HomeMy WebLinkAboutAuthority by Board of Directors ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL MEMORANDUM
DATE: February 25, 2002
TO: Board of Directors,;'TDPUD
Cc: Peter Holzmeister, General!Manager
FROM: Steve Gross and Andy Morris
RE: Delegation of Authority by Board of Directors
1. Background Information
One of the hallmarks of representative government is that no elected representative, or
legislative body composed of elected representatives, has the time (or sometimes the specialized
skills) necessary to perform every task or make every decision involved in government. From
this truth, which has been recognized in California law at least since 19171, has emerged the
necessity for every executive and every legislative body to delegate certain portions of the task
of governance to others. Tasks and responsibilities may be delegated to executive agencies in a
large organization such as a state or national government, or may devolve to an entity's staff in
the case of a smaller unit of government such as a city or special district.
However, there must be limits on the amount of responsibility and decision-making
authority delegated, and the executive or legislative body must retain ultimate control. The
question of the precise extent to which authority may be delegated has been considered in a
plethora of court cases in California, and has also been the subject of numerous opinions from
the state Attorney General's office.
IL What Can and Cannot be Delegated
A. General Principles of Nondelegation
A general principle of California law is that "legislative power" cannot be delegated.
Legislative power is essentially the determination and formulation of policy, so only a legislative
body can declare what policy will be or set the goals and objectives of a governmental entity.
The purpose of the doctrine of nondelegability is to ensure that truly fundamental issues will be
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resolved by elected officials, and that a grant of authority to a governmental entity is constrained
by safeguards adequate to prevent the abuse of that authority.
B. Exceptions to Nondelegation Doctrine
However, the doctrine of nondelegability is subject to important exceptions, detailing
circumstances in which legislative power may properly be delegated. Such authority can be
delegated if it is channeled by a definite standard governing its use. For example, a legislative
body can commit to an administrative officer the power to determine whether the facts of a
particular case bring it within a rule or standard previously established by the body.
Another facet of this authority to delegate is that once a legislative body has declared
policy or set goals and objectives, determining how to achieve those ends can be left in the hands
of others, such as staff. The legislative body can confer upon executive or administrative
officers the power to fill in the holes in legislative policy by prescribing administrative rules and
regulations to promote the purposes of legislative enactments and carry them into effect.2
Legislative bodies can also delegate the performance of "ministerial' tasks. These
responsibilities can include investigation and determination of facts, preliminary negotiations,
research, and planning in advance of formal action by the legislative body. A subsequent
approval or ratification of an act delegated to a subordinate validates the act or decision, which
becomes the act of the agency itself.'
To sum up, delegation is not improper, and will be upheld by the courts, if the legislative
body has developed rules, standards, or some other form of effective guidance for delegatees in
their efforts to implement policy established by the legislative body. If executive or
administrative staff are simply running amok, acting without any reference to policies
established by a board or other body, this will not be upheld. However, as long as the legislative
body has made the important policy decisions and staff members are following the established
standards for implementing those decisions, no improper delegation of authority has occurred.
' This was recognized by the California Supreme Courtin Gaylord v. City of Pasadena(1917) 175 Cal. 433,437.
Kugler v. Yocum(1968)69 Cal.2d 371-375-376. Although this California Supreme Court decision is not recent, it
is still good law and remains a landmark in the field of delegation of powers. It has been cited by courts in several
states and in California as recently as Alexander v. State Personnel Board(2000) 80 Cal.App.4t"526. 537.
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C. Statutory Requirements for Approval by Legislative Body
In addition to the general principles of delegation of powers discussed above, there are
also instances in which a state statute specifies that a local legislative body must be the one to
exercise a particular power. In these cases, the power may not be delegated to staff, unless the
statute sets forth circumstances in which this may be done. The California Supreme Court has
held that where power is so constrained by statute, it is in the nature of a public trust and may not
be exercised by others.¢ One example of this is that the TDPUD Board is required by law to set
water and electric rates, rather than delegating this responsibility to staff. This is presumably to
ensure that ratepayers have some voice in the rate-setting process (via the elected Board) and that
the Board is retaining oversight over the contracting process.
III. Application of Doctrine to TDPUD
In the case of TDPUD, the Board has made, and continues to make all policy decisions.
Sometimes these are set forth in ordinances, others appear as resolutions or motions, and still
others take the form of "policies", all of which are added to and comprise the TDPUD "Code
Book". Pursuant to Policy 2.40.010, enacted by Minute Order 86-17, the TDPUD Board has
opted to delegate a great deal of ministerial authority to the General Manager. This represents a
devolution onto the General Manager of responsibility for ensuring that TDPUD runs smoothly
on a day-to-day basis and that the policy decisions of the Board are carried out.
In addition to Policy 2.40.010, in recent years the Board has annually adopted a strategic
plan, prepared by Bob Roush after consultation with the Board and management staff. The
strategic plans have all recognized the necessity of delegating authority and responsibility to the
staff, since the Board simply does not have time to deal with every issue from start to finish.
The actions by TDPUD staff that have raised questions about the delegation of powers
doctrine have largely consisted of preliminary negotiations, discussions, and planning. From
what we have seen, staff members have not executed contracts on their own, contravened Board
policies, entered into binding agreements, or committed TDPUD to a position or course of action
without Board approval. Staff members have always presented issues to the Board for
'California School Employees v_ Personnel Commission(1970)3 CAM 139, 144-145.
Bagley v. City of Manhattan Beach(1976) 18 Ca1Md 22.
discussion and approval, and have amended draft contracts, revised strategies, and renegotiated
agreements at the direction of the Board. The Board has retained ultimate authority over every
issue and every aspect of TDPUD's operations, as it must.
Under the circumstances, it does not appear that there has been any improper delegation
or usurpation of legislative powers by TDPUD's Board or staff. The work that staff has been
doing in negotiating contracts and agreements, discussing possible deals, planning things, and
generally ironing out wrinkles before presenting matters to the Board, is well within the bounds
of the authority the Board has delegated, and has all been performed under the overall direction
of the General Manager, pursuant to Policy 2.40.010. We have reviewed this policy and it does
not contain any improper delegation of authority.' There is no requirement in the law that
agency staff receive approval from their legislative body before commencing discussions or
negotiations, and nothing that says that legislative bodies have to give multiple approvals of
incremental steps in bringing a contract or project to fruition.
Of course, the Board can certainly opt to expand its role, injecting itself into every aspect
of every issue affecting TDPUD, getting involved at every step along the way. This is the
Board's prerogative, and can be accomplished by adopting a new policy sharply limiting the
responsibility and authority of the General Manager and requiring the Board approval be
received at every step. This will likely require a significant additional time commitment from
the Board, perhaps necessitating Board meetings weekly or more often, and will also consume
considerable additional staff time in writing reports and discussing issues with the Board.
IV. Conclusions
It is legally permissible for legislative bodies to delegate considerable authority to staff in
California,provided guidelines are established to control the exercise of the delegated authority.
The TDPUD Board has done so through a number of policies, including Policy 2.40.010. Based
on what we have seen, and under the policies now in effect, TDPUD staff has not exceeded the
limits of its delegated authority. However, the Board remains free to change the policies at any
time so as to give itself a greater role.
s Actually, Public Utilities Code Section 16114 requires that the General Manager be delegated full charge and
control of the construction,maintenance,and operation,of"works of the District".
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ATTORNEY- CLIENT PRI)ALEGED AND CONFIDENTIAL MEMORANDUM
DATE: March 13, 2002
TO: Board of D�' tors, TDPUD
FROM: Steve Grod Andy Morri Alm
RE: Brown Act implications of individual directors meeting with
project proponents
I. BACKGROUND INFORMATION
We have been requested by Director Sutton to issue a written opinion as to the "legality
and advisability" of individual members of the Board of Directors meeting with a representative
of the developer which has proposed to construct a project within TDPUD's territory.' In
response to this request, we are providing both legal analysis and advice on how to avoid
creating even an appearance of impropriety.
The events which have prompted this query are as follows. A representative of a
developer has contacted each member of the Board of Directors, seeking to make appointments
for one-on-one meetings at which this representative will provide each Director with information
concerning one or more proposed development projects. Presumably, the goal is to provide the
Directors with information which bears on some request which the developer will make of
TDPUD in the future. Director Sutton has expressed misgivings about the legality and propriety
of such individual meetings, and has asked whether such meetings can occur without violating
the "serial meeting"prohibition in California's open meeting law. This law is commonly known
as the Brown Act, and is set forth in sections 54950-54962 of the California Government Code.
II. STATUTORY FRAMEWORK AND LEGALITY OF INDIVIDUAL MEETINGS
Except for closed sessions, the Brown Act requires that all aspects of the decision-making
process by legislative bodies be open to the public, including discussion, debate, and acquisition
'The developer in question is,of course,East West Partners. As we have disclosed many times previously,our firm
represents East West. We do not believe that ibis presents a conflict of interest in the context of preparing this
memorandum,as we are merely opining on the meaning of the Brown Act,rather than providing advice to the Board
which is related to the merits or legality of any project proposed by East WesL
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of information. On the other hand, the law recognizes the need for individual legislators to be
able to meet and discuss matters with members of the public. The Brown Act does not limit a
legislative body member acting on his or her own, and does not limit the contact a member can
have with "any other person".2 The law does not draw any distinction between constituents and
non-constituents, or between individuals and representatives of corporations, or concerned
citizens and project proponents. Any person,regardless of motive or affiliation, can seek contact
with a member of a legislative body.3
However, individual contacts cannot be used to develop a "collective concurrence" of
members of the legislative body. A series of individual contacts can tarn into a"serial meeting",
which is prohibited under the Brown Act. For example, the developer representative may not
contact Director Aguera to obtain his views on the proposed project, then call Director Hemig,
then talk to Director Maass and tell him what Directors Aguera and Hemig said about the
project. The series of individual meetings are not themselves prohibited; what must be avoided
is communicating the thoughts and ideas of the directors to each other. This is because the
communication of thoughts and ideas can be construed as the development of a collective
consensus on an issue which is to be decided by the Board as a whole.
What this means is that the Brown Act does not prohibit the members of the Board from
meeting with a developer representative in a series of individual meetings. The representative
will have to be scrupulously careful to avoid giving any director an idea of what any other
director thinks about the project, or has said about the project. With this caveat, our opinion is
that the meetings requested by the developer representative with members of the Board of
Directors do not themselves represent violations of the Brown Act.
III. "ADVISABILITY"OF INDIVIDUAL MEETINGS
The second pan of Director Sutton's request concerns the "advisability" of individual
meetings with the developer representative. This is more of a policy question than a legal
question, and the law can be complied with in any of a number of ways. Certainly, the members
Z§54952.2(c){1)
3 Director Sutton has suggested that such contacts are required to be publicly disclosed. There is no such
requirement in the Brown Act. The Brown Act's general mechanism for ensuring that decision-making is public is
the requirement that meetings be noticed and public,rather than requiring disclosure of non-public meetings.
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of the Board could individually meet with the project proponent, provided that certain ground
rules are established at the outset for these meetings. These ground rules would include the
following admonitions for the developer representative: (i) don't mention whether you have met
with any other Board members; (ii) don't say what you have told other Board members, if
anything; and(iii) don't reveal what other Board members you have met with have told you.
One way to avoid even the possibility of a Brown Act violation would be for the directors
to refuse to meet individually with the developer representative. In general, elected
representatives should probably be willing to meet with people concerning issues relevant to the
public entity with which the representatives are affiliated. However, there is no requirement to
meet with every person who seeks access, and some or all of the directors could certainly decide
to meet with the developer representative only at a noticed and public meeting,
Another possibility would be for a director to advise the developer representative that
written materials will be accepted, but that a private meeting will not be granted. The California
Supreme Court has held that unilateral written communications w members of a legislative body
do not violate the Brown Act. However, if such materials are sent to a majority of the directors,
they will be public records for purposes of the Public Records Act 4
In a nutshell, we cannot offer advice on what any or all members of the Board should do,
other than strongly advising the directors to comply with the requirements of the Brown Act.
Each director will need to decide what he or she feels comfortable doing, within the bounds of
the law. Having an individual meeting, refusing to meet, specifying that only written comments
will be received, and disclosing or not disclosing any of the foregoing, all lie within the
discretion of each individual member of the Board.
IV. CONCLUSION
We hope this opinion has been helpful, clear, and concise. We would be happy to
elaborate upon any part of this opinion, provide advice concerning the legality of a particular
course of action,or discuss any aspect of the Brown Act.
°§54457.5(a)
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"meeting" defined i 54952.2. (a) As used in this chapter,-meeting"includes any congregarion of,
majority of the members of a Icgistative body at the same time and place to hear,
discuss,or deliberate upon any item that is within the subject matter jurisdicrion of
the legislative body or the local agency to which is pertains.
y cannot use direct communication, (b) Excepr as authorized pursuant to Section 5.1953.any use of direct communication,
personal intermediaries or personal intermediaries,or technological devices that is employed by a majority of the
technological devices members of the legislative body to develop a collective concurrence as to action co be
taken on an ircm by the members of the legislative body is prohibited.
(c)Nothing in this section shall impost the requirements of this chapter upon any of
exceptions: the following:
1.individual contacts 1 (1)Individual contacts or conversations between a member of a legislative body and
any other person,
closed session minute book 54957.5. (a)Notwithstanding Section 6253 or any oche.provisions of law,agendas of
public meetings and any other writings,when distributed to all,or a majority of all,of
the members of a legislative body of a local agcn y by any person in connection with a
matter subject to discussion or consideration at a public meeting of the body,arc
i disclosablc public records under the CLfomia Public Records Act(Chapter 33
(commencing with Section 6250)of Division 7 of Title 1),and shall be made available
upon request without delay. However,this section shall nor include any writing
exempt from public disclosure under Section 6253.5,6254,6254.7,or 625.412_