HomeMy WebLinkAboutOrdinance 3246 - Gift Ban Ordinance. t _ �
REQUEST FOR COUNCIL ACTION
July 18, 1994
Submitted to: Honorable Mayor & City Council Members
Submitted by: Michael T. Uberuaga, City Administrat P O ED
ITY COUNCpi,
Prepared by: Patricia A. Dapkus, Management Assistan � .2-
Subject: Gift Ban Ordinance
CIT CLER
\Consistent with Council Policy? [ ] Yes [ ] New Policy 10 /32 via./q'.
Statement of Issue, Recommendation, Analysis, Funding Source, Alternate Actions, &Attachments
J/r�y� 117 du v� eW1-er_,:poe as grrr r/e
STATEMENT OF ISSUE: The receipt of gifts by public officials from persons who do
business with the City erodes public confidence in the impartiality of decisions made by
those officials. The purpose of this Ordinance is to prohibit the donation and receipt of
specified gifts, thereby eliminating, to the extent possible, such loss of confidence.
RECOMMENDATION:
Approve Ordinance No. 32 46 adding new Chapter 2.05 to the Huntington Beach
Municipal Code relating to the donation and receipt of specified gifts to public officials.
ANALYSIS:
At the direction of Council a Council committee composed of Council members Silva,
Sullivan, and Winchell was formed with the charge of establishing guidelines relative to the
acceptance of gifts by city officials.
The Ordinance which is attached has been reviewed by the department heads and the
League of Women Voters. It was also reviewed by the author of the Orange County Gift Ban
Ordinance, Shirley Grindle. Her comment letter is attached.
FUNDING SOURCE: N/A
ALTERNATE ACTIONS:
1. Provide direction to staff on revisions needed in the above Ordinance.
2. Take no action on the above ordinance.
ATTACHMENTS:
1. Ordinance
2. Comment letter from Shirley Grindle G(,
ORDINANCE NO. 3303
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING CHAPTER 2.05 TO THE
HUNTINGTON BEACH MUNICIPAL CODE
RELATING TO GIFTS TO PUBLIC OFFICIALS
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. That Section 2.05.020 of Chapter 2.05 shall be amended to read as
follows:
2.05.020 Definitions. For the purposes of this Chapter:
(a) "City" means the City of Huntington Beach.
(b) "City Officer' means every person who is elected or appointed to an office in the
city which is specified in § 87200 of the California Government Code.
(c) "Designated employee" means every employee of the City who is designated in
the City's Conflict of Interest Code to file a statement of economic interests and
every member of a board, commission, or committee, under the jurisdiction of
the City Council required to file such a statement.
(d) "Doing business with the City" means:
(1) seeking the award of a contract or grant from the City, or
(2) having sought the award of a contract or grant from the City in the past 12
months, or
(3) Being engaged as a lobbyist or lobbyist firm, as defined in this Section, from
the time of such engagement until 12 months after the award of the contract,
grant, license, permit, or other entitlement for use, which was the subject of
the engagement, or
_44) having an existing contractual relationship with the City, until 12 months after
the contractual obligations of all parties have been completed, or
(5) seeking, actively supporting, or actively opposing the issuance, by the City,
of a license, permit, or other entitlement for use, or having done any of these
things within the past 12 months.
(e) "Gift" shall have the meaning it is defined to have in the California Political
Reform Act, and the regulations issued pursuant to that Act which reads as
follows:
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. r
"§82028. Gift
(a) "Gift" means, except as provided in subdivision(b),any payment to the
extent that consideration of equal or greater value is not received and
includes a rebate or discount in the price of anything of value unless the
rebate or discount is made in the regular course of business as to members
of the public without regard to official status. Any person, other than a
defendant in a criminal action,who claims that a payment is not a gift by
reason of receipt of consideration has the burden of proving that the
consideration received is of equal or greater value.
(b) The term"gift" does not include:
(1) Informational material such as books,reports,pamphlets, calendars, or
periodicals. No payment for travel or reimbursement for any expenses
shall be deemed"informational material."
(2) Gifts which are not used and which,within thirty(30)days after receipt,
are returned to the donor or delivered to a contribution for tax
purposes.
(3) Gifts from an individual's spouse, child,parent, grandparent,
grandchild,brother, sister,parent-in-law,brother-in-law, sister-in-law,
nephew,niece, aunt,uncle, or first cousin or the spouse of any such
person;provided that a gift from any such person shall be considered a
gift if the donor is acting as an agent or intermediary for any person not
covered by this paragraph..
(4) Campaign contribution required to be reported under Chapter 4 of this
title.
(5) Any devise or inheritance.
(6) Personalized plaques and trophies with an individual value of less than
two hundred fifty dollars ($250)."
The following items shall be deemed to be additional exceptions to the definition of "Gift":
(1) Food, beverages, and free admission at any event sponsored by, or for the
_ benefit of, a bona fide educational, academic, or charitable organization,
and commemorative gifts from such organizations with a cumulative value of
one hundred dollars ($100.00) or less from any single source during any
twelve (12) months period.
(2) Food, beverages, and free admission provided by a governmental agency at
ceremonial functions commemorating the opening or naming of a public
facility.
(3) Any food or beverages with a cumulative value of fifty dollars ($50.00) from
any single source within a twelve (12) month period.
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7/k/amendgifl/10/10/9 5
(4) Flowers, plants, balloons or similar tokens which are given to express
condolences, congratulations, or sympathy for ill health, or to commemorate
a special event or occasion, provided that gifts made or received under this
exemption shall not exceed a value of fifty dollars ($50.00) from any single
source in any calendar year.
(5) A prize awarded on the basis of chance in a bona fide competition not
related to the official status of the public official.
(6) Gifts from any agency of a foreign sovereign nation, provided that such gifts
are unconditionally donated by the public official to the City within forty-five
(45) days of receipt, and the public official does not claim any tax deduction
by virtue of such donation.
(7) Food, beverages, lodging and transportation expenses provided by any
governmental or quasi-governmental entity, or by any public entity, in
conjunction with any event sponsored by that entity or agency, the purpose
of which is to educate or provide information related to the functions, needs,
purposes or operation of that entity or local government.
(f) "Lobbyist' shall mean any individual, including an attorney, who is employed or
contracts for consideration, other than reimbursement of reasonable travel
expenses, to communicate directly with any City officer or staff member of a City
Council member for the purpose of seeking, actively supporting, or actively
opposing the award of a contract or grant from the City, or the issuance, by the
City of a license, permit, or other entitlement for use. An attorney shall not be
considered a lobbyist when performing activities which can only be performed
by a person admitted to the practice of law.
(g) "Lobbyist firm" shall mean
(1) any business entity, which is employed or contracts for consideration, other
than reimbursement of travel expenses, to communicate directly with a City
officer or staff member of a City Council member for the purpose of seeking,
actively supporting or actively opposing the award of a contract or grant from
the City, or the issuance, by the City, of a license, permit, or other
entitlement for use, or
(2) any business entity of which any member or employee is a lobbyist.
(h) "Principal" shall mean any individual or business entity which employs or contracts with
a lobbyist or lobbyist firm for any of the purposes stated in Subsections (f) or (g) above.
(i) An individual or business entity shall be deemed to be "lobbying" a City officer or staff
member of a City Council member if it is reasonably foreseeable that in the course of
employment or in the course of performing the contract the individual or an employee of
the entity will have a telephone conversation or a discussion with any City officer or
staff member of a City Council member, outside of a meeting governed by the Ralph M.
Brown Act (which is codified in the California Government Code commencing with §
54950), for the purpose of seeking, actively supporting, or actively opposing the award
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Tk/amendgift/10/10/9 5
of a contract or grant from the City, or the issuance, by the City, of a license, permit, or
other entitlement for use.
(j) An individual lobbyist who is an officer, partner or employee of his or her principal shall
be deemed to be "engaged"within the meaning of this Section on the first occasion on
which he or she engages in a telephone conversation or discussion described in
Subsection (i). A lobbyist firm, or an individual lobbyist who is not an officer, partner or
employee of his or her principal shall be deemed to be "engaged" within the meeting of
this Section upon the completion of an agreement, oral or written, to provide the
services specified in Subsection (f) or(g).
(k) "Public official' means every City officer and every designated employee.
SECTION 2: This ordinance shall take effect 30 days after after its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting held thereof on the 6th day of ember 1995.
r
ATjj�T ST: Mayor
INITIATED AND APPROVED AS TO FORM:
City Clerk
u..
R ANP APPRO ED /o io ity Attorney
City Administr or
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7/k/amendgift/10/10/95
Ord. No. 3303
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do
hereby certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing ordinance was read to said City Council
at a replar meeting thereof held on the 16th of October, 1995, and was again read to
said City Council at a re ular meeting thereof held on the 6th of November, 1995, and
was passed and adopted by the affirmative vote of at least a majority of all the members
of said City Council.
AYES: Councilmembers:
Harman, Sullivan, Leipzig, Dettloff, Garofalo
NOES: Councilmembers:
None
ABSENT: Councilmembers:
Bauer, Green (out of room)
I,Connie Brockway CITY CLERK of the City of
Huntington Beach and ex-officio Clerk of the City Council,
do hereby certify that a synopsis of this ordinance has been
published in the Independent on
,19
In accordance with the City Charter of said City City Clerk and ex-officio Clerk
Connie Brockavay City Clerk of the City Council of the City
Deputy City Clerk of Huntington Beach, California
G/ordinanc/ordbkpg
11/8/95
LEGISLATIVE DRAFT
Chapter 2.05
Gifts To Public Officials
Sections:
2.05.O1OPurpose;Meaning of Terms;Interpretation; Citation
2.05.020Definitions
2.05.03 0 Prohibitions
2.05.040 Violations and Enforcement
2.05.010 Purpose, meaning of terms,interpretation;citation. The City Council finds that the receipt of
gifts by public officials from persons who do Business with the City erodes public confidence in the
impartiality of decisions made by those officials. The purpose of this Ordinance is to prohibit the
donation and receipt of specified gifts,thereby eliminating,to the extent possible, such loss of confidence.
(3246-9/94)
Unless otherwise expressly defined,the terms used in this Ordinance shall have the same meaning as
defined in the California Political Reform Act(California Government Code§81000 et seq.)and
regulations issued by the Fair Political Practices Commission pursuant to the authority of the Political
Reform Act,as the Act and regulations shall be,from time to time,amended. (3246-9/94)
This Chapter shall be known as,and may be cited as,the"Huntington Beach Gift Ban Ordinance."
(3246-9/94)
2.05.020 Definitions. For the purposes of this Chapter:
(a) "City" means the City of Huntington Beach. (3246-9/94)
(b) "City Officer"means every person who is elected or appointed to an office in the city which is
specified in§ 87200 of the California Government Code. (3246-9/94)
(c) "Designated employee" means every employee of the City who is designated in the City's Conflict of
Interest Code to file a statement of economic interests and every member of a board,commission,or
committee,under the jurisdiction of the City Council required to file such a statement. (3246-9/94)
(d) "Doing business with the City"means: (3246-9/94)
(1) seeking the award of a contract or grant from the City,or (3246-9/94)
(2) having sought the award of a contract or grant from the City in the past 12 months,or
(3246-9/94)
(3) Being engaged as a lobbyist or lobbyist firm,as defined in this Section,from the time of such
engagement until 12 months after the award of the contract,grant,license,permit,or other
entitlement for use,which was the subject of the engagement,or (3246-9/94)
(4) having an existing contractual relationship with the City,until 12 months after the contractual
obligations of all parties have been completed,or (3246-9/94)
(5) seeking,actively supporting,or actively opposing the issuance,by the City,of a license,permit,
or other entitlement for use,or having done any of these things within the past 12 months.
(3246-9/94)
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7/k/mc205/1egisdrR/10/10/95
ORDINANCE NO. 3246
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
ADDING NEW CHAPTER 2.05 TO THE
HUNTINGTON BEACH MUNICIPAL CODE
RELATING TO THE DONATION AND RECEIPT OF
SPECIFIED GIFTS TO PUBLIC OFFICIALS
The City Council of the City of Huntington Beach does hereby ordain as follows:
Section 1. That Chapter 2.05 shall be added to the Huntington Beach Municipal
Code, to read as follows:
CHAPTER 2.05
GIFTS TO PUBLIC OFFICIALS
Section 2.05.010. Purpose; Meaning of Terms; Interpretation; Citation
The City Council finds that the receipt of gifts by public officials from persons who do
business with the City erodes public confidence in the impartiality of decisions made by those
officials. The purpose of this Ordinance is to prohibit the donation and receipt of specified gifts,
thereby eliminating, to the extent possible, such loss of confidence.
Unless otherwise expressly defined, the terms used in this Ordinance shall have the same
meaning as defined in the California Political Reform Act (California Government Code§81000
et:seq.) and regulations issued by the Fair Political Practices Commission pursuant to the authority
of the Political Reform Act, as the Act and regulations shall be, from time to time, amended.
This Chapter shall be known as, and may be cited as, the "Huntington Beach Gift Ban
Ordinance."
Section 2.05.020. Definitions.
For the purposes of this Chapter:
(a) "City" means the City of Huntington Beach.
(b) "City officer" means every person who is elected or appointed to an office in the
City which is specified in Section 87200 of the California Government Code.
(c) "Designated employee" means every employee of the City who is designated in the
City's Conflict of Interest Code to file a statement of economic interests and every
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4295\9\s\G:Ord:Gift$an\6/28/94
member of a board, commission, or committee, under the jurisdiction of the City
Council required to file such a statement.
(d) "Doing business with the City" means:
(1) seeking the award of a contract or grant from the City, or
(2) having sought the award of a contract or grant from the City in the past 12
months, or
(3) being engaged as a lobbyist or lobbyist firm, as defined in this Section, from
the time of such engagement until 12 months after the award of the
contract, grant, license, permit, or other entitlement for use, which was the
subject of the engagement, or
(4) having an existing contractual relationship with the City, until 12 months
after the contractual obligations of all parties have been completed, or
(5) seeking, actively supporting, or actively opposing the issuance, by the City,
of a license, permit, or other entitlement for use, or having done any of
these things within the past 12 months.
(e) "Gift" shall have the meaning it is defined to have in the California Political Reform
Act, and the regulations issued pursuant to that Act which reads as follows:
"§ 82028. Gift
(a) "Gift" means, except as provided in subdivision (b), any
payment to the extent that consideration of equal or greater value is not
received and includes a rebate or discount in the price of anything of value
unless the rebate or discount is made in the regular course of business as to
members of the public without regard to official status. Any person, other
than a defendant in a criminal action, who claims that a payment is not a
gift by reason of receipt of consideration has the burden of proving that the
consideration received is of equal or greater value.
(b) The term "gift" does not include:
(1) Informational material such as books, reports,
pamphlets, calendars, or periodicals. No payment for travel
or reimbursement for any expenses shall be deemed
"informational material."
(2) Gifts which are not used and which, within 30 days
after receipt, are returned to the donor or delivered to a
contribution for tax purposes.
(3) Gifts from an individual's spouse, child, parent,
grandparent, grandchild, brother, sister, parent-in-law,
brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or
first cousin or the spouse of any such person; provided that
a gift from any such person shall be considered a gift if the
donor is acting as an agent or intermediary for any person
not covered by this paragraph.
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4295\9\s\G:Ord:Gift Ban\6/28/94
(4) Campaign contributions required to be reported
under Chapter 4 of this title.
(5) Any devise or inheritance.
(6) Personalized plaques and trophies with an individual
value of less than two hundred fifty dollars ($250).
The following items shall be deemed to be additional exceptions to the definition
of"Gift":
(1) Food, beverages, and free admission at any event sponsored by, or
for the benefit of, a bona fide educational, academic, or charitable
organization, and commemorative gifts from such organizations
with a cumulative value of$100.00 or less from any single source
during any 12 months period.
(2) Food, beverages, and free admission provided by a governmental
agency at ceremonial functions commemorating the opening or
naming of a public facility.
(3) Any food or beverages with a cumulative value of$50.00 from any
single source within a 12-month period.
(4) Flowers, plants, balloons or similar tokens which are given to
express condolences, congratulations, or sympathy for ill health, or
to commemorate a special event or occasion, provided that gifts
made or received under this exemption shall not exceed a value of
$50.00 from any single source in any calendar year.
(5) A prize awarded on the basis of chance in a bona fide competition
not related to the official status of the public official.
(6) Gifts from any agency of a foreign sovereign nation, provided that
such gifts are unconditionally donated by the public official to the
City within 45 days of receipt, and the public official does not claim
any tax deduction by virtue of such donation.
(f) "Lobbyist" shall mean any individual, including an attorney, who is employed or
contracts for consideration, other than reimbursement of reasonable travel
expenses, to communicate directly with any City officer or staff member of a City
Council member for the purpose of seeking, actively supporting, or actively
opposing the award of a contract or grant from the City, or the issuance, by the
City of a license, permit, or other entitlement for use. An attorney shall not be
considered a lobbyist when performing activities which can only be performed by a
person admitted to the practice of law.
(g) "Lobbyist firm" shall mean(1) any business entity, which is employed or contracts
for consideration, other than reimbursement of travel expenses, to communicate
directly with a City officer or staff member of a City Council member for the
purpose of seeking, actively supporting or actively opposing the award of a
contract or grant from the City, or the issuance, by the City, of a license, permit, or
3
4295191siG:Ord:Gift Ban\7/19/94
other entitlement for use, or(2) any business entity of which any member or
employee is a lobbyist.
(h) "Principal" shall mean any individual or business entity which employs or contracts
with a lobbyist or lobbyist firm for any of the purposes stated in Subsections (f) or
(g), above.
(i) An individual or business entity shall be deemed to be "lobbying" a City officer or
staff member of a City Council member if it is reasonably foreseeable that in the
course of employment or in the course of performing the contract the individual or
an employee of the entity will have a telephone conversation or a discussion with
any City officer or staff member of a City Council member, outside of a meeting
governed by the Ralph M. Brown Act (which is codified in the California
Government Code commencing with Section 54950), for the purpose of seeking,
actively supporting, or actively opposing the award of a contract or grant from the
City, or the issuance, by the City, of a license, permit, or other entitlement for use.
(j) An individual lobbyist who is an officer, partner or employee of his or her principal
shall be deemed to be "engaged" within the meaning of this Section on the first
occasion on which he or she engages in a telephone conversation or discussion
described in Subsection(i). A lobbyist firm, or an individual lobbyist who is not an
officer, partner or employee of his or her principal shall be deemed to be
"engaged" within the meeting of this Section upon the completion of an agreement,
oral or written, to provide the services specified in Subsections (f) or (g).
(k) "Public official" means every City officer and every designated employee.
Section 2.05.030. Prohibitions.
(a) Gifts to city officer. No person who is doing business with the City shall make
any gift to any City officer.
(b) Gifts to designated employees. No person who is doing business with the
City shall make any gift to any designated employee, who, by virtue of his City
employment, could make a governmental decision, participate in making a
governmental decision, or use his or her official position to influence a
governmental decision regarding the pending business of the donor, or who has
done any of the above during the 12 months preceding the donation.
(c) Solicitation or acceptance of gifts by cif officer. No City officer shall solicit or
accept any gift from any person whom he knows, or has reason to know, is doing
business with the City.
(d) Solicitation or acceptance of gifts by designated employee_. No designated
employee shall solicit or accept any gift from any person whom he knows, or has
4
4295\9\s\G:Ord:Gift Ban\6/28/94
i
reason to know, is doing business with the City, when such employee by virtue of
his City employment, could make a governmental decision, participate in making a
governmental decision, or use his or her official position to influence a
governmental decision regarding the pending business of the donor, or has done
any of the above during the 12 months preceding the donation.
(e) Gifts from unknown sources. No public official shall accept any gift when the
identity of the donor is not known to the public official.
(f) Honoraria. No public official shall accept any honorarium from any person
doing business with the City.
Section 2.05.040. Violations and Enforcement.
(a) Any designated employee who violates Section 2.05.030 shall be subject to
discipline for such violation, including, in appropriate cases, termination of
employment.
(b) Any member of any City board, commission, or committee who violates Section
2.05.030 shall be subject to removal from office.
(c) Any city officer who violates Section 2.05.030 shall be guilty of a misdemeanor,
and any person who violates Section 2.05.030(a) or Section 2.05.030(b) shall be
guilty of a misdemeanor.
Section 2.05.050. Effective Date.
The provisions of this Chapter shall become effective thirty (30) days after adoption.
Mayor
ATTEST: APPROVED AS TO FORM:
City Clerk CiVAttornev
REVIEWED AND APPROVED: INITIATED AND APPROVED:
4Ad4mnuirustrator y Administrator
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4295\9\s\G:Ord:Gift Ban\6/28/94
Ord. No. 3246
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of
the City of Huntington Beach, and ex-officio Clerk of the City Council of said
City, do hereby certify that the whole number of members of the City Council of
the City of Huntington Beach is seven;that the foregoing ordinance was read to
said City Council at a regular meeting thereof held on the 18th day of July, 1994,
and was again read to said City Council at an adjourned regular meeting thereof
held on the 2nd of August, 1994, and was passed and adopted by the affirmative
vote of at least a majority of all the members of said City Council.
AYES: Councilmembers:
Silva, Bauer, Robitaille, Moulton-Patterson,Winchell, Leipzig,
Sullivan
NOES: Councilmembers:
None
ABSENT: Councilmembers:
None
City Clerk and ex-officio Cl rk
of the City Council of the City
of Huntington Beach, California
I
i
i
i
2 June 1994
TO: Pat Dankus
FROM: Shirley Grindle
SUBJECT: Review of Proposed Huntington Beach Gift Ban Ordinance
I have the following comments regarding your proposed GBO:
1. Page 3 , item (e) (1) : Why are you using $100 instead of
the $50 level that is used at the County?
2 . Page 3, Item (e ) (3 ) : I suggest the following wording
which will avoid having to keen track of minor items
such as coffee, donuts, etc. :
(3 ) Food and beverage such as coffee, donuts, etc. ,
with a unit value of less than $2. 00.
3 . Page 4, Item (f) under Prohibitions :
The State Law n_ rohibits State officials from accepting
ANY honoraria, I would recommend this same prohibition
for Huntington reach officials .
I 'm very pleased that you have used the County's GSO as the basis
for your GBO. I would like to emphasize my concern over Item 3 on
Page 3 of your n_ roposed ordinance, which allows "wining and dining"
up to $100 from any single source within a 12-month period. I
think this is the very thing the GBO is trying to stop - the paid-
for lunches. Granted that $100/yr/source is not a great amount,
-but why allow any - it's much easier to Day for it yourself than
it is to keen track of it for each source and to make sure it is
reported correctly. And it certainly looks better to the n_ ublic.
Why should any public official be allowed to accept lunch , dinner,
etc. from someone doing business with them? Furthermore , the real
value of the reported lunches and' dinners will always be suspect in
the eyes of the public.
Thank you for letting me review this ordinance . Please pass my com-
ments an to your Committee and to Ralph Bauer and Linda ,M-Patterson.
(4) Campaign contributions required to be reported
under Chapter 4 of this title.
(5) Any devise or inheritance.
(6) Personalized plaques and trophie with an individual
value of less than two hundred fifty ollars ($250).
e following items shall be deemed to be additiona exceptions to the definition
of 'ft":
Food, beverages, and free ad ssion at any event sponsored by, or
for the benefit of, a bona fi educational, academic, or charitable
organization, and comme orative gifts from such organizations
ith a cumulative value of$100.00 or less from any single source
d 'ng any 12 months eriod.
(2) Foo beverages, a free admission provided by a governmental
agenc at ceremo al functions commemorating the opening or
naming a public facility. s0, B-O
(3) Any food beverages with a cumulative value of%-90.00 from
any single s rce within a 12-month period.
(4) Flowers, plant balloons or similar tokens which are given to
express condole ces, congratulations, or sympathy for ill health, or
to corn yemorate special event or occasion, provided that gifts
made or received un er this exemption shall not exceed a value of
$50.Od from any sing l source in any calendar year.
(5) A pr.'ze awarded on the asis of chance in a bona fide competition
no related to the official atus of the public official.
(6) s from any agency of a reign sovereign nation, provided that
ch gifts are unconditionally onated by the public official to the
ity within 45 days of receipt, nd the public official does not claim
any tax deduction by virtue of su h donation.
(f) "Lobbyist" hall mean any individual, including an a torney, who is employed or
contracts or consideration, other than reimbursemen of reasonable travel
expense , to communicate directly with any City office or staff member of a City
Counc' member for the purpose of seeking, actively su orting, or actively
oppo ng the award of a contract or grant from the City, r the issuance, by the
City f a license, permit, or other entitlement for use. An torney shall not be
co sidered a lobbyist when performing activities which can my be performed by a
p son admitted to the practice of law.
(g) "Lobbyist firm" shall mean (1) any business entity, which is em�loyed or contracts
for consideration, other than reimbursement of travel expenses, to communicate
directly with a City officer or staff member of a City Council member for the
purpose of seeking, actively supporting or actively opposing the award of a
contract or grant from the City, or the issuance, by the City, of a license, permit, or
3
4295\9\s\ :Ord:Gift Ban\6/28/94
(e) "Gift" shall have the meaning it is defined to have in the California Political Reform Act,and the
regulations issued pursuant to that Act which reads as follows: (3246-9/94)
"§82028. Gift (3246-9/94)
(a) "Gift" means,except as provided in subdivision(b), any payment to the extent that
consideration of equal or greater value is not received and includes a rebate or
discount in the price of anything of value unless the rebate or discount is made in
the regular course of business as to members of the public without regard to official
status. Any person,other than a defendant in a criminal action,who claims that a
payment is not a gift by reason of receipt of consideration has the burden of proving
that the consideration received is of equal or greater value. (3246-9/94)
(b) The term"gift" does not include: (3246-9/94)
(1) Informational material such as books,reports,pamphlets, calendars,or
periodicals. No payment for travel or reimbursement for any expenses shall be
deemed"informational material." (3246-9/94)
(2) Gifts which are not used and which,within thirty(30)days after receipt,are
returned to the donor or delivered to a contribution for tax purposes.
(3246-9/94)
(3) Gifts from an individual's spouse,child,parent, grandparent, grandchild,
brother,sister,parent-in-law,brother-in-law,sister-in-law,nephew,niece,aunt,
uncle, or first cousin or the spouse of any such person;provided that a gift from
any such person shall be considered a gift if the donor is acting as an agent or
intermediary for any person not covered by this paragraph. (3246-9/94)
(4) Campaign contribution required to be reported under Chapter 4 of this title.
(3246-9/94)
(5) Any devise or inheritance. (3246-9/94)
(6) Personalized plaques and trophies with an individual value of less than two
hundred fifty dollars($250)." (3246-9/94)
The following items shall be deemed to be additional exceptions to the definition of "Gift":
(3246-9/94)
(1) Food,beverages,and free admission at any event sponsored by,or for the benefit of,a bona fide
educational, academic,or charitable organization,and commemorative gifts from such
organizations with a cumulative value of one hundred dollars($100.00)or less from any single
source during any twelve(12)months period. (3246-9/94)
(2) Food,beverages,and free admission provided by a governmental agency at ceremonial functions
commemorating the opening or naming of a public facility. (3246-9/94)
(3) Any food or beverages with a cumulative value of fifty dollars($50.00)from any single source
within a twelve(12)month period. (3246-9/94)
2
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(4) Flowers,plants,balloons or similar tokens which are given to express condolences,
congratulations,or sympathy for ill health,or to commemorate a special event or occasion,
provided that gifts made or received under this exemption shall not exceed a value of fifty dollars
($50.00)from any single source in any calendar year. (3246-9/94)
(5) A prize awarded on the basis of chance in a bona fide competition not related to the official status
of the public official. (3246-9/94)
(6) Gifts from any agency of a foreign sovereign nation,provided that such gifts are unconditionally
donated by the public official to the City within forty-five(45)days of receipt,and the public
official does not claim any tax deduction by virtue of such donation. (3246-9/94)
(7) Food, beverages, lodging and transportation expenses provided by any
governmental or quasi-governmental entity, or by any public entity, in
conjunction with any event sponsored by that entity or agency, the purpose
of which is to educate or provide information related to the functions, needs,
purposes or operation of that entity or local government.
(f) "Lobbyist" shall mean any individual,including an attorney,who is employed or contracts for
consideration,other than reimbursement of reasonable travel expenses,to communicate directly
with any City officer or staff member of a City Council member for the purpose of seeking,
actively supporting, or actively opposing the award of a contract or grant from the City,or the
issuance,by the City of a license,permit,or other entitlement for use. An attorney shall not be
considered a lobbyist when performing activities which can only be performed by a person
admitted to the practice of law. (3246-9/94)
(g) "Lobbyist firm" shall mean
(1) any business entity,which is employed or contracts for consideration,other than reimbursement
of travel expenses,to communicate directly with a City officer or staff member of a City Council
member for the purpose of seeking,actively supporting or actively opposing the award of a
contract or grant from the City,or the issuance,by the City,of a license,permit,or other
entitlement for use,or (3246-9/94)
(2) any business entity of which any member or employee is a lobbyist. (3246-9/94)
(h) "Principal" shall mean any individual or business entity which employs or contracts with a lobbyist or
lobbyist firm for any of the purposes stated in Subsections(f)or(g)above. (3246-9/94)
(i) An individual or business entity shall be deemed to be"lobbying"a City officer or staff member of a City
Council member if it is reasonably foreseeable that in the course of employment or in the course of
performing the contract the individual or an employee of the entity will have a telephone conversation or a
discussion with any City officer or staff member of a City Council member,outside of a meeting governed
by the Ralph M.Brown Act(which is codified in the California Government Code commencing with§
54950),for the purpose of seeking,actively supporting,or actively opposing the award of a contract or
grant from the City,or the issuance,by the City,of a license,permit,or other entitlement for use.
(3246-9/94)
(j) An individual lobbyist who is an officer,partner or employee of his or her principal shall be deemed to be
"engaged"within the meaning of this Section on the first occasion on which he or she engages in a
telephone conversation or discussion described in Subsection(i). A lobbyist firm,or an individual lobbyist
who is not an officer,partner or employee of his or her principal shall be deemed to be"engaged"within
3
7/k/mc205/legisdrR/10/10/95
the meeting of this Section upon the completion of an agreement,oral or written,to provide the services
specified in Subsection(f)or(g). (3246-9/94)
(k) "Public official'means every City officer and every designated employee. (3246-9/94)
2.05.030 Prohibitions. (3246-9/94)
(a) Gifts to city officer. No person who is doing business with the City shall make any gift to any City
officer.
(b) Gifts to designated employees. No person who is doing business with the City shall make any gift to
any designated employee,who,by virtue of his City employment,could make a governmental
decision,participate in making a governmental decision,or use his or her official position to
influence a governmental decision regarding the pending business of the donor,or who has done any
of the above during the twelve(12)months preceding the donation. (3246-9194)
(c) Solicitation or acceptance of gifts by city officer. No City officer shall solicit or accept any gift from
any person whom he knows, or has reason to know,is doing business with the City. (3246-9/94)
(d) Solicitation or acceptance of gifts by designated employee. No designated employee shall solicit or
accept any gift from any person whom he knows,or has reason to know,is doing business with the
City,when such employee by virtue of his City employment,could make a governmental decision,
participate in making a governmental decision,or use his or her official position to influence a
governmental decision regarding the pending business of the donor,or has done any of the above
during the twelve(12)months preceding the donation. (3246-9/94)
(e) Gifts from unknown sources. No public official shall accept any gift when the identity of the donor is
not known to the public official. (3246-9/94)
(f) Honoraria. No public official shall accept any honorarium from any person doing business with the
City. (3246-9/94)
2.05.040 Violations and enforcement. (3246-9/94)
(a) Any designated employee who violates Section 2.05.030 shall be subject to discipline for such
violation, including,in appropriate cases,termination of employment. (3246-9/94)
(b) Any member of any City board,commission,or committee who violates Section 2.05.030 shall be
subject to removal from office. (3246-9/94)
(c) Any city officer who violates Section 2.05.030 shall be guilty of a misdemeanor,and any person who
violates Section 2.05.030(a)or Section 2.05.030(b)shall be guilty of a misdemeanor. (3246-9/94)
4
7/k/mc205Aegisdrftl10/10/95
Olt
H-Item �. ,
10/16/95
Councilmember Shirley Dettloff
Discussion regarding a possible amendment to the Gift Ban Code, Chapter
2.05.020 to add an exception to the definition of"Gift" as follows:
2.05.020 (7) Food, beverages, lodging and transportation expenses provided
by any governmental or quasi-governmental entity, or by any public entity in
conjunction with any event sponsored by that entity or agency, the purpose
of which is to educate or provide information related to the functions, needs
purposes, or operation of that entity or local government.
CITY OF HUNTINGTON BEACH
Leo INTER-DEPARTMENT COMMUNICATION
HUPMN&ON BEACH
TO: HONORABLE MAYOR VICTOR LEIPZIG AND MEMBERS OF THE
CITY COUNCIL
FROM: GAIL HUTTON, City Attorney
DATE: August 21, 1995
SUBJECT: Gift Ban Ordinance
State Water Project Inspection Trip, July 28-29, 1995
I attach the August 8, 1995, letter from former Mayor, Councilmember and current
Director of the Metropolitan Water District of Southern California Wes Bannister who
has questioned the application of our gift ban ordinance to the referenced fully paid,
informational trips sponsored by the Metropolitan Water District of Southern California.
Herewith is our response to his concerns in which we indicate that the Huntington
Beach Gift Ban Ordinance, as adopted, would preclude the trip to Sacramento
sponsored by the Metropolitan Water District of Southern California. See attached
opinion, dated July 26, 1995, to Connie Brockway, City Clerk, from Sarah Lazarus,
Deputy City Attorney. That opinion precluded both Councilmember Shirley Dettloff and
City Attorney Gail Hutton from attending an Metropolitan Water District of Southern
California inspection tour of a facility in Sacramento in late July.
I also attach hereto a c y of a proposed ordinance which would modify our existing
Ban ordina o accommodate such a trip as proposed by the Orange County
Municipa ater District (OCMWD). (See changes page three, subsection 7.) Should
the council wish to modify the Gift Ban ordinance, the draft ordinance would accomplish
this.
GAIL HUTTON
City Attomey
GH/rjl
Attachments: 1. Letter to Gail Hutton from Wes Bannister,August 8, 1995
2. Opinion, dated July 26, 1995
3. Draft Gift Ban Ordinance
4. Letter to Wes Bannister from Gail Hutton,August 21, 1995
c: Michael Uberuaga, City Administrator
Ray Silver,Assistant City Administrator
Connie Brockway, City Clerk
I .i
BANNISTER & ASSOCIATES
INSURANCE
August 8, 1995
Honorable Gail Hutton
City Attorney
City of Huntington Beach
2000 Main Street
Huntington Beach, California 92648
Dear Gail:
I received the message that you had called regarding the Colorado
River Inspection Trip sponsored by Metropolitan Water District.
As you know, it was my intention to invite our City Council
members and key officials on the November 17th through 19th trip
that I. as a director, host. Your indication that this trip
might be in violation of the Huntington Beach Gift Ordinance was
a shock. I certainly do not wish to create that kind of problem
for anyone and would never knowingly violate any rules!
As a result of your message, I called the Metropolitan Water
District legal department to see if they could shed a different
light on the potential problem. In response to my call, I
received copies of the two letters attached, one from Orange
County and the other from Metropolitan, written by Syd Bennion,
Deputy Legal Counsel. The offer from Syd to provide additional
information to you is sincere. Please, if there are any
questions, call her.
I will delay inviting the Huntington Beach officials until I am
cleared to do so by you. I appreciate your concern and help.
Please let me know if I can do more.
In the meantime, my very best to You and Paul.
Sincerely,
Wes Bannister
encl: 2
f4W Uj 'yam 1t:,:JU HI.1v LH H.U. LF_WaL 1'.. •l
WD
METROPOLITAN WATER DISTRICT OF SOUTMERN C4LMRNIA
office of General Counsel
August 3, 1995
Wesley Ni.Bannister VIA FACSIMILE
15562 Chemical Lane
Huntington Beach,California 92649
Dear Director Bannister:
This letter is written to you to confirm in writing your question on whether
_ acceptance by an official of the City of Huntington Beach of your invitation to attend an
inspection trip to Metropolitan's Colorado River facilities might be characterized as a gift
subject to limitation under the gift ordinance adopted by the City of Huntington Beach.
As we discussed, we have not had the opportunity to review that
ordnance,but have reviewed similar situations under other applicable laws. Attached for
your information is a copy of a letter we received from the County Counsel for the County
of Orange,confirming that attendance on a Metropolitan inspection trip by Orange County
officials would not violate the Orange County gift ban ordinance.
The inspection trip is also not a"gift"for purposes of the gift limitations of
California's Political Reform Act(Gov. Code§81000 et seq.). The Fair Political Practices
Commission has confirmed in recent advice letters(for example,letter I-93-186, addressed
to Conni Barker of ACWA)that where travel expenses are provided by a local
government agency for informational purposes on an inspection trip designed for public
officials and related to public policy issues, no gift has been given or received. Only those
expenses which are of personal benefit to the attending officials(meals, refreshments and
lodging)are reportable, and under FPPC travel regulations these expenses are not gifts or
otherwise subject to limitation. Metropolitan's Public Affairs Division calculated the pro
rats costs of lodging at Gene Village. plus all meals and refreshments on a Colorado River
trip earlier this year at$63.00 per person
;
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I hope this information is used to you and your guests. If you or they
need additional information or would like to discuss these matters further,please do not
hesitate to call me at(213)217-7776.
Very truly yours,
N.Gregory Taylor
General Counsel
.Bennion
General Counsel
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cc: N.G. Taylor
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o OPMESOP TERRY C.ANDRUS
THE COUNTY COUNSEL COUNTY COUN6Gr.
COUNTY OF ORANGE . WILL"J.MCCOURT
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Deputy General Counsel �,s ePALMER
Metropolitan Water District $HIMAp"**T	&' WARD 9AAVy
of Southern California
P. 0. Box 54153
Los Angeles, CA 90054-0153 3�
Re: MWD Tours
Dear Ms. Bennions y
This will confirm the conversation of Apr:
Wherein the undersigned indicated that tours
agency (including transportation, meals and lodging) to Orange
County officials would not violate the County's Gift Ban
Ordinance (Cod. Ord. Co. Or. Sec. 1-3-21 et seq. ).
The Gift Ban Ordinance incorporates the definition of the
Political Reform Act (Govt. Code Sec. 81000, et seq. ) . The Fair
Political. Practices Commission has concluded that tours provided
by your agency (including transportation, meals and lodging) are
neither "gifts" nor "income" as defined by Government Code
Sections 82028 and 82030, respectively, QPPC advice._.lett.er._dated
April 7, 1981, to Assemblyman Norman Waters). Therefore, these
'9ervflces would nat constitute gifts as defined in the County's
Gift Ban Ordinance.
Very truly yours,
TERRY C. ANDRUS, COUNTY COUNSEL
ay ��
Jam . Meade
Assistant County Counsel
JFM:imk
OUR OPINION NO. 94-73
AUG- 3-95 THU 5*28 PM 213 250 6890 -P. 4
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
TO: CONNIE BROCKWAY, City Clerk
FROM: SARAH LAZARUS, Deputy City Attorney
DATE: July 26, 1995
SUBJECT: RLS 95-451
FACTS
The Orange County Municipal Water District(OCMWD) is hosting an inspection tour of
a facility in Sacramento and has invited certain City officials to attend at the District's
expense. Their expenses would include payment for airfare, lodging and food.
QUESTION
Would accepting this offer without reimbursing the District violate the City's Code of
Ethics, adopted by City Council resolution 6524, or Chapter 2.05 of the Huntington
Beach Municipal Code, relating to gifts?
ANSWER
Accepting this proposed payment for lodging and food would violate the Code
provisions unless the official accepting it reimburses the OCMWD.
ANALYSIS
The OCMWD currently has a contractual relationship with the City. Under the existing
agreement, the City purchases twenty five percent of City water from the OCMWD. The
OCMWD is therefore"doing business"with the City, as defined by section 2.05.020
(d)(4) of the Huntington Beach Municipal Code.
"Gift is defined as "any payment to the extent that consideration of equal or greater
value is not received" (H.B.M.C. 2.05.020 [e]). Since the OCMWD has offered to
provide lodging and food without a request for consideration for it, the payment would
be a "gift".
r,
Page 2
W26i 95
RE: RLS 95-541
Section 2.05.030 prohibits any person doing business with the City to make any gift to
a City officer and similarly prohibits City officers from accepting such gifts. Chapter 1.02
(Fourth clause, section 3)of the Code of Ethics provides the same by declaring that
officials shall not accept any gift from anyone doing business or expecting to do
business with the City.
A review of the exceptions to the gift ban listed in H.B.M.C. section 2.05.020(e),
subparagraphs (b) (1) through (6) and (1) through (6) under"additional exceptions"do
not include gifts from another public entity, such as the OCMWD, unless that gift is food
and beverage provided at a ceremonial function commemorating the opening of a new
public facility.
For these reasons, it would appear that the OCMWD must be compensated for its
payment to any h I or eating establishment on behalf of City officials during the tour.
QrWdRUS,
Deputy City Attorney
A
c: Gail Hutton, City Attorney
7/gift
ORDINANCE NO. 3
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING CHAPTER 2.05 TO THE
HUNTINGTON BEACH MUNICIPAL CODE
RELATING TO GIFTS TO PUBLIC OFFICIALS
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. That Section 2.05.020 of Chapter 2.05 shall be amended to read as
follows:
2.05.020 Definitions. For the purposes of this Chapter.
(a) "City"means the City of Huntington Beach.
(b) "City Officer" means every person who is elected or appointed to an office in the
city which is specified in § 87200 of the California Government Code.
(c) "Designated employee' means every employee of the City who is designated in
the City's Conflict of Interest Code to file a statement of economic interests and
every member of a board, commission, or committee, under the jurisdiction of
the City Council required to file such a statement.
(d) "Doing business with the City' means:
(1) seeking the award of a contract or grant from the City, or
(2) having sought the award of a contract or grant from the City in the past 12
months, or
(3) Being engaged as a lobbyist or lobbyist firm, as defined in this Section, from
the time of such engagement until 12 months after the award of the contract,
grant, license, permit, or other entitlement for use, which was the subject of
the engagement, or
(4) having an existing contractual relationship with the City, until 12 months after
the contractual obligations of all parties have been completed, or
(5) seeking, actively supporting, or actively opposing the issuance, by the City,
of a license, permit, or other entitlement for use, or having done any of these
things within the past 12 months.
(e) "Gift" shall have the meaning it is defined to have in the California Political
Reform Act, and the regulations issued pursuant to that Act which reads as
follows:
i
1
7n/a,ena&rvsi10/95
"§82028. Gift
(a) "Gift"means,except as provided in subdivision(b),any payment to the
extent that consideration of equal or greater value is not received and
includes a rebate or discount in the price of anything of value unless the
rebate or discount is made in the regular course of business as to members
of the public without regard to official status. Any person,other than a
defendant in a criminal action,who claims that a payment is not a gift by
reason of receipt of consideration has the burden of proving that the
consideration received is of equal or greater value.
(b) The term"gift" does not include:
(1) Informational material such as books,reports,pamphlets,calendars,or
periodicals. No payment for travel or reimbursement for any expenses
shall be deemed"informational material."
(2) Gifts which are not used and which,within thirty(30)days after receipt,
are returned to the donor or delivered to a contribution for tax
purposes.
(3) Gifts from an individual's spouse,child,parent,grandparent,
grandchild,brother,sister,parent-in-law,brother-in-law,sister-in-law,
nephew,niece,aunt,uncle,or first cousin or the spouse of any such
person;provided that a gift from any such person shall be considered a
gift if the donor is acting as an agent or intermediary for any person not
covered by this paragraph..
(4) Campaign contribution required to be reported under Chapter 4 of this
title.
(5) Any devise or inheritance.
(6) Personalized plaques and trophies with an individual value of less than
two hundred fifty dollars($250)."
The following items shall be deemed to be additional exceptions to the definition of "GifC:
(1) Food, beverages, and free admission at any event sponsored by, or for the
benefit of, a bona fide educational, academic, or charitable organization,
and commemorative gifts from such organizations with a cumulative value of
one hundred dollars ($100.00) or less from any single source during any
twelve (12) months period.
(2) Food, beverages, and free admission provided by a governmental agency at
ceremonial functions commemorating the opening or naming of a public
facility.
(3) Any food or beverages with a cumulative value of fifty dollars ($50.00) from
any single source within a twelve (12) month period.
2
7/k/am endgi ft/g/10/95
(4) Flowers, plants, balloons or similar tokens which are given to express
condolences, congratulations, or sympathy for ill health, or to commemorate
a special event or occasion, provided that gifts made or received under this
exemption shall not exceed a value of fifty dollars ($50.00) from any single
source in any calendar year.
(5) A prize awarded on the basis of chance in a bona fide competition not
related to the official status of the public official.
(6) Gifts from any agency of a foreign sovereign nation, provided that such gifts
are unconditionally donated by the public official to the City within forty-five
(45) days of receipt, and the public official does not claim any tax deduction
by virtue of such donation.
(7) Food, beverages, lodging and transportation expenses provided by any
governmental or quasi-governmental entity, or by any public entity, in
conjunction with any event sponsored by that entity or agency, the purpose
d of which is to educate or provide information related to the functions, needs,
- purposes or operation of that entity or local government.
(f) "LobbyisC shall mean any individual, including an attorney,who is employed or
contracts for consideration, other than reimbursement of reasonable travel
expenses, to communicate directly with any City officer or staff member of a
City Council member for the purpose of seeking, actively supporting, or
actively opposing the award of a contract or grant from the City, or the
issuance, by the City of a license, permit, or other entitlement for use. An
attorney shall not be considered a lobbyist when performing activities which
can only be performed by a person admitted to the practice of law.
(g) "Lobbyist firm" shall mean
(1) any business entity,which is employed or contracts for consideration, other
than reimbursement of travel expenses, to communicate directly with a City
officer or staff member of a City Council member for the purpose of seeking,
actively supporting or actively opposing the award of a contract or grant from
the City, or the issuance, by the City, of a license, permit, or other
entitlement for use, or
(2) any business entity of which any member or employee is a lobbyist.
(h) "Principal" shall mean any individual or business entity which employs or contracts
with a lobbyist or lobbyist firm for any of the purposes stated in Subsections (f) or
(g) above.
(i) An individual or business entity shall be deemed to be "lobbying" a City officer or
staff member of a City Council member if it is reasonably foreseeable that in the
course of employment or in the course of performing the contract the individual or
an employee of the entity will have a telephone conversation or a discussion with
any City officer or staff member of a City Council member, outside of a meeting
governed by the Ralph M. Brown Act (which is codified in the California Government
3
7/k/amendgi fl/8/10/9 5
Code commencing with §54950), for the purpose of seeking, actively supporting, or
actively opposing the award of a contract or grant from the City, or the issuance, by
the City, of a license, permit, or other entitlement for use.
G) An individual lobbyist who is an officer, partner or employee of his or her principal
shall be deemed to be"engaged'within the meaning of this Section on the first
occasion on which he or she engages in a telephone conversation or discussion
described in Subsection (i). A lobbyist firm, or an individual lobbyist who is not an
officer, partner or employee of his or her principal shall be deemed to be"engaged'
within the meeting of this Section upon the completion of an agreement, oral or .
written, to provide the services specified in Subsection (f) or(g):
(k) "Public official' means every City officer and every designated employee.
SECTION 2: This ordinance shall take effect 30 days after after its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting held thereof on the day of , 1995.
ATTEST: Mayor
INITIATED AND APPROVED AS TO FORM:
City Clerk 0 IV
Wir"' A 17T
REVIEWED AND APPROVED A City Atto
City Administrator
4
7/k/amendgi ft/8/10/95
,pytupo�
OFFICE OF
Y
CITY ATTORNEY
P.O Box 190
2000 Main Street Telephone
Gail Hutton Huntington Beach, California 92648 (714)S36-SSSS
Cay Anorney Fax (714)374-1S90
August 21, 1995
Wes Bannister
Bannister&Associates
15562 Chemical Lane
Huntington Beach, CA 92649
Re: City Attorney Interpretation of Huntington Beach Gift Ban Ordinance
H.B.M.C. Section 205 et seq.
Dear Wes:
Thank you very much for your input concerning the City's gift ban ordinance and for
forwarding the opinion letters from the Orange County Counsel's Office and from the
Office of the General Counsel of the Metropolitan Water District relating to the Fair
Political Practices Commission's opinion concerning gifts to public officials.
Specifically, these letters concern themselves with the Fair Political Practices
Commission's regulation which exempts from the gift limitations of California's Political
Reform Act (Government Code Section 81000 et seq.) (the Act) travel expenses
provided by a governmental agency.
Both authors opined that state law( F.P.P.C.. Regulation 18950.1) has created an
exemption from the gift limitations for travel expenses which are paid on behalf of a local
official when he or she travels on an inspection trip (or similar trip related to government
business). I agree with this analysis, similarly finding no state prohibition against
accepting travel related expenses under these circumstances.
In 1994, the Huntington Beach City Council determined that receipt of gifts by City
officials from persons doing business with the City was eroding public confidence and
thus adopted Chapter 2.05 of the Huntington Beach Municipal Code, expressly to
prohibit the donation and receipt of gifts, in order to eliminate the loss of public
confidence in government. In stating this, I am using the very language of the findings
adopted by Council, not my own interpretation of it.
WES BANNISTER
August 21, 1995
Page 2
Section 2.05.010 of the Huntington Beach Municipal Code(H.B.M.C.)was adopted as
part of this chapter and reads in relevant part that"unless otherwise expressly defined,
the terms used in this-Ordinance shall have the same meaning as defined in the
California Political Reform Act and regulations issued by the F.P.P.C'
Which then are the City's definitions and which are the terms defined by the Act and the
Regulations which apply to the City via this Municipal Code provision?There is an
impressive number of definitions in the Act and in the F.P.P.C. regulations. Sections
82000- 82055 of the Act contain lists of terms and their meanings. Those sections are
entitled, not surprisingly, "definitions". They run the alphabet from"Adjusting and
Amount for Cost of Living Changes"and "Administrate Action,"going onto"City'and
"Expenditure,"then to "Voting Age Population." The regulations contain more still.
The City's Gift Ordinance, likewise, has an express list of definitions, found at Section
2.05.020. You will recall that the section quoted above states that the City will be
governed by the definitions found in the Fair Political Practices Act and of the F.P.P.C.
regulation unless otherwise expressly defined. Hence, the definitions of Section 2.05
020 of our local ordinance control over the state definitions.
Section 2.05.020 contains eleven express definitions. Its definition of"City" completely
differs from that in the Act and the Regulations, making obvious that the City's express
definitions are to supersede the state definitions in the context of our gift ban law.
The City law also expressly defines "gift". It states "gift' shall have the meaning it is
defined to have in the California Political Reform Act, and the regulations issued
pursuant to that Act . . . ." (H.B.M.C. Section 2.05.02 (e)). While it expressly adopted the
language of Government Code Section 82028 in so doing, the Ordinance did not purport
to adopt the entire Government Code or all of the Regulations, nor did it adopt the
opinion letters which may have interpreted the state law. Nowhere in the Ordinance is it
stated that the City of Huntington Beach adopts.and incorporates the Act and the
regulations promulgated under it. In fact the Ordinance specifically confines itself to the
adoption of the "meaning" of the word gift, as it is "defined." Further, following state law,
our ordinance specifically states that the term "gift" shall not include six enumerated
items, clearly stating the manner in which the term "gift" is nQt to be defined.
The Huntington Beach law then goes on to deviate from the language of the state law.
In six explicit paragraphs, the ordinance-carves out detailed express exceptions to the
definition of"gift." This is of acute significance because, by so doing, the City law does
not state that these enumerated items are not to be defined as a "gift," rather they are in
a separate section called "exceptions."
7/g AAetters/banister
WES BANNISTER
August 21, 1995
Page 3
Likewise, the F.P.P.C. Regulations has its own definition of"gift." It is found at Section
18941 of the Regulations of the F.P.P.C., Title 2, Division 6 of the California Code of
Regulations. It supplements the Govemment Code definition which was adopted by our
gift ordinance.
Like the city law, the Regulations also contain a series of exemptions, which serve to
exempt from the gift law certain payments to governmental officials. One of these
exemptions is the exemption for travel expenses paid by a governmental entity for travel
which is reasonably related to governmental purposes. The City of Huntington Beach
does not have a parallel exemption and did not adopt this portion of state law when it
enacted the gift ban ordinance.
Wes, I recognize that this opinion has created a bit of a hardship, but it can be easily
remedied in two ways which I will share with you presently. First, however, I want you to
know that in recognition of the troubling nature of this legal opinion, I consulted with my
entire staff and instructed my Deputy Sarah Lazarus to contact the authors of both letters
which you were kind enough to supply and with the F.P.P.C. Legal Department in
Sacramento. These meetings and contact with the F.P.P.C. have not changed my
opinion in this matter. Both Ms. Bennion and Mr. Meade were kind enough to consult
with Ms. Lazarus and both informed her that their interpretation was confined to state law
and county ordinance respectively; that our interpretation of the city's own law was a
matter upon which they could not express opinion. Incidentally, however, both of these
individuals expressed informally that they felt our local ordinance was more restrictive
than the state law and thus, my interpretation of it should not be questioned. Mr. John
Wallace an attorney with the F.P.P.C. spoke with Ms. Lazarus on August 16, 1995. He
stated that the F.P.P.C. has always given broad authority to local governments to enact
laws more restrictive than the state. Further, he explicitly opined that the F.P.P.C.
regulations and the interpretation of them create only a restricted gift limit exception,
such that travel expenses in this context remain a "gift". However, such gift may be
accepted under certain circumstances. Mr. Wallace made clear that in his opinion these
regulations and interpretations were not to be considered as part of or an exclusion to
the definition of the word "gift" in the state law. As such he was in agreement with my
original opinion that our local law does not adopt and incorporate any state law travel
exception.
That being said, let me suggest two ways that I feel this situation can be remedied in the
future.
1. The City Council could adopt a minor amendment to the city's gift ban
ordinance. I have attached a legislative draft with such a proposed change incorporated
into it.
2. The City Administrator could appropriate sufficient funds for the city to pay
for travel and lodging for this type of trip with the understanding that the agency hosting
the trip would later reimburse the city.
7/g Anetters/banister
WES BANNISTER
August 21, 1995
Page 4
1 hope this has clarified my opinion and the reasons behind it. As always I appreciate
your good and thoughtful help and look forward to hearing from you with any further
inquiries you might wish to discuss.
Sincerely,
GAIL HUTTON,
City Attorney
/k
Attachment: 1. Proposed amended Gift Ban Ordinance
2. City Attorney's Opinion, July 26, 1995
c: Honorable Mayor Victor Leipzig and Members of the City Council
Michael Uberuaga, City Administrator
Ray Silver,Assistant City Administrator
7/9:/k/letters/banister
t 1]iSc aSy a►-�
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
ADDING NEW CHAPTER TO TITLE
OF THE HUNTINGTON BEACH MUNICIPAL CODE
RELATING TO THE DONATION AND RECEIPT OF
SPECIFIED GIFTS TO PUBLIC OFFICIALS
The City Council of the City of Huntington Beach does hereby
ordain as follows :
Section I:
That Chapter be, and the same is hereby added to Title
of the Huntington Beach Municipal Code, to read as follows :
CHAPTER
GIFTS TO PUBLIC OFFICIALS
Section X.XX.010. Purpose; Meaning of Terms; Interpretation;
Citation.
.The City Council finds that the receipt of gifts by public
officials from persons who do business with the City erodes
public confidence in the impartiality of decisions made by those
officials. The purpose of this Ordinance is to prohibit the
donation and receipt of specified gifts, thereby eliminating, to
the extent possible, such loss of confidence.
Unless otherwise expressly defined, the terms used in this
Ordinance shall have the same meaning as defined in the
California Political Reform Act (Title 9 of the California
Government Code ) and regulations issued by the Fair Political
Practices Commission pursuant to the authority of the Political
Reform Act , as the Act and regulations shall be, from time to
time , amended .
This Chapter shall be known as , and may be cited as, the
" rt On Gift Ban Ordinance" .
OusiTiO&TON 0FAc.9
Section X.XX.020. Definitions.
For the purposes of .this Chapter :
(a ) "City" means the City of Huntington Beach .
(b) "City officer" means every person who is elected or
appointed to an office in the City which is specified
in Section 87200 of the California Government Code .
(c ) "Designated employee" means every employee of the City
who is designated in the City's Conflict of Interest
Code to file a statement of economic interests and
every member of a board or commission under the
1 A � 3
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Jurisdiction of the City Council required to file such
a statement.
(d ) "Doing business with the City" means :
(1 ) seeking the award of a contract or grant
from the City, or
(2 ) having sought the award of a contract or
grant from the City in the past 12 months ,
or
(3 ) being engaged as a lobbyist or lobbyist
firm, as defined in this Section, from
the time of such engagement until 12 months
after the award of the contract, grant, li-
cense, permit, or other entitlement for use,
which was the subject of the engagement, or
(4 ) having an existing contractual relationship
with the City, until 12 months after the
contractual obligations of all parties have
been completed, or
( 5 ) seeking, actively supporting, or actively
opposing the issuance, by the City, of a
license, permit, or other entitlement for
use, or having done any of these things
within the east 12 months.
(e ) "Gift" shall have the meaning it is defined to have in
the California Political Reform Act, and the regulations
issued pursuant to that Act, except that the following
shall not be deemed to be gifts:
(1 ) Food, beverages, and free admission at any
event sponsored by, or for the benefit of,
a bona fide educational, academic, or chari-
table organization, and commemorative gifts
from such organizations with a cumulative
value of $50. 00 or less during any 12 month
period.
(2 ) Food, beverages, and free admission provided
-by a governmental agency at ceremonial func-
tions commemorating the opening or naming
of a public facility.
(3 ) Flowers, plants, balloons or similar tokens y
which are given to express condolences, con-
gratulations, or sympathy for ill health, or
to commemorate special occasions, provided
that gifts made or received under this
exemption shall not exceed a value of $50.00
from any single source in any calendar year.
(4 ) A prize awarded on the basis of chance in a
bona fide competition not related to the
official status of the public official.
(5) Gifts from any agency of a foreign sovereign
nation, provided that such gifts are uncon-
ditionally donated by the public official to
the within 45 days of
receipt, and the public official does not
claim any tax deduction by virtue of such
donation.
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(f ) "Lobbyist" shall mean any individual, including an attorney,
who is employed or contracts for consideration, other than
reimbursement of reasonable travel expenses, to communicate
directly with any City officer or staff member of a City
Council member for the. purpose of seeking, actively
supporting, or actively opposing the award of a contract or
grant from the City, or the issuance, by the City, of a
license, permit, or other entitlement for use. An attorney
shall not be considered a lobbyist when performing
activities which can only be performed by a person admitted
to the practice of law.
(g) "Lobbyist f irm" sha 1 l mean ( l ) any business entity, which
is employed or contracts for consideration, other than
reimbursement of travel expenses, to communicate directly
with a City officer or staff member of a City Council
member for the purpose of seeking, actively supporting
or actively opposing the award of a contract or grant
from the City, or the issuance, by the City, of a license,
permit, or other entitlement for use, or (2 ) any business
entity of which any member or employee is a lobbyist.
(h ) "Principal" shall mean any individual or business entity
which employs or contracts with a lobbyist or lobbyist
firm for any of the purposes stated in Section X.XX.020(f )
or Section X.XX. 020(g) .
(i ) An individual or business entity shall be deemed to be
employed or contracting to communicate directly with a
City officer or staff member of a City Council member
if it is reasonably foreseeable that in the course of
employment or in the course of performing the contract
the individual or an employee of the entity will have a
telephone conversation or a discussion with any City
officer or staff member of a City Council member, outside
of any meeting governed by the Ralph M. Brown Act (which
is codified in the California Government Code commen-
cing with Section 54950) , for the purpose of seeking,
actively supporting, or actively opposing the award of
a contract or grant from the City, or the issuance, by
the City, of a license, permit, or other entitlement
for use.
(j) An individual lobbyist who is an officer, partner or
employee of his or her principal shall be deemed to
be "engaged" within the meaning of this Section on the
first occasion on which he or she engages in a tele-
phone conversation or discussion described in Section
X.XX.020 (i ) . A lobbyist firm, or an individual lobby-
ist who is not an officer, partner or employee of his or her principal shall be: deemed to be "engaged" with-
in the meaning of this Section upon the completion of
an agreement, oral or written, to provide the services
specified in Section X.XX. 020 (f ) or Section X.XX. 020 (g ) .
(k ) "Public official" means every City officer and
every designated employee.
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Section X.XX.030. Prohibitions.
(a ) No person who is doing business with the City shall
make any gift to any City officer.
(b) No person who is doing business with the City shall
make any gift to any designated employee, who, by vir-
tue of his City employment, could make a governmental
decision , participate in making a governmental
decision, or use his or her official position to influ-
ence a governmental decision regarding the pending
business of the donor, or who has done any of the above
during the 12 months preceding the donation.
(c) No City officer shall solicit or accept any gift from
any person whom he knows, or has reason to know, is
doing business with the City.
(d ) No designated employee shall solicit or accept any gift
from any person whom he knows , or has reason to know,
is doing business with the City, when such employee by
virtue of his City employment , could make a
governmental decision, participate in making a govern-
mental decision, or use his or her official position to
influence a governmental decision regarding the pending
business of the donor, or has done any of the above
during the 12 months preceding the donation.
(e ) No public official shall accept any gift when the iden-
tity of the donor is not known to the public official.
(f ) No public official shall accept any honoraria.
Section X.XX.040. Violations and Enforcement.
(a ) Any City officer who violates Section X.XX. 030 shall be
guilty of a misdemeanor.
(b) Any designated employee who violates Section X.XX. 030
shall be subject to discipline for such violation, in-
cluding, in appropriate cases, termination of employ-
ment.
(c) Any member of any City board or commission, other than
a board or commission established by the Constitution
or a statute of the State of California, who violates
Section X.XX,.030, shall be subject to removal from
office.
(d ) Any person who violates Section X.XX.030(a ) or Section
X.XX.030 (b) shall be guilty of a misdemeanor.
(e ) These enforcement provisions are in lieu of the penalty
provided in Section , are cumulative, and are
not mutually exclusive.
Section X.XX.050. Effective Date. _
The provisions of this Chapter shall become effective on
1993 .
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Section II :
A summary of this Ordinance shall be published and a certified
copy of the full text of this Ordinance shall be posted in the Office
of the City Clerk at least five ( 5) days prior to the City Council
meeting at which this Ordinance is to be adopted. A summary of this
Ordinance shall also be published once within fifteen ( 15) days after
this Ordinance's passage in the , a newspaper of
general circulation published, and circulated in the City of
Huntington Beach. The City Clerk shall post in the office of the City
Clerk a copy of the full text of such adopted Ordinance along with the
names of those City Council members voting for and against the
Ordinance in accordance with Government Code Section 36933 . This Ord-
inance shall become effective on 1993 .
ADOPTED this day of , -1993 .
Mayor of the City of Huntington Beach
ATTEST:
Connie Brockway
City Clerk of the City of Huntington Beach
STATE OF CALIFORNIA
COUNTY OF ORANGE )
CITY OF HUNTINGTON BEACH )
I, CONNIE BROCKWAY, City Clerk of the City of Huntington Beach,
California , do hereby certify that the foregoing Ordinance was
introduced at the regular meeting of the City Council held on the
day of , 1993, was duly passed and adopted by the following
vote, to wit:
AYES : COUNCIL MEMBERS :
NOES: COUNCIL NFAMERS:
ABSENT: COUNCIL MEMBERS :
Connie Brockway
City Clerk of the City of Huntington Beach
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