Key Points

• The FPPC has determined that local elected officials are not required to recuse themselves from participating in a decision because they accepted a contribution exceeding $250 from a party or participant to a proceeding in 2022.
• Specifically:
  • a local elected official is not prohibited from taking part in a proceeding involving a contract, license, permit, or other entitlement for use based on contributions received before January 1, 2023; and
  • a local elected official is not prohibited from receiving a contribution based on the official’s participation in a contract, license, permit, or other entitlement for use proceeding so long as the official’s participation occurred before January 1, 2023.

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  On November 10, 2022, we published a Legal Alert explaining how Senate Bill 1439 (Glazer) (SB 1439) amended the Levine Act to apply to all elected officials and to restrict campaign donations from applicants for decisions coming before their agencies. At the time of publication, the California Fair Political Practices Commission (FPPC) General Counsel had issued a draft opinion concluding that SB 1439 applied to contributions received and proceedings conducted throughout 2022 to determine whether officials must recuse themselves in 2023.

  On November 17, 2022, the FPPC's Board met to consider adopting the draft opinion. The FPPC's Board acknowledged that SB 1439 could be applied to require recusal of Board members in 2023 for prohibited contributions received and proceedings conducted in 2022. However, the FPPC expressed that it was hesitant to adopt such an approach because it was not clear that the Legislature intended for the bill to look back and apply to proceedings and contributions in 2022. The FPPC directed its Legal Division to provide a new opinion concluding that SB 1439’s amendments to the Levine Act do not apply to contributions received or proceedings in which local elected officials participated prior to January 1, 2023, when SB 1439’s amendments take effect.

  On December 22, 2022, the FPPC formally adopted Opinion No. O-22-002. The opinion concludes that: (1) local elected officials are not prohibited from taking part in a proceeding involving a contract, license, permit, or other entitlement for use based on contributions received before January 1, 2023, and (2) local elected officials are not prohibited from receiving a contribution based on the official’s participation in a contract, license, permit, or other entitlement for use proceeding so long as the official’s participation occurred before January 1, 2023. The result is that local elected officials are not required to recuse themselves from participating in a decision because they accepted a contribution in 2022 that exceeds $250 from a party or participant to a proceeding.

  The FPPC's position clears up ambiguities regarding the scope of SB 1439 and how it applies to the 2022 election cycle. Local elected officials who received campaign donations in excess of $250 in 2022 are not required to recuse themselves from related proceedings in 2023. However, local elected officials should monitor their contributions as of January 1, 2023.