Legal Alerts Jun 25, 2020

FPPC Regulation Clarifies Officials' Duty to Publicly Identify Financial Conflicts at Meetings

Regulation Revision Clarifies Duty Applies Despite “Partial Absences”

The Fair Political Practices Commission adopted amendments to its Regulation 18707 clarifying the duty and procedure for officials to follow to publicly identify financial conflicts. The amendments, adopted June 19, are regarding an agenda item when the official is attending any part of a meeting where he or she is required to declare a conflict and recuse because of a conflict of interest under the Political Reform Act.

The California Political Reform Act prohibits public officials from making, participating in the making of, or in any way using their official position to influence a government decision in which they know, or should have reason to know, they have a financial interest. In order to avoid violating this prohibition, officials must announce the reason for having a conflict and recuse themselves from the matter’s consideration by leaving the dais and the meeting room (except for consent agenda items), which is the procedure prescribed by Government Code section 87105. This procedure applies to a number of officials listed under Government Code section 87200, including city council members, planning commissioners and members of the board of supervisors and special district board members, as well as school boards.

According to section 87105, public officials have a duty to publicly identify the financial interest that gives rise to the conflict and must describe the financial interest in detail sufficient for the public to understand. Specific disclosure provisions for the various financial interests are set out in sections 87200-87210.

Regulation 18707 requires officials to publicly identify financial interests “immediately prior” to the conflicting item being considered. However, the FPPC received a report of a county public official leaving a public meeting before an agenda item was announced and returning after its consideration without publicly identifying his conflicting financial interest in that matter. Due to this “partial absence,” the official circumvented the public identification duty by not being present immediately prior to the agenda item’s announcement and consideration. The FPPC concluded that the “absence exception” previously contained in 18707(a)(3)(B) was not intended to apply to officials actually present at any part of a meeting.

The revisions adopted in the amended Regulation 18707 address the “partial absence” issue in three ways. First, the “absence exception” is, itself, eliminated. Second, the language clarifies the FPPC’s intent by explicitly saying that a partial absence does not excuse an official from the public identification duty. Third, the language provides additional procedures for when and how an official must disclose a conflicting financial interest if he or she leaves early or arrives late to a meeting.

As previously required, an official must still publicly identify a conflicting financial interest immediately prior to an agenda item being considered. In addition, if an official with a financial conflict leaves in advance of the agenda item’s consideration, he or she must publicly identify the agenda item and financial interest prior to leaving the meeting. If an official joins a meeting after the consideration of an agenda item for which he or she is disqualified, the official must publicly identify the agenda item and financial interest immediately upon joining the meeting.

However, if an official is absent from an entire meeting, there is no announcement requirement under the regulation as amended.

If you have any questions about this amended regulation and how it may impact your agency, please contact the authors of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein. 

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