FPPC Guidance, SB 1439, and Campaign Contributions

SB 1439, adopted last year, extended the Levine Act’s (Gov. Code Section 84308) requirements to local elected officials. In short, SB 1439 now requires local elected officials (including members of city council, special district boards, and school district boards) to recuse from (i.e., “conflict out”) certain proceedings involving their campaign contributors and to, further, make certain disclosures of such contributions. SB 1439 also prevents local elected officials from accepting, soliciting, or directing campaign contributions greater than $250 from a party or participant in any proceeding (including their agents) while the proceeding is pending and, further, for the 12 months after a final decision in the proceeding.

In order to implement SB 1439, the Fair Political Practices Commission (“FPPC”) recently adopted regulations (some new and some amended). These regulations help clarify how SB 1439 would apply to local elected officials, including the related complexities. The following are some brief highlights of the guidance provided by the regulations:

1. Pre-January 1, 2023, Contributions and Proceedings. SB 1439 does not apply to contributions made or received and proceedings participated in by local elected officers that occurred prior to January 1, 2023. (New FPPC Regulation 18438.) This codifies their Kendrick Opinion (No. O-22-002) from last year.

2. Officer of an Agency. Clarified the definition of an “officer” under SB 1439 so that it also applies to an officer who has already lost an election. (Amended FPPC Regulation 18438.1(d)(4).)

3. Agent. An “agent” is someone who represents a “… party or participant for compensation and appears before or otherwise communicates with the governmental agency for the purpose of influencing the pending proceeding.” (Amended FPPC Regulation 18438.3(a).)

4. Pending Proceeding. Under Amended FPPC Regulation 18438.2(b), a proceeding involving a license, permit, or other entitlement is considered “pending” in the following circumstances:

For an officer, a proceeding involving a license, permit, or other entitlement for use is pending (1) when the decision is before the officer for their consideration. If the officer is a member of a governing body, this includes any item placed on the agenda for discussion or decision at the body’s public meeting; or (2) when the officer knows or has reason to know a proceeding involving a license, permit or other entitlement for use is before the jurisdiction of the agency for its decision or other action, and it is reasonably foreseeable the decision will come before the officer in the officer’s decision making capacity.

For a party or party’s agent, or a participant or participant’s agent, a proceeding involving a license, permit or other entitlement for use is pending when it is before the jurisdiction of the agency for its decision or other action.

As noted above, this is only a brief snapshot of the FPPC’s new and amended regulations implementing SB 1439 in order to provide a general illustration of what has changed. The new and amended regulations are fairly extensive, nuanced, and complex, and will require analysis in the context of specific situations as they arise. This includes requirements for disclosure of contributions as they arise. As such, we recommend that you seek further guidance from your attorney as matters arise.


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