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HomeMy WebLinkAboutMINUTES - 12192000 - C117 F THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on December 19, 2000 , by the following vote: AYES: Supervisors Gioia, Uilkema, DeSaulnier and Gerber DOES; Mane ABSENT; District V Seat is vacant ABSTAIN: None Subjects Report on Conflict of Interest Code for the Agricultural Task Force . On this date the Board of Supervisors considered the report from the Office of the County Counsel on the adoption of conflict of interest codes for advisory bodies as requested by the Board of Supervisors on November 14 , 2000 . ?T IS BY THE BOARD ORDERED that the report as attached is ACCEPTED. hereby certify that th s Rs a true and correct copy of ars action; taker. and enitered on the €i.-m.Etes of t,%e Board of Supervisors Or the date shown PKK BATCHELOR, C erk of the Board of ervis and Gcrn � Admin strator �� 'D Deputy Office of the County Counsel Contra Costa County 651 Pine Street, 9th Floor Phone: (925)335-1800 Martinez, CA 94553 Fax: (925)646-1078 Date: December 1, 2000 To: Members of the Board of Supervisors FFr!.pn: Victor I Westman, County Counsel By: 'glary Ann McNett Mason, Deputy Co=unty Counsel /V�/- Re: Adoption of conflict of interest cedes for advisory bodies Can November 14, 2000, the Board of Supervisors asked that in December 2000 we provide a report on whether it is necessary at this time to adopt a conflict of interest code for the Agricultural Task Force. Attached is our report on this matter pursuant to the Board's request. MAM\am attachments cc: County Administrator Dennis Barry, Director, Community Development Department Office of the Couniy Counsel Contra Costa County 651 Fine Street, 9th Floor Phone: 1925)335-1800 Martinez; CA 94553 fax. (925)945-107$ Date: December 1, 2000 To: Members of the Board of Supervisors From Victor J. Westman, County Counsel By; Mary Arm McN ett Mason,Deputy County Counsel IV, Fie; Solely advisory bodies are not required to adopt a conflict of interest code LSummaj:y: Merely advisory bodies do not need to adopt conflict of interest cedes. Presently there is a lack of sufficient information to determine whether the Agricultural Task Force is a solely advisory body with no decision making power. If the Task Force in the future establishes a record for having its recommendations adopted by the Board of Supervisors or County department heads over an extended period of time, initiation of the process to adopt a conflict of interest code should then be undertaken. Even if the Task.Force is solely advisory, its members are subject to the Board of Supervisors policy on conflict of interest. (Resolution No. 82/574, copy attached.) Bggkground: Ourunderstanding of the facts is as follows. Can June 20, 2409, the Board of Supervisors reestablished the Agricultural Task Force. The Task Force is charged with the following functions. providing assistance to the Community Development Department related to the review of potential zoning code amendments to implement Agricultural Resource Policies of the General Plan;providing advice and input to the Department related to program review of the Williamson Act and the Super Williamson Act; holding quarterly meetings to discuss issues related to agriculture; and providing expertise upon which. County staff can rely for advice on programs or issues related to agriculture. (See Board of Supervisors Carder of June 20, 2000.) Can'november 14, 2440, the Board.of Supervisors appointed various individuals to the Agricultural Task Force. (See Board of Supervisors Carder of`'november 14, 2000.) At that time, we were asked when it is appropriate to require an advisory body such as the Task Force to adopt a conflict of interest code. Discussion: The Political Reform Act requires the Board of Supervisors to designate local agencies required to adopt a conflict of interest code. (Gov. Code, §§ 87300, 57301.) The code must list decision-making positions and require the incumbents of those designated positions, the"designated employees,"to file periodic financial disclosure statements. (Gov. Cade, §§ 82019(c), 87302.) Purely advisory bodies do not need to adopt a code because they have no designated employees. "`Designated emp;oyee' does not include ... any unsalaried member of any board or cornmiss:on which serves a,solely advisory function." (Gov. Code, § 82019, see County Counsel Opinions 78-137, 81-66, 97-56.) December 1, 2000 Iia e 2 California courts have analyzed the meaning the terra "advisory" as follows: "..Advisory is authoritatively defined as having tae attribute of advising, giving or tending to give advice; in the context of section 82019 the signification of advice is opinion given or oj�ered as to action. (The Oxford English Dict.) When these definitions are fleshed out by cognitive notions,the word advisory denotes indirect, relatively passive, hortatory and non-binding counsel or guidance, as contrasted with active management, decision-making and imposition of obligatory orders or decrees. (See Roget's Thesaurus St. Martin's gess, 19363 Headings. 689, 691.) "In section 82019, the exemption. statute, the phrase solely advisory appears as descriptive of function. The exemption provision is part of a statutory structure aimed at preventing conflicts of interest. The objective is to enhance the purity of decision-making by excluding participants who have a personal financial stake in the decision. The statutory exemption exists because solely advisoryofficials are not decision-makers; they only recommend. The presence or absence of decision-making power is thus an important factor in identifying the wielder of a solely advisory function." (Comm. Can Cal. State Govt. Organization and Economy v. F.P.P.C: (1977) 75 Cal.App.3d 716, 721.) The Fair political Practices Commission has promulgated a regulation that specifies when boards or commissions possess decision-making authority. "..a A board or commission possesses decision-:making authority whenever: "(A) It may make a final governmental decision; "(B) It may compel a governmental decision; or it may prevent a governmental decisionn either by reason of an exclusive power to initiate the decision or by reason of a veto which may not be overridden; or "(C)It makes substantive recommendations which are, and over an extended period of time have been, regularly approved without significant amendment or modification by another public official or governmental agency." (Cal. Code Regs.,tit. 2, § 18701(a)(1), copy attached.) The Board orders creating a given committee establish the parameters of the committee's authority. In this case, the order recreating the Agricultural Task Force does not authorize the Task Force to make, compel; or prevent a final governmental decision. Thus, the basis for requiring a conflict of interest code is not apparent from the enabling order itself. In December 1, 2000 PaRe 3 this circumstance, it is necessary to consider whether the body's recommendations are routinely approved. The reestablished Task Force has been in existence for a very short period of time. Presently there is insufficient information to determine whether the Task Force makes substantive recommendations that are(and over an extended period of time have been)regularly approved without significant amendment or modification by the Beard of Supervisors, or the Community Development Department, or the Department of Agriculture. In the future, if the Task Force establishes a record of having its recommendations regularly approved,the Task Force should be designated as an agency requiring a conflict of interest code. (See, the FPPC Fact Sheet,"Facts About Advisory Committees,"copy attached.) Even if the Task Force is solely advisory for purposes ofthe Political Reform Act, all members of the Agricultural Task Force are subject to the Board of Supervisors' policy on conflict of interest as stated in Board of Supervisors Resolution 82\574. The Board's policy requires adherence to the principles of the Political Reform Act and additionally prohibits common law conflicts of interest and directs Board appointees to avoid any appearance of conflict of interest. If the Task Force were designated as a body required to adopt a conflict of interest code,the position of Task Force member would be designated as a position with reporting obligations, Task.Force members would be required to complete annual financial disclosure statements(FPPC Form.700)and would have to disqualify themselves from participation in decisions in which they have a material financial interest, i.e., a decision affecting a member's real property, or a member's source of income, or a member's business entity,within the parameters set forth in the regulations of the Fair Political Practices Commission. In addition, insofar as Task Force members would serve in positions designated in the conflict of interest code, the members would be"designated employees." (Gov. Code, § 82019(c).) As such,they would be subject to Government Code section 89503 which prohibits a designated employee of a local agency from accepting gifts in excess of$300 from a single source in a calendar year if the member would be required to report receipt of income or gifts from that source on his or her financial disclosure statement. (Gov. Code, § 89543(c); Cal. Code begs., tit. 2, § 185940.2 (a).) Task Force members also would be subject to Government Code section 89502 which prohibits a designated employee of a local agency from accepting an honorarium: from amy source if the member would be required to report receipt of income or gifts from that source on his or her financial disclosure statement. (Gov. Code, § 89502(c).) AM/j h attachments cc: County Administrator Dennis Barry, Director, Community Development Department i. THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopw this Omer on May 18, 1982 ,by the following V014: AYES: Supervisors Powers, randen, Schroder, Torlakson, and. MoPeak. NOES: None. ABSENT: N0ne`- AIN: Horse. S1.91ijEcT: Policy for Board Appointees, concerning ) RESOLUTION its. 82,/574 Conflict of Interest r. open 1. statutes on Conflicts. officials, Commissioners, and Committee members appo z�te , s Board shall adhere to the principles and ruses of the political Reform Act of 1574 (Government Code Secs, .81,000 ff.3 , including the following: (a) Local government should serve the needs and respond to the wishes of all citizens ,squally, without regard to their wealth. (Gov.C. 51310(31$b 3.8 (bY Public officials should perform their duties in an impar- tial manner, free from bias caused by financial interests of themselves or their supporters. (Gov.C. Seloolib3 .) {c} public officials should disclose assets and income which may be materially affected by their official actions, and, in appropriate circumstances they should be disqualified from acting, in order to avoid conflicts of interest.. (Gov.C. 581002.[d3 .3 2, Common Law Polio on Conflicts. A13. such officials should so conduct e p c us Hess as to avoid even any appearance of conflict of interest. (See, e.g., Kimura v. Roberts [19793 89 C.A.3d 871.; 3. Brown Act. on Open Meeti,M (a) po .i . California°s "open meeting law" is the Ralph M. Brown dict. (Gov.C. 5554950 and fallowing.) This statute declares the general public policy of the State as follows: "In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this Mate exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. "The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not dive their public servants the right to decide what is good for the people to }snow and what is not good for them to known. The pule insist on remaining informed so that they may retain control over the instruments they have created.." (Gov.C. 554950.) (b) Enforcement. This policy is elaborated by requirements Haat local gov-arab—F dies consider and act on public business in open meetings, which are enforceable by civil remedies and by criminal penalties. All such officials must comply with the requirements applicable to thom. IftrebyettlMythwthishrs€rvo#n4vore j0*pyof W7 todon tskeaa and entered on the minutes cif tht Vold of&crWW'Sors on the dote shovers. Odg. Dept; Clerk of the Hoard elrT58i"EL3; CC: Co. Administrator J.R. OLSSON C UNTYC4ERK County Counsel ex 061 to Cdsrk of the Board District Attorney All County Departments and GWK:eg Fire Protection Districts By t NWO —cnl1+ t t r%n No. '82lri74 t § 187€0.1.. . BARCLAYS CALIFORNIA CODE OF REGLILA"I"IONS Tine 2 3.Amendment of section heading and repeater of subsections(e)and(f)filed (b)Cather Public Officials Who Manage Public Investments. 8-2-85;effective thirtieth day thereafter(Register 85,No.33). (I)The following definitions shall apply to this regulation: 4.Amendment cf section and N=,filed 6-23-94;operative 6-23-94(Register (,A)"Public investments"means the investment of public honeys in 94,No.25). real estate,securities,or other economic interests for the production of 5.Editorial cormction of subsection(a)(2)(R)(Register 96,No.43). revenue or other financial return.. 6.Anis tdment of subsection(d)(2)fled 10-23-96;operative 10-23-96 pursuant (g)"Public moneys"means all moneys belonging to,received by,or to Governfnent Code section 11343 4(d)(Register 96,No.43). held ry ti e state,or any city,county,town,district,or public agency 7.Editorial correction of subsection(d)(Register 98,No 44). therein,or by an officer thereof acting in hi s or her official capacity,and 8.Repealer and new section.filed 11-23-98 operative 11-23-99 pursuant to the includes tate proceeds of all bonds and other evidences of indebtedness, :974 version of Government Code section__38.,.2 and title 2,California Code of Regulations,section '8312(d)and(e)(Register 98,No.48). trust funds held by public pension:and retirement systems,deferred com- 9.Editorial change reforinatting table(Register 98,No.521). pensation funds held for investment by public agencies,and public rto- l0.Change withou,regulatory effect a_ ^ding table filed 1-27-99 pursuant to net's held by a financial institution:ender a trust indenture to which a pub- section loo,title t,California Code of Regulations(Register 99,leo.5). lir agency is a party. 11,l ditonat con=tion of HISTORY 8(Register 2004,No.25). (C)"Management of public investments" reacts the following non- 12.±bange without regulatory effect amending table filed 7-18-20100 pursuant to tri tiistenal functions:directing the investment of public moneys;formu- section I0o,title 1,California Code of Regulations(Register 200,No.29). eating or approving investment policies;approving or establishing guide- lines for asset allocations;or approving investment trarisactions. §18700.1. Using Official Position to Influence(87100). (2)"Other public Officials Who Manage Public Investments,"as that NOTE: Authority cited; section 83112,Govetrmeut Code.Reference: Section term is used.in Government Code section 87200,mewls: 87100,Government Code. (A)Members of boards and commissions,including pension and re- H:s tt7RV Lire rent boards or commissions,or of coin mitees thereof,who exercise ..New section filed 8-2-85;effective thirtieth day thereafter(Register 85,Na. responsibility for the rnanagertient of public investments; 33,. 2.Repealer filed 11-23-98;operative I 1-23-98 pursuant to the 1974 version of (B)High-level officers wid employees of public agencies who excr- Governme:t Code section 11380.2 and title 2,California Code of Regulations, cine primary responsibility for the tr,annagement of public investments, section 18312(4)and(e)(Register 98,No.48). such as chief or principal investment officers or chief fi FACTS ABOUT ADVISORY COMMITTEES Salaried or unsalaried members of boards or commissions with decislonmaking authority are required to be designated in conflict of interest codes. However, members of boards or commissions that are solely advisory are not required to be included in conflict of interest cedes and are not subject to the disclosure and disqualification provisions of the Political Reform Act. A board or commission possesses decisionmaking authority whenever: (A) It may make a final governmental decision; (B) It may compel a governmental decision; or it may prevent a governmental decision either by reason of an exclusive power to initiate the decision or by reason or a veto which may not be overridden-, or (C) It makes substantive recommendations which are, and over an extended period of time have been regularly approved without significant amendment or modification by another public official or governmental agency. (Regulation 1 700 (a)(1).) Generally, the Commission has held that for newly-created advisory boards or commissions, where a history or pattern of recommendations has yet to be established, the board or commission is '°solely advisory" unless the enabling legislation or ordinance creating the board suggests otherwise. The determination as to whether or not a board or commission Is solely advisory fs Atactual bred.` To assist in this determination, a synopsisdf se�eral`edetice letters'Issued by the Cdrnr�aisslon to'v dous public a encles Is outlined on`tlte're�r�rso side bf this`fact s edt."Please contact the Commission at (916) 322-5660 to re Iva a lea'6f any of these tetters: C01WHO/I FRIe No. Synopsis 96$127 The West Contra Costa Transportation Advisory Committee needs to adopt a conflict of interest code since it has the decisionmaking power to enter into contracts, and to employ or contract for the services of consultants, engineers, or attorneys. 95-279 The City of San Pablo's Gaming Oversight Committee is solely advisory and is not required to adopt a conflict of interest code. If the committee makes substantive recommendations that are regularly approved without significant modification over an extended period of time, the committee would need to be included in the city's conflict of interest code. 94-307 The City of Healdsburg's Economic Development Commission is not a decisionmaking body. If the commission makes substantive recommendations which over an extended period of time are regularly approved without significant modification, thea it will be considered a decisionmaking body and its members will be subject to the conflict of interest provisions of the Act. 91-503 The Cayucos Citizens Advisory Council makes substantive recommendations to the San Luis Obispo County Board of Supervisors regarding preparing and amending the local general plan, as well as other issues and concerns brought the council's attention, such as parking and property development issues. The council's recommendations are regularly approved without significant modification by the board of supervisors. The council is a decisionmaking body and its members are subject to the disclosure and disqualification provisions of the Act. 90®665 A local task force formed to assist papa County with the preparation and .adoption of various solid waste plans and elements is an advisory body. if the task force begins to make substantive recommendations to a governmental agency that are regularly approved without significant modification, the members will become public officials subject to the disclosure and disqualification provisions of the Act. 88-460 The City of FremontliGeneral Rian Advisory Committee is not a decisionmaking board or commissions. Irk-thp{future, if the committee makes substantive recommendations that are regularly approved without significant modification by the planning commission or city council over an extended period of time, committee members would need to be included in a conflict of interest code.