Formal Advice

• Written, Signed Request. A request for advice under Government Code Section 1090 must be submitted in writing from the contracting public agency. The request must be signed by the public official, agency head or manager, or agency’s counsel.

• Public Agency and Private Contractor Agreement. In a request for Section 1090 advice involving a public agency and a private contractor, the public agency must be provided notice of the request, concur with the facts presented, and agree to the request for advice. The request must come from the public agency or the agency’s counsel, and contain an agreed upon set of facts. 

• Clear Questions and Facts. The request should set out the question to be answered as clearly as possible, along with enough description of the background and context of the question to allow a precise legal analysis to be prepared.    

• Additional Information. The assigned attorney at the FPPC may contact the requester one or more times for additional background information, or to discuss whether revisions to the question are desirable. No advice will be issued until these requests are satisfied. Informal advice or assistance will not be provided.

• Timing.  While all efforts will be made to answer letters implicating Section 1090 in a timely manner, there is no deadline for Section 1090 letters. The 21-working day deadline in Section 83114(b) that applies to advice under the Act does not apply to letters implicating the Act and Section 1090 unless the requestor clearly specifies that he or she is seeking only advice under the Act. (Section 1097.1(c).)

• Public Records. All written requests for FPPC opinions and supplemental information are public documents. They may be disclosed to any member of the public upon request under the Public Records Act.

• Past Conduct. Requests that relate directly or indirectly to past conduct or that may be under review of any enforcement agency. This includes Section 1090 requests where the contract in question has already been made, or where decisions have occurred that (directly or indirectly) affect, even remotely, the contract in question.

• Insufficient or Disputed Facts. Requests that do not include complete and accurate facts or in which the facts are in dispute. The FPPC is not a finder or adjudicator of facts when rendering advice (In re Oglesby (1975) 1FPPC Ops. 71), and any advice we provide assumes the facts are complete and accurate. 

• Lack of Public Agency Notice or Agreement. In a request for advice involving a public agency and a private contractor, the request will be declined if the public agency did not make the request or has not concurred with the facts.

• Policy Questions. Requests for policy determinations.

• Interpretation of other laws. Requests to interpret other areas of law, including local ordinances, rules, and statutes.

• Third Party Requests. Requests for advice posed on behalf of others, or on questions unrelated to the office.

• Litigation. The FPPC declines advice requests involving legal issues that are pending in a judicial or administrative proceeding. Issuing an advice letter on a question that is at issue in litigation might be perceived as an inappropriate attempt to influence litigation. When the FPPC becomes aware that a request is the subject of litigation, the preparation of an advice letter will cease and no advice will be provided.
  

The FPPC’s Section 1090 advice is not binding on any other local or state law enforcement agency, and is not admissible in a criminal proceeding against any individual other than the requester. However, it may be offered as evidence of good faith by the requester in an FPPC enforcement proceeding if all material facts were truthfully disclosed to the FPPC and the requester relied on the opinion or advice. 

The FPPC’s authority to issue legal advice regarding the application of Section 1090 is set out in Section 1097.1(c): 

“(1) The Commission’s duties and authority under the Political Reform Act of 1974 (Title 9 (commencing with Section 81000)) to issue opinions or advice shall not be applicable to Sections 1090, 1091, 1091.1, 1091.2, 1091.3, 1091.4, 1091.5, 1091.6, or 1097, except as provided in this subdivision.  

“(2) A person subject to Section 1090 may request the Commission to issue an opinion or advice with respect to his or her duties under Section 1090, 1091, 1091.1, 1091.2, 1091.3, 1091.4, 1091.5, and 1091.6. The Commission shall decline to issue an opinion or advice relating to past conduct. 

“(3) The Commission shall forward a copy of the request for an opinion or advice to the Attorney General’s office and the local district attorney prior to proceeding with the advice or opinion. 

“(4) When issuing the advice or opinion, the Commission shall either provide to the person who made the request a copy of any written communications submitted by the Attorney General or a local district attorney regarding the opinion or advice, or shall advise the person that no written communications were submitted. The failure of the Attorney General or a local district attorney to submit a written communication pursuant to this paragraph shall not give rise to an inference that the Attorney General or local district attorney agrees with the opinion or advice. 

“(5) The opinion or advice, when issued, may be offered as evidence of good faith conduct by the requester in an enforcement proceeding, if the requester truthfully disclosed all material facts and committed the acts complained of in reliance on the opinion or advice. Any opinion or advice of the Commission issued pursuant to this subdivision shall not be admissible by any person other than the requester in any proceeding other than a proceeding brought by the Commission pursuant to this section. The Commission shall include in any opinion or advice that it issues pursuant to this subdivision a statement that the opinion or advice is not admissible in a criminal proceeding against any individual other than the requester.”