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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 . \1-". . t , .~ Synopsis of Previous Council action: N/A Recommended motion: N/A ,^ _2 -::; /- ,f 4f/}<t//? / / C~l/",-,\ 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: -jj:: / 'J 3/~:jd3 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) IIIJ ...~: !~~ ,- ':' .l1li;--'-';>';" ... ,,~~,.. (~-' "'~ '( 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) Page 19 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) Page 21 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) Page 22 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) Page 23 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 (Continued on page 25) Page 25 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 ^ r , ! I I , I ! 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. 12/08/00 ^ (- ( ( 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. 12/08/00 r~ { ( .: ~;:~:;p~~t 1 ';;: :~ Section 1090. 1090.1. 1091. 1091.1. 1091.2. 1091.3. 1091.5. " 1092. 1092.5 . 1093. f. .' .;: ~ -~. ) .,' 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. ~ ~. 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. 1 I i . " ~ 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. ji " " !l Ii {1 ~ :h I' >~ ~ ~ , 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 1 , ~ SectIon 87102. 87102.5. POUTlCAL REFORM nde 9 ~ ; I " , f 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) [ ,