City law prohibits City officers and designated employees from soliciting payments to third parties, like nonprofits, from certain sources. This is known as the City’s behested payment rule.
The City’s behested payment rule can be found in Article III, Chapter 6 of the Campaign and Governmental Conduct Code. Additionally, Ethics Commission regulations further clarify the rules and certain exceptions. If City officers or employees have questions about how this rule may apply to them, they should contact the Ethics Commission for advice specific to their situation.
Definitions
In short, City officers and designated employees are prohibited from directly or indirectly soliciting behested payments from interested parties. The following definitions are provided to further explain this prohibition.
Behested Payment
A payment made at the behest of a government official to a third party, like a nonprofit or City department, made principally for a legislative, governmental, or charitable purpose.
“At the behest of” means under the control or at the direction of, in cooperation, consultation, coordination, or concert with, at the request or suggestion of, or with the express, prior consent of.
Payment
A monetary payment, or the delivery of goods or services, with a value of $1,000 or more, or series of payments within a 12-month period that in the aggregate total $1,000 or more.
City Officer
Any elected official, commissioner, or department head.
Designated Employee
Any City employee who is required to file a Statement of Economic Interest (Form 700) under Article III, Chapter 1 of the Campaign and Governmental Conduct Code.
Interested Party
A person or entity with an interest in an action before the City officer or employee in question, or their department. There are multiple situations that can make a party an interested party for a City officer or designated employee. Learn more about interested parties below.
Who is an Interested Party?
The City’s behested payment rule prohibits City officers and designated employees from soliciting behested payment from interested parties.
An “interested party” is a party or participant (or their agent) who is:
- involved in a proceeding regarding either administrative enforcement, a license, permit, or other entitlement for use, before any officer within the department of the officer or designated employee;
- involved in any other governmental decision regarding either administrative enforcement, a license, permit, or other entitlement for use, in which the officer or designated employee was personally or substantially involved;
- any City Contractor contracting with or seeking to contract with the officer or designated employee’s department, or any affiliate of such a contractor;
- as pertains to the Board of Supervisors, any City Contractor, or any affiliate of such a City Contractor, if the Board of Supervisors approves the City Contractor’s agreement with the City;
- any person who attempted to influence the officer or designated employee regarding the approval, denial, extension, or amendment of a City contract, as defined in the Ethics Commission’s regulations;
- a contact or expenditure lobbyist who has made a contact with the officer’s or employee’s department in the last 12 months; OR
- any registered permit consultant that has reported any contact with the officer or designated employee’s department to carry out permit consulting services during the past 12 months.
Please see San Francisco Ethics Commission Regulations 3.620-10 through 3.620-20 for more information about the different elements of what makes someone an interested party.
Exceptions to the Behested Payment Rule
There are some exceptions to the behested payment rule.
Competitively Procured Contracts
Solicitations made under authorized programs for donations to nonprofits or public schools through competitively procured contracts are allowed if the program is authorized by an ordinance.
Contracted Benefits
Solicitations made in connection with the negotiation or administration of a City contract, which are directly related to the terms of, or performance under, the contract are allowed.
Public Appeals
Public appeals are allowed. Public appeals are requests that are made through television, radio, billboard, a public message on an online platform, the distribution of 200 or more identical pieces of printed material, the distribution of a single email to 200 or more recipients, or a speech to a group of 20 or more people.
Please see San Francisco Ethics Commission Regulation 3.620-8 for further information.
Behested Payment Waivers
Upon request, the Board of Supervisors may waive the behested payment rule in specific instances. The Board of Supervisors may not waive this rule for officers or employees of the Board of Supervisors.
A proposed waiver resolution must summarize the purpose of the solicitation(s) and identify the type of interested parties or the specific interested parties, when their identity is known, who would potentially be solicited, and a statement as to why the department believes the parties to be interested parties. Such waiver resolutions must find that granting the waiver would not create the appearance of impropriety and would be in the public interest. Waivers can only be granted prospectively for a maximum of six months.
Within 30 days of granting such waiver requests, the Board of Supervisors must publish information regarding the resolution online.
Frequently Asked Questions About the Behested Payment Rule
Does behested payment rule prevent soliciting payments from all potential donors?
No, the behested payment rule only prevents soliciting payments from interested parties. Soliciting payments from others, who are not interested parties, is not prohibited.
Can behested payments be directed to interested parties?
Yes, the rule does not prohibit directing behested payments to interested parties.
For example, if the Board of Supervisors approves a grant to a nonprofit organization, that nonprofit is an interested party for members of the Board of Supervisors. Members of the Board may solicit behested payments that would go to that non-profit organization (so long as they do not solicit behested payments from an “interested party).” In this example, it does not matter that the non-profit recipient is an interested party, since they are not being solicited to make any payment.
Are City officers and employees allowed to make personal charitable donations?
Yes, the behested payment rule does not restrict or prevent City officers or employees from using their own personal funds to make charitable donations.
Behested Payment Reporting Requirements for Elected Officials
State law requires elected officials to publicly disclose all behested payments made at their behest if they total $5,000 or more per calendar year from a single source. These disclosures are made on the Form 803. More information about this filing requirement and how to file the Form 803 is on the Elected Official Behested Payments State Reporting Requirement guidance page. Copies of the Form 803 that have been filed are available on the Behested Payment Filings by Elected Officials disclosure page.