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.
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 $175,000 in loans, gifts, and other benefits from a Virginia businessman. Following its precedent in cases like Citizens United, Skilling (the case involving the Enron scandals) and McCutcheon v. FEC, the court held that because the Governor did not take any specific “official acts” beyond merely exerting influence over or granting special access to a politician or an officeholder, his convictions could not stand. Writing for a unanimous eight-person court (the President’s proposed appointment of Justice Merrick Garland continues on-hold in the Senate), Chief Justice Roberts emphasized that the only actionable public corruption is “quid pro quo” bribery. Read more about the decision in this piece by my friend and colleague, Gary Schons.
Does that mean that California local elected officials now have the green light to engage in what we have consistently warned against as unethical and illegal behavior by accepting gifts in exchange for providing access and influence? The answer, of course, is a resounding “no,” and not only because we continue to believe that a strong reputation for ethical behavior is essential to public service (recall our inaugural message No Estés Chillando, C@#$%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.
California 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!
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.