CIFAC NEWS

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The Brown Act – Impacts Two Cities

By Patricia Rascon, Southwestern Regional Compliance Manager

CIFAC Educates Two Cities on Agenda Posting Requirements

(January 2017) What is transparency? Ballotpedia refers to it as, “Openness, accountability, and honesty define government transparency. In a free society, transparency is government’s obligation to share information with citizens. It is at the heart of how citizens hold their public officials accountable. Governments exist to serve the people. Information on how officials conduct the public business and spend taxpayers’ money must be readily available and easily understood. This transparency allows good and just governance”.

Recently while reviewing City Council agendas for two cities in Kern County, I discovered that they were neglecting to post the agendas on their City Internet websites. Through my research, it appeared that the “sites” were marginally operational with postings of employment openings, calendar of events and public hearings for example, but the agendas were nonexistent.Patricia (Patti) Rascon, Southern Regional Compliance Manager

The Ralph M. Brown Act found in California Government Code §54944.2 (a) (1), focuses on the required agenda postings of at least 72 hours before the regular meeting in a location that is “freely accessible to members of the public”. While the courts have not conclusively defined the term “freely accessible”, the California Attorney General has interpreted the provision to require posting in a location accessible to the public 24 hours a day for a 72-hour period. Additionally, the agenda is to be posted to the City Internet website if they have one.

Are there consequences if the City does not abide by the provision of the code with respects to posting on the Internet site? I was surprised to learn that the answer could potentially be “yes”. The Brown Act cites that there should be “substantial compliance” with all agenda posting requirements which includes posting to the agency website §54960 (d) (1). Technical difficulties in of themselves do not automatically require cancellation of the meeting providing the “agency” is complying with all the other requirements of The Brown Act.

The outcome of my inquiry and subsequent education on The Brown Act requirements resulted in the posting of the current agenda and assurance that they are working to correct the technical issues with their respective sites. All cities have a duty to provide its citizens and the general public with an Internet site that is not only accessible with up-to-date content, but other benefits such as digital amenities to request services, contact staff and make comments, and be a resource in general. Furthermore, and most importantly to have a plan to correct outages and errors quickly.


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Lease Leaseback: This Foe May Be A New Friend

By Michelle Tucker, Executive Director

A new law brings fairness to “lease leaseback” contracting. For many compliance agents and contractors in California, the mere mention of a “lease leaseback” school construction project spurred verbal groans and eyeball rolls. The negative perception surrounding this contracting method was in large part due to school districts abusing its use to circumvent the Public Contract Code competitive bidding statutes via a California Education Code exemption.

For more than sixty years, districts were allowed to lease school property to a developer for a dollar annually and allow the developer to construct and modernize facilities, which the school would regain ownership upon completion. This may not sound like a bad deal initially, until you find out that there was no advertising of the project, no transparency, no price competition, no subcontractor protections………. Need I go on? For the few contractors getting these jobs, that may not be a problem. But in the big picture it means most contractors were left in the dark about the upcoming projects. Not to mention the fact that our economy is based on free enterprise and competition. The whole basis of the Public Contract Code is to ensure a level playing field for contractors, stimulate price competition through bidding, require transparency that prevents favoritism, fraud or corruption in the awarding of contracts and as a protection to the public against misuse of public funds.Michelle Tucker, Executive Director

Let’s fast forward to Jan. 1, 2017. CIFAC partners carried assembly bill 2316, with collaboration from Michelle Tucker, CIFAC’s Central Regional Compliance Manager, which amended the Education Code to now require a competitive solicitation process should a district choose to use this contracting method. This process now includes the adoption and publishing of required procedures and guidelines by the school district, the advertisement of a Request for Proposal, prequalification of contractors, proposals to be submitted in a sealed envelope, with each proposal scored based on a best value system, and finally, subcontractor protections must be built into the contract.

This is a true win-win situation for the Industry and the public. This legislation created an improved method of procurement that is both fair and impartial. CIFAC and partners are committed to holding agencies accountable for their actions and working to increase job opportunities for the Industry.


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Do California Fairs Follow Public Contract Code?

California’s fairs can be difficult navigate. What are the force account limits? Do all the fairs have to follow the same rules? What’s the difference between a state owned fair and a county owned fair? Many of the answers are cut and dry, while some are in a grey area.

In 2012, California’s budget shortfalls meant fairs didn’t receive any public funds to maintain facilities, build new facilities, or run day-to-day operations. This decision came on the heels of a 2009 decision to take the money fairs received from horse racing license fees, and put the money in the general fund. In 2016, all that changed. California began giving the fair districts money again, but many new CEOs are unaware they have to follow the public contract code.

There are 77 fairs overseen by the California Department of Agriculture’s Fair and Expositions Division. Amongst those 77 fairs are 54 District Agricultural Associations that are part of the state of California’s fair network. The other fairs are considered county owned.

A county with a fair that is a District Agricultural Association has a force account limit of $25,000. Once a project exceeds that limit, it must be put out to bid. From there, everything follows public contract code.

For county owned fairs, things are different. They still have to follow public contract code, but it depends on the organization that the county has contracted to run the fairgrounds for them. Many of these county owned fairs use a non-profit fair association to handle the day to day operations and any construction projects. If the non-profit runs everything, then it doesn’t matter if they received public funds because the non-profits are exempted from following public contract code.

The county could have language in the agreement with the fair board on when a project needs to be sent out to bid, but it becomes difficult to enforce certain areas of the public contract code when it’s a non-profit agency. As always, if you feel any agency isn’t in compliance with public contract code, feel free to reach out to a compliance manager with CIFAC.