and disqualifications based on the whether one would like to see the course of conduct receipt of campaign contributions and benefits to reported on the front page of the local newspaper. the official's family. It also covers the competitive The Limits of This Information bidding process for public contracts, bias,separating agency staff from politics,and prohibitions on Although the Institute endeavors to help local holding multiple offices.The chapter concludes officials understand technical and legal concepts that with a discussion of the whistleblower protections apply to their public service,this publication is not available to protect public employees from technical or legal advice.Officials are encouraged to retaliation for reporting unlawful behavior. consult technical experts,attorneys and/or relevant regulatory authorities for up-to-date information and A key goal of this guide is to alert local officials to when advice on specific situations. to ask for legal advice on how ethics laws apply in a particular situation. FOR MORE INFORMATION Laws as Minimum Standards On thinking above and beyond the Because public trust and confidence minimum requirements of the law, is vital to the strength of a democratic see www.ca-ilg.org//ppoe. system,ethics laws sometimes set very high standards for public official conduct. Even so, it is important to keep in mind that these standards are only minimum standards: it is simply not possible or practical to write laws that prevent all actions that might diminish the public's trust. For this reason,the laws should be viewed as a floor for conduct, not a ceiling.lust because a given course of conduct is legal does not mean that it is ethical (or the public will perceive it as such). Understanding the Basics of Public Service Ethics Laws Chapter 1:About This Guide Endnotes and Additional Information Note:Sections in the California Code are accessible at http://Ieginfo.legislature.ca.gov/. Fair Political Practices Commission regulations are accessible at www.fppc.ca.gov/index.php?id=52.A source for case law information is www.findlaw.com/cacases/(requires registration). 1 Rushworth M.Kidder,How Good People Make Tough Choices 5 See Cal.Gov't Code§995.2(public agency may refuse (Simon and Schuster,1995). defense of civil action if,among other reasons,the agency 2 Id finds the official acted because of"actual fraud,corruption or actual malice.")See also Cal.Gov't Code§822.2(immunity 3 Id. from liability for misrepresentation does not apply in 4 See Cal.Gov't Code§995.8.See also Los Angeles Police instances of corruption). Protective League v.City of Los Angeles, 6 See Cal.Gov't Code§818. 27 Cal.App.4th 168,32 Cal.Rptr 2d 574(1994)(finding city 7 California Rules of Professional Conduct for Lawyers,Rule was not required to provide the defense of police officers 3-600(A);Ward v.Superior Court,70 Cal.App.3d 23,138 accused of vandalism and conspiracy to commit vandalism). Cal.Rptr 532(1977)(county counsel's client is county,not assessor in his individual capacity). 4 353 stitute for Local Government I www.ca-ilg.org CHAPTER 2 : Personal Financial Gain Laws Available from Institute for Local Government website at: This chapter:www.ca-ilg.org/FinancialGain Whole publication (Understanding the Basics of Public Service Ethics Laws):www.ca-ilg.org/EthicsLaws 354 Chapter 2: Personal Financial Gain Laws Chapter 2: Personal Financial Gain Laws CONTENTS Receiving Special Favors or Money for Official Actions......................................................................7 BasicRules.................................................................................................................................7 Penalties.....................................................................................................................................7 CaliforniaLaw Penalties.........................................................................................................7 Bribery..........................................................................................................................7 Extortion ......................................................................................................................7 Appointing Someone to Office....................................................................................7 FederalPenalties................................................................................................................8 Disqualification Based on Financial Interests Under the Political Reform Act ................................. 10 BasicRules...............................................................................................................................10 SpecialIssues..........................................................................................................................15 What Kinds of Economic Interests Are a Concern? ................................................................15 What Happens if an Official is Disqualified? ..........................................................................17 GeneralRule ..............................................................................................................17 Exceptions to the Leave-the-Room Requirement.....................................................18 Note on Closed Sessions...........................................................................................18 Effect of Disqualification.......................................................................................................18 Penalties...................................................................................................................................19 Political Reform Act Penalties...............................................................................................19 Effect on Agency and Those Affected by Agency's Decision...................................................19 Interests in Agency Contracts Barred .............................................................................................20 BasicRules...............................................................................................................................20 Exceptionsto Rules ................................................................................................................21 Non-Interest Exception.........................................................................................................21 Remote Interest Exception ...................................................................................................21 Limited Rule of Necessity.....................................................................................................22 Special Rule for School District Boards..................................................................................22 Penalties .................................................................................................................................22 CriminalPenalties............................................................................................................22 Effecton Contract............................................................................................................22 Employment-Related Restrictions...................................................................................................23 BasicRules...............................................................................................................................23 Penalties .................................................................................................................................23 Endnotes and Additional Information.............................................................................................24 6 355 stitute for Local Government I www.ca-ilg.org Chapter 2: Personal Financial Gain Laws Receiving Special Favors or Money for Official Actions Basic Rules and $10,000.The specified prison sentence is two to Perhaps the most extreme form of using one's public four years in state prison. position for financial gain is graft.Graft involves using Those who offer bribes also face penalties.Those who one's public position to get money or anything else of bribe a member of a legislative body of a city,county, value. Examples of graft include bribery and extortion. school district or other special district face two to four A bribe involves conferring a benefit on a public years in state prison.' official to influence a person's vote,opinion,action or Extortion in-action.'Asking for that bribe is illegal,of course, but Extortion by public officials is a misdemeanor10 Misde- so is receiving one or agreeing to receive one.' Under meanors are punishable by up to six months in county California's criminal laws,a"bribe"includes anything jail,a fine of up to$1,000 or both." Extortion can also of value; it also includes receiving"advantages."The be the basis for a grand jury to initiate removal-from- advantage can be a future one and need not involve office proceedings for official misconduct.12 the payment of money.3 The federal law definition of bribery is even broader.4 Appointing Someone to Office Extortion involves,among other things,getting An official who receives payment or favors for making something from someone by wrongfully using one's an appointment faces the following punishments: public position.' For example,a public official may forfeiture of office,disqualification from ever holding not demand money in return for the performance of public office again and a fine of up to$10,000.13 his or her official dutieS.b This includes demanding campaign contributions in return for action in one's official capacity. DON'T COUNT ON A CODE OF SILENCE Public officials are also forbidden from receiving a Faced with the temptation of receiving a bribe,it can be easy to underestimate the chances of being caught, reward for appointing someone to public office or per- let alone successfully prosecuted.Fortunately,bribery miffing someone to perform the duties of their offices.' is fairly rare,which may lead one to mistakenly assume prosecutors never find out about bribery. Penalties In some instances,prosecutors learn about illicit activities from informants from within an agency.In California Law Penalties other instances,those who believe they have been Bribery asked for a bribe will turn the asking officials in. Sometimes,observers will notice that a public official Receiving or agreeing to receive a bribe is a criminal seems to have more resources than before and start act, punishable by a combination of prison time,fines asking questions. and losing one's office and being forever disqualified The media views itself as a key watchdog on such from holding public office.' issues,of course.Unfortunately,some officials discount the likelihood of getting caught and prosecuted.They The fines vary according t0 whether the bribe was figure that everyone involved in illicit activities will have actually received. If it was,the fine is a minimum of a strong incentive to keep quiet.What they don't realize $2,000 up to either$10,000 or double the amount is that prosecutors can offer powerful incentives to of the bribe,whichever is greater. If a bribe was not those involved to testify against others in exchange for actually received,there still is a fine between $2,000 a reduced penalty. Understanding the Basics of Public Service Ethics Laws Chapter 2: Personal Financial Gain Laws Federal Penalties IF I GET INTO TROUBLE, CAN THE AGENCY If an agency receives more than $10,000 in federal PAY MY DEFENSE? monies an official could find him or herself subject Don't count on it.To provide a defense in a criminal to federal prosecution if the amount at stake (for action,for example,the agency must find that: example,a bribe)exceeds$5,000.14 The penalty for 1. The criminal action or proceeding is brought on bribery under federal law is a fine of up to twice account of an act or omission in the official's service the amount of the bribe or$250,000(whichever is to the public entity; greater), up to 10 years imprisonment,or both" 2. Such defense would be in the best interests of the Bribery,extortion,or embezzlement can also be public entity;and basis of a federal income tax evasion charge. Federal 3. The individual's actions were in good faith,without prosecutors may treat money that an official receives actual malice and in the apparent interests of the through illicit means as income to the official. If the public entity.4 official fails to report this income at tax time(which of If the issue is claims a public official misused his or her Course, most don't),the official becomes subject to an office for personal gain,it may be particularly difficult action for income tax evasion. for the agency to make the second finding,which is that the actions were in the apparent interests of the Income tax evasion carries with it a possible five-year public entity.Moreover,even if the agency could make prison term and a fine of up to$100,000.16 In addition, these findings,it is not required to.Indeed,there may prosecutors can require the defendant to pay for the be strong political pressures not to. costs of prosecution (in addition to one's own costs Similarly,an agency may refuse to provide a defense associated with defending against the prosecution).17 in a civil action if it finds the actions in question related to corruption or fraud.'Also,public agencies are not The sometimes-related crime of filing a false tax return responsible for damage awards designed to punish or is punishable by a maximum three-year prison term make an example of someone.6 and a fine of up to$100,000(along with the costs of Note that,in these situations,the agency's attorney prosecution).18 is not an individual public official's attorney,with attendant protections for attorney-client confidences. A Court Can also order a convicted OfflClal t0 pay The agency attorney's obligations are to the entity as a restitution to the agency in the amount of the money whole—not to any one official in that agency.' or advantage received (or loss to the agency)as the result of criminal misuse of the official's position." FOR MORE INFORMATION On penalties for ethics law violations,see www.ca-ilg.org/ consequences. 8 357 stitute for Local Government I www.ca-ilg.org Chapter 2: Personal Financial Gain Laws MAKING A FEDERAL CASE OUT OF CORRUPTION: Honest Services Fraud Under federal wire and mail fraud laws,the public has the right to the"honest services"of public officials.20 The basic concept is that a public official owes a duty of loyalty and honesty to the public—similar to a trustee or fiduciary.21 That duty is violated when a public official makes a decision that is not motivated by his or her constituents'interests but instead by his or her personal interests.22 A clear example is when an official receives a personal financial gain as the result of his or her public service. Examples include bribes and kickbacks(for example, receiving money back from proceeds paid to a company that does business with a public entity,but could also be as simple as receiving lavish gifts,loans or other gratuities).23 The potential penalties for federal fraud are steep.The maximum penalty for being guilty of wire and/or mail fraud includes a jail term of up to 20 years and a$250,000 fine.24 For more information,see"Making a Federal Case Out of Corruption,"available at www.ca-ilg.org_/ fedcase. Understanding the Basics of Public Service Ethics Laws9 Chapter 2: Personal Financial Gain Laws Disqualification Based on Financial Interests Under the Political Reform Act Basic Rules The voters have created an across-the-board, Note the breadth of the disqualification bright line rule: public officials may not participate in governmental decisions affecting their financial requirement: one must not only step aside interests. from voting, but the entire process leading The rule is designed to have public officials avoid putting themselves inQL* up to Voting. the position of choosing between advancing the public's interests IF and their own financial interests. Note the breadth of the disqualification requirement: That would be a potential conflict one must not only step aside from voting,but the of interest. entire process leading up to voting.This means conversations with fellow officials and staff are also This does not mean there is anything corrupt or against the law if one has a conflict of interest.Also, dishonest about having a disqualifying conflict of there may be even more restrictive local requirements. interest. It typically means that a public official has a personal life,with all the financial entanglements that The process for determining whether an official must life can involve.The key is to be aware when one's disqualify oneself is described on pages 12-13. financial interests are implicated by a public agency Note that disqualified officials do not count toward the decision,so one can step aside from the decision- quorum.21 making process.This way,there is no question about whether one's personal interests affected the decision-making process in any way. UPDATES TO THE POLITICAL REFORM ACT The rule is that a public official may not make, CONFLICT OF INTEREST REGULATIONS participate in,or influence a governmental decision At press time,the Fair Political Practices Commission is that will have a reasonably foreseeable and material updating the conflict of interest regulations under the Political Reform Act.These first of these updates include financial effect on the official,the official's immediate redefining"reasonably foreseeable"and streamlining the family,or any of the official's financial interests.25 8-step conflict of interest analysis.The Commission has Financial interests include real property,sources of adopted some of these updates,but has not made them income, business entities in which a public official has effective until the Commission considers other pending an investment or holds a management position,and regulatory changes. donors of gifts.See pages 15-16 for more information. Since the changes are not yet effective,this guide reflects regulations in effect at the time of publication. For more information on the status of updates to the conflict of interest regulations,see the Fair Political Practices Commission webpage for newly adopted, amended or repealed regulations at:http://www.fppc ca.gov/index.php?id=247#1. 10 35Institute for Local Government I www.ca-ilg.org Chapter 2: Personal Financial Gain Laws imprecise Terminology: The terms"abstention,""disqualification"and"recusal"are sometimes used interchangeably when describing an official's decision to step aside from the decision-making process.The important thing is to be clear on why a decision-maker is stepping aside. Voluntary Abstention There are instances in which a public official voluntarily chooses not to participate in a decision.The official may know it will be difficult to put personal interests aside and make a decision based solely on the public's interest.Or,the official may worry the public will perceive the official cannot put personal interests aside even if the official knows the he or she can. The decision to voluntarily step aside from the decision-making process can involve two conflicting values: 1. One's responsibility to participate in decision-making;and 2. One's responsibility to preserve the public's trust in the decision-making process. Both responsibilities are important,of course.Because of this,deciding not to participate should not be viewed as a way of avoiding difficult decisions. Mandatory Disqualification By contrast,when someone has a disqualifying conflict of interest,one does not have a choice.The law prohibits that individual from participating in a decision—even if the official believes he or she can be fair.There is no choice;the law presumes the public will doubt a person's ability to be fair.This is an example of avoiding the appearance of impropriety as well as the potential for actual impropriety. Understanding the Basics of Public Service Ethics Laws Chapter 2: Personal Financial Gain Laws Political Reform Act — The Eight Step Conflict of Interest Test The process of determining when an official is disqualified from participating in a decision is a very complex one. There are statutes, regulations and interpretive opinions that flesh out each aspect of the basic prohibition. To organize the analysis of determining when an official is disqualified from participating in a decision,the Fair Political Practices Commission has adopted an eight-step procedure for identifying when one must disqualify oneself from participating in a matter.21 Below is the general outline of the process.Since the rules are not necessarily logical or intuitive, it is best to consult with agency counsel or the Fair Political Practices Commission staff if there is a possibility one might have a conflict of interest. Step 1. Are you a public official within the meaning of the rules? Yes No May Participate Step 2. Are you making, participating in or influencing a governmental decision? Yes No o May Participate I I Step 3. Do you have an economic interest in the decision? (Business, Real Property,Income, Etc.,see pages 15-16) y Covered by Rules Not Covered May Participate Step 4. How is your interest affected by the decision? I I Subject of the Decision Potentially Impacted by the (directly involved) Decision(indirectly involved) 12 36Institute for Local Government www.ca-ilg.org Chapter 2: Personal Financial Gain Laws Step 5. Is the impact of the decision on your interest material (important) enough to trigger a conflict? Directly Involved Real Property Presumed Material— Rebuttable by Specific Facts (see page 17) 1 11 Step 6. Is it reasonable forseeable that the decision will have a material effect? Yes No May Participate Step 7. Is the effect distinguishable from that of the public generally? Yes No May Participate y Special Rules May Apply --� No May Participate I Yes I Step 8. Despite conflict — Are you legally required to participate? No Yes May Participate I May Not Participate Credit.,Greg Diaz, City Attorney, Merced, CA. Understanding the Basics of Public Service Ethics Laws 2 1 Chapter 2: Personal Financial Gain Laws FOR MORE INFORMATION See the following resources: ETHICS CODES VERSUS LOCAL CONFLICT OF INTEREST CODES California's Political Reform Act requires local agencies to adopt local conflict of interest codes.27 These codes >> "Deciding When Not to Participate in an Agency supplement state law,by specifying which positions in Decision:Abstentions and Disqualifications," the agency are subject to disclosure under the Act. available at www.ca-ilg.org/abstentions For more information,see"About Local Conflict of Interest Codes"(available at www.ca-ilg.org/local- "Property Ownership in Your Jurisdiction,"available conflict-of-interest-codes)and the Fair Political at www.ca-ilg.org/owningproperty Practices Commissions materials on adopting local For specific questions, please contact the Fair Political conflict of interest codes(see www.fppc.ca.gov/index.php?id-228). Practices Commission or agency counsel. GETTING ADVICE AND STAYING OUT OF TROUBLE ON POLITICAL REFORM ACT ISSUES Public officials should get advice on how these laws apply as early in the process as possible—as soon as a disqualifying conflict of interest is even a possibility. Early consultation allows an attorney to analyze all of the facts involved and the relevant law.Even though the analysis is laid out in specific steps,each step has various rules and Fair Political Practices Commission guidelines associated with it.As one seasoned local agency attorney has observed,the later in the process the consultation occurs,the more likely the advice will be that disqualification must occur to make sure the official stays out of trouble. Does advice from agency counsel protect an official against a Fair Political Practices Commission enforcement action? No.only a formal opinion or formal advice letter from the Fair Political Practices Commission will protect a public official if someone argues that a violation of the Political Reform Act has occurred.Receiving such advice from the Commission takes time—another good reason to raise the conflict issue as early as possible. 14 363 Institute for Local Government www.ca-ilg.org Chapter 2: Personal Financial Gain Laws Special Issues >> Investments.An economic interest is created if the official,the official's spouse or domestic What Kinds of Economic partner 36(even as separate property)or dependent Interests Are a Concern? children (or anyone acting on their behalf) has an A public official is in the best position investment worth $2,000 or more in a business to focus the on the question: Does entity(even if the official does not receive income an official have a financial interest from the business).31 Investments include stocks in a particular decision?There are a and bonds. number of different ways to have a financial interest in >> Business Employment or Management. If the a decision: official serves as a director,officer, partner,trustee, Sources of Income. Receiving$500 or more in employee or otherwise serves in a management income from one source(including any income position in a company,an economic interest is received from a business, nonprofit organization, created.38 Note this does not apply to a member of government agency,or individual)within twelve the board of a nonprofit entity. months prior to the decision creates an economic >> Related Businesses.The official has an economic interest."Sources of income" includes a community interest in a business that is the parent,subsidiary property interest in a spouse or domestic or is otherwise related to a business where the partner'S29 income, but not separate property official: income.30 Additionally,if someone promises an >> Has a direct or indirect investment worth$2000 official$500 or more twelve months prior to the decision,that person or entity promising the money or more;or is a source of income.31 > Is a director,officer,partner,trustee, employee, or Personal Finances.An official has an economic manage r39 interest in the official's expenses,income,assets >> Business-Owned Property.A direct or indirect or liabilities and those of the official's immediate ownership interest in a business entity or trust that family(spouse or domestic partner 12 and owns real property is another form of economic dependent children).33 interest.40 Real Property. An interest in real property when >> Loans.A loan from someone (or guarantee on a the interest is worth $2,000 or more creates an loan) can create an economic interest unless the economic interest.The interest may be held by the loan is from a commercial institution,made in the official,the official's spouse or domestic partner 14 regular course of business and is on the same (even as separate property)and children (or anyone terms as are available to members of the public.41 acting on their behalf). Real property interests can also be created through leases, loans,mortgage or security interests in property.35 Understanding the Basics of Public Service Ethics Laws15 Chapter 2: Personal Financial Gain Laws Gifts. Receiving gifts totaling $440(2013-14)or more in a twelve-month period prior DISCLOSURE OF CONFIDENTIAL to the decision from any one INFORMATION person or organization may California law also makes disclosure of certain kinds of confidential information for personal financial gain create an economic interest (as defined)a misdemeanor restriction applies depending on the type of to public officers and employees.47 Confidential public official involved and whether the gift-giver information is:1)information that is not subject to is in the agency's jurisdiction.41 Being promised disclosure under the Public Records Act and 2)information for which disclosure is prohibited by a gift of$440(2013-14)or more within a twelve- statute,regulation or rule.41 month period prior to the decision can also create a disqualifying financial interest.43 The limit is adjusted every few years to reflect changes in the cost of living.44 For more discussion of the gift issue, please see Chapter 3, pages 38-40,and www.ca-ilg.org/ GiftCenter. The timeline for determining whether an official has an economic interest is twelve months before the decision in question—not the calendar year.41 If a public official thinks he or she has one of the economic interests described above,the next step is to consult with the agency attorney about the situation and how the Fair Political Practices Commission's conflict of interest analysis applies. 16 365 stitute for Local Government www.ca-ilg.org Chapter 2: Personal Financial Gain Laws Real Property Say an official has determined a decision may affect real property interests.The next step is whether that interest is directly(or indirectly)involved in the decision.This relates to step 4 of the eight-step disqualification process. The Fair Political Practices Commission has endeavored to simplify the analysis by providing bright line rules.A real property interest is presumed directly involved in a decision if one of the following conditions is met: 1. The official's property is within 500 feet of the boundaries or proposed boundaries of the property that is the subject of the decision 49 or 2. The decision involves any of the following with respect to the official's property: • Zoning,rezoning,annexation,de-annexation,sale,purchase,lease,or inclusion in or exclusion from any local governmental subdivision of the property;so • Issuance,denial or revocation of a license,permit or other land use entitlement;51 • Imposition,repeal or modification of any taxes or fees imposed on the official's property;52 • Construction of,or improvements to,streets,water,sewer,storm drainage or similar facilities and the real property will receive new or improved services(excluding repairs,replacement or maintenance of existing services).53 If a real property interest is directly involved in the decision,the effect is considered material(step 5 of the eight-step analysis) unless an official can prove the decision will not have any effect on the value of that property54 or the"public generally" exception applies(step 7).55 For more information on analyzing property-related financial interests,see"Property Ownership in Your Jurisdiction,"available at www.ca-ilg.org/owningproperty. What Happens if an Official is Disqualified? At the meeting,city council members, county General Rule supervisors, planning commissioners and top staff members who have conflicts of interest will typically If an official is disqualified from , need to leave the room when that matter is up for participating on a specific agenda item decision (unless the matter is on consent, in which under the conflict of interest rules case the official must declare the conflict and have the established by the Political Reform Act, clerk record an abstention on that particular item).57 the official must: This may be a good practice for comparable officials at At the meeting, publicly identify the other local agencies as well. financial interest or potential conflict of interest in Officials subject to the leave-the-room requirement sufficient detail to be understood by the public; will also need to explain why they are disqualified Not attempt to influence the decision in any way, from participating, based on the nature of the financial which includes talking with colleagues or staff interests$For example: about the matter;and » Investment. If the interest relates to an investment, Refrain from discussing or voting on the matter" provide the name of the business in which the (ask for the item to be considered separately if it is investment is held. on the consent calendar). Understanding the Basics of Public Service Ethics Laws17 Chapter 2: Personal Financial Gain Laws Business Position. If the interest relates to a rights as individuals with their responsibility to business position,give a general description of the maintain the public's trust in both their leadership activity in which the business is engaged as well as and the agency that they serve by not remaining in the name of the business. the room. Real Property. If the interest relates to real Note on Closed Sessions property,supply the address or another indication If a decision will be made in a closed session,an of the location of the property(unless the property official with a conflict may not be present in the closed is the public official's principal or personal residence, in which case explain the property is a session during the discussion and decision.That residence). official also may not obtain non-public information about the closed session.64 Income or Gifts. If the interest relates to the receipt of income or gifts,then describe the source. Effect of Disqualification Personal Finances. If the interest relates to a The general rule is a majority of the membership of a personal financial interest in the decision,then body must be present in order for the decision-making describe the expense, liability,asset or income body to conduct business—a concept known as a affected. quorum.61 Exceptions to the Leave-the-Room Requirement For some kinds of agencies,a majority of the quorum There are limited exceptions that allow a is necessary for an item to pass,although there are disqualified official to remain in the room special rules that apply to certain kinds of actions. and participate in the discussion as a Note, however,the rule is different for county boards member of the public to represent himself of supervisors,community college boards and school or herself on matters related solely boards,which generally require a majority vote of the to the official's"personal interests."59 entire membership of the board to act.16 These include when the subject of the Those who are disqualified from participating in discussion is: the decision are not counted toward the quorum.61 Interests in real property wholly owned by the However,those who abstain because of a pending official or his or her immediate family;60 question concerning a conflict of interest(for example, an elected official is waiting to receive an advice letter A business entity wholly owned by the official or his from the Fair Political Practices Commission) may be or her immediate family;b' and counted toward the quorum.This is because they >> A business entity over which the official (or the have not yet been disqualified (typically their agency official and his or her spouse or domestic partner 62) attorneys will recommend they abstain pending exercise sole direction and control.63 resolution of the conflict issue).68 Even though the law allows the public official to remain in the room when these interests are at stake, the public official may still wish to balance that option with the potential that the public may nonetheless perceive the official is improperly trying to influence his or her colleagues. Many officials balance their 18 367 stitute for Local Government I www.ca-ilg.org Chapter 2: Personal Financial Gain Laws FOR MORE INFORMATION Effect on Agency and Those Affected by See the following resources: Agency's Decision When a disqualified official participates in a decision, it can also void the decision.74 This can have serious consequences for those affected by the decision as » The Fair Political Practices Commission has well as the public agency. If someone is encouraging produced "Can I Vote?An Overview of the Conflicts an official to participate in spite of a disqualifying Laws,"available at www.fppc.ca.gov interest,consider pointing out the costs that would » "Using Public Office to Promote One's Business occur if the agency's decision has to be undone—not Interests,"available at www.ca-ilg.org/publicoffice to mention the legal consequences for the official. » Conflicts of Interest(2010). Explains California's Typically it is wise to err on the side of caution when conflict-of-interest laws available at http://ag.ca. there is a question regarding the appropriateness of gov/publications/coi.pdf an official's participation in a matter.When in doubt,sit a decision out. For specific questions, please contact the Fair Political Practices Commission or agency counsel. FOR MORE INFORMATION Penalties On penalties for ethics law Political Reform Act violations,see www.ca-ilg.org/ Penalties consequences. A refusal to disqualify oneself is a violation of the Political Reform Act.Violations of these laws are punishable by a variety of civil, criminal and administrative penalties,depending on the severity of the violation and the degree of intent to violate the law that enforcement entities are able to demonstrate.69 These penalties can include any or all of the following: » Immediate loss of office;70 » Prohibition from seeking elected office in the future;" » Fines of up to$10,000 or more depending on the circumstances;72 and » Jail time of up to six months.73 Understanding the Basics of Public Service Ethics Laws19 Chapter 2: Personal Financial Gain Laws Interests in Agency Contracts Barred Basic Rules » Financial Interest.A"financial interest"in a California law strictly forbids public contract includes a direct or indirect financial officials from having an economic interest.A direct financial interest is present when interest in their agencies' contracts. In the official is the party contracting with the agency. essence,this is a prohibition against An indirect financial interest involves an official who self-dealing.This particular law has has a financial relationship with the contracting been traced back to the earliest days party or will receive some benefit from the making of California's statehood—to 1851.75 of the contract with the contracting party. It does This prohibition applies to elected and not matter if the official's financial interest is appointed officials as well as public agency employees positively or negatively affected.This provision and consultants.76 covers financial relationships that go beyond the official's immediate family. This means that,if an official has an interest in a Officials will sometimes hear their agency counsel contract being contemplated by their agency, the refer to this issue as a"section 1090 problem,"in agency may not enter into the contract. If a staff reference to the Government Code section containing member has an interest in the contract,the staff this prohibition.These restrictions on contracts are in member may not participate in any way in the addition to the restrictions of the Political Reform Act. contract negotiations.Contracts are broadly defined and include employment and a variety of other A key question to ask oneself in evaluating an relationships. agency's contracts is:"will this contract affect my Key things to keep in mind include the following. economic interests in any way?" If the answer is"yes," speak with agency counsel immediately. Making a Contract.The prohibition applies to preliminary discussions, negotiations, planning and solicitation of bids,as well as voting on the contract itself.This means the affected official can't be A key question to ask in evaluating on involved in those as well. ogencys contracts is: "will this contract Disqualification Doesn't Fix the Problem.When the prohibition applies,the agency may not enter affect my economic interests in any way?" into the contract in question. Members of the If the answer is yes, speak with agency governing board of a local agency(including a board of supervisors, board of directors,city council counsel immediately. or school board members)are deemed to have made any contract executed by the board,or any person or agency under its jurisdiction,even if officials disqualify themselves from participating in the contract. 20 36Institute for Local Government I www.ca-ilg.org Chapter 2: Personal Financial Gain Laws Remote Interest Exception WHAT IS THE THEORY OF NOT ALLOWING A local agency may enter into a DISQUALIFICATION? contract when an official has a When the prohibition against interests in contracts "remote" interest so long as the applies,the agency may not enter into the contract, official does not attempt to influence even if the official with the interest disqualifies him-or another member of the board or council."Examples herself.Why?The theory seems to be decision-makers of remote interests include: may be favorably influenced to award a contract to a colleague—perhaps with the expectation the favor » Being an employee of the contracting party, if the may be returned in the future.The absolute prohibition contracting party has ten or more employees,the guards against such a tendency toward what might be described as"you-scratch-my-back-I'II-scratch-yours" employee began his or her employment at least dynamics within the agency three years prior to initially assuming office,and certain other requirements are met;or Being a supplier of goods or services to the parry Exceptions to Rules contracting with the agency,when those goods There are limited exceptions to the general prohibition or services have been supplied to the contracting against interests in contracts. party by the public official for at least five years prior to assuming office.71 Non-Interest Exception If the decision-maker qualifies as having a remote Some potential interests in a contract are so small interest,the agency must then take these steps to California law classifies them as"non-interests"in stay on the right side of the law: a contract. One is when an official receives public services provided by the official's agency on the same >> The board or council member must disclose the terms that the services are provided to the general financial interest to the board or council,and public. For example,a member of a water district disqualify himself or herself from participating in all board may receive water service. In such cases, aspects of the decision; the official and the official's agency may participate » The disclosure must be noted in the official records in the contract.California law provides a full list of of the board or council;and exceptions.77 » The board or council,after such disclosure,must approve, ratify or authorize the contract by a good faith vote of the remaining qualified members of the board or council.80 It is important to note that this exception applies only to members of multi-member bodies(not to individual decision makers and employees).81 Understanding the Basics of Public Service Ethics La370 21 Chapter 2: Personal Financial Gain Laws Limited Rule of Necessity Even if there is not an exception from the prohibition, GETTING ADVICE AND STAYING OUT OF the agency may still enter into a contract if the rule of TROUBLE ON CONTRACT ISSUES necessity applies.82 In general,this rule will allow an As with issues under the Political Reform Act,advice agency to acquire an essential supply or service.The of counsel does not provide a defense in a criminal rule also allows a public official to carry out essential prosecution relating to unlawful interests in contracts.84 duties of his or her office where he or she is the only Moreover,the Fair Political Practices Commission does one who may legally act. Consult with agency counsel not interpret and provide advice on Section 1090/ whether the intricacies of this rule may apply in any contract issues.85 given situation. The Attorney General will provide such advice,but only certain kinds of officials are entitled to ask the Attorney Special Rule for School District Boards General for an opinion.16 In addition,the process can California's Education Code specifically allows school take months,if not years. board members to vote on collective bargaining agreements and personnel matters that affect a class of employees to which a relative belongs.13 Whether Penalties this rule also applies to domestic partners is not clear The penalties for violating the under the statute. prohibition against interests in contracts are severe. FOR MORE INFORMATION Criminal Penalties See the following resources: Willful violations are a felony and may be punished by fines of up to$1,000, imprisonment,and being disqualified from ever holding public office again." "How Your Agency Counsel Should Advise You When Agency Contracts Represent a Conflict of Interest," Effect on Contract available at www.ca-ilg.org/coi The contract also is"void,"which means the local agency does not have to pay for goods or services » "Securing Goods and Services:Contracting Issues," received under the contract."The agency may also available at www.ca-ilg.org//procurement seek repayment of amounts already paid.89 For specific questions, please contact agency counsel. FOR MORE INFORMATION lkOn penalties for ethics law violations,see www.ca-ilg.org/ consequences. 22 37Institute for Local Government I www.ca-ilg.org Chapter 2: Personal Financial Gain Laws Employment-Related Restrictions Basic Rules FOR MORE INFORMATION Another kind of"personal financial gain"law prohibits elected officials and top-level managers from, in On employment restrictions,see essence,trading on the relationships developed in "Revolving Door Restrictions for public service. Local Officials"available at www. For example,elected officials and chief executives ca-ilg.org/revolvingdoor. who leave government service must not represent For specific questions, please contact the Fair Political people for pay before their former agencies for one Practices Commission or agency counsel. year after leaving their agency40 This is known as a "revolving door" restriction. Penalties In addition, under California's conflict of interest/ These employment-related disqualification rules,a public official may not restrictions are part of the influence agency decisions when the interests of a Political Reform Act.Violations prospective employer are at stake.91 The situation of the Act are punishable by a variety of civil,criminal arises when an official is negotiating or has"any and administrative penalties,depending on the arrangement"concerning prospective employment severity of the violation and the degree of intent to with someone with business before the agency. violate the law that enforcement entities are able to demonstrate.98 These penalties can include any or all of the following: WHEN AN EMPLOYEE RUNS FOR A SEAT » Immediate loss of office;99 ON THE GOVERNING BOARD » Prohibition from seeking elected office in the California law says that,with a few exceptions,local agency employees must resign their employment future;100 before taking a seat on the governing board of their > Fines of up to$10,000 or more depending on the local agency92 circumstances;101 and This restriction applies to cities,counties,special >> Jail time of u to six months.102 districts and other public agencies and corporations. 93 P There are parallel restrictions for employees who run for school boards94 and community college district FOR MORE INFORMATION governing boards.95 All of the sections note that,if an employee refuses to resign,his or her position will On penalties for ethics law automatically terminate upon being sworn into office violations,see www.ca-ilg.org/ on the governing board.9e consequences. These restrictions prevent the dual role conflicts associated with being both in the role of employee and employer.91 Understanding the Basics of Public Service Ethics La372 23 Chapter 2: Personal Financial Gain Laws Endnotes and Additional Information Note:Sections in the California Code are accessible at http://Ieginfo.legislature.ca.gov/. Fair Political Practices Commission regulations are accessible at www.fppc.ca.gov/index.php?id=52.A source for case law information is www.findlaw.com/cacases/(requires registration). 1 Cal.Penal Code§§7(definition number 6),68(a). 24 18 U.S.C.§§1341 ("...shall be fined under this title or 2 See Cal.Penal Code§§68(a),86. imprisoned not more than 20 years,or both."),1343("shall be 3 Id.;See also People v.Anderson,75 Cal.App.365,242 P.2d fined under this title or imprisoned not more than 20 years, 906(1925). or both."). 4 See 18 U.S.C.§201. 25 See Cal.Gov't Code§§87100-87105. 5 See Cal.Penal Code§518. 26 2 Cal.Code Regs.§18702.5(b)(3). 6 In re Shepard,161 Cal.171 (1911)(in the context of removal- 27 Cal.Gov't Code§87300. from-office proceedings for misconduct). 28 2 Cal.Code Regs.§18700(b).In 2012 the Fair Political 7 Cal.Penal Code§74. Practices Commission revised the standard used to determine whether a financial effect is"reasonably 8 See generally Cal.Penal Code§68(a).See also Cal.Elect. foreseeable"in 2 Cal.Code Regs§18706(step 6)from being Code§20(making those convicted of making or receiving a "substantially likely"to being a"realistic probability."Although bribe ineligible for public office). this change was adopted in September 2012,at the time of 9 See Cal.Penal Code§85. publication the effective date for this change was delayed. 10 See 18 U.S.C.§201. 29 2 Cal.Code Regs.§18229. 11 Cal.Penal Code§19. 30 Cal.Gov't Code§§82030,87103(c);2 Cal.Code Regs.§ 12 Cal.Gov't Code§§3060-3074. 18703.3. 13 Cal.Penal Code§74. 31 Cal.Gov't Code§87103(c).See Larsen Advice Letter,No. 14 18 U.S.C.§666(at the time of publication,there is pending A-82-192(1982).. legislation to lower this amount). 32 2 Cal.Code Regs.§18229(referring to Cal.Gov't Code§ 15 See 18 U.S.C.§§666(specifying maximum 10-year prison 82029 defining"immediate family"). term and fine"under this title"),3571 (general fine for 33 2 Cal.Code Regs.§18703.5. violating federal criminal laws)(At the time of publication 34 2 Cal.Code Regs.§18229. there is pending legislation to increase the maximum prison 35 See Cal.Gov't Code§§82033,87103(b). sentence for bribery). 36 2 Cal.Code Regs.§18229. 16 26 U.S.C.§7201. 37 Cal.Gov't Code§§82034,87103(a);2 Cal.Code Regs.§ 17 Id. 18703.1. 18 26 U.S.C.§7206(1). 38 Cal.Gov't Code§87103(d);2 Cal.Code Regs.§18703.1(b). 19 U.S.v.Gaytan,342 F3d 1010(9th Cir.2003). 37 2 Cal.Code Regs.§18703.1(c). 20 18 U.S.C.§§1341 (mail fraud),1343(wire fraud),1346(honest 40 Cal.Gov't Code§82033(pro rata interest,if own 10 percent services). interest or greater). 21 U.S.v.Sawyer,239 F3d 31,39(1st Cir.2001)(finding sufficient 41 Cal.Gov't Code§82030(b)(8),(10). evidence of guilt apart from proof of violation of state law). 42 Cal.Gov't Code§§82028,87103(e);2 Cal.Code Regs.§ 22 U.S.v Lopez-Lukis,102 F.3d 1164,1169(11th Cir.1997)(noting 18703.4. that effort to improperly control composition of decision- 43 Cal.Gov't Code§87103(e);2 Cal.Code Regs.§18703.4. making body constituted an effort to deprive public of honest services);McNally v.U.S.,483 U.S.350,362-63(1987)(Justice 44 Cal.Gov't Code§89503(f). Stevens,dissenting). 45 Cal.Gov't Code§87103(e);2 Cal.Code Regs.§18703.4. 23 See Skilling v.U.S.,130 S.Ct.2896,2931(2010)(holding that 46 See Cal.Gov't Code§1098(a). in order to avoid unconstitutional vagueness,18 USC§1346 47 Id. only criminalizes bribes and kick-back schemes). 24 37Institute for Local Government I www.ca-ilg.org Chapter 2: Personal Financial Gain Laws 48 See Cal.Gov't Code§1098(b) 81 California Attorney General,Conflict of Interest,67(2010), 49 2 Cal.Code Regs.§18704.2(a)(1). available at http://ag.ca.RoWpublications/coi.pdf. 50 2 Cal.Code Regs.§18704.2(a)(2). 82 See 70 Cal.Op.Att'y Gen.45(1987). 51 2 Cal.Code Regs.§18704.2(a)(3). 83 See Cal.Educ.Code§35107(e). 52 2 Cal.Code Regs.§18704.2(a)(4). 84 People v.Chacon,40 Cal.4th 558,53 Cal.Rptr.3d 876(2007). 53 2 Cal.Code Regs.§18704.2(a)(6). 85 At the time of publication there is pending state legislation 54 2 Cal.Code Regs.§18705.2. that would allow the Fair Political Practices Commission to enforce and provide guidance on Government Code section 55 2 Cal.Code Regs.§18707.1. 1090 contract issues.See A.B.1090,2013-2014 Leg.,Reg. 56 See Cal.Gov't Code§87105;2 Cal.Code Regs.§18702.5. Sess.(Cal.2013). 57 See 2 Cal.Code Regs.§18702.5. 86 See Cal.Gov't Code§12519. 58 2 Cal.Code Regs.§18702.5(b)(1)(B). 87 See Cal.Gov't Code§1097. 59 2 Cal.Code Regs.§§18702.5(d)(3),18702.4(b)(1). 88 Thomson v.Call,38 Cal.3d 633,214 Cal.Rptr.139(1985). 60 2 Cal.Code Regs.§18702.4(b)(1)(A). 89 See Cal.Gov't Code§1092. 61 2 Cal.Code Regs.§18702.4(b)(1)(B). 90 Cal.Gov't Code§87406.3;2 Cal.Code Regs.§18746.3. 62 2 Cal.Code Regs.§18229. 91 Cal.Gov't Code§87407. 63 2 Cal.Code Regs.§18702.4(b)(1)(C). 92 Cal.Gov't Code§53227(a). 64 See 2 Cal.Code Regs.§18702.1(c).See also Hamilton v.Town 93 Cal.Gov't Code§53227.2(a). of Los Gatos,213 Cal.App.3d 1050,261 Cal.Rptr.888(1989). 94 Cal.Educ.Code§35107(b)(1). 65 See Cal.Gov't Code§36810(for general law cities).See also 95 Cal.Educ.Code§72103(b)(1). Cal.Civ.Code§12;Cal.Civ.Proc.Code§15. 96 Cal.Gov't Code§53227(a);Cal.Educ.Code§§35107(b)(1), 66 See Cal.Gov't Code§25005;Cal.Educ.Code§§35164(K-12 72103(b)(1). districts),72000(d)(3)(community college districts). 97 Bd.of Retirement of Kern County Employees'Retirement 67 2 Cal.Code Regs.§18702.5(b)(3),Farwell v.Town of Los Assn v.Bellino,126 Cal.App.4th 781,24 Cal.Rptr.3d 384 Gatos,222 Cal.App.3d 711,271 Cal.Rptr.825(1990) (2005). (subsequently ordered not published).See also 62 Cal.Op. 98 See generally Cal.Gov't Code§§91000-14. Att'y Gen.698,700(1979). 68 Id. 99 See Cal.Gov't Code§1770(h)(providing a vacancy occurs upon conviction of a felony or of any offense involving a 69 See generally Cal.Gov't Code§§91000-14. violation of official duties). 70 See Cal.Gov't Code§1770(h)(providing a vacancy occurs 100 See Cal.Gov't Code§91002(providing no person convicted upon conviction of a felony or of any offense involving a of a misdemeanor under the Political Reform Act shall be violation of official duties). a candidate for any elective office or act as a lobbyist for a 71 See Cal.Gov't Code§91002(providing no person convicted period of four years following the date of the conviction). of a misdemeanor under the Political Reform Act shall be 101 Cal.Gov't Code§91000(b). a candidate for any elective office or act as a lobbyist for a 102 See Cal.Penal Code§19(providing misdemeanors are period of four years following the date of the conviction). punishable by imprisonment in county jail up to six months,a 72 Cal.Gov't Code§91000(b). fine not exceeding$1,000,or both). 73 See Cal.Penal Code§19(providing misdemeanors are punishable by imprisonment in county jail up to six months,a fine not exceeding$1,000,or both). 74 See Cal.Gov't Code§91003(b). 75 California Attorney General,Conflict of Interest 55(2010), available at http://ag.ca.gov/publications/coi.pdf. 76 Id. 77 See Cal.Gov't Code§1091.5. 78 See Cal.Gov't Code§1091(a),(c). 79 See Cal.Gov't Code§1091(6). 80 See Cal.Gov't.Code§1091. Understanding the Basics of Public Service Ethics La374 25 26 375 stitute for Local Government I www.ca-ilg.org CHAPTER 3 : Perk Issues, IncludingCompensation, Use of Public Resources and Gift Laws Available from Institute for Local Government website at: This chapter:www.ca-ilg.org//perks Whole publication (Understanding the Basics of Public Service Ethics Laws):www.ca-ilg.org/EthicsLaws 27 376 Chapter 3: Perk Issues Chapter 3: Perk Issues, Including Compensation, Use of Public Resources and Gift Laws CONTENTS CompensationIssues.....................................................................................................................29 BasicRules...............................................................................................................................29 Counties..............................................................................................................................29 SpecialDistricts....................................................................................................................29 Cities...................................................................................................................................30 CharterCities.............................................................................................................30 GeneralLaw Cities.....................................................................................................30 Local Agency Chief Executives and Staff...............................................................................31 Special Issue: Speaking and Other Fees...............................................................................32 Basic No-Honoraria Rule.......................................................................................................32 Exceptions to No-Honoraria Rules.........................................................................................32 Penalties...................................................................................................................................33 Reimbursement of Expenses..........................................................................................................34 BasicRules...............................................................................................................................34 When May Expenses Be Reimbursed? ..................................................................................34 Process Requirements.........................................................................................................34 Amounts..............................................................................................................................34 Penalties...................................................................................................................................35 California Law Penalties.......................................................................................................35 FederalLaw Penalties ..........................................................................................................35 Restrictions on Use of Public Resources .........................................................................................36 BasicRules...............................................................................................................................36 No Personal or Political Use of Public Resources...................................................................36 No Use of Public Resources on Ballot Measure Related Activities...........................................36 Prohibition against Mass Mailings at Public Expense ............................................................36 Penalties...................................................................................................................................37 Giftsto Public Officials....................................................................................................................38 BasicRules...............................................................................................................................38 What to Do About Unwanted Gifts? .....................................................................................40 Penalties...................................................................................................................................41 California Law Penalties.......................................................................................................41 FederalLaw Penalties ..........................................................................................................41 I ncome Tax violations...........................................................................................................42 Useof Campaign Funds..................................................................................................................43 BasicRule ................................................................................................................................43 Penalties...................................................................................................................................43 Endnotes and Additional Information............................................................................................44 28 377 stitute for Local Government I www.ca-ilg.org Chapter 3: Perk Issues Compensation Issues Basic Rules Typically there is a legal limit on public official Counties compensation levels,either in state or local statutes. Public officials, particularly elected ones, may only County boards of receive such compensation that the law allows.'Any supervisors set their extra compensation must be refunded.2 Moreover,as salaries;supervisors' protectors of the public purse,courts generally take a salaries are subject to strict approach to public official compensation limits.3 referendum.' Special Districts California law sets the salaries for members of special district governing boards—typically in the law that WITH MONEY COMES EDUCATION creates the particular kind of special district.'Salaries If a local agency provides any type of compensation or usually are tied to the days a public official spends payment of expenses to members of a legislative body, then all of the members must have two hours of ethics participating in meetings or other district-related work, training within one year of entering public service.Subse- with a maximum number Of compensated days per quent trainings must occur every two years after that.4 month.The chart below contains examples. For more information on these requirements,see www. ca-ilg.org/AB1234compliance. Special Type of District Per Day Maximum Maximums Park and recreation districts $100 $500 per month' $100 per day for board meetings or Sanitation districts service provided at the request of Not to exceed six days per month' the board Harbor districts No per day salary $600 per month' Utility districts $100 per day $600 per month10 Irrigation Irrigation districts of less than Not to exceed six days of compensated 500,000 acres $100 per day service" Irrigation districts of less than 500,000 $100 per day OR$600 per month An annual cap of$15,00012 acres that produce or deliver electricity Salary to be fixed by ordinance and subject Irrigation districts of 500,000 acres No per day salary to referendum but cannot exceed the salary or more of a member of the Imperial County Board of Supervisors13 Understanding the Basics of Public Service Ethics La378 29 Chapter 3: Perk Issues Water Districts Type of District Per Day Maximum Maximums Water district directors $100 per day Not to exceed 10 days of compensated service (as defined) per month California water district officials $100 per day No maximum's (as defined) County water district directors $100 per day Not to exceed 6 days of compensated service (as defined) per month Contra Costa County Water District $100 per day Not to exceed 10 days of compensated service directors(as defined) per month 17 Municipal water district $100 per day Not to exceed 6 days of compensated service directors(as defined) per month What kinds of meetings and days of work may a General Law Cities district official be compensated for?Typically: Broadly speaking in general law cities,city council A meeting of any"legislative body"as defined by members' baseline compensation is set by California's open meeting laws; ordinance,such compensation is tied to parameters A meeting of an advisory body;and established in California law in the 198Os.23 The starting points are:24 Conference attendance or educational activities, including ethics training.19 General Law Cities Agencies may compensate city size by Population Baseline PerMonth Salary officials for attendance at Up to and Including 35,000 $300 other events as specified in Over 35,000 Up to and a written policy adopted in a Including 50,000 $400 public meeting.20 Note that Over 50,000 Up to and $500 these parameters don't apply Including 75,000 when the district does not pay Over 75,000 Up to and $600 Including 150,000 compensation based on number of days doing district over 150,000 00 to and business,but instead pays a more salary-like form of Including 250,000 $soo compensation.21 Over 250,000 Population $1,000 Cities General law cities may increase these amounts by Charter Cities up to five percent per year from the date of any prior adjustments.25 When a city council votes to increase For charter cities,elected official compensation is a compensation,the increase takes effect in the matter of local concern which may be addressed in future—not during the deciding council members' the city's charter22 current term S.26 Elected mayors may receive additional compensation.21 30 37Institute for Local Government I www.ca-ilg.org Chapter 3: Perk Issues These amounts compensate city council members for Beginning in 2012,California law prohibits local their service on the council, including any commission, agencies35 from approving contracts for chief committee, board,authority,or similar body on which executives or department heads(as defined 31)that the city council member serves, unless California law contain automatic renewal clauses that provide for authorizes additional compensation.21 If California law automatic compensation adjustments that exceed the provides for additional council member compensation cost of living.37 for serving on a commission—but that statute Contracts must also comply with California law does not specify an amount of compensation—the restrictions on the amount of severance an agency compensation is$150 per month.29 pays if it becomes necessary to terminate a contract with a local agency employee.31 Copies of severance agreements are public documents.39 DISCLOSURE REQUIREMENTS WHEN If an employee is subsequently convicted of abuse of MAKING COMPENSATED APPOINTMENTS position (as defined 40),the employee must reimburse From time to time,a decision-making body will be 1)any severance payments paid 41 and 2)any paid asked to appoint one or more of its members to certain positions.If that appointment involves additional leave provided pending charges.42 compensation,the agency must make a special disclosure.30 FOR MORE INFORMATION The disclosure is on a form provided by the Fair _ On executive compensation Political Practices Commission and must be posted on - the agency's website.31 issues,see www.ca-ilg.org/post/ executive-compensation-issues. For specific questions, please contact agency counsel. Local Agency Chief Executives and Staff Governing bodies must approve all contracts with local agency chief executives(as defined) in open session,which must be reflected in the minutes.32 In addition,salaries,salary schedules and fringe benefits must be approved at a regular(as opposed to a special) meeting of the body.33 Copies of contracts are public documents must be made available on request34(although some agencies elect to post these documents on their websites in the spirit of transparency). Understanding the Basics of Public Service Ethics La3 sso 31 Chapter 3: Perk Issues Special Issue: Speaking and Other Fees >> Payments Deposited in Local Agency General Basic No-Honoraria Rule Fund.An honorarium given to an official that is unused may be deposited into the local agency's California law also regulates � general fund within 30 days of receipt,so long as the degree to which public it is not claimed by an official as a deduction from officials may receive payments income for income tax purposes."for giving a speech,writing an article or attending a public or >> Income from Bona Fide Occupation.An official private conference,convention, may be paid income for personal services if meeting,social event,meal or the services are provided in connection with a similar gathering.43 No local bona fide business,trade,or profession (such as elected office holder,candidate teaching, practicing law, medicine, insurance, real for local elected office,or designated employee estate,banking,or building contracting)and the may accept such payments—which are known as services are routinely provided in connection with honoraria.44 The notion is such communications are the trade, business or profession.52 This exception part of a public official's service. does not apply, however,when the main activity of the business or profession is making speeches.53 If one receives an honorarium from someone who is unaware of the rules,there is a 30-day time limit for >> Some Gestures in Connection with a Speech returning it.45 or Panel Discussion.An official may accept certain gestures when the official gives a speech, Exceptions to No-Honoraria Rules participates in a panel or seminar,or provides Some gestures in connection with speaking or writing a similar service.These are exempt from the engagements are allowed.These include: honoraria ban and are not considered "gifts" by the Political Reform Act.These include free admission Payments Voluntarily Made to Charitable to the event, refreshments and similar non-cash and Similar Organizations.An organization nominal benefits received at the event, necessary may recognize a public official's speech,article lodging and subsistence provided directly in or meeting attendance by making a direct connection with the speech, panel,seminar,or contribution to a bona fide charitable,educational, service,and transportation (within California)to the civic, religious,or similar tax-exempt nonprofit event.14 organization.46 A public official may not make such donations a condition for the speech,article or meeting attendance.47 In addition,the official may not claim the donation as a deduction for income tax purposes.48 Nor may the donation have a reasonably foreseeable financial effect on the public official or on any member of the official's immediate family.49 The official may not be identified to the nonprofit organization in connection with the donation.50 32 38Institute for Local Government www.ca-ilg.org Chapter 3: Perk Issues Penalties The restrictions against accepting fees are part of the Political Reform Act.Violations of these laws are punishable by a variety of civil,criminal and administrative penalties, depending on the severity of the violation and the degree of intent to violate the law that enforcement entities are able to demonstrate.55 These penalties can include any or all of the following: Immediate loss of office;16 Prohibition from seeking elected office in the futures' Fines of up to$10,000 or more depending on the circumstances,,"and Jail time of up to six months.59 40 FOR MORE INFORMATION On penalties for ethics law violations,see www.ca-ilg.org—/ consequences. Understanding the Basics of Public Service Ethics La3 ss2 33 Chapter 3: Perk Issues Reimbursement of Expenses Basic Rules Those requesting reimbursement must show their California law contains certain requirements and request falls within the agency's parameters for restrictions on local agency practices relating to use of public resources.67 Many local agencies reimbursing local elected and appointed officials' have also adopted similar policies for employee reimbursements. expenses. All expense reimbursement requests and supporting When May Expenses Be Reimbursed? documentation are public records.68 The core test on whether an expense is reimbursable is Amounts whether the expense was Local reimbursement policies may specify what "actual and necessary" in constitutes reasonable rates for travel, meals, lodging the official's performance and other expenses. For decision-making body of official duties.60 Local reimbursements, if a local policy does not specify agencies must adopt reimbursement rates,then the reimbursable rates expense reimbursement policies that specify which default to Internal Revenue Service guidelines.69 kinds of activities are reimbursable for decision- If a public official wants to seek reimbursement for making body members.61 Many also have policies that levels of expenses not otherwise authorized under govern employee reimbursements.Such policies are the agency's reimbursement policy,then the official an opportunity for a local agency to make findings may seek prior approval for such reimbursement from on why reimbursable activities are necessary to the the governing body(before incurring the expense).70 individual's performance of their duties.62 Officials who spend more than allowed under their Of course, if one has already received a cash advance agencies' reimbursement policies have the option of or other form of payment for an expense,one may simply paying the extra costs themselves.71 not request reimbursement. Double-charging a public California law requirements relating to expense agency for expenses misappropriates public resources reimbursement policies and restrictions on and is a crime.61 reimbursement rates only apply to"reimbursements Process Requirements of members of a legislative body."72 Although charter cities may not be subject to this requirement given For decision-making body member reimbursements, their home rule authority,many charter cities have local agencies must: such policies as a matter of good practice.73 >> Use expense report forms;64 Again,many local agencies have adopted policies that Identify a"reasonable time"within which these govern reimbursements for staff as well as elected forms must be submitted;65 and and appointed officials.Another option is to have Require that all expenses be documented with the policies address expenses other than those are, receipts.66 strictly speaking,"reimbursed"(for example,those expenses that are paid by the agency in the first instance). 34 38Institute for Local Government I www.ca-ilg.org Chapter 3: Perk Issues FOR MORE INFORMATION Federal Law Penalties See the following resources: Federal prosecutors have been known to treat the receipt of illegitimate expense reimbursements or advances as income to the official. Because the official has not typically reported these payments as such » "Buying Meals for Others on the Public's Dime," on the official's tax returns,the official then becomes available at www.ca-ilg.org/dime subject to an action for income tax evasion. » "Expense Reimbursement Frequently Asked The Internal Revenue Code is notoriously complex Questions,"available at and its penalty sections are no exception.The general www.ca-ilg.org/ExpenseReimbursementFAQs penalty for willful income tax evasion is a fine of up » Sample reimbursement policies available at to$100,000 and up to five years in prison,or both. www.ca-ilg.org/SampleReimbursementPolicies Those convicted are also responsible for paying the For specific questions, please contact the Fair Political costs of prosecution.80 Failure to report information Practices Commission or agency counsel. to the tax authorities is punishable by fines of up to $25,000 and/or a year in federal prison,plus the costs Penalties of prosecution." California Law Penalties If the postal service was used in any way,such use Penalties for misuse of public can also become the basis for a charge of mail fraud.82 resources or falsifying expense Mail fraud is punishable by up to five years in federal reports in violation of expense reporting policies prison per violation and/or a fine of the greater of include: 1)twice the gain to the violator or 2)$250,000 per violation.83 » Loss of reimbursement privileges 14 If the program has any degree of federal funding, » Restitution to the local agency;" if federal criminal laws against corruption and » Civil penalties of up to$1,000 per day and three embezzlement will also apply84 times the value of the resource used;76 and » Criminal prosecution and a lifetime bar from public FOR MORE INFORMATION office." On penalties for ethics law violations, At some point, personal use of public resources see www.ca-ilg.org/consequences. becomes embezzlement—a form of theft.78 Embezzlement may constitute"willful misconduct" which warrants the removal from office of a public officer,or it may be prosecuted as a felony violation. A public officer convicted of embezzlement is guilty of a felony punishable by imprisonment; in addition, that person is ineligible thereafter to hold public office within California.79 Understanding the Basics of Public Service Ethics La384 35 Chapter 3: Perk Issues Restrictions on Use of Public Resources Basic Rules No Use of Public Resources on Ballot No Personal or Political Measure Related Activities Use of Public Resources Local agencies may take positions on ballot measures, Under California law, ''►� '° as long as they do so in an open meeting where all using public resources for points of view can be heard.90 They generally may not, either personal or political however, use public resources to engage in campaign- purposes is illegal.85"Public resources"include such type advocacy with respect to the agency's position. things as: Materials that urge voters to either"vote yes"or"vote no"on a measure constitute campaign advocacy,91 >> Money(for example,charges made on an agency so are materials whose style,tone and timing credit card or account),," indicate that their purpose is advocacy as opposed to Staff time; informational.92 >> Equipment(for example, machinery,vehicles, technology,tools,telephones,furniture and FOR MORE INFORMATION computers);and On ballot measure activities,see >> Supplies(for example, items one would otherwise www.ca-ilg.org/ballot-measure- purchase at office supply or hardware stores). activities. "Use"means the use of public resources that is substantial enough to result in a gain in advantage Prohibition Against Mass Mailings at Public for the user and a loss to the local agency that can Expense be estimated as a monetary value.17 Using a public The law reflects the notion it is unfair agency vehicle for personal errands is an example, for public officials to use public as is using office equipment and supplies for one's resources to enhance their visibility political campaign, business or family purposes(for and name identification with potential example,the office photocopier). voters. For this reason,California law forbids sending mass mailings There are very narrow exceptions for"incidental and at public expense.93 The Fair Political Practices minimal"use of resources.The purpose of these Commission has defined"mass mailings"as sending exceptions appears to be more to prevent traps for more than 200 substantially similar pieces that contain the unwary;they do not constitute an affirmative the name,office or pictures of elected officials except authorization for personal use of public resources. as part of a standard letterhead using the official's An"occasional telephone call"is an example of an name and office.94 incidental and minimal use of public resources." In addition,subsequent reimbursement or payment for resources misused is not a defense.89 36 385 stitute for Local Government I www.ca-ilg.org Chapter 3: Perk Issues The rules on what constitute a mass mailing are quite Additionally,the Fair Political Practices Commission complex. Make sure to consult with agency counsel may impose an administrative fine of up to$5,000 per whenever sending out materials that contain elected violation.100 officials' names,offices or pictures(for example, Misuse of public resources is also punishable under newsletters).Also,there are some exceptions to the laws prohibiting misappropriation of public resources prohibition (for example, legal notices and directories). and embezzlement.109 FOR MORE INFORMATION Both intentional and negligent violations of the law are punishable.102 On mass mailings,see the following 40 resources: FOR MORE INFORMATION On penalties for ethics law "Career-Saving Tips on Mass Mailings,"available at violations,see www.ca-ilg.org/massmailing www.ca-ilg.org/consequences. The Fair Political Practices Commission fact sheet on prohibited mass mailings available at www.fppc. ca.gov/index.php?id=54#fact For specific questions, please contact the Fair Political ETHICS CODES VERSUS LOCAL CONFLICT Practices Commission or agency counsel. OF INTEREST CODES California's Political Reform Act requires local Penalties agencies to adopt local conflict of interest codes.10 These codes supplement California law,by specifying Public officials face both criminal which positions in the agency are subject to which and civil penalties for using ethics laws. public resources for personal JV For more information,see"About Local Conflict of or political benefit.91 Interest Codes"(see http://www.ca-ilg.or /Ig ocal- conflict-of-interest-codes)and the Fair Political Criminal penalties Include: Practices Commissions materials on adopting local conflict of interest codes(see www.fppcTca.goWindex. Two-to four-years in state prison;96 and php?id=228). Permanent disqualification from public office.91 Civil penalties include fines of up to: $1,000 for each day the violation occurs; Three times the value of the resource used;98 and Possible reimbursement for the costs of any litigation initiated by private individuals, including reasonable attorney's fees.99 Understanding the Basics of Public Service Ethics La386 3 Chapter 3: Perk Issues Gifts to Public Officials Basic Rules More detail on these rules is available at www.ca-ilg. Receiving gifts can present a org/GiftCenter.These rules apply to elected officials, host of issues for public officials. top level managers and others who are covered in Of course,making demands the agency's local conflict of interest code or make for gifts in exchange for official governmental decisions.109 action violates California and Putting aside what the rules allow, public officials are federal laws prohibiting bribery well-advised to look beyond what the law allows in and extortion.103 Such demands any situation involving a nice gesture.This includes also deprive the public of its right to honest services considering how residents will view a public official's from public officials.104 actions. Gifts that are not requested present other issues. California law puts an annual limit on the aggregate value of gifts a public official can receive from a single COMPLIANCE STRATEGY: source,gifts over a certain amount also must be Questions for Public Officials to Ask About reported on a public official's Statement of Economic Nice Gestures Interests. One way to analyze one's likely obligations under California's gift rules is to ask: Generally speaking,California public officials must: 1. Did I or my family receive something of value? Report gifts worth $50 or more on their Statement 2. What's its value? of Economic Interests.105 Gifts from a single source 3. Who gave it to me? must be added up over the course of a calendar 4. Did I do something in exchange for what I received? year.An official's reporting obligation is triggered when the combined value of a series of gestures 5. What kind of gift is it and do special rules apply as from a single gift-giver reaches$50 or more. a result? 6. Which of the permitted courses of action do I want Not receive gifts that exceed $440(2013-14)from to take with respect to the gift? a single source per calendar year.106This limit can Explanations of each of questions are available at be exceeded by accepting a single large gesture or www.ca-ilg.org/GiftCenter. a series of gestures over the course of a calendar year from the same gift-giver that total more than $440(2013-14).107 Unless one of the exceptions applies,"' (see chart on Having accepted gifts may keep a public official page 39),a public official receives a gift for purposes from participating in the decision-making process. of California's gift rules any time the official receives If a public official accepts gestures with a value anything that: of more than $440(2013-14)from a single gift- > Hasa monetary value giver in the twelve months preceding the official's > Provides the official with a personal benefit involvement in a decision affecting that gift giver, >> For which the official doesn't pay full value."' the official may have to disqualify himself from participating in that decision-making process.101 38 387 stitute for Local Government www.ca-ilg.org Chapter 3: Perk Issues - • •ns/Gifts Subject to Special Rules Certain kinds of gestures either are exempt from California's gift rules or are subject to special treatment.More information on each of these is available at www.ca-ilg.org/GiftCenter. Special Rules Relating to Who Receives the Gift ✓Trading off who pays for meals or activities("reciprocal (Question 1 at www.ca-ilg.org/GiftCenter) exchanges")134 ✓Gifts to family members"' ✓Employee gift exchanges131 ✓Barter transactions 136 Gifts Subject to S ecial Valuation Rules � P v/Presentations,event attendance and articles written 137 (Question 2 at www.ca-ilg.org/GiftCenter) ✓Air transportation 116 ✓Ceremonial functions138 ✓Nonprofit or political fundraiser tickets 117 ✓Employment-related gestures 139 ✓Other tickets and passes"' ✓Business gestures140 ✓Invitation only events'19 ✓Gestures in connection with volunteer nonprofit service 141 ✓Prizes in bona fide competitions142 Special Rules for Certain Sources of Gifts (Question 3 at www.ca-ilg.org/GiftCenter) Additional Special Rules Based on Type of Gift ✓Someone who is an intermediary for another 120 (Question 5 at www.ca-ilg.org/GiftCenter) ✓Group gifts121 ✓Home hospitality143 ✓Family gifts122 ✓Informational material'" ✓Gestures received in the context of certain relationships: ✓inheritances 141 • Bona fide dating relationships123 ✓Leave credits146 • Existing personal or business relationship124 ✓Disaster relief payments147 • Long term relationships121 ✓Personalized plaques or trophies 148 ✓Acts of neigh borliness126 ✓Wedding gifts149 ✓Agency gifts127 of Travel"O and free transportation from transportation • Gifts from public agencies to agency officialS128 companies"' • Agency provided tickets or passes129 ✓Tickets/free admission S112 • Agency raffles or gift exchanges130 ✓Payments to worthy causes made at an official's request (behested payments)153 Gestures that Are Part of An Exchange ✓Wedding guest benefits'14 (Question 4 at www.ca-ilgorg/GiftCenter) ✓ Bereavement offerings' Gifts paid for(reimbursed)in full"'or in part'12 ✓ ✓ Acts of compassion' Gifts exchanged on occasions like birthdays or holidays 133 ✓ Understanding the Basics of Public Service Ethics La3 ss$ 3c Chapter 3: Perk Issues Gifts can be: What to Do About Unwanted Gifts? » Tangible or intangible Some officials have a no-gifts polic » Real property or personal property may be concerned about the publi perceptions associated with » Goods or services13 receiving gifts from certain Under some circumstances,gifts that an official's sources(or certain kinds of gifts). family receives are considered gifts to the official for They may also just not want the gift. purposes of California's gift rules.114 Under such circumstances,an official has the following options: TRAVEL PASSES FROM TRANSPORTATION » Decline the gift in the first place or return the gift COMPANIES unused to the gift giver within 30 days of receiving When an official is offered free it.161 Documenting one's actions(for example,with a or discounted transportation,thethanks-but-no-thanks note),can be helpful. rVF"" official is well-advised to ask,"who is offering the travel?"Different » If the item is a pass or ticket,simply not use the rules may apply to gifts of travel pass or ticket and not let anyone else do S0.164 depending on who is the source of the gift. » Donate the gift, unused,within thirty days of receipt If the gift of travel is from a transportation carrier,a to a 501(c)(3)tax-exempt nonprofit organization public official should be especially careful.California or to a government agency,without claiming a tax law forbids elected and appointed public officials from accepting free passes or discounted travel from deduction for the donation. (Note the donation transportation companies.151 must be made within 30 days of the gift's receipt This prohibition applies to any kind of travel— and the gift must be unused. Note too that for gifts personal,business or on behalf of one's public agency t0 nonprofits,the nonprofit must be one which —to any location,near or far.The rule applies both neither the official nor a family member holds a to elected and appointed public officers but not to position.)161 employees."' » Reimburse the donor for the fair market value of However,sometimes the rule doesn't apply.The chief within 30 days of receiving it.166 Keeping the gift exception is when the free or discounted travel is ft available to the general public and is given for reasons documentation (for example,a cancelled check)of unrelated to the person's status as a public official.159 the reimbursement is a good practice. For example,the prohibition against accepting free travel from transportation companies did not apply For gifts that are over the annual limit or would put the when: official over the annual limit for that gift giver,some ✓The elected official received a first-class airline officials also"buy down"the value of a gift(or the upgrade because he was going on his honeymoon most recent gift in a series)to keep the value of the and the upgrade was given to all honeymooners.160 gift(s)from that gift giver below the annual limit. ✓An elected official received free airline travel The official then reports the fact that they received because he was the spouse of a flight attendant.161 gift(s),what the gift(s)was/were,and the source of the ✓An elected official exchanged frequent flier miles for gift(s) on their Statement of Economic Interests.Again, an airline ticket because the earning of frequent-flier miles is done without regard to the person's status when paying down the gift, it is best to do so by Check as an officeholder.162 and then make sure the donor cashes the check. 40 38Institute for Local Government I www.ca-ilg.org Chapter 3: Perk Issues FOR MORE INFORMATION services fraud refers to actions that constitute bribery and kickback schemes.1' In one instance,federal On gift laws,see the following authorities prosecuted a city treasurer whose decisions resources: to award contracts were motivated in part by gifts.176 » The Institute Gift Resource Center, see www.ca-ilg. The maximum penalty for being guilty of wire and/or org/GiftCenter mail fraud includes a jail term of up to 20 years and a $250,000 fine."' » The Fair Political Practices Commission fact sheet for local officials on gifts, honoraria,travel and Extortion loans,available at www.fppc.ca.gov/factsheets/ A demand for gifts or other benefits in exchange for LocalGiftFactSheet2013.pdf official action could also constitute extortion. Extortion For specific questions, please contact the Fair Political occurs when someone obtains money through Practices Commission or agency counsel. threat of harm or under color of official right.171 To be chargeable as a federal offense,the act must Penalties affect interstate commerce.The maximum penalty for extortion under federal law is 20 years in prison California Law Penalties and a $250,000 fine.99 A person convicted of a felony These gift limit and reporting involving extortion is forever disqualified from seeking requirements are part of the Political Reform Act. elected office in California.180 Violations of these laws are punishable by a variety of civil,criminal and administrative penalties,depending Income Tax Violations on the severity of the violation and the degree of intent Income tax problems arise when officials receive money to violate the law that enforcement entities are able to and other kinds of valuable items and don't report them demonstrate.167 on their income tax forms. Prosecutors don't need to These penalties can include any or all of the following: show that the money or gifts were received in exchange for improper purposes—only that they were not » Immediate loss of office;161 reported on the official's income tax form. » Prohibition from seeking elected office in the future,169 » Fines of up to$10,000 or more depending on the Income tax evasion carries with it a possible five-year circumstances,170 and prison term and a fine of up to$100,000.181 In addition, prosecutors can require the defendant to pay for the » Jail time of up to six months.171 costs of prosecution (in addition to one's own costs Federal Law Penalties associated with defending against the prosecution).112 Honest Services Fraud The sometimes-related crime of filing a false tax return Under federal wire and mail fraud laws,the public has is punishable by a maximum three-year prison term the right to the"honest services"of public off icials.172 and a fine of up to$100,000(along with the costs of The basic concept is that a public official owes a prosecution).113 duty of loyalty and honesty to the public—similar to a trustee or fiduciary.113 That duty is violated when a FOR MORE INFORMATION public official makes a decision that is not motivated On penalties for ethics law violations, by his or her constituents' interests but instead by see www.ca-ilg.org/consequences. his or her personal interests.114 Specifically, honest Understanding the Basics of Public Service Ethics Lawsso 41 Chapter 3: Perk Issues Use of Campaign Funds Basic Rule Penalties In general,money raised to support a person's These restrictions are part election to office may only be used for political, of the Political Reform legislative,or governmental purposes. It's not okay to Act.Violations of these spend these monies is a way that confers a personal laws are punishable by a benefit on the candidate.114 Any expenditure that variety of civil, criminal and administrative penalties, confers a substantial personal benefit on an individual depending on the severity of the violation and the must be directly related to a political, legislative, degree of intent to violate the law that enforcement or governmental purpose.18' For example, using entities are able to demonstrate.186 campaign funds to repair your car so you can travel to These penalties can include any or all of the following: and from campaign events confers a personal benefit and is not a proper expenditure of those funds. » Immediate loss of office;18' » Prohibition from seeking elected office in the FOR MORE INFORMATION future;188 AOn the permissible use of » Fines of up to$10,000 or more depending on the campaign funds,see Campaign circumstances;189 and Disclosure Manual 2:Information » Jail time of up to six months.110 for Local Candidates,Superior Court Judges, Their Controlled Committees and FOR MORE INFORMATION Primarily Formed Committees for Local Candidates, On penalties for ethics law violations, 2007,available online at www.fppc.ca.gov. see www.ca-ilg.org/consequences. For specific questions, please contact the Fair Political 40 Practices Commission or agency counsel. 42 39Institute for Local Government I www.ca-ilg.org Chapter 3: Perk Issues Endnotes and Additional Information Note:Sections in the California Code are accessible at http://Ieginfo.legislature.ca.gov/. Fair Political Practices Commission regulations are accessible at www.fppc.ca.gov/index.php?id=52.A source for case law information is www.findlaw.com/cacases/(requires registration) 1 For example,the salary of council members of general law district directors in districts of less than 500,000 acres cities is controlled by Government Code section 36516(a), receive 1)compensation of up to$100 per day,not to exceed which permits a city council to establish by ordinance a six days,2)irrigation district directors in districts that produce salary up to a ceiling determined by the city's population. or deliver electricity receive one of the following:up to$100 The electorate may approve a higher salary.Cal.Gov't Code per day or$600 per month,with an annual cap of$15,000); §36516(b).A council member appointed or elected to fill a Cal.Water Code§22840(irrigation districts of 500,000 acres vacancy is compensated in the same amount as his or her or more receive a salary to be fixed by ordinance and subject predecessor.A directly-elected mayor may receive additional to referendum but cannot exceed the salary of a member compensation with the consent of the electorate or by of the Imperial County Board of Supervisors);Cal.Water ordinance of the city council.Cal.Gov't Code§36516.1. Code§71255(municipal water district directors receive 2 County of San Diego v.Milotz,46 Cal.2d 761,767,300 P.2d 1, compensation not to exceed$100 per day for each day's 4(1956)(action to recover fees from court reporter for faulty attendance at board meetings or each day's service rendered work). at the board's request but not to exceed six days service/ 3 Id. meetings per month). 4 Cal.Gov't Code§§53234-35.See www.ca-ilg.org_/ 19 Cal.Gov't Code§53232.1(a). ab1234compliance. 20 Cal.Gov't Code§53232.1(b). 5 Cal.Const.art.XI,§1(b). 21 Cal.Gov't Code§53232.1(c). 6 See,e.g.,Cal.Pub.Res.Code§5784.15(a),(b)(park and 22 Cal.Const.art.XI,§5(b)(4). recreation district board members may be compensated 23 See Cal.Gov't Code§36516. a maximum of$100 per day for board meetings and$500 24 See Cal.Gov't Code§36516(a). per month);Cal.Health&Safety Code§6489(sanitation district board members may receive$100 per day for board 25 Id. meetings or service rendered at request of board,not to 26 See Cal.Gov't Code§36516.5(providing a change of exceed six days per month);Cal.Water Code§§20201,20202 compensation does not apply during the same term but (water district officials—as defined—may,by ordinance, allowing adjustment when one or more members serving provide for compensation of$100 per day for each day's staggered terms begin new terms). attendance at board meetings or each day's service rendered 27 See Cal.Gov't Code§36516.1. at the board's request;not to exceed 10 days service/ 28 See Cal.Gov't Code§36516(d). meetings per month);Cal.Water Code§§34740-41 (California water districts must adopt bylaws fixing compensation paid 29 Cal.Gov't Code§36516(c). to officers,but may not exceed$100 per day for attendance 30 2 Cal.Code Regs.§18705.5(c). at board meetings and for each day's service at the request 31 2 Cal.Code Regs.§18705.5(c)(3).The form is called"Form of the board);Cal.Water Code§30507(county water district 806."More information is available from the Fair Political directors receive compensation not to exceed$100 per day Practices Commission website:http://www.fppc.ca.gov/ for each day's attendance at board meetings or each day's index.phhp?id=635. service rendered at the board's request but not to exceed 32 Cal.Gov't Code§53262(a)("All contracts of employment six days service/meetings per month);Cal.Water Code§ with a superintendent,deputy superintendent,assistant 30507.1 (Contra Costa County Water District directors receive superintendent,associate superintendent,community compensation not to exceed$100 per day for each day's college president,community college vice president, attendance at board meetings or each day's service rendered community college deputy vice president,general manager, at the board's request but not to exceed 10 days service/ city manager,county administrator,or other similar chief meetings per month);Cal.Water Code§21166(irrigation administrative officer or chief executive officer of a local agency shall be ratified in an open session of the governing body which shall be reflected in the governing body's minutes."). Understanding the Basics of Public Service Ethics Lawss2 43 Chapter 3: Perk Issues 33 Cal.Gov't Code§54956(b)("Notwithstanding any other law,a 40 Cal.Gov't Code§53243.4("For purposes of this article, legislative body shall not call a special meeting regarding the abuse of office or position'means either of the following: salaries,salary schedules,or compensation paid in the form (a) An abuse of public authority,including,but not limited of fringe benefits,of a local agency executive,as defined in to,waste,fraud,and violation of the law under color of subdivision(d)of Section 3511.1.However,this subdivision authority. does not apply to a local agency calling a special meeting to discuss the local agency's budget."). (b) A crime against public justice,including,but not limited to,a crime described in Title 7(commencing 34 Cal.Gov't Code§53262(b)("Copies of any contracts of with Section 92)of Part 1 of the Penal Code."). employment,as well as copies of the settlement agreements, 41 Cal.Gov't Code§§53243.2("On or after January 1,2012,any shall be available to the public upon request"). contract of employment between an employee and a local 35 Cal.Gov't Code§3511.1(c)(defining local agency as"a agency employer shall include a provision which provides county,city,whether general law or chartered,city and that,regardless of the term of the contract,if the contract is count)6 town,school district,municipal corporation,district, terminated,any cash settlement related to the termination political subdivision,or any board,commission,or agency that an employee may receive from the local agency shall thereof,or other local public agency"). be fully reimbursed to the local agency if the employee is 36 Cal.Gov't Code§3511.1(d)(defining"local agency executive" convicted of a crime involving an abuse of his or her office as"any person employed by a local agency who is not or position."),53243.3("On or after January 1,2012,if a local subject to the Meyers-Milias-Brown Act(Chapter 10 agency provides,in the absence of a contractual obligation, (commencing with Section 3500)),Chapter 5(commencing for any of the payments described in this article,then the with Section 45100)of Part 25 of Division 3 of Title 2 of the employee or officer receiving any payments provided for Education Code,or Chapter 4(commencing with Section those purposes shall fully reimburse the local agency that 88000)of Part 51 of Division 7 of Title 3 of the Education provided those payments in the event that the employee or Code,and who meets either of the following requirements: officer is convicted of a crime involving the abuse of his or (1)The person is the chief executive officer of the her office or position."). local agency. 42 Cal.Gov't Code§§53243("On or after January 1,2012,any (2)The person is the head of a department of a contract executed or renewed between a local agency and local agency. an officer or employee of a local agency that provides paid 37 Cal.Gov't Code§3511.2("On or after January 1,2012,any leave salary offered by the local agency to the officer or contract executed or renewed between a local agency and employee pending an investigation shall require that any a local agency executive shall not provide for the following: salary provided for that purpose be fully reimbursed if the officer or employee is convicted of a crime involving an (a)An automatic renewal of a contract that provides for an abuse of his or her office or position."),53243.3("On or after automatic increase in the level of compensation that exceeds January 1,2012,if a local agency provides,in the absence of a cost-of-living adjustment."). a contractual obligation,for any of the payments described 38 Cal.Gov't Code§3511.2("On or after January 1,2012,any in this article,then the employee or officer receiving any contract executed or renewed between a local agency and a payments provided for those purposes shall fully reimburse local agency executive shall not provide for the following:... the local agency that provided those payments in the event (b)A maximum cash settlement that exceeds the amounts that the employee or officer is convicted of a crime involving determined pursuant to Article 3.5(commencing with Section the abuse of his or her office or position."). 53260)of Chapter 2 of Part 1 of Division 2 of Title 5.")See 43 See Cal.Gov't Code§89501 (definition of honorarium). also Cal.Gov't Code§53260(a)("All contracts of employment between an employee and a local agency employer shall 44 See Cal.Gov't Code§89502(general prohibition). include a provision which provides that regardless of the 45 See Cal.Gov't Code§89501(b)(2). term of the contract,if the contract is terminated,the 46 See 2 Cal.Code Regs.§18932.5(a)(1)(direct charitable maximum cash settlement that an employee may receive contributions excluded from honorarium definition). shall be an amount equal to the monthly salary of the 47 See 2 Cal.Code Regs.§18932.5(a)(2). employee multiplied by the number of months left on the unexpired term of the contract.However,if the unexpired 48 See 2 Cal.Code Regs.§18932.5(a)(3). term of the contract is greater than 18 months,the maximum 49 See 2 Cal.Code Regs.§18932.5(a)(4). cash settlement shall be an amount equal to the monthly 50 See 2 Cal.Code Regs.§18932.5(a)(5). salary of the employee multiplied by 18.") 51 See Cal.Gov't Code§89501(b)(2). 39 Cal.Gov't Code§53262(b)("Copies of any contracts of employment,as well as copies of the settlement agreements, 52 See Cal.Gov't Code§89501(6)(1). shall be available to the public upon request."). 53 Id. 44 39Institute for Local Government www.ca-ilg.org Chapter 3: Perk Issues 54 2 Cal.Code Regs.§§18932.4(e),18950.3(under review by 79 Cal.Penal Code§514.See also Cal.Elect.Code§20(making FPPC). those convicted of embezzlement or theft of public money 55 See generally Cal.Gov't Code§§91000-14. ineligible for public office). 56 See Cal.Gov't Code§1770(h)(providing a vacancy occurs 80 See 26 U.S.C.§7201. upon conviction of a felony or of any offense involving a 81 See 26 U.S.C.§7203. violation of official duties). 82 See generally 18 U.S.C.§§1341-46. 57 See Cal.Gov't Code§91002(providing no person convicted 83 See generally 18 U.S.C.§3571(b),(d). of a misdemeanor under the Political Reform Act shall be 84 See,for example,18 U.S.C.§§641 (crime of embezzlement a candidate for any elective office or act as a lobbyist for a against the United States),648(misuse of public funds). period of four years following the date of the conviction). 58 Cal.Gov't Code§91000(b). 85 See Cal.Penal Code§424;Cal.Gov't Code§8314. 59 See Cal.Penal Code§19(providing misdemeanors are 86 See People v.Bradley,208 Cal.App.4th 64(2012)(upholding punishable by imprisonment in county jail up to six months,a the conviction of city manager and council member of fine not exceeding$1,000,or both). misappropriating public funds—Penal Code section 424— when they made personal charges on city credit card). 60 Cal.Gov't Code§53232.2. 87 Cal.Gov't Code§8314(b)(4). 61 Cal.Gov't Code§53232.2(b). 88 Cal.Gov't Code§8314(b)(1). 62 65 Cal.Op.Att'y Gen.516,522(1982)(citing Collins v.Riley, 24 Cal.2d 912,918,152 P.2d 169(1944)and determining that 89 See People v.Bradley,208 Cal.App.4th at 81-82(holding the expenses of a handicapped council member met this restitution was not a defense because misappropriation standard);61 Cal.Op.Att'y Gen.303(1978)(citing Gibson occurs as soon as credit card was use for personal purpose v.Sacramento County,37 Cal.App.523,174 P.935(1918)); or unused cash advances were not promptly returned;this Madden v.Riley,53 Cal.App.2d 814,823,128 Ped 602,607 is particularly the case when restitution is prompted by a (1942)(propriety of conference expenses for networking criminal investigation). purposes). 90 Vargas v.City of Salinas,46 Cal.4th 1,35-37,92 Cal.Rptr. 63 See People v.Bradley,208 Cal.App.4th 64(2012),reh'g 3d 286,(2009),see also Choice-in-Education League v.Los denied(2012),rev.denied(2012)(upholding the conviction of Angeles Unified School Dist.,17 Cal.App.4th 415,429-431, city manager and council member of misappropriating public 21 Cal.Rptr 3d 303(1993)(school district did not illegally funds—Penal Code section 424--when they made charges on expend public funds by holding and broadcasting school city credit card for expenses that they had also received cash board meeting at which the board took position opposing advances for). a statewide ballot initiative).League of Women Voters of California v.Countywide Criminal Justice Coordination 64 Cal.Gov't Code§53232.3(a). Committee,203 Cal.App.3d 529,560,250 Cal.Rptr 3d 161 65 Cal.Gov't Code§53232.3(c). (1988).See also Cal.Elect.Code§9282. 66 Id. 91 Cal.Gov't Code§54964(b)(3). 67 Cal.Gov't Code§53232.3(b). 92 Vargas,46 Cal.4th at 40,citing Stanson v Mott,17 Cal.3d 68 Cal.Gov't Code§53232.3(e). 206,130 Cal.Rptr 697(1976). 69 Cal.Gov't Code§53232.2(c). 93 See Cal.Gov't Code§89001. 70 Cal.Gov't Code§53232.2(f). 94 See 2 Cal.Code Regs.§18901. 71 Cal.Gov't Code§53232.2(g). 95 See Cal.Penal Code§424;Cal.Gov't Code§8314. 72 Cal.Gov't Code§53232.2(b). 96 Cal.Penal Code§424 73 Cal.Const.art.XI,§5.County of Sonoma v.Comm'n on State 97 See Cal.Penal Code§424.See also Cal.Elect.Code§20 Mandates,84 Cal.App.4th 1264,101 Cal.Rptr.784(2000). (making those convicted of embezzlement or theft of public 74 See Cal.Gov't Code§53232.4. money ineligible for public office). 75 Id. 98 Cal.Gov't Code§8314(c)(1). 76 See Cal.Gov't Code§8314. 99 Cal.Gov't Code§91012. 77 See Cal.Penal Code§424.See also Cal.Elect.Code§20 100 Cal.Gov't Code§83116. (making those convicted of embezzlement or theft of public money ineligible for public office). 78 Cal.Penal Code§504. Understanding the Basics of Public Service Ethics Lawss4 45 Chapter 3: Perk Issues 101 Cal.Penal Code§424("(a)Each officer of this state,or of any 111 See generally 2 Cal.Code Regs.§18942(list of exceptions in county,city,town,or district of this state,and every other the regulations). person charged with the receipt,safekeeping,transfer,or 112 See generally 2 Cal.Code Regs.§18940(a). disbursement of public moneys,who either: 113 2 Cal.Code Regs.§18940(a). 1. Without authority of law,appropriates the same,or 114 See generally 2 Cal.Code Regs.§18943. any portion thereof,to his or her own use,or to the use of another;or, 115 2 Cal.Code Regs.§18943. 2. Loans the same or any portion thereof,makes any 116 2 Cal.Code Regs.§18946.5. profit out of,or uses the same for any purpose not 117 2 Cal.Code Regs.§18946.4. authorized by law.. 118 2 Cal.Code Regs.§18946.1. 102 Cal.Gov't Code§8314(c)(1). 119 2 Cal.Code Regs.§18946.2. 103 Cal.Penal Code§§68(a),518;18 U.S.C.§§201,872-880. 120 Cal.Gov't Code§§87210,87313;2 Cal.Code Regs.§18945(b) 104 Under federal wire and mail fraud laws,the public has the (the source of the payment is the source of the gift). right to the"honest services"of public officials.18 U.S.C.§§ 121 2 Cal.Code Regs.§18945.2. 1341 (mail fraud),1343(wire fraud),1346(honest services). The basic concept is that a public official owes a duty of 122 2 Cal.Code Regs.§18942(a)(3). loyalty and honesty to the public-similar to a trustee or 123 2 Cal.Code Regs.§18942(a)(17)(A). fiduciary.U.S.v.Sawyer,239 F.3d 31,39(1st Cir.2001)(finding 124 2 Cal.Code Regs.§18942(a)(18). sufficient evidence of guilt apart from proof of violation of 125 2 Cal.Code Regs.§18942(a)(17)(C). state law).That duty is violated when a public official makes a decision that is not motivated by his or her constituents' 126 2 Cal.Code Regs.§18942(a)(16). interests but instead by his or her personal interests.U.S. 127 2 Cal.Code Regs.§18944. v.Lopez-Lukis,102 F.3d 1164,1169(11th Cir.1997)(noting 128 2 Cal.Code Regs.§18944.3. that effort to improperly control composition of decision making body constituted an effort to deprive public of honest 129 2 Cal.Code Regs.§18944.1. services);McNally v.U.S.,483 U.S.350 at 362-63(Justice 130 2 Cal.Code Regs.§18944.2. Stevens,dissenting). 131 See Cal.Gov't Code§82028(a). 105 Cal.Gov't Code§87207(a)(1).For more information,see 132 2 Cal.Code Regs.§18941(c)(3). http://www.ca-ilg.org/StatementofEconomicinterests. 133 2 Cal.Code Regs.§18942(a)(8)(A). 106 Cal.Gov't Code§89503;2 Cal.Code Regs.§18940.2(the 134 2 Cal.Code Regs.§18942(a)(8)(B). FPPC adjusts the limit biennially). 135 2 Cal.Code Regs.§18944.2(d)(does not apply to tickets or 107 If the limit is exceeded one has several options,any of which passes that come from someone outside the agency). must be exercised within 30 days of receiving the gift.One may return the gift unused to the donor,reimburse the donor 136 See Cal.Gov't Code§82028(a). for all or a portion of the value of the gift or donate the gift, 137 Cal.Gov't Code§§89501,89502. without claiming a tax deduction,to a 501(c)(3)charitable 138 2 Cal.Code Regs.§§18942(a)(12),18942.3. organization or government agency.2 Cal.Code Regs. 139 See Cal.Gov't Code§§82030,82030.5,87207. §18941(c). 108 Cal.Gov't Code§87103(e);2 Cal.Code Regs.§18703.4. 140 See Cal.Gov't Code§§82005,87207,87209. This is because public officials may not make,participate in 141 See Cal.Gov't Code§82028(a);Institute for Local making,or influence governmental decisions which affect Government,Commitment to Nonprofit Causes and Public their personal financial interests.Cal.Gov't Code§87100.The Service:Some Issues to Ponder,at 7(2008).Available at law makes a judgment that one is financially self-interested www.ca-ilg.org/document/commitment-nonprofit-causes- in a decision when one accepts gifts exceeding the$440 and-public-service-some-issues-ponder. (2013-14)gift limit from someone affected by that decision. 142 2 Cal.Code Regs.§18942(a)(13). Cal.Gov't Code§89503;2 Cal.Code Regs.§18940.2(a). 143 2 Cal.Code Regs.§18942(a)(7). 109 2 Cal.Code Regs.§§18940(d),18730(b)(8.1)(A)(application 144 2 Cal.Code Regs.§§18942(a)(1),18942.1. of the gift disclosure rules).See also 2 Cal.Code Regs.§§ 145 2 Cal.Code Regs.§18942(a)(5). 18701(a),18730(b)(9)(A)(application of the disqualification/ conflict of interest rules).See also 2 Cal.Code Regs.§ 146 2 Cal.Code Regs.§18942(a)(9). 18940.1(b)(definition of"official"). 147 2 Cal.Code Regs.§18942(a)(10). 110 Cal.Gov't Code§87300. 46 395 stitute for Local Government I www.ca-ilg.org Chapter 3: Perk Issues 148 2 Cal.Code Regs.§18942(a)(6). 174 U.S.v.Lopez-Lukis,102 F.3d 1164,1169(11th Cir.1997)(noting 149 2 Cal.Code Regs.§§18946.3,18942(b)(2). that effort to improperly control composition of decision- 150 2 Cal.Code Regs.§§18950-18950.4(under review by FPPC). making body constituted an effort to deprive public of honest services);McNally v.U.S.,483 U.S.350 at 362-63(Justice 151 See Cal.Const.art.XII,§7('A transportation company may Stevens,dissenting). not grant free passes or discounts to anyone holding an 175 See Skilling v.U.S., 130 S.Ct.2896,2931(2010)(holding that office in this state..."). in order to avoid unconstitutional vagueness,18 USC§1346, 152 2 Cal.Code Regs.§§18946.4,18946.1,18946.2,18942(a)(12), defining"scheme or artifice to defraud,"only criminalizes 18942.1. bribes and kick-back schemes). 153 See Cal.Gov't Code§82015(note the behested payment 176 U.S.v.Kemp,379 FSupp.2d 690,697-98(E.D.Penn.2005). reporting requirement also applies to candidates).For more 177 18 U.S.C.§§1341 ("...shall be fined under this title or information,see www.ca-iIg.org/BehestedPayments. imprisoned not more than 20 years,or both.").1343("shall be 154 2 Cal.Code Regs.§18942(a)(14). fined under this title or imprisoned not more than 20 years, 155 2 Cal.Code Regs.§18942(a)(15). or both.").See generally 18 U.S.C.§3571(b),(d). 156 2 Cal.Code Regs.§18942(a)(17)(B). 178 18 U.S.C.§1951. 157 See Cal.Const.art.XII,§7('A transportation company may 179 18 U.S.C.§1951(a).See generally 18 U.S.C.§3571(b). not grant free passes or discounts to anyone holding an 180 See Cal.Elect.Code§20(making those convicted of a felony office in this state..."). involving bribery,embezzlement,extortion or theft of public 158 See 3 Cal.Op.Att'y Gen.318(1944). money ineligible for public office). 159 74 Cal.Op.Att'y Gen.26(1991). 181 26 U.S.C.§7201. 160 74 Cal.Op.Att'y Gen.26(1991). 182 Id. 161 67 Cal.Op.Att'y Gen.81 (1984). 183 26 U.S.C.§7206(1). 162 80 Cal.Op.Att'y Gen.146(1997). 184 See Cal.Gov't Code§§89510-22.Campaign funds include 163 2 Cal.Code Regs.§18941(c)(2). any contributions,cash,cash equivalents,and other assets 164 2 Cal.Code Regs.§18946.1 (b)(3)('A pass or ticket has no received or possessed"by a campaign committee.Cal.Gov'tCode§89511(6)(1). reportable value unless it is ultimately used or transferred to another person."). 185 Cal.Gov't Code§89512(an expenditure of campaign funds 165 2 Cal.Code Regs.§18941(c)(2). must be reasonably related to a legislative or governmental purpose,unless the expenditure confers a substantial 166 2 Cal.Code Regs.§18941(c)(3). personal benefit,in which case such expenditures must be 167 See generally Cal.Gov't Code§§91000-14. directly related to a political,legislative or governmental 168 See Cal.Gov't Code§1770(h)(providing a vacancy occurs purpose)."Substantial personal benefit"means a campaign upon conviction of a felony or of any offense involving a expenditure which results in a direct personal benefit with a violation of official duties). value of more than$200.Cal.Gov't Code§89511(b)(3). 169 See Cal.Gov't Code§91002(providing no person convicted 186 See generally Cal.Gov't Code§§91000-14. of a misdemeanor under the Political Reform Act shall be 187 See Cal.Gov't Code§1770(h)(providing a vacancy occurs a candidate for any elective office or act as a lobbyist for a upon conviction of a felony or of any offense involving a period of four years following the date of the conviction). violation of official duties). 170 Cal.Gov't Code§91000(b). 188 See Cal.Gov't Code§91002(providing no person convicted 171 See Cal.Penal Code§19(providing misdemeanors are of a misdemeanor under the Political Reform Act shall be punishable by imprisonment in county jail up to six months,a a candidate for any elective office or act as a lobbyist for a fine not exceeding$1,000,or both). period of four years following the date of the conviction). 172 18 U.S.C.§§1341 (mail fraud),1343(wire fraud),1346(honest 189 Cal.Gov't Code§91000(b). services). 190 See Cal.Penal Code§19(providing misdemeanors are 173 U.S.v.Sawyer,239 F3d 31,39(1st Cir.2001)(finding sufficient punishable by imprisonment in county jail up to six months,a evidence of guilt apart from proof of violation of state law). fine not exceeding$1,000,or both). Understanding the Basics of Public Service Ethics Lawss6 47 Chapter 3: Perk Issues 48 397 stitute for Local Government I www.ca-ilg.org CHAPTER 4 : Transparency Laws Available from Institute for Local Government website at: This chapter:www.ca-ilg.org/TransparencyLaws Whole publication (Understanding the Basics of Public Service Ethics Laws):www.ca-ilg.org/EthicsLaws 398 Chapter 4:Transparency Laws Chapter 4: Transparency Laws CONTENTS Economic Interest Disclosure.......................................................................................................... 51 BasicRules...............................................................................................................................51 Penalties...................................................................................................................................52 Campaign Contribution Disclosure................................................................................................. 53 BasicRules...............................................................................................................................53 Penalties...................................................................................................................................54 Charitable Fundraising Disclosure................................................................................................... 55 BasicRules...............................................................................................................................55 Penalties...................................................................................................................................56 Penalties for Extortion under State and Federal Law..............................................................56 HonestServices Fraud..........................................................................................................56 The Public's Right to Access Records.............................................................................................. 57 BasicRules...............................................................................................................................57 Penalties...................................................................................................................................58 Conducting the Public's Business in Public .................................................................................... 59 BasicRules...............................................................................................................................59 Penalties...................................................................................................................................62 Nullification of Decision........................................................................................................62 CriminalSanctions...............................................................................................................62 Other Consequences ...........................................................................................................62 The Public's Right to Participate in Meetings...................................................................................63 BasicRules...............................................................................................................................63 Posting and Following the Agenda........................................................................................63 The Public's Right to Material Not Included in the Agenda Packet...........................................63 SpecialIssues..........................................................................................................................63 Taping or Recording of Meetings IS Allowed .........................................................................63 Sign-In Must Be voluntary ....................................................................................................63 The Public's Right to be Heard .............................................................................................64 Penalties .................................................................................................................................65 Nullification of Decision........................................................................................................65 CriminalSanctions...............................................................................................................65 OtherMeasures...................................................................................................................65 Potential Civil Rights violations.............................................................................................65 Endnotes and Additional Information.............................................................................................66 50 39Institute for Local Government I www.ca-ilg.org Chapter 4:Transparency Laws Economic Interest Disclosure Basic Rules The following kinds of economic interests must be There is an adage about one's life being an open disclosed if they meet certain minimum thresholds: book. Nowhere is this truer than for public officials » Sources of income; and their finances.The bottom line is when people >> Interests in real property; join the ranks of public servants,the public gets >> Investments; to learn a great deal about their financial lives.The voters created these disclosure requirements when >> Business positions;and they approved the Political Reform Act in 1974.'As > Sources of gifts. a result,those entering public service sacrifice a See table on page 52. degree of privacy. The disclosure requirements apply to nearly every local elected official and department head. Members of commissions,boards,committees and other ETHICS CODES VERSUS LOCAL CONFLICT local agency bodies with significant decision- OF INTEREST CODES makingauthority are also subject to the disclosure California's Political Reform Act requires local y agencies to adopt local conflict of interest codes.5 requirements.An agency may also require persons These codes supplement California law,by in staff positions to disclose their economic interests specifying which positions in the agency are subject under the agency's local conflict of interest code.Such to which ethics laws. employees are known as"designated employees."' For more information,see"About Local Conflict of Interest Codes"(available at www.ca-ilg.org/local- This disclosure is made on a form called a conflict-of-interest-codes)and the Fair Political "Statement of Economic Interests."It may also be Practices Commissions materials on adopting local referred to by the acronym"SEI"or its number conflict of interest codes(see www.fppc.ca.gov/index. "Form 700."A web-based version of the form php?id=228). is available from the Fair Political Practices Commission website:www.fppc.ca.gov. Local agencies may adopt electronic filing procedures with oversight from the Fair Political Practices Commission.'One's local agency usually provides paper copies of the form as well. This form is filed upon assuming office,on an annual basis while in office,and upon leaving office.4 Local rules may impose more stringent requirements. Understanding the Basics of Public Service Ethics La 0 5 0 Chapter 4:Transparency Laws Typesof • • • - • » Sources of Income.$500 or more in income from one » Business Employment or Management. If the official source(including any income received from a business, serves as a director,officer or partner,trustee,employee nonprofit organization,government agency,or individual) or otherwise serves in a management position in a must be disclosed."Sources of income"include a company,an economic interest is created.15 Note this community property interest in a spouse or domestic does not apply to a member of the board of a nonprofit partner's6 income,but not separate property income.7 entity. Additionally,if someone promises an official$500 or more » Related Businesses.The official must disclose an interest twelve months prior to the decision,that person or entity in a business that is the parent,subsidiary or is otherwise promising the money is a source of income.8 related to a business in which the official: » Personal Finances. An official has an economic interest » Hasa director indirect investment worth$2000 or in the official's expenses,income,assets or liabilities more;or and those of the official's immediate family(spouse or domestic partner9 and dependent children).10 » Is a director,officer,partner,trustee,employee,or » Real Property.An interest in real property where the manager.16 interest is worth$2,000 or more in real property must » Business-Owned Property.A direct or indirect ownership be disclosed.The interest may be held by the official,the interest in a business entity or trust that owns real official's spouse or domestic partner11 (even as separate property is another disclosable interest." property)and children or anyone acting on their behalf. » Loans.Another kind of potentially disclosable interest is Real property interests can also be created through receiving a loan from someone(including someone who leaseholds,options and security or mortgage interests in guarantees a loan),unless the loan is from a commercial property.12 institution issued on the same terms as available to » Investments.Another disclosable interest is created anyone in the public.18 when the official,the official's spouse or domestic » Gifts.Gifts from a single source must be added up over partner13(even as separate property),or dependent the course of a calendar year.An official's reporting children or anyone acting on their behalf has created an obligation is triggered when the combined value of a investment worth$2,000 or more in a business entity, series of gestures from a single gift-giver reaches$50 or even if the official does not receive income from the more.19 For more discussion of the gift issue,please see business.14 chapter 3,pages 38-41,and www.ca-ilg.org/GiftCeriter. Penalties » Fines of up to$10,000 or more depending on the Economic interest disclosure circumstances;23 and requirements are part of » Jail time of up to six months.24 California's Political Reform In addition to the above penalties,failure to file a Act. Failure to report or incomplete reporting Statement of Economic Interests on time will result in are punishable by a variety of civil,criminal and late fees of$10 per day, up to a maximum of$100.25 administrative penalties depending on the severity of the violation and the degree of intent to violate the law FOR MORE INFORMATION that enforcement entities are able to demonstrate.20 On penalties for ethics law violations, These penalties can include any or all of the following: see www.ca-ilg.org/consequences. » Immediate loss of officeI 21 » Prohibition from seeking elected office in the future 22 52 40Institute for Local Government I www.ca-ilg.org Chapter 4:Transparency Laws Campaign Contribution Disclosure Basic Rules California has an extensive FOR MORE INFORMATION framework for transparency On campaign contribution disclosure, with respect to campaign - see the following resources: contributions. The basic theory is that the public has a right to know who gives » The Fair Political Practices Commission has money and other forms extensive information to guide candidates and of support to candidates for public office;another is ballot measure committees on these requirements. that the prospect of public disclosure will discourage Visit the FPPC website at www.fppc.ca.gov or call improper influences.17 the FPPC's toll-free number: 1-866-ASK-FPPC(1- 866-275-3772). These transparency requirements apply not only to candidates, but also to groups which organize >> The Political Reform Division of California Secretary of State issues identification numbers to campaigns to participate in the election process(known as "committees"under the Political Reform Act).21 and committees and provides technical assistance Transparency requirements also apply to those who to filers,and maintains disclosure reports for public make large contributions to influence elections.29 access.Visit the Secretary of State's website at Those who participate in campaigns to pass or www.sos.ca.gov/prd or call 916-653-6224. defeat ballot measures are also subject to these » For federal elections(Presidential, U.S.Senate, requirements.30 House of Representatives),consult the Federal Cities and counties may have additional campaign Election Commission at 1-800-424-9530 or on the finance disclosure laws for candidates for offices web at www.fec.gov. within their jurisdiction or committees focused on For specific questions, please contact the Fair Political local jurisdiction ballot measures.31 The Fair Political Practices Commission. Practices Commission requires that these local ordinances be filed with the commission.32 In addition,certain kinds of local officials face California law restrictions on campaign contributions from people with business pending before the agency. Chapter 5(pages 77-79) explains these restrictions. Chapter 3 explains the restrictions on how campaign funds may be spent(only for political,governmental and charitable purposes) (page 42). Understanding the Basics of Public Service Ethics La4wss2 53 Chapter 4:Transparency Laws Penalties Campaign contribution OTHER DISCLOSURE REQUIREMENTS disclosure requirements are The Public Records Act is the over-arching disclosure part of the Political Reform requirement in California.In addition,there are specific Act.Violations of the Act disclosure requirements that are useful to note and are discussed in more detail online and in other chapters of are punishable by a variety of civil,criminal and this guide: administrative penalties,depending on the severity of the violation and the degree of intent to violate the law » General gifts to public agencies must be disclosed on a special form and posted on the agency that enforcement entities are able to demonstrate.31 website.More information about this disclosure is These penalties can include any or all of the following: available at www.ca-ilg.or5z/GiftsQuestion3,and at http://www.fppc.ca.5zov/index.php?id=512. » Immediate loss of office;14 » Gifts of tickets to public agencies must be disclosed a special form and submitted to the » Prohibition from seeking elected office in the FPPC for posting on its website.More information future;35 about this disclosure is available at www.ca-ilg. » Fines of up to$10,000 or more depending on the org/GiftsQuestion3,and at http://www.fppc. ca.gov/index.php?id=524. circumstances;36cnd » Campaign contributions over$250 during the » Jail time of up to six month S.31 previous 12 months from any party or participant in a pending permit or license application as FOR MORE INFORMATION discussed on pages 77-78 of chapter 5. There are of course other specific disclosure/notice On penalties for ethics law requirements;these are just ones that tend to relate violations,see www.ca-ilg.org/ directly to public confidence/ethics issues. consequences. 54 403 stitute for Local Government I www.ca-ilg.org Chapter 4:Transparency Laws Charitable Fundraising Disclosure Basic Rules The official must make this report once a single A sometimes overlooked disclosure donor(whether an individual or an organization) has obligation relates to an official or given more than the$5,000 aggregate threshold candidate's charitable or other for a calendar year.Once the$5,000 threshold has fundraising activities.This obligation is been met,all payments the donor has made for the referred to as the"behested payments" calendar year must be disclosed within 30 days after: requirement.The theory is that the 1)the date the$5,000 threshold was reached,or 2)the public has a right to know who is contributing to an date the payment was made,whichever occurs later.40 elected official's favorite charities and other causes. Within 30 days of the donor reaching the$5,000 The disclosure requirement is triggered when: threshold,the elected official must file a report with the official's agency(typically the filing officer).The Fair A person or business donates$5,000 or more (in a Political Practices Commission's"Form 803- Behested calendar year); Payments Report"should be used to make this The donation is for a legislative,governmental or disclosure.41 charitable purpose;and What is a"legislative,governmental or charitable" The donation is made at the behest of the a public purpose?The law does not say, but charitable official.This means the official or candidate(or their causes typically involve 501(c)(3)organizations.A employee or agent): "governmental"cause might include such things as Requests or suggests the donation, fund-raising for a new county library.The reference to Controls or directs the donation;or a"legislative"cause apparently has its roots in a 1996 Fair Political Practices Commission opinion addressing Plays a cooperating,consulting,or coordinating a situation in which a state senator asked a private role with respect to the donation.31 party to pay for the airfare and expenses for a witness The report contains the following information: to come testify at a legislative hearing.42 The contributor's name and address; Of course,when a public servant conditions one's The amount or fair market value of the contribution; action on a matter on a contribution to a worthy cause it is criminal extortion under state and federal law.13 The date or dates on which the payments were See discussion in next section. made; The name and address of the contribution recipient; If goods or services were contributed,a description of those goods and services;and A description of the purpose or event for which the contribution was used.39 Understanding the Basics of Public Service Ethics Laws 4 55 Chapter 4:Transparency Laws FOR MORE INFORMATION Penalties for Extortion under State and On charitable fundraising,see the Federal Law following resources: California Law. If an official demands that a contribution to a charitable organization be made as a condition of making a favorable decision,the "Raising Funds for Favorite Causes,"available at demand could be prosecuted as extortion. Extortion www.ca-ilg.org/fundraising under color of official right is a misdemeanor under "Using Public Resources for Charitable Purposes," California law.45 Misdemeanors are punishable by up available at www.ca-ilg.org/charity to six months in county jail,a fine of up to$1,000 or "Commitment to Nonprofit Causes and Public both.41 Extortion can also be the basis for a grand jury Service:Some Issues to Ponder," to initiate removal-from-office proceedings for official available at www.ca-iIg.org/nonprofits misconduct.47 "Understanding the'Behested Payments' Issue," Federal Law.To be chargeable as a federal offense, available at www.ca-iIg.org/BehestedPayments the act must affect interstate commerce.The maximum penalty for extortion under federal law is 20 For specific questions,please contact the Fair Political years in prison and a$250,000 fine."Practices Commission or agency counsel. Honest Services Fraud Penalties Under federal wire and mail fraud laws,the public has These disclosure requirements the right to the"honest services"of public officials.49 are part of the Political Reform The basic concept is that a public official owes a Act.violations of the Act duty of loyalty and honesty to the public—similar to are punishable by a variety of civil,criminal and a trustee or fiduciary.50 That duty is violated when a administrative penalties,depending on the severity of public official makes a decision that is not motivated the violation and the degree of intent to violate the law by his or her constituents' interests but instead by his that enforcement entities are able to demonstrate.44 or her personal interests." In one instance,federal authorities prosecuted a city treasurer whose decisions to award contracts were motivated in part by whether the firm contributed to political and charitable causes favored by the treasure r12 The maximum penalty for being guilty of wire and/or mail fraud includes a jail term of up to 20 years and a $250,000 fine.13 FOR MORE INFORMATION On penalties for ethics law violations, see www.ca-ilg.org/consequences. 56 405 stitute for Local Government www.ca-ilg.org Chapter 4:Transparency Laws The Public's Right to Access Records Basic Rules » The"deliberative process"exception,which There are two sets of laws and exempts preliminary drafts, notes,or other regulations that govern public information relating to deliberative processes records in California. One set not ordinarily retained in the agency's course of governs the public's right to access 96M business.The public agency also must be able to public records54 and another set demonstrate the public's interest in nondisclosure governs which records an agency must retain and for outweighs the public's interest in disclosure.61 how long." » The"personal privacy"exception,which exempts personnel files, medical records or other such The public has the right to see materials that are files the disclosure of which would constitute an created as part of the conduct of the people's invasion of personal privacy.62 business.16 These materials include any writing that was prepared,owned, used,or retained by a public Despite these exceptions,the safe assumption agency.s'They include documents,computer data, is virtually all materials involved in one's public e-mails,facsimiles,and photographs." service—including e-mails—are records subject to disclosure. A document is presumed to be a disclosable record unless a specific exception applies.59 A few of the exceptions worth noting are: The"pending litigation"exception,which exempts RECORDS RETENTION documents that arere ared in support of ongoing Local agencies generally must retain public records for p p pp g g a minimum of two years.61 Most local agencies adopt litigation (otherwise opposing counsel could record retention schedules as part of their records obtain all documents containing the agency's legal management system.These define which records strategy just by asking for them).60 must be retained.The Secretary of State provides local agencies with record management guidelines.64 A safe assumption is virtually all materials involved in one's public service are public records subject to public disclosure. Understanding the Basics of Public Service Ethics Laws 51 Chapter 4:Transparency Laws FOR MORE INFORMATION Penalties Anyone can sue the agency Ai On Public Records,see the to enforce his or her right to following resources: access public records subject to disclosure.61 If the agency loses, it must pay costs and attorney's fees.66 The People's Business:A Guide to the California Public Records Act,2008.Available at the FOR MORE INFORMATION League of California Cities website at www. cacities.org/PRAGuide or in hardcopy form from On penalties for ethics law http://www.cacities.org//publications or by calling violations,see www.ca-ilg.org/ (916)658-8257 consequences. The People's Business August 2011 Supplement, 2011.Available at the League of California Cities website at www.cacities.org or in hardcopy form from www.cacities.org//publications or by calling (916)658-8257 The People's Business:A Chart of Frequently Requested Information and Records,2011. Available at the League of California Cities website at www.cacities.oror in hardcopy form from www.cacities.org//publications or by calling (916)658-8257 Summary of the California Public Records Act, 2004.Available on the California Attorney General's website at or go to http://ag.ca.gov/publications/ summary public records act.pdf For specific questions, please contact agency counsel. 58 407 stitute for Local Government www.ca-ilg.org Chapter 4:Transparency Laws Conducting the Public's Business in Public Basic Rules The following are some key things to keep in mind: The underlying philosophy of California's open » Meetings.A"meeting" is any situation involving a government laws is that public agency processes majority of a decision-making body in which agency should be as transparent as business is transacted or discussed.72 possible.Such transparency Is » Committees and Advisory Bodies.Advisory vital in promoting public trust groups or committees formally created by a in government. governing body are subject to the open meeting California's open meeting 4�j laws.Standing committees are subject to the open IawS67 provide legal minimums meeting laws if they have a continuing subject- for local agency transparency in decision-making.68 matter jurisdiction or have a meeting schedule fixed Although community college boards are subject by formal action of the governing body.13 to less detailed requirements than are other local » Serial Meetings.Avoid unintentionally creating a agencies,the following are some general guidelines. "serial"meeting—a series of communications that Check the endnotes for specific references to result in a majority of decision-makers conferring community college district law.69 on an issue. For example, if two members of a five- Elected and most appointed local agency decision- member decision-making body consult outside making bodies—which include many advisory of a public meeting(which is not in and of itself committees—must conduct their business in an a violation) about a matter of agency business open and public meeting to assure the local decision- and then one of those individuals consults with making process is observable by the public.70 Note a third member on the same issue,a majority of that the issue of what kinds of bodies are subject to the body has consulted on the same issue. Note open meeting requirements can involve careful legal the communication does not need to be in person analysis. For purposes of clarity,this guide uses the and can occur through a third party. For example, term"decision-making body"and"decision-makers," sending or forwarding e-mail can be sufficient to but the reader should be aware that this term is create a serial meeting,as can a staff member imprecise. polling decision-makers members in a way that reveals the members' positions to one another.74 A"meeting"is any situation involving a majority of a decision-making body discussing, hearing,deliberating However,separate communications with decision- or making a decision on any item that is within the makers to answer questions or provide information agency's jurisdiction. In other words,a majority of a are generally okay,as long as those communications do not communicate information about other decision-making body cannot hear a presentation or talk privately about an issue that is before the body, decision-makers' comments or position.71 The key no matter how the conversation occurs,whether thing to avoid is all communications that would result by telephone or e-mail,on a local blog,or at a local in a collective concurrence among decision-makers coffee shop.79 outside a public meeting.16 Understanding the Basics of Public Service Ethics La�wss$ 59 Chapter 4:Transparency Laws » Closed Sessions.The open meeting laws include provisions for closed discussions under very limited GOOD ETHICS IS GOOD POLITICS circumstances.82 For example,a governing body The media is highly vigilant in monitoring may generally meet in a closed session to receive advice from its legal counsel regarding pending compliance with open government or reasonably anticipated litigation.13 However, requirements—and quick to report on the reasons for holding the closed session must be noted on the agenda and different disclosure perceived violations. requirements apply to different types of closed sessions.14 See table on next page for a list of kinds of permissible closed sessions. » Posting and Following the Because of the complexity of the open meeting laws, Agenda. In general, public close consultation with an agency's legal advisor is officials may only discuss and necessary to ensure that requirements are observed. act on items included on the posted agenda for a meeting." However,decision-makers or FOR MORE INFORMATION staff may briefly respond to On open meeting laws,see the questions or statements during public comments following resources: that are unrelated to the agenda items.Officials can also request staff to look into a matter or place a » Open and Public IV.,A Guide to the Ralph M. Brown matter on the agenda for a subsequent meeting.78 Only in unexpected emergency circumstances or Act,2010.Available on the League of California Cities website at www.cacities.org/openandpublic situations when the decision-making body has or in hardcopy form by visiting www.cacities.or�/ determined by vote there is a need for immediate action can matters that are not on the agenda be publications or by calling(916)658-8257. discussed or acted upon.79 » The Brown Act:Open Meetings for Local Legislative » Permissible Gatherings. Not every gathering of Bodies,2003.Available on the California Attorney members of a decision-making body outside a General's website at http://oag.ca.gov/open- noticed meeting violates the law. For example, meetings an open meeting violation would not occur if a » "Closed Session Leaks: Discretion is the Better Part majority of a decision-making body attend the of Valor—and Ethics,"available at www.ca-ilg.org/ same educational conference or attend a meeting closed-session-leaks not organized by the local agency as long as » The use of technology and public meetings is certain requirements are met.80 Nor is attendance discussed in Meetings and Technology Finding the at a social or ceremonial event in and of itself Right Balance,2012.Available at www.ca-ilg.org/ a violation.81 The basic rule to keep in mind is a technology-and-meetings majority of members of a decision-making body For specific questions, please contact agency counsel. cannot discuss agency business(including at conferences or social events) except at an open and properly noticed meeting. 60 40Institute for Local Government I www.ca-ilg.org Chapter 4:Transparency Laws Typical • - • Session Local agency open meetings laws vary in terms of what kinds of closed sessions are allowed.The following list is illustrative. Consult with agency counsel concerning 1)whether a particular type of closed session is available and 2)under what circumstances. ✓Personnel.To consider the appointment,employment, in the case of minor students)and they do not request a evaluation of performance,discipline,or dismissal of a public public hearing.89 employee,or to hear complaints against an employee.85 V Grand Jury Proceedings.To allow testimony in private ✓Pending Litigation.To confer with or receive advice from an before a grand jury(either individually or collectively).90 agency's legal counsel with respect to existing,threatened or ✓License Applicants with Criminal Records.To allow an potential litigation.86 agency to determine whether a would-be licensee with ✓Real Estate Negotiations.To provide direction to the a criminal record is sufficiently rehabilitated to obtain the agency's negotiator on the price and terms under which the license.91 agency will purchase,sell,exchange or lease real property.87 ✓Public Security.To confer with designated law enforcement ✓Labor Negotiations.To meet with the agency's labor officials regarding threats to public facilities and services or negotiator regarding salaries and benefits and other matters the public's right to access those services and facilities.92 within the scope of labor negotiations.88 ✓Multi-jurisdictional Law Enforcement Agency.To discuss ✓Student Disciplinary Issues(for School Districts and ongoing criminal investigations.93 Community College Districts).To consider discipline of ✓Hospital Peer Review and Trade Secrets.To discuss issues a student if a public hearing would result in disclosure of 94 prohibited information,after notifying the student(or parents related to medical quality assurance or trade secrets. Just because a topic may be discussed in closed session does not mean that it always must be discussed in closed session. Sometimes there are additional legal reasons(for example privacy interests of employees)for discussing a matter during a permissible closed session.Other times such discussions are in the best interests of the public(for example,in determining negotiating positions for the agency).But other times,a majority of the decision-making body may decide that the public's interests are best served by not discussing a matter in closed session.A key thing to keep in mind is the decision on whether to discuss and disclose such information is a collective one,not an individual one. Understanding the Basics of Public Service Ethics Laws61 Chapter 4:Transparency Laws Penalties Nullification of Decision A NOTE ABOUT BLOGGING AND SOCIAL Many decisions that are not NETWORKING SITES made according to the open ZJK Decision-makers who are covered by open meeting laws meeting laws are voidable.95 After asking the agency must avoid situations in which the majority of a decision- making body uses the Internet to communicate with each to cure the violation,either the district attorney or any other about a matter of agency business.For this reason, interested person may sue to have the action declared decision-makers must take care when responding to each invalid.16 other's blogs,posts on social networking sites(such as Facebook)or e-mails. Criminal Sanctions The so-called"Web 2.0"creates opportunities for people Additionally, members of the governing body who to present information on websites in the form of a journal.These sites also allow visitors to make comments intentionally violate the open meeting laws may or ask questions(called"posts"or"postings")in response be guilty of a misdemeanor.97 The penalty for a to the others'comments. misdemeanor conviction is imprisonment in county jail For many decision-makers,blogging offers an effective for up to six months or a fine of up to$1,000 or both.98 way to share information with and communicate with constituents.For example,rather than having to field Other Consequences 10 e-mails asking the same question,an official can Either the district attorney or any interested person post a response on his or her blog and refer folks to the answer.Blogging can also a good way to keep the public may sue to remedy past,and prevent future,violations informed,especially as fewer people turn to traditional of the open meeting laws.99 Another remedy, under media for information. certain circumstances, is for a court to order all closed The open meeting laws do not stop one-way communica- sessions be tape-recorded.100 Costs and attorney's tions from members of legislative bodies to others.An fees may be awarded to those who successfully example would be a"frequently asked questions"piece challenge open meeting law violations.101 on an official's website that does not involve two-way communications among legislative body members. However,a majority of decision-makers participating in a FOR MORE INFORMATION blog or other web-based conversation could constitute a "meeting"within the meaning of the open meeting laws. On penalties for ethics law This means that the meeting must be held in accordance violations,see www.ca-ilg.org/ with all open meeting requirements,in an appropriate(dis- 40 consequences. ability accessible)location,with prior notice and an agenda. What is the theory underlying these restrictions? One is that the general public has a right to know that discussions and decision-making on a particular issue may occur.There is also an underlying concept of decision-makers facing their constituents as they deliberate on issues,as well as the obligation to hear the thoughts of the full range of constituents(not just those on the Internet)should constituents choose to offer them. For more information,see"Legal Issues Associated with Social Media"(available at www.ca-ilg_org/ Socia lMedia Legal issues)and"Taking the Bite Out of Blogs:Ethics in Cyberspace"(available at www.ca-ilg.org/ bIogs). 62 41 Institute for Local Government I www.ca-ilg.org Chapter 4:Transparency Laws The Public's Right to Participate in Meetings Basic Rules The Public's Right to Material Another element of open meeting Not Included in the Agenda Packet laws is the public's right to address Any documents or other materials relating to an the governing body at any open agenda item for an open session of a regular meeting meeting.An elected official's role of a governing body distributed less than 72 hours is to both hear and evaluate these before the meeting must be made available to the communications.There are a public.This must occur when the materials are number of basic rules that govern distributed to the members of the governing body at a this right.Again,check the endnotes for specific public office or location that the agency designates for references to requirements for community college this purpose. Local agencies must list the address of boards.102 this office or location on the agendas for all meetings of their governing body. Materials distributed after Posting and Following the Agenda the agenda packet is prepared may be posted on an The open meeting laws require the public be informed agency website."' of the time of and the issues to be addressed at Any documents distributed during a public meeting each meeting.103 The agenda must be posted at least must also be made available to the public.This must 72 hours in advance of a meeting and written in a occur at the meeting if the document is prepared by way that informs people of what business will be the agency,or after the meeting of the document is discussed.104 prepared by others, like members of the public.112 Members of the public may request a copy of the agenda packet be mailed to them at the time the Special Issues agenda is posted or upon distribution to the governing Taping or Recording of Meetings Is Allowed body.105 Most local agencies must post these materials on their website, if the agency has one.106 Anyone attending a meeting may photograph or record it with an audio or video recorder unless the There are a few exceptions to the 72-hour requirement governing body makes a finding the noise, illumination, that relate to unexpected circumstances.101 These or obstruction of view will disrupt the meeting."' exceptions may allow an agency to take action or Any meeting tape or film made by the local agency discuss items not on the agenda.108 The agency may becomes a public record that must be made available also hold special meetings on 24-hour notice109 or on to the public for at least 30 days.'14 less than 24-hours notice if a true emergency exists.110 Sign-In Must Be Voluntary Members of the public cannot be required to register their name or fulfill any other condition for attendance at a meeting. If an attendance list is used, it must clearly state signing the list is voluntary."' Understanding the Basics of Public Service Ethics La4w12 63 Chapter 4:Transparency Laws The Public's Right to be Heard FOR MORE INFORMATION Generally,every agenda must provide an opportunity On public participation in meetings, for the public to address the governing body on see the following resources: any item of interest to the public within the body's jurisdiction.1' If the issue of concern is one pending before the governing body,the opportunity must be >> The Brown Act.Open Meetings for Local legislative provided before or during the body's consideration of Bodies,2003.Available on the California Attorney that issue."' General's website at http://oag.ca.gov/open- meetings Reasonable Time Limits >> Institute resources on civility,see www.ca-ilg.org/ May Be Imposed _ civility Local agencies may adopt i + > Resources on open meetings listed at page 60 reasonable regulations to ensure everyone has an I For specific questions, please contact agency counsel. opportunity to be heard # ' in an orderly manner"' When many people wish to comment on an issue,for example,an agency GOOD ETHICS IS GOOD POLITICS Community relations—and the public's views of an may give each speaker a time limit to ensure that official's responsiveness—are seriously undermined everyone has a chance to speak and the agency can when it appears an official is not listening to the input complete its business. However,every effort should being provided by the public.Even more damage be made to avoid artificially short time limits;this occurs to the public's perception if an official expresses disagreement with a position being advocated in a gives the public a reasonable chance to share their hostile or disrespectful way. views and demonstrates the agency's commitment to Even if one disagrees with the views being offered,the considering the public's perspectives. statesperson-like approach is to treat all speakers with the same respect one would like to be treated with if Handling Disruptions the roles were reversed.This is an application of the If an individual or group willfully interrupts a meeting value of respect. and order cannot be restored,the room may be cleared.1' Members of the media must be allowed to remain and only matters on the agenda can be discussed.120 The chair can encourage everyone to be civil and mutually respectful during the meeting and remove individuals that are disruptive.121 However,the chair cannot stop or remove speakers for expressing their opinions or their criticism of the governing body.122 Finally, note that other California laws may provide additional,subject-specific notice requirements. 64 413 Institute for Local Government www.ca-ilg.org Chapter 4:Transparency Laws Penalties Nullification of Decision VOTERS SUPPORT OPEN GOVERNMENT As a general matter,decisions In 2004,California voters made the concept of public that are not made according z4v agency transparency a state constitutional requirement as well as a statutory one.In so doing,the voters to the open meeting laws are voidable.123 After asking observed that"The people have the right of access to the agency to cure the violation,either the district information concerning the conduct of the people's attorney or any interested person may sue to have the business,and,therefore,the meetings of public bodies action declared invalid.124 and the writings of public officials and agencies shall be open to public scrutiny."132 Criminal Sanctions Additionally, members of the governing body who intentionally violate the open meeting laws may be guilty of a misdemeanor.125 The penalty for a misdemeanor conviction is imprisonment in county jail for up to six months or a fine of up to$1,000 or both.121 Other Measures Either the district attorney or any interested person may sue to remedy past and prevent future violations of the open meeting laws.127 Another remedy, under certain circumstances, is for a court to order that all closed sessions be tape-recorded.121 Costs and attorney's fees may be awarded to those who successfully challenge open meeting law violations.129 Potential Civil Rights Violations Regulations of public participation beyond those allowed by applicable statutory and constitutional law can give rise to liability under the civil rights laws,130 including liability for attorney's fees.131 FOR MORE INFORMATION On penalties for ethics law violations,see www.ca-ilg.org_/ consequences. Understanding the Basics of Public Service Ethics Laws65 Chapter 4:Transparency Laws Endnotes and Additional Information Note:Sections in the California Code are accessible at http://leginfo.legislature.ca.gov/. Fair Political Practices Commission regulations are accessible at www.fppc.ca.gov/index.php?id=52.A source for case law information is www.findlaw.com/cacases/(requires registration). 1 This is a requirement of the Political Reform Act.See 27 See Cal.Gov't Code§81002(a). generally Cal.Gov't Code§§87200-10. 28 See,e.g.,Cal.Gov't Code§§82013,84101. 2 Cal.Gov't Code§82019. 29 See Cal.Gov't Code§82013(c). 3 See Cal.Gov't Code§87500.2. 30 See Cal.Gov't Code§84202.3. 4 Cal.Gov't Code§§87202-04,87302.See 2 Cal.Code Regs.§ 31 See Cal.Gov't Code§§81013,81009.5. 18722. 32 Cal.Gov't Code§81009.5(a).Local disclosure requirements 5 Cal.Gov't Code§87300. can be found on the Fair Political Practices Commission's 6 2 Cal.Code Regs.§18229. website,available at http://fpi)c.ca.gov/index.i3hi)?id=9. 7 Cal.Gov't Code§§82030,87103(c);2 Cal.Code Regs.§ 33 See generally Cal.Gov't Code§§91000-14. 18703.3. 34 See Cal.Gov't Code§1770(h)(providing a vacancy occurs 8 Cal.Gov't Code§87103(c).See Larsen Advice Letter, No. upon conviction of a felony or of any offense involving a A-82-192(1982). violation of official duties). 9 2 Cal.Code Regs.§18229. 35 See Cal.Gov't Code§91002(providing no person convicted 10 2 Cal.Code Regs.§18703.5(referring to Cal.Gov't.Code§ of a misdemeanor under the Political Reform Act shall be 82029,defining"immediate family"). a candidate for any elective office or act as a lobbyist for a 11 2 Cal.Code Regs.§18229. period of four years following the date of the conviction). 12 See Cal.Gov't Code§§82033,87103(b). 36 Cal.Gov't Code§91000(b). 13 2 Cal.Code Regs.§18229. 37 See Cal.Penal Code§19(providing misdemeanors are punishable by imprisonment in county jail up to six months,a 14 Cal.Gov't Code§§82034,87103(a);2 Cal.Code Regs.§ fine not exceeding$1,000,or both). 18703.1. 38 See Cal.Gov't Code§82015(b)(2)(B)(iii);2 Cal.Code Regs.§ 15 Cal.Gov't Code§87103(d);2 Cal.Code Regs.§18703.1(b). 18215.3(a).See also Cal.Fair Political Practices Commission, 16 2 Cal.Code Regs.§18703.1(c). Limitations and Restrictions on Gifts,Honoraria,Travel and 17 Cal.Gov't Code§82033(pro rata interest,if own 10 percent Loans,at 6(2012),available at http://www.fppc.ca.gov/ interest or greater). facts heets/LocaIGiftFactSheet2013.pdf. 18 Cal.Gov't Code§82030(b)(8),(10). 39 See Cal.Gov't Code§82015(b)(2)(B)(iii).See also Fair Political Practices Commission,California Form 803—Behested 19 Cal.Gov't Code§87207(a)(1). Payments Report Instructions,available at http://fppc. 20 See generally Cal.Gov't Code§§91000-14. ca.gov/forms/803/Form8O3.i)df. 21 See Cal.Gov't Code§1770(h)(providing a vacancy occurs 40 Id. upon conviction of a felony or of any offense involving a 41 Fair Political Practices Commission,California Form 803- violation of official duties). Behested Payments Report,available at http://www.fppc. 22 See Cal.Gov't Code§91002(providing no person convicted ca.gov/forms/803/Form8O3.pdf of a misdemeanor under the Political Reform Act shall be 42 See SchmidtAdvice Letter, No.A-96-098(March 26,1996); a candidate for any elective office or act as a lobbyist for a S.Rules.Comm.,S.B.124 S.Floor Analysis,1997-1998 Sess., period of four years following the date of the conviction). (Cal.Sept.2,1997). 23 Cal.Gov't Code§91000(b). 43 Cal.Penal Code§518;In re Shepard,161 Cal.171 (1911).See 24 See Cal.Penal Code§19(providing misdemeanors are also 18 U.S.C.§666(a)(1)(B)(referring to"corruptly solicits punishable by imprisonment in county jail up to six months,a or demands for the benefit of any person,intending to be fine not exceeding$1,000,or both). influenced..."). 25 Cal.Gov't Code§91013. 44 See generally Cal.Gov't Code§§91000-14. 26 See generally Cal.Gov't Code§§84100-511. 45 Cal.Penal Code§521. 66 415 Institute for Local Government I www.ca-ilg.org Chapter 4:Transparency Laws 46 Cal.Penal Code§19. 67 See generally Cal.Gov't Code§§54950-63(for cities, 47 Cal.Gov't Code§§3060-3074. counties,special districts and school districts). 48 18 U.S.C.§1951(a).See generally 18 U.S.C.§3571(b). 68 See Cal.Gov't Code§54953.7. 49 18 U.S.C.§§1341 (mail fraud),1343(wire fraud),1346(honest 69 Cal.Educ.Code§§72121-29(for community college district services). governing boards). 50 U.S.v Sawyer,239 F3d 31,39(1st Cir.2001)(finding sufficient 70 See Cal.Gov't Code§54952.2(a). evidence of guilt apart from proof of violation of state law). 71 Cal.Gov't Code§54952.2(b);Cal.Educ.Code§72121. 51 U.S.v.Lopez-Lukis, 102 Fad 1164,1169(11th Cir.1997)(noting 72 Cal.Gov't Code§54952.2(a). that effort to improperly control composition of decision- 73 Cal.Gov't Code§54952(b). making body constituted an effort to deprive public of honest 74 Cal.Gov't Code§54952.2. services),McNally v U.S.,483 U.S.350 at 362-63(Justice Stevens,dissenting). 75 Cal.Gov't Code§54952.2(b)(2). 52 U.S.v.Kemp,379 F.Supp.2d 690,697-98(E.D.Penn.2005).In 76 Wolfe v.City of Fremont 144 Cal.App.4th 533,50 Cal.Rptr. Skilling v.U.S.,130 S.Ct.2896,2931 (2010),the U.S.Supreme 3d 524(2006);see also S.B.1732,2007-2008 Leg.,Reg.Sess. Court held that in order to avoid unconstitutional vagueness (Cal.2008)(clarifying Cal.Gov't Code§54952.2 to include 18 USC§1346(honest services fraud)only criminalizes bribes both communications that result in a collective concurrence and kick-back schemes. and those that are part of the process of developing 53 18 U.S.C.§1341 ("...shall be fined under this title or collective concurrence). imprisoned not more than 20 years,or both."). 77 Cal.Gov't Code§54954.2;Cal.Educ.Code§72121.5. 54 See Cal.Gov't Code§§6250-70. 78 Cal.Gov't Code§54954.2(a)(2),See Cal.Educ.Code§ 55 See Cal.Gov't Code§§34090-34090.8. 72121.5. 56 See generally Cal.Gov't Code§§6250-70.See also Cal. 79 Cal.Gov't Code§54954.2(b). Const.art.I,§3(b)(1). 80 Cal.Gov't Code§54952.2(c)(2). 57 See Cal.Gov't Code§§6252-53. 81 Cal.Gov't Code§54952.2(c)(5). 58 Cal.Gov't Code§6252(g)"'Writing'means any handwriting, 82 See,e.g.,Cal.Gov't.Code§§54956.5-54957,54957.6, typewriting,printing,photostating,photographing, 54957.10,54962;Cal.Educ.Code§72122. photocopying,transmitting by electronic mail or facsimile, 83 Cal.Gov't Code§54956.9. and every other means of recording upon any tangible thing 84 Cal.Gov't Code§54954.5. any form of communication or representation,including letters,words,pictures,sounds,or symbols,or combinations 85 Cal.Gov't Code§54957(6). thereof,and any record thereby created,regardless of the 86 Cal.Gov't Code§54956.9. manner in which the record has been stored." 87 Cal.Gov't Code§54956.8. 59 State ex rel.Division of Industrial Safety v.Superior Court,43 88 Cal.Gov't Code§§3549.1 (school and community college Cal.App.3d 778,117 Cal.Rptr.726(1974);Cook v.Craig,55 districts),54957.6(other local agencies). Cal.App.3d 773,127 Cal.Rptr.712(1976). 89 Cal.Educ.Code§§35146,72122. 60 Cal.Gov't Code§6254(b). 90 Cal.Gov't Code§54953.1. 61 See Cal.Gov't Code§6254(a).See also California First 91 Cal.Gov't Code§54956.7. Amendment Coalition v.Superior Court,67 Cal.App.4th 159, 78 Cal.Rptr.2d 847(1998). 92 Cal.Gov't Code§54957(a). 62 Cal.Gov't Code§6254(c). 93 Cal.Gov't Code§54957.8. 63 Cal.Gov't Code§34090(d).Note that in California,the Public 94 Cal.Gov't Code§§37606,37624.3;Cal.Health&Safety Code Records Act is not a records retention statute.See Los §§1461,1462,32106,32155. Angeles Police Dept.v.Superior Court,65 Cal.App.3d 661 95 Cal.Gov't Code§54960.1;Cal.Educ.Code§72121(b). (1977). 96 Id. 64 The Secretary of State's Local Government Records 97 Cal.Gov't Code§54959. Management Guidelines may be viewed at http://www. 98 See Cal.Penal Code§19. sos.ca.goWarch Ives/loca I-gov-program/pdf/reco rds- management-8.pdf 99 Cal.Gov't Code§§54960-.2. 65 Cal.Gov't Code§6258. 100 Id. 66 Cal.Gov't Code§6259(d). 101 Cal.Gov't Code§54960.5. Understanding the Basics of Public Service Ethics Laws67 Chapter 4:Transparency Laws 102 Cal.Educ.Code§§72121-29(for community college district 119 Cal.Gov't Code§54957.9. governing boards). 120 Id. 103 Cal.Gov't Code§54954.2(a);Cal.Educ.Code§72121. 121 Norse v.City of Santa Cruz,629 F3d 966,976(9th Cir.2010). 104 Id. 122 Cal.Gov't Code§§54954.3(c),54957.9;Perry Educational 105 Cal.Gov't Code§54954.1. Association v.Perry Local Educators'Association,460 U.S.37, 106 See Cal.Gov't Code§54954.2.This requirement only 46(1983);Acosta v.City of Costa Mesa,---F.3d----,2013 WL applies to: 1847026(9th Cir.2013). » The governing body of a local agency or any other local 123 Cal.Gov't Code§54960.1;Cal.Educ.Code§72121(b). body created by state or federal statute;or 124 Id. » A commission,committee,board,or other body of a 125 Cal.Gov't Code§54959, local agency,created by charter,ordinance,resolution, 126 See Cal.Penal Code§19. or formal action of a legislative body,if the members 127 Cal.Gov't Code§54960. are compensated for their appearance,and at least one member is also the member of a governing body created 128 Id. by state or federal statute. 129 Cal.Gov't Code§54960.5. 107 Cal.Gov't Code§54954.2(b). 130 See 42 U.S.C.§1983. 108 Cal.Gov't Code§54954.2(b)(2). 131 See 42 U.S.C.§1988. 109 Cal.Gov't Code§54956. 132 Cal.Const.art.I,§3(b)(1). 110 Cal.Gov't Code§54956.5. 111 Cal.Gov't Code§54957.5. 112 Cal.Gov't Code§54957.5(c). 113 Cal.Gov't Code§54953.5(a). 114 Cal.Gov't Code§54953.5(b). 115 Cal.Gov't Code§54953.3. 116 Cal.Gov't Code§54954.3(a);Cal.Educ.Code§72121.5. 117 Cal.Gov't Code§54954.3(a). 118 Cal.Gov't Code§54954.3(b);White v.City of Norwalk,900 F2d 1421,1425(9th Cir.1990). 68 417 stitute for Local Government www.ca-ilg.org CHAPTER 5 : Fair Process Laws and Merit-Based Decision-Making Available from Institute for Local Government website at: This chapter:www.ca-ilg.org/FairProcess Whole publication (Understanding the Basics of Public Service Ethics Laws):www.ca-ilg.org/EthicsLaws 418 Chapter 5: Fair Process Laws and Merit-Based Decision-Making Chapter 5: Fair Process Laws and Merit-Based Decision-Making CONTENTS The Right to Fair and Unbiased Decision-Makers............................................................................72 BasicRules...............................................................................................................................72 Effectof Violations ..................................................................................................................73 Effecton Decision ...............................................................................................................73 Due Process Violations.........................................................................................................73 Vote-Trading....................................................................................................................................74 BasicRules...............................................................................................................................74 Penalties...................................................................................................................................74 PersonalLoans...............................................................................................................................75 BasicRules...............................................................................................................................75 Penalties...................................................................................................................................75 Decisions May Not Benefit Family...................................................................................................76 BasicRules...............................................................................................................................76 Penalties...................................................................................................................................76 Restrictions and Disqualification Requirements Relating to Campaign Contributions......................77 BasicRules...............................................................................................................................77 AffectedOfficials .................................................................................................................77 Kinds of Proceedings Affected..............................................................................................78 Actions That Must Be Taken .................................................................................................78 Disclosure..................................................................................................................78 Disqualification ..........................................................................................................78 Avoiding Disqualification ...........................................................................................79 No Contributions During the Proceeding..................................................................79 Penalties .................................................................................................................................79 Agency Staff and Political Activities ................................................................................................80 BasicRules...............................................................................................................................80 Employment Decisions,Soliciting Support and Campaign Contributions................................80 Engaging in Political Activities During Work Hours or While in Uniform....................................80 Penalties...................................................................................................................................80 Holding Multiple Public Offices.......................................................................................................81 BasicRules...............................................................................................................................81 SpecialIssues .........................................................................................................................82 Employees who Run for the Governing Board of Their Public Agency Employers....................82 Individual Agency Guidelines................................................................................................82 Penalties...................................................................................................................................82 70 41 Institute for Local Government I www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making Competitive Bidding Processes for Public Contracts .......................................................................83 BasicRules...............................................................................................................................83 Exceptions................................................................................................................................83 Emergency ..........................................................................................................................83 Professional Services...........................................................................................................83 SpecialServices...................................................................................................................83 Design-Build ........................................................................................................................84 Penalties...................................................................................................................................84 Whistle-Blowing Protections...........................................................................................................85 BasicRules...............................................................................................................................85 Penalties...................................................................................................................................85 Endnotes and Additional Information.............................................................................................86 Understanding the Basics of Public Service Ethics La4w20 71 Chapter 5: Fair Process Laws and Merit-Based Decision-Making The Right to Fair and Unbiased Decision-Makers Basic Rules The kinds of impermissible bias' include: Although California statutes largely >> Personal Interest in the Decision's Outcome. determine when public officials For example,one court found an elected official must disqualify themselves from was biased and should not participate in a participating in decisions,common decision on a proposed addition to a home in his law(judge-made law) and some neighborhood when the addition would block constitutional principles still require the elected official's view of the ocean from the a public official to exercise his or official's apartment.3 Personal interest bias can her powers free from personal also arise when hearing officers are selected and bias—including biases that have paid on an ad hoc basis,making their future work nothing to do with financial gain or losses. dependent on the public agency's goodwil1.4 Under the common law doctrine,an elected official >> Personal Bias. has a fiduciary duty to exercise the powers of office >> People. Strong animosity about a permit for the benefit of the public and is not permitted to applicant based on conduct that occurred use those powers for the benefit of private interests.' outside the hearing is one example.Conversely,a strong personal loyalty toward a party could bias an official as weIL5 Belief/Ideology. Examples include strong Local officials are much less constrained ideological reactions to a proposed Planned when the body is acting in a legislative, as Parenthood clinic or community center for a particular ethnic or religious group. opposed to quasi-judicial capacity. > Factual Bias. For example, information an official might receive outside the public hearing that causes the official to have a closed mind to any factual information that may be presented In addition,constitutional due process principles in a hearing.This is a variation of the"ex parte require adecision-maker to be fair and impartial communications"doctrine,which suggests that, when the decision-making body is sitting in what is in quasi-judicial matters,all communications to known as a"quasi-judicial"capacity.Quasi-judicial decision-makers about the merits(or demerits)of matters include variances, use permits,annexation an issue should occur in the context of the noticed protests, personnel disciplinary actions and hearing(as opposed to private meetings with either licenses.Quasi-judicial proceedings tend to involve side of an issue,for example).6 the application of generally adopted standards to specific situations, much as a judge applies the law to a particular set of facts. 72 42Institute for Local Government I www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making Dual Role Influence.Another example is when someone plays multiple roles in a decision making FOR MORE INFORMATION process.A court concluded that a business owner's On fair decision-making and bias,see fair hearing rights were violated when a public the following resources: agency attorney made the initial decision to deny the renewal of the business's regulatory permit » When an Elected Official Feels Passionately About then acted as a legal adviser to a hearing officer reviewing that denial.' an Issue: Fair Process Requirements in Adjudicative Decision Making,"available at www.ca-ilg.org/bias When an official sits in a quasi-judicial » "When Your Decision Will Affect a Friend or capacity,that official's personal interest or involvement,either in a decision's Supporter,"available at outcome or with any participants,can www.ca-ilg.org/fairness create a risk that the agency's decision will be set >> Understanding the Basics of Local Agency Decision- aside by a court if the decision is challenged.Typically, Making,2009, available at having the official disqualify himself or herself www.ca-ilg.org/decisionmaking removes the risk.' > An Ounce of Prevention:Best Practices for Making Decision-makers are also well advised to step Informed Land Use Decisions,2006,available at aside on participation in a quasi-judicial matter www.ca-ilg.org/ounce when the decision-maker has pre-judged the For specific questions, please contact agency counsel. matter.Attributes of having"pre-judged the matter" include having a closed mind or a preconceived and Effect of Violations unalterable view of the proper outcome without regard to the evidence.9 Effect on Decision An administrative decision tainted by bias will be This rule does not preclude holding opinions, set aside.The agency will have to conduct new philosophies or strong feelings about issues proceedings free of the influence of the biased or specific projects, it also does not proscribe decision-maker.11 expression of views about matters of importance in the community, particularly during an election Due Process Violations campaign.10 Also, local officials are much less If the violation rises to the level of a denial of due constrained when the body is acting in a legislative, process under constitutional law,the affected as opposed to quasi-judicial capacity. individual(s) may seek damages,costs and attorney's fees.12 FOR MORE INFORMATION On the effect of ethics law violations,see www.ca-ilg.org/ consequences. Understanding the Basics of Public Service Ethics La4w22 73 Chapter 5: Fair Process Laws and Merit-Based Decision-Making Vote Trading Basic Rules Penalties The California law that prohibits Penalties for vote trading public officials from asking for, include"imprisonment in the receiving,or agreeing to receive state prison for two,three, bribes in exchange for their or four years and . . . by a votes or other official actions restitution fine of not less than two thousand dollars also forbids them from giving, ($2,000)or not more than ten thousand dollars or offering or promising to give,"any official vote" ($10,000) . . ."15 A conviction for vote-trading will also in exchange for another public official's vote on the lead to an immediate loss of office and permanent "same or another question."13 disqualification from holding any office in the state.16 Like bribery,vote-trading is a form of"you-do-this- for-me,-I-will-do-this-for-you"practice. In Latin,this FOR MORE INFORMATION is known as a quid pro quo("this for that").Quid pro On penalties for ethics law quos are legally risky.Any time a public official stops violations,see www.ca-ilg.org/ making decisions based on what's best for the public, consequences. the policy-making process is compromised. Note that the Attorney General has concluded that the prohibition against vote-trading applies to exchanges of votes between public officials and not to commitments made by jurisdictions in an inter- agency agreement.14 FOR MORE INFORMATION On vote trading,see www.ca-ilg.org/ votetradin�. For specific questions, please contact agency counsel. 74 42Institute for Local Government www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making Personal Loans Basic Rules Penalties Elected officials and others may not receive a personal These restrictions are part loan from any officer,employee, member or consultant of the Political Reform Act. of the official's respective agency while in office." Violations of these laws are punishable by a variety of There also are limits on elected officials'and others' civil, criminal and administrative penalties,depending ability to receive loans from those with contracts on the severity of the violation and the degree of with the agency(except for bank or credit card intent to violate the law that enforcement entities are loans made in the regular course of the company's able to demonstrate.20 business)." Personal loans over$500 from others These penalties can include any or all of the following: must meet certain requirements(for example,be in writing,clearly state the date,amounts and interest )> Immediate loss of office 21 payable).19 For further discussion of ethics laws related >> Prohibition from seeking elected office in the to personal loans and other economic interests,see future 22 chapter 2, pages 10-16. >> Fines of up to$10,000 or more depending on the circumstances;23 and Jail time of up to six months.24 FOR MORE INFORMATION On penalties for ethics law violations, see www.ca-ilg.org/consequences. Understanding the Basics of Public Service Ethics La4w24 75 Chapter 5: Fair Process Laws and Merit-Based Decision-Making Decisions May Not Benefit Family Basic Rules Penalties An important part of a fair process The disqualification is that everyone, irrespective of their requirements relating to family personal relationship to decision- members are part of the Political Nerorm,Act.A rerusai makers,will have the same access to disqualify oneself is punishable by a variety of civil, to public agency benefits and criminal and administrative penalties,depending on approvals. the severity of the violation and the degree of intent An outgrowth of this principle to violate the law that enforcement entities are able to is the rule that public officials must disclose their demonstrate.17 interests and disqualify themselves under the Political These penalties can include any or all of the following: Reform Act and other laws(for example Government >> Immediate loss of office;28 Code section 1090's prescription against interests in contracts)from participating in decisions that will >> Prohibition from seeking elected office in the have the result of their immediate family's expenses, future;29 income,assets or liabilities increasing or decreasing.25 >> Fines of up to$10,000 or more depending on the "Immediate family" includes one's spouse or domestic circumstances"O and partner and dependent children.26 For further > Jail time of up to six months.31 discussion of conflict of interest disclosure and If the family members' interest relates to an interest disqualification,see chapter 2, beginning on page 10. in a contract, penalties for violating Government Code Some jurisdictions have also adopted additional section 1090 apply(for example,felony prosecution policies to prevent nepotism in hiring, promotions or refunds of amounts paid under the contract).32 For and appointments. For more information about hiring more information about Government Code section family members,see"Hiring:When a Relative Wants a 1090,see chapter 2, pages 20-22. Job,"available at www.ca-ilg.org/fairness. EFFECT ON AGENCY AND THOSE AFFECTED BY AGENCY'S DECISION When a disqualified official participates in a decision, it can also void the decision.33 This can have serious consequences for those affected by the decision as well as the public agency. i:FOR MORE INFORMATION On penalties for ethics law violations,see www.ca-ilg.org/ consequences. 76 425 stitute for Local Government www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making Restrictions and Disqualification Requirements Relating to Campaign Contributions Basic Rules Affected Officials Generally,the ethics laws with respect to campaign Generally speaking,this requirement contributions emphasize disclosure rather than does not apply to officials directly disqualification.31 Disclosure enables voters to elected to the board of local agencies assess the degree an official could be influenced while acting in the scope of the office by campaign contributors who appear before the for which they were elected.However, agency. Both financial and in-kind (goods and services) elected officials are covered by this prohibition when support must be disclosed.35 These requirements are they sit as members of other boards to which they discussed on chapter 4, page 53. were not elected(such as joint powers agencies, Moreover,the courts have held the receipt of regional government entities or local agency formation commissions).40 campaign contributions does not generally give rise to a duty to disqualify for bias. For example,a Other covered officials include appointed board or court determined an elected official who received commission members who become or have been a campaign contribution from a developer is not candidates for elective office.41 automatically barred from acting on the developer's These prohibitions apply only with respect to land use permit application.31 The court left open campaign contributions from persons who are the possibility this scenario could, under certain financially interested in the outcome of the specified circumstances,create a problem. proceedings.Those interested persons include: However, under limited (and sometimes » Parties to the proceeding(such as applicants for counterintuitive)circumstances,certain local agency the permit, license or entitlement);and officials must disqualify themselves from participating » Participants.42 in proceedings regarding licenses, permits and other entitlements for use if the official has received A participant is a person who is not a party but who campaign contributions of more than $250 during actively supports or opposes a particular decision the previous twelve months from any party or in a proceeding involving a license, permit or other participant.37 Note campaign contributions may entitlement for use and who has a financial interest in be both monetary(dollars)and"in-kind"(goods or the outcome of the decision.43 A person qualifies as services)contributions.38 a "participant"if he or she attempts to influence the officers or employees of the agency with respect to In addition,these officials are prohibited from the decision or testifies in person before the agency receiving,soliciting or directing a campaign with respect to the decision.44 contribution of more than $250 from any party or participant in a license, permit or entitlement proceeding while the proceeding is pending and for three months after the proceeding.39 Understanding the Basics of Public Service Ethics Laws77 Chapter 5: Fair Process Laws and Merit-Based Decision-Making Actions That Must Be Taken Extortion under California and Federal Law Disclosure A demand for campaign contributions can also constitute When someone files a permit or license extortion.Extortion occurs when someone obtains application,that individual must publicly money through threat of harm or under color of official report all covered officials to whom the right.41 individual made contributions of more California Law.Extortion under is a misdemeanor under than $250 during the previous twelve California law.46 Misdemeanors are punishable by up months." Likewise,a covered official must publicly to six months in county jail,a fine of up to$1,000 or both.47 Extortion can also be the basis for a grand jury disclose on the record of the proceeding any party to initiate removal-from-office proceedings for official or participant who has contributed more than $250 misconduct.48 during the previous twelve months to that official.16 Federal Law.To be chargeable as a federal offense, The disclosure must be made prior to the agency the act must affect interstate commerce.The maximum making any decision in the proceeding(without the penalty for extortion under federal law is 20 years incovered official's participation).17 prison and a$250,000 fine.49 Disqualification Kinds of Proceedings Affected If prior to making a decision in the proceeding, a covered official knowingly receives more than The general rule applies to all proceedings involving $250 in campaign contributions from a party during licenses and permits, including use permits.This the previous twelve months,that official must includes: disqualify himself or herself from participating in the Business, professional,trade and land use licenses proceeding.58 Likewise,with respect to contributions and permits; received from a participant,the covered official must Land use permits; disqualify himself or herself if he or she has reason to Franchises;and know, prior to making a decision in the proceeding, that the participant is financially interested in the Contracts,other than competitively bid, labor or outcome of the proceeding.59 personal employment contracts.50 Examples of land use permits include conditional use (Note the disqualification requirement is triggered by actual receipt of campaign contributions,not permits," zoning variances,12 and tentative subdivision simply asking for a contribution if the request and parcel maps."Examples of covered contracts is unsuccessful. Of course, there are significant include consulting contracts,whether engineering, ethical issues associated with soliciting campaign architectural or legal.14 contributions from either parties or participants while a decision is pending). Disqualification means the official may not participate in making any decision in the proceeding,and may not in any way attempt to use his or her official position to influence the decision.60 78 427 stitute for Local Government I www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making Avoiding Disqualification FOR MORE INFORMATION A covered official may avoid disqualification if he or she returns the contribution,or that portion which is See the following resources: over$250,within 30 days from the time the official knows or has reason to know of the contribution and the proceeding.61 » "Raising Funds for Favorite Causes,"available at No Contributions During the Proceeding www.ca-ilg.org/fundraising While the permit or license proceeding is pending and » Institute resources on ethics on the campaign trail, for three months after the decision,covered officials see www.ca-ilg.org/campaigning-office must not solicit or receive campaign contributions from » "Campaign Contributions May Cause Conflicts for either parties or participants(persons who actively Appointees and Commissioners,"available at support or oppose a particular decision and are www.fppc.ca.gov financially interested in the outcome).62 This prohibition » Campaign Disclosure Manual 2:Information for includes a prohibition against soliciting, receiving or Local Candidates,Superior Court Judges, Their directing contributions on behalf of another person or Controlled Committees and Primarily Formed on behalf of a campaign committee.61 Committees for local Candidates,2007.Available at Likewise,all parties and participants are prohibited www.fppc.ca.gov during this period of time from making contributions For specific questions, please contact the Fair Political of more than $250 to any officials involved in the Practices Commission or agency counsel. proceedings.64 Penalties The disqualification requirements MORE ON FUNDRAISING are part of the Political Reform Even when the law does not constrain an official's Act.A refusal to disqualify one- political fund-raising activities(other than requiring self is punishable by a variety of civil,criminal and ad- disclosure of donors),it is important to be extraordinarily judicious in choosing those one will ask for campaign ministrative penalties,depending on the severity of the contributions. violation and the degree of intent to violate the law that If an individual or company has matters pending with enforcement entities are able to demonstrate.61 one's agency,they(and others,including the media These penalties can include any or all of the following: and one's fellow candidates)are going to perceive a relationship between the decision and whether » Immediate loss of office 66 they contribute to one's campaign.The unkind characterization for this dynamic is"shake-down." » Prohibition from seeking elected office in the future;61 Two important points to remember: » Fines of up to$10,000 or more depending on the ✓Public officials who indicate their actions on a matter circumstances;68cnd will be influenced by whether they receive a campaign » Jail time of up to six monthS.69 contribution put themselves at risk of being accused of soliciting a bribe or extortion. FOR MORE INFORMATION ✓The legal restrictions on campaign fund-raising are minimum standards. On penalties for ethics law violations, 40 see www.ca-ilg.org/consequences. Understanding the Basics of Public Service Ethics La4w28 79 Chapter 5: Fair Process Laws and Merit-Based Decision-Making Agency Staff and Political Activities Basic Rules Additionally,California law prohibits employees or There are a number of laws officers of local agencies from engaging in political designed to insulate public activities of any kind while in uniform." employees from having to For more information about the use of public participate in the campaign resources for political purposes,see chapter 3, pages activities of candidates for their 36-37. agency's governing board. Penalties Employment Decisions, Soliciting Support and Campaign Contributions Violation of the prohibition against soliciting campaign California law forbids candidates and officials from funds from agency staff is conditioning employment decisions on support of a punishable as a misdemeanor.79 Offering or arranging person's candidacy.70 a raise for an agency employee in exchange for a Soliciting campaign funds from agency officers or contribution is punishable by up to a year in county employees is also unlawful.71 There is an exception jail,a fine of up to$5,000 or both.80 if the solicitation is made to a significant segment of No penalties are specified in the code sections the public that happens to include agency officers or creating the prohibitions against conditioning employees.72 Candidates also may not offer or arrange employment decisions on political support or for an increase in salary for an agency employee in against engaging in political activities while in exchange for a political contribution.71 uniform.81 Presumably violations would fall into the Note that members of the International City/County catchall penalty for misconduct in office,which is Management Association and the City Attorneys loss of office.12 Department of the League of California Cities place Public officials face both criminal and civil penalties a high value on these positions' independence from for using public resources for political benefit.83 See the political process.As a result, both organizations chapter 3,page 35 for more details. encourage their members not to make campaign contributions to local officials.74 FOR MORE INFORMATION Engaging in Political Activities During Work on penalties for ethics law Hours or While in Uniform violations,see www.ca-ilg.org/ Engaging in political activities during work hours consequences. violates prohibitions against the political use of public resources.75 Local agencies and school districts may impose additional restrictions on the political activities of employees during working hours or while on agency property.76 Such restrictions can include wearing political buttons during work hours and displaying political signs at one's workstation.77 80 42Institute for Local Government I www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making Holding Multiple Public Offices There is such a thing as too much Basic Rules public service;the law limits the California law prohibits public officers from degree to which public officials simultaneously holding multiple offices that are can simultaneously hold multiple "incompatible"with one another."Offices are offices.The reason is,when an official assumes a public office, he incompatible when: or she takes on responsibility to the » Either of the offices may audit,overrule, remove constituents of that agency to put members of,dismiss employees of,or exercise their interests first.When an official occupies multiple supervisory powers over the other office or body; offices in multiple agencies,fulfilling that responsibility » Based on the powers and jurisdiction of the offices, becomes more complicated, both legally and ethically. there is a possibility of significant clashes of duties Potential legal issues include: or loyalties between the offices;or » Political Reform Act issues when the official is in » Public policy considerations make it improper for the position of making decisions that affect the one person to hold both offices.16 official's economic interests.This issue is covered The notion underlying the prohibition is that it can be in chapter 2,, unfair and unwise to have decision-makers who are » Section 1090 issues when the official's position is supposed to have just one agency's(and one agency's such that the official has an interest in a contract constituents') interests at heart assume multiple in which the agency is involved.This issue is also decision-making roles.As the Attorney General covered in chapter2;and observed,the public is entitled to utmost loyalty from those who occupy offices.17 » Incompatibility of office issues(for example, membership on the city council and serving on the This restriction on holding multiple public offices board of another local agency)when the official's only applies to positions that are considered to be offices are such that the official may be subjected offices—including appointed or elected members of a to conflicting loyalties.84 governmental board,commission, committee,or other body"The restriction does not apply to positions of The incompatible office holding problem differs from employment in an agency,"although employees may a conflict of interest that involves a potential clash be prohibited from serving on the governing bodies of between one's private interest and one's public duties, agencies in which they are employed.90 incompatibility of offices normally refers to the"public- public"situation where no personal conflict of interest Note there can be specific legislative exceptions to is involved. Instead there is a potential clash between this rule.91 Under some circumstances, local agencies one's responsibility to two sets of constituents. may allow simultaneous occupancy of what would otherwise be incompatible offices.92 Understanding the Basics of Public Service Ethics Laws81 Chapter 5: Fair Process Laws and Merit-Based Decision-Making OIL- FOR MORE INFORMATION When one assumes a public office, one On holding multiple offices see takes on responsibility to the constituents "Holding Two Positions"available of that agency to put their interests first. online at www.fppc.ca.gov. For specific questions, please contact the Fair Political When one occupies multiple offices in Practices Commission or agency counsel. multiple agencies, that job becomes more Penalties complicated... } If an official accepts a second office that is incompatible with an office he or she currently Special Issues holds,employment in the prior office automatically terminates upon being sworn into the second office.97 Employees Who Run for the Governing Board of Their Public Agency Employers FOR MORE INFORMATION Generally,an individual may not serve as an elected or appointed member of a local agency's On penalties for ethics law governing board if he or she is an employee of the violations,see www.ca-ilg.org/ local agency.93 If the employee does not resign,the consequences. individual's employment automatically terminates upon being sworn into office.94 Volunteer firefighters are exempt from these provisions if the firefighter receives no salary.95 Individual Agency Guidelines Local agencies must adopt rules regarding incompatible activities.96 82 43Institute for Local Government I www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making Competitive Bidding Processes for Public Contracts Basic Rules Exceptions Public contracting Emergency laws—including those Contracts may be awarded without competitive adopted at the local level bidding if the legislative body makes a finding by a —are designed to give four-fifths vote that an emergency exists.109 all interested parties the opportunity to do business with the government on an equal basis.98 Professional Services This keeps contracts from being steered to businesses Contracts for professional services or individuals because of political connections, such as private architectural, friendship,favoritism,corruption or other factors. It landscape architectural, also assures that the public receives the best value engineering,environmental, for its money by promoting competition among land surveying,or construction businesses so the public can receive the best deal.99 management firms need not be competitively bid, but must be awarded on the basis of demonstrated Many competitive bidding requirements are locally competence and on the professional qualifications imposed,for example by charter cities as part of necessary for the satisfactory performance of the their municipal affairs authority100 California law also services required.11°However, if the professional authorizes local agencies to adopt procedures for services are too closely akin to the work typically acquisition of supplies and equipment.101 Most of these purchasing ordinances require competitive bids performed by public works construction contractors (for example,some services performed by for contracts in excess of designated dollar amounts. construction managers),then competitive bidding may For public works projects,California law defines when be required."' general law cities and counties must use competitive bidding. For general law cities, public works projects Special Services over$5,000 are subject to the state's competitive The legislative body of any public agency may contract bidding requirements.101 For county projects,the with and employ persons for special services and threshold is based on population:$6,500(counties advice in financial,economic,accounting,engineering, with populations of 500,000 or over),103$50,000 legal,or administrative matters if such persons are (counties with populations of 2 million or over)104 specially trained and experienced and competent to and $4,000(all other counties).105 Note that it is a perform the special services required.112 The test as misdemeanor to split projects to avoid competitive to whether services are special services depends on bidding requirements.106 the nature of the services,the necessary qualifications The contract for a competitively bid public project required of a person furnishing the services,and the must be awarded to the lowest responsible bidder.101 availability of the service from public sources."' A responsible bidder is one who is able to perform the contract if awarded.108 Understanding the Basics of Public Service Ethics La4ws 83 Chapter 5: Fair Process Laws and Merit-Based Decision-Making Design-Build Penalties Design-build is a method of project delivery in which An agency that improperly the design and construction functions are combined awards a bid to any bidder and contracted to a single entity(called the"design other than the lowest builder").Cities,with approval of the city council,may responsible bidder may be use design-build contracting for building construction liable for reimbursing the low bidder's actual cost in projects over one million dollars.114 Counties,with submitting the bid,but will not be liable for the low approval of the board of supervisors, may use bidder's lost profits."' design-build contracting for building construction projects over$2.5 million.1'Cities and counties may award design-build projects using either the lowest responsible bidder or best value.1' HONEST SERVICES, FRAUD AND EXTORTION Under federal wire and mail fraud laws,the public has the right to the"honest services"of public officials."' FOR MORE INFORMATION The basic concept is that a public official owes a duty of loyalty and honesty to the public—similar to a trustee On public agency procurement or fiduciary119 That duty is violated when a public official processes,see the Institute makes a decision that is not motivated by his or her constituents'interests but instead by his or her personal resources available at interests.120 Specifically,honest services fraud refers to www.ca-ilg.org//post/fair-procurement. actions that constitute bribery and kickback schemes."' "Kickbacks"(for example,receiving money back from proceeds paid to a company that does business with a public entity)in exchange for favorable contracting decisions is one area in which prosecutors have been particularly active. The maximum penalty for being guilty of wire and/or mail fraud includes a jail term of up to 20 years and a $250,000 fine.122 An official's refusal to award a contract unless the individual receives benefits can also be prosecuted as extortion.121 To be chargeable as a federal offense,the act must affect interstate commerce.The maximum penalty for extortion under federal law is 20 years in prison and a$250,000 fine.124 For more information about honest services,fraud and extortion,see"Making a Federal Case Out of Corruption," available at www.ca-ilg.org/fedcase. 84 433 stitute for Local Government I www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making Whistle-Blowing Protections Basic Rules Penalties California whistle-blowing laws make it Violation of whistle-blower unlawful for employers to retaliate against protection laws is a employees who refuse to participate misdemeanorl30 The maximum in unlawful activities.125 Furthermore, criminal penalty for an individual is a year of jail time, if an employee can demonstrate by a a fine of$1,000 or both.131 In the case of corporations preponderance of evidence that his the criminal penalty is a fine of up to$5,000.132 or her whistle-blowing activities were In addition, retaliation against an employee for whistle- a contributing factor in an adverse employment blowing activities could result in a suit for violation of action,the burden of proof then shifts to the the employee's civil rights.133 Such actions carry the employer to demonstrate by clear and convincing prospect of damages134 and attorney's fee awards."' evidence that the employer would have taken the action for"legitimate, independent reasons"even if the employee had not been a whistle-blower126 FOR MORE INFORMATION These protections apply specifically to local agency On penalties for ethics law employees.117 violations,see www.ca-ilg.org/ California law requires employers to post the state consequences. attorney general's whistle-blower hotline number at the workplace.121 Any employee or member of the public can call the hotline at(800)952-5225 to register their concerns about potentially unlawful practices.129 FOR MORE INFORMATION On whistle-blower protections,see the following resources: "For Whom the Whistle Blows,"available at www.ca-ilg.org/whistle Walking the Line:what to do when You Suspect an Ethics Problem,2005.Available at www.ca-ilg.org/WhatToDo Understanding the Basics of Public Service Ethics Laws 4 85 Chapter 5: Fair Process Laws and Merit-Based Decision-Making Endnotes and Additional Information Note:Sections in the California Code are accessible at http://Ieginfo.legislature.ca.gov/. Fair Political Practices Commission regulations are accessible at www.fppc.ca.gov/index.php?id=52.A source for case law information is www.findlaw.com/cacases/(requires registration). 1 See Nussbaum v.Weeks,214 Cal.App.3d 1589,1597-98,263 18 See Cal.Gov't Code§87460(c),(d). Cal.Rptr.360,365-66(4th Dist.1989). 19 See Cal.Gov't Code§87461. 2 See Breakzone Billiards v.City of Torrance,81 Cal.App.4th 20 See generally Cal.Gov't Code§§91000-14. 1205,1234 n.23,97 Cal.Rptr.2d 467(2d Dist.2000)(finding no common law bias). 21 See Cal.Gov't Code§1770(h)(providing a vacancy occurs upon conviction of a felony or of any offense involving a 3 See Clark v.City of Hermosa Beach,48 Cal.App.4th 1152,56 violation of official duties). Cal.Rptr.2d 223(2d Dist.1996)(finding common law bias). 22 See Cal.Gov't Code§91002(providing no person convicted 4 Haas v.County of San Bernadino,27 Cal.4th 1017,119 Cal. of a misdemeanor under the Political Reform Act shall be Rptr.2d.341 (2002). a candidate for any elective office or act as a lobbyist for a 5 See Breakzone,81 Cal.App.4th at 1234 n.23,97 Cal.Rptr.2d period of four years following the date of the conviction). at 490. 23 Cal.Gov't Code§91000(b). 6 See,e.g.,Nightlife Partners,Ltd.V.City of Beverly Hills,108 24 See Cal.Penal Code§19(providing misdemeanors are Cal.App.4th 81,89,133 Cal.Rptr.2d 234,241 (2d Dist.2003). punishable by imprisonment in county jail up to six months,a 7 Nightlife Partners,108 Cal.AppAth at 97-98,133 Cal.Rptr.2d fine not exceeding$1,000,or both). at 248. 25 2 Cal.Code Regs.§18703.5. 8 See Fairfield v.Superior Court,14 Cal.3d 768,122 Cal.Rptr. 26 See Cal.Gov't Code§82029. 543(1975);Mennig v.City Council,86 Cal.App.3d 341,150 27 See generally Cal.Gov't Code§§91000-14. Cal.Rptr.207(2d Dist.1978). 9 See Cohan v.City of Thousand Oaks,30 Cal.App.4th 547,35 28 See Cal.Gov't Code§1770(h)(providing a vacancy occurs Cal.Rptr.2d 782(2d Dist.1994)(where local ordinance called upon conviction of a felony or of any offense involving a for"person"appealing planning commission decision to city violation of official duties). council to show cause why the commission's action should 29 See Cal.Gov't Code§91002(providing no person convicted be overturned,city council's decision to appeal the action to of a misdemeanor under the Political Reform Act shall be itself was an appearance of conflict of interest and was part a candidate for any elective office or act as a lobbyist for a of overall violation of developer's substantive and procedural period of four years following the date of the conviction). due process rights). 30 Cal.Gov't Code§91000(b). 10 Fairfield v.Superior Court,14 Cal.3d 768,122 Cal.Rptr.543 31 See Cal.Penal Code§19(providing misdemeanors are (1975). punishable by imprisonment in county jail up to six months,a 11 See generally Cal.Civ.Proc.Code§1094.5.See Clark v.City fine not exceeding$1,000,or both). of Hermosa Beach,48 Cal.App.4th 1152,56 Cal.Rptr.2d 32 See,e.g.,People v.Honig,48 Cal.App.4th 289,55 Cal.Rptr.2d 223(2d Dist.1996)(requiring the council to rehear an appeal 555(1996). from the planning commission's decision and provide a fair 33 See Cal.Gov't Code§91003(b). hearing). 34 This is a requirement of the Political Reform Act.See 12 See 42 U.S.C.§§1983,1988. generally Cal.Gov't Code§§84100-511. 13 Cal.Penal Code§86. 35 Cal.Gov't Code§82015;2 Cal.Code Regs.18421.1. 14 91 Cal.Op.Att'y Gen.46(2008). 36 Woodland Hills Residents Association v.City Council,26 Cal. 15 Cal.Penal Code§86. 3d 938,164 Cal.Rptr.255(1980).But see Cal.Gov't Code 16 See Cal.Pen.Code§88.See also Cal.Elect.Code§20 §84308;2 Cal.Code Regs.§§18438.1-.8(defining who is (making those convicted of a felony involving bribery, disqualified from acting on a land use entitlement application embezzlement,extortion or theft of public money ineligible after receipt of a campaign contribution). for public office);Cal.Gov't Code§1770(h)(providing a 37 Cal.Gov't Code§84308(c). vacancy occurs upon conviction of a felony or of any offense 38 See Cal.Gov't Code§82015;2 Cal.Code Regs.§18215. involving a violation of official duties). 39 See Cal.Gov't Code§84308(6). 17 Cal.Gov't Code§87460(a),(b). 86 435 Institute for Local Government I www.ca-ilg.org Chapter 5: Fair Process Laws and Merit-Based Decision-Making 40 See Cal.Gov't Code§84308(a)(3);2 Cal.Code Regs.§ securing,any position,nomination,confirmation,promotion, 18438.1. or change in compensation or position,within the state or 41 See Cal.Gov't Code§84308(a)(4);2 Cal.Code Regs.§ local agency,upon consideration or condition that the vote 18438.1. or political influence or action of such person or another shall be given or used in behalf of,or withheld from,any 42 See Cal.Gov't Code§84308(6),(c);2 Cal.Code Regs.§ candidate,officer,or party,or upon any other corrupt 18438.4. condition or consideration.This prohibition shall apply to 43 See Cal.Gov't Code§84308(a)(2). urging or discouraging the individual employee's action. 44 Id. 71 See Cal.Gov't Code§3205. 45 Cal.Pen.Code§518;18 U.S.C.§1951. 72 See Cal.Gov't Code§3205(c). 46 Cal.Penal Code§521. 73 See Cal.Gov't Code§3205.5,which reads as follows: 47 Cal.Penal Code§19. No one who holds,or who is seeking election or appointment 48 Cal.Gov't Code§§3060-3074. to,any office shall,directly or indirectly,offer or arrange for 49 18 U.S.C.§1951(a).See generally 18 U.S.C.§3571(b). any increase in compensation or salary for an employee of 50 See Cal.Gov't Code§84308(a)(5)1,2 Cal.Code Regs.§ a state or local agency in exchange for,or a promise of,a contribution or loan to any committee controlled directly or 18438.2. indirectly by the person who holds,or who is seeking election 51 Cal.Gov't Code§65901. or appointment to,an office.A violation of this section is 52 Cal.Gov't Code§65906. punishable by imprisonment in a county jail for a period not 53 Cal.Gov't Code§§66411-413.5. exceeding one year,a fine not exceeding five thousand dollars ($5,000),or by both that imprisonment and fine. 54 Cal.Gov't Code§§4526,37103,53060. 74 The ICMA Code is available on the ICMA website at:http:// 55 Cal.Gov't Code§84308(d);2 Cal.Code Regs.§18438.8. icma.org/codeofethics. 56 Cal.Gov't Code§84308(c). 75 See Cal.Gov't Code§8314. 57 Id. 76 See Cal.Gov't Code§3207(providing that any city,county or 58 to. local agency may prohibit or restrict officers and employees 59 Id. engaging in political activity during working hours and 60 Id. political activities on agency premises);Cal.Educ.Code§ 7055;5 U.S.C.§§7321-26(prohibiting employees of state 61 Id. and local executive agencies who work in connection with 62 Cal.Gov't Code§84308(b). programs financed in whole or in part by federal loans or 63 Id. grants from engaging in political activities while on duty). 64 Cal.Gov't Code§84308(d). 77 See.Cal.Teachers Assn v.Governing Bd.,45 Cal.App.4th 1383,53 Cal.Rptr2d 474(1996);5 C.F.R.§734.306 example 65 See generally Cal.Gov't Code§§91000 14. 16(with limited exception,those employees working in 66 See Cal.Gov't Code§1770(h)(providing a vacancy occurs connection with federally funded programs"may not wear upon conviction of a felony or of any offense involving a partisan political buttons or display partisan political pictures, violation of official duties). signs,stickers,or badges while he or she is on duty or at his 67 See Cal.Gov't Code§91002(providing no person convicted or her place of work."). of a misdemeanor under the Political Reform Act shall be 78 Cal.Gov't Code§3206.See also Cal.Gov't Code§3302. a candidate for any elective office or act as a lobbyist for a 79 See Cal.Gov't Code§3205 period of four years following the date of the conviction). 80 See Cal.Gov't Code§3205.5,which reads as follows: 68 Cal.Gov't Code§91000(b). No one who holds,or who is seeking election or 69 See Cal.Penal Code§19(providing misdemeanors are appointment to,any office shall,directly or indirectly,offer punishable by imprisonment in county jail up to six months,a or arrange for any increase in compensation or salary for fine not exceeding$1,000,or both). an employee of a state or local agency in exchange for, 70 See Cal.Gov't Code§3204,which reads as follows: or a promise of,a contribution or loan to any committee No one who holds,or who is seeking election or appointment controlled directly or indirectly by the person who holds, to,any office or employment in a state or local agency or who is seeking election or appointment to,an office.A shall,directly or indirectly,use,promise,threaten or attempt violation of this section is punishable by imprisonment in a to use,any office,authority,or influence,whether then countyjail for a period not exceeding one year,a fine not possessed or merely anticipated,to confer upon or secure exceeding five thousand dollars($5,000),or by both that for any individual person,or to aid or obstruct any individual imprisonment and fine. person in securing,or to prevent any individual person from 81 See Cal.Gov't Code§§3204,3206. Understanding the Basics of Public Service Ethics Laws87 Chapter 5: Fair Process Laws and Merit-Based Decision-Making 82 See Gov't Code§§3060-75.See also Steiner v Superior 112 Cal.Gov't Code§53060. Court 50 Cal.App.4th 1771,Cal.Rptr.2d 668(1996)(discussing 113 Cal.School Employees Assn v.Sunnyvale ElementarySch. the types of misconduct warranting removal from office Dist.,36 Cal.App.3d 46,60,111 Cal.Rptr.433,442(1st Dist. under section 3060). 1973). 83 See Cal.Penal Code§424;Cal.Gov't Code§8314. 114 Cal.Pub.Cont.Code§20175.2. 84 See Cal.Gov't Code§1126. 115 Cal.Pub.Cont.Code§20133. 85 Cal.Gov't Code§1099(a). 116 Cal.Pub.Cont.Code§§20175.2,20133. 86 Cal.Gov't Code§1099(a)(1)-(3). 117 Kajima/Ray Wilson v.Los Angeles County Metro,Transp. 87 91 Cal.Op.Att'y Gen.25(2008) Auth.,23 Cal.4th 305,315-16,96 Cal.Rptr.2d 747(2000). 88 Cal.Gov't Code§1099(a). 118 18 U.S.C.§§1341 (mail fraud),1343(wire fraud),1346(honest services). 89 Cal.Gov't Code§1099(c). 119 U.S.v.Sawyer,239 Fad 31,39(1st Cir.2001)(finding sufficient 90 Cal.Gov't Code§53227(a);Cal.Educ.Code§§35107(b)(1), evidence of guilt apart from proof of violation of state law). 72103(b)(1). 120 U.S.v.Lopez-Lukis,102 F3d 1164,1169(11th Cir.1997)(noting 91 See,e.g.,Cal.Health&Safety Code§6480(b)(relating to city that effort to improperly control composition of decision- officials serving on sanitary districts)See also 85 Cal.Op.Att'y making body constituted an effort to deprive public of honest Gen.239(2002)(noting the Legislature can create exceptions services);McNally v U.S.,483 U.S.350 at 362-63(Justice to the incompatibility doctrine). Stevens,dissenting). 92 See 66 Cal.Op.Att'y Gen.293(1983)(offices of city and 121 See Skilling v U.S.,130 S.Ct.2896,2931(2010)(holding that county planning commission are incompatible but county in order to avoid unconstitutional vagueness,18 USC§1346, and charter city may adopt legislation specifying otherwise). defining"scheme or artifice to defraud,"only criminalizes 93 See Cal.Gov't Code§53227(for cities,counties and special bribes and kick-back schemes). districts);Cal.Educ.Code§§35107(b)(1)(school districts), 122 18 U.S.C.§§1341 ("...shall be fined under this title or 72103(b)(1)(community college districts).See also 84 Cal.Op. imprisoned not more than 20 years,or both."),1343("shall be Att'y Gen.126(2001)(community college board member may fined under this title or imprisoned not more than 20 years, not become part-time instructor for district). or both."). 94 Cal.Gov't Code§53227(a);Cal.Educ.Code§§35107(b)(1), 123 18 U.S.C.§1951. 72103(b)(1). 124 18 U.S.C.§1951(a). 95 See 85 Cal.Op.Att'y Gen.230(2002)("salary"does not 125 See Cal.Lab.Code§1102.5(c)('An employer may not include per-call and equipment stipends). retaliate against an employee for refusing to participate in 96 Cal.Gov't Code§1126. an activity that would result in a violation of state or federal statute,or a violation or noncompliance with a state or 97 Cal.Gov't Code§1099(b)(noting that this position is federal rule or regulation."). enforceable through Civil Procedure Code section 803). 126 Cal.Lab.Code§1102.6. People ex rel.Chapman v Rapsey,16 Cal.2d 636,107 P.2d 388(1940).See also Cal.Gov't Code§1126. 127 See Cal.Lab.Code§1106. 98 See Cal.Pub.Cont.Code§100. 128 See Cal.Lab.Code§1102.8(requiring employers to post employees'rights and responsibilities under the whistle- 99 Id. blower laws,including the telephone number for the 100 Smith v City of Riverside,34 Cal.App.3d 529,110 Cal.Rptr. Attorney General's hotline). 67(4th Dist.1973).See also Cal.Pub.Cont.Code§1100.7. 129 See Cal.Lab.Code§1102.7(requiring the Attorney General to 101 Cal.Gov't Code§§54021-25. set up the hotline). 102 Cal.Pub.Cont.Code§20162. 130 Cal.Lab.Code§1103. 103 Cal.Pub.Cont.Code§20122. 131 Id. 104 Cal.Pub.Cont.Code§20123. 132 Id. 105 Cal.Pub.Cont.Code§20121. 133 See,e.g.,Connick v.Myers,461 U.S.138,103 S.Ct.1684 (1983);Pickering v.Bd.of Educ.of Twp.High Sch.Dist.205, 106 Cal.Pub.Cont.Code§20163. Will County,111.,391 U.S.563,88 S.Ct.1731 (1968);Garcetti v. 107 Cal.Pub.Cont.Code§20162. Ceballos, 547 U.S.410,126 S.Ct.1951(2006). 108 See Cal.Pub.Cont.Code§1103. 134 42 U.S.C.§1983. 109 Cal.Pub.Cont.Code§§1102,20168,22050. 135 42 U.S.C.§1988. 110 Cal.Gov't Code§4526. 111 City of Inglewood-Los Angeles County Civic Ctr.Auth.v. Superior Court,7 Cal.3d 861,103 Cal.Rptr.689(1972). 88 437 stitute for Local Government I www.ca-ilg.org Index 04 Index A AB 1234...............................................................................................................See Ethics Training Abstentions..................................................................................................................11, 14, 17-18 AdvisoryCommittees....................................................................................................................59 Agency Attorney(s).................................................................................................. 8, 14, 16, 18, 73 Agency Gifts...................................................................................See Gifts: From Public Agencies AgencyVehicles............................................................................................................................36 Agenda(s) .................................................................................................................................60-64 Appointing Someone to Public Office.............................................................................................7 AttorneyGeneral......................................................................................................... 22, 74, 81, 85 Attorney's Fees .................................................................................................... 37, 58, 62, 65, 73 B Ballot Measure Activities ........................................................................................................36, 53 BehestedPayments.,............................................................................................... .........39, 55-56 Bias.....................................................................................................................................72-73, 77 Blog(s), Blogging......................................................................................................................59, 62 Bribe(s), Bribery.............................................................................................. 7-9, 38, 41, 74, 79, 84 Brown Act...................................................................................................See Open Meeting Laws Business Employment or Management.................................................................................. 15, 52 Business-Owned Property...............................................................See Property: Business-Owned C Campaign Contributions...........................................................................................7, 53-54, 77-80 Soliciting from Employees, Other Agency Officers ................................................................80 Campaign(s) .......................................................................................................... 36, 42, 53, 73, 79 Charitable Organizations....................................................................................................32, 55-56 Donations/Contributions to.........................................................................................32, 55-56 Fundraisingfor...................................................................................................................55-56 CharterCities....................................................................................................................30, 34, 83 Children............................................................................................................................. 15, 52, 76 CivilRights...............................................................................................................................65, 85 ClosedSessions...........................................................................................................18, 60-62, 65 CommonLaw Bias........................................................................................................................72 Community College............................................................................................... 18, 23, 59, 61, 63 Compensated Appointments........................................................................................................31 Compensation..........................................................................................................................29-31 Understanding the Basics of Public Service Ethics Laws89 Index CompetitiveBidding......................................................................................................................83 Conditioning Employment Decisions............................................................................................80 Conference(s)....................................................................................................................30, 32, 60 Conflict of Interest................................................................10-12, 14-18, 22-23, 37-38, 51, 76, 81 LocalCodes ...........................................................................................................14, 37-38, 51 Contracts......................................................................................... 20-22, 31, 41, 56, 75-76, 78, 83 CorePrinciples................................................................................................................................2 D DeliberativeProcess.....................................................................................................................57 Disclosure............................................................................. 14, 16, 21, 31, 42, 51-58, 60-61, 76-79 Confidential Information.........................................................................................................16 Disqualification.............................................................7, 10-12, 14, 16-21, 23, 37-38, 72-74, 76-79 Disruptions....................................................................................................................................64 DualRole Influence.......................................................................................................................73 Dual-Office Holding.......................................................................................................................81 DueProcess.............................................................................................................................72-73 E Economic Interest(s).........................................................................................12, 15-16, 20, 51-52 Eight-Step Analysis.............................................................................................................12-13, 17 E-Mail(s).............................................................................................................................57, 59, 62 Embezzlement ....................................................................................................................8, 35, 37 EmploymentRestrictions..............................................................................................................23 EthicsLaws ................................................................................................................2-3, 37, 51, 77 EthicsTraining..........................................................................................................................29-30 Ex Parte Communications ............................................................................................................72 Extortion...............................................................................................7-8, 38, 41, 55-56, 78-79, 84 F Facebook.......................................................................................................................................62 Fairness..........................................................................................................................2, 72-73, 76 Falsifying Expense Reports...........................................................................................................35 Family........................................................................................10, 15, 18, 20, 32, 36, 38-40, 52, 76 Fiduciary.................................................................................................................. 9, 41, 56, 72, 84 Financial Interest(s)...........................................................................................10, 15-18, 20-21, 77 Form 700...............................................................................See Statement of Economic Interests 90 43Institute for Local Government I www.ca-ilg.org Index G GeneralLaw Cities..................................................................................................................30, 83 Gifts..............................................................................................9-10, 16, 18, 32, 38-41, 51-52, 54 Exceptions and Special Rules......................................................................................32, 38-40 FromPublic Agencies.............................................................................................................39 Tickets...............................................................................................................................39, 54 ToPublic Agencies............................................................................................................40, 54 Graft.................................................................................................................................................7 GrandJury..................................................................................................................... 7, 56, 61, 78 H Honest Services Fraud..................................................................................................9, 41, 56, 84 Honoraria.................................................................................................................................32, 41 Exceptionsto Rules................................................................................................................32 1 IncomeTax Evasion.............................................................................................................8, 35, 41 Incompatibility of Office...........................................................................................................81-82 Investments............................................................................................................ 10, 15, 17, 51-52 Irrigationdistricts..........................................................................................................................29 J JobOffer........................................................................................................................................23 K Kickbacks............................................................................................................................9, 41, 84 L Lease(s) ...........................................................................................................See Property: Leases Leave-the-Room Requirement.................................................................................................17-18 Loan(s)................................................................................................................9, 15, 41, 52, 75, 87 Local Agency Employees ..................................................................................................23, 31, 85 M MailFraud ............................................................................................................... 9, 35, 41, 56, 84 MassMailings...........................................................................................................................36-37 Meals............................................................................................................................32, 34-35, 39 Understanding the Basics of Public Service Ethics Laws91 Index N Nepotism.......................................................................................................................................76 Non-Interest(s) ..............................................................................................................................21 0 Open Meeting(s)...........................................................................................................30, 36, 59-65 P PendingLitigation....................................................................................................................57, 61 PersonalFinances............................................................................................................. 15, 18, 52 Political Activities....................................................................................................................80, 87 Political Reform Act...................................10-20, 22-23, 32-33, 37, 41-42, 51-54, 56, 75-76, 79, 81 Prohibition(s).................................................................... 2, 12, 20-22, 36-37, 40, 42, 74, 77, 79-81 Property...................................................................................... 10, 12-15, 17-18, 40, 51-52, 61, 80 Business-Owned......................................................................................................... 15, 17, 52 Leases......................................................................................................................... 15, 52, 62 Proposition59...............................................................................................................................65 ProspectiveEmployer...................................................................................................................23 PublicComment(s)..................................................................................................................60, 64 Public Records ................................................................................................. 16, 34, 54, 57-58, 63 PublicRecords Act............................................................................................................ 16, 54, 58 PublicResources..........................................................................................................34-37, 56, 80 Misuseof.......................................................................................................................8, 34-37 PersonalUse of..................................................................................................................35-36 PoliticalUse of..................................................................................................................36, 80 Q Quasi-Judicial ...........................................................................................................................72-73 Quorum ...................................................................................................................................10, 18 R RealProperty................................................................................................................See Property Reimbursement..................................................................................................................34-37, 40 Policies.........................................................................................................................34-35, 76 RelatedBusinesses.................................................................................................................15, 52 RemoteInterests...........................................................................................................................21 RemovalFrom Office.....................................................................................................7, 35, 56, 78 Restitution...........................................................................................................................8, 35, 74 Revolving Door Restrictions..........................................................................................................23 Ruleof Necessity ..........................................................................................................................22 92 44Institute for Local Government I www.ca-ilg.org Index S Salaries...................................................................................................................29-31, 61, 80, 82 School Board(s)............................................................................................................18, 20, 22-23 Section1090 ............................................................................................................... 20, 22, 76, 81 Self-Dealing...................................................................................................................................20 SerialMeetings........................................................................................................................59, 62 SigningIn.......................................................................................................................................63 SocialMedia..................................................................................................................................62 Sourcesof Income.......................................................................................................10, 15, 51-52 SpecialDistricts..............................................................................................................7, 23, 29-30 Speech(es).....................................................................................................................................32 Spouse or Domestic Partner....................................................................................... 15, 18, 52, 76 Statement of Economic Interests................................................................................38, 40, 51-52 T Tape-Recording..................................................................................................................62-63, 65 Tickets....................................................................................................................See Gifts:Tickets Transparency..................................................................................................................2, 31, 50-65 Transportation...................................................................................................................32, 39, 40 Travel..................................................................................................................................34, 39-42 Travel Passes from Transportation Companies ............................................................................40 V Values...............................................................................................................................2-3, 11, 64 Voidthe Contract..........................................................................................................................22 Void the Decision ........................................................................................................ 19, 62, 65, 76 W Waterdistricts.........................................................................................................................21, 30 Website(s).....................................................................................................................31, 54, 62-63 Whistle-Blowing............................................................................................................................85 WireFraud.....................................................................................................................9, 41, 56, 84 Understanding the Basics of Public Service Ethics La4wss2 93 The Institute for Local Government is the nonprofit research affiliate of the League of California Cities and the California State Association of Counties. Its mission is to promote good government at the local level. The institute's current program areas include: Sustainable Communities >> Public Service Ethics Public Engagement >> Local Government 101 >> Collaboration and Partnerships 19MINSTITUTE FOR LOCAL GOVERNMENT 1400 K Street,Suite 205 Sacramento, California 95814 Telephone: 916.658.8208 Fax: 916.444.7535 www.ca-ilg.org For additional copies of this publication, please call 916.658.8208 or visit www.ca-ilg.org/ilgpubs Price:$25 443