Hana Callaghan
| UNETHICAL ACT | DESCRIPTION OF ACT | ETHICAL VIRTUES IMPACTED | CALIFORNIA GOVERNMENT ETHICS LAWS* |
|---|---|---|---|
| Bribery | A bribe occurs when something of value is conferred on a public official in exchange for a promise of official action (or inaction). Asking for official favors by a briber, asking for a bribe by a public official, and receiving a bribe by an official are all illegal activities. | Duty of loyalty, duty of integrity | Cal. Penal Code §86 |
| Extortion | Extortion occurs when a public official wrongfully uses his or her public position to obtain a personal benefit. | Duty of loyalty, duty of integrity | Cal. Penal Code §518 |
| Honest services fraud | Pursuant to Federal Law, the public has the right to the "honest services" of public officials. That right is violated when a public official makes a decision that is not motivated by the public's interest but instead by his or her personal interests. | Duty of Loyalty, duty of honesty | 18 USC §§1341, 1343, 1346 |
| Conflict of interest | A public official may not make, participate in, or influence a governmental decision that will have a reasonably foreseeable and material financial effect on the official, the official's immediate family, or any of the official's financial interests. | Duty of loyalty, duty of fairness, | Cal. Gov Code §§ 87100, 87103 |
| Self deaing (contractual conflict of interest) | California law forbids public officials from having an economic interest in their agencies' contracts | Duty of loyalty, duty of fairness | Cal. Gov. Code §1090 |
| Using official position to advance private future employment | "Public officials may not influence agency decisions when the interests of a prospective employer are at stake. In addition revolving door laws regulate an official's actions even after he or she leaves office. In order to prevent public officials from trading on past relationships and from using insider information, elected officials and chief executives who leave government service must not represent people for pay before their former agencies for one year after leaving their agency." | Duty of loyalty, duty of fairness | Cal. Gov. Code §§87406 et seq. |
| Public employee sitting on governing board | Local agency employees must resign their employment before taking a seat on the governing board of their local agency. | Duty of loyalty, duty of fairness | Cal. Gov Code §53227 |
| Receiving honoraria | Giving a speech, writing an article, or attending a public or private conference, convention, meeting or social event are considered part of a public official's job. Accordingly, no public official may receive outside payment for these activities. | Duty of loyalty, duty of integrity | Cal. Gov. Code §89502 |
| Excessive expense reimbursement | An official is a steward of the public funds. He or she cannot be reimbursed for an expense unless the expense was "actual and necessary" in the official's performance of official duties. | Duty of loyalty, duty of accountability | Cal. Gov. Code §53232.2 |
| Use of public resources for private or political purposes | Using public resources for either personal or political purposes is illegal. "Public resources" include such things as: public funds, staff time; public equipment; and supplies. | Duty of loyalty, duty of fairness | Cal. Gov. Code §8314; |
| Misappropriation of public funds | It is a criminal offense for a public official to misappropriate or embezzle public funds. | Duty of loyalty, duty of integrity | Cal. Pen Code §424 |
| Use of public resources on ballot measure or candidate related activities | Public officials and local agencies may take positions on ballot measures in open meetings where all points of view can be heard. However, public officials and agencies may not use public resources to engage in campaign type advocacy with respect to those positions. | Duty of loyalty, duty of fairness | Cal. Gov. Code §54964 |
| Mass mailings at public Expense | It is a misuse of public resources if government officials use public funds to pay for mass mailings to constituents as a stealth mode of campaigning. It is also deemed unfair if incumbents have access to free means of communicating with voters, not available to other candidates. Accordingly, California law prevents public officials from making mass mailings at public expense. | Duty of loyalty, duty of fairness | Cal. Gov. Code §89001 |
| Receiving excessive gifts; non disclosure of acceptable gifts. | "To avoid the appearance that political favors are being bought with gifts, there is an annual limit on the aggregate value of gifts a public official can receive from a single source. Officials must also report gifts over a certain amount." | Duty of loyalty, duty of transparency , duty of fairness | Cal. Gov. Code §§86203,89503, 89506 |
| Receiving gifts of travel from transportation companies | Because of the influence of Rail Road entities in the 1800s, California's Constitution forbids elected and appointed public officials from accepting free passes or discounted travel from transportation companies. This prohibition applies to all travel — not just that done on behalf of the government. | Duty of loyalty, duty of fairness | Cal. Const. art XII, sec. 7 |
| Non disclosure of economic interests | In order to shine a light on an official's potential conflicts, he or she must disclose sources of income, real property interests, investment, business positions; and sources of gifts. | Duty of transparency, duty of loyalty | Cal. Gov. Code §§87200 et seq. |
| Non disclosure of behested payments | Because donations made to an official's favorite charity might be motivated by the wish to curry favor and influence governmental decisions, the citizenry has a right to know what charitable contributions are being on behalf of, or at the request of, a government official. | Duty of transparency , duty of loyaty, duty of independence | " Cal. Gov. Code § 82015(b)(2)(B)(iii); 2 Cal. Code Regs. §18215.3(a)." |
| Failure to retain public Records and/or failure to allow public access to public records | Transparency in government requires that the people have access to materials created by government officials when conducting the people's business. Public records include written documents, images, computer data, e-mails, facsimiles, and photographs. | Duty of transparency, duty of accountability | The Public Record Act: Cal. Gov. Code §§6250-70; Cal Gov. Code §§34090-34090.8 |
| Failure to conduct government business in the open | "Transparency in government requires that all government business be conducted in the public eye. The Brown Act provides that: ""... public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created." | Duty of transparency, duty of accountability | The Brown Act: Gov. Code §§ 54950 et seq. |
| Failure to treat all members of the public in a fair and unbiased manner. | The citizenry has the right to a fair and unbiased decision maker. Accordingly, a public official must make official decisions free from personal bias. Examples of personal bias might include a personal, but not necessarily financial interest in the outcome of a decision; strong dislike of a petitioner or colleague; or strong attachment or loyalty to a petitioner, colleague, or party. | Duty of fairness, duty of loyalty | Common law and constitutional notions of due process |
| Vote trading | It is illegal in California for a public official to vote or offer to vote in a certain manner in exchange for another public official's vote on the same or another matter before the body. | Duty of fairness, duty of independence, duty of integrity | Cal. Penal Code §86 |
| Personal loans within the agency | California law prohibits a public official from receiving a personal loan from any other official, employee, or consultant of the official's agency. | Duty of loyalty | Cal. Gov Code §87460 |
| Making decisions based on campaign contribution bias | As a general rule, the receipt of campaign contributions is not perceived as giving rise to a duty to disqualify for bias. An official does have an ethical duty to make independent decisions not swayed by the fact or promise of a policial contribution. In certain licensing and permitting decisions, however, a local agency official must disqualify himself or herself if the official has received cash or in-kind contributions worth more than $250 during the previous twelve months from any party or participant in the proceeding. Additionally, it is illegal to receive or solicit campaign contributions worth more than $250 from any party in a license or permit proceeding while the proceeding is pending and for three months after the proceeding. | Duty of fairness, duty of loyalty, duty of independence | Cal. Gov. Code 84308 |
| Involving agency staff in political activities | "It is illegal for an incumbent candidate to make employment decisions based on a an employee's support of his or her candidacy. In addition, an incumbent may not solicit campaign contributions from public employees, unless such solicitation is part of a larger solicitation to the general public." | Duty of loyalty, duty of fairness | Ca.l Gov. Code §§3204; 3205; 3205.5; 3206; 3207; 3302; 8314 |
| Holding multiple public offices | Holding multiple offices creates inherent conflicts of interest and divided loyalties. Accordingly the law puts limitations on an official's ability to be hold multiple offices at the same time. | Duty of loyalty | Cal. Gov. Code §1126 |
| Unfair contractual bidding practices | The public has a right to the best services and products available for the best price. In addition, all citizens, including contractors, have the right to be treated fairly. Public contracting laws are designed to promote competition and to avoid favoritism, partisanship, and/or corruption in the bidding process. | Duty of fairness | See California Public Contracting Code |
| Retaliation against whistle blowers | To help ensure compliance with the ethics laws, California whistle-blowing legislation make it unlawful for public employers to retaliate against employees who inform about ethics violations or who refuse to participate in unlawful activities. | Duty of fairness, duty of accountability, duty of loyalty | Cal. Labor Code §§1102.5, 1102.6 ,1102.7, 1102.8, 1103, 1106 |
*Legislation is constantly being revised and updated. Please contact your legal counsel for the current status of these code sections.
Hana Callaghan is the director of government ethics at the Markkula Center for Applied Ethics
Jun 1, 2015
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