Why it matters:

Every mayor, city council member and county supervisor in California could be impacted by SB 1439. The new state law aims to put an end to "pay-to-play" in local politics by discouraging politicians from accepting large campaign contributions from donors, such as developers, who may be looking to influence their votes.

Jan. 9, 2023 — Clovis City Council

Documented by Rachel Youdelman

Clovis City Attorney Scott Cross presented information on SB 1439, which he said could present “an interesting dilemma” by prohibiting city council members from participating in a proceeding involving a request from someone who has contributed in excess of $250.

What happened: At Monday’s Clovis City Council meeting, City Attorney Scott Cross provided an update on Senate Bill 1439, known as the “pay-to-play” law that became effective at the start of the year.

The California law prohibits city council members from participating in a council proceeding involving a request for a “license, permit, or entitlement” from someone who has contributed in excess of $250 to a council candidate’s campaign.

Cross said that starting Jan. 1, council members will have to disclose any contribution over $250 made in the prior 12 months and recuse themselves from the approval process.

City Manager Holt also addressed the council members, saying, “At the end of the day, you as elected officials are responsible for knowing the position that you’re in and who you’ve received donations from.” He added, “I’m guessing the whole concept of donations is going to change pretty significantly going forward.”

To “cure” inappropriate donations, before voting on a decision, a council member could return the money within 30 days of learning of the contribution, after which he or she could participate in voting.

If a council member learns of a contribution after voting on an issue involving the contributor, there are 14 days to return the funds, thus effecting a “cure.” Violations of the rule are misdemeanors.

Noteably, items in the Jan. 9 meeting agenda packet include the following statement, “Councilmembers should consider recusal if a campaign contribution exceeding $250 has been received from the project proponent (developer, applicant, agent, and/or participants) since January 1, 2023.”

Council questions: During the discussion that followed, the council asked many specific and pointed questions. Councilmember Lynne Ashbeck wanted Cross to define “participant” as mentioned in the statute language. He said that would be anyone with a stake in the project the council was voting on.

Councilmember Vong Mouanoutoua asked about specific individuals, including Land Use Consultant Dirk Poeschel and was told that he’s “clearly a participant” if he’s being compensated by a developer to speak on their behalf. “Is there a way to get yourself out of a conflict?” Mouanoutoua said. Cross said he would have to “cure” the donation by returning the excess contributions.

Cross said that “developers” are also obligated by law to disclose campaign contributions. “We have made BIA [Building Industry Association] aware of this,” Cross noted. “They are required to make the same disclosures at meetings.”

Councilmember Drew Bessinger asked if BIA was an “advocacy group” rather than a party with a monetary benefit in proposals for real-estate development which may come before the council for approval. Cross’ reply was not definitive.

Ashbeck asked about labor unions. Cross repeated that if a campaign contributor was not seeking a license, permit, or an entitlement, it was not an issue.

Councilmember Diane Pearce asked what if Developer Jay Virk had donated $500 to all five or four councilmembers. Cross said that there needs to be a “cure” action by council so that three of them could participate in the decision or an appeal should be kept pending until the 12-month period expires, saying it was “an interesting dilemma.”

Other considerations: Cross also warned the council about general recusal requirements, the need to report all gifts worth $50 or more, total gifts limited to a value of $590, and AB 992, which prohibits members of a legislative body from communicating or taking action on social media regarding an item of business.

Up next: The next Clovis City Council meeting is scheduled for Tuesday, Jan. 17 at 6 p.m. Members of the public may attend meetings in person at the Council Chamber, 1033 Fifth Street, Clovis, CA 93612, or online via Webex.

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