Pay-to-Play Limits and Prohibitions (Section 84308)
In order to promote transparency and fairness in the governmental decision making process there are rules in place to prevent public officials from being unfairly influenced by contributors to their campaign. The type of activity these laws were enacted to limit are often referred to as “pay-to-play”.
A law aimed at preventing pay-to-play, Section 84308 prohibits a party seeking a contract (other than competitively bid), license, permit, or other entitlement for use from making a contribution of more than $250 to an official of the agency. Statutes such as Section 84308 aim to maintain the integrity of the contracting process and to prevent a culture where bidders or applicants come to believe it is necessary to make political contributions to receive government contracts or permits.
In 2022, the California Legislature passed SB 1439, a bill that amended Section 84308 of the Political Reform Act (“the Act”). The changes took effect on January 1, 2023. As detailed below, the amendments significantly broadened the scope of the statute—most significantly by applying the statute’s restrictions to agencies whose members are directly elected by voters.
Section 84308 prohibits certain officials from taking part in an entitlement for use proceeding if the official has received a contribution exceeding $250 from a party or participant in the proceeding within the preceding 12 months. An official is also prohibited from accepting, soliciting, or directing a contribution exceeding $250 from a party or participant in the proceeding for a certain period of time after a final decision is rendered in such a proceeding.
As of January 1, 2023, Section 84308 now operates differently in two key ways:
1. Section 84308 now applies to agencies whose members are directly elected by voters including local elected officials such as city councilmembers and county supervisors serving on their respective boards; and
2. Officials are prohibited from accepting, soliciting, or directing a contribution exceeding $250 from a party or participant for 12 months after the final decision of a proceeding.
Here are updated regulations concerning Section 84308 adopted by the Commission on June 15, 2023.
Repeal to Regulation 18438.7
Adoption to Regulation 18438
Adoption to Regulation 18438.7
Amendments to Regulation 18438.1
Amendments to Regulation 18438.2
Amendments to Regulation 18438.3
Amendments to Regulation 18438.4
Amendments to Regulation 18438.5
Amendments to Regulation 18438.6
Amendments to Regulation 18438.8
Amendments to Regulation 18705
Recent Advice Letters
The Fair Political Practices Commission responds to hundreds of requests from candidates and public officials about their obligations under the Political Reform Act. For more complicated questions, the Commission issues formal advice letters.
Compiled below are the formal advice letters issued on Section 84308 since the passage of SB 1439. The letters may be searched and used for guidance only – they will not provide immunity to any person other than the original requestor.
Thai Viet Phan A-23-052
Although Section 84308 prohibits officers including city councilmembers from accepting, soliciting, and directing contributions of more than $250 from parties in a proceeding involving “a license, permit, or other entitlement for use,” the statutory definition of that term excludes labor contracts. Accordingly, Section 84308 does not apply to contributions to councilmembers from an organization entering into a labor agreement with the City.
Randall Sjoblom I-23-027
Section 84308 applies to any proceeding or action to grant, deny, revoke, restrict or modify “licenses, permits, or other entitlements for use.” A decision to vacate an irrevocable offer of dedication or a public easement is a proceeding involving an entitlement for use.
Jonathan Velasquez I-23-065
In general, contracts are considered entitlement for use proceedings for purposes of Section 84308 regardless of value. Accordingly, small contracts, including purchase orders, are subject to Section 84308’s provisions. Likewise, charter school petitions, which are also contracts, are subject to Section 84308. However, labor contracts, such as collectively bargained project labor agreements, are expressly exempted from Section 84308.
Eric May I-23-077
When a landowner initiates a process to change the use designation of a specific parcel of property under the County’s general plan, both the pre-application to authorize the filing of a formal application, and the formal application for a general plan amendment, are “proceeding[s] involving a license, permit, or other entitlement for use” under Section 84308. Under the existing regulatory language and the most conservative reading of 84308, the proceeding should be considered “pending” once the pre-application has been submitted.
Matt Strabone I-23-037
Disclosure and disqualification requirements of Section 84308 apply to contributions received as a candidate for county central committee. So long as an official is an officer subject to Section 84308 at the time of the decision, the official will be subject to its provisions.