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HomeMy WebLinkAbout12-15-1999 Agenda Item 7ASARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. ~ 2 2 D AGENDA ITEM MEETING DATE: December 15,1999 CITY MANAGER: ORIGINATING DEPT.: CITY MANAGER DEPT. HEAD: SUBJECT: Memo from City Attorney regarding political activities of City officials and staff RECOMMENDED MOTION(S): Receive the report and direct staff accordingly. REPORT SUMMARY: The City Attorney has drafted the attached memo at the Council's request that discusses political activities of City officials and staff in the context of applicable laws. The City Attorney will discuss the contents of the memo at your meeting. Afterwards, the Council should decide what, if any, policies regarding this it might wish to establish. FISCAL IMPACTS: None anticipated. ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. CONSEQUENCES OF NOT ACTING ON RECOMMENDED MOTION(S): N/A. FOLLOW UP ACTIONS: Depends on Council's decisions. ATTACHMENTS: Memo from City Attorney. SHUTS, MIHALY 8 WEINBERGER LLP E. CLEMENT SHUTS, JR. ATTORNEYS AT LAW MARK !.WEINBERGER MARC B. MIHALY, P.C. 3~J6 HAVES STREET FRAN M. LAYTON SAN FRANCISCO, CALIFORNIA ~J4102 RACHEL B. HOOPER ELLEN J. GABBER TELEPHONE: (415) 552-7272 CHRISi'Y H. TAYLOR TELECOPIER: (415) 552-5816 TAMARA S. GALANTER ELLISON FOLK RICHARD S. TAYLOR SUSANNAH T. FRENCH WILLIAM J. WHITE JOSEPH E. JARAMILLO ROBERT S. PERLM UTTER AARON 5. ISHERWOOD SUSAN S. CLEVELAND OSA L. ARMI MEMORANDUM TO: Saratoga City Council FROM: Richard S. Taylor, City Attorney DATE: December 10, 1999 RE: Political Activities of City Officials and Staff LAUREL L. IMPETT, AICP URBAN PLANNER ELIZABETH M. DODD OF COUNSEL In light of the Library Bond measure recently placed on the March, 2000 ballot and at the request of Mayor Bogosian, this memorandum summarizes the law governing political activity by the City including Council members, commissioners, and City staff. The key points of the law may be summarized as follows: The City Council and commissions may take positions with respect to issues of community concern and may announce those positions publicly. The City may also, through its elected officials, commissioners, and staff, lobby legislators of other local governments and of the state and federal governments to influence legislative action. As with any action by a commission, commission policy statements must be within the scope of the commission's jurisdiction as set forth in the ordinance or resolution establishing the commission. The City may not make expenditures of public resources through the City Council, commissions, or staff in a manner intended to influence public opinion. City resources may be used to provide objective information on issues of public concern. Public resources may also be used to inform the public of the position of the Council or commissions in the manner in which the public is generally informed of council or commission decisions (i.e., resolutions and minutes). Saratoga City Council December 10, 1999 Page 2 With the exception of the ban on using public resources for political activities and laws prohibiting improper use of public office, there are few limits on the ability of individual Council members to participate in political activities. Commissioners are subject to somewhat greater limitations. City staff may engage in political activities in their off hours with only few exceptions. In order to ensure that these activities do not result in an improper expenditure of public funds, the City Council may prohibit political activity during work hours and on City property. Below, we first describe the law as it applies to political activities of the City itself when it acts through the City Council, a commission, or City staff. This is followed by a discussion of the law applicable to political activities of individual Council members, commissioners, and City staff. I. Political Activities of the City In general, the City may not spend public money for any partisan political activities. The California Supreme Court, in Stanson v. Mott, 17 Ca1.3d 206 (1976), set forth the core constitutional principles governing public agency expenditures on the dissemination of public information concerning elections. Stanson concerned a challenge to the Department of Parks and Recreation's dissemination of "promotional" literature during a bond election. The Court held that absent explicit legislative authorization, a public agency may not expend public funds' to promote a particular position in an election campaign. (See id. at 209-10.) As the Court stated, "[a] fundamental precept of this nation's democratic electoral process is that the government may not `take sides' in election contests or bestow an unfair advantage on one of several competing factions... . [T]he selective use of public funds in electoral campaigns, of course, raises the specter of ... an improper distortion of the democratic electoral process." (Id. at 217.) Notwithstanding Stanson's general prohibition, public agencies may take positions on ballot questions so long as they do so during the course of a regular meeting that is open to the public and thus to the expression of citizens' views. "While [such an 'This includes not only direct expenditures such as postage and copying costs, but indirect expenditures such as staff time and use of City equipment and office space. (See, People v. Sperl, 54 Ca1.App.3d 640 (1976).) Saratoga City Council December 10, 1999 Page 3 endorsement] may be construed as the advocacy of but a single viewpoint, there is no genuine effort to persuade the electorate such as that evinced in the activities of disseminating literature, purchasing advertisements or utilizing public employees for campaigning during normal working hours." (League of Women Voters v. Countywide Criminal Justice Coordination Comm., 203 Ca1.App.3d 529, 560 (1988).) This is true even though public funds are, by necessity, expended in holding the public meeting itself. (Id.) Public agencies also may use public funds to disseminate objective and balanced information concerning ballot questions. (Stanson v. Mott, supra, 17 Cal. 3d. at 221, n.6.) For example, it is permissible for an agency to evaluate the likely impacts of a ballot measure on the agency, and to make that information available to the public who may make use of the information if they choose. 2 The Stanson court held that although the Department of Parks and Recreation, as a public agency, could not expend public funds to "promote" passage of a park bond issue, the agency could use public funds to disseminate relevant information relating to the election in a fair and impartial way. The court explained that "it would be contrary to the public interest to bar knowledgeable public agencies from disclosing relevant information to the public,. so long as such disclosure is full and impartial and does not amount to improper campaign activity." (Id.) Because the line between permissible objective information and impermissible promotional information is not always clear, it is important to carefully review any information that the City plans to disseminate using public funds. State law also allows expenditures of public funds for certain lobbying activities. A local legislative body, directly or through a representative (i.e., City staff or Commissioners), may meet with both the federal and state legislatures, representatives of the federal and state executive, state agencies, and other local agencies on issues that affect the City. (Gov't Code § 50023.) Further, a local legislative body may enter into associations for the above stated purposes. (Gov't Code § 50024.) The distinction z The legislature has codified this exception in several instances. Education Code section 7054, for example, provides that a school district may use public resources to provide information about bond and ballot measures so long as the information constitutes a fair and impartial presentation of the relevant facts to aid the electorate. And Education Code section 7058 provides that school district boards may allow the use of a school forum for debates between candidates or concerning issues on the ballot so long as it is made available to all sides on an equitable basis. (Education Code § 7058.) Saratoga City Council December 10, 1999 Page 4 between permissible "legislative lobbying" and impermissible "election campaigning" by public bodies turns on the audience to which the activity is directed. (See. Miller v. Miller, 87 Cal App. 3d. 762, 768-72 (1978)(noting that the statutes authorizing public agency lobbying are narrowly construed, that nothing authorizes the use of public funds to influence decisions of the people as the electorate, and that such advocacy activities present a serious threat to the integrity of the electoral process).) The foregoing limitations on expenditures of public funds apply equally to expenditures by or on behalf of the City Council, commissions, and staff. The "lobbying exception" refers explicitly to "legislative bodies" and therefore does not authorize lobbying by City commissions or City staff unless the commission or staff are acting as the City Council's authorized representative. State law allows objective information to be disseminated by the City Council, commissions, and staff alike. Of course, any expenditures of funds for that purpose would need to be authorized by the City Council. Similarly, commissions and staff may take positions on public issues on behalf of the City only to the extent that they are authorized to do so by the City Council in the form of an explicit or general direction to staff or a Commission. Note that City's Protocol for Public Officials provides that only the City Council may authorize staff to "initiate actions, prepare a report that is significant in nature, or initiate any project or study relating to City business." (City of Saratoga Resolution No. 94-23, § 4.) II. Political Activities of City Officials A. In General The law gives some degree of latitude to City Councilmembers, Commissioners, and staff to participate in political activities as individuals. City officials may publicly endorse other candidates, ballot measures, or take positions on matters of public interest. The courts have explained that elected officials and appointed Commissioners are expected to take positions on matters of public policy and that they have both a right and an obligation to discuss issues of vital concern with constituents and to state their views on matters of public importance. (See, Citv of Fairfield v. Superior Court, 14 Cal 3d. 768, 780-82 (1975)[council members' prehearing statements concerning zoning application were irrelevant to whether the application received a fair hearing]; see also, Attorney General Opinion No. 94-1003 (March 16, 1995)[a city council member who signed a petition is not disqualified from participating in Saratoga City Council December 10, 1999 Page 5 proceedings on that issue].) The primary limitations on individual conduct arise from the principle that public funds may not be used for political purposes and the related principle that public office may not be used to obtain an unfair advantage in the political process. Thus, state law makes it a crime for an individual to use public funds for political purposes. (Penal Code § 424; see People v. Sperl, 54 Ca1.App.3d 640 (1976)[Los Angeles County Marshal convicted for assigning deputies to (i) lobby on behalf of private association during work hours, (ii) use county vehicles for political purposes, and (iii) use county telephones and staff for fundraising telephone calls.].) In addition, state law establishes certain limits on the nature of political activity that may be undertaken by City officials. The Government Code provides that City Councilmembers, Commissioners, and employees may not: • Use their office, authority or influence to obtain a change in position or compensation in exchange for a particular vote or political action by the official or employee. This includes urging or discouraging an individual employee to engage in specific action. (Gov't Code § 3204.) Directly or indirectly solicit political funds or contributions from other officers or employees of the local agency unless the communication is made to a significant segment of the public which may include officers and employees of the local agency. (Gov't Code § 3205.) • Directly or indirectly offer to increase the compensation or salary of another in exchange for a contribution or loan to any committee controlled directly or indirectly by the person who holds or is seeking election to an office. (Gov't Code § 3205.5.) • Participate in political activities of any kind while in uniform. (Gov't Code § 3206.) The one exception to these limitations is that employees may solicit and receive political funds or contributions to promote the passage or defeat of a ballot measure which would affect the rate of pay, hours of work, retirement, civil service, or other working conditions of officers or employees of the state or local agency. (Gov't Code § 3209.) However, Saratoga City Council December 10, 1999 Page 6 even this protected activity may be limited by the City during working hours and on government property. (Id.; Gov't Code § 3207.) B. Limitations on Councilmembers and Commissioners There are no federal or state statutory limits on a Councilmember or Commissioner using his or her official title in connection with political activity or fund raising when he or she is acting as a private individual. However, as a precautionary measure many officials have adopted the practice of stating that their official title is being used only "for purposes of identification." This precaution is particularly useful where an official is strongly identified with their office and it is important to clarify that certain actions are being taken as a private individual to avoid any implication that the official is acting or making expenditures on behalf of the City. As a private individual a City official may contribute to another person's election campaign or to a ballot measure campaign. (Buckley v. Valeo, 424 U.S. 1 (1976); California Attorney General Opinion No. 96-505 (March 20, 1997).) In general, a public official acting as a private individual may also raise funds for other candidates or ballot measures. However, non-elected officials (i.e., Commissioners) may not solicit or direct a contribution of more than $250, for any candidate or ballot measure, from any party while a proceeding involving a license, permit, or other entitlement for use is pending before the official or for three months after such a decision is rendered final. (Gov't Code § 84308(b).) This limitation also applies to elected officials serving in a non-elected capacity on a board or commission that has the power to grant licenses, permits, or other entitlements for use. (Gov't Code § 84308(a)(4).) Further, all candidates and public officers are subject to the restrictions of the Political Reform Act limiting and requiring disclosure of financial contributions and conflicts of interest. (Gov't Code § 81000 et seq.) C. Limitations on Ci ,~ Staff The policy of the State of California is to allow broad freedom of political expression by local government employees. (Gov't Code § 3203.) In order to avoid any actual or apparent misuse of public funds, however, the legislature has authorized local governments to establish rules and regulations prohibiting or otherwise restricting officers and staff from engaging in political activity during work hours and on City property. (Gov't Code § 3207.) The City currently does not have any such policies. Any policies Saratoga City Council December 10, 1999 Page 7 that are adopted by the City must be narrowly tailored to advance the City's interest in efficiency and integrity of public service and avoid unnecessary interference with employees' rights under the first amendment to the U.S. Constitution. (Fort v. Civil Service Comm of the Countv of Alameda 61 Ca12d 331 (1964).) Under federal law, the Hatch Act applies primarily to federal executive branch employees. (5 U.S.C. §§ 7321 et seq.) However, specific provisions of that law apply to officers and employees of any state or local agency whose principal employment is in connection with any activity financed in whole or in part by loans or grants from the federal government. (5 U.S.C. §§ 1501-1508.) Those employees may not (1) use their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for office; (2) coerce others for contributions; or (3) be a candidate for elective office. The Act does not prohibit an employee from being a candidate in a nonpartisan election. (5 U.S.C. § 1503.) Violations of the Act may warrant removal of the officer or employee from employment. (5 U.S.C. § 1505.) If the officer or employee is not removed, the federal funds may be withheld from the agency in an amount equal to two years pay of the officer or employee. (5 U.S.C. § 1506; Oklahoma v. U.S. Civil Service Comm.. 330 U.S. 127 (1947) [removal or forfeiture clause in Act is constitutional].) However, whether an employee can be disciplined or terminated for violation of this federal statute will depend on the applicability of various state laws protecting employees. The Office of the Special Counsel of the U.S. Merit Systems Protection Board ("OSC") has primary responsibility for enforcing the Act. OSC has stated that affected employees may: run for public office in nonpartisan elections; campaign for and hold office in political clubs or organizations; actively campaign for candidates for public office in partisan and nonpartisan elections; and contribute money to political organizations and attend political fund raising functions. (See OSC Web Site at www.osc.gov/hatch b.htm.) Affected employees may not: be candidates for public office in a partisan election, use official authority or influence to interfere with or affect the results of an election or nomination; directly or indirectly coerce contributions from subordinates in support of a political party or candidate. (Id.) Please do not hesitate to contact me if you have any questions concerning these matters. [P:\SARATOGA\MAT 1 \RST045. MEM]