New Campaign Contribution Disqualification Law Will Not Apply Retroactively

As we mentioned in a prior Alert, a new law effective January 1, 2023 (SB 1439) will require city councilmembers, county supervisors and other local elected officials to recuse themselves from proceedings that involve a land use applicant or government contractor who has contributed over $250. There has been uncertainty as to whether the law will apply retroactively to political contributions made in 2022. At yesterday’s Fair Political Practices Commission meeting, the Commission addressed the law for the first time in a public setting. 

 

After hearing a contrary proposal from staff, the five Commissioners unanimously agreed that SB 1439 will not apply retroactively to contributions made in 2022. Accordingly, city councilmembers and county supervisors will be able to vote on matters which come before them in 2023 even if they received contributions of more than $250 in 2022 from affected contributors. We are pleased that the FPPC was receptive to the concerns expressed by the regulated community about the staff’s proposal.

 

The Commissioners’ decision that the new law will not apply retroactively also means that the provision that allows officials to refund contributions and therefore be able to participate in proceedings will not start, or be necessary, prior to January 1, 2023. In other words, city councilmembers and county supervisors will not have to worry about refunding all or part of a contribution received in 2022 in order to participate in a matter. 

 

However, beginning on January 1, 2023, contributions from a party or its agents totaling more than $250 will trigger disqualification – although officials will be able to avoid disqualification by refunding the amount of any contribution that exceeds $250 within 30 days of the official learning about the proceeding, whether by meeting with a developer’s lobbyist, seeing the item on an agenda, etc. The Commissioners did not vote on the 30-day refund provision explicitly, but the unanimous decision to not apply the new law retroactively leads to this conclusion.

 

The Commissioners also confirmed that independent expenditures will not trigger disqualification under the new law.

 

The Commissioners scheduled a special meeting for December 22 to adopt a formal opinion memorializing their decision that SB 1439 does not apply retroactively.