By T. Brooke Miller.
With more than 350 laws and regulations that set the minimum standard for ethical conduct of public officials and high-ranking public employees in California, training is essential to gain a thorough understanding of the laws and what they require.
California’s ethics laws guide state and local officials as well as public agencies in providing good, honest governmental services to their communities. However, the laws are complex and ever-changing. In the past year, for example, five separate bills were adopted to amend the Political Reform Act, one of several major ethics laws in the state. Moreover, the requirements are not always as crystal clear as one might hope.
Although training regarding ethics laws is mandatory, convincing officials, staff and constituents that it is worth the time and cost can be a challenge. However, public officials who violate ethics rules can face substantial financial penalties – even if the violations were unintentional – and jail time in some circumstances. A good training program not only teaches public officials and employees how to avoid violating the law, but also helps them better meet their ethical obligation to conduct public business in the best interest of the public.
In October 2005, then-Gov. Arnold Schwarzenegger signed into law AB 1234, which imposes ethics training, compensation and reimbursement requirements on officials of cities, counties and special districts. Under the law, “local agency officials” are defined as: (i) members of the legislative body or other elected officials who receive any type of compensation, salary or stipend; or (ii) any employee designated to take ethics courses by the legislative body. Generally, AB 1234 requires local agency officials to receive no less than two hours of training in general ethics principles and laws every two years, and to receive their first training course within the first year of office.
While the laws are expansive, the requirements can be summarized in four core ethical principles:
- Public office cannot be used for personal financial gain.
- Holding public office does not entitle anyone to personal advantage or perks.
- The public’s business must be conducted openly.
- Fair processes and merit-based decision-making create an environment of good governance and service to the public.
Although these principles may seem intuitive, the laws and regulations implementing them are, at times, anything but. Below are some of the complexities that may trip up officials and employees.
No Financial Gain
One of the major ethics laws is California Government Code section 1090. This law states that members of the Legislature and state, county, district, judicial district, and city officers or employees “shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members.”
While this may seem straightforward, Section 1090′s scope of what is prohibited is actually far-reaching. The financial gain may be indirect or unintended, yet under Section 1090, it may still be illegal. There are, however, many exceptions to the law, which are nuanced and predominantly fact-based. For example, business dealings that benefit one’s spouse are virtually always a violation while those of adult children and siblings are not – unless your children or siblings owe you money. Then it may be a violation.
The regulations affecting gifts are another area where the rules are complex and frequently changing. Understanding what constitutes a gift and applying a value to it, as well as tracking and reporting gifts, can be mind-boggling. Many officials are surprised at what constitutes a gift under the ethics rules. A good training program should include a comprehensive discussion of the gift rules, as well as practical tips to help public officials and employees understand how to comply with the requirements.
Historically, the need for ethics laws resulted from special treatment given to public figures, as well as the public perception that public officials receive special treatment. Although the majority of public officials are honest, some use their office to collect perks. Even honest public officials can be targeted by those who prey upon the system to get what they want. Ethics violations can – and very often do – happen even when a public official has every intention of acting in the best interest of the public. A good understanding of the rules is critical to avoiding the all-too-real risk of unintentional violations.
No closed doors The Brown Act and the Public Records Act, among other laws, govern the public’s constitutional right to access. Email and other forms of electronic communications have made this area even more important and confusing. Considerable time should be spent discussing the various aspects and nuances of the public’s right to know.
Another core ethical principal is that the public’s business is to be conducted by fair processes and with merit-based decision-making. For example, competitive bidding and purchasing procedures should be applied fairly to all potential bidders and vendors. However, oftentimes unknowingly, public officials and employees provide advantages to some parties over others – especially if private-sector policies and procedures are applied in the public sector. The rules of public business are simply different.
If you ever find yourself not knowing which way to proceed when a situation arises, the best option is always to consult with legal counsel. Ethics rules are not black and white – there are a lot of gray areas – and the gray areas are most likely to get the honest public official into trouble. A good ethics training will help you learn when it’s time to seek expert advice.
Brooke Miller is a partner at Best Best & Krieger LLP in the law firm’s San Diego office, where she is a member of the Public Policy and Ethics Compliance team as well as the Municipal Law and Special Districts practice groups. She currently serves as assistant city attorney for the City of Santee and as general counsel to the Ramona Municipal Water District. She can be reached at firstname.lastname@example.org.
Reprinted with permission of the California Special Districts Association.