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CITY OFSAN1.' BERNARDINO 300 NORTH "0" STREET. SAN BERNAROINO.CALIFORNIA 92418
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October 26, 19B7
JAMES F, PENMAN
CITY ATTORNEY
(7141384-5355
Opinion No. B7-57
10.37
HON. EVLYN WILCOX, MAYOR
Re: Conflict of Interest
(Councilwoman Valerie Pope-Ludlam)
ISSUE
At the meeting of the Mayor and Common Council on Monday,
October 19, 1987, an issue was before the Council relating to a
change in scope of the investigatory powers of a Council
committee relating to the Police Department. It was apparent
from the discussion before the Council that the intent was to
investigate citizen complaints and other aspects of the
Department operations. On that basis this office advised
Councilwoman Valerie Pope-Ludlam that she should abstain from
voting on the matter due to the fact that she is presently
under investigation by the Department. She declined to follow
our advice. You have inquired as to the "reason for the
conflict and possible consequences of Ms. Pope-Ludlam's
actions."
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ANALYSIS
There are numerous conflict of interest prOV1Slons in state law
which relate to financial or contractual conflicts. These can
be found in Government Code Section 87100 et seq. (the
Political Reform Act of 1974), Government Code Section 1090 et
seq., and Health and Safety Code Section 33130 (relating to
redevelopment agencies). However, the instant question does
not relate to a contractual conflict of interest; rather, it
relates to whether or not the public officer can in every
instance give complete loyalty to the public. What may be more
important in these situations than individual intent is
perception. Public officers should at all times not only be
impartial but give the appearance of impartiality.
Nb 2-
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Hon. Evlyn Wilcox
October 26, 1987
Page Two
The relevant provlslon in this question is the common law
doctrine concerning conflicts of interest:
ftSuch doctrine . . . . strictly requires
public officers to avoid placing themselves in
a position in which personal interest may come
into conflict with their duty to the public.'ft
(67 Ops.Cal.Atty.Gen. 381, and 59 Ops.Cal.Atty.
Gen. 604, 613)
Certainly, it goes without question that an officer who is
under investigation by the Police Department cannot give the
City his or her undivided loyalty when faced with a decision
affecting the investigating department.
The Attorney General has concluded that a violation of the
common law rule ftcould form the basis of an allegation of
willful misconduct in office within the meaning of [Government
Code] Section 3060 et sea.ft (59 Ops.Cal.Atty.Gen. 604, 614).
Although the provisions of Government Code Section '3060 et seq.
relating to removal of officers by Grand Jury accusation are
not applicable to charter cities (see People v. Hulbert (1977)
75 Cal.App.3d 404: and, Curohev v. Superior Court(1959) 169
Cal.App.2d 261), such an act could certainly provide the basis
for a proceeding to remove from office under the City Charter.
The Charter provides:
ftThe Common Council . . . may expel
a member [of the Council] or any city
officer for . . . the willful violation
of any penal law, or any provision of this
Charter: but in every case the member or
officer accused, if holding office for a
definite term shall be entitled to have
written charges preferred and be heard
in his own behalf. .. ft (Charter of the
City of San Bernardino, Article III, Section
34)
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The common law doctrine relating to conflicts of interest is
such a penal law (see Black's Law Dictionarv, 5th Ed. pg. 1020:
Words and Phrases, Vol. 3lA, pg. 394).
In addition, Article II, Section 15 of the Charter of the City
of San Bernardino provides in pertinent part as follows:
ftAn office becomes vacant when the
incumbent thereof . . . is . . . convicted
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Hon. Evlyn Wilcox
October 26, 1987
page Three
of a felony or of any major offense involving
a violation of his official duties, or is
removed from office . . . n
Penal Code Section 661 adds to every violation of official duty
by a city officer the penalty of removal from office. The
result of Penal Code Section 661 when read with Article II,
Section 15 of the Charter is that a violation of the common law
doctrine against conflict of interest could be the basis for a
prosecution for a violation of a council member's official
duties. A conviction could result in removal by the judge or
could serve as another basis for removal by the Council under
Article III, Section 34 of the Charter.
CONCLUSION
The advice of this office that Councilwoman Pope-Ludlam had a
conflict of interest was based on the current investigation of --
her by the Police Department, and the proposed action by the
Council to authorize an investigation of the Department. Such
a conflict of interest could form the basis of an action for
removal from office by the City Council, or could result in
prosecution for violation of her official duty. Such
prosecution could res1t in removal by the judge or serve as an
additional basis for removal from office by the Council. It
should be noted that the District Attorney might be very
hesitant to prosecute based on a common law doctrine unless the
violation was most egregious.
submitted,
BARLOW
City Attorney
DAB:cm
cc: City Administrator
City Clerk
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