Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Making a Decision. A public official
makes a governmental decision if the official authorizes or directs any action,
votes, appoints a person, obligates or commits the official's agency to any
course of action, or enters into any contractual agreement on behalf of the
official's agency.
(b)
Participating in a Decision. A public official participates in a governmental
decision if the official provides information, an opinion, or a recommendation
for the purpose of affecting the decision without significant intervening
substantive review.
(c) Using
Official Position to Attempt to Influence a Decision. A public official uses an
official position to influence a governmental decision if the official:
(1) Contacts or appears before any official
in the official's agency or in an agency subject to the authority or budgetary
control of the official's agency for the purpose of affecting a decision;
or
(2) Contacts or appears before
any official in any other government agency for the purpose of affecting a
decision, and the public official acts or purports to act within the official's
authority or on behalf of the official's agency in making the
contact.
(d) Exceptions.
Making, participating in, or influencing a governmental decision does not
include:
(1) Ministerial. Actions by a public
official that are solely ministerial, secretarial, or clerical.
(2) Appearances as a Member of the General
Public. An appearance by a public official as a member of the general public
before an agency in the course of its prescribed governmental function if the
official is appearing on matters related solely to the official's personal
interests, including interests in:
(A) Real
property owned entirely by the official, members of the official's immediate
family, or the official and members of the official's immediate
family;
(B) A business entity owned
entirely by the official, members of the official's immediate family, or the
official and members of the official's immediate family; or
(C) A business entity over which the
official, members of the official's immediate family, or the official and
members of the official's immediate family solely or jointly exercise full
direction and control.
(3) Terms of Employment. Actions by a public
official relating to compensation or the terms or conditions of the official's
employment or consulting contract. However, an official may not make a decision
to appoint, hire, fire, promote, demote, or suspend without pay or take
disciplinary action with financial sanction against the official or the
official's immediate family, or set a salary for the official's or the
official's immediate family different from salaries paid to other employees of
the government agency in the same job classification or position.
(4) Public Speaking. Communications by a
public official to the general public or media.
(5) Academic Decisions.
(A) Teaching decisions, including an
instructor's selection of books or other educational materials at the
instructor's own school or institution, or other similar decisions incidental
to teaching; or
(B) Decisions by a
public official who has teaching or research responsibilities at an institution
of higher education relating to the official's professional responsibilities,
including applying for funds, allocating resources, and all decisions relating
to the manner or methodology with which the official's academic study or
research will be conducted. This exception does not apply to a public official
who has institution-wide administrative responsibilities as to the approval or
review of academic study or research at the institution unrelated to the
official's own work.
(6)
Architectural and Engineering Documents.
(A)
Drawings or submissions of an architectural, engineering, or similar nature
prepared by a public official for a client to submit in a proceeding before the
official's agency if:
(i) The work is
performed pursuant to the official's profession; and
(ii) The official does not make any contact
with the agency other than contact with agency staff concerning the process or
evaluation of the documents prepared by the official.
(B) An official's appearance before a design
or architectural review committee or similar body of which the official is a
member to present drawings or submissions of an architectural, engineering, or
similar nature prepared for a client if:
(i)
The review committee's sole function is to review architectural designs or
engineering plans and to make recommendations to a planning commission or other
agency;
(ii) The review committee
is required by law to include architects, engineers or persons in related
professions, and the official was appointed to the body to fulfill this
requirement; and
(iii) The official
is a sole practitioner.
(7) Additional Consulting Services:
Recommendations by a consultant regarding additional services for which the
consultant or consultant's employer would receive additional income if the
agency has already contracted with the consultant, for an agreed upon price, to
make recommendations concerning services of the type offered by the consultant
or consultant's employer and the consultant does not have any other economic
interest, other than in the firm, that would be foreseeably and materially
affected by the decision.
1. Change without regulatory effect renumbering former section 18702 to section 18704, including amendment of section heading and section, filed 4-27-2015. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2015, No. 18). For prior history of section 18704, see Register 2015, No. 6.
2. Repealer and new section and amendment of NOTE filed 6-22-2015; operative 7-22-2015. Submitted to OAL for filing and printing only pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2015, No. 26).
3. Amendment of subsections (a), (c)-(c)(2), (d)(2)-(d)(3) and (d)(5)(A)-(B) filed 5-12-2021; operative 6-11-2021 pursuant to Cal. Code Regs., tit. 2, section 18312(e). Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2021, No. 20).
Note: Authority cited: Section 83112, Government Code. Reference: Sections 87100, 87101 and 87302, Government Code.
