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Ethics Advisor

It’s All About the Content – Communications on Private Devices May be Subject to Disclosure Under the Public Records Act

By: Ruben Duran

Open government and transparency have long been the standard in California. Laws like the Brown Act, the Political Reform Act and the Public Records Act grant the public rights to attend meetings, know about government officials’ financial interests and review and obtain copies of documents containing information relating to the business of the public, respectively, and help promote public trust and confidence in our local governments.

Last month, in the long-awaited case City of San Jose v. Superior Court (Smith), the California Supreme Court decided unequivocally and unanimously that electronic communications about public business on public employees’ and officials’ private devices and accounts are indeed public records subject to disclosure under the Public Records Act (PRA). The question had been unsettled under previous cases, and governmental officials and employees were unsure whether they would have to provide copies of communications like emails and text messages on their private devices like cell phones and private accounts like AOL, Hotmail and Gmail in response to records requests made to their public agencies.

Answering that question in the affirmative, the court laid out a four-part test to determine if any communication, even one on a private device, is a public record that must be disclosed in response to a records request:

(1) Is it a “writing?” The law has already established that emails and other electronic records are writings for PRA purposes.

(2) Does it contain content relating to the conduct of the public’s business? This is where the court spent most of its time and analysis, suggesting that context matters. For example, an email from a public employee to a spouse complaining “my coworker is an idiot” is likely not a public record. However, an employee’s email to a manager about a co-worker’s mismanagement of an agency project might be.

(3) Is it prepared by a state or local agency? The Court found that if the communication was prepared by a local official or employee, then this prong of the test was met. The fact that it was prepared on a private device or using a private account did not make it purely private if the subject of the communication was about public business.

(4) Is it owned, used, or retained by a state or local agency? The Court held that an agency is considered to own, use or retain such communications because it has constructive possession of them through its control over its own employees. “A writing retained by a public employee conducting agency business has been ‘retained by’ the agency…even if the writing is retained in the employee’s personal account.”

Although the court’s opinion essentially expanded the definition of what constitutes a public record subject to disclosure under the PRA, it still acknowledged the important public interest in maintaining personal privacy even when complying with records requests, noting that privacy concerns could and should be addressed on a case-by-case basis, starting with the statutory exemptions from disclosure contained in the PRA (Government Code section 6254). Those exemptions include many familiar to readers of the Ethics Advisor: Personal and medical information, employee records, litigation records, for example.

Finally, the court touched on important practical and policy considerations for local agencies in complying with its ruling in the San Jose case. For example, how a public agency should search for agency-related communications on private devices while protecting officials’ and employees’ privacy. The Court stated that agencies should make a “reasonable effort” to locate records, but they are not required to launch “extraordinarily extensive or intrusive searches.” The Court suggested that public agencies should adopt internal policies for conducting such searches. When the request is for records in employees’ nongovernmental accounts, “an agency’s first step should be to communicate the request to the employees in question.” The Court concluded that the agency could then “reasonably rely on employees to search their own personal devices and accounts for responsive material.”

Thus, depending on the contours of any policy established by your local agency, it will be up to individual officials and/or employees to search for and provide to the agency records responsive to requests, even if those documents are stored on private devices or accounts. Finally, public agencies should consider adopting a policy that requires all officials and employees to use agency-owned accounts or devices when conducting public business to simplify the process of responding to records request after San Jose.

Ruben Duran is a partner in the Los Angeles office of Best Best & Krieger, LLP. He serves as the Southern California Latino Policy Center’s Ethics Advisor and represents cities, school districts and special districts throughout California. 
ruben.duran@bbklaw.com
@BBKRubenDuran
(213) 787-2569

OPINION

School Districts Entrusted with Taxpayer Money

By: Maribel Medina

An accomplished superintendent of a school district or college district is worth his/her weight in gold.

Skilled education administrators can pull troubled districts from the brink of fiscal and/or academic ruin or guide poor performing districts to dramatically improve their student’s academic success.

But what happens when the lead executive is inept, inexperienced, or worse, corrupt?

Many of you can probably name a school district or two that gained unwelcome notoriety because of mismanagement or malfeasance by these kinds of superintendents. Removing them often takes months, even years and then to add insult to injury, districts then face contract payoffs amounting to hundreds of thousands of dollars.

School districts historically have been hamstrung and just had to pay. The state legislature has provided districts with some relief, although not enough school districts are utilizing these remedies.

Under AB215 severance payments to departing superintendents are capped at 12 months, down from the previously permitted 18 months. The legislation, authored by Assembly Member Luis Alejo, was passed in 2015 after a Bay area administrator reportedly received a payout of more than half a million dollars.

And under AB1344, those districts can now even recover severance or amounts paid while on administrative paid leave to superintendents later convicted of crimes involving their positions. That can often amount to hundreds of thousands of dollars that can now find their way back into the classroom.

AB1344, better known as the “Abuse of Office” statute (and also authored by Alejo) was a direct response to the city of Bell scandal, where that community’s residents had little recourse in pursuing the millions corrupt officials there stole from them.

Why hasn’t a single school district in California used this provision? There have certainly been opportunities – one of which our firm is currently pursuing.

Not using this statutory authority simply amounts to leaving money in a wrong doers’ pocket that rightfully belongs in the classroom.

We understand that the process of investigating and removing a corrupt administrator is often traumatic for school districts. The financial cost is often daunting and the emotional toll it can take on a district’s staff and school board, not to mention its credibility, may be incalculable.

This is precisely why AB1344 was created. School district policymakers must do everything in their power to recover valuable resources. And perhaps more importantly, ensure future administrators clearly understand corruption will not be tolerated. It might be the most important lesson a school district can impart.

 

Maribel S. Medina is a partner in the law office of Leal & Trejo.  She is an education law expert who has represented school districts for two decades.

@maribelmlaw
Mmedina@Leal-Law.com; 213-628-0808

From the Editor

“What else are we supposed to do?”

By Victor Abalos

As we have noted here before, it’s simple (but not easy) to be in the opposition. Combating policies and programs you don’t agree with is the duty of any policymaker. Standing up for those under attack or in the crosshairs of dogmatic extremism is righteous regardless of which end of the spectrum we find ourselves.

But policymakers need to do more than oppose. They must offer solutions. They should have a vision.

That has many of our readers in a quandary particularly when it comes to the issue of immigration.  Our organization focuses on supporting local elected officials around local policy and immigration is a federal issue. But even federal policy has local implications, particularly when it impacts the day-to-day lives of thousands of families. While we as an organization will remain focused on supporting policy research and development that creates a path for our families into the middle class, we cannot avoid the current debate. And though we will not take any position regarding immigration policy, we hope to offer our policymakers some insight and support.

Many cities, school and college districts and other local bodies are responding to the immigration debate by declaring themselves a “sanctuary” or adopting policies that direct their staff to be non-compliant with any immigration policies that lead to arrest and deportation. Whether those declarations have any impact is unclear but many say they are compelled to take some kind of action. “What else are we supposed to do?” one frustrated policymaker asked me. Clearly, there is a desire to respond to growing anxiety in many communities. But how?

We are working on an upcoming report examining some of these efforts and identifying policy experts who offer local policymakers more options. A city council or school board member cannot create federal immigration policy. But perhaps they can develop local solutions that can allay some of the fear and anxiety that is only growing in many of our communities. The truth of the matter is, that when it comes to immigration and the policies that determine the rights and terms of families and individuals,  we as an organization will support policies that create a safe path for our families.

Victor Abalos is Executive Director of the Southern California Latino Policy Center and Editor of the Latino Policy Connection.

victor@socalatinos.org
@SOCALatinos

Ethics Advisor

Officials’ Top Ten Things to Remember About Public Participation in Local Government

Do I Have to Let Them Say/Do That?

By Ruben Duran

As the national political climate heated up recently, some local governments are facing spillover effects, with local and sometimes even out-of-town activists and provocateurs attending city council, school board and other meetings to let their voices be heard. While representative democracy usually benefits from a free flow of information and public input, unfortunately some recent incidents have made clear that the rancor and divisiveness that ensures high ratings on cable TV news programs can interfere with the work of local government.

Here are the top ten things to remember about public involvement in local government meetings in California:

  1. The basic rule in California under the Brown Act is that the work we do as public officials is the “people’s business.” As such, the public has broad rights to attend meetings of the legislative body (anytime a majority or more of your council or board is gathered to hear, discuss, deliberate or act on an item of agency business). Those meetings, of course, must be conducted after proper notice and posting of an agenda. Additionally, the public has the right to comment on the items we discuss and act on prior to our taking any actions on the items.
  1. The public also has the right to comment on any other issue “within the subject matter jurisdiction” of your agency during any regular meeting of the body. This can sometimes be tricky, and may require some deft handling of meetings. For example, most city councils in California have no control over schools within their jurisdiction; locally elected school boards have that authority. Thus, it would be acceptable to stop someone from commenting on school-related issues at a city council meeting. The converse is also true: a school board does not have to allow comments that should be directed at city officials at a school board meeting.

Does that mean a city council can stop public comment on national immigration policy issues, for example? Strictly speaking, local governments have no policy control over federal immigration decisions. To the extent public input is focused on issues or decisions over which the local governing body has no input, decision-making authority or control, there is a strong argument that commentary on such issues need not be allowed.

The reality in 2017, however, is that some local governments are taking public and policy-related stands on immigration issues, usually in the context of “sanctuary city” questions or local law enforcement stances vis-à-vis federal immigration enforcement. As some of us have experienced recently, those issues and debates can quickly devolve into shouting, catcalls, whistles and other disruptive activity.

  1. Which leads to the third point to remember: while the law protects speech rights for members of the public to address the legislative body, those rights are not without limits. The agency has a right to halt speech that disrupts the body’s ability to complete its business on the posted agenda.
  1. Here, it is critical to remember that the agency’s rights to limit or prohibit speech cannot be based on the content of that speech only. Content-based restrictions on speech have long been held unconstitutional by courts across the U.S. Instead, the local agency’s right to stop speech at a public meeting arises only when that speech becomes disruptive – interfering with the agency’s ability to do business. There must be actual disruption resulting from the speech, not merely the potential for disruption or discomfort, anger or disbelief for the audience, the body or the staff.
  1. Examples of disruptive speech (as found by courts) include:
  • Speech that is too long
  • Speech that is unduly repetitious
  • Speech that includes extended discussion of irrelevancies
  • Yelling
  • Interrupting
  • Personal, slanderous, or profane remarks that are also disruptive (personal, slanderous, or profane remarks on their own are not necessarily disruptive)

This means that you can legally remove from the meeting room individuals who engage in speech that disrupts your meeting.

  1. Your options when your meeting is disrupted by members of the public are laid out in the Brown Act. You can eject the disruptive person(s) from the room or clear the entire room, except for non-disruptive press, if necessary.
  1. You must allow criticism of the “policies, procedures, programs or services of the agency [and] of the acts or omissions of the legislative body,” so long as that criticism does not result in a disruption of the meeting.
  1. For cities, there are also options for when the disruption is caused by a member of your own city council. The California Government Code authorizes a city council to “punish a member or other person for disorderly behavior at a meeting.”
  1. Although not legally required, it makes policy sense to consider adopting a policy that lays out the rules so everyone knows what to expect and what to do when things get out of hand. The policy should include notice and warnings if necessary so that the people involved are given fair opportunity to conform their behavior to the rules.
  1. Finally, remember that the main reason you hold regular and special meetings of your city council, school board or other legislative body is to get the business of your agency done and serve the public. The law allows and expects that your meetings can and should be run effectively and efficiently in an environment of respectful decorum and transparency.

Ruben Duran is a partner in the Los Angeles office of Best Best & Krieger, LLP. He serves as the Southern California Latino Policy Center’s Ethics Advisor and represents cities, school districts and special districts throughout California. 
ruben.duran@bbklaw.com
@BBKRubenDuran
(213) 787-2569

 

Candidates for City Seats Campaign for their Communities In the Tumultuous Trump Era

By Abelardo de la Peña, Jr.

Even though some would rather forget what happened the last time we had an election, in less than one week voters across Los Angeles County will head to the polls to vote on key seats. On March 6, the Consolidated Municipal and Special Elections take place, the results determining who will sit on city councils and take mayoral seats, or who will have to campaign in a runoff if nobody receives the majority of votes. This is democracy at work.

But since we’re living in Trump’s America now, has the tumult and disruption of national politics filtered down to the municipal level? Are candidates changing tactics or messaging due to the meanness and acrimony we are being subjected to on an almost daily basis? What kind of citizens are putting themselves on the line, convincing voters that they have what it takes to lead?

We reached out to several candidates, all who have never held office before, to give us insight on why they are running, what kind of policy-makers they hope to be, how the most recent election impacted their own campaigns, and how that election has affected the community they are fighting to represent.

Emma Ramirez, San Dimas CC Candidate

Emma Ramirez is a candidate for San Dimas City Council, running for one of two open seats. It’s the retired LAPD sergeant’s first run for office, one she attributes directly to the last election. “I think the November election was a big eye opener. It showed that one person can make a difference; one person’s quest to do it against all odds. That gave me the courage to run,” she says.

 

 

Al Rios, South Gate CC Candidate

For South Gate City Council candidate Alfonso Rios, presently an administrator at East LA City College, the trigger for his campaign was the fact that no one ran for a seat in the South Gate’s municipal election in 2015. “With a city of almost 100,000, that’s just not right,” he says. Now, he’s one of nine candidates running for two seats.

 

Monica Rodriguez, LA CC Dist. 7 Candidate

Monica Rodriguez, council candidate for the City of L.A.’s District 7, located in Northeast San Fernando Valley, ran for that same seat in 2007. Her reasoning for running again is direct: “I’ve lived in the district my entire life. I was raised here, went to all the schools. I’ve worked here. And I am best prepared to lead the community.”

Susana Lopez, Bell CC Candidate

 

 

An also-ran in last year’s Presidential election inspired Susana Lopez to run for one of two city council seats in Bell. Says the immigration advocate, “I’m running after witnessing Bernie Sanders’ progressive movement. It was my biggest motivation.”

 

Jorge Nuño, LA CC Dist. 9 Candidate

Jorge Nuño’s blunt assessment for his decision to represent L.A. City Council District 9, which stretches from downtown to just north of Watts, is personal: “I cannot allow my two young boys to live under the same conditions of crime, neglect, and poverty like I have for the past 40 years.”

 

 

As to what style of policymakers they envision themselves to be, there’s almost complete unanimity: They aim to ensure that their constituents have a voice. Nuño plans on creating a body of committees, asserting, “I want those committees to incubate their ideas of the vision for south L.A. and I will be there to lead them.” Lopez, too, envisions constant contact with the people in her community: “I want to have an open door policy. I want to be known as a team player that bring results.” And Rodriguez, who previously worked in L.A. City Councilmember Mike Hernandez’s staff, agrees, “We need to go back to being accessible, to be on-the-street local leaders.”

The elephant in the room in all these campaigns, of course is the shocking presidential election that resulted in near constant tumult since Inauguration Day. San Dimas City Council candidate Ramirez senses the strong message sent by millions of disaffected citizens: “People want change; they’re tired of the status quo. Voters want to take a chance on candidates who are willing to take a chance.” South Gate Council Candidate Rios also senses the frustration, but aims to ease the tension. “So much divides us in our society. We’re not listening to each other. We need to break through that. We need to bridge differences,” he says.

If anything, Trump’s election gave these candidates more of a reason to run. Says Rodriguez, the candidate for L.A.’s 7th District seat, “My decision to run came long in advance of that outcome, but I’ll tell you, it’s amazing to me to see how people are willing to consider people who have no concept of how government runs. Look at last 31 days! It feels that we are going backwards.”

The executive orders, tweets, and policy proposals put forth since January have had a palpable effect on the residents of the communities these candidates hope to serve. Says Rodriguez, “People are fearful. There is anxiety of families being split up. It’s important to reassure people on a local level, to make sure we provide the security of local government.” “Trump’s Executive Order has brought a lot of fear, and nobody knows where we are going. That’s why I hope my message of bridging differences is resonating,” says Rios. Adds Nuño, “There’s definitely uncertainty within families of voters that include undocumented immigrants. If anything, it has shown the younger generation that elections do matter.”

A key takeaway from the last election, and possibly for races moving forward, is that politics isn’t for the faint of heart, but the one sure way to affect change.

“Some people are talking about hit pieces. I say, let’s stay focused. The key is that what I say I am going to do, I’ve been doing all along,” says Rios of South Gate. Adds Ramirez of San Dimas, “I mentally prepared myself that not everybody is going be glad that I am running. I am like an ant in the world of politics, but like Emiliano Zapata said, ‘It’s better to die on your feet than live on your knees.’”

Find out more about these candidates at:

Emma Ramirez
https://www.facebook.com/emmasandimas/

Alfonso Rios
https://www.facebook.com/al.rios.79

Monica Rodriguez
https://monicaforcitycouncil.com/

Susana Lopez, Council Candidate, city of Bell
https://www.facebook.com/lopezforbellcitycouncil2017/

Jorge Nuño
http://www.nunoforcouncil.com/

Abelardo de la Peña, Jr. documents, analyzes and provides insights on U.S. Latino issues and culture.

@abelardodlp
abelardodlp@gmail.com

From the Editor

Who Will Lead?

By: Victor Abalos

We salute those marching in the streets and protesting at airports. We also commend those of you busy organizing “The Resistence.” Political expression and engagement in this time of our history is vital.

But as an organization dedicated to supporting elected officials, we want to pay particular attention to those who have chosen to channel their anger/outrage/anxiety into public service.

There are dozens of political candidates lined up for the March 7 primary election – as well the growing list of candidates jumping into the CD34 special election. Many are first timers. We wanted to get their take on this election – what motivated them to run and find out whether the results from last November impacted their decision.

If we have indeed entered a new political era – what will define it? We have been following with considerable interest, particularly on social media, what many of you are against. But what are we for? “The Resistence” may become an important political force in this country and in California, but as that force works to oppose the new president’s policies, what agenda will it advance?

Our interviews with the candidates just started – we will share them in our March 1 edition of the Latino Policy Connection newsletter. If you know of (or are) a political newcomer running for office and want to share your thoughts, please contact me. My email is below.

This month we feature an exclusive preview of gubernatorial candidate Antonio Villaraigosa’s economic proposals – a plan he will be outlining in a speech in Sacramento today (Feb. 1).

Villaraigosa has made no secret of his position – shared strongly by the SCLPC – that our state’s economic future is closely tied to our ability to get more Latinos into the middle class. He expands on that idea in his latest address:

“At precisely the moment Latinos have become the largest ethnic group in California, the promise of a better life is growing farther and farther out of reach for a growing segment of our society… California must lead. And because Latinos will soon to be the majority of this state, we must lead.”

We agree with Villaraigosa. We as Latino advocates must work to ensure Latinos have access to – and are ready for – 21st Century jobs. We need to lead the way to make sure our families have access to affordable housing.

It is a new day. What’s not new is what we need to get done.

 

Victor Abalos: Editor's BlogVictor Abalos is Executive Director of the Southern California Latino Policy Center and Editor of the Latino Policy Connection.

victor@socalatinos.org
@SOCALatinos

Opinion

“We must lead”

By: Antonio R. Villaraigosa

As the threat of Donald Trump’s policies become all too real, Californians are uniting as never before. We have now seen millions marching to defend our health care, defend a woman’s reproductive freedoms and defend the very right of millions of Californians to stay with their families rather than face arrest and deportation.

As we fight against Trump, it is necessary to also pause and reflect on what we are fighting for. While it is appropriate that we defend our progressive values, it is equally necessary that we work even harder to make progress for the many Californians who are still being left behind. We must make progress on improving our schools, improving access to an affordable college and lifelong learning and improving our infrastructure so it will spur and allow our economy to grow.

Because we need to do more than stop Trump, we need to keep California moving forward.

We should be proud of our progress, but the last thing we can be is complacent. We must act now, and we must act boldly.

As a former mayor, I know that action at the local government level – the closest government to the people – can have the quickest and longest lasting impact.

For the first time in many generations, our middle class is shrinking. We have more wealth as a state – but also more poverty – than any state in the nation. More often than not, those in poverty are Latino. We do not need to look very far to realize that many of the communities being left behind are Latino neighborhoods and many of our most challenged schools have students who are predominantly Latino.

This growing inequality is threatening the very fabric of our society.

Economic inequality has grown because our policies have not kept pace with our economy. As in other states, California has lost many good-paying jobs and replaced them with jobs that pay low wages.

The truth is, in today’s economy, having a job is often not enough to ensure those things all Californians want for our families – an affordable place to live in a safe neighborhood, basic health care, child care and good schools for our children and the chance for a secure retirement for every family.

At precisely the moment Latinos have become the largest ethnic group in California, the promise of a better life is growing farther and farther out of reach for a growing segment of our society.

If the recent election taught us anything, it is that where there is no hope, people will act on their fears. The erosion of economic opportunity gives space for the politics of fear.

So now, California must lead. And because Latinos will soon be the majority of this state, we must lead. We must help this state to become a national example of how to build a successful 21st Century Economy that creates middle-class jobs. We must work to preserve the fundamental notion that anyone willing to work hard and play by the rules can meet the basic needs for themselves and their family.

Californians remember that voters lashing out amid economic anxiety is nothing new. As a state, we have gone through this before.

I was first elected to the Assembly in 1994 on the heels of a deep recession that plunged our state billions of dollars into debt and sent unemployment sky high.

That economic upheaval helped give rise to a politics of demagoguery, division and the scapegoating of immigrants. That culminated with Proposition 187 and the elimination of bilingual education and affirmative action.

But during my six years in Sacramento, including three as Speaker of the Assembly, I worked with leaders from both parties to find common ground to find solutions to the problems facing our state.

We created a children’s health care program, which extended coverage to three quarters of a million kids across the state. When the federal government stripped public support for legal immigrants, I helped bring people together to ensure those benefits were covered here in California.

At that time, Latinos were a minority – fighting to protect our families from very Trump-like attacks. We should all remember that we were not alone then. Asians, African Americans, Filipinos, the LGBT community, progressive and liberal whites and even conservative whites stood with us because they understood that we embraced and embodied the American dream.

Now that we are soon to be the majority, let’s always remember that moment. We endured because we were not alone.

We stand at a moment of great change and a time of great anxiety. But we have been here before and have persevered and prospered. As a leader in our community, your voice is needed like never before in our history. I look forward to standing beside you as we fight together, community by community, to defend our communities and make sure that no voice in California goes unheard.

Antonio R. Villaraigosa served as a Member of CA State Assembly, Speaker of the Assembly, and then served on the LA City Council before becoming the 41st Mayor of Los Angeles. He is now a candidate for Governor of California.

 

Ethics Advisor

Seven Billion Dollars Soon to Hit the Streets in Disadvantaged Communities Across the U.S.

New Markets Tax Credits – the Best Kept Secret in Financing Public Projects

By: Ruben Duran

Right before Thanksgiving 2016, the federal government announced the release of $7 billion of tax credits aimed at spurring private equity investment into projects in low income communities. Administered through the U.S. Treasury’s CFDI Fund, the tax credits are known as “New Markets Tax Credits,” and have proven to be a flexible and powerful tool for development in underserved communities across the country.

If you’ve never heard of New Markets Tax Credits, also known as “NMTC,” don’t feel bad. Many public officials and their staffs, although they might have seen the term somewhere, don’t really know a lot about the program. That’s a shame, because under the right circumstances, NMTC can and does provide significant capital for qualified projects, ranging from community centers and sports facilities to charter schools and retail developments.

The NMTC was authorized in the Community Renewal Tax Relief Act of 2000 as part of a bi-partisan effort to stimulate investment and economic growth in low income neighborhoods and rural communities that lack access to the capital needed to support and grow businesses, create jobs, and sustain healthy local economies.

The NMTC program attracts capital to low income communities by providing private investors with a federal tax credit for investments made in businesses or economic development projects located in some of the most distressed communities in the nation – census tracts where the individual poverty rate is at least 20 percent or where median family income does not exceed 80 percent of the area median.

California public agencies, including cities, counties and special districts, can use NMTC to provide significant cash contributions to qualified projects in qualified areas, and NMTC presents a meaningful opportunity to leverage funding and assets that public agencies already own or anticipate receiving for individual projects.

Public agencies throughout the nation regularly sponsor qualified projects that successfully compete for and receive NMTC. A successful transaction will involve a project in a qualified census tract that produces community benefits such as the creation or retention of jobs, the provision of services to underserved populations and/or environmental benefits and improvements. The tax credits are provided through the participation of a Community Development Entity (“CDE”) that has received an allocation of tax credits from the CDFI Fund. A public agency seeking to use NMTC will first need to identify qualified projects and then enlist the support and participation of a CDE with NMTC allocation.

Proceeds from a NMTC transaction may be used for a wide range of project costs, from pre-development expenses to construction (including infrastructure), purchase of supplies and equipment and provision of services to qualified communities. Infrastructure costs are generally only funded to the extent they are part of a larger qualified project and can be directly tied to the community benefits attributable to the project.

Although the program is highly competitive and can be complex, over the last several years I have successfully closed two NMTC deals for public agencies. The first was for a city-sponsored state-of-the-art health and wellness facility and the other for a port infrastructure project plus a mobile pantry bringing healthy food and nutrition education to needy communities. These two examples show the breadth and flexibility of the program; only a handful of projects cannot use NMTC, including strictly residential (though mixed-use projects do qualify), massage parlors, racetracks, and liquor stores.

NMTC has been used for YMCAs, office and retail, hotels, industrial development and many other types of projects. The main restriction is ensuring that the tax credits are deployed in a qualified census tract. To find out whether a project in your jurisdiction qualifies and NMTC can be used to attract private investment dollars, contact me anytime.

Ruben Duran is a partner in the Los Angeles office of Best Best & Krieger, LLP. He serves as the Southern California Latino Policy Center’s Ethics Advisor and represents cities, school districts and special districts throughout California. He helped his clients the City of Desert Hot Springs and the Oxnard Harbor District use New Markets Tax Credits to fund exciting, high-impact projects.

ruben.duran@bbklaw.com
@BBKRubenDuran
(213) 787-2569

The Ethics Advisor

Good Governance Floats on a Sea of Integrity

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By: Gary Schons

“In civilized life, law floats in a sea of ethics,” the late Earl Warren, who served as a U.S. Supreme Court chief justice and as California attorney general and governor, stated in a 1962 speech. In a closely related sense, good governance floats on a sea of integrity. Only when government institutions abide by the norms of public integrity established by our laws and traditions can good governance take root and flourish.

When we speak of public integrity, foremost are qualities of individual virtue, undivided loyalty, transparency and accountability. Only when these principles are maintained by the individuals who serve will government institutions function with economy, efficiency and effectiveness. And when those virtues fail or cease to exist, waste, fraud, abuse, mismanagement and even corruption eventually corrode the processes of governing.

After an election that ushered in a host of new public officials and laws at the national, state and local levels, it is an appropriate time to reflect on the preeminence of integrity in our public institutions.

A recent survey conducted at Chapman University in Orange, revealed that people’s greatest fear is government corruption. At first blush, this seems surprising given the risks and harms posed by international terrorism, climate change and environmental degradation or economic disruption. But, on second thought, it is an understandable reaction. Individuals create their government through the ballot box, fund it through their taxes and are served and controlled by it in their daily lives. Government is constant and omnipresent in the lives of all citizens. Trust in its proper workings is fundamental to the social compact in which citizens cede certain of their freedoms, liberty and property to the state.

California is blessed with a public integrity infrastructure that is second to none in the country. In surveys of the states for public integrity practices, California consistently ranks at the top. The Political Reform Act and Government Code section 1090, which prohibit conflicts of interest, seek to ensure that government agencies have the undivided loyalty of its officials, in addition to promoting transparency in the political process. The Brown Act “Open Meetings” Law and the Public Records Act promote transparency and accountability by affording the public (and press) open access to government meetings and public records.

However, these laws alone are not self-executing and are no guarantee the goals they serve will be achieved. They must be put into regular practice and enforced. A robust system of checks and balances among the various organs of government provides the architecture for enforcement. The FPPC, the local prosecutor, the county grand jury exercising its civil “watch dog” function, and the State Auditor each serve important roles in monitoring, ensuring compliance with and sanctioning those violate these statutes.

However, the single most important guarantor of public integrity is an engaged citizenry informed by a principled press.

Case after case of local government malfeasance have come in communities where the citizens are not engaged and watchful of the processes of local governance. In such circumstances, open meeting laws are violated and “backroom” deals and decisions are made. Officials act despite clear conflict of interests. And, inevitably, mismanagement, abuse, fraud and corruption permeates the governing processes. This leads to massive losses to the public fisc, diminished public services and, eventually, a loss of public trust and faith in the governing entity. Thus, citizen participation is critical not just on Election Day, but on an on-going basis as the ultimate watch dog of official probity, transparency and accountability.

In a future installment of the Ethics Advisor, we will examine some case studies of failed governance directly attributable to lack of oversight and enforcement of public integrity norms and laws.

 


Gary Schons
 heads the Government Policy & Public Integrity practice. He served as trial counsel for the Commission on Judicial Performance.
Gary is an active member of the California District Attorneys Association, lecturing and authoring articles for the association.

Gary.Schons@BBKLaw.com   (619) 525-1348

Opinion

Tell Your Own Story

by Ed Coghlan, The JVA Group

Leaders of school districts and municipal government constantly ask us, “how can we get our story out better?”

Our answer is simple: “Tell your own story.”

The old way of doing things — putting out press releases and putting them on your website — simply doesn’t work anymore.

You must be your own best storyteller.

Develop your own content and promote it on social media platforms that you should have, like Facebook and Twitter. Whether it’s a story about a successful student or a positive economic development in your city, you can – and must – tell these stories every day. Use all your platforms like your website, newsletters, emails, even events – to promote these stories.

Develop a positive and consistent narrative to change or cement perceptions that you are doing a good job! This requires an investment but this is an investment with an important return – engaged and informed stakeholders.

If you believe communications is important to making sure your constituents and stakeholders know about all the good work your organization is doing then a strong, content driven, digital strategy is your answer.

Ed-headshotEd Coghlan is a principle with the JVA Group. He is a former LA news director with more than thirty years experience as a communications professional.

@EdCoghlan
ed@jvagroupla.com