SCLPC Ethics Advisor

The Ethics Advisor

Thirteen Things You Need to Know About Campaign Restrictions

Ya no aguanto.
Can we POSSIBLY get away from campaigning and politics for a little while?
Sorry folks, pero, no. Puntada.

With the 2016 Presidential election campaign in full swing, and the constant barrage of tweets, posts, headline stories, evening news specials, and Goodness-knows-how-else we all receive our daily [over]dose of la política, there really is no way to escape this year.

But don’t let all the noise fool you. Local elections and campaigns are likewise about to heat up now that filing deadlines for many local races have come and gone. Here are the top 13 things to remember when embarking on local elections and campaigning.

  1. First, remember the rules apply to almost anyone running and anyone supporting someone running for office in California. This means the candidate her- or himself, a campaign committee, a general purpose committee, a political party committee, a slate mailer organization, a major donor, or any other person or entity making independent expenditures on behalf of a candidate or ballot measure.
  1. By “the rules,” we mean the Political Reform Act, which generally requires candidates and committees to file campaign statements by specific deadlines AND any local rules or ordinances that your local jurisdiction might have adopted. Click here to see if your local agency has a special campaign ordinance.
  1. Those statements generally will include contributions and expenditures made on behalf of the candidate or ballot measure.
  1. What makes a “committee”? There are 3 ways a person or entity becomes a committee:

– Receive contributions of $2,000 or more per year for political purposes (Recipient Committee); includes candidate controlled committees; committees primarily formed to support or oppose candidates or ballot measures; political party committees; and other general purpose committees.

– Make at least $1,000 worth of independent expenditures per year (NOT in consultation, cooperation or coordination with a candidate) on behalf of a candidate or ballot measure (Independent Expenditure Committee).

– Make at least $10,000 worth of contributions per year to or at the request of a candidate or ballot measure proponent (Major Donor Committee); can be a business, individual, or a multi-purpose organization (including a nonprofit organization).

  1. Paperwork and deadlines matter. A cursory Google search over the past couple of months will reveal examples of candidates who have faced intense public scrutiny and harsh penalties from the FPPC for missing deadlines and/or failing to properly disclose contributions and expenditures. The FPPC warns that “missing a filing deadline can have serious consequences ranging from monetary penalties, failure to be listed on the ballot, or FPPC enforcement action.”
  1. Filing deadlines vary, and are set forth regularly by the FPPC on its website. For example, candidates running for local office on the November 8, 2016 presidential election ballot must file their First Pre-Election Form 460 (if you have a controlled committee and plan to receive and/or spend more than $2,000 during the calendar year) or 470 (if you don’t have a controlled committee and don’t plan to receive or spend more than $2,000 during the calendar year) no later than September 29, 2016. The Second Pre-Election statement must be filed no later than October 27, 2016.
  1. Candidates for local office typically file with their local elections official, usually the City Clerk for municipal-run elections or the County Registrar of Voters for county-run elections.
  1. While the State has specific contribution limits for various State offices, there is no generally-applicable state law that imposes campaign contribution limits on local offices. Instead, many local jurisdictions have adopted their own contribution and/or expenditure limits.
  1. You must reveal the true source of any contribution of $100 or more (in the aggregate over a calendar year) on your Form 460. If a contribution is received through an intermediary, both the intermediary and the true source of the contribution must be identified. Failure to disclose the true source of a contribution is considered campaign money laundering, and a serious violation of law. For example, it is illegal for an employer to “reimburse” an employee for a political contribution made in the employee’s name, as the employer would be considered the “true source” of the contribution.
  1. Anonymous contributions of $100 or more are prohibited. Additionally, neither a committee nor a candidate may accept cash contributions of $100 or more.
  1. Do not ask individual employees of your agency for political contributions. Government Code section 3205 prohibits a local candidate from knowingly, directly or indirectly, soliciting a political contribution from any employee of his or her agency.
  1. Do not use public funds or public resources for your campaign. This means not only agency moneys, but also agency offices, telephones, computers, copiers and other equipment and staff time.
  1. You’re not in this alone.  There are many resources available to assist you in complying with campaign finance laws and regulations. The FPPC has an online Toolkit and Campaign Disclosure Manual that answer many questions and the Institute for Local Government offers valuable resources “to help you run a clean and ethical campaign.”

Good luck on the campaign trail!

Ruben Duran: The Ethics AdvisorRuben Duran
Follow me on Twitter @BBKRubenDuran
(213) 787-2569

Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.




The Ethics Advisor

It’s Getting Hot in Here

Ah, summertime. Beaches, BBQs, visits with familia, ethics developments, balmy nights …

Wait – ethics? Yes, it’s true. The world of ethics and conflicts of interest es muy caliente this summer, with a couple of interesting developments to think about and keep an eye on.

Former VA Gov. Robert McDonnell and wife Maureen. Courtesy USA Today

First, in late June, the United States Supreme Court issued its ruling in a case involving former Virginia Governor Robert McDonnell and his wife, who were indicted and convicted on federal criminal charges relating to bribery and fraud when they accepted $175,000 in loans, gifts, and other benefits from a Virginia businessman. Following its precedent in cases like Citizens United, Skilling (the case involving the Enron scandals) and McCutcheon v. FEC, the court held that because the Governor did not take any specific “official acts” beyond merely exerting influence over or granting special access to a politician or an officeholder, his convictions could not stand. Writing for a unanimous eight-person court (the President’s proposed appointment of Justice Merrick Garland continues on-hold in the Senate), Chief Justice Roberts emphasized that the only actionable public corruption is “quid pro quo” bribery. Read more about the decision in this piece by my friend and colleague, Gary Schons.

box seats wine partygolf

Does that mean that California local elected officials now have the green light to engage in what we have consistently warned against as unethical and illegal behavior by accepting gifts in exchange for providing access and influence? The answer, of course, is a resounding “no,” and not only because we continue to believe that a strong reputation for ethical behavior is essential to public service (recall our inaugural message No Estés Chillando, C@#$%n).

Importantly, the McDonnell decision does not change state law in California; that case was a federal criminal prosecution. California’s restrictions on accepting gifts (including reporting requirements for gifts valued at $50 or more and an outright prohibition on accepting gifts valued at over $460) continue to govern, and the Political Reform Act’s (the “PRA”) prohibition on making a decision or attempting to influence a decision in which you have a financial interest is as strong as ever (the giver of gifts generally being a triggering economic interest).

This leads to the second hot topic of the day: major reforms to the PRA are on the horizon. The law has already undergone dozens of minor amendments since its adoption over 40 years ago. The Fair Political Practices Commission (FPPC), in conjunction with California Forward and the University of California, is embarking on a process to solicit public input on needed revisions to the PRA, all with an eye to modernizing the law and making its application more practical. The FPPC is charged with interpreting and enforcing the PRA, and has adopted an extensive set of Regulations to address conflicts of interest, campaign finance and disclosure and the reporting of public officials’ economic interests through the Form 700.

P1010541California Forward reports that the “project will include two rounds of public participation over the course of several months, to ensure what the FPPC plans to be an inclusive and transparent process.” The Ethics Advisor plans to take part in that process, and respectfully encourages readers to do the same. Our legal landscape in the area of ethics and conflicts of interest can surely benefit from the real-world experience and input of those countless public servants who attempt to successfully navigate the sometimes cumbersome and confusing laws and regulations aimed at ensuring public decision-making free from corruption and undue influence. Sí vale la pena. In the meantime, as always, please feel to reach out with any questions or comments, and enjoy the rest of your summer!



FullSizeRender (1)Ruben Duran
Follow me on Twitter @BBKRubenDuran
(213) 787-2569

Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.


The Ethics Advisor

Vamos a la Playa!

By: Ruben Duran

beach sunsetSummer’s approach often brings thoughts of travel. Whether with family or friends, by train, bus, car or plane, to places exotic or nearby, most people love to just get away from the day-to-day and viajar.

Public officials in California are no different, though they do have to remember the rules if someone else pays for their travel. This edition of The Ethics Advisor offers a brief summary of the basic laws and regulations concerning gifts of travel and some gentle warnings because even if a public official with every good intention runs afoul of the law in this area, it often leads to caustic coverage in the press and stiff penalties from the FPPC, and sometimes even criminal prosecution, which can have even more severe consequences.

imgresLet’s start with the basic rule in California that a “gift” is anything of value you receive without paying for it. In the context of travel, this could mean airline or train tickets, a rental or other borrowed car, the use of a timeshare or private home without the owner present, or a hotel stay. Next, understand that “travel payments” can also include payments for food and drink that are part of the trip.

The government code has special rules for gifts of travel, and depending on the circumstances of your trip, they can be tricky. Not all travel for which you don’t pay is a reportable gift or subject to the gift limits. As with many ethics rules and conflicts of interest laws, there are exceptions.

The broadest exemption depends on your status as a Form 700 filer and your category of disclosure under the law and your agency’s local Conflicts of Interest Code. Briefly, the Political Reform Act requires elected officials to disclose gifts valued at $50 or more in the aggregate and prohibits the acceptance of more than $460 from any single source. On the other hand, public officials not designated in that category (who typically are required to report gifts and income from a more limited scope of sources – those who do business in the jurisdiction, for example) do not have to report gifts of travel from non-reportable sources at all.

Other exemptions that apply to all Form 700 filers include:

  • Travel paid for by your public agency related to trips on which public business is conducted
  • Travel paid for by another governmental agency for education, training or other inter-agency programs
  • Travel in a vehicle or aircraft owned by another official or agency when the officials are traveling to or from the same location or event as representatives of their respective offices
  • Travel as part of a local official’s employment with their agency, paid for by that agency, when on official agency business
  • Travel provided by a bona fide non-profit, tax-exempt organization for which the official provides equal or greater consideration (with the burden on the official of proving the consideration)
  • Travel whose costs are paid by the local agency after the local agency receives payment for the costs from third parties. In this situation, the travel must be for carrying out official agency business and the local agency must report the payment on a Form 801.
  • Travel for campaign purposes paid out of properly raised and reported campaign funds
  • Travel paid for by third parties where a contract between the local agency and the third party requires such payment.

imagesAlso exempt from reporting and disclosure are gifts of hospitality including food, drink or occasional lodging that an official receives in an individual’s home when the individual or a member of his or her family is present. (FPPC Regulation 18942(a)(7)).  For this exception to apply, the official must have a relationship, connection or association with the individual providing the in-home hospitality that is unrelated to the official’s position and the hospitality must be provided as part of that relationship. Examples provided by the FPPC include functions like children’s birthday parties, sports team parties, neighborhood barbeques, etc., where other guests attend “who are not part of the lobbying process.” (FPPC Regulation 18942.2.)

To conclude, The Ethics Advisor wishes you buen viaje and smooth ethical sailing. As always, feel free to reach out to us with your questions or comments.

Sofia's Baptism Hawaii 063-c1Ruben Duran
(213) 787-2569

Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.

The Ethics Advisor

No Hay Mal Que Por Bien No Venga

(or, Bad Stuff Sometimes Happens, Even to Good People)

By Ruben Duran – The Ethics Advisor

imgresSometimes, it just happens. Tragedy strikes; disaster hits. Whether self-inflicted or supernaturally caused, when a crisis confronts a public agency, it can set in motion a series of events that have a long-lasting impact on the strength and well-being of the organization, and sometimes on the health and sanity of elected officials, management staff and others whose reputations and jobs may be at stake. How the public perceives how well or poorly a city, school district special district community college or any public entity handles a crisis can have a meaningful and lasting impact after the crisis has subsided.

What are the ethics of handling a crisis as a public official?

While there are relatively few laws that bear on this situation, there is some guidance in them. Additionally, perhaps as important as ensuring legal compliance is the need to ensure best practices in dealing with the news media and the public.

In this month’s Ethics Advisor, we examine two scenarios that might call for quick thinking and concerted action when dealing with a crisis or emergency.

imgres-3The first scenario arises when a bona fide emergency hits, such as a natural disaster or a terrorist act. The second kind of crisis involves intense negative public exposure when an agency employee or public official either makes a mistake or engages in illegal or unethical behavior that results in a financial loss or embarrassment to the agency.

When a local emergency is declared, California law requires local governments to use the Standardized Emergency Management System (SEMS) to be eligible for state funding of response-related personnel costs. Those sections require use of SEMS in emergency plans and procedures, SEMS training, use of SEMS in exercises and in performance of any emergency response.

imgres-2As local news headlines sometime prove, not all crises at the local government level are caused by acts of God. Sometimes people cause the crisis, whether through criminal activity or even criminal negligence.

A public official’s duty in each of these circumstances is first to serve the public he or she was elected, appointed or hired to serve. This means taking action and making decisions aimed at protecting the agency’s assets and position.

Follow open government and transparency rules.

For example, while the Brown Act does allow a legislative body to convene a special meeting with less than the customary 24 hours’ notice in the case of an emergency that threatens public safety, facilities or services, the agency must post the agenda for the meeting and a notice of any action taken at the meeting soon after adjournment. Additionally, remember that the Public Records Act does not include an exemption for embarrassing documents. If a record is otherwise disclosable under the Act, it must be released when requested under the standards set forth in the law.

images-1Finally, crisis situations demand clear and honest communication. It is rarely prudent or acceptable to “batten down the hatches” and stay silent. Ethical standards don’t necessarily require immediate and overly broad sharing of information. Rather, responsible public officials must remember that:

  • Once communicated in public, a message can never be taken back.
  • For that reason, whatever the message, it should be accurate, truthful and legally proper to share.
  • Don’t reveal confidential information such as attorney-client communications, or private and confidential personnel information.
  • By the same token, don’t release information before the facts have been developed and the position of the public agency has been determined.
  • And, ensure that all of the key representatives of the agency know the facts and the agency’s position so that conflicting messages don’t get out and potentially confuse the public.
  • Better yet, designate one person to be the single voice of the agency

Perhaps most importantly in a crisis, do not lie.

If there are facts that are known and appropriate to share and you have been designated as the spokesperson for the agency, communicate simply and clearly, preferably with a message that has been vetted and approved by leadership in your organization.

Ruben Duran: The Ethics Advisor

Ruben Duran
(213) 787-2569

Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.

The Ethics Advisor – November 2015

I’ve Just Been Elected (or Re-elected) to Local Public Office – Now What?

By Ruben Duran – The Ethics Advisor
For the Latino Policy Connection

Congratulations, Ms. or Mr. Newly-Elected Public Official, and welcome to the world of local government and public service ethics. This column is a resource for you on ethics laws and hot topics, and we hope it serves you well in your own service to your constituents. Offered monthly, we explore laws and rules meant to strengthen and protect the public’s trust in you and your colleagues as stewards of public monies and the public good. A brief introduction is here in our inaugural message: “No estés chillando, C@#$0n.”

This month, we’ll touch on the major rules and regulations that require your immediate attention as a newly-elected public official.

First, get ready to let the sunshine in! Essentially all local government in California is subject to the State’s open government and transparency laws. These include the Ralph M. Brown Act (covering access to “meetings” of local government bodies), the California Public Records Act (covering access to electronic and physical “records” concerning the public’s – i.e., “your” – business) and the Political Reform Act (covering campaign finance rules and financial conflicts of interest, including public access to certain details about your income and the gifts you receive – and the sources of that income and those gifts). Quickly, here are the essential things to know right away on open government:

  • The Brown Act: The public has a right to observe and comment on any discussion or decision you’re a part of that includes a majority (50 percent plus one) or more of your elected body. That means generally every meeting involving three or more of your five-person body (or four or more of a seven-member body, etc.) at which you listen to, discuss or make a decision on a topic related to your entity must take place in a space open to the public — and only after sufficient public notice has been given. And, a meeting need not be only in person; it could be a telephone call or a series of texts or emails. There are exceptions for things like confidential closed sessions to discuss litigation with your attorney or labor union negotiations to provide directions to your negotiators; but even those must follow public notice and an opportunity for the public to comment before you consider them behind closed doors.
    • Bottom line: If you’re ever in a group of a majority of your elected body and discussing the public’s business, it had better be in a place open to the public after having given the proper public notice.
  • The Political Reform Act: Within 30 days of taking office (and by April 1st every year thereafter), you must file (usually with your city clerk or a comparable office) a Statement of Economic Interests, which is commonly called a “Form 700.” In it, you will publicly disclose many (but not necessarily all) of your “economic interests,” which is money you make, property you own, investments you hold, businesses you manage or lead, and gifts you receive (valued at more than $50, either individually or cumulatively from a single source).
    • Additionally, with respect to conflicts of interest, remember that elected officials cannot participate in any discussions or influence any actions in which they have a conflict of interest, even situations where the board member is not directly, personally affected by a decision of the board. For example, if the decision affects a “source of income” – any person or company that provided $1,000 or more to the official within the 12 months of the decision – or any real property within 500 feet of the board member’s property, then there may be a conflict. When the agenda item is called, the conflicted official must publicly identify the conflict and leave the room before the discussion begins; merely abstaining from voting is insufficient.
  • The Public Records Act: All governmental records are generally subject to inspection by the public, with limited and narrow exceptions. “Records” include all communications related to public business, regardless of the physical form or characteristics. Public officials should be aware that their emails and texts related to public business — even on their private devices — may be considered a public record subject to mandatory disclosure.

Second, understand that if you’re not already rich, you aren’t going to become rich as a result of being an elected official. The ethics and criminal laws in California, along with the courts, the press and, very often, public opinion, are all clear that public service is supposed to be its own reward. Apart from usually nominal stipends and reimbursement for necessary expenses, you will not be receiving any money for the many hours of work you will put in serving your community. Volunteer leadership is a long and proud tradition in this country going back to the days of the founding fathers, and our laws are written to reinforce the concept that servant leaders serve for the public’s good and benefit, not for their own self-interest and or to receive exorbitant pay, special treatment or “perks” because they are elected officials.

Third, remember important filing deadlines:

  • Within 30 days of being sworn in to office: file your Assuming Office Statement – Form 700.
  • Within one year of being sworn in: receive AB 1234 Ethics Training if your agency compensates you for your service or reimburses you for your expenses. Note that school districts are not specifically subject to this requirement, though many district do provide or suggest comparable ethics training for school board members.
  • By February 1, 2016: file your Semi-Annual Form 460 covering campaign donation receipts for the November 3, 2015 election.

Finally, enjoy the journey. We realize that all this ethics “stuff” might seem overwhelming or even burdensome at times, but understand that we’re all in this together. We hope that you will turn to resources like this blog, the Institute for Local Government and legal counsel whenever you have a question about your ethical duties. In the meantime, we wish you well as you embark on what we hope will be a long, successful and happy career in public life, bringing your own unique perspective and talents to the public arena for all our mutual benefit.
¡Buena suerte!

Duran_130x162-c2Ruben Duran
(213) 787-2569

Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.



The Ethics Advisor – October 2015

The Proper Roles of Staff and Elected Officials

By: Ruben Duran, The Ethics Advisor

wordleMost cities in California (an overwhelming 97%) operate under the “Council-Manager form of government,” under which the elected councilmembers directly hire and oversee one top-level employee (the City Manager) to function as a CEO and administer the day-to-day activities of the City. Other local governments employ a similar system, whether it be school board of trustees hiring a Superintendent or a special district board of directors hiring a General Manager.

In California, almost all local governments operate under a system that relies on the delicate balance between the elected body that sets the policy priorities of the government and the staff employees that implement those policy priorities at the direction of a chief executive or administrative officer. This power dichotomy may be encapsulated in a municipal code provision, a board policy or an ordinance or resolution that sets up a system in which the elected officials are generally prohibited from approaching agency employees “except for the purposes of inquiry.”

But what exactly does that mean? This blog examines the legal framework and practical applications of the Council-Manager form of government (and its analog forms for entities other than cities), and offers suggested best practices for elected officials and staff to ensure the smooth and successful operation of local government.

Under this form of government, the city manager, superintendent or GM (the “CEO”) holds office at the pleasure of the elected body. The CEO generally hires and fires all other employees, usually with the exception of legal counsel, which also reports directly to the elected body. This policy is based on the principle of separation of powers, which ensures that the elected officials and the CEO can perform their duties without unnecessary interference from one another. More importantly, this separation of powers makes clear to staff that they are accountable only to the CEO. This gives employees the certainty of having just one ultimate boss, the CEO, as opposed to the entire elected body, or any individual member of it.

The job of the elected body, then, is to legislate and to create the vision and set forth the policies that should guide the CEO’s work. That is not to say, however, that elected officials are without any rights under the system. For example, under the First Amendment, elected officials are protected when, in their capacity as council members, they intercede on behalf of their constituents. In 2000, a federal court held the elected officials were protected from any liability when they acted as “ombudsmen” for their constituency. The court noted that this type of advocacy was vital to representative government. Another case held that elected officials may respond to inquiries regarding agency projects under their First Amendment rights.

Practically speaking then, what does this suggest for the manner in which elected officials manage their relationships with staff? Principally, all involved should have a thorough knowledge and clear understanding of the rules. Additionally, here are 5 best practices to use today in your work.

  1. Criticize the project or the process, NOT the people.
  1. Do not publicly criticize staff.
  1. Do not mistake partisanship for advocacy. There is a difference between making policy and the day to day business of your entity.
  1. Remember that you are part of a team – don’t ask a staff member to research an issue for you and then spring it on the other board members.
  1. Don’t leave staff vulnerable to public attacks.

Recognizing the tensions that can exist within a system meant to produce the most public good and remembering the rules as they apply to our day-to-day work in our service to our constituencies is likely the best way to ensure that the public good does indeed come to fruition.

Duran_130x162-c2Ruben Duran
(213) 787-2569

Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.

The Ethics Advisor – Sept. 2015

The Public Official’s Quick and Clean Guide to Gift Rules and Regulations

By Ruben Duran, The Ethics Advisor

As a public official in California, whether elected or appointed, volunteer or employee, you need to be aware of the rules regarding your receipt and reporting of gifts, as well as the traps for the unwary that can lead to trouble. There are things to do to avoid being the subject of headlines we see from time-to-time that decry the “floor seats at the playoff game” or the “lavish meals and entertainment” that some public officials receive in California.

So, here are the top ten pointers to remember when it comes to receiving and accepting gifts:

10 – It’s not illegal to accept (most) gifts in California. As long as you comply with the reporting requirements, keep within the limits and avoid prohibited gifts, you can stay within the bounds of the law. Of course, just because you can accept a gift does not necessarily mean you should. The decision whether to accept a gift is a personal one that each public official must make in light of their own circumstances, any special local policies or rules and the expectations and standards of your constituents.

9. A gift can be almost anything. It doesn’t have to be a present tied with a bow. In fact, it usually isn’t. The legal definition of a gift is broad and will encompass essentially anything you get (whether products, services, loans, meals, etc.) for which you don’t pay market value. Watch out for: “free advice” from consultants or professionals and tickets or passes to events or entertainment (like concerts, golf or the spa).

8. A reportable gift can come from almost anyone. With exceptions for gifts received from family members and your public agency, anyone, whether an individual or a company, can give you a gift that might be reportable, or, depending on the value, prohibited. The trigger is if the source of the gift is someone whom you are required to identify on your Statement of Economic Interests (Form 700).

7. A gift to a member of your family can be a gift to you. This includes gifts to your spouse, dependent minor child and dependent adult child between the ages of 18 and 23 where certain, specific criteria are met. The FPPC regulation governing this scenario is very detailed and should be consulted if there is any question about whether a gift to a family member should be reported.

6. 50, 700, and 460 … the numbers matter. Gifts (whether a single gift or an accumulation of gifts over the applicable reporting period, typically a calendar year) of $50 or more must be reported on your Form 700 along with the name of the source of the gift. Additionally, the limit on gifts from a single source in a reporting year is $460 until December 31, 2016, when the FPPC will again make its biennial adjustment to that limit. In other words, it is generally illegal to accepts gifts valued (whether individually or cumulatively) over $460, and, if you do accepts such gifts, you are required to recuse yourself from voting on any item affecting the source of the gift, and disclose the reason for the recusal at the time of the vote.

5. Special rules apply to travel and lodging. This is one of the most complex areas of the law. Generally, transportation, lodging and meals paid for by your public agency when you are conducting official agency business are not considered gifts or income and are thus not reportable on your Form 700. Travel and lodging paid by third parties, however, might be considered either gifts or income depending on the circumstances, but are generally not subject to the $460 limitation. Again, this can be a tricky rule to interpret, but the FPPC regulations do offer guidance.

4. Gifts of tickets and passes to agencies are treated differently. If an individual or an entity gives tickets or passes to your agency for distribution by the agency (usually by the city manager, superintendent or other executive) and for public purposes, the value of such gifts are not reportable by you on your Form 700. Instead, the agency must report and file either a Form 801 or a Form 802 and make those reports available on its website.

3. Never condition a vote or official government action on receiving a gift. It is illegal to offer to vote for or against an agenda item, or to take or refrain from taking any governmental action (including influencing staff and other elected officials) in exchange for receiving a gift.

2. There are many exceptions built into the rules. For better or worse, the regulations governing gifts and reporting can be complex and confusing. But, they are written with an eye toward the realities of everyday life. For example, if you regularly engage in “reciprocal exchanges” with people (taking turns picking up the check at meals, for example) where the value of such exchanges over time is more-or-less equal, those amounts are exempt from reporting. Other common-sense examples include the exception for gifts that are returned to the donor within 30 days without being used; cash inheritances; gifts from family members as long as the family member is not acting as a conduit for another person in giving the gift; and disaster relief provided by a nonprofit.

And, the No. 1 thing to remember … 1. You’re not in this alone. Use the many resources available to you to ensure your receipt, acceptance, rejection (if necessary) and reporting of gifts is legal and accurate. Your local agency counsel is a good first resource to think about, but there are other tools you can use. For example, the Institute for Local Government has many resources available on its website with a few clicks. Conferences and workshops are offered at various times throughout the year. The League of California Cities, for example, will present a workshop on completing your Form 700 at its annual conference in San José Sept. 30 through Oct. 2.

Duran_130x162-c2Ruben Duran
(213) 787-2569

About our blogger: Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.


The Ethics Advisor – June 2015

¡Aguas con el Tech! – The Ethical Use of Technology in Your Role as a Public Official

By Ruben Duran – The Ethics Advisor

ethics wordle-juneWhile the use of technology by elected officials in California may not exactly be cause for a three-alarm fire, there still are a few things to watch out for when using the power of the internet and other tech-based tools ubiquitous in today’s society.

Participants at the Southern California Latino Policy Center’s recent Policy Forum learned about the various technology tools cities and school districts can use to assess and improve service levels. But while the latest gadgets, programs and apps might present wonderful opportunities to connect with constituents and even to help your government run more efficiently, there are some landmines to avoid to ensure you are using tech tools ethically under California law.

Illegal Use of Public Resources

First, be wary of using public resources for private or personal use, and understand that practically any use of a public agency’s assets (such as computers, servers, phone lines, printers) for campaigning purposes is strictly prohibited. Anything beyond mere incidental and minimal use of public resources for political or personal purposes is a no-no. For example, responding once to an email from a constituent asking about a political event over city email likely will not trigger an ethics violation. On the other hand, including a link to a campaign Facebook page, Twitter account or other campaign web site on every email sent from your city or district email account would likely get you in trouble. Accordingly, your email “signature” (the text and other information that automatically gets included on emails) should not include anything that could be considered campaigning, even a non-descript link to a campaign page.

Brown Act Concerns

Second, while blogs, Facebook pages and tweets can facilitate communication with the public, elected officials should remember that questioning, commenting and responding to comments on these media is a dangerously easy way to violate the Brown Act (Gov’t Code § 54950 et seq.). Anytime a majority or more of a legislative body uses technology to communicate among themselves “to hear, discuss, deliberate, or take action” on an issue within the body’s jurisdiction, they very well may have broken the law. This applies whether the communications are made by email, tweets, Facebook pages, blogs, comment sections or chat rooms.

Public Records Act Issues

Finally, elected officials should remember that electronic and technological devices, while working mainly in the ether of the World Wide Web, nonetheless can create public records open to inspection and copying by any member of the public for any reason or no reason at all. This is because the definition of “record” in the Public Records Act (Gov’t Code § 6250 et seq.) is broad and specifically includes electronic records such as emails, video, pictures, etc. created or maintained by a local public agency in the ordinary course of business.

And, it might even include records and files stored on your own personal cell phone or mobile device. The California Supreme Court is currently reviewing a case out of the City of San Jose that had previously held that these records stored on a public official’s private technological device (texts, emails, etc. discussing city business) were not public records. Now that the highest court in the State is reviewing the case, the holding in San Jose is suspended, and the Court could reverse, uphold or modify the rule. In the meantime, the safest approach is to assume that if you are using a private device to conduct public business, that device might be open to public inspection – at least partially – at some point in the future.


While the use of technology tools can be an important and useful part of your outreach to the people you serve, it can also present circumstances in which you can easily and unwittingly get into ethical hot water. The three examples discussed above are only the most common situations that can arise. Remember to check with your legal counsel if you have questions about the proper and ethical use of technology in your role as an elected official.

As always, the Ethics Advisor is intended to alert you to potential issues in your day-to-day activities as a public servant. It is not intended, and should not be taken, as legal advice, as each person’s situation may be different and legal conclusions will vary according to the specific facts at hand.

Additional Resources:
Social Media and Public Agencies: Legal Issues
Institute for Local Government (ILG)


Ruben Duran
(213) 787-2569

About our blogger: Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.

The Ethics Advisor – May 2015

“No estés chillando, C@#$0n.”

ethics wordleLoosely translated, and with the recipient of that message “BLEEP-ed” to make it G-rated, the quote above means “Don’t be such a crybaby!” Or, as George Lopez might ask: “Why you crying!?”

Here is why I chose that theme for this inaugural column on ethics: To this day, I still chuckle remembering a client who used that phrase to dismiss a colleague in closed session when they weren’t seeing eye-to-eye. Although unrefined, it reminded me that, even though we’re complicated beings with our own internal and – let’s face it – sometimes political motivations, we’re all in this together, and our individual success is often tied to the success and well-being of our common group.

The phrase is timeless: simple in its delivery and powerful in its import. Sometimes, we just have to suck it up and get down to the work at hand.

And if the work involves public officials making decisions in the public arena, it is critical to have a solid understanding of what ethics laws require. Not only that, but what the law requires may not be (and usually is not) the full picture of what solid ethical standards look like. Future editions of this column will answer questions like: “What is this so-called ‘500-foot Rule’ and does it really mean I can’t vote on a particular agenda item?” Or, “How do I handle an ethical dilemma arising out of that last contentious closed session we had with the City Manager?”

And while laws like the Brown Act and the Public Records Act give us minimum standards of transparency, the people we serve might expect or demand other levels of access. Or, while conflicts of interest laws and regulations may be arcane or difficult to navigate, a local headline suggesting that we have acted outside the rules in our own self-interest can have detrimental effects on our relationships with colleagues and constituents. Negative press can also make it harder to get reelected.

And so, with all due respect and a nod to our common humanity and inner Spanglish voices, I say to you: “No estes chillando, Mr. or Ms. Elected Official.” Learning about and practicing good ethics as a public servant is the first and most critical step you can take to ensure your success in your role as a community leader. Although your votes and your decisions might be subject to debate or even derision, your personal reputation as an honorable and ethical person will follow you for the rest of your career.

Through its newsletters, blogs and other vehicles, the Southern California Latino Policy Center will offer its members and friends useful tools and education on ethics laws, effective governance and other critical areas. We encourage you to contact us with your questions and comments.

Additional Resources:
Understanding the Basics of Public Service Ethics
A free Handbook from the Institute for Local Government

Ruben DuranRuben Duran
(213) 787-2569

About our blogger: Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.