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HomeMy WebLinkAboutNB02-City Attorney c ..--:--, ' ...~ ~':;... , ,., \ ftECEIVED-CI1Y '=LERI' CITY OFSAN1.' BERNARDINO 300 NORTH "0" STREET. SAN BERNAROINO.CALIFORNIA 92418 , , .'" '87 OCT 2B P5 :27 , . .. 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." - 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- c ......, 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) - 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 . (- - . ,~" ......- 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 Cooour: 1 /1 / At '.~. I.) "-~"-. City Attorney , I " , I , ,./