In the first half of 2017, some two-dozen bills have been introduced in the State Legislature with the potential to impact laws regulating government ethics, transparency, and political activity. Legislation proposed in the State Assembly and State Senate seeks to repeal portions of existing law, and, at the same time, impose stronger penalties for violating remaining statutes. This legislation has been introduced by both Democrat and Republican members of the State Legislature, some bills with bi-partisan support.
Targeting government ethics, Assembly Bill 403, introduced in February 2017, seeks to establish a “Legislative Employee Whistleblower Protection Act” to prohibit retaliation against legislative employees who file complaints alleging violations of legislative ethics. If passed, this would complement the existing Whistleblower Protection Act that prohibits state agency employees from directly or indirectly using or attempting to use their official authority or influence for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the right of that person to disclose to a legislative committee improper governmental activities. Assembly Bill 802 seeks to “forever disqualify” a public official from holding office in the state if the individual is convicted of felony voter intimidation. And Assembly Bill 955 seeks to increase the terms of imprisonment for those who give or offer to give bribes to members of the legislative body of a city, county, school district, or other special district.
Targeting government transparency, Assembly Bill 1333 would require every local government agency that maintains a website to post on that site notice of any upcoming election in which voters will vote on a tax measure or proposed bond issuance of the agency. The same Bill would require local agencies that publish electronic newsletters to include the notice in such newsletters.
Several bills (of Assembly and Senate origin) seek to amend the Political Reform Act by changing regulations on campaign funding contributions, disclosures, and expenditures. To curtail conflicts of interest, these bills also seek to extend restrictions on employment for the period following service in an elected office or other specified position. For example, Senate Bill 679 would extend the time period prohibiting former legislators from engaging in paid lobbying activity from one to two years. And Assembly Bill 551 would specify that this prohibition applies to independent contractors of local government agencies who are appearing or communicating on behalf of the agency.
Current law and proposed legislation impacting government ethics are largely codified in three major statutory schemes: (1) the Ralph M. Brown Act (“Brown Act”), (2) California’s Public Records Act (“CPRA”), and (3) the Political Reform Act. (Other statutes do apply, though!) Speaking to government transparency, the Brown Act, first enacted in 1953, declares that the “people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” (Gov. Code, § 54950.) Under this principle, the Brown Act sets forth the general principle that public agency governing bodies meet and discuss business in a forum that is “open” to the public, and which provides the public with adequate notice about meeting logistics and subject matter. The Act allows governing bodies to meet in “closed” session – thereby restricting public access to such meetings – only when a specific statutory exception applies. For example, a governing body may meet in closed session to discuss pending litigation, labor contract negotiations, or real property transactions. In these cases, the public interest is served by allowing the governing body to meet in closed session where potentially adverse parties, or a competitor for real property, will not be privy to the governing body’s legal or negotiations strategy. Discussions pertaining to personnel matters, which impact an individual’s privacy, may also be conducted in a closed session under appropriate circumstances, and with appropriate notices provided.
Like the Brown Act, the CPRA encourages government transparency. Specifically, the CPRA provides that the Legislature, “mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov. Code § 6250.) Also, like the Brown Act, the CPRA requires public agencies to make public records open for inspection by members of the public unless a specified statutory exception applies. For example, personnel and medical records, the disclosure of which would constitute an “unwarranted invasion of personal privacy,” are exempt from disclosure even if prepared, owned, used, or retained by a state or local agency. The CPRA also includes a catch-all exemption that allows a public agency to withhold a public record when the “public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Even here, the balancing is one of two competing public interests. Thus, like the Brown Act, the overarching theme of the CPRA is public access to public information.
The third statutory scheme discussed here, the Political Reform Act, prohibits members of the Legislature, state, county, district, judicial district, or city officers or employees from being “financially interested” in any contract made by them in their official capacity, or by anybody or board of which they are members. It is this Act that requires statewide elected officers, candidates for elective office, and certain public officers to file a statement of economic interest – or “Form 700” – in connection with their positions. Chief Administrative Officers, City Managers, and candidates for and persons holding the office of City Council, City Treasurer, City Attorney, and/or Mayor are required to complete statements of economic interest, as are candidates for and persons holding the office of district attorney, county counsel, county treasurer, and/or member of a board of supervisors. Anyone appointed to another state board, commission, or similar “multimember” body of the state, heads of local government agencies, and members of local government boards or commissions are also required to complete statements of economic interest. In addition to these disclosure requirements, the Political Reform Act regulates lobbying activity, political campaigns, and campaign financing in the State of California. For example, the Act regulates political mailings; it prohibits mass mailings at public expense, and requires appropriate identifying information on such mailings.
While issues pertaining to government transparency, confidentiality, and conflicts of interest are the topic of much discussion on the Federal level, California public agencies are well-advised to keep an eye on potential changes stemming from the State Legislature, which, if passed, will impact local agency obligations here in California.