HomeMy WebLinkAboutRes No. 09-78 - Xpnse Rmbrsmnt for Local Mtgs/Evnts CITY OF PALM DESERT
OFFICE OF THE CITY MANAGER
STAFF REPORT
REQUEST: RESOLUTION NO. 09- 7s , A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF PALM DESERT, CALIFORNIA, ADOPTING AN
EXPENSE REIMBURSEMENT POLICY FOR LOCAL
MEETINGS/EVENTS ATTENDANCE BY ELECTED/APPOINTED
OFFICIALS AND CITY EMPLOYEES.
SUBMITTED BY: John M. Wohlmuth, City Manager
DATE: November 12, 2009
CONTENTS: Resolution No. 09-7s
Resolution No. 09-17
Attorney General Opinion No. 91-720 (1992)
Government Code Section 53232
Recommendation
Waive further reading and adopt.
Executive Summary
Approval of the subject resolution signifies adopting a distinct policy concerning the
reimbursement of local meetings/events expenses for elected/appointed officials and City
employees. Certain provisions of the proposed resolution were originally part of the City's
Travel Expense Reimbursement Policy approved in 2008. This resolution also follows the
guidelines and underlying intent of AB 1234, instilling certain requirements and restrictions
on the City's practices concerning such reimbursement. Staff recommends approval of the
subject resolution to provide greater transparency and control of future local meeting/event
expenditures.
Backqround
AB 1234 contains certain requirements and restrictions on local agency practices relating to
reimbursing local elected and appointed officials' expenses. AB 1234 was subsequently
codified as California Government Code Section 53232. The purpose of the subject
resolution is to define and clarify authorized reimbursable expenses, in accordance with
Section 53232 et seq., for attendance by Officials and Employees at local meetings and
events. It includes, but is not limited to, tickets as gifts for meetings/events, business meals,
employee functions, and other related expenditures incurred while conducting City business.
Staff Report
Resolution No. 09-78 -Local Meetings/Events Reimbursement
November 12, 2009
Page 2 of 3
The City's current travel policy does contain provisions concerning local meetings and
events. However, in an effort to illuminate the guidelines concerning such reimbursements,
a unique document waS prepared separate from the Travel Policy. This proposed policy
reflects current and modified provisions within the revised Travel Policy, which will be
reviewed concurrently by the City Council. Noteworthy guidelines within the local
meetings/events policy include:
1. Staff is of the opinion that approval of travel and incidental expenses incurred by a
traveling companion of a City official or employee would be a violation of State Law.
Such approval would also contradict the intent of AB 1234. Therefore, this policy
prohibits reimbursements for any traveling companion accompanying an Official or
Employee; and
2. The following non-exclusive list contains classifications for guidance in determining
authorized expenses for official City business at local meetings or events:
a. Attendance at meetings/events with government and business leaders
(e.g. Coachella Valley Association of Governments, the Palm Desert Chamber of
Commerce, and the Building Industry Association)
b. Attendance at meetings/events hosted by non-profit 501(c)(3) organizations
(e.g. Boys and Girls Club of the Coachella Valley, Palm Desert Sister Cities
Foundation, and the United Way of the Desert)
c. Attendance at meetings/events associated with professional organizations
(e.g. International City/County Management Association, California Society of
Municipal Finance Officers, and the City Clerk's Association of California).
3. Indicating that the City Manager may elect to distribute multiple tickets/passes for
events to officials or employees, pursuant to the requirements as established in City
Resolution No. 09-17 (please see attached).
The California Attorney General has twice opined the expenses of spouses who accompany
public officials in the conduct of their public duties cannot be reimbursed. One such
Attorney General Opinion relating to this matter is attached to the staff report (i.e., Attorney
General Opinion No. 91-720; 1992). Therefore, staff does not recommend permitting such
costs in this proposed reimbursement policy and did not present this option for the City
Council's consideration as noted above.
A charter city may argue that expense reimbursement falls under the category of
"compensation" and that it has plenary authority excluding them from state regulation.
Conversely, employing good fiscal management practices makes voluntary adoption of AB
1234 into this reimbursement policy advisable.
Staff Report
Resolution No. 09-�8 -Local Meetings/Events Reimbursement
November 12, 2009
Page 3 of 3
Therefore, staff recommends approval of Resolution No. 09- �s adopting an Expense
Reimbursement Policy for Local Meetings/Events Attendance by Elected/Appointed Officials
and City Employees.
Fiscal Analysis
There is no immediate fiscal impact with the adoption of the subject resolution. However,
approving a policy that clearly illustrates the City's guidelines for such reimbursements
permits greater transparency and control of future related expenditures.
Submitted By:
,
C1TY COUNCIL��TION
APPROVED DF.NIFD
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oh M. Wohlmuth, City Manager
CITY OF PALM DESERT
OFFICE OF THE CITY ATTORNEY
STAFF REPORT
REQUEST: Consider as an alternative to Staff Report for Local Meetings, a potential
substitution of Paragraph 4 allowing reimbursement of expenses for
companions.
SUBMITTED BY: David J. Erwin, City Attorney
DATE: November 12, 2009
As an alternate as requested by Council, for consideration, reimbursement for
companions attending local meetings, a substitute Paragraph 4 is suggested. Palm Desert as a
Charter City may provide for reimbursement of companions attending functions. This
reimbursement falls under the category of"compensation" over which Charter Cities have full
authority to the exclusion of state regulation pursuant to the California Constitution, Article XI,
Section 5; County of Sonoma v. Commission of State Mandates, 84 Ca1.App.4th 124 (2000).
Additionally opinion of the Attorney General OP 02-711, October 23, 2002 makes a clear
distinction between general law cities and charter cities in the expenditure of funds.
Should the Council decide to use this alternative, Paragraph 4 in the Resolution
would be changed to the following:
"4. City Payment of Expenses. Consistent with the Charter, the City of Palm Desert
recognizes the constructive value of conferences, seminars, meetings, training, charitable,
cultural and other social events and recognizes that occasionally an official or employee may
find it necessary and advantageous to be accompanied by a companion. When request is
approved by the Council in advance in an open meeting, traveling companion for Council
members shall be entitled to payment or reimbursement of reasonable expenses associated with
travel, and other actual and necessary expenses associated with attending such events in the
manner set forth in this policy. The amount paid for travel and meal expenses of the traveling
companion accompanying an official would be subject to income and employment tax
withholding. Employees may be reimbursed for expenses associated with the meetings and other
actual and necessary expenses attending and participating when approved by the City Manager in
advance."
RMBUS\DERWIN\311534.1
RESOLUTION NO. 09-Z�
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, ADOPTING AN EXPENSE REIMBURSEMENT POLICY FOR
LOCAL MEETINGS/EVENTS ATTENDANCE BY ELECTED/APPOINTED
OFFICIALS AND CITY EMPLOYEES.
THE PALM DESERT CITY COUNCIL HEREBY FINDS, DETERMINES, RESOLVES,
AND ORDERS AS FOLLOWS:
WHEREAS, the City of Palm Desert City Council wishes to adopt a local
meetings/events expense reimbursement policy that has been prepared and follows the
guidelines of AB 1234 (codified as California Government Code Section 53232); and
WHEREAS, the local meetings/events expense reimbursement policy is attached
hereto and made a part hereof marked as Exhibit A, which guidelines establish
reimbursement for allowable expenses for civic and governmental functions attended by City
representatives.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA AS FOLLOWS:
That the City Council for the City of Palm Desert, California, does hereby adopt the Expense
Reimbursement Policy for Local Meetings/Events Attendance by Elected/Appointed Officials
and City Employees, attached hereto marked Exhibit A.
PASSED, APPROVED, and ADOPTED this 12t" day of November, 2009, by the
following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
ROBERT A. SPIEGEL, MAYOR
ATTEST:
RACHELLE D. KLASSEN, CITY CLERK
CITY OF PALM DESERT, CALIFORNIA
Resolution No. 09-� Exhibit A
City of Palm Desert
Expense Reimbursement for Local Meetings/Events Attendance
by Elected/Appointed Officials and City Employees
PURPOSE
AB 1234 contains certain requirements and restrictions on local agency practices
relating to reimbursing local elected and appointed officials' expenses. AB1234 was
subsequently codified as California Government Code Section 53232. The purpose of
this policy is to:
a. Comply with AB1234 and interpret the State law for the City of Palm Desert; and
b. Define and clarify authorized reimbursable expenses in accordance with Section
53232 et seq. for attendance by Officials and Employees at local meetings and
events. It includes, but is not limited to tickets as gifts for meetings/events,
business meals, employee functions, and other related expenditures incurred
while conducting City business; and
c. To establish procedures for authorization and reimbursement of such expenses.
POLICY
This policy is applicable to the City Council, all Commissions, Committees, Boards and
Agencies, (hereafter "Agencies") of the City that are subject to the Brown Act and City
employees.
In accordance with Government Code Section 53232.2(f), all expenses that do not fall
within the adopted local meetings and events policy must be approved by the City
Council in a public meeting, and for Employees, by the City Manager, before the
expense is incurred.
1. Definitions
For the purpose of this policy, the following definitions will be used:
• Elected Officials —those individuals elected to the City Council
• Appointed Officials — members of all Palm Desert Commissions, Boards and
Agencies appointed and subject to the Brown Act and City Manager, Assistant
City Managers and Department Heads designated by the City Council to
represent the City
• Agency — the City Council, and all Palm Desert Commissions, Boards and
Agencies
City of Palm Desert November 12, 2009
Expense Reimbursement for Local Meetings and Events Page 1 of 6
Resolution No. 09- 78 Exhibit A
• Employee — an individual employed directly and solely by the City, excluding
independent contractors, subcontractors, and other persons performing work on
behalf of the City but self-employed or employed by other persons, corporations
or entities
• Reimbursable expense — City business expenses incurred and paid for by
Officials and Employees
2. Pre-Payment by City
Whenever possible, Officials and Employees should arrange for the City to be directly
billed or prepay for expenses incurred for official City business associated with local
meetings or events. Expenses paid directly by the City are not "reimbursable expenses"
within the meaning of this Policy.
3. Specific Occurrences Qualifying for Reimbursement of Expenses Incurred in
Official City Business at Local Meetings
Government Code Section 53232.2(b) requires the City specify the types of
occurrences that qualify an Official or Employee to receive reimbursement of expenses
relating to travel, meals, and other actual and necessary expenses. Accordingly, the
following non-exclusive list contains expense classifications for guidance in determining
expenses authorized to be expended for official City business at local meetings or
events. Officials and Employees are expected to exercise good judgment and show
proper regard for economy when incurring expenses in connection with official City
business. The principle of "reasonable and necessary" should be used when deciding
to expend taxpayer money.
• Attendance at meetings/events with government and business leaders (e.g.
Coachella Valley Association of Governments, the Palm Desert Chamber of
Commerce, and the Building Industry Association)
• Attendance at meetings/events hosted by non-profit 501(c)(3) organizations
(e.g. Boys and Girls Club of the Coachella Valley, Palm Desert Sister Cities
Foundation, and the United Way of the Desert)
• Attendance at meetings/events associated with professional organizations
(e.g. International City/County Management Association, California Society of
Municipal Finance Officers, and the City Clerk's Association of California).
Examples of expenses that the City shall not reimburse include, but are not limited to:
• The personal portion of any local travel
• Family expenses, (e.g. children or pet-related expenses)
• Political or religious contributions
City of Palm Desert November 12, 2009
Expense Reimbursement for Local Meetings and Events Page 2 of 6
Resolution No. 09- 78 Exhibit A
• Non-mileage personal automobile expenses including repairs, insurance, and
traffic citations
• Personal losses incurred while on City business
• Meals purchased by Officials or employees when, at the same time, a breakfast,
lunch, or dinner is provided as part of the meeting or event participation cost.
4. City Payment for Expenses- Companions
The City will not provide any reimbursements for any companion accompanying an
Official or Employee to a local meeting or event, unless it is hosted by the City. Any
other related expenses for companions shall be paid by the Official or Employee.
5. Transportation, Meals and Other Reimbursement
Private Automobile
Officials and Employees will be reimbursed for actual mileage for the use of their private
cars in travel to and from local meetings or events. The reimbursement rate will be at
the current Internal Revenue Service rate. Officials and Employees who do not receive
a monthly auto allowance shall be reimbursed for total round-trip miles. The number of
miles used for reimbursement calculations will be either from the Official or Employees
home or from City Hall, whichever is the least number of miles. Officials and
Employees are required to verify mileage claimed via www.maps.qooqle.com or
www.mapquest.com and submit printed mileage verification to the Expense Report.
Officials and Employees shall also review the City of Palm Desert's Fleet Poficy for any
further requirements, as related to this section.
Use of City-Owned Vehicle
There shall be no allowance or reimbursement for transportation when a City-owned
vehicle is used. However, any out-of-pocket expenses, including gas or maintenance
costs incurred in operation the vehicle during City business shall be reimbursed based
upon representation of receipts. Officials and Employees shall review the City of Palm
Desert's Fleet Policy for any further requirements, as related to this section.
Garaqe and Parkinq Expenses
Expenses for necessary parking and storage of private or City vehicles may be
authorized. Receipts should be provided to obtain reimbursement.
Taxi and Transit Fare
Local expenses for such transportation may be authorized where reasonable and
necessary to conduct City business. Receipts must be provided to obtain
reimbursement. Any reimbursement provided for taxi or other transit service is limited
to $50.00 per day.
City of Palm Desert November 12, 2009
Expense Reimbursement for Local Meetings and Events Page 3 of 6
Resolution No. 09- 78 Exhibit A
General Business Meals
Officials and Employees who, during the normal course of perForming their duties, must
provide meals for representatives of other governmental agencies or other persons
doing business with the City, in order to most effectively execute their responsibilities,
must use prudent judgment and are subject to challenge for excessive amounts. In
such cases, the meal must be documented with a description of the purpose of the
meal(s), including an explanation of its necessity to the City; and a list of all persons,
including other Officials and Employees who were in attendance, specifying their
organization and/or title. Expenses for persons not related to the conduct of City
business shall be deducted from the Expense Report form.
Tips and Gratuities
Reasonable expenses for tips are allowable for general business meals and
transportation purposes (i.e. taxi), with a receipt, not to exceed 20% of the allowable
charge.
Reqistration Fees
Local meeting or event registration fees qualify for reimbursement. The City will pre-pay
registrations prior to the date of the event. In cases where early registration is not
possible, a receipt or registration form documenting the fee must be provided with the
reimbursement request. In all cases, a brochure or registration document must
accompany the payment voucher or petty cash voucher.
No Shows and Late Cancellation
This section addresses situations where an Official or Employee fails to attend a local
meeting or event, after incurring expenses for that function. If an Official or Employee is
unable to attend a local meeting or event, it is the Official or Employee's responsibility to
ensure that any prepaid fees are refunded to the City. For any fees not fully refunded,
the Official or Employee shall attach a written explanation to the Expense Report form
addressing the reason(s) the Official or Employee was unable to attend.
Distribution of Multiple Tickets/Passes for Events
The City of Palm Desert may receive multiple tickets/passes to attend a local event. In
such occurrences, the City Manager may elect to distribute the tickets/passes to
Officials or Employees, pursuant to the requirements as established in City Resolution
No. 09-17.
Miscellaneous
It is the policy of the City that no Official or Employee shall sustain personal monetary
loss as a result of duties performed in the service of the City. However, all expenditures
and requests for reimbursement shall logically relate to the conduct of City business and
shall be "necessary" to accomplish the purposes of such business and shall be
"reasonable" in amount.
City of Palm Desert November 12, 2009
Expense Reimbursement for Local Meetings and Events Page 4 of 6
Resolution No. 09- 78 Exhiblt A
6. Procedures for Reimbursement of Expenses
Officials and Employees shall submit Expense Reports or forms designated by the
Finance Department within 30 days after incurring the expense, and the reports shall be
accompanied by the itemized receipts documenting each expense. Receipts are
required for all expenses paid. Documentation is required to substantiate attendance
and mileage. All required receipts and documentation must be submitted with the final
Expense Report. Any expense not substantiated by the required receipts and
documentation will not be reimbursed and will be considered a personal expense.
Required documentation may include, but is not limited to:
• Credit card slip and/or cash payment receipt
• Transportation and other receipt
• Mileage Verification
• Meeting/event brochure or agenda
• Statement of trip or meeting purpose
• Other attendees at a meal or meeting,
• Documentation of prior authorization as necessary
The reason for the expenses should be clearly documented on the Expense Report or
in the attached documents, if not otherwise obvious.
Public Trip Meetinq Report:
In accordance with Government Code Section 53232.3(d), an Elected Official
requesting reimbursement shall provide a brief report on any local meeting or event
attended at the expense of the local Agency at the next regular meeting of the Agency.
Routine business meetings may be reported in writing on the consent calendar of the
agenda. The report may be made orally or in writing.
7. Advances
Requests for advances should be submitted on the Request for Payment-Travel or
Cash Advance. The Finance Department requires seven (7) business days to process
these requests PRIOR to the date it is needed. Advance requests must be approved by
the Department Head or his/her authorized representative.
8. Ethics Training
Each Official shall receive at least two hours of training in general ethics principles and
ethics laws relevant to his or her public service every two years. The form of such
training shall meet the requirements of California Government Code Section 53234 et
seq.
City of Palm Desert November 12, 2009
Expense Reimbursement for Local Meetings and Events Page 5 of 6
Resolution No. 09- 78 Exhlbit A
9. Violation of This Policy
Pursuant to California Government Code Section 53232.4 misuse of public resources or
falsifying expense reports in violation of this policy, may result in any or all of the
following:
a. Loss of reimbursement privileges;
b. A demand for restitution to the City;
c. The City's reporting the expenses as income, paid to the Official or Employee, to
state and federal tax authorities;
d. Civil penalties of up to $1,000.00 per day and three times the value of the
resources used; and
e. Prosecution for misuse of public resources, pursuant to Section 424 of the
California Penal Code
City of Palm Desert November 12, 2009
Expense Reimbursement for Local Meetings and Events Page 6 of 6
:�esolutior_ �'o. G9-17
STAFF REPORT
DATE: March 26, 2009
"1�0: Honorable Mayor and City Council Members
FROM: David J. Erwin
City Attorney
SUBJF,CT: Adoption of Policy Concerning Tickets Distributed by the City
BACKGROUND
On December 11, 2008, the Fair Political Practices Commission(`FPPC") amended its
regulations pertaining to disbursement of tickets to and from a public agency which are
used by individual public officials. New regulations apply to tickets for admission to
entertainment, recreational, amusement and similar types of events. Unless specific
circumstances exist, such tickets constitute a gift to a public ofticial subject to the annual
gift limitation of$420 from any one source in a calendar year, as set forth in FPPC
regulations. However, if the tickets fit within certain descriptive uses (such as a City
business use), then such tickets do not constitute a gift to the public official. "The new
FPYC regulations concerning this matter take effect on approximatcly February 7, 2009.
ANALYSIS
Newly adopted FPPC Regulation 18944.1 (the "Regulation") starts with the assumption
that a public official who obtains a ticket for admission from their own public agency
receives a personal benefit that constitutes a gift. However, the Regulation provides four
(4) exceptions from classification of such ttekets as a gitt:
(1) When a public agency provides one or more tickets to an agency official as
part of the official's government salary for the position, the tickets are not gifts. Under
this exception, the Agency must treat the tickets as income subject to state and i'ederal
income tax laws.
(2) If a ticket is provided by an outside source directly to an agency official, and
the official performs a ceremonial role or function on behalf of the official's agency, the
ticket is not a gift to the official.
RMBUS\UER W IN\306265-1 1
Resolut�or. Vo. 09-17
(3) If a ticket is provided gratuitously from an outside source directly to an
agency, and the agency forwards the ticket to one of its officials, the ticket is not a gift to
the official only if: (a) the ticket is not earmarked by the outside source for use by a
particular official; (b) the agency chooses which official will ultimately use the ticket,
and (c)the use of the ticket by the official furthers a specific governmental or public
purpose.
(4) When a public agency obtains tickets pursuant to the terms of the contract, thc
agency controls admission to an event{such as a state or county fair) or the agency
purchases tickets at a fair market value, distribution of such tickets to an agency's official
is not a gift only if use of the tickets by the official accomplishes a specific governmental
or public purpose.
The new Regulation requires agencies to prepare reports disclosing the distribution of
tickets and also requires agencies to adopt a written policy for distributing tickets to
public officials. Other than tickets that are deemed to be a gift to the official or are
deemed to constitute part of the official's salary, all tickets distributed to agency officials
must be reported on a new form developed by the FPPC. The form must be prominently
posted on the agency's website, or provided to the FPPC for posting on its website,
within thirty (30)days after the distribution of the ticket. The posting must remain for a
"reasonable" period of time. Tickets that are instead "gifts"must be reported by the
official's Form 700, instead of this new form.
Public agencies are responsible for establishing a written policy for distribution of tickets
to agency officials which are obtained gratuitously by operation of a contract, by control
of an event on agency property, or by purchase of tickets by an agency. The written
policy must be posted prominently and continuously on the agency's website.
The proposed Resolution attached to this Staff Report contains a proposed policy
concerning the distribution of tickets by the City. The Resolution spells out the
governmental and public purposes applicable to the distribution of certain tickets by the
City to City officials.
A written policy must state the specific governmental or public purpose of the agency to
be accomplished by the distribution of the ticket to an agency official.
RECOMMENDATION
Recommended that the City Council adopt the Resolution setting forth a written policy
for distribution of the City controlled tickets to City officials.
� CI'!'Y GOIJAtCILI��OT�
' I�PPROVED D�
David J rwin RE EIVE �
City Attorney �'
M�ET G DA'T� j �
AYFS:
NOE5:
ABSENT: '
AI3STAIN:
VFRIFIED BY: ..� -
RM[3US\DERWIN�306265.1 Ori�inal on File witb City Clerk'�Office
RESOLUTION NO. 09 - 17
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM DESERT, CALIFORNIA REGARDING THE
RECEIPT AND DISTRIBUTION POLICY OF TICKETS
AND/OR PASSES IN THE FURTHERANCE OF THE
CITY'S PUBLIC PURPOSES
WHEREAS, every California city by and through its governing body and other public
officials, is empowered to exercise all powers necessary or appropriate to a municipal
corporation for the general welfare of its inhabitants which are not prohibited by the California
Constitution; and
WHEREAS, the City of Palm Desert operates in a highly-competitive environment to
grow and maintain its reputation as a vibrant place to live, work and do business and as a
desirable visitor destination center and therefore, the City must take proactive steps to attract
private and public investment in a matter that best maximizes the City's investment of public
resources; and
WHEREAS, as part of the City's development and marketing strategies, the City
Council cultivates opportunities to showcase the City's unique attributes including, but not
limited to the City's business development climate, local tourism base, its highly trained
workforce, open government and its diverse array of local attractions, cultural and civic events;
and
WHEREAS, from time to time, the City receives "tickets or passes" from third party
sources, both public and private; and
WHEREAS, under Title 2 of the California Code of Regulations, Section 18944.1
("Section 18944.1") these tickets and/or passes are defined as an admission to a facility, event,
show or performance for an entertainment, amusement, recreational, or similar purpose; and
WHEREAS, on December 11, 2008, the FPPC adopted new regulations that set up the
circumstances under which the receipt of tickets and passes by a public official would need to
disclosed by the City and the circumstances they would be distributed to public officials and not
trigger disclosure requirements for the purposes of the public official's Statement of Economic
Interests("Form 700"); and
WHEREAS, the City finds that the receipt of all such tickets and/or passes are public
resources; and
WHEREAS, the City desires to distribute these public resources in a manner that
furthers the City's governmental and public purposes as reasonably described herein, such as the
promotion of local businesses, community resources, programs and facilities; and
RMBUS�DER W fN�306263.1 1
Resolution No. 09-17
WHEREAS, according to Section 18944.1 these tickets and/or passes are not gifts to f „
"public officials" if these tickets and/or passes are disseminated in accordance with a duly
adopted written policy if such distribution is made under Section 18944.1, subdivision (b)(2);
and
WHEREAS, the Fair Political Practices Commission ("FPPC") has clearly stated that it
recognizes the discretion of the legislative or governing body of an agency to determine whether
the distribution of tickets and/or passes serves a legitimate public purpose of the City, provided
that the determination is consistent with state law.
NOW THEREFORE, BE IT RESOLVED, the City Council of the City of Palm
Desert, California hereby adopts the following:
CITY OF PALM DESERT TICKETS AND/OR PASSES DISTRIBUTION POLICY
Section 1. Purpose of PolicX. The purpose of this policy is to ensure that all tickets
and/or passes provided to the City shall be distributed in furtherance of governmental and/or
public purposes as required under Section 18944.1.
Section 2. Limitation. This Policy shall only apply to the City's distribution of
tickets and/or passes to, or at the behest of, a public official for which no consideration of equal
or greater value is provided by the public official. Consideration of equal or greater value shall
be presumed if the tickets and/or passes are distributed pursuant to this policy. ' "
Section 3. Official Duties; Ceremonial Roles. Tickets provided to public officials as
part of their official duties, or tickets provided so that the public official may perform a
ceremonial role or function on behalf of the City shall not be subject to this Tickets and/or Passes
Distribution Policy. These tickets are exempt from any disclosure or reporting requirements.
Section 4. Public Purpose. The City shall only provide a ticket andlor pass to a
public official, or at the behest of, a public official under the following list of City's public and "
governmental purposes:
a. Promotion of local and regional businesses, economic development and tourism
` activities within the City, including conventions and conferences.
b. Promotion of City-controlled or sponsored events, activities, or programs.
c. Promotion of community programs and resources available to City residents,
including nonprofit organizations and youth programs.
d. Marketing promotions highlighting the achievements of local residents and
businesses.
e. Promotion and marketing of private facilities available for City resident use,
including charitable and nonprofit facilities.
RMBUS�DERWIM30b263.1 2
Resolution No. 09-17
f. Promotion of public facilities available for City resident use.
g. Promotion of City growth and development, including economic development and
job creation opportunities.
h. Promotion of specific City community events: provided by or sponsored by the
City.
i. Promotion of any City owned sites such as parks, soccer fields, desert within golf
course.
j. Exchange programs with foreign officials and dignitaries.
k. Promotion of City recognition, visibility, and/or profile on a local, state, national
or worldwide scale.
l. Promotion of open government by public official appearances, participation
and/or availability at business or community events.
m. Sponsorship agreements involving private events where the City specifically
seeks to enhance the City's reputation both locally and regionally by serving as
hosts as sponsors providing the necessary opportunities to meet and greet visitors,
dignitaries, and residents.
n. All written contracts where the City as a form of consideration has required that a
certain number of tickets or suites be made available for City use.
o. Employment retention programs.
p. Special outreach programs for veterans, teachers, emergency services, medical
personnel and other civil service occupations.
q. Charitable 501 (c)(3) fundraisers for the purpose of networking with other
community and civic leaders.
r. Promotion of and participation in intergovernmental relations and activities.
s. Spouses of public officials in order to accompany him or her to any of the events
listed above.
t. Any purpose similar to above included in any City contract.
Section 5. Return of Tickets. Any public official or any member of the public
official's immediate family may return any ticket unused to the City for redistribution pursuant
to this policy. Government Code section 82029 has defined immediate family to mean spouse
RMBUS�DERWIN�306263.1 3
Resolution No. 09-17
and dependent children. Under no reasons, may either the public official or a member of his or
her immediate family sell or further transfer any ticket and/or pass provided under this policy.
Section 6. Citv Manager. The City delegates the authority to distribute any tickets
and/or passes in accordance with this policy to the City Manager or his or her designee. In such
case, where the City Manager desires to obtain a ticket or pass, the City Council authorizes the
Mayor to exercise the City's sole discretion in determining whether the City Manager's use or
behest of tickets and/or passes is in accordance to the terms of this policy.
Section 7. Transfer Prohibition. The transfer by any public official of any tickets
and/or passes distributed pursuant to this policy to any other person, except to members of the
public official's immediate family for their personal use, is prohibited.
Section S. Website Postin�. This policy shall be posted on the City's website in a
prominent fashion. These forms shall be posted for 12 months and may be removed at the City's
discretion anytime thereafter.
Section 9. Website Disclosure. The distribution of a tickets or passes pursuant to
this policy shall be posted on the City website in a prominent fashion within 30 days after the
ticket distribution and shall include all the information as required under Section 18944.1. Any
such posting shall use FPPC Form 802 or such alternative form as may be approved or amended
from time to time.
PASSED, APPROVED AND ADOPTED this 26tb day of March, 2009.
AYES: BENSON, FERGUSON, FINERTY, KELLY, and SPIEGEL
NOES: No1�
ABSENT: xor�
ABSTAIN: Np� e��
BERT A. SPIEGEL, Y
ATTEST:
RA E D. RLASSEN, C TY CLF1tK
CITY OF PALM DESERT, CALIF'ORNIA
RMBUS\DER W IN\306263.1 4
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
� DANIEL E. LUNGREN
Attorney General
OPINION :
: No. 91-720
of :
: FEBRUARY 24, 1992
DANIEL E. LUNGREN :
Attorney General : -
RONALD M. WEISKOPF :
Deputy Attorney General :
THE HONORABLE NEWTON R. RUSSELL, MEMBER OF THE STATE
SENATE, has requested an opinion on the following question:
May a hospital district pay the traveling and incidental expenses incurred by the
spouse of a district director who is attending a conference on official business of the district?
CONCLUSION
A hospital district may not pay the traveling and incidental expenses incurred by the
spouse of a district director who is attending a conference on official business of the district.
ANALYSIS
We are advised that the board of directors of a local hospital district has voted to
permit members of the public to attend conferences along with board members at district expense
to assist the directors with their official responsibilities. But we are also told that the true purpose
for the action is to allow spouses of the directors to attend the conferences with all expenses related
thereto paid by the district. We are asked whether payment of the spouses' expenses would be
lawful. Under the circumstances presented, we conclude that it would not be lawful.
1. The Local Hospital District Law
1. 91-720
Local hospital districts are formed and derive their powers under the Local Hospital
District Law (Health & Saf. Code, § 32000 et seq.; hereafter "District Law"). (See 67
Ops.Cal.Atty.Gen. 492 (1984); 66 Ops.Cal.Atty.Gen. 13 (1983).)' The powers granted to them
under the District Law are seemingly broad; a hospital district is permitted to exercise those
powers and to do those things that are expressly mentioned in the District Law or which are
necessarily implied (§ 32001), and do "any and all other acts and things necessary to carry out [the
District Law]° (§ 32121, subd. (k)). (Cf. 67 Ops.Cal.Atty.Gen. at 493; 30 Ops.Cal.Atty.Gen.
351, 353 (1957).) Needless to say, this statutory grant of authority includes a "'broad authority to
contract.' (24 Ops.Cal.Atty.Gen. 53 (1954).° (67 Ops.Cal.Atty.Gen. at 492.)
We presume that the payment of traveling expenses of a spouse who accompanies a
director to a convention ostensibly to assist the director in the performance of public duties would
follow upon a contract providing for the same. However, as we have pointed out before, any
particular contract that a hospital district executes must be within the authority of a hospital district
to make. (67 Ops.Cal.Atty.Gen. at 493.)
A hospital district is authorized to maintain membership in any local, state, or
national group or association organized and operated for the promotion of public health and welfare
or the advancement of the efficiency of hospital administration, and to pay dues and fees thereto.
(§ 32131.) It would clearly be within the authority of a district to have its directors attend
meetings of such organizations, and under section 32103 they would be allowed "actual necessary
traveling and incidental expenses incurred [in connection therewith] . . . .i2
The District Law also gives a district the power to "employ any officers and
employees, including architects and consultants, the board of directors deems necessary to carry on
properly the business of the district." (§ 32121, subd. (g); emphasis added.) Arguably, this would
provide authority to hire a consultant to accompany and assist a director at particular meetings and
to pay the consultant's necessary traveling and incidental expenses. But nothing is said in the
District Law about paying the expenses of a spouse who attends such meetings with a director, and
we conclude that such payment may not be sanctioned from a district's implied power to carry out
�Unidentified statutory references prior to footnote 4 are to the Health and Safety Code.
ZSection 32103 provides: "The board of directors shall serve without compensation except
that the board of directors, by a resolution adopted by a majority vote of the members of the
board, may authorize the payment of not to exceed one hundred dollars ($100)per meeting not to
exceed five meetings a month as compensation to each member of the board of directors. [¶]
Each member of the board of directors shall be allowed his or her actual necessary traveling
and incidental expenses incurred in the performance of official business of the district as
approved by the board." (Emphasis added.)
2. 91-720
the District Law's purposes.3 In fact, as we shall next see, there are particular problems involving
a contract calling for payment of the spouse's expenses.
2. Government Code Section 1090
"Section 1090 of the Government Code codifies the common law prohibition and
the general policy of this state against public officials having a personal interest in contracts they
make in their official capacities. [Citations]." (66 Ops.Cal.Atty.Gen. 156, 157 (1983.) In
relevant part Government Code section 1090' provides as follows:
"Members of the Legislature, state, county, district, judicial district, and
city officers or employees shall not be financially interested in any contract made by
them in their official capacity, or by any body or board of which they are
members."
A director of a hospital district is covered by the section's prohibition. (Eldridge v. Sierra View
Local Hospital Dist. (1990) 224 Ca1.App.3d 311, 320; cf. 66 Ops.Cal.Atty.Gen. at 14; 58
Ops.Cal.Atty.Gen. 323, 324 (1975).)
The test for determining whether section 1090 has been violated is whether an
officer or employee has participated in the making of a contract in his or her official capacity. (See
Millbrae Assn.for Residential Survival v. City of Millbrae (1968) 262 Ca1.App.2d 222, 237; 66
Ops.Cal.Atty.Gen. at 160-161.) If an official is a member of a board that actually executes the
contract, he or she is conclusively presumed to have been involved in its making. (Thompson v.
Call (1985) 38 Ca1.3d 633, 649.) Furthermore, "the statute not only strikes at situations that do
3Section 32121, subdivision (h) does give a district the power to "establish offices as may be
appropriate and to appoint . . . employees to those offices, and to determine the number of, and
appoint, all officers and employees and to fix their compensation." However, as it has been
presented in the situation here, the "assistant" accompanying the director to a meeting would not
do so as an "employee" of the district.
It should also be noted that the Legislature has prescribed the means for hospital districts
to employ assistants --i.e.,by hiring consultants. (§ 32121, subd. (g).) It has long been
established that where a statute prescribes the mode by which a power may be exercised, that
mode is the measure of the power. (Cf. Wildlife Alive v. Chickering(1976) 18 Ca1.3d 190, 196;
Uhl v. Baderacco (1926) 199 Cal. 270, 283; Cowell v. Martin (1872) 42 Cal. 605, 613; Garson
v. Juarique (1979) 99 Cal.App.3d 769, 774; 66 Ops.Cal.Atty.Gen. 17, 24 (1983); 64
Ops.Cal.Atty.Gen. 804, 808 (1981).) But the spouse here would not be accompanying the
director as a consultant contemplated by the statute.
4Unidentified statutory references hereafter are in the Government Code.
3. 91-720
involve actual fraud and dishonesty but also at those in which such is absent but in which the
possibiliry exists nonetheless for personal influence of an interested [officer] to be brought to bear,
either directly ar indirectly, on an official decision. [Citations.]° (66 Ops.Cal.Atty.Gen. at 160,
fn. 3.)
In this case, the district board's voting to permit a director's spouse to accompany
him or her on a business trip at district expense would involve the board and the director in the
making of a proscribed "contract.° (See 69 Ops.Cal.Atty. 255, 258, fn. 5 (1986).) Even if the
contract is not formally executed by the board, its vote would sufficiently connect the director, as a
member of the board, with the prohibited conduct. That being the case, and since there would be
no question that the director would have a financial interest in the payment of the expenses called
for under it (see, e.g., Nielsen v. Richards (1925) 75 Ca1.App. 680; 69 Ops.Cal.Atty.Gen. at 255,
259-260; 69 Ops.Cal.Atty.Gen. 102, 107 (1986)), section 1090 would be violated.5
Where the section 1090 prohibition is applicable, as we find it here, it acts as an
absolute bar to a board entering into the contract (see 69 Ops.Cal.Atty.Gen. at 256; 69
Ops.Cal.Atty.Gen. at 104), and any contract authorized by the board's action would be void. (Cf.
Thomson v. Call, supra, 38 Ca1.3d at 646; People v. Deysher(1934) 2 Ca1.2d 141, 146; Millbrae
Assn for Residential Survival v. City of Millbrae, supra, 262 Ca1.App.2d at 236; Terry v. Bender
(1956) 143 Ca1.App.2d 198, 206; Schaefer v. Berinstein (1956) 140 Ca1.App.2d 278, 290.) The
district may not pay the traveling and incidental expenses of the director's spouse under the
circumstances presented.
3. The California Constitution
Article XVI, section 6 of the California Constitution prohibits the making of "gifts"
of public funds. The section provides in pertinent part as follows:
°The Legislature shall have no . . . power to make any gift, or authorize the
making of any gift, of any public money or thing of value to any individual . . .
whatever . . . ."
Under this constitutional prohibition, the Legislature may not authorize the making of any gift of
public money to any individual. The statutory grant of authority to local hospital districts
contained in the District Law must be read against this constitutional prohibition.
Payment of a spouse's traveling and incidental expenses out of district funds would
constitute a direct payment of public money to an individual. However, "[i]t is well settled . . .
SSection 1090 would not be violated where the "contract" was for reimbursement of the
director's own actual and necessary expenses. An exception to the section 1090 prohibition
exists for "an officer in being reimbursed for his or her actual and necessary expenses incurred in
the performance of official duty." (§ 1091.5, subd. (a)(2); see Citizen Advocates, Inc. v. Board of
Supervisors (1983) 146 Ca1.App.3d 171, 176-178.) �
4. 91-720
that expenditures of public funds or property which involve a benefit to private persons are not
gifts within the meaning of [section 6 of article XVI] . . . if those funds are expended for a public
purpose . . . .° (California Emp. etc. Com v. Payne (1947) 31
Ca1.2d 210, 216; see also County ofAlameda v. Janssen (1940) 16 Ca1.2d 276, 281; Johnston v.
Rapp (1951) 103 Ca1.App.2d 202, 207.) In other words,
"It has been held that public credit may be extended and public funds
disbursed if a direct and substantial public purpose is served and nonstate entities
are benefitted only as an incident to the public purpose. (California Housing
Finance Agency v. Elliott (1976) 17 Ca1.3d 575, 583; Winkelman v. City of
Tiburon (1973) 32 Ca1.App.3d 834, 845.) The benefit to the state from an
expenditure for a public purpose is in the nature of consideration and the funds
expended are therefore not a gift even though private persons are benefitted
therefrom. (County of Alameda v. Carleson (1971) 5 Ca1.3d 730, 745-746; 47
Ops.Cal.Atty.Gen. 171, 181 (1966).)° (67 Ops.Cal.Atty.Gen. 32, 34 (1984).)
The question thus becomes whether "the consideration [i.e., the benefit to the public] is plainly
substantial and whether the private [individual] is benefitted only as an incident to the promotion of
such purposes.° (Id. at p. 35.)
Whether a particular program serves a public purpose is primarily a legislative
determination that will not be disturbed by the courts so long as it has a reasonable basis.
(California Housing Finance Agency v. Elliott (1976) 17 Ca1.3d 575, 583.) For example, in 66
Ops.Cal.Atty.Gen. 13, we said that no "gift of public funds" would occur with respect to a hospital
district providing family health insurance for the members of its board of directors "since the
providing of [the] insurance serves a public purpose in compensating the directors for their services
performed. [Citations.]" (Id. at p. 15, fn. 4.) In other opinions we have found the provision of
employee health benefit coverage as serving a direct and substantial public purpose. (See, e.g., 74
Ops.Cal.Atty.Gen. 159, 162 (1991); 73 Ops.Cal.Atty.Gen. 296, 304 (1990).) But while we have
said that providing incentives for the retention of employees and increasing their efficiency would
serve a public purpose (73 Ops.Cal.Atty.Gen. at 304; 39 Ops.Cal.Atty.Gen. 200, 201 (1962)), that
justification is not without bounds under the Constitution. (Cf. 73 Ops.Cal.Atty.Gen. at 304).
Surely the public benefit here, if it exists at all, is more attenuated and not as
plainly substantial as in the situations which we and the courts have considered before, and surely
the benefit to the private individual is more than merely incidental to any public benefit. First of
all, it is one thing to provide health and other benefits to a wide class of public employees from
which a substantial public benefit might be perceived; it is quite another to provide additional
compensation to a particular individual, i.e., a district director.b But also, the nature of the benefit
here is different. Health insurance coverage for a group of public employees has been authorized
6We note that even there, it is not the director who would directly receive the benefit; it would
be his or her spouse, who is not a public employee.
5. 91-720
by the Legislature in a number of cases in order to address a major societal concern. But the need
to take one's spouse on a business trip does not rise to that level of concern, and the Legislature
has not provided any express statutory basis to expend public funds for that purpose.
We find no direct and substantial public purpose to be served in paying the traveling
and incidental expenses of a director's spouse so as to justify an expenditure of public funds under
Article XVI, section 6 of the Constitution. The payment would be unconstitutional.
Accordingly, we conclude that under the circumstances presented, a hospital district
may not pay the traveling and incidental expenses of a spouse of a district director who is attending
a conference on official business.
�����
6. 91-720
WAIS Document Retrieval http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=3714062...
CALIFORNIA CODES
GOVERNMENT CODE
SECTION 53232-53232.4
53232. For the purposes of this article, the following terms have
the following meanings:
(a) "Governing body" means the board of supervisors in the case of
a county or a city and county, the city council or board of trustees
in the case of a city, and the board of directors or other governing
body in the case of a special district.
(b) "Legislative body" has the same meaning as specified in
Section 54952.
(c) "Local agency" means a city, county, city and county, charter
city, charter county, charter city and county, or special district.
(d) "Meeting" has the same meaning as specified in subdivision (a)
of Section 54952.2.
53232.1. (a) When compensation is otherwise authorized by statute,
a local agency may pay compensation to members of a legislative body
for attendance at the following occurrences:
(1) A meeting of the legislative body.
(2) A meeting of an advisory body.
(3) A conference or organized educational activity conducted in
compliance with subdivision (c) of Section 54952.2, including, but
not limited to, ethics training required by Article 2.4 (commencing
with Section 53234) .
(b) A local agency may pay compensation for attendance at
occurrences not specified in subdivision (a) only if the governing
body has adopted, in a public meeting, a written policy specifying
other types of occasions that constitute the performance of official
duties for which a member of the legislative body may receive
payment.
(c) This section shall not apply to any local agency that pays
compensation in the form of a salary to members of a legislative
body, including, but not limited to, those local agencies whose
legislative bodies' compensation is subject to Section 36516 or
36516. 1, subparagraph (B) or (C) of paragraph (2) of subdivision (a)
of Section 21166 or Section 22840 of the Water Code, Section 11908.1
of the Public Utilities Code, Section 6060 of the Harbors and
Navigation Code, or subdivision (b) of Section 1 or Section 5 of
Article XI of the California Constitution.
53232.2. (a) When reimbursement is otherwise authorized by statute,
a local agency may reimburse members of a legislative body for
actual and necessary expenses incurred in the performance of official
duties, including, but not limited to, activities described in
Article 2.4 (commencing with Section 53234) .
(b) If a local agency reimburses members of a legislative body for
actual and necessary expenses incurred in the performance of
official duties, then the governing body shall adopt a written
policy, in a public meeting, specifying the types of occurrences that
qualify a member of the legislative body to receive reimbursement of
expenses relating to travel, meals, lodging, and other actual and
necessary expenses.
(c) The policy described in subdivision (b) may also specify the
reasonable reimbursement rates for travel, meals, and lodging, and
other actual and necessary expenses. If it does not, the local agency
shall use the Internal Revenue Service rates for reimbursement of
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WAIS Document Retrieval http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=3714062...
travel, meals, lodging, and other actual and necessary expenses as
established in Publication 463, or any successor publication.
(d) If the lodging is in connection with a conference or organized
educational activity conducted in compliance with subdivision (c) of
Section 54952.2, including, but not limited to, ethics training
required by Article 2.4 (commencing with Section 53234) , lodging
costs shall not exceed the maximum group rate published by the
conference or activity sponsor, provided that lodging at the group
rate is available to the member of a legislative body at the time of
booking. If the group rate is not available, the member of a
legislative body shall use comparable lodging that is consistent with
the requirements of subdivisions (c) and (e) .
(e) Members of the legislative body shall use government and group
rates offered by a provider of transportation or lodging services
for travel and lodging when available.
(f) A11 expenses that do not fall within the adopted travel
reimbursement policy or the Internal Revenue Service reimbursable
rates as provided in subdivision (c) , shall be approved by the
governing body, in a public meeting before the expense is incurred,
except as provided in subdivision (d) .
(g) If a member of a legislative body chooses to incur additional
costs that are above the rates established pursuant to this section
and those costs have not been approved pursuant to subdivision (f) ,
then the member of a legislative body may do so at his or her own
expense.
(h) This section shall not supersede any other laws establishing
reimbursement rates for local agencies.
53232.3. (a) If a local agency reimburses members of a legislative
body for actual and necessary expenses incurred in the performance
of official duties, then a local agency shall provide expense report
forms to be filed by the members of the legislative body for
reimbursement for actual and necessary expenses incurred on behalf of
the local agency in the performance of official duties. Reimbursable
expenses shall include, but not be limited to, meals, lodging, and
travel.
(b) Expense reports shall document that expenses meet the existing
policy, adopted pursuant to Section 53232.2, for expenditure of
public resources.
(c) Members of a legislative body shall submit expense reports
within a reasonable time after incurring the expense, as determined
by the legislative body, and the reports shall be accompanied by the
receipts documenting each expense.
(d) Members of a legislative body shall provide brief reports on
meetings attended at the expense of the local agency at the next
regular meeting of the legislative body.
(e) All documents related to reimbursable agency expenditures are
public records subject to disclosure under the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1) .
53232.4 . Penalties for misuse of public resources or falsifying
expense reports in violation of expense reporting polices may
include, but are not limited to, the following:
(a) The loss of reimbursement privileges.
(b) Restitution to the local agency.
(c) Civil penalties for misuse of public resources pursuant to
Section 8314 .
(d) Prosecution for misuse of public resources, pursuant to
Section 424 of the Penal Code.
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