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HomeMy WebLinkAboutB-07 - How Do I Get Advice from the FPPCFair Political Practices Commission 428 J Street, Suite 620 Sacramento, CA 95814 Toll-free advice line: 1 (866) ASK-FPPC Web site: www.fppc.ca.gov How Do I Get Advice From the FPPC? A Basic Overview of Telephone and Written Advice Services How Do I Get Advice From the FPPC? “I’m running for city council. What campaign reports do I need to file?” “My home is near the proposed park. Can I vote on the issue at next month’s planning commission meeting?” “I was just appointed to a government commission. Do I need to disclose my personal financial interests?” Many of you in the public and political arenas may have faced similar questions. But where can you turn for advice? The Fair Political Practices Commission administers and enforces the Political Reform Act – the state law gov- erning campaign finances, lobbying, conflicts of interest, gift limits, and post-government employment restrictions. If you have a specific question about how the Political Reform Act applies to you, you should consult the Act, FPPC regulations and your legal counsel – and you can ask the FPPC for telephone or written advice. We answer thousands of calls for telephone advice monthly, issue hundreds of advice letters each year and host educational seminars around the state. The Act is found in California Government Code sec- tions 81000-91014. FPPC regulations are contained in Title 2, Division 6 of the California Code of Regulations. FPPC 1 (Revised 8/03) Fair Political Practices Commission The FPPC web site, www.fppc.ca.gov, offers the Act and regulations as well as fact sheets, forms, meeting agen- das, schedules of upcoming seminars and other helpful documents and publications. FPPC staff members con- duct training seminars throughout the state on such topics as campaign treasurer duties and conflicts of interest. The FPPC also offers a toll-free help number for those with obligations under the Political Reform Act – 1-866- ASK-FPPC (1-866-275-3772). Generally, telephone advice is more appropriate for routine inquiries, while written advice or formal Commis- sion opinions are more suitable for complex inquiries and issues under the Political Reform Act. Seminars are in- tended to provide a general introduction and overview of your obligations, such as tips on how to fill out campaign disclosure forms. FPPC 2 (Revised 8/03) FPPC Toll-free Advice Line: 1-866-ASK-FPPC (1-866-275-3772) Who can ask for advice? A public official, designated employee, candidate, lob- byist or other person who has duties or obligations under the Act (or his or her authorized representative) can ask the FPPC for telephone or written advice. Examples of authorized representatives include city attorneys, cam- paign treasurers, lawyers, and agency counsels. Examples of the types of questions frequently re- ceived by the FPPC include: ¾“Can I vote on the mall expansion plan at next month’s meeting?” ¾ “How do I report this contribution?” ¾ “What sender identification should I put on my cam- paign mailer?” No third-party advice If you are calling or writing to ask about someone else’s actions, and you are not authorized to represent that person, the FPPC’s Technical Assistance Division and Legal Division cannot give you advice about the re- quirements of the Act. For example, we would not be able to provide advice if your fellow planning commissioner voted for a project and you suspect he or she may have had a conflict of interest. If you think someone may have violated a provision of the Act, you may file a complaint with the Enforcement Division. The toll-free FPPC enforcement hot-line number is 1-800-561-1861. See the FPPC fact sheet on filing a complaint and the FPPC brochure, “What Happens After I File A Complaint With The FPPC?” Both are available on FPPC 3 (Revised 8/03) the web site, www.fppc.ca.gov, or by calling toll-free 1- 866-ASK-FPPC. More details about FPPC telephone advice As far in advance of the action as possible, call the FPPC’s toll-free help line (1-866- ASK-FPPC) and speak with one of the consultants in the Techni- cal Assistance Division. Consultants are available Mon- day through Friday (except holi- days) from 9:00 a.m. until noon and 1:30-4:30 p.m. During ex- ceptionally busy periods, you may have to hold for an available consultant, or you can leave a message and a consultant will call you back. If you call after regular business hours, you can leave your name, telephone number and the nature of your call, and a consultant will contact you the next business day. When will I get an answer? Most calls for telephone advice are answered on the same day. If you are calling during an exceptionally busy period — such as before a statement filing deadline or an election — or if the con- sultant needs to conduct research, a response to your call may take longer. If your question is factually complicated or presents a novel issue we have not advised on before, the consultant may not be able to give telephone advice and may ask you to request written advice instead. Does telephone advice provide immunity? No. Telephone advice can provide you with valuable guidance and answers to routinely asked questions under the Act. But telephone advice does not provide the caller with im- FPPC 4 (Revised 8/03) munity from prosecution under the Act. Only formal writ- ten advice confers limited statutory immunity on the re- questor (California Government Code section 83114). Does the Commission provide written confirma- tion of telephone advice? No. You have the choice of requesting telephone or written advice. If you choose tele- phone advice, the Commission will not provide written confirmation. May the FPPC decline to provide advice? If a ques- tion concerns past conduct, is purely hypothetical, is not related to the Act, presents vague facts, is too complex, is third party, or if the requestor is asking for anonymous ad- vice, the Commission may decline to provide telephone or informal written assistance. Or we may limit our assis- tance to a general explanation of the requirements of the Act (Reg. 18329(c)(4)). If the question concerns an individual’s disclosure category or filing obligations under an agency’s conflict of interest code, the individual must first request a determi- FPPC 5 (Revised 8/03) Call as far in advance of the action as possible — not after the fact! nation from his or her agency and/or the agency’s code reviewing body (Reg. 18329.5). (This process is outlined beginning on page 11 of this brochure.) More details about FPPC written advice If you have a more complicated or non-routine ques- tion, or are seeking limited immunity, you may want to re- quest written advice from the FPPC. To request written advice, write a letter to: General Counsel Fair Political Practices Commission 428 J Street, Suite 620 Sacramento, CA 95814 Your letter should include the following information: ¾Your name, title or position, mailing address, and daytime telephone number. If you are requesting advice on behalf of someone other than yourself, the letter must specifically state that you are authorized to represent that person. ¾The question. Clearly state the question(s) you want answered. ¾The facts. Provide all of the material facts and infor- mation related to your question in a clear and concise manner. Summarize relevant parts of attachments and enclosures in the request. Some frequently asked questions about written advice include: What is the difference between “formal” and “informal” written advice? “Formal” written advice letters from the FPPC apply provisions of the Political Reform Act to very specific fac- FPPC 6 (Revised 8/03) tual situations involving particular public officials. “Informal” written advice letters provide answers to gen- eral questions about the Act. Requests for written advice that seek general guidance and do not provide specific facts are treated as requests for informal written assis- tance. Formal written advice confers limited immunity on the requestor; informal written advice does not. Formal written advice is noted by the file prefix “A” in the FPPC file number of the letter, and informal written advice is noted by the prefix “I.” When will I get an answer? The Act directs the Commission to respond to a re- quest for “formal” written advice within 21 business days of receipt. If a staff member needs to contact you to get more facts to prepare the reply, or if your request poses a particularly complex legal question, the 21-day period may be extended. The 21-day deadline does not apply to “informal” written advice. What happens to a request for written advice once the FPPC receives it? Upon receiving your request, the Commission sends you a written acknowledgment that provides the name of the staff person who will prepare the response. Commis- FPPC 7 (Revised 8/03) sion staff may contact you to request additional facts or information needed to answer your request. Outgoing ad- vice letters are reviewed and approved by a senior staff counsel, the General Counsel, or both. Once issued, are advice letters made public? Yes. The Commission publishes advice letter summa- ries in its Bulletin newsletter. We send copies of the ad- vice letters to the Attorney General, Secretary of State, the Franchise Tax Board and private parties who have paid subscriptions. The advice letters are published on Westlaw and Lexis and are made available to interested parties on request. Does written advice provide immunity? Formal written advice based upon accurate and com- plete facts provides immunity to the requestor from any enforcement action initiated by the Commission and is evidence of good faith in any other proceeding if the re- questor relies upon the advice in good faith (section 83114(b)). Formal written advice is not a declaration of policy by the Commission. It is the application of law to a particular set of facts. Though the advice may provide guidance to others, the immunity provided by formal writ- ten advice is limited to the requestor under the specific facts described in the letter. As discussed above, tele- phone advice and informal written advice do not confer immunity on the requestor. May a requestor ask for reconsideration of written ad- vice? Yes. The request for reconsideration should be made to the General Counsel. If the requestor wishes the com- missioners to consider the matter, he or she should so state and the letter may be placed on the Commission’s agenda for consideration. May the Commission decline to provide advice? The Commission may decline to provide formal written FPPC 8 (Revised 8/03) advice if the requestor does not provide all of the material facts. The Commission may also decline to provide formal written advice if the request relates to past conduct, does not relate to the Act, is purely hypothetical, or presents issues requiring a policy interpretation best made through a Commission opinion or adoption of a regulation (Reg. 18329(b)(8)). In certain situations involving advice regarding an indi- vidual’s disclosure category or filing obligations under an agency’s conflict of interest code, the individual must first request a determination from his or her agency and/or the agency’s code reviewing body (Reg. 18329.5). (This proc- ess is outlined beginning on page 11 of this brochure.) Tips for advice-seekers: ¾Ask for advice before you act. FPPC staff members can provide you with telephone or written advice about future conduct only, not about actions already taken. Similarly, staff members do not provide ad- vice about matters in litigation or about which a complaint has been filed with the FPPC. ¾Call or write as early as pos- sible in advance of your deadline. Our staff members make every effort to respond within your time frame. But some questions may raise complex issues that require research, so try to call or write as early as possible prior to the action in ques- tion. ¾Describe the facts fully. To receive the most accu- rate advice possible, identify yourself and the official FPPC 9 (Revised 8/03) FPPC 10 (Revised 8/03) FPPC On Line www.fppc.ca.gov The FPPC has expanded and upgraded its web site. The emphasis is not on flashy graphics but on providing users with the most complete, up-to-date information possible. The site includes, among other things: •E-mail subscription lists for FPPC publications, Interested Persons materials, and agendas •Fact sheets outlining the rules concerning: cam- paign disclosure, lobbyists, conflicts of interest, and gift limitations •Downloadable forms and publications •The Political Reform Act •FPPC regulations, including newly adopted rules •Meeting agendas and summaries •Current and past issues of the FPPC Bulletin •Summaries of enforcement decisions or entities involved, state a clear question, and pro- vide as many facts as possible. Examples include: ♦For campaign reporting questions, identify the candidate, committee name and type, and de- scribe your activity in detail. ♦For questions relating to conflicts of interest, identify the public official involved, the govern- mental decision the official is making, and the official’s economic interests (property, income, or gifts) that may cause a conflict of interest. ¾We can’t provide advice on hypothetical situa- tions. Ask for advice about a real transaction you plan to undertake or a specific decision coming before you. FPPC staff members cannot provide advice about speculative “what-if” scenarios. ¾Check previous FPPC advice letters. We may have already answered a question similar to yours in a pre- vious advice letter. The Commission’s advice letters are available through the legal research services Westlaw and Lexis. Advice involving agency conflict of interest codes If you need advice about your filing obligations un- der your agency’s conflict of interest code, you must first request a determination from your agency and your agency’s code reviewing body (if different than the FPPC), before you request assistance from the FPPC (Reg. 18329.5(a)(3)(A)). Examples could include ques- tions about whether your employment position should be included under your agency’s code, or the extent to which you are required to disclose your financial interests. FPPC 11 (Revised 8/03) Likewise, an agency with questions about its conflict of interest code must first request a determination from its code reviewing body before contacting the FPPC, if that code reviewing body is not the FPPC (Reg. 18329.5(a)(3) (B)). If you would like more information about this process or how to determine who is your code reviewing body, you may contact the FPPC’s Technical Assistance Division at our toll- free number. Once you have sought a determination from your agency and code reviewing body, and if you still have questions or need assistance, you may contact the FPPC for advice. You may be asked by FPPC staff to provide certain information, including a copy of all pertinent agency determinations re- garding your disclosure obligations, a copy of your duty statement and employment contract, a copy of the conflict of interest code at issue, and any other pertinent information. The process outlined above does not prohibit the FPPC from providing you with technical assistance on com- plying with your reporting requirements under your agency’s current conflict of interest code. Also, the process outlined above does not prohibit the FPPC from, at any time, providing advice on whether an in- dividual is considered a “public official who manages public investments” under the Political Reform Act (Reg. 18329.5 (c); California Government Code section 87200). Please note that if you are potentially subject to a conflict of interest code, you may petition your agency to amend its code. You may appeal a denied petition to your agency’s code reviewing body, and you may also seek judicial review of any action taken by the code reviewing body (California Government Code sections 87307 and 87308). Commission Opinions The Commission, following a process outlined in its regulations, may issue formal opinions. Such opinions typi- cally involve matters of significant public interest and sub- FPPC 12 (Revised 8/03) stantial questions of interpretation of the Political Reform Act. The procedure for requesting and issuing formal opinions is detailed in FPPC Regulations 18320-18326. Requesting an opinion Requests for formal opinions may be submitted to the Commission by any person whose duties under the Act are in question, or that person’s authorized representative. The procedure for requesting a formal opinion, and the Commission’s procedure for granting or denying such re- quests, is outlined in Regulation 18320. To request a formal opinion, write a letter to: Executive Director Fair Political Practices Commission 428 J Street, Suite 620 Sacramento, CA 95814 Try to state the question and all relevant facts as con- cisely as possible. The executive director determines whether to grant or deny opinion requests. A denial can be appealed by the person requesting the opinion. Requests for opinions received by the FPPC are public records and are open to public inspection. Public hearings held When the Commission has agreed to issue an opinion, a public hearing is held. The opinion requestor, interested persons and members of the public are given an opportunity to provide both written and oral input before the opinion is adopted. The Commission adopts formal opinions at a public meeting. Before the meeting, a draft of the opinion is pro- vided to members of the Commission, the person requesting FPPC 13 (Revised 8/03) The purposes of California’s Political Reform Act are described in the initiative’s preamble, including: “Receipts and expenditures in election campaigns should be fully and truthfully disclosed in order that the voters may be fully informed and improper prac- tices may be inhibited.” “The activities of lobbyists should be regulated and their finances disclosed in order that improper influ- ences will not be directed at public officials.” “Assets and income of public officials which may be materially affected by their official actions should be disclosed and in appropriate circumstances the officials should be disqualified from acting in order that conflicts of interest may be avoided.” the opinion, the state Attorney General, the Franchise Tax Board, the Secretary of State and other interested persons, and is made available to the public. Opinions published Opinions adopted by the Commission, along with any dissenting or concurring opinions by commissioners, are public and are published on Westlaw and Lexis. May the person requesting the opinion ask for a re- hearing? Yes. Within 14 days after the adoption of a formal opinion by the Commission, the person who submitted the opinion request, a commissioner or the executive di- rector may petition the Commission to grant a rehearing. FPPC 14 (Revised 8/03) By mail: Fair Political Practices Commission 428 J Street, Suite 620 Sacramento, CA 95814 Internet: www.fppc.ca.gov By telephone: Toll-free advice line: 1-866-ASK-FPPC (1-866-275-3772) Regular line: 1-916-322-5660 Enforcement hot line: 1-800-561-1861 How To Contact Us: California Fair Political Practices Commission