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Reading news accounts of violations of the California’s ethics laws, one might wonder “How could a public official or government employee be so foolish?” With more than 350 laws and regulations that set the minimum standard for ethical conduct of public officials and high ranking public employees, perhaps it isn’t foolishness that leads individuals astray as much as being ill informed. It is important that those who are subject to ethics laws receive training that provides a thorough understanding of the laws and what is required.
California’s ethics laws were written to 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. Keeping track of the laws is critical. Training regarding ethics laws is mandatory, yet convincing officials, staff and constituents that such training is worth the time and cost can be a challenge. It goes without saying that the training you receive must be comprehensive and meaningful.
In August 2005, both houses of the State Legislature approved AB 1234, which imposes ethics training, compensation and reimbursement regulations on cities, counties and special districts. The bill was signed by Governor Schwarzenegger in October 2005. 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 ethics laws every two years, and to receive their first training course within the first year that they take office.
While the laws are expansive, ethics considerations can be summarized in four core principles that all public officials must live by:
- Public offices 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
A training program should thoroughly examine each of these key points. Training courses must comply with the requirements established by the Fair Political Practices Commission and the Attorney General, and must be presented by a licensed attorney knowledgeable about California’s ethics laws.
No financial gain
California Code 1090 states (in part): “Members of the Legislature, 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 it is actually far reaching. The financial gain may be indirect or unintended yet under 1090, it may still be illegal. There are also many exceptions to the law, which are predominantly fact based. For example – business dealings that benefit one’s spouse are virtually always a violation under the law yet those of adult children and siblings are not – unless your children or siblings owe you money. Then it may be a violation. Although it is very difficult for public officials to commit to memory every rule and exception, a thorough training course will help you learn to spot potential ethics issues and know when to call your attorney for advice.
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. The ins and out of gifting should not only be included in your training but discussed comprehensively. Learning the tips and tricks to assist you in gift tracking and reporting can also be an added benefit of a good training program.
If one reads the opinions that are the historical foundation of ethics laws, a lot of the need for such laws came out of special treatment to public figures, as well as the public perception that public officials receive special treatment. Despite the fact that the majority of public officials are honest, some do use their office to collect perks. In addition, 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. Understanding where the line is drawn between the public good and personal advantage 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. Public officials are sometimes very uncomfortable with the disclosure involved in keeping open access to information. Email and other forms of electronic communications have made this area even more important and confusing. This topic draws many questions during ethics training. Considerable time should be spent discussing the various aspects and nuances of the public’s right to know.
The public’s business is to be conducted by fair processes and with merit based decision-making.
Due process is mandatory as is following procedures that are fair to everyone involved. Competitive bidding and purchasing procedures should be applied fairly to all potential bidders and vendors. However, oftentimes unknowingly, public officials and employees provide advantages especially if private sector policies and procedures are applied in the public sector. Unfortunately, the rules of public business are simply different. And again, ethics laws apply regardless of whether the act was or was not intentional. Assuring that your official business is done fairly is an essential aspect of a training program.
Thorough training should also include many examples and scenarios regarding the key points outlined above and more. Training can be held in a variety of formats as long as it adheres to the statutory and regulatory requirements and is given by a qualified trainer.
Some agencies and individuals opt for a self-study approach. However, there are many factors weighing against that approach. Given the extent of the laws regarding ethical conduct, which are oftentimes situational or fact-specific, our firm recommends training either at a seminar for all public officials or one tailored specifically for your agency or municipality. There is also great benefit in hearing others’ questions, especially if they are regarding issues you had not thought about.
Unfortunately, a two-hour training session (the minimum length required under AB 1234), may not completely prepare you for all of the situations you encounter during your time in office. Even the Attorney General’s guidance calls this the “basic minimum.” If you find yourself not knowing which way to proceed when a situation arises, the best thing to do is to consult with legal counsel. Ethics rules are not black and white – there are a lot of grey areas – and it is these grey areas that will most likely get the honest public official into trouble.
A good ethics training program will help you understand when you’re in one of these grey areas and keep you on the right side of the law.
Brooke Miller is a senior associate with Best Best & Krieger LLP and is a member of the firm’s Public Policy and Ethics Compliance team and Municipal Law and Special Districts practice groups. Based in the firm’s San Diego office, she currently serves as assistant city attorney for the City of Santee and as general counsel to the Ramona Municipal Water District. She also provides general and special counsel services to numerous other cities and public agencies. She can be reached at email@example.com.