HomeMy WebLinkAbout17-City Attorney
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From:
JAMES F. PENMAN
Subject:
CONFLICT OF INTEREST ADVISEMENT
Dept:
City Attorney
Date:
January 17, 2003
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Synopsis of Previous Council action:
N/A
Recommended motion:
N/A
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o Signature'
James F. Penman
Staff Report and January, 2003
Supporting data attached: FPPC Bulletin; various state
statutes and FPPC regulations
FUNDING REOUIREMENTS: Amount: N/A
Phone:
5255
Contact person:
Ward:
Source: (Acct. No.)
(Acct. DescriPtion)
Finance:
Council Notes:
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75-0262
Agenda Item
STAFF REPORT
Council Meeting Date: Januarv 21. 2003
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: January 17, 2003
AGENDA ITEM No. S2: Conflicts of Interest Advisement
Certain new legislation, which took effect on January 1 , 2003, is applicable to local elected
officials including mayors and council members.
Among significant new requirements are:
1) Chapter 233, Statutes of 2002 adds requirement that, in addition to publicly
stating the nature of the conflict and recusing himself/herself, the elected
official must leave the room, except which speaking on the matter as a
member of the public, during the time allocated for the public to speak on the
agenda item; after speaking, the elected official must leave the room.
2) Chapter 172, Statutes of 2002 eliminates the requirement that Statements
of Economic Interest filers disclose loans from commercial lending
institutions made during the normal course of business;
3) Chapter 1741 Statutes of 2002, requires late contribution reports to indicate
whether the contribution was a loan;
4) Chapter 212, Statutes of 2002 prohibiting candidates from returning to
himself/herself contributions made by the candidate to his/her own campaign
or controlled Committee DOES NOT APPLY to candidates for local elective
offices, it only applies to candidates for state elective offices;
5) Chapter 237, Statutes of 2002 allows any elector in a county or municipality
to seek a writ of mandate requiring that a ballot summary or title be
amended.
In addition, frequently arising conflict of interest issues include:
1) Abstaining on any matter which is within 500 feet of real property, in which
the elected official has a financial interest, based on the presumption of
financial impact unless you can prove no financial impact.
- FPPC has held that if the action under consideration will increase or
decrease the value of your property, by even as much as a penny, there is
a financial impact.
Council Meeting Date: January 21, 2003
Agenda Item No. 52: Conflicts of Interest Advisement
Page 2
2) Campaign donations do not trigger an abstention, however, a series of
campaign donations and a series of votes in favor of projects or issues
beneficial to or supported by campaign donors may be used as evidence
against you in a prosecution for bribery or in an action to remove you from
office pursuant to Government Code Sections 3060-3075.
3) Government Code 91090 - The Death Penalty For Politicians.
"... city officers or employees shall not be financially interested in any
contract made by them in their official capacity, by any body or board of
which they are members. Nor shall ... city officers or employees be
purchasers at any sale or vendors at any purchase made by them in their
official capacity."
- 91091 -
- 91091.5-
- 91097-
- 91098-
Remote Interest
Interest in Contract; Quantity and Quality of Interest;
relation to contracting party.
Penalties
Disclosure or use of confidential information for
pecuniary gain.
4) Government Code 987100 - "No public official... shall make, participate in
making or in any way attempt to use his official position to influence a
governmental decision in which he knows or has reason to know he has a
financial interest."
Finally, there are actual conflicts and situations which give the appearance of a conflict;
they are significantly different and we will discuss both.
FPPC
Bulletin
January 2003 Fair Political Practices Commission Volume 29, No.1
IN THIS ISSUE:
Complaint intake facls
Enforcement summaries 2
Committee termination 5
Gift limit adjusted 6
Conflict code help 8
Clerk's corner 10
Litigation report 11
New laws for 2003 14
Advice summaries 15
Public officials, local govern-
ment filing officers, candidates,
lobbyists and others with obliga-
tions under the Political Reform
Act are encouraged to call toll-
free for advice on issues includ-
ing campaign contributions and
expenditures, lobbying and con-
flicts of interest. FPPC staff
members answer thousands of
calls for telephone advice each
month.
FPPC's Complaint Process
Faces Increased Case load
By Jon Matthews
FPPC Publications Editor
Preliminary information indicates that the number of case files
opened by the FPPC's Enforcement Division in 2002 will far surpass
the 770 opened in 2001 or the 858 opened in 2000, the year of the
last statewide general election.
The increase in complaints may stem from a variety of causes, in-
cluding new campaign finance rules implemented in the wake of voter
approval of Proposition 34.
Despite budget and staff constraints facing the Commission, the
FPPC in 2002 also appears on track to assess one of highest annual
totals of administrative and civil fines in the agency's history.
To help ensure that the complaint intake process operates as effi-
ciently as possible, here are some basic facts:
- The Enforcement Division investigates and prosecutes viola-
tions of California's Political Reform Act, which was approved by vot-
ers in 1974 and has been amended numerous times. These cases
generally involve conflicts of interest, campaign contributions and ex-
penditures and lobbying disclosure issues.
- Whether or not a full investigation is conducted, the Commis-
sion maintains its longstanding policy of informing every complaint
filer in writing about the final outcome of the case - what the agency
did and why it did it. If an alleged act is outside the jurisdiction of the
FPPC, the complaint filer will be so notified.
- Extensive information about how to file a complaint and the en-
forcement process in general is available on the FPPC web site,
http://www.fppc.ca.qov.This information includes a complaint form
and a pamphlet explaining what happens to a complaint once it is
filed. Interested persons can go directly to the enforcement section of
the web site at http://www.fppc.ca.qov/index.htm/?id=7. Once
(Continued on page 2)
Page 2
FPPC Bulletin
California
Fair Political
Practices Commission
Commissioners
Karen Getman, Chairman
Sheridan Downey III
Thomas S. Knox
Gordana Swanson
Vacancy
Commission Meetings
Meetings are generally
scheduled monthly in the Com-
mission Hearing Room, 428 J
Street, 8"Floor, Sacramento.
Please contact the Commission
orcner::k. the FPPC web site,
htto:f1www.fooc.ca.dotf. to confirm
meeting dates.
Pursuant to Section 11125 of
the Bagley-Keene Open Meeting
Act, the FPPC is required to give
notice .ofits meetings ten (10)
days!n advance of the meeting.
In order to allow time for inclusion
in the meeting agenda and repro-
duction, all Stipulation, Decision
and Order materials must be re-
ceived by the FPPC no later than
three (3) bUsiness days prior to
the ten day notice date.
The Commission meeting
agenda and supporting docu-
ments are available free of
charge on the Commission's web
site ..at . htt[):f1www.f~~c.ca.aov.
Additionally, past ..i!nd.. .future
agendas are posted on the web
site.
January 2003
Volume 29, No.1
...FPPC Complaint Intake Process
(ContinuedFompage J)
there, just click on the options in the left-hand column for more infor-
mation.
- Before filing a complaint, it may be helpful to contact the En-
forcement Division's "intake unit" at the toll-free number 1 (800) 561-
1861 to determine whether the FPPC has jurisdiction over the activity
in question.
- Complaints receive an initial screening to determine whether
the matter is appropriate for further investigation. Frequently, this re-
view is based solely on the strength of the complaint and any sup-
porting documents that are submitted. Enforcement Division staff
have prosecutorial discretion to consider each complaint in light of
other pending cases and the Commission's limited resources.
- As a general rule, the identity of any person filing a complaint
will not be disclosed to the public or the parties against whom the
complaint is made.
- A complete investigation and resolution of a complaint may
take months or - in rarer cases - years. To protect the integrity of
the investigation and the due process of the accused, the Enforce-
ment Division does not provide status reports on active investigations
to individuals who file complaints, the media or the general public.
With limited exceptions the division will neither confirm nor deny the
existence of any complaint until after the case is closed, a formal ad-
ministrative accusation is issued, a civil complaint is filed, or a pro-
posed settlement agreement is presented to the Commission.
- Once a complaint is filed with the Enforcement Division, the di-
vision will continue to pursue a case it believes worthy of a full investi-
gation even if the individual who filed the complaint seeks to have it
withdrawn.
- Filing a knowingly erroneous, frivolous or misleading complaint
with the Fair Political Practices Commission is an affront to the public
interest and the mission of the agency, and causes many potentially
serious problems. These problems include diversion of limited En-
forcement Division resources from investigation of legitimate com-
plaints, delay of the resolution of legitimate and often extremely seri-
ous cases, and needless inflation of the Commission's already sub-
stantial caseload.
The FPPC Bulletin is published by the Fair Political Practices Commission
428 J Street, Suite 620, Sacramento, CA 95814
Internet: ~
Toll-free advice line: 1-866.ASK.FPPC (1-866-275-3772)
Telephone: 1-916-322-5660
Enforcement hotline: 1-800-561-1861
The Bulletin is published quarterly on the FPPC web site. To receive the Bulletin bye-mail, e-mail
your request to jmatthews@fppc.ca.gov
Page 3
FPPC Bulletin
January 2003 Volume 29, No.1
Future Meeting Dates
The Fair Political Practices Commission is cur-
rently scheduled to meet on the following date in
2003:
Friday, January 17
Additional 2003 meeting dates will be
posted on the web site soon.
Meetings generally begin at 9:30 a.m. in the
FPPC's 8th floor hearing room at 428 J Street,
Sacramento, but check the FPPC web site regu-
larly as starting dates and times can change.
Meeting Summaries
Summaries of actions at the Commission's
regular monthly meetings are posted on the Com-
mission's web site at:
http://www.fpPc.ca.qov/index.htm/?id=63.
Enforcement Summaries
October Commission Meetinq
Campai!!n ReportinQ Violations
Mark Christopher Auto Center, FPPC No.
02/424. Mark Christopher Auto Center is a busi-
ness entity engaged in the selling and leasing of
new and used automobiles and trucks in Ontario.
Respondent failed to disclose $12,408 in late con-
tributions made to a California state senatorial
candidate in 2000, in violation of section 84203(a)
(two counts); and failed to file a semi-annual cam-
paign statement, in violation of section 84200(b)
(one count). $3,500 fine (three counts).
95/5, Put Your Money Where the Kids AreNes
on Prop #223 and Kinde Durkee, FPPC No.
00/59. 95/5, Put the Money Where the Kids Are/
Yes on Prop #223 was a committee primarily
formed for the purpose of supporting Proposition
223 in the 1998 primary election. Kinde Durkee
was its treasurer. Respondents failed to report
sub-vendor information for $269,527 and
$150,000 in payments made to vendors, in vio-
lation of section 84303 (two counts). $4,000
fine.
Children's Rights 2000 and Kinde Durkee,
FPPC No. 00/60. Children's Rights 2000 was a
ballot measure committee existing primarily to
support the qualification of Proposition 223, and
the Cigarette Tax, After School Tutoring Initia-
tive, for the 1998 primary election ballot. Kinde
Durkee was its treasurer. Respondents failed to
report sub-vendor information for $72,729 in
payments made to a vendor, in violation of sec-
tion 84303 (one count). $1,000 fine.
Capital Pacific Holdings, Inc., FPPC No.
02/423. Capital Pacific Holdings, Inc. is a Cali-
fornia corporation headquartered in Newport
Beach. In conjunction with campaign activity in
the fall of 2000, Respondent failed to disclose a
$2,500 late contribution, in violation of section
84203(a) (one count); failed to disclose two late
independent expenditures of $10,000 each, in
violation of section 84204(a) (two counts); failed
to file two supplemental independent expendi-
ture reports, in violation of section 84203.5(a)
(two counts); and failed to file a semi-annual
campaign statement, in violation of section
84200(b) (one count). $6,500 fine (six counts).
Recording Industry Association of America
PAC, and Jennifer Bendall, FPPC No. 99/346.
Recording Industry Association of America PAC
is a general purpose recipient committee, spon-
sored by the Recording Industry Association of
America Inc., a trade association located in
Washington D.C. Jennifer Bendall was the com-
mittee's treasurer. Respondents failed to main-
tain adequate records of their campaign activi-
ties for the 1997-1998 audit period, in violation
of section 84104 (one count), and failed to file a
second pre-election campaign statement prior
to the November 1998 general election, in viola-
tion of section 84200.5 (one count).
$3,800 fine (two counts).
(Cuntinued on page 4)
Page 4
FPPC Bulletin
January 2003 Volume 29, No.1
(Continuedfrum page 3)
Correctional Peace Officers Association of
Santa Clara, FPPC No. 01/556. Correctional
Peace Officers Association of Santa Clara IS a
lobbyist employer located in Milpitas. Respondent
failed to timely file two lobbyist employer reports
in 2000, in violation of section 86117(a) (two
counts). $2,250 fine.
BriteSmile, Inc., FPPC No. 01/553. BriteSmile,
Inc. is a lobbyist employer located in Walnut
Creek. Respondent failed to timely file five lobby-
ist employer reports during the period of January
1, 1999 through March 31, 2001, in violation of
section 86117(a) (five counts). $7,500 fine.
Affiliated Community Healthcare Physicians,
FPPC No. 011551. Affiliated Community Health-
care Physicians, also known as Affiliated Catholic
Healthcare Physicians, is a lobbyist employer lo-
cated in Los Angeles. Respondent failed to timely
file six lobbyist employer reports during the period
of April 1 , 1999 through September 30,2000, in
violation of section 86117(a) (six counts). $10,500
fine.
Late Contribution Report Violations -
Streamlined Proqram
Failure to Timely File Late Contribution Re-
ports - Proactive Program. The following per-
sons and entities have entered into stipulations
for failure to file late contribution reports, in viola-
tion of Government Code section 84203:
Graniterock, FPPC No. 2002-706. Graniterock of
Watsonville failed to timely disclose a late contri-
bution totaling $10,000 (one count). $1,500 fine.
Balfour Beatty Construction, Inc., FPPC No.
2002-699. Balfour Beatty Construction, Inc. of At-
lanta, Georgia failed to timely disclose late contri-
butions totaling $30,000 (three counts). $4,500
fine.
Dennis A. Tito, FPPC No. 2002-720. Dennis A.
Tito of Pacific Palisades failed to timely disclose a
late contribution totaling $10,000 (one count).
$1,500 fine.
Douglas Bosco, FPPC No. 2002-700. Douglas
Bosco of Santa Rosa failed to timely disclose late
contributions totaling $11,000 (two counts).
$1,650 fine.
Ronald N. Tutor, FPPC No. 2002-721. Ronald N.
Tutor of Hidden Hills failed to timely disclose a
late contribution totaling $10,000 (one count).
$1,500 fine.
September Commission Meetinq
Adoption of ALJ Decision
Leonard Ross and Committee To Elect Leo-
nard Ross, FPPC No. 99/204. Leonard Ross
was an unsuccessful candidate for the governing
board of the Inglewood Unified School District in
the April 6, 1999 election. The Committee To
Elect Leonard Ross was his controlled committee.
The commission issued an Accusation alleging
that Respondents failed to timely file two pre-
election campaign statements in violation of Gov-
ernment Code section 84200.8 (two counts), and
failed to timely file three semi-annual campaign
statements, in violation of section 84200 (three
counts). Following a hearing in Los Angeles, Ad-
ministrative Law Judge Eric Sawyer issued a pro-
posed decision finding that Ross committed the
five violations, imposing an administrative penalty
of $5,000, and ordering Ross to file the two semi-
annual campaign statements. The commission
accepted the proposed decision in its entirety.
Concealin!:! True Source of Campaiqn
Contributions
Mid-Valley Engineering, Inc., FPPC No. 99/720.
Mid-Valley Engineering, Inc., a general engineer-
ing firm located in Modesto, made 112 campaign
contributions in the names of its employees. The
contributions were made to Modesto and Oakdale
City Council candidates between 1997 and 1999,
in violation of Government Code sections 84301
and 84300 (112 counts). $185,400 fine.
(Continued on page 5)
Page 5
FPPC Bulletin
January 2003 Volume 29, No.1
(Continued jrom page 4)
CampaiQn ReportinQ Violations
Elizabeth Cabraser, FPPC No. 02/425. Elizabeth
Cabraser, a partner in a San Francisco law firm,
failed to disclose $20,000 in late contributions
made to various California state senatorial candi-
dates in 2000, in violation of section 84203(a)
(three counts); and failed to file a semi-annual
campaign statement, in violation of section 84200
(b) (one count). $4,500 fine (four counts).
Conflict of Interest
Ronald Arnoldsen, FPPC No. 99/640. As a
member of the Grover Beach City Council, Ronald
Arnoldsen participated in and made a governmen-
tal decision concerning the sale of the city's old fire
station property, which was located within 300 feet
of his commercial property, in violation of Govern-
ment Code section 87100 (one count). $1,500 fine.
Civil Litigation
Enforcement Action
The Fair Political Practices Commission
reached a $22,000 civil settlement with the Na-
tional Republican Congressional Committee's
Non-Federal (California) committee and its
treasurer, for failing to disclose $200,000 in late
contributions made in connection with the Nov. 3,
1998, and Nov. 7, 2000, general elections.
The NRCC Non-Federal (California) committee
is sponsored by the Republican members of the
House of Representatives to support Republican
candidates in California elections.
A civil lawsuit was filed by the FPPC in Sacra-
mento Superior Court on Oct. 24, 2002. The final
judgment, based on a stipulation signed by the
FPPC and committee treasurer Donna Anderson,
was approved Dec. 2 by Judge Loren McMaster.
Termination Deadline for
Many State Committees
Was December 31,2002
By Trish Mayer
FPPC Political Reform Consultant
The Fair Political Practices Commission
adopted regulation 18404.1 as part of its imple-
mentation of Proposition 34. This regulation,
among other things, establishes specific time
frames for candidates for elective state office
and elected state officeholders to close their
campaign committees formed for elective office.
The regulation became effective on February 15,
2002.
The December 31, 2002, deadline for termi-
nating campaign committees applies to:
-Former state officeholders who no longer
held a state office as of February 15, 2002.
(Continued on page 6)
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A summary of enforcement cases and
copies of many enforcement
stipulations and civil settlements/orders
are available on our web site,
htto:llwww.fooc.ca.Qov
Just click on "Enforcement" on.ttle blue
sidebar on the home page, and then
click on "Summary of Past Enforcement
Cases A-Z." Or just click here:
htto:/Iwww.fooc.ca.Qovlindex.html?icJ=224
Page 6
FPPC Bulletin
January 2003 Volume 29, No.1
(Continued jrom page 5)
- Defeated state candidates in elections held
prior to February 15, 2002. Exception: candi-
dates defeated in special elections held between
January 1, 2001, and February 15, 2002, have
until February 15, 2004, to terminate if their com-
mittees have net debts outstanding.
- State officeholders (who held office on Feb-
ruary 15, 2002) with pre-2001 election commit-
tees. Exception: an officeholder elected prior to
January 1, 2001, may retain one pre-2001 state
election committee - all other pre-2001 commIt-
tees must be terminated.
- Local committees controlled by a state office-
holder who was elected prior to January 1, 2001.
It is strongly suggested that all former state
candidates and current state officeholders check
the Secretary of State's web site at
http://www.ss.ca.Qov. or call us at toll-free at 1-
866-ASK-FPPC (866-275-3772) to ensure that
your committee(s) show a terminated status.
To terminate a committee, file a Statement of
Organization (Form 410) indicating that the com-
mittee has been terminated, and a termination
Recipient Committee Campaign Statement (Form
460) reflecting zero ending cash. (Regulation
18404.)
A committee may request to delay its termina-
tion for up to six months if it is continuing to re-
ceive contributions or anticipates receiving contri-
butions for the purpose of paying debts, if the
candidate or committee is a party to litigation, or
for other good cause. The request for extension
must be submitted to the Executive Director of the
Fair Political Practices Commission no later than
30 days prior to the due date for the committee's
termination.
State candidates and officeholders should
check the FPPC's web site for the specific lan-
guage of the regulation and the information sheet
titled Committee Termination Requirements for
State Candidates. The information sheet is avail-
able on the web site at
http://www.fppc.ca.qovlpdfITermination.pdf.
Gift Limit Adjusted to $340,
Effective January 1, 2003
Contribution Limits, Voluntary
Expenditure Ceilings Also Change
By Kelly Winsor
FPPC Legal Analyst
The Political Reform Act sets a limit on the
amount of gifts that an official or designated em-
ployee may receive from a single source in a calen-
dar year. The Act further provides that the gift limit
will be adjusted biennially by the Commission to
reflect changes in the Consumer Price Index (CPI).
This process is authorized by Government Code
sections 87103(e) and 89503(f).
Using the September forecast of the annual CPI
for the year 2002 from the Department of Finance,
the gift limit will be adjusted from $320 to $340 ef-
fective January 1,2003 through December 31,
2004.
Proposition 34, passed by the voters in Novem-
ber 2000, created contribution limits and voluntary
expenditure ceilings for state candidates
(Government Code sections 85301,85302,85303
and 85400). Government Code section 83124,
also added by Proposition 34, provides the Com-
mission with the statutory mandate to adjust the
contribution limits and voluntary expenditure ceil-
ings in January of every odd-numbered year to re-
flect any increase or decrease in the Consumer
Price Index (CPI).
In August 2002, the Commission adopted
regulation 18544, which created the formula for the
biennial cost of living adjustment of the contribution
limits and voluntary expenditure ceilings. The for-
mula is similar to the formula used to calculate the
biennial adjustment of the gift limit.
The adjusted contribution limits and volun-
tary expenditure ceilings, in effect for elections tak-
ing place January 1, 2003 through December 31,
2004, are outlined in a new fact sheet, available at
http://www.fPPc.ca.Qovlpdf/460discl3.pdf. and in
the chart on the next page (Page 7).
Page 7
FPPC Bulletin
January 2003 Volume 29, NO.1
(Continued from page 6)
Per election Limits on Contributions to State Candidates
For Elections Occurring Jan. 1, 2003-Dec. 31, 2004*
Contributor Legislature Statewide Elected Of- Governor
ficers
Person $3,200 $5,300 $21,200
Small Contributor $6,400 $10,600 $21,200
Committee
Political Party No Limit No Limit No Limit
Calendar Year Limits on Contributions
For Elections Occurring Jan. 1, 2003-Dec. 31, 2004*
Committee (Not Politi. Political Party for CommitteelPolitical
Contributor cal Party) for State State Candidates Party Not for State
Candidates Candidates
Person $5,300 $26,600 No Limit
Proposition 34 Voluntary Expenditure Limits for Candidates for Elective State Offices
For Elections Occurring Jan. 1, 2003-Dec. 31, 2004*
Office Primary/Special Election General/Special Runoff
Election
Assembly $425,000 $744,000
Senate $637,000 $956,000
Governor $6,374,000 $10,624,000
Lt. Governor, Attorney Gen.
eral, Insurance Commis-
sioner, Controller, Secretary $4,249,000 $6,374,000
of State, Supt. Of Public In-
struction, Treasurer
Board of Equalization $1,062,000 $1,594,000
I'These limits apply also to later elections until they are adjusted again by the Commission.
Page 8
FPPC Bulletin
January 2003 Volume 29, NO.1
Read the FPPC Bulletin
On the Web or Via E-Mail
The newly redesigned FPPC Bulletin is now
offered to readers only via the FPPC web site,
http://www.fPPc.ca.qov. or bye-mail subscrip-
tion.
Printed copies of the Bulletin no longer are
being mailed due to the Commission's increas-
ingly tight budget situation and a plan to concen-
trate staff resources on web-based publications.
Notice of this change was given in the Septem-
ber issue of the Bulletin, which was delivered by
conventional mail as well as electronic means.
While we are now encouraging web access to
the Bulletin, readers also can subscribe to the
FPPC's e-mail Bulletin mailing list by sending an
e-mail request to the Bulletin editor at jmat-
thews@fppc.ca.gov.
Over 420 Californians, representing the public
and all facets of the regulated community, al-
ready have signed up to receive the FPPC Bulle-
tin bye-mail. A number of positive comments
have been received about the new format and
delivery system.
Model Disclosure
Categories
For State Agencies
By Jeanette Turvill
FPPC Political Reform Consultant
At its October meeting, the Fair Political Prac-
tices Commission approved disclosure catego-
ries that can be used by state agencies when
drafting conflict-of-interest codes. The adoption
of the model categories is part of the Commis-
sion's year-long review of various issues related
to the Political Reform Act's conflict-of-interest
provisions.
Agencies often look to the Commission for
assistance in drafting their conflict-of-interest
codes, which define reportable interests required
of agency employees. For example, most agen-
cies require top level officials to disclose all their
financial interests covered by the Act ("full disclo-
sure"). One of the Commission's model catego-
ries addresses full disclosure. Also, almost all
agencies need to create limited disclosure cate-
gories for designated employees with limited de-
cision-making powers.
In addition to the model "full" disclosure cate-
gory, the Commission approved language that
can be used by agencies with regulatory, permit
or licensing authority, agencies that are grant or
service providers, as well as two general con-
tracting disclosure categories that can be used
by virtually every agency.
These categories are not intended to be all
inclusive. The Commission recognizes that
every agency is unique in function and purpose
and may need to reword the model language, or
add additional categories, to capture all conceiv-
able conflicts of interest. The use of these cate-
gories is completely voluntary and is intended to
help ease the burden for agencies developing
language for disclosure categories. The model
disclosure categories will be mailed to all state
agencies as part of the biennial conflict-of-
(Continued on page 9)
Page 9
FPPC Bulletin
January 2003 Volume 29, NO.1
(Continuedjrum page 8)
interest code review in early 2003. If, however,
you are interested in obtaining a copy of the cate-
gories now, please call the Commission at (916)
322-5660 or toll-free at (866) 275-3772.
Please also consult the schedule of FPPC
seminars below.
428 "J" Street, 8th Floor Hearing Room
Sacramento, CA 95814
For State Agency Filing Officers
of Statements of Economic Interests:
FPPC Seminars
. Tuesday, February 4, 2003
10:00 a.m. - noon
428 "J" Street, 8'h Floor Hearing Room
Sacramento, CA 95814
Reservations Required!
. Thursday, February 20, 2003
1 :00 p.m. - 3:00 ~m.
428 "J" Street, 8' Floor Hearing Room
Sacramento, CA 95814
To register for a seminar call the FPPC
at (866) 275-3772 or (916) 322-5660, and
press 3. Seminars are subject to
change or cancellation. Call or check
the FPPC web site,
http://www.fppc.ca.qov. for
updates.
For Multi-County Agency Filing Officers
of Statements of Economic Interests:
Conflict-ot-Interest Code Amendment
Seminars tor State AQencies
. Thursday, February 20, 2003
1 :00 p.m. - 3:00 ~.m.
428 "J" Street, 8' Floor Hearing Room
Sacramento, CA 95814
. Tuesday, February 4, 2003
1 :30 p.m. - 3:30 p.m.
428 "J" Street, 8'h Floor Hearing
Room
Sacramento, CA 95814
For Local Office Candidates
And Treasurers (SprinQ 2003 elec-
tions)
. Wednesday, February 5, 2003
10:00 a.m. - 12:00 noon
428 "J" Street, 8'h Floor Hearing Room
Sacramento, CA 95814
. Napa
Wednesday, January 8, 2003
6:00 p.m. - 8:00 p.m.
Napa City Hall,
955 School Street
Seminars For FilinQ Officers
. Norwalk
Thursday, January 9, 2003
7:00 p.m. - 9:00 p.m.
City Hall Council Chambers
12700 Norwalk Blvd.
For City and County Filing Officers of
Statements of Economic Interests:
.
Pasadena
Tuesday, January 14, 2003
7:00 p.m. - 9:00 p.m.
City Hall Council Chambers, Room 247
100 North Garfield Avenue
. Wednesday, February 19, 2003
1 :00 p.m. - 3:00 ~.m.
428 "J" Street, 8' Floor Hearing Room
Sacramento, CA 95814
. Thursday, February 27, 2003
10:00 a.m. - 12:00 noon
(Also see the Lobbyist seminar schedule
on Page 13)
(ColJtinued in I/e.\f (,U/UIIII/)
Page 10
FPPC Bulletin
Clerk's Corner
Post-Election Statement of
Economic Interest Issues
By Adrianne Korchmaros
FPPC Political Reform Consultant
Now that the election is over and officials,
both elected and appointed, will be leaving or as-
suming office, remember to distribute statements
of economic interests to those making the transi-
tion. Out of sight, out of mind is a maxim that
sometimes seems to apply in terms of getting de-
parting officials to file their leaving office state-
ments. It helps to make sure they get their state-
ment promptly! And, of course, those who are
being sworn in to office must file an assuming of-
fice statement of economic interests. There is an
exception to this rule for state elected officers
and those officials being re-appointed or re-
elected.
Reminder to clerks!
Planning commissioners who are
elected to the office of council member
or county supervisor need not file an as-
suming office statement and leaving of-
fice statement if there has been no break
in service.
Some clerks have asked if it is still appropriate
to use the 2001/2002 statement of economic in-
terests since we are nearing the end of the year.
The answer is, yes, the 2001/2002 statement of
economic interests is still the correct statement to
distribute to those officials who are incoming and
outgoing before the end of the year. The new
2002/2003 statement of economic interests will
be distributed after its approval by our Commis-
sion. We expect to send them to you in the last
week of December or first week of January.
January 2003
Volume 29, No.1
Easy Annual Filing for Those Officials Who
Are Running in a March 2003 Election
Those officials who are running in a March
2003 election may now file a "Form 700 Certifica-
tion" to either certify that their economic interests
have not changed since the filing of the candidate
statement of economic interests, or if changes
have occurred, to simply attach the applicable
schedule to the certificate showing the new inter-
est, rather than filing a whole new annual state-
ment. We are anticipating this will be much eas-
ier for you and for the officials, but please let us
know what you think.
Thanks For Helping Us
Update Our Records!
In the past few weeks you
have received a list of the filers
we have on record as those
whose statements of economic
interests should be forwarded to the FPPC. We
would like to thank you in advance for helping us
keep our records as up to date as possible.
Post-Election Campaign Disclosure
Statement Issues
Unlike in years past, candidates who were de-
feated in the November election and have no
committee need file nothing to close out their
candidacies. Those who have a committee must,
of course, continue to file as long as the commit-
tee stays open. The next statement is the semi-
annual statement due January 31, 2003.
Having a March Election?
On our web site, http://www.fppc.ca.gov. we
have posted a campaign statement filing sched-
ule for those cities with a March 2003 eiection.
Note that, because the semi-annual statement is
due after the first pre-election, you may want to
ask your candidates and committees to file both
statements together on January 23, 2003. This
will save filers the headaches of tallying figures
for 2003 prior to having done the end-of-year
statement for 2002! You can go directly to the fil-
ing schedule at:
http://www.fppc.ca.qov/index.html?id=379
Page 11
FPPC Bulletin
January 2003 Volume 29, No.1
Litigation Report
Pending litigation report presented to the
Commission at its December 13, 2002, meeting,
updated for more recent developments:
California ProLife Council, Inc. v. Karen
Getman et al
This case involves a challenge to the Act's
reporting requirements regarding express ballot
measure advocacy. On October 24, 2000, the
district court dismissed certain counts for stand-
ing and/or failure to state a claim. On January
22, 2002, the court denied a motion for summary
judgment filed by plaintiff, and grante~ the .
FPPC's motion, after concluding that the constI-
tutional case or controversy requirement of ripe-
ness cannot be satisfied." This resolved all
claims in favor of the FPPC. The Court entered
judgment accordingly on January 22, 2002, and
on February 20,2002, plaintiff filed a notice of
appeal with the Ninth Circuit Court of Appeals.
California ProLife Council, Inc. filed its opening
brief on June 10, 2002. The FPPC and the Attor-
ney General filed answering briefs on July 25,
2002, and appellant has since filed its reply. A
hearing before the U.S. Court of Appeals for the
Ninth Circuit is set for February 11,2002.
Danny L. Gamel et al. v. FPPC
In September 2001, the Commission adopted
the proposed decision of an administrative law
judge assessing a penalty of $8,000 against
plaintiffs for making campaign contributions in
violation of ~~ 84300 - 84302. Plaintiffs con-
tested this decision by writ of mandate in the
Fresno County Superior Court. On March 21,
2002, the court upheld the Commission's deter-
mination that Dan Gamel and Rudy Olmos vio-
lated the Act, but vacated the finding against
Gamel Inc. Penalties assessed against Dan
Gamel were affirmed, but the court remanded
the case to the Commission for reconsideration
of the penalty assessed against Mr. Olmos. .
Piaintiffs filed a notice of appeal of the superior
court's decision regarding the fines assessed
against Mr. Gamel and the findings against Mr.
Olmos. The matter has been briefed by the par-
ties and is now awaiting a decision by the court
of appeal.
Levine et al. v. FPPC
On January 22, 2002, four publishers of "slate
mail" - Larry Levine, Tom Kaptain, Scott Hart
and the California Republican Assembly - filed
suit in federal district court alleging that the Act's
slate mail identification and disclosure require-
ments (~~ 84305.5 and 84305.6) violate their
constitutional rights. The first of these statutes
contains identification and disclaimer provisions
in effect prior to enactment of Proposition 208,
while ~ 84305.6 was introduced by Proposition
34. The status conference originally scheduled
for April 29 was continued to June 10, 2002, to
coincide with the hearing on plaintiffs' motion for
preliminary injunction before Judge Lawrence K.
Karlton, and both matters were continued again
to July 29, 2002. At that hearing, the court de-
clined to hold a status conference on the ground
that its ruling on the preliminary injunction might
affect pretrial scheduling. On September 25,
2002, the court entered a preliminary injunction
barring FPPC enforcement of the challenged
statutes against three of the four plaintiffs. The
Commission decided not to appeal the prelimi-
nary injunction. The court has not yet issued a
Scheduling Order or set a further status confer-
ence, which would establish a trial date and
time lines for pretrial proceedings.
FPPC v. Californians Against Corruption et al
This case is now pending before the Third
District Court of Appeal. The case stems from
the FPPC's 1995 administrative prosecution of a
recall committee that failed to properly itemize its
contributors, in violation of section 84211 of the
Political Reform Act. In November 1995, the
FPPC issued a default decision and order
against the defendants, imposing an administra-
(Continued on page J 2)
Page 12
FPPC Bulletin
January 2003 Volume 29, No.1
(Continuedjrompage J J)
tive penalty of $808,000. In January 1996, the
FPPC filed a collection action in the Sacramento
Superior Court to reduce the penalty to a civil
judgment. The defendants responded by filing a
cross-com pi ainU petition for writ of mandate in the
superior court, contesting the default decision. In
July 2000, the superior court dismissed the defen-
dants' cross-complainUpetition for writ of mandate
for failure to prosecute. In March 2001, the supe-
rior court granted the FPPC's motion for summary
judgment in the collection action, and ordered de-
fendants to pay the $808,000 penalty plus inter-
est. The defendants then filed this appeal in April
2001 and filed their opening brief in October
2001. The FPPC filed its response brief in April,
and defendants timely filed their reply. The court
requested supplemental briefing, which also has
been completed. No date has yet been set for the
hearing.
Peninsula Health Care District v. FPPC
This case challenges the Commission's recent
Opinion, In re Hanko, 0-02-088, adopted on Au-
gust 9, 2002. In its opinion the Commission con-
cluded that a customer of Ms. Hanko's employer
could be a disqualifying source of income under
certain circumstances, even though the customer
dealt with Ms. Hanko's employer through an inter-
mediary. A petition for writ of mandate was filed in
the First District Court of Appeal on or about No-
vember 1, 2002. A week later, the court of appeal
denied the writ without prejudice to re-filing in an
appropriate superior court. On November 15,
2002, plaintiff filed a new petition in the Sacra-
mento County Superior Court. A hearing is set for
January 31, 2003, but the FPPC has requested a
continuance to February 7, 2003.
Larry R. Danielsen v. FPPC and Office of
Administrative Hearings
This is a Petition for Writ of Mandate filed No-
vember 7,2002, in the Sacramento County
Superior Court, directed to the proposed decision
of an administrative law judge which has not yet
come before the Commission. The FPPC filed a
preliminary opposition to the petition on Novem-
ber 12, 2002, asserting that Danielsen had failed
to exhaust his administrative remedies, since the
Commission has not yet adopted, modified or re-
jected the proposed decision of the administrative
law judge, rendering the petition premature. The
Commission was to consider the proposed deci-
sion at its December meeting. The court has not
yet ruled on the writ petition.
The Governor Gray Davis Committee v. Ameri-
can Taxpayers Alliance
Plaintiff in this action sought injunctive relief
relating to a television ad campaign, funded by
defendant in June, 2001, which was critical of the
Governor. In the lower court plaintiff successfully
argued that the advertisement was express cam-
paign advocacy, and that defendant therefore had
reporting obligations as an independent expendi-
ture committee under the Act. The lower court's
decision was reversed on September 25, 2002,
by the First District Court of Appeal. The appellate
court rejected characterization of the advertise-
ment as "express advocacy," and stressed its dis-
agreement with an earlier federal decision in FEe
v. Furgatch (9th Cir. 1987). This decision sug-
gested that there are now two different standards
for defining express advocacy, depending on
whether the question is presented to a state or to
a federal court. Plaintiff petitioned for review by
the California Supreme Court. The FPPC and the
Attorney General filed Amicus Letters with the Su-
preme Court supporting plaintiff's petition for re-
view. The City of Los Angeles and the City of San
Diego joined in a separate letter requesting that
the Supreme Court order de-publication of the
Court of Appeal's decision. The Supreme Court
denied the petition for review and request for
depublication on December 11, 2002.
FPPC v. Agua Caliente Band of Cahuilla Indi.
ans, et al
The FPPC alleges in this action that the Agua
Caliente Band of Cahuilla Indians contributed
more than $7.5 million to California candidates
and ballot measure campaigns between January
1 and December 31, 1998, but did not timely file
major donor reports disclosing those contribu-
tions. The suit also alleges that the Agua Caliente
Band failed to timely disclose more than $1 mil-
(Continued on page 13)
Page 13
FPPC Bulletin
January 2003 Volume 29, No.1
(Continuedframpage 12)
lion in late contributions made between July 1,
1998 and June 30, 2002. The FPPC has recently
filed an amended complaint to add a cause of
action alleging that the tribe failed to disclose a
$125,000 contribution to the Proposition 51 cam-
paign on the November 5, 2002 ballot. The Agua
Caliente Band has filed a Motion to Quash Ser-
vice for Lack of Personal Jurisdiction, alleging
that it is not required to comply with the Political
Reform Act because of its tribal sovereign immu-
nity. A hearing on that motion is currently set for
January 8, 2003.
Web Site
Update
The Fair Political
Practices Commis-
sion has made all of
its formal opinions available on the Commis-
sion's web site, http://www.fpPc.ca.qov. To go
directly to the opinions. use or click this web ad-
dress:
http://www.fpPc.ca.qovlindex.htm/?id=297
The Commission's formal opinions typically
involve matters of significant public interest and
substantial questions of interpretation of the Po-
litical reform act. The procedure for requesting
and issuing formal opinion is detailed in FPPC
Regulations 18320-18326. You can read the
regulations on the web at:
http://www.fppc.ca.r:lov/index.htm/?id=52
Web Site Navigation Improved
FPPC staff members are improving and sim-
plifying the navigation steps needed to access
the many documents and publications available
on our web site. For example, we have reduced
the number of initial links on the left side of the
home page. This should make it easier and
faster for users of the site to access a subject
area of interest. Further changes are planned
and, as always, we welcome your feedback.
Lobbyist Ethics Courses
Continuing
The Assembly Legislative Ethics Committee and
the Senate Committee on Legislative Ethics are
conducting a new round of lobbyists' ethics courses
in Sacramento and Los Angeles. There are several
remaining dates scheduled.
Remaining Ethics Course Date$
Sacramento Convention Center
Thurs., Jan 16,2003,1:30-3:30 p.m. (full)
Friday, Feb. 7, 2003,1:30-3:3.0 p.m.
Thurs., Apr. 24,2003,1':30-3:30 p.m.
In Los AnQeles
Thurs.,May 15, 2003, 1:30-3:30p;m.
Government Code section 86103 requires lob-
byists to complete this course as a condition of reg-
istration to lobby in the State of California. Any
registered lobbyist (new or renewing) who has not
completed his or her ethics course requirement for
the 2003-2004 legislative session should attend
one of these courses.
Any lobbyist who does not complete his or her
ethics course requirement and fails to comply with
the related filing deadlines is prohibited from acting
as a lobbyist in California and may be subject to
criminal penalties and substantial fines.
Contact Jeanie Myers at the Senate Committee
on Legislative Ethics at (916) 324-6929 for further
information.
Please note: The ethics committees make every
effort to provide notice of ethics course dates using
information lobbyists submit to the Secretary of
State's Political Reform Division. However, it is the
responsibilitv of each lobbyist to obtain course in-
formation. to sian UP for and attend one of these
courses. as required.
As space is limited at each course, a completed
sign-up form and the $25 course fee must be re-
ceived five days in advance of the course. Spaces
are filled in the order that sign-up forms are re-
ceived in the ethics committee office. You will be
contacted if the course date you sign up for is
full.
Page 14
FPPC Bulletin
January 2003 Volume 29, No.1
Legislative
Update
The legislature adjourned on August 31,
2002, for its final recess. Governor Davis signed
the bills listed below, which will take effect,
unless otherwise noted, January 1, 2003. The
Legislature convened on December 2, 2002, for
the beginning of the 2003-2004 legislative ses-
sion. A special session on budget issues, called
by Governor Davis, convened December 9,
2002.
Legislation Taking Effect January 1, 2003
SB 2095 (Johnson) Chapter 511, Statutes of
2002, requires the Secretary of State to provide
on its website independent expenditures linked
to the candidate or ballot measure that is the
subject of the independent expenditure. The bill
also includes amendments requested by the
FPPC which add legislative intent that filers be
provided with a separate field in order to input
the legislative district number or the number or
letter of a statewide ballot measure.
AB 1797 (Harman) Chapter 233, Statutes of
2002, requires public office holders specified in
Section 87200, who have identified a financial
interest in a decision to: (a) publicly state the na-
ture of the conflict, excepting the disclosure of an
exact street address of a residence; (b) recuse
himself or herself; (c) leave the room until the
matter is concluded unless the matter is on the
consent calendar. The bill has been amended to
include an exception that permits an officeholder
with a conflict of interest to speak on the issue
during the time reserved for the general public.
AB 3032 (Committee) Chapter 663, Statutes
of 2002, expands ethics training requirements to
include all employees of a state agency who are
required to file statements of economic interest.
It would require employees to take the orienta-
tion once every 2 years.
SB 584 (Committee) Chapter 172, Statutes of
2002, eliminates the requirement that SEI filers
disclose loans from commercial lending institu-
tions made during the normal course of business.
SB 1620 (Knight) Chapter 264, Statutes of
2002, would require appointees to newly created
state and local boards and commissions to pro-
vide full SEI disclosure.
AB 2366 (Dickerson) Chapter 654, Statutes of
2002, provides that in jurisdictions with popula-
tions of 10,000 or less and counties with 350 or
fewer retail businesses, retail sales income from a
customer representing up to 1 % of revenues
would not be considered a disqualifying financial
interest if the customers of the business constitute
a significant segment (10%) of the public gener-
ally.
SB 1741 (Johnson) Chapter 211, Statutes of
2002, requires late contribution reports to indicate
whether the contribution was a loan.
SB 1742 (Johnson) Chapter 212, Statutes of
2002, prohibits a candidate from returning to him-
self or herself contributions made by the candidate
to his or her own campaign or controlled commit-
tee.
AB 2082 (Longville) Chapter 237, Statutes of
2002, would allow any elector of a county or mu-
nicipality to seek a writ of mandate requiring that a
ballot summary or title be amended.
SB 879 (Brulte) Chapter 499, Statutes of 2002,
would extend the deadline for submittal of the final
report of the California Bipartisan Committee on
Internet Political Practices to December 31,2003
and extends the Commission's Sunset date to
January 1, 2004. This bill was an urgency statute
and became effective when chaptered on Septem-
ber 12, 2002.
Legislative Priorities Discussed
A staff memorandum on proposed 2003 Commis-
sion legislative priorities, presented to the Com-
mission on December 13, 2002, can be viewed
on the FPPC web site at:
Itttf)://wwn'.fOf)('. ca.f!ov/Af!endas/DecemheI'02/lef!Re/J./Jdf
Page 15
FPPC Bulletin
January 2003 Volume 29, No.1
FPPC Advice Summaries
Formal. written advice provided pursuant to
Government Code. section 83114 subdivision (b)
does not constitute an opinion of the. Commission
issued pursuant to Government Code section
83114 subdivision (a) nor a declaration of policy
by the Commission. Formal written advice is the
application of the law to a particular set of facts
provided by the requestor. While this advice may
provide guidance to others, the immunity provided
by Government Code section 83114 subdivision
(b) is limited to the requestor and to the specific
facts contained in the formal written advice. (Cal.
COdlf~lfg~., tit. 2, ~18329, subd. (b)(7).)
1.llfo~mal~s~istance may be provided to per-
sons whose duties lJAder the act ~rlf .in .\juestion.
(Cal.QodeRegs., tit. 2, ~18329, sl.lbd. (c).) In
general, informal. ilssi~tcmce,. rather than for-
mal written advice is pro\lidedwhenthe requestor
has questions concerning his or her duties, but no
specific government decision is pending. (See
Cal. Code Regs., tit. 2, ~18329, .subd. (b)(8)(D).)
Formal advice is identified by the file number
beginning with an "A," while informal assistance is
identified by the letter "I."
Campaign
C. April Boling, CPA
San Diego Police Officers Association
Dated: October 3,2002
File Number: A-02-118
A union need not transfer funds collected from
members by payroll deduction to a separate
checking account.
Marcie Burgess
Anaheim Police Officers PAC
Dated: October 16, 2002
File Number: A-02-250
Volunteer precinct walking by board members or
regular members of a PAC does not, by itself,
constitute "coordination" with a candidate which
would render independent expenditures made by
the PAC on behalf of endorsed candidates contri-
butions. But PAC members who wish to walk pre-
cincts for an endorsed candidate should be cau-
tioned not to have any discussions about the PAC's
plans for independent expenditures with the candi-
date or campaign staff.
Diane M. Fishburn
Office of Insurance Commissioner
Dated: October 8,2002
File Number: A-02-257
A candidate for statewide office in the November 5,
2002, election is not subject to the contribution lim-
its imposed by Government Code ~~ 85301 and
85302 to pay net debts of the committee in connec-
tion with that election. The candidate may accept
post-election contributions in excess of the limits
imposed by ~~ 85301 and 85302 for the payment
of those debts, and if the debts consisted of loans
made to the committee prior to the eiection, the
loans could also be forgiven in amounts in excess
of those limits. The Commission has not yet de-
cided whether a candidate for statewide elective
office in the November 5, 2002, election, may con-
tinue to accept contributions in excess of the limits
imposed by ~~ 85301 and 85302 after his or her
election-related debts have been repaid.
David Bauer
Irvine Homeowners Association
Dated: October 4, 2002
File Number: A-02-259
Other than major donor filing requirements, the Act
does not impose additional filing obligations on a
person who contributes to a committee that re-
ceives contributions for the purpose of making in-
dependent expenditures and which has identified
several candidates who will be the targets of the
independent expenditures. Under section 85501, a
candidate's controlled committee may not make
contributions to a committee that is set up to make
independent expenditures supporting or opposing
candidates.
Diane M. Fishburn
Office of Treasurer
Dated: October 25, 2002
File Number: A-02-271
This letter discusses the use of funds held by a
statewide candidate on November 6, 2002, for fu-
(Conlin/led on page /6j
Page 16
FPPC Bulletin
January 2003 Volume 29, No.1
(Continued from page J 5)
ture elections, pursuant to section 85306(c) of the
Act. Among other things, the letter concludes that
the 2002 committee of a statewide candidate may
transfer funds held by the committee on November
6, 2002, after that date to a committee that the can-
didate may form for a different statewide office in
the 2006 election.
Chris Everman
SacCity On-Line Campaign Filing
Dated: September 27,2002
Our File Number: 1-02-012
On campaign reports, controlled committees must
itemize payments made by officeholders for civic
donations and contributions at the threshold of
$100, under section 84211 (k).
Thomas W. Hiltachk
California Republican Party
Dated: September 20, 2002
Our File Number: A-02-233
Regulation 18531.7 was withdrawn by the Commis-
sion pending reconsideration of the regulation at its
October 2002 meeting. Any revisions which may oc-
cur at the October meeting would not alter the Com-
mission's prior determination that the regulation
does not govern conduct by the California Republi-
can Party.
Aldo Giacchino
City of Santa Cruz
Dated: September 27, 2002
Our File Number: A-02-235
Payments for legal expenses incurred by a candi-
date in an effort to challenge whether or not his op-
ponents' names should appear on the ballot are
campaign "expenditures." As such, they must be
paid for from campaign funds and reported on the
candidate's campaign statements.
C. April Boling, CPA
San Diego County Republican Central
Committee
Dated: September 26, 2002
Our File Number: A-02-262
Payments by a political party committee, that other-
wise may constitute "member communications,"
nonetheless trigger a pre-election filing requirement.
Pursuant to section 85312, political party commit-
tees' reporting obligations with respect to "member
communications" are the same as they were before
the voters adopted Proposition 34 and section
85312.
Leslie Cook, CMC
City of Santa Cruz
Dated: August 6, 2002
File Number: 1-02-061
A request that the Commission review the cam-
paign ordinance for the City of Santa Cruz to en-
sure that the ordinance does not conflict with the
Political Reform Act is addressed in this letter.
Diane Fishburn
CalPERS
Dated: August 22, 2002
File Number: 1-02-196
This letter addresses when an election cycle com-
mences for CalPERS elections and the filing obli-
gations belonging to primarily formed committees
for a CalPERS board election.
Laurence S. Zakson
Laborers International Union of North America,
Local 300
Dated: July 9, 2002
Our File Number: A-01-195
A labor union which qualifies as a committee is re-
quired to report all payments including those made
for the purpose of communicating with the organi-
zation's members.
Jeff Koontz, Executive Director
Diamond Bar Chamber of Commerce
Dated: July 17, 2002
Our File Number: 1-02-149
A cable television program that is produced by the
chamber of commerce and co-hosted by a city
council member is neither an independent expendi-
ture nor a contribution. However, the analysis
would change if the program contained express ad-
vocacy, references to the city council member's
candidacy for elective office or the city council
member's opponents for elective office or solicited
contributions.
John A. Ramirez
Lou Lopez for Supervisor
Dated: July 26, 2002
Our File Number: A-02-167
Assuming the transfer is lawful under local law, the
(Continued on page J 7)
Page 17
FPPC Bulletin
January 2003 Volume 29, No.1
(Continuedfrompage 16)
Act permits campaign funds from an individual's
city council committee to be transferred to his su-
pervisoral committee and used to repay a per-
sonalloan.
Mark Anthony Dierolf
Monterey County
Dated: July 17, 2002
Our File Number: A-02-175
A general purpose ballot measure committee is
not prohibited from forming under the Political Re-
form Act and may be controlled by a candidate or
officeholder as long as the committee does not
make payments supporting or opposing candi-
dates, including the controlling candidate.
Cynthia A. Trujillo, CMC
City of San Gabriel
Dated: July 11, 2002
Our File Number: 1-02-177
The combination of the semi-annual and first pre-
election campaign filing deadlines in connection
with the City of San Gabriel's August 27 ballot
measure election is discussed.
Andrea Leiderman
Friends of Andrea Leiderman
Dated: July 25, 2002
Our File Number: A-02-181
A local candidate may redesignate an existing
committee only for future election to the same of-
fice. Surplus campaign funds may not be used
for expenses associated with either running for or
holding future office.
Gabriel A. Godinez, City Clerk
City of Arvin
Dated: July 24, 2002
Our File Number: 1-02-186
The combination of the second pre-election and
semi-annual campaign statements in connection
with the city's August 13 special mayoral election
is addressed.
Cheryl I. Butler
Court of Appeal
Dated: July 29, 2002
Our File Number: 1-02-187
Candidates for appellate court justice are not re-
quired to file a statement of economic interests.
Successful incumbent candidates must continue to
file annually.
Elliott Cohen
City of Berkeley
Dated: July 29, 2002
Our File Number: 1-02-191
This letter discusses the statements that must be
filed when an individual quaiifies as a candidate un-
der section 82007.
Conflict of Interest
Rory Jaffe, M.D.
U.C. Davis
Dated: October 31, 2002
File Number: 1-02-154
The conflict of interest provisions of the Act do not
apply to a doctor's decisions with respect to a spe-
cific patient's course of treatment.
Michael F. Harris
Dept. of Fish & Game
Dated: October 18, 2002
File Number: A-02-239
An agency is advised on the issues surrounding
the hiring of an outside "consultant" to assist the
agency in the formation of a Request for Proposal
for an automated data system. The letter con-
cludes that the outside contractor would not be a
"consultant" for purposes of the conflicts provisions
of the Act.
Robert Ovrom
City of Burbank
Dated: October 3, 2002
File Number: A-02-254
A public official cannot participate in a governmen-
tal decision that has a personal financial effect on
the official or a member of his or her immediate
family. However, if the family member who will be
affected financially by the decision is an adult child,
as in this case, no conflict of interest exists for the
public official.
The Honorable George C. Runner, Jr.
California Assembly
Dated: October 4,2002
File Number: 1-02-267
The Assembly member asked about the duties of
(Continued on page J 8)
Page 18
FPPC Bulletin
(Continuedframpage 17)
an individual who was a candidate for a local hos-
pital district and possibility that the individual
would have conflicts of interest were he to be
elected. Commission staff declined to advise the
Assembly member regarding another's duties un-
der the Act. However, a general discussion of the
conflict-of-interest rules of the Act was provided.
Jean B. Savaree
City of Belmont
Dated: October 29, 2002
File Number: A-02-268
A public official does not have a conflict of interest
concerning a park renovation located 550 feet
from his personal residence as long as it is not
reasonably foreseeable that the decision will have
a material financial effect on his residential prop-
erty.
Heather McLaughlin
City of Benicia
Dated: September 6,2002
Our File Number: A-02-045
The members of the Benicia City Council and the
city manager, who have real property interests
within 500 feet of the boundaries of a storm drain
project area, are advised that those interests are
indirectly involved in project decisions. The project
qualifies under regulation 18704.2(a)(5) as a
"repair, replacement, or maintenance of streets,
water, sewer, storm drainage or other facilities"
and the public officials' economic interests in real
property are thereby deemed indirectly involved in
the project decisions. It is presumed that project
decisions will have no material financial effect on
indirectly involved real property interests.
Marguerite P. Battersby
City of Highland
Dated: September 25, 2002
Our File Number: A-02-216
A commissioner does not have a conflict of inter-
est provided he does not have an economic inter-
est in his adult son.
Orry P. Korb, Town Attorney
Town of Los Gatos
Dated: September 20, 2002
Our File Number: 1-02-224
A public official does not have a conflict of interest
on a permit application regarding the location of a
January 2003
Volume 29, NO.1
wireless communication facility, as long as the
wireless communication company does not have a
reasonably foreseeable material financial effect on
the public official's business or its clients.
Milan Petrovich, Vice Mayor
Brentwood City Council
Dated: September 19, 2002
Our File Number: A-02-225
A city council member with ownership interest in a
commercial office building located within a project
study area has a conflict of interest prohibiting his
voting to approve or disapprove siting of a new
city parking structure within this study area. He
may not vote on competing site locations unless
the decision on siting the structure within the first
area has been previously segregated and made
without his participation. He may participate in
subsequent siting decisions as long as they do not
re-generate the decision from which he is disquali-
fied.
Brien J. Farrell
City of Santa Rosa
Dated: September 30, 2002
Our File Number: 1-02-227
A mayor who is also a paid executive director of a
non-profit organization does not have a conflict of
interest barring his participation in decisions hav-
ing a material financial effect on members of the
organization since those members do not control
the personnel and other decisions of the organiza-
tion. Although a nexus might exist between the
mayor's decisions in public office and the purpose
of his private employment, since the governmental
decisions will have no material financial effect on
his private employer, regulation 18705.5 applies
and the mayor will not have a disqualifying conflict
of interest. The "nexus test" applies to a public of-
ficial who is also a high-level private employee
with direct influence or control over his or her em-
ployer's management or policy decisions. The
"nexus test" does not ordinarily apply to mid-level
employees.
Heather C. McLaughlin
City of Benicia
Dated: September 16, 2002
Our File Number: A-02-231
A council member may participate in decisions re-
garding the use of in-lieu fees to upgrade a park-
(Continued un page 19)
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FPPC Bulletin
January 2003 Volume 29, No.1
(ContinuedFompage 18)
ing lot within 500 feet of his real property where
the decisions concerning the upgrade to the park-
ing lot are legally limited to the area of the lot be-
yond 500 feet of the council member's property,
and these decisions are not interrelated to any de-
cisions affecting any sites within 500 feet of the
council member's property.
Linda L. Daube
City of Pitts burg
Dated: September 25, 2002
Our File Number: A-02-232
The letter addresses whether shares of stock in a
corporation held by two planning commissioners
give rise to a conflict of interest for the planning
commissioners with respect to decisions on two
projects.
Clothilde V. Hewlett
Department of General Services
Dated: September 25, 2002
Our File Number: 1-02-234
The Department of General Services requested
advice regarding their contractor/consultant whose
scope of work included providing technical/
professional advice to the state in selecting and
developing a site for a state building (the new
courthouse for the Fifth District Court of Appeal in
Fresno). The consultant was hired as the engi-
neer/architect for the new building. The developer
of the site chosen also hired this consultant to pro-
vide engineering/architectural services for their
half of the same site. This created a potential
conflict of interest. The consultant's income from
the developer may require him to be disqualified
from making, participating in making or influencing
a governmental decision by providing technical
and professional advice to the State in developing
the site. Since the request included past conduct,
only general conflict-of-interest advice was pro-
vided.
Heather Mc Laughlin
City of Benicia
Dated: September 17, 2002
Our File Number: 1-02-236
The letter provides follow-up advice on behalf of
two council members regarding council decisions
pertaining to the use of two city lots. One council
member owned property within 500 feet of one of
the lots, and the other council member owned
property within 500 feet of the second lot. Since
the two lot decisions were inextricably related, the
decisions could not be segmented and both coun-
cil members were disqualified as to both deci-
sions.
Clare M. Gibson
City of Larkspur
Dated: September 4, 2002
Our File Number: A-02-237
Rental of a business office on a month-to-month
basis does not constitute an interest in real prop-
erty. However, decisions that may affect personal
finances by $250 or more in a 12-month period
(such as rent) would create a conflict of interest.
Ron Rogers
Imperial Beach City Council
Dated: September 16, 2002
Our File Number: 1-02-238
Pursuant to regulation 18705.2(b), the financial
effect on the individual source of income's real
property is presumed not to be material, absent
specific circumstances. This would be the case
irrespective of the proximity of the source's prop-
erty to the project site.
Harry A. Knapp, Mayor
City of South Pasadena
Dated: September 20, 2002
Our File Number: A-02-240
A member of the planning commission may make
presentations before the design review board on
behalf of clients of her architectural business. She
may not, however, purport to be a member of the
planning commission while making those presen-
tations. Additionally, the planning commissioner
may respond to necessary contact with agency
staff concerning the processing or evaluation of
drawings.
Anthony J. Portantino
La Caiiada/Flintridge
Dated: September 20, 2002
Our File Number: A-02-242
A council member is advised that decisions on a
property subdivision when that property is located
1,555 feet from the council member's residence,
are presumed not to have a material financial ef-
fect on the council member's residence. The pres-
ence of special circumstances relating to the deci-
(Continued on page 20)
Page 20
FPPC Bulletin
January 2003 Volume 29, NO.1
(Continuedfrompage /9)
sion that affects the neighborhood in which his resi-
dence is located is a factual question, as is the de-
lineation of his neighborhood, that varies according
to the circumstances. There is no uniform rule de-
fining a specific geographic area as "the neighbor-
hood" for purposes of determining a decision's ef-
fect upon characteristics of the neighborhood in
which is located a public official's real property in-
terest.
Milan Petrovich, Vice Mayor
City of Brentwood
Dated: September 25, 2002
Our File Number: 1-02-245
A public official owns a restaurant that serves the
public and offers catering as well. He is prohibited
from voting in any governmental decision that will
have a direct or indirect material financial effect on
any of his sources of income. Since he owns 50
percent of the business, any source of income to
the business in the 12-month period before a gov-
ernmental decision of which his pro rata share is
worth $500 or more is a potentially disqualifying
economic interest.
Michael R. Jones
City of Chico
Dated: September 25, 2002
Our File Number: 1-02-256
Conflicts of interests under the Act are based on
financial effects. Thus, so long as a park commis-
sioner does not make, participate in making, or in-
fluence a decision in which he has an economic in-
terest, the commissioner will not have a conflict of
interest. This is true even where the commissioner
provides volunteer services to the parks depart-
ment.
John F. Petrini
City of Bakersfield
Dated: September 27,2002
Our File Number: A-02-263
The Bakersfield mayor does not have a conflict of
interest preventing him from presenting his solely
owned company's rate change application to the
city council for approval. Under regulation 18702.4
(b)(1), a public official is not "influencing" a govern-
mental decision when he or she appears before the
agency as a member of the general public to repre-
sent himself or herself on matters related solely to
the official's personal interests, including an inter-
est in a business wholly owned by the official or
members of his or her immediate family. The
mayor may not invoke the "legally required partici-
pation" exception to cast a tie-breaking vote on the
city council's consideration of the rate change ap-
plication. The same holds true even should the ap-
plication be presented by a company employee
other than the mayor.
Claire M. Sylvia
SF Board of Education
Dated: August 27,2002
Our File Number: 1-02-176
The terms "salary, per diem or reimbursement for
expenses" in regulation 18232, which interprets
and applies the "government salary exception" to
the definition of "income" at ~ 82030(b)(2), are suf-
ficiently broad to include various collective bargain-
ing provisions in a school district's agreement with
the teachers' union.
Larry Broedow
State Allocation Board
Dated: August 29, 2002
Our File Number: 1-02-206
An individual who becomes employed at an As-
sembly member's field office must disqualify him-
self from participating in decisions affecting any
source of income. Additionally, the individual can-
not use his position with the Assembly member to
influence any decision before any other govern-
mental agency if the decision will affect a source of
income.
Steven T. Mattas
City of Milpitas
Dated: August 22,2002
File Number: A-02-076
Based on the analysis of factors described in regu-
lation 18706(b), it is not reasonably foreseeable
that a planning commissioner's economic interests
will be materially affected by a decision on a hous-
ing element.
Marguerite P. Battersby
City of Adelanto
Dated: August 12, 2002
File Number: 1-02-141
A city attorney was advised that since Govt. Code
~ 995 entitles the mayor to a defense in a civil ac-
tion over his on-the-job decisions at public ex-
(Continued on page 2 J)
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FPPC Bulletin
January 2003 Volume 29, No.1
(Continuedfrom page 20)
pense, the mayor has no economic interest in his
personal finances at stake, and may vote on
those decisions concerning litigation against the
city or himself, in his official capacity. Regulation
18702.4 permits the mayor to be involved in the
city's decision whether to retain separate counsel
for his defense, since this decision is considered
a decision relating to the terms or conditions of
his employment. Plaintiff city council members do
not fall under Govt. Code 9 995 and thus, their
personal finances may be affected by govern-
mental decisions concerning this litigation, and
they have a disqualifying conflict of interest.
Heather C. McLaughlin
City of Benicia
Dated: August 7, 2002
File Number: A-02-132
The officials have a conflict of interest with re-
spect to both the sale of the lot beyond the 500-
foot boundary as well as the construction of the
affordable housing units within the 500-foot
boundary if the decisions are interlinked. If the
decisions may be segregated, one of the officials
can participate in the decisions.
George Fuller
Teachers Association of West Covina
Dated: August 20, 2002
File Number: 1-02-189
General advice is provided concerning what con-
stitutes a gift and details are given describing the
disclosure requirements for a gift. This advice let-
ter also gives a general conflict-of-interest analy-
sis concerning gifts, as well as a segmentation
overview.
Shahir Haddad
Department of Toxic Substances Control
Dated: August 28, 2002
File Number: 1-02-199
A general discussion of conflict-of-interest laws as
applied to an engineer for the Department of
Toxic Substances Control who wants to obtain
part-time consulting employment in addition to his
present employment.
Lee Yarborough
Transportation Agency of Monterey County
Dated: August 13, 2002
File Number: G-02-212
No advice provided on incompatible offices. Gen-
eral assistance regarding conflicts of interest.
Howard Laks, AlA
City of Santa Monica
Dated: August 16, 2002
File Number: A-02-215
A member of the Santa Monica Architectural Re-
view Board was advised that he may appear be-
fore the city planning commission in his private
capacity, to present an appeal of an ARB ruling
against his client's development proposal. The
planning commission is not the same agency as,
or under the budgetary authority of the ARB. In
this presentation, the official must not represent
himself as speaking in his official capacity.
Frederick G. Soley, City Attorney
Vallejo City Council
Dated: July 3, 2002
Our File Number: A-01-306
The members of the council may participate in
decisions regarding the residential rental inspec-
tion program if their real property interests will not
be affected in a manner different from the public
generally.
David R. Hunt
City of Pismo Beach
Dated: July 10, 2002
Our File Number: A-02-073
The concerns of three different public officials re-
garding participation in the adoption of a specific
plan and their possible conflicts of interest are ad-
dressed in this letter. Each public official was
found to have a disqualifying conflict of interest.
Kathryn E. Donovan
Office of the Treasurer
Dated: May 1, 2002
Our File Number: A-02-078
With respect to a blind trust established by the
State Treasurer, the treasurer may not prescribe
in the trust instrument certain categories of assets
to which the trustee would be limited in investing
the assets of the trust, even with the trustee given
(Continued on page 22)
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FPPC Bulletin
January 2003 Volume 29, NO.1
(Continuedfrom page 21)
complete discretion within the parameters of the
various categories, because regulation 18235
provides that the trustee is to have complete dis-
cretion in managing the trust. If the filer pre-
scribes the categories of assets in which the trus-
tee may invest, it would infringe on the trustee's
discretion, and would begin to erode the separa-
tion between the trustee and the public official
that is critical to the concept of the blind trust as a
vehicle for removing obstacles to investments by
public officials. Other issues related to blind
trusts are considered and regulation 18235 is
construed.
Diane L. Dillon
Napa County Board of Supervisors
Dated: July 16, 2002
Our File Number: 1-02-082
The letter addresses identification of the eco-
nomic interests of a public official, including those
based on the official's partnership in a law firm.
Leslie E. Murad, II
Redlands City Council
Dated: July 22, 2002
Our File Number: 1-02-100
A council member is advised that since her own-
ership interest as a partner in her employer's ac-
counting firm is less than 10 percent, clients of
the accounting firm are sources of income to her
and are not among her economic interests under
the Act. Thus, she may vote on city council deci-
sions concerning clients served by the accounting
firm.
Dawn C. Honeywell
City of Irwindale
Dated: July 24, 2002
Our File Number: 1-02-101
The city attorney is advised that conflict-of-
interest provisions of the Act do not bar a public
official, when acting in a private capacity, from re-
taining a general contractor who also performs
work for the city. Public officials may also apply
for benefits under publicly funded housing pro-
grams, but may not subsequently make, partici-
pate in making or influence any governmental de-
cisions concerning their application. A city coun-
cil member receiving these benefits may vote on
changes to the housing benefits program, pro-
vided that the program changes cannot be rea-
sonably foreseen as affecting his or her personal
finances by $250 or more over a 12-month pe-
riod, unless the "public generally" exception ap-
plies.
Julie Hayward Biggs
City of Goleta
Dated: July 10, 2002
Our File Number: A-02-102
A discussion of regulation 18707.1 and the appli-
cation of the "public generally" exception. The
"public generally" exception likely would apply
where the public official's primary residence will
be affected in substantially the same manner as
all those property owners near the site in ques-
tion. The public official must make this determi-
nation, since the Commission does not act as a
finder of fact.
John E. Brown
City of San Jacinto
Dated: July 19, 2002
Our File Number: A-02-103
The "public generally" exception will not apply in a
conflict-of-interest decision before the vice mayor
because one or more of his economic interests
will experience a unique financial effect as a re-
sult of the decision.
Victoria Pointer, Mayor Pro Tem
City of Buellton
Dated: July 16, 2002
Our File Number: A-02-128
Members on a city council inquire as to their par-
ticipation in a vote affecting real property beyond
500 feet from their homes. Because it was un-
clear whether the construction of a street exten-
sion would lend itself to a substantial increase in
traffic within 500 feet of the two council members'
respective homes, staff could not reach a defini-
tive conclusion whether a conflict of interest ex-
ists.
Stephen P. Deitsch, City Attorney
City of Big Bear Lake
Dated: July 2, 2002
Our File Number: A-02-129
Exceptions to the Act's conflict-of-interest rules
are narrowly construed. Regulation 18702.4(b)(1)
(Cuntinued on page 23)
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FPPC Bulletin
January 2003 Volume 29, No.1
(Continued from page 22)
(e) provides an exception where an official may
represent his or her "personal interests" in a busi-
ness over which the official exercises sole direc-
tion and control. The exception is limited to a
situation where there are no other personnel of
the company who may be delegated the authority
to appear before the official's body.
Daniel S. Hentschke
San Diego County Water Authority
Dated: July 26, 2002
Our File Number: A-02-142
It is reasonably foreseeable that a public official's
economic interests will experience a material fi-
nancial effect where the economic interest is di-
rectly involved in the governmental decision.
Howard Laks, AlA
City of Santa Monica
Dated: July 29, 2002
Our File Number: A-02-155
The discussion concerns whether a member of an
architectural review board, also a private archi-
tect, is allowed to present a client's appeal of an
architectural review board decision to the plan-
ning commission. The architect is allowed to pre-
sent to the planning commission so long as: 1)
the planning commission is not appointed by or
subject to the budgetary control of the public offi-
cial's agency, and 2) the public official does not
purport to act in an official capacity as an archi-
tectural review board member.
Ron L. Cotten, Treasurer
Macedo for Manteca City Council
Dated: July 24, 2002
Our File Number: A-02-157
A sale of an improved vacant building site for fair
market value is not a gift under the Act even
though the seller does not typically engage in this
type of sale. However, if the lot was considered
to be a gift, then the purchase may affect the pub-
lic official's ability to vote on issues concerning
the seller. The burden is on the public official to
prove that adequate consideration was provided
by the official.
Marcia H. Armstrong
Siskiyou County Farm Bureau
Dated: July 16, 2002
Our File Number: 1-02-166
The conflict-of-interest provisions will not apply
until this elected city council member assumes
office. At that time, all economic interests includ-
ing the income from her employer, could be the
basis for a conflict of interest.
Gary T. Ragghianti
City of Larkspur
Dated: July 10, 2002
Our File Number: A-02-170
A council member owns residential property
within 500 feet of a proposed project. He may
participate in the specific plan decisions regarding
the project if, in fact, there will be no financial ef-
fect on his residential property.
Don Ramos
Aptos/La Selva Fire District
Dated: July 22, 2002
Our File Number: 1-02-173
The Act does not prohibit a public official from
holding a position on the same board on which
his spouse serves.
The Honorable John Campbell
State Assembly
Dated: July 17, 2002
Our File Number: 1-02-180
A legislator may have a conflict of interest in a
vote on legislation that will have a foreseeable
and material financial effect on his source of in-
come. However, if the effect will be substantially
the same as the effect on the public generally, the
legislator may vote despite the conflict of interest.
Adolfo E. Miralles, FAIA
West Altadena Project Area Committee
Dated: July 25, 2002
Our File Number: 1-02-182
An architect and member of a project area com-
mittee may prepare and submit drawings or sub-
missions of an architectural nature on behalf of
the developer. However, the public official's con-
tact with agency staff is limited to responding to
staff questions, obtaining clarification of staff re-
quests, and communicating with staff regarding
(Continued on page 24)
Page 24
FPPC Bulletin
January 2003 Volume 29, No.1
(Continued from page 23)
the movement of submissions through the ap-
proval process. The public official may not appear
before his own committee in representing a cli-
ent's interests.
Drusilla van Hengel
City of Santa Barbara Public Works
Department
Dated: July 25, 2002
Our File Number: A-02-183
A public official who owns residential property
within an area designated for a pilot program may
not participate in decisions regarding the pilot pro-
gram.
Lisa A. Grigg
Tahoe City Public Utility District
Dated: July 29, 2002
Our File Nubmer: 1-02-184
A member of the board of directors of a public
utility district may vote on a new policy that would
provide the same health insurance benefits to
employees of the district involved in domestic
partnerships, which are already available to other
employees with spouses, because the decIsions
will not affect the official's personal finances be-
yond the salary and benefits the official receives
from his or her governmental agency.
Thomas R. Egan
City of Costa Mesa
Dated: July 29, 2002
Our File Number: 1-02-194
Nothing in the Act prohibits the requestor from
running for or holding office in the same city for
which his wife is a planning commissioner.
Howard Laks, AlA
City of Santa Monica
Dated: July 29, 2002
Our File Number: A-02-195
The discussion concerns whether a member of an
architectural review board, also a private archi-
tect is allowed to discuss a client's project with
city 'planning staff and appear before the planning
commission, the landmarks commission or the
city council. The architect is allowed to present
and discuss so long as: 1) each agency is not ap-
pointed by or subject to the budgetary control of
the public official's agency, and 2) the public offl-
cial does not purport to act in an official capacity
as an architectural review board member.
Conflict-of-Interest Code
Robert Dresser
CA Labor & Workforce Development Agency
Dated: October 11, 2002
File Number: A-02-249
The staff on loan to the new California Labor &
Workforce Development Agency ("CLWDA") from
other state agencies must continue to file state-
ments of economic interests under the conflict of
interest codes for the other agencies. Individuals
designated in CLWDA's conflict of interest code
will be required to file once a code has been ap-
proved for CLWDA. Recently enacted legislation
will require members of any boards and commis-
sions created by CLWDA on or after January 1,
2003, to file statements in the same manner as
those individuals required to file pursuant to sec-
tion 87200, until CLWDA includes them in its
code. (Section 87302.6 added by SB 1620
(Knight), signed by the Governor on August 24,
2002, effective January 1, 2003.)
Alister McAlister
California Legislature
Dated: October 31,2002
File Number: A-02-273
A former member of the Legislature is advised
that funds raised prior to 1989 are governed by
the Elections Code.
Dan Carter
Yosemite Sierra Visitors Bureau
Dated: September 12, 2002
Our File Number: A-02-202
The Yosemite Sierra Visitors Bureau is not a local
governmental agency and does not need to adopt
a conflict of interest code.
Val R. Fadely
Capistrano Unified School District
Dated: September 26, 2002
Our File Number: A-02-223
A charter school operated by a nonprofit public
benefit corporation is a local government agency
(pursuant to the Siegel opinion). It must adopt a
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FPPC Bulletin
January 2003 Volume 29, No.1
(Cunlinuedfrom page 24)
conflict of interest code and the board members
are subject to the disclosure (SEI) and disqualifi-
cation (conflict of interest) provisions of the Act.
David R. Chapman
Port of San Diego
Dated: August 20, 2002
File Number: A-02-115
The San Diego Port District seeks clarification of
the port district's jurisdiction for purposes of finan-
cial reporting under S 87302 of the Act. The port
district was advised that their jurisdiction for fInan-
cial reporting purposes, extends to the geo-
graphic boundaries within which the port district
exercises any facet of its jurisdiction. In light of
1996 amendments to the San Diego Unified Port
District Act, the financial reporting obligations ex-
tend to economic interests located in the corpo-
rate areas of San Diego, Coronado, Chula Vista,
National City and Imperial, and the unincorpo-
rated territory in San Diego County contiguous
thereto, and economically linked to the develop-
ment and operation of San Diego Bay.
Honoraria
Robert Conover
California Department of Insurance
Dated: September 5, 2002
Our File Number: A-02-207
A senior life actuary and designated employee
may accept earned income for personal services
which are customarily provided in connection with
the practice of a bona fide business such as
teaching. These personal services do not qualify
as honorarium and are not subject to those re-
strictions.
Robert J. Spane
Port of San Diego
Dated: July 23, 2002
Our File Number: A-02-094
A port commissioner under contract with a univer-
sity to teach in its program could accept payment
for his services, which were provided in connec-
tion with the practice of a bona fide business,
trade or profession, i.e. teaching, which is an ex-
ception to the honoraria ban. However, speaking
engagements for organizations other than the unl-
versity would not meet this exception and those
payments would be prohibited honoraria.
Lobbying
Jack T. Molondanof
Holloway, Rasmusson & Molondanof
Dated: October 11, 2002
File Number: A-02-277
Nothing in the Act prohibits a lobbying firm from
contracting to represent a local governmental
agency before the state Legislature, including a lo-
cal agency the firm lobbies for other clients.
Scott M. Lay
Community College League of California
Dated: September 18, 2002
Our File Number: A-02-214
A lobbyist, who also is a member of a county cen-
tral committee for a major political party, is advised
on compliance issues with respect to the prohibi-
tion on lobbyist contributions to those officeholders
and candidates the lobbyist is registered to lobby.
Mass Mailing
Henry Perea
City of Fresno
Dated: September 27, 2002
Our File Number: A-02-260
In order for a public official to fall within the
"letterhead exception" for mass mailing, there must
not be any additional references made to the offi-
cial in the letter, absent an additional exception as
referenced in 18901(b)(1). Otherwise, a flyer sent
out to residents with references to the public official
from his or her office is subject to the 200-item
limit.
Gift Limits
Michael Rood
City of Calexico
Dated: October 11, 2002
File Number: A-02-261
The city redevelopment agency is to be reimbursed
by a Chinese investor's group for the cost of send-
ing three city officials to China. Since the city did
(Continued on page 26)
Page 26
FPPC Bulletin
January 2003 Volume 29, No.1
(Continuedfrom page 25)
not exercise sole discretion in selecting the officials
to make the trip (officials were invited by the inves-
tor group and identified by office and/or name in
the invitation), the exception of regulation 18944.2
does not apply. Reimbursement will be a gift to the
officials, not the agency, subject to the gift limits
and reporting. The gift would also invoke conflict-
of-interest provisions of the Act.
David Lau
City of Monterey Park
Dated: October 29, 2002
File Number: A-02-282
A raffle prize won by a city council member in a
bona fide competition is considered income,
thereby the amount is not constrained by the gift
limits of the Act. The income is reportable on Form
700 and may subject the filer to disqualification pro-
visions of the Act and provisions contained in Arti-
cle XII, Section 7 of the California Constitution.
Lisa A. Foster
City of San Diego
Dated: August 28, 2002
File Number: 1-02-213
A general discussion of the concepts underlying
the notion that payments made at an elected offi-
cial's behest for an event honoring a public service
non-profit organization are not contributions to the
elected official since the payments for the event are
principally for charitable purposes.
Revolving Door
Gail J. Hodyke
Los Alamos National Lab
Dated: October 3,2002
File Number: 1-02-253
The Commission will decline to provide advice in
response to requests on behalf of unnamed indi-
viduais. However, there are no statutory excep-
tions for University of California employees from
the revolving doors provisions of the Act.
Arturo Ramudo
CA Board of Accountancy
Dated: October 21,2002
File Number: A-02-283
A former employee of the California Board of Ac-
countancy ("CBA") may act as a consultant to a
certified public accountant in a proceeding before
the CBA to revoke the accountant's license. The
former employee did not participate in this pro-
ceeding while in state service and ceased em-
ployment with CBA in 1993. Neither the one-year
nor permanent bans under the Act's post-
employment provisions apply in these circum-
stances.
Mary A. Dixon
California Health & Human Services Agency
Dated: September 30, 2002
Our File Number: 1-02-174
The Health and Human Services Data Center
seeks advice on applying the post-employment
provision's one-year ban to a situation where a
former employee will be posted as a private con-
sultant to the data center to administer, imple-
ment or fulfill the terms of an existing contract.
Regulation 18746(b)(5)(A) exempts such conduct
for the one-year ban, although the permanent ban
would apply if the former employee participated in
the administration of the contract while a state
employee. An "existing contract" for this purpose
also means a contract reached after the former
official's departure from state service. Once the
negotiating of the contract is completed, the con-
tract is considered to be an "existing contract," as
of its effective date. If performance of an existing
contract results in amending, revoking, awarding
or issuing any other contract, it does not render
the "existing contract" exemption void and such
performance still falls outside the one-year ban.
Byron Roberts
Department of Health Services
Dated: September 12, 2002
Our File Number: A-02-190
A former employee of the Department of Health
Services will be posted by a new private employer
to the former agency to serve as a contract em-
ployee in the position of senior project manager
business analyst. The former official is advised
that appearances and communications with the
former agency are not barred by the one-year re-
volving door ban since they will occur to fulfill or
implement an existing contract. A new contract
between the agency and the employer, once it
comes into existence, is an "existing contract"
(Continued on page 27)
Page 27
FPPC Bulletin
January 2003 Volume 29, No.1
(Continuedjrom page 26)
within the meaning of regulation 18746.1 (b)(5)(A).
A former state employee is not prohibited under the
one-year ban from communicating with, or appear-
ing before, his/her former agency to administer, im-
plement or fulfill the terms of this contract.
C. Dennis Ericson
Dept. of General Services
Dated: September 11, 2002
Our File Number: 1-02-198
The preparation of the master contractor list was
done under a former state administrative official's
supervisory authority. Therefore, a permanent ban
under the Act's post-employment provisions bars
the former official from "switching sides" in this pro-
ceeding. Any contract executed between a con-
tractor on this list and another state agency is a
new contract and the permanent ban will not apply
to that new "proceeding." In re Lucas (2000) 14
FPPC Ops. 15 and Brown Advice Letter A-91-033
are harmonized in support of this result.
H. John Corum
State Board of Equalization
Dated: September 25,2002
Our File Number: A-02-258
A former BOE employee is advised that, for pur-
poses of the post-employment provisions of the
Act, his former state administrative agency em-
ployer is the California State Board of Equalization
and its constituent departments and divisions, not
just the particular division thereto which he was last
assigned. Contested property appraisals and tax
audits are "judicial, or quasi-judicial" proceedings
under the meaning of the Act and are, for that rea-
son, not subject to the one-year ban; the former of-
ficial may represent clients before the BOE con-
cerning these matters, unless the permanent ban
applies. Further, the former official may represent
clients in these matters when the matter is before
an administrative law judge. Section 87406(d) is a
statutory exception whereby an appearance before
an ALJ is not an "appearance" for purposes of the
post-employment provisions of the Act.
Steven K. Chan
Board of Equalization
Dated: July 24, 2002
Our File Number: 1-02-084
The revolving door provisions of the Act and how
they apply to a supervising tax auditor at the
Board of Equalization are addressed in this letter.
Under the permanent ban, the auditor would be
prohibited from aiding, advising, representing or
otherwise assisting a taxpayer regarding any tax
audits or other matters in which he participated or
supervised as a state employee. However, the
auditor would be allowed to represent the same
taxpayer on a different audit with the Board of
Equalization, or any other proceeding in which he
was not involved. The one-year ban does not
regulate tax audits.
Barbara Brandes
CA Department of Education
Dated: July 11, 2002
Our File Number: 1-02-134
Post-employment restrictions of the Act apply to
a California Department of Education designated
employee contemplating post state employment
with a non-profit service organization which will
contract with local educational agencies receiving
state funding. The employee may not make, par-
ticipate in making or use his/her official position to
influence governmental decisions directly relating
to or having a reasonably foreseeable material
financial effect upon any party with whom the em-
ployee is negotiating prospective employment.
The conflict-of-interest provisions also apply.
Nyle Baker
Prison Industry Association
Dated: July 11,2002
Our File Number: A-02-151
A former Prison Industries Authority ("PIA") man-
ager is given advice that a permanent ban under
the Act's post-employment restrictions prohibits
him from advising his new employer or appearing/
communicating on the new employer's behalf be-
fore the Prison Industry Authority regarding a con-
tract in which he participated as a PIA employee.
The one-year ban prohibits appearing or commu-
nicating with the PIA, but he may advise his new
employer on a new contract with the PIA in which
he did not participate as a state employee. The
one-year ban does not prohibit communication or
appearances during the one-year period for the
purpose of implementing, administering or fulfill-
ing an existing contract not subject to the perma-
nent ban.
(Continued on page 28)
Page 28
FPPC Bulletin
January 2003 Volume 29, No.1
(Continued from page 2 7)
Statement of Economic
Interests
Kelly Candaele
LA Community College District
Dated: October 10, 2002
File Number: A-02-246
A full-time, elected community college trustee
may accept a gift of travel, provided the travel is
paid for by a foreign government and is reasona-
bly related to a legislative or governmental pur-
pose or to an issue of state, national or interna-
tional public policy. The gift of travel is reportable
on the annual statement of economic interests.
Mark J. Nielsen
San Juan Capistrano City Council
Dated: September 19, 2002
Our File Number: A-02-228
Stocks held in a diversified fund that is not a di-
versified mutual fund registered with the Securi-
ties and Exchange Commission must be reported
if the value of the stock is $2,000 or more. Addi-
tionally, a limited partnership interest in venture
capital funds is reportable if the value of the in-
vestment in the partnership is $2,000 or more.
Margit Aramburu
Delta Protection Commission
Dated: August 30, 2002
File Number: A-02-156
For purposes of reporting, an individual assumes
office when he or she is authorized to serve by
being sworn in, making a governmental decision,
or otherwise being authorized to serve, whichever
is earlier.
Lorraine M. Walsh
Contra Costa County Superior Court
Dated: August 7,2002
File Number: A-02-201
All superior court justices have statewide jurisdic-
tion for purposes of completing the statement of
economic interests, regardless of whether their
employment is permanent or temporary.
Howard D. Coleman
L.A. Transportation Commission
Dated: July 8, 2002
Our File Number: A-02-121
A public official must disclose on his statement of
economic interests certain investments held in a
structured account. While there are similarities
between a structured account and a mutual fund
the particular stock holdings of the former must '
be disclosed given that the exception for mutual
fund holdings is exclusive to mutual funds.
Teresa Vig Rein
Business and Workforce Alliance
of Stanislaus County
Dated: July 10, 2002
Our File Number: A-02-124
Members of the Business and Workforce Alliance
of Stanislaus County, a workforce investment
board, are public officials, subject to the Act's dis-
closure and conflict-of-interest rules.
Small Contributor Committeel
Proposition 34
Denise Headrick
Public Employees Union Local One
Dated: August 27, 2002
File Number: A-02-197
Discusses section 85203 and regulation18503(a)
(3) With regard to when and how an existing com-
mittee can become a small contributor committee.
Existing committees can be "cleansed" of past
contributions in excess of $200 when a small con-
tributor committee is initially formed. A small con-
tributor committee is formed through creation of a
new committee or an old committee amending its
statement of organization.
Andrew Cassidy
Cassidy for State Assembly
Dated: July 10, 2002
Our File Number: 1-01-296
A candidate for state elective office may refund
hiS or her own contributions so long as a com-
bined loan repayment and refund does not ex-
ceed $100,000. The letter analyzes section
85319 in the context of the "personal use" laws.
(Continued on page 29)
Page 29
FPPC Bulletin
January 2003 Volume 29, No.1
(Cuntinuedfrum page 28)
Section 84308
Fazle Rab Quadri
Mojave Desert Air Quality Management Dis-
trict Board
Dated: July 1, 2002
Our File Number: A-02-096
The Mojave Municipal Air Quality District Board is
to vote on amendments to Rule 1161. Several
board members are recipients of campaign contri-
butions from several companies financially af-
fected by the amendments. The board was ad-
vised that due to the unique inter-relationships
between Rule 1161 and the operating permits for
plants subject to the rule, and in light of the spe-
cific facts affecting the present amendments to
the rule, the proceedings to amend Rule 1161 are
construed as proceedings involving a license,
permit or other entitlement for use for purposes of
section 84308. Board members having received
the contributions are barred from voting on the
Rule 1161 amendments.
Regulations of the Fair Political Practices Commission
TITLE 2, DIVISION 6, CALIFORNIA CODE OF REGULATIONS
18704.2. Determining Whether Directly or Indirectly Involved in a Governmental Decision:
Interest in Real Property,
(a) Real property in which a public official has an economic interest, is directly involved in a
governmental decision jf that real property is the subject of the governmental decision, or if any
part of that real property is located within 500 feet of the boundaries (or proposed boundaries) of
the real property which is the subject of the governmental decision. Real property is the "subject
of the governmental decision" if:
(1) The governmental decision involves the zoning or rezoning, annexalion ordeannexation, sale,
purchase, or Jease, or inclusion in or exclusion from any city, county, district or other local
governmental subdivision, of the real property or a similar decision affecting such real property;
(2) The governmental decision involves the issuance, denial or revocation of a license, permit or
other land use entitlement authorizing a specific use or uses of such real property;
(3) The governmental decision involves the imposition, repeal or modification of any taxes or fees
assessed or imposed on such real property; or
(4) The governmental decision is to designate the survey area, to select the project area, to adopt
the preliminary plan, to form a project area committee, to certify the'environmental document, to
adopfthe redevelopment plan, to add territory to the redevelopment area, or to rescind or amend
any of the above decisions; and real property in which the official has an interest, or any part of it
is located within the boundaries (or the proposed boundaries) of the redevelopment area. For
purposes of.this subdivision, reat property is located "within 500 feet of the boundaries (or
proposed boundaries) of the real property which is the subject of the governmental decision" if
any part of the real property is within 500 feet of the boundaries (or proposed boundaries) of the
redevelopment project area.
(5) The decision involves construction of. or improvements to, streets, water, sewer, storm
drainage or similar facilities, and the real property will receive new or improved services. As used
in this subdivision, "new or improved services" do not include repairs, replacement, or
maintenance of existing services.
(6) For purposes of this subdivision, the terms "zoning" and "rezoning" shall refer to the act of
establishing or changing the zoning or land use designation on the subject real property. The
terms "zoning" and "rezoning" shall not refer to an amendment of an existing zoning ordinance or
other land use regulation (such as changes in the uses permitted, or development standards
applicable, within a particular zoning category) which is applicable to all other properties
designated in that category, which shall be analyzed under Title 2, California Code of
Regulations, section 18705.2(b).
(b) Determining the applicable materiality standard.
(1) If the real property in which the public official has an economic interest is directly involved in a
governmental decision, apply the materiality standards in California Code of Regulations, Title 2,
section 18705.2(a).
(2) If a real property interest is not directly involved in a governmental decision, apply the
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materiality standards in California Code of Regulations, Tille 2, section 18705.2(b).
NOTE: Authority cited: Section 83112, Government Code.
Reference: Sections 87100,87102.5,87102.6,87102.8 and 87103, Government Code.
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Regulations of the Fair Political Practices Commission
TITLE 2, DIVISION 6, CALIFORNIA CODE OF REGULATIONS
18705.2. Materiality Standard: Economic Interests In Real Property.
(a) Directly involved real property,
(1) Real property, other than leaseholds. The financial effect of a governmental decision on the
real property is presumed to be material. This presumption may be rebutted by proof that it is not
reasonably foreseeable that the governmental decision will have any financial effect on the real
property.
(2) Real property, leaseholds. The financial effect of a governmental decision on the real property
in which an official holds a leasehold interest is presumed to be material. This presumption may
be rebutted by proof that it is not reasonably foreseeable that the governmental decision will have
any effect on any of the following:
(A) The termination date of the lease;
(8) The amount of rent paid by the lessee for the leased real property, either positively or
negatively;
(C) The value of the lessee's right to sublease the real property, either positively or negatively;
(0) The legally allowable use or the current use of the real property by the lessee; or
(E) The use or enjoyment of the leased real property by the lessee.
(b) Indirectly involved real property interests.
(1) Real property, other than leaseholds. The financial effect of a governmental decision on real
property which is indirectly involved in the governmental decision is presumed not to be material.
This presumption may be rebutted by proof that there are specific circumstances regarding the
governmental decision, its financial effect, and the nature of the real property in which the public
official has an economic interest, which make it reasonably foreseeable that the decision will have
a material financial effect on the real property in which the public official has an interest.
Examples of specific circumstances that will be considered include, but are not limited to,
circumstances where the decision affects;
(A) The development potential or income producing potential of the real property in which the
official has an economic interest;
(8) The use of the real property in which the official has an economic interest;
(C) The character of the neighborhood including, but not limited to, substantial effects on: traffic,
view, privacy, intensity of use, noise levels, air emissions, or similar traits of the neighborhood.
(2) Real property, leaseholds. The financial effect of a governmental decision on real property in
which a public official has a leasehold interest and which is indirectly involved in the
governmental decision is presumed not to be material. This presumption may be rebutted by
proof that there are specific circumstances regarding the governmental decision, its financial
effect, and the nature of the real property in which the public official has an economic interest,
which make it reasonably foreseeable that the governmental decision will:
(A) Change the legally allowable use of the leased real property, and the lessee has a right to
sublease the real property;
(8) Change the lessee's actual use of the real property;
(C) Substantially enhance or significantly decrease the lessee's use or enjoyment of the leased
real property;
(0) Increase or decrease the amount of rent for the leased real property by 5+percent during any
12~month period following the decision; or
(E) Result in a change in the termination date of the Jease.
NOTE: Authority cited: Section 83112, Government Code.
Reference: Sections 87100,87102.5,87102.6,87102.8 and 87103, Government Code.
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Section
1090.
1090.1.
1091.
1091.1.
1091.2.
1091.3.
1091.5.
"
1092.
1092.5 .
1093.
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ARTICLE 4
Prohibitions Applicable to Specified Officers
Law Review Articles:
Appearance of fairness doctrine: closing a loophole in California's Political Reform Act.
17 Cal West LR 75.
Annotations:
Validity and construction of enactments requiring public officers or candidates for office
to disclose financial condition and relationships. 37 ALR3d 1338.
Validity. construction, and application of regulation regarding outside employment of
governmental employees or officers. 94 ALR3d 1230.
Contracts, sales, and purchases made in official capacity
Commission for placement of insurance
"Remote interest" in contract
Right of public officer to subdivide land in which he has interest
When financial interests affect local workforce investment board member's
voting rights
Inapplicability of Section 1090 as relating to contract or grant made by
county children and families commission
Interest in contract; Quantity and quality of interest; Relationto contract-
ing party
Avoidance of prohibited contract
Rights of good faith third party
Purchase, sale, or dealing in warrants or other evidence of public indebted-
ness
1094. Affidavit of nonviolation required before allowing accounts
1095. Payment of warrants or other evidence of indebtedness
1096. Suspension of settlement or payment
1097. Penalties
1098. Disclosure or use of confidential information for pecuniary gain
Collateral References:
Witkin & Epstein, Criminal Law (2d ed) S 1217.
Witkin Summary (9th ed) Contracts SS 624, 627, 628.
~ 1090. Contracts, sales, and purchases made in official capacity
Members of the Legislature, state, county, district, judicial district, and
city officers or employees shall not be financially interested in any contract
made by them in their official capacity, or by any body or board of which
they are members, Nor shall state, county, district, judicial district, and
31
~ 1090
PUBLIC OffiCERS AND EMPLOYEES
city officers or employees be purchasers at any sale or vendors at any
purchase made by them in their official capacity.
As used in this article, "district" means any agency of the state formed
pursuant to general law or special act. for the"local performance of
governmental or proprietary functions within limited boundaries.
Enacted SIJts 1l)..+3 ch 1J-J.. Am~nd~J Stats 195\ ch 1553 ~ 2, operative J:muar." I, 1952: Stats
1l)5~ ch 10X[ ~ I: Stats 1961 ch 381 ~ 1: Stats 1963 ch 2172 * 1: Stats 1970 ch 4-1-7 S I.
Amendments:
1951 Amendment: Substituted "judicial district'" for "township",
1953 Amendment: Added the seCtmd sentence.
1961 Amendment: Alilkd "spe'::J.l district." after "cpunty"o wherever it appears in the
tir.;! paragra[Jh,
1963 Amendment: AmenJed th;; tirst paragraph hy adding (1) '"or .:mployees',
\\hcrc\I,:r it appears: and (1) ""financially" alter "shall not be",
1970 Amendment: (I) Substituted "district"- for "special district," after "cDuntv."
\\ hcrc\cr it Jppl.'Jrs in the first parag-raph: and III added the last paragraph. -
Historical Derivation:
(a) Forml.'r Pol C ~ 9~O. as J.mem.kJ S;:.1ts 192! ch -1.S9 ~ I.
(bJ Slab 1851 ch U6 ~ 1.
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Cross References:
"Remolt;' intere::;l": application to agreement entered into pursuant to California Land
Cn(1servation ;-\..:t: Gov C S 1091
PmlLction of righ[~ of good faith third party: GO\ C 9 1092.5.
Cllntracl for \chide allo\\\'mce i..~r milea2:c ri.l[e in lieu of transportation char2es: Gov C
~ 1223. '- ...
Parti.:ipation of board of admimsl:-:.ltion member. who is officer of life insurer. in board
activities irrespe.:ti\e of the pr0\'ision of this section: Gov C S 22774.
Oftic,,'r of municipal hospital a:' "tlnancially interested": Go... C S 37625.
Letting of contrClcts genl.'rally: GC\ C ~g 37901 et seq.
L'nlawful contracts: CC SS 166- d ~eq.
Pcr",ms prohihiteJ from purchasing at eXl.'cution ~ale: ecp ~ 694.
\llninterest of school bvurd membas in contra..:ts: Ed C *s 35233. 72533.
A.pplication of section to bank :.b depository of public fund: Fin C S 860.
Sa\"ings and loan :.\:,-;ociutions as Jepository of public funds: Fin C S 6418.
County hospital board member J~ "tinancially interested": H & S C ~ 1441.5.
Onicer of health care district as "financially interested": H & S C ~ 32111.
Superintendent of State Printing not to have interest in contract: Pen C ~g 99. 100.
Intl:rest of region:ll park district directors and ofticers in district contracts prohibited: Pub
Res C S 5567.
Collateral References:
\Vitkin & Epstein. Criminal La\\ f2d ed) SS 3'7-1.. 1217. 1219.
Witkin Summary (9th ed) Contracts S~ 624.626.627,629; Agency and Employment
S 470.
Cal Jur 3d (Re\') Criminal Law SS 2261, 2769.
Miller & St~rr. CuI Real Estate 2d 9 6:21.
Lau' Review Articles:
Conflict of interest in public contr:lcts in California. 44 Cal LR 355.
California's governmental conflict of interests act The public interest versus the right to.
privacy. 49 LA Bar B 317.
Interest of public ofticers in contracts prohibited by law. 28 SCLR 335.
C:llifornia conflict of interest l:1ws. 36 SCLR 186.
Temptation and tradition in California School Board. 5 Stan LR 61.
32
.wing accounts
accounts of other
! accounts, require
lavit or certificate
the provisions of
1 subscribes such
cS to any material
1 thereof shall be
enal Code of this
lich read: "Every
le, county. or city
h officers to make
provisions of this
lebtedness
'ys shall not pay
he State, county,
nsferred contrary
ic moneys being
Jout to be settled,
ns of this article,
{ment, and cause
tion. If judgment
lisbursing officer
ffidavit had been
GENERAL
~ 1097
Historical Derivation:
Former Pol C ~ 926. as amended Code Amdts 1873-74 ch 610 ~ 26.
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~ 1097. Penalties
Every officer or person prohibited by the laws of this state from making
or being interested in contracts, or from becoming a vendor or purchaser
at sales, or from purchasing scrip, or other evidences of indebtedness,
including any member of the governing board of a school district, who
willfully violates any of the provisions of such laws, is punishable by a
fine of not more than one thousand dollars ($1,000), or by imprisonment
in the state prison, and is forever disqualified from holding any office in
this state.
Enacted Stats 1943 ch 134. Amended Stats 1955 ch 1125 ~ 4; Stats 1976 ch 1139 ~ 54.5. opera-
tive July 1. 1977.
Amendments:
1955 Amendment: Added (1) "wilfully" before "violates"; and (2) "including any
member of the governing board of a school district".
1976 Amendment: Deleted "for not more than five years" after "state prison".
Historical Derivation:
(a) Fonner Pen C 9 71, as enacted Stats 1872.
(b) Stats 1852 ch 31 ~ 6.
(c) Stats 1851 ch 136 ~~ 3, 4.
Cross References:
Being interested in contract, sale. or purchase made in official capacity prohibited: Gov
C ~ 1090.
Punishment of officer, pursuant to this section. for willfully failing to disclose in contract:
GOY C ~ 1091.
Application of section for failure to disclose fact of . 'remote interest": Go\' C ~ 1091.
Unspecified felony punishment: Pen C ~ 18.
Superintendent of State Printing. interest in contract connected with oftice prohibited:
Pen C ~S 99, 100.
Collateral References:
Witkin & Epstein, Criminal Law (2d ed) S~ 64.1069, 1217, 1219. 1328, 21n
Law Review Articles:
Conflict of interest in public contracts in California. 44 Cal LR 355.
Interest of public officers in contracts prohibited by law. 28 SCLR 335.
Temptation and tradition in California School Board. 5 Stan LR 61.
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NOTES OF DECISIONS
Contract founded upon statute pronouncing penalty
for act is void even though such statute does not
pronounce it void nor expressly prohibit it. Berka v
Woodward (1899) 125 Call19, 57 P 777.
"Officers," as used in section. refers only to ap-
pointed or elected public officers of various subdivi-
sions of State, as distinguished from mere employees
thereof. Cleland v Superior Court of Mendocino
County (1942) 52 Cal App 2d 530, 126 P2d 622.
Section constitutional. People v Darby (1952) 114 Cat
App 2d 412, 250 P2d 743.
Section not uncertain, vague or indefinite. People v
Darby (1952) 114 Cal App 2d 412, 250 P2d 743.
Section not subject to attack for failure to require a
specific intent. People v Darby (1952) 114 Cat App
2d 412, 250 P2d 743.
School trustee is a public officer within this section.
People Y Darby (1952) 114 Cal App 2d 412, 250 P2d
N1 .
Trustee of a reclamation. flood control. swamp land.
sanitary, or levee district is either a State or ,:ounty
officer within this section. People v Darby (1952) 114
Cal App 2d 412, 250 P2d 743.
63
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SectIon
87102.
87102.5.
POUTlCAL REFORM
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Additional requirements; remedies.
Legislative members; use of position to influence governmental decisions;
financial interest; remedies.
87102.6. Nongenera! legislation; definitions.
87102.8. Elected state officers; use of position to influence governmental decisions;
financial interest; remedies.
Financial interest in decision by official.
Retail customer of business entity doing retail business.
Persons retained or employed by state or local governmental agencies;
payments made to defray costs to process applications, approvals, or other
actions.
87104 to 87106. Rejected.
87103.
87103.5.
87103.6.
::
Article 1, proposed by Initiative Measure, was approved by the
electors at the primary election held June 4, 1974, eft. Jan. 7, 1975.
Law Revlew Commentaries
Administrative adjudication of air pollution
disputes: The work of air pollution control
district hearing boards in California. Kenneth
A. Manaster (1984) 17 U.C.D.Law Rev. 1117.
Legislators as private attorneys: Need for
legisfative reform. (1983) 30 U.C.L.A.Law Rev.
1052.
Political Reform Act: Greater access to ini-
tiative process. Roger Jon Diamond, Peter R.
diDonato, Patrick J. Marley and Patricia V.
Tubert. (1975) 7 Southwestern L.R. 453.
Proposition 9. Joanne Garvey and Vigo
Nielsen, Jr. (1976) 51 S. Bar J. 198.
Ties that bind: Conflicts of interest. 'in uni,,;'
versity-industry links. (1984) 17 U.C.D.Law
Rev. 895.
Library References
Municipal Corporations ~231. C.J.S. Municipal Corporations ~ 988.
Officers and Public Employees <8=110. C.J.S. Officers and Public Employees ~~ 197
States <8=95. to 204.
WESTLAW Topic Nos. 268. 283, 360. C.J.S. States ~ 156.
~ 87100. Publlc officials; state and local; financial Interest
No public official at any level of state or local government shall make,
participate in making or in any way attempt to use his official position to
influence a governmental decision in which he knows or has reason to know
he has a financial interest.
(Added by Initiative Measure approved by the electors June 4, 1974, eff. Jan. 7, 1975.)
Forms
See West's California Code Forms, Government.
Cross References
Commercial salmon fishing review board, limited exemption from this section. see Fish & G.C.
~ 8245.
Code of Regulations References
Acadentic decisions, see 2 Ca!. Code of Regs. 9 18705.
Conflict of interesVunlawfu1 activity, see 2 CaI.Code of Regs. ~ 1604.
Definitions, see 2 CaI. Code of Regs. ~ 18700.
Effect on public generally, see 2 CaI. Code of Regs. ~ 18703.
Materia! financial effect, see 2 CaI. Code of Regs. ~ 18702.
262
I
CONI
Ch. 7
Source
Student
Defen
See \I
Attome,
Board. "
FlnanetEo
Laud IT,
Loca1 go
Purpose
Redevelc
Tape rec
ValJdlty
I. ValJd
The Po,
interest r
disclosure
actual so'
broad in
unconstit
of privac:
and custo
Rptr. 102.
2. Purpo
Whole;
1974 is te
participati
may not t
would like
by whom t
(1977) 139
3, Board,
Uncomp(
bers of Cor
nization aT.
Political R
periodic fi,
withstandir
mission We
investigatio
activities aT
because C0
with power
cies which
businesses.
was not ex<
of interest (
bers. Comr
ment Organ
37APt2C<;
,
GOVERNMENT CODE Jl
*
ore than ten thousand dollars ($10,000) *,
ring any calendar year, except that if the.',
:ee is in substantial compliance with the
~ to an audit on a random basis with each
committees, the commission shall promul~
mdits.
tion of the Public Emplovees' Retirement
ide a method for selection of these audits.
18 commission for all reasonable eXPenses
Fair Political Practices Commission shall
1 basis. For campaign audits the selection
~port or statement following the general or
lection at which the measure was adopted
'. the selection shall be made in public in
23 (S.B.1753), . 11.)
~otes
let of 1974 v.ithin the meaning of subdivision (a)
81012 of the Government Code,"
l'r of intent from Senator Schiff regarding Stat.!!.
~;l (S.B.1753), see Historical and Statuto11' Notes
;Ication Code ~ 22203.5.
rcnees
'ris and guidelines for auditing statements and
,.e 2 CaI. Code of Regs. ~ 18995.
'Jaed in this section, defined, see 2 Cal. Code of
';;992.
nvestigations; lObbying firms, lobbyist
employers shall be perfonned on " " . a
.. "two years. -
.account f()r all receipts and payments for
t an audit under subdivision (a) of Section
~upporting documentation required to be
lmittee, or committee primarily supporting
ort or statement required by Chapter 4 of
report or statement following the general,
ran, or fonowing the election at which the
\'estigations of statewide candidates, their
r opposing those statewide candidates who
I to file statements for the general election
~tatement following the primary election.
.oIled committee, or a committee primarily
.d pursuant to Section 90001, the audit and
iJed for the primary and general or special
l.eport tiled pursuant to Section 84200 or
de any statements or reports which have
When the campaign statements or reports
te audited and investigated, the audit and
18 from the beginning date of the first
1 the measure. For all other committees,
ts tiled during the previous two calendar
delet10ns by asterisks * ~ *
GOVERNMENT CODE
~ 91000
I
:
f'
'-,
'.
.ii
,
I
~ 90004. Periodic reports by board; public documents; findings
Administrative Code References
Contain in detail, dermed, see 2 Cal. Code of Regs. Standards and guidelines for auditing statements and
f 18993. reports, see 2 Cal Code of Regs. ~ 18996.
I 90007. Auditing guidelines and standards
Code of Regulations References
Contain in detail, dermed, Bee 2 Cal. Code of Regs. Standards and guidelines for auditing statements and
~ 18993. reports, see 2 Cal. Code of Regs. ~ 18995.
Chapter 11
ENFORCEMENT
Section
91000.
91000.5.
Section
91007.
Civil actions; request to civil prosecutor
to commence action; procedure; ini-
tial pleadings; dismissal.
Limitations.
Late filing of statement or report; fees:
penalties; deposit of funds received.
Civil actions to collect unpaid monetary
penalties, fees, or civil penalties.
Repealed.
Violations; fines; limitations.
Administrative actions; commencement
more than five years after date of
violation; tolling of period.
Reporting requirements; violations; lia-
bility.
Violations; civil liability .
Civil liability.
Joint and several liability.
91011.
91013.
91013.5.
91015.
91004.
91005.
91005.5.
91006.
~ 91000. Violations; fines; limitations
(a) AIly person who knowingly or willfully violates any provision of this title is guilty of a misdemeanor.
(b) In addition to other penalties provided by law, a fine of up to the greater of ten thousand dollars
($10,000) or three times the amount the person failed to report properly or unla'Wfully contributed.
expended, gave or received may be imposed upon conviction for each violation.
(c) Prosecution for violation of this title must be commenced within four years after the date on which
the violation occurred.
(Added by Stal'l.2000, c. 102 (S.B.1223), . 73, eff. July 7, 2000, operative Jan. 1, 2001 (Prop. 34, approved
Nov. 7, 2000).)
Operative Effect
Sectian 83 of Stats.20oo, c. 102 (S.8.1223) (Prop. 34. aPP"O"Jed Nov. 7, 2000), as amended by
Stotd001, c 241 (S.B.34), * 18, eif. Sept 4, 2001, provides that the act is operative Jon. 1, 2001,
but that Article 3, except subds. (a) and (c) of Section 85309, Section 85319, Article .4, and
Article 6 of Chapter 5 of Title 9 of the Government Code shall apply to candidates for statewide
elective office beginning on and after N()V. 6, 2002.
Historical and Statutory Notes
1996 Legislation measures, and effective date, see Historical and StatutOl;..
Prior to amendment by Prop. 208, ~ 910C10 read: Notes under Government Code ~ 85100.
"(a) Any person who lmowingly or willfully violates any
provision of this title is guilty of a misdemeanor. 2000 Legislation
U(b) In addition to other penalties provided by law, a Former ~ 91000, added by Initiative Measure (ap-
fine of up to the greater of ten thousand dollars ($10,000) proved June 4, 1974, err. Jan. 7, 1975), amended by
or three times the amount the person failed to report Stats.1978, c. 1411, p. 4670, ~ 3; Initiative Measure (Prop.
properly or unlawfully contnbuted, expended, gave or 208, ~ 30, approved Nov. 5, 1996, eft. Jan. 1, 1m).
received may be imposed upon conviction for each viola- relating to violations, fmes, limitations and commi;;sion
tion. jurisdiction, W88 repealed by Stats.2000, c. 102 (S.B.l223l,
U(c) Prosecution for violation of this title must be com- ~~ 71 and 72 (Prop. 34, approved Nov. 7, 2004}), operative
menced within four years after the date on which the Jan. 1, 2001, under U 83 and 85 of that act. For subject
violation occurred," matter relating to the repealed section, see this section.
Provisions of Prop. 208 relating to construction, amend- Legislative findings and declarations, operation, applica-
ment, effect of other laws, severability, conflicting ballot bility, and severability of Stats.2000, eo 102 (S.B.l223J
Addttlons or changes Indicated by underline; delet10ns by asterisks * * *
209
(Regulations of the Fair Political Practices Commission, Title 2, Division 6 of the California
Code of Regulations.)
18702.3. Detennining When a Public Official is Using or Attempting to Use HisIHer Official
Position to Influence a Governmental Decision.
(a) With regard to a governmental decision which is within or before an official's agency
or an agency appointed by or subject to the budgetary control orhis or her agency. the official is
attempting to use his or her official position to influence the decision if, for the purpose of
influencing the decision, the official contacts, or appears before, or otherwise attempts to
influence, any member, officer, employee or consultant of the agency. Attempts to influence
include, but are not limited to, appearances or contacts by the official on behalf of a business
entity, client, or customer.
(b) With regard to a governmental decision which is within or before an agency not
covered by subsection (a), the official is attempting to use his or her official position to influence
the decision if, for the purpose of influencing the decision, the official acts or purports to act on
behalf of, or as the representative of, his or her agency to any member, officer, employee or
consultant ofan agency. Such actions include, but are not limited to the use of official stationery.
~: Authority: Section 83112, Government Code.
Reference: Section 87100, Government Code.
~
(1) New section filed 10-17-88; effective thirtieth day thereafter.
(2) Repealer and new section filed 11-23-98; effective upon filing.
-1-
18702.3
(eES 8/99)
^
~ ~---~-- - _m_-l
(Regulations afthe Fair Political Practices Commission, Title 2, Division 6 of the California
Code of Regulations.)
18702.4. Exceptions.
(a) Making or panicipating in making a governmental decision shall not include:
(l) Actions of public officials which are solely ministerial, secretarial, manual, or
clerical;
(2) Appearances by a public official as a member of the general public before an agency
in the course of its prescribed governmental function to represent himself or herself on matters
related solely to the official's personal interests as defined in Title 2, California Code of
Regulations, section 18702.4(b)(I); or
(3) Actions by public officials relating to their compensation or the terms or conditions
of their employment or contract. In the case of public officials who are "consultants," as defined
in Title 2, California Code of Regulations, section 18701 (a)(2), this includes actions by
consultants relating to the tenns or conditions of the contract pursuant to which they provide
services to the agency, so long as they are acting in their private capacity.
(b) Notwithstanding Title 2, California Code of Regulations, section 18702.3(a), an
official is not attempting to use his or her official position to influence a governmental decision
of an agency covered by that subsection if the official:
(I) Appears in the same manner as any other member of the general public before an
agency in the course of its prescribed govenunental function solely to represent himself or herself
on a matter which is related to his or her personal interests. An official's "personal interests"
include, but are not limited to:
(A) An interest in real property which is wholly ov,lled by the official or members of his
or her inunediate family.
(B) A business entity wholly owned by the official or members of his or her inunediate
family.
(C) A business entity over which the official exercises sole direction and control, or over
which the official and his or her spouse jointly exercise sole direction and control.
(2) Communicates with the general public or the press.
-1-
18702.4
(CEB 8/99)
^
(3) Negotiates his or her compensation or the terms and conditions of his or her
employment or contract.
(4) Prepares drawings or submissions of an architectural, engineering or similar nature to
be used by a client in connection with a proceeding before any agency. However, this provision
applies only if the official has no other direct oral or written contact with the agency with regard
to the client's proceeding before the agency except for necessary contact with agency staff
concerning the processing or evaluation of the drawings or submissions prepared by the official.
(5) Appears before a design or architectural review committee or similar body of which
he or she is a member to present drawings or submissions of an architectural, engineering or
similar nature which the official has prepared for a client if the following three criteria are met:
(A) The review committee's sole function is to review architectural or engineering plans
or designs and to make reconunendations in that instance concerning those plans or designs to a
planning commission or other agency;
(B) The ordinance or other provision of law requires that the review committee include
architects, engineers or persons in related professions, and the official was appointed to the body
to fulfill this requirement; and
(C) The official is a sole practitioner.
(c) Academic Decisions
(I) Except as provided in subsection (c)(2), neither disclosure of financial interests nor
disqualification is required under Government Code sections 87100, 87302, or any Conflict of
Interest Code, in connection with:
(A) Teaching decisions, including the selection by a teacher of books or other
educational materials for use within his or her own school or institution, and other decisions
incidental to teaching;
(B) Decisions made by a person who has teaching or research responsibilities at an
institution of higher education to pursue personally a course of academic study or research, to
apply for funds to finance such a project, to allocate financial and material resources for such
academic study or research. and all decisions relating to the manner or methodology with which
such study or research will be conducted. Provided. however, that the provisions of this
{
- 2-
18702.4
(CEB 8/99)
(
-.
,
subsection (c)(I)(B) shall not apply with respect to any decision made by the person in the
exercise of institution- or campus-wide administrative responsibilities respecting the approval or
review of any phase of academic research or study conducted at that institution or campus.
(2) Disclosure shall be required under Government Code section 87302 or any ConfliCt
of Interest Code in connection with a decision made by a person or persons at an institution of
higher education with principal responsibility for a research project to undertake such research, if
it is to be funded or supported, in whole or in part, by a contract or grant (or other funds
eannarked by the donor for a specific research project or for a specific researcher) from a
nongovernmental entity, hut disqualification may not be required under Government Code
sections 87100, 87302 or any Conflict of Interest Code in connection with any such decision if
the decision is substantively reviewed by an independent conunittee established within the
institution.
t1Jlli:: Authority: Section 83112, Government Code.
Reference: Section 87100, Government Code.
lllil2Il!
(I) New section filed 10-17.88; effective thirtieth day thereafter.
(2) Repealer and new section filed 11-23.98; effective upon filing.
.3.
18702.4
(CEB 8/99)
[
,