Top Ten Tips and Resources for Newly Elected CouncilmembersJanuary 1, 2019
In the Public Interest extends its congratulations to newly elected city councilmembers and local public officials across the state. Many of you have worked for cities, counties, or special districts, and others are fairly new to local government. We hope all of you will benefit from this “Top 10” list of useful tips and resources as you transition into your new position.
1. Ralph M. Brown Act: Open Meetings
The Brown Act governs open meetings for local government bodies, including city council and planning commission meetings. The Act generally requires that all meetings shall be open and public, and all persons shall be permitted to attend. From this point forward, you will need to keep the Brown Act in mind as you conduct city business. For example, a majority of city councilmembers may not congregate (in person or via email) to discuss city business without triggering the Brown Act’s public notice and public meeting requirements. On the other hand, the Brown Act contains several exceptions, including individual contacts between a member of the council and another individual, conferences, community meetings, meetings for other legislative bodies, and social or ceremonial events where city business is not being discussed.
The League of California Cities maintains and routinely updates its Brown Act guide. The latest version is “Open & Public V: A Guide to the Ralph M. Brown Act,” League of California Cities (2016).
2. Closed Sessions and Confidentiality
The Brown Act authorizes closed session meetings for specified topics such as pending litigation, real estate negotiations, and labor negotiations. The most common purposes of the Brown Act’s closed session provisions are to avoid revealing confidential information, e.g., related to employees’ privacy interests or the city’s litigation position. Therefore, disclosing confidential information outside of the closed session meeting can place the city at a disadvantage in litigation or negotiation, and is prohibited.
For more information on the importance of confidentiality in closed sessions, we suggest “Closed Session Leaks: Discretion Is The Better Part of Valor – and Ethics,” Western City (Oct. 1, 2010).
3. Brown Act Applies Before Being Sworn In
The Brown Act regulates a public official’s interactions with other councilmembers even before she is formally seated. Government Code section 54952.1 states that “[a]ny person elected to serve as a member of a legislative body who has not yet assumed the duties of office shall conform his or her conduct to the requirements of [the Brown Act] and shall be treated for purposes of enforcement of this [Act] as if he or she has already assumed office.” Thus, communicating with two or more councilmembers (even before they are sworn in) about a substantive issue within the Council’s jurisdiction could constitute an improper meeting.
For more information on this rule, and another excellent Brown Act resource, see the Attorney General’s 2003 pamphlet, The Brown Act, Open Meetings for Local Legislative Bodies.
4. Conflict of Interest Laws: Political Reform Act
The Political Reform Act prohibits an elected official from using his or her position to influence a governmental decision where the official has a financial interest. The rules are largely administered by the Fair Political Practices Commission, with assistance at the local level by your city clerk and city attorney. You are likely already familiar with the rules requiring public officials to submit a Statement of Economic Interest (Form 700) to report financial interests. You will also need to be mindful of ensuring that you do not participate in decision-making (e.g., voting or communicating with staff) about city business where you have a disqualifying financial interest.
5. Conflict of Interest Laws: Gov. Code § 1090
Because conflict of interest laws are so important, they take up two of our Top 10 spots. California law prohibits public officials from having a financial interest in their agencies’ contracts. This means that if an official has an interest in a contract being contemplated by the agency, the agency may not enter into the contract—period. It generally does not matter if the official recuses from the decision.
The Institute for Local Government publishes an excellent resource on conflict of interest laws. For more information, we recommend ILG, Public Service Ethics Laws. In addition, there is no such thing as a “dumb question” when it comes to California’s complex conflict of interest laws. When in doubt, do not hesitate to contact your city attorney.
6. California Public Records Act: Personal Email v. City Email
The California Public Records Act (CPRA) provides the public with a right to inspect and obtain timely copies of nonexempt public records—including emails. Once a public official is issued an official city email address, it should be used for all city business. City councilmember emails are public records under the CPRA, unless an exemption applies, and are maintained as part of the city’s records management program.
In City of San Jose v. Superior Court (2017) 2 Cal.5th 608, the California Supreme Court explained that a public employee’s writings about public business are not excluded from the CPRA simply because they were on a personal account. Thus, emails and text messages pertaining to city business should not be sent from private accounts and will likely be subject to the CPRA.
Here is a link for more information on public records on private accounts: Hongdao Nguyen, “What Cities Should Know About Public Records in Private Accounts,” Western City (Aug. 1, 2017).
7. Social Media
The use of social media can raise many potential legal issues, including: First Amendment issues related to any government restriction on speech on social media platforms; use of public resources; employee use of social media (personal and professional); open meeting law/Brown Act issues; public records retention and disclosure; procurement, gift and contract issues; and equal access/Section 508 (disability access) issues. As an elected public official, it is important to be mindful of how one utilizes social media to avoid potential legal issues. When in doubt, speak with your city attorney about best practices and review resources on social media use.
Here is a link for more information on social media and the potential legal issues: “Social Media and Public Agencies: Legal Issues,” Institute for Local Government (October 2013).
Ask your city clerk or city attorney whether your city has an existing social media policy. Here is a link to sample policies: “Sample Social Media Policies,” Institute for Local Government.
8. Key City Policy and Procedures Documents
Newly elected and appointed officials should familiarize themselves with key documents, such as the adopted policies and procedures manual for their legislative body. These policies and procedures will include rules and standards regarding the conduct of meetings and your duties. City staff will also likely provide copies of other key documents such as the current fiscal year budget, Comprehensive Annual Financial Report (CAFR), and the General Plan as part of your new Councilmember orientation.
The ILG recommends these and other key policy documents for your reading list, and has compiled orientation materials for newly elected local officials.
For more information on best practices and governance tips, we suggest this article: Melissa Kuehne, “Tips for Effective Governance,” Western City (Dec. 1, 2017).
9. Council and Counsel
Councilmembers will work with the city attorney over the course of their term of office. The city attorney is the chief legal officer of the city, acting as an advisor and advocate for the city. For a city attorney, the client is the city as a whole, and not individual city officials or employees. Oftentimes, if a city attorney provides information or advice to one councilmember on a matter of general interest, he or she will provide it to all. As an attorney and officer of the court, the city attorney has certain ethical and prosecutorial duties as well. Thus, understanding the city attorney’s role will be helpful to successfully implement the council’s goals and policies.
Here is a guide on establishing an effective employment relationship with your city attorney: “Counsel and Council: A Guide for Building a Productive Employment Relationship,” League of California Cities (2004).
10. New Council Member Training
Every year, the League of California Cities hosts a New Mayors & Council Members Academy for newly elected officials, providing participants training and information on the legal and practical framework that city officials operate within. The Academy also offers training for elected officials to meet the state mandated AB 1234 ethic training requirements. Under AB 1234, elected officials are required to receive at least two hours of ethics training every two years. Gov. Code § 53235. This year, the academy will be held on January 30-February 1, 2019 (Irvine, CA).
For more information, contact SMW attorney Catherine Engberg.
This article is intended for information purposes only and is not legal advice. This article is not intended to be a source of solicitation. This article is intended, but is not promised or guaranteed, to be correct, complete, and up-to-date. This article does not constitute a guarantee, warranty, or prediction regarding the outcome of any legal matter. Readers should not act on the information provided in this article without seeking professional legal counsel.