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 is often referred to as “pay-to-play”. 

A law aimed at preventing pay-to-play politics, Section 84308 generally 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 and public perception of government bodies and to prevent a culture in which bidders or applicants 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. 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, including local elected 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 12 months 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.

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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.

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.

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.   

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.

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.

Amanda Freeman                                         A-23-145

Although the contract never came before the City Council for the Councilmembers’ consideration, a contract for ambulance services executed by the City Manager was a decision “by the agency” for purposes of Section 84308. Thus, the contracting party is prohibited from making any contribution greater than $250 to a councilmember for 12 months following the date the final decision was rendered.

Inna Zazulevskaya                                        I-23-157

The sale of property by Board of Supervisors pursuant to the competitive bidding requirements of Section 25520, et seq. (which include public notice, resolution with a stated minimum sale price,  sale terms, set time for consideration of the bids, and that the contract be awarded to the highest responsible bidder or that all bids be rejected and the property pulled from sale) meets the definition of a “competitively bid contract” that is not subject to the requirements and restrictions in Section 84308.

Phil Pogledich                                               I-23-172

Where a final decision in an entitlement proceeding was reached prior to an official’s appointment to the elected office, and the official did not otherwise have decision making authority over the proceeding or exercise authority or budgetary control over County officials who did, the official does not meet the definition of “an officer of an agency” for the particular proceeding. The Section 84308 prohibition on accepting, soliciting or directing contributions from a party or participant to the proceeding for 12 months following the final decision will not apply to the appointed official for contributions from a party or participant in the proceeding.

Robert Fabela                                              I-23-178

The mandated periodic review of a development agreement by a city council is a proceeding subject to Section 84308, as it is a substantive review of a contract agreement between the city and the applicant (project proponent) that involves a determination of substantial evidence of good faith compliance and may result in modifying or terminating the agreement.

Tony Lopresti                                                I-23-177

County’s award of a $1000 “sponsorship” to a non-profit organization is an entitlement for use proceeding under Section 84308. Generally, a county supervisor’s ability to accept a contribution greater than $250 from individuals associated with the non-profit will depend on whether the individual qualifies as a party, participant, agent, or individual whose contributions are required to be aggregated under Section 82015.5.                                                                   

Tyler Haskell                                                 I-24-008

In a contract proceeding between a local agency and a county, the local agency’s employee who makes direct contact with the county is not an “agent” of the party for purposes of Section 84308. Due to the exclusions of government salary and benefits from the definition of “income” under the Act, the local agency employee is not representing the party “for compensation,” as required under Regulation 18438.3.

John Bakker                                                  A-24-004

A proceeding affecting parking rules for an entire downtown specific plan area, affecting many and diverse interests, does not qualify as a proceeding involving a license, permit, or other entitlement for use for purposes of Section 84308. Additionally, under Section 84308, the circumstances in which an officer “knows or has reason to know” about a proceeding include where the officer has actual knowledge of the proceeding, which may predate the publication of a meeting agenda relating to the proceeding.

Andre de Bortnowsky                                  A-24-023

It is not reasonably foreseeable a decision regarding the continuation of an existing contract for law enforcement services between the city and county will have a material financial effect on the law enforcement employees, the law enforcement employees’ union, or non-law enforcement employees.  Accordingly, contributions from these potential contributors will not be restricted under Section 84308 as the potential contributors do not meet the definition of a “participant.”

Shante Sylvester                                            A-24-027

Section 84308 is not applicable to a proceeding affecting a community standards district that was initiated by the agency as a general policy matter prohibiting new oil wells and production facilities, requiring removal of existing oil wells and production facilities after 20 years, and maintaining oil field regulations for all unincorporated areas within the agency’s jurisdiction, where the facts indicate that the change was not applied for, nor was it formally or informally requested by a party, does not involve a contract between the agency and a party, and would affect over 100 persons with property rights or permitted interests as well as all residents within the area.

Ryan O’Connor                                            I-24-035

Under Section 84308 and Regulation 18438.3, where an agent is employed as a lobbyist at a lobbying firm, contributions by the lobbying firm are aggregated with contributions made by the client-party or client-participant. Contributions by an employee of the lobbying firm are only aggregated with the client’s contributions if the employee qualifies as an “agent” or must aggregate their contributions under Section 82015.5 (e.g., the employee directs or controls the firm’s contributions).

Bradley A. Russi                                           I-24-037

Section 84308 prohibits parties, participants, and agents from contributing more than $250 to the elected city attorney as an officer of the agency while the proceeding is pending and for 12 months thereafter. This prohibition applies even if the city attorney establishes a screening process to preemptively recuse himself from taking part in city contracts involving the potential contributor.