HomeMy WebLinkAboutMINUTES - 03141989 - 2.2 f �
TO: ' BOARD OF SUPERVISORS _u
Phil
Phil Batchelor _L. Contra
FROM: County Administrator
Costa
March 6, 1989 County
P
DATE: 4syq-c---- c
SUBJECT: Family and Children' s Trust (FACT) Committee
SPECIFIC REOUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION•
Amend the Board' s Order of April 16, 1985 establishing the FACT
Committee to provide that no employee or board member of a public
or private agency may be a member of FACT, or any of its ad hoc
committees or subcommittees, regardless of the capacity in which
they serve on FACT or any of its ad hoc committees or
subcommittees, if the agency which employs them or the agency's
board on which they sit has an application for funds pending
before FACT. In addition, no agency may apply for funds from
FACT as long as they have an employee or board member who is a
member of FACT or any of its ad hoc committees or subcommittees.
BACKGROUND:
On April 16 , 1985, the Board of Supervisors consolidated a number
of advisory groups, each of which was responsible for
recommending the expenditure of a single source of money to the
Board of Supervisors. In their place, the Board of Supervisors
created the Family & Children' s Trust (FACT) Committee. FACT
receives applications for funding from the AB 1733 Fund, the AB
2994 Fund, and the Ann Adler Family & Children' s Trust Fund.
FACT includes representatives from United Way, HSAC, the AB 90
Criminal Justice Subvention Committee, the Children' s Coalition,
the Juvenile Justice Commission, Children and Adolescent Task
Force, MHAB, FACSAC, a private Foundation, and the Regional
Prevention Network. The composition was amended by the Board of
Supervisors on May 21, 1985 by adding a seat for the Maternal,
Child and Adolescent Health Advisory Board. On April 28, 1987,
the composition of the Committee was amended again to include a
representative of the Child Abuse System Review Committee.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
X RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
X APPROVE OTHER
SIGNATUREM:
ACTION OF BOARD ON March 14, 1989 APPROVED AS RECOMMENDED OTHER X
ADOPTED policy, as outlined above, relative to conflict of interest for members of the
Family and Children's Trust Committee (FACT) ; and REQUESTED County Counsel to clarify with
FACT the nature of the Board's current conflict of interest policy as it applies to FACT.
VOTE OF SUPERVISORS
1 HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS(ABSENT I I I ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
CC:
County Administrator ATTESTED
Social Services Director
County Counsel PHIL BATCHELOR,CLERK OF THE BOARD OF
Barbara Chase, Staff to FACT SUPERVISORS AND COUNTY ADMINISTRATOR
M382 (10/88)
BY � DEPUTY
Page 2
Concerns have been raised on several occasions because some of
the members of the FACT, regardless of the group they, are
representing on FACT, are also employees or board members of
private nonprofit agencies which are applying "for funds . from
FACT. The -issue was raised most recently by the Child Abuse
System Review Committee in a letter dated December 21, 1988.
In response to a request from the Social Services Department, .
County Counsel has issued an opinion which ' is summarized as
follows:
"In our opinion, a member of the FACT Committee
who is also on the board of directors of an agency,
or employed by an agency which is submitting an
application for funding, has a conflict of interest under
the Board of Supervisor's Conflict of Interest policy
when such member participates in the development of
funding priorities, RFP requirements, and development
of an evaluation process regarding said applications..
In the case of the employee member, a further conflict
may exist under the Political Reform, Act. This is true
even though the members refrain from voting on the
award of funds."
The State Department of Social Services, which is responsible ,for
monitoring the manner in which the County allocates funds from AB
1733 , has cautioned the County in writing against allowing
potential conflict of interest situations, which they define as
including:
"The inclusion of officers and employees of competing
county departments and other public agencies, and
the members, board members, officers, or employees of
competing private, nonprofit agencies, on the bid
development, evaluation and selection committees. "
(emphasis added)
In view of the County Counsel ' s opinion, warnings from the State
Department of Social Services and the Board' s own strongly
expressed views regarding even potential conflict of interest
situations, we are recommending that if a board member or
employee of a public or private ' agency wishes to sit on FACT or
any of its ad hoc 'committees or subcommittees, they may do so,
but no agency .of which they "are an employee or on the board. of
which they sit may. submit an application for funds under AB 1733 ,
AB 2944, or the Ann Adler Trust Fund. If such an agency wishes
to submit a funding application, they may do so, but no member of
the agency' s board and no employee of the agency may be a member
of FACT or any of its ad hoc committees or subcommittees.
Approval of the above recommendation, will do a great deal to
eliminate even the hint of a potential conflict of interest.
. a
TO: ` BOARD OF SUPERVISORS ...,
--�.......--°F
Family & Children' s ContraC
FROM: Trust Committee J/ Costa
March 1, 1989 ., P County
DATE: 4rpq-couK�`v
SUBJECT: Family & Children' s Trust Committee (FACT)
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
That the Contra Costa County Board of Supervisors direct County
Counsel to clarify their opinion (copies attached as Exhibits A,
B, and C) regarding conflict of interest directed to the Family &
Children' s Trust Committee (FACT) for the purpose of determining
their applicability to all boards and commissions acting in an
advisory capacity to the Contra Costa County Board of Supervisors
and/or the various County departments.
It is further recommended that the Board of Supervisors
thereafter establish uniform conflict of interest standards for
all above-mentioned boards and commissions.
BACKGROUND:
On December 17, 1987, the FACT Committee received a legal opinion
from County Counsel regarding appropriate conflict of interest
standards. On January 22, 1988, FACT received the attached
opinion (Exhibit A) ; on July 15, 1988, FACT received the attached
opinion (Exhibit B) regarding their status as an advisory versus
decision-making committee; and on September 16, 1988, all boards
and commissions received the attached (Exhibit C) "Conflict of
Interest Guidelines and Regulations" . These responses were
ambiguous and confusing.
The FACT Committee is attempting to establish uniform standards
and procedures for its members and is having difficulty in doing
so in light of this lack of clear direction.
CONTINUED ON ATTACHMENT: X YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
_ X APPROVE _OTHER
SIGNATURE(S):
TION OF BOARD ON March 14. 1989 APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS
I HE Y CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT ) AND COR T COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED HE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON DATE SHOWN.
County Administrator
CC: Director of Social Services ATTESTED
County Counsel PHIL BATCHELOR,CLERK O E BOARD OF
Barbara Chase, Staff to FACT SUPERVISORS AND COUNTY ADMI TRATOR
FACT Committee
BY DUTY
M382 (10/88)
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
Date: January 22, 1988 MARTINEZ, CALIFORNIA
To: James Rydingswood, Director, Social Services
Attn: , Sharon Johnson
From: Victor J. Westman, County Counsel
By: Vicki J. Finucane, Deputy County Counsel '"`J�
Re: Conflict of Interest, members of FACT committee vv
SUMMARY: In our opinion a member of the FACT committee who
is also on the board of directors of an agency, or employed by an
agency which is submitting an application for funding, has a
conflict of interest under the Board of Supervisor's conflict of
interest policy when such member participates in the development
of funding priorities, RFP requirements, and development of an
evaluation process regarding said applications. In the case of
the employee member, a further conflict may exist under the
�Politica°l Reform Act. This is true even though the members
refrain from voting on the award of funds. .
BACKGROUND:
i
In your memorandum of December 17, 1987 you asked whether a
member of the Family and Children's Trust (FACT). Committee who is
on the board of directors of, or employed by, an agencyr4submitting
an application to FACT for funding, has a conflict of interest.
You state that these members would not vote on which agency should
be funded, but would participate in the development of funding
priorities, R.F.P. requirements, and development of an evaluation
process. You have indicated that the sole purpose of the FACT
Committee is to make funding recommendations to the Board of
Supervisors .
The Committee consists of 11 members representing various
councils and boards throughout the County such as United Way,
Juvenile Justice Commission, and Children's Coalition. The
members in question, while representing one of the above 11
agencies, are on the board of directors, and employed by,
agencies. (other than the member agencies) which are seeking
funding.
The Fact Committee has been in existence for three ( 3) years,
and has been composed of different members throughout the three
years of its existence. However, you have indicated that whenever
the FACT Committee has made a recommendation regarding a specific
agency to be funded, the Board of Supervisors has followed that
recommendation.
EXHIBIT A _
Sharon Johnsc,r,. January 22, 1988
DISCUSSION:
Board of Supervisor' s Resolution No. 82/574 states in
pertinent part:
"Officials, Commissioners, and Committee
members appointed by this Board shall adhere to the
principles of the Political Reform Act of 1974
(Government Code Secs. 81,000 ff) . . . " (emphasis added)
Within the statutory scheme of the Political Reform Act,
Government Code 87100 states that:
"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. "
IlPul!zlic Official" has been defined by Government Code section
82048 to'''include consultants of a local agency.
Although you have indicated that the board members in
question would refrain from voting on the funding award, the fact
that they prioritize funding awards, set the requirements for, and
eventual evaluation of, those applications for funding, allow
for those "officials" to use their position to "influence a
governmental decision" by shaping the priorities, requirements and
evaluation to most favor the application of their own agency.
However, officials who are deemed to be "solely advisory" have
been exempted from certain requirements of the Political Reform Act
(See Govt. Code § 82019, Commission on Cal. State Gov. Org. & Econ.
v. Fair Political Practices Com. (1977 ) 75 Cal.App. 3d 716; 142
Cal.Rptr. 468) . In the present situation, you have indicated that
in the three years that FACT has been in existence, the Board of
Supervisors has always adopted their recommendations regarding
which agencies should be funded. Therefore, given the fact that
the Board of Supervisors has regularly approvedthe
recommendations of FACT, over an extended period of time the
"advisory" functions of FACT have tended to become decision-
making functions. (Compare County Counsel Opinion No. 87-79 . )
The court of appeal in Commission on Calif . State Government
Organization and Economy Id . stated:
The statutory exemption exists because solely
advisory officials are not decision-makers; they
only recommend. The presence or absence of
decision-making power is thus an important factor
-2-
1
c
Sharon Johnson January 22, 1988
in identifying the wielder of solely advisory
function. Id. at 721.
The track-record presently before us, in which the Board has
adopted all previous recommendations regarding agencies to be
funded, transforms the advisory function of FACT into a decision-
making function. Thus, it is the opinion of this office that
Government Code § 87100 would apply to the two members in question.
provided they have a financial interest in the subject of the .
decision. You have indicated that the member of FACT who is on
the Board of Directors of the applicant agency, serves on the
board without remuneration. Therefore, he would have no
"financial interest" in the awarded contract pursuant to
Government Code section 87100. However, the other member of FACT
is employed by an agency seeking a funding award. That his
continued employment, promotions, etc. may rest on the receipt of
funding is a possibility, but we have insufficient information in
this regard to determine what, if any, financial interest that
employee might have in the contract award.
Even if the employee were deemed not to have a financial
interest pursuant to Government Code sections 81,000 et seq. ,
Resolution 82/874 additionally adopts the common law policy -on
conflicts directing Board appointees to avoid "even any appearance
of conflict of interest." (See e.g. , Kimura v. Roberts (1979) 89
C.A.3d 871. ) In this instance, the appearance of a conflict is
unavoidable in the case of both members because of the function of
the FACT Committee.
CONCLUSION: Based on the facts available, we advise that the
presence of the two members in question on the FACT Committee
appear to give rise to a conflict of interest under the common
law as adopted by Board of Supervisors Resolution No. 82/574 .
Additionally, there may be a conflict of interest contrary
to the provisions of Government .Code section 87100 on the part of
the FACT Committee member who is employed by one of the applicant
agencies. However, we have insufficient information to determine
this at the present time.
VJF/jh
-3-
COUNTY COUNSELS OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: July 15, 1988
TO: Sharon Johnson, Administrative Services Assistant
Social Service Department
From: Victor J. Westman, County Counsel
By: Mary Ann McNett, Deputy County Counsel / Iz
IZ41
Re: Status of Family and Children's Trust Fund Committee
In your memo of April 5, 1988, you requested that we review
whether the Family and Children' s Trust Committee (FACT) is an
advisory body versus a decision-making committee.
Board Resolution No. 82/574 requires all committee members
appointed by the Board of Supervisors to adhere to the Board' s
Conflict of Interest policy. This resolution applies to all
committee members regardless of whether or not the committees on
which such members serve are solely advisory.
MAM/jh
EYHIBIT B
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Dare: September 16, 1988
To: County Boards, Commissions and Committees and their
Administrative Officers and Secretaries
From: Victor J. Westman, County Counsel "."
Re: Conflict of Interest Guidelines and Regulations
The Board of Supervisors has directed that members of County
appointed boards, commissions and committees be provided with a
copy of the Board of Supervisors ' general policy on conflicts of
interest (Resolution No. 82/574 ) and a summary of the provisions
of the Political Reform Act (Govt. C. §§ 81000-91015) pertinent
to their board, commission or committees' activities .
1 . Board of Supervisors' policy. Attached is a copy of
:;Board of Supervisors ' Resolution No. 82/574 which is the Board of
Supervisors' policy and guide for its appointees concerning
potential or actual conflicts of interest. You should review the
policy and take particular note
that its directs members of Board
appointed commissions, committees or similar bodies to conduct
their activities so that they "avoid even an appearance of
conflict. "
2. Political Reform Act. Every member of a Board of
Supervisors' appointed commission, board or committee for which
the Board of Supervisors has required the annual filing of
statements of economic interest is subject to all of the,
provisions of the Political Reform Act. For this reason, we have
attached a copy of the "Guide To the Political Reform Act of
1974 " prepared by the State Fair Political Practices Commission.
Each member of any Board of Supervisors' appointed county board ,
commission or committee required to file annual statements of
economic interests should review. the provisions of the attached
Guide and comply with them.
For those Board of Supervisors ' appointed County boards ,
commissions and committees that are "purely advisory" (and for
that reason, the Board has not adopted any local conflict of
interest code for them and required their members to file annua`1
statements of economic interests ) , the attached "Guide To The
EXHIBIT C -
1
County Boards, Commissions -2- September 15, 1988
and Committees and their
Administrative Officers and
Secretaries
Political Reform Act of 1974" should be used as a guide in
conducting their public bodies ' activities.
VJW/jh
cc: All Supervisors
Phil Batchelor, County Administrator
Attn: C.L. Van Marter
E BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
E
Adopted this Order on _ May 18, 1982 , by the following vote:
i%YES: Supervisors Powers,- Fanden . Schroder, Torla};son, and *1cPeak .
NOES: None .
ABSENT: None.
ABSTAIN: None.
SUBJECT: Policy for Board Appointees , concerning ) RESOLUTION No. 82/574
Conflict of Interest & Open Meetings. )
1. Statutes on Conflicts. Officials, Commissioners , and Committee
members appointed by this Hoard shall adhere .to the principles and rules
of the Political Reform Act of 1974 (Government Code Secs . 81,000 ff. ) ,
including the following:
(a) Local government should serve the needs and respond to the
wishes of all citizens eaually, without regard to their wealth. (Gov.C.
§E1GG1 {b) . )
(b) 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. §81001 [b) .)
(c) Public officials should disclose assets and income which
may be nat-c-.3 ally affected by their and . .r. appropriate
circumstan�,es they should be disqualified from acting, in order to avoid
conflicts of interest. (Gov.C. 581002 (d) . )
2. Common Law Policy on Conflicts. All such officials should so
conduct the public business as to avoid even any appearance of conflict
of interest. (See, e.g. , Kimura v. Roberts [1979] 89 C.A. 3d 871. )
3. Brown Act on Oben Meetings
(a) Policy . California' s "open meeting law" is the Ralph M.
Brown Act. (Gov.C. §§54950 and following. ) 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 State 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 give their -
public servants the right to decide what is good For
the people to know and what is not good for them to
know. The people insist on remaining informed so
that they may retain control over the instruments
they have created . " (Gov .C . 554950 . )
(b) Enforcemen-�_ . This policy is elaborated by
that local governmental bodies consider and act on public
open r`.eetings , which are enforceable by civil remedies and bv c::�i: �.•. -
ncnalties . All such officials must comply with the require:;: ,ts
a-_plicable to them.
wl
A GUIDE TO Introduction
THE POLITICAL REFORM The purpose of this pamphlet is to provide a brief over-
view of the conflict of interest provisions of the Political
ACT
OF 1974 Reform Act.' The Political Reform Act requires public oh"
eials at all levels of government to pubiicly disclose their
private economic interests and to disqualify themselves
from participating in decisions in which they have a Finan-
cial interest.This pamphlet is intended to help public offi-
cials understand and abide.by the laws concerning disclo-
sure and disqualification.It is also intended as a guide for
members of the public who are concerned about maintain-
ing impartial government decision-making. For persons
interested in conducting further research on the conflict of
CALIFORNIA'S CONFLICT OF interest laws,the pamphlet contains footnotes which cite
the applicable statutes and regulations,as well as selected
Commission opinions.
INTEREST LAW FOR PUBLIC The pamphlet ses and Fairocomme cesiticalsces with an introduction to he
Fair Political Practices Commission and the Political
O FFt. GALS Reform Act.It dh,z�i summarizes the disclosure and disquali-
ficatiort_areq4*,eftwnts'for pu5lic officials,and explains ho%v
to seek assistance from the fair Political Practices Commis-
sion concerning conflict of interest questions.±tte pam-
phlet concludes with a brief description of Government
Code Section 1090 and other laws which relate to conflicts
of interest,and suggests methods of obtaining additional
information about those laws.
The discussion in this pamphlet is necessarily general. it
CAIt FO RN IA FAIR POLITICAL well answer most of the basic questions about the conflict
of interest provisions of the Political Reform Act If you
have specific questions or problems,you should consult
PRACTICES COMMISSION the statutes,regulations,court decisions and the opinions of
the Fair Political Practices Commission.The Fair Political
Practices Commission will provide assistance with specific
questions about the Political Reform Ac,, You ai>o mai
wish to refer the matter to the attorney for the agency in
question or to a private attorney for consultation on spc�i;iC
requirements of the law.
Fair F006cal Prac#icrs Commiajor. ,
428 J Street, Suite 840
P.O. Sox 802 Fair Political Practices Commisslorl
SaairneM.o,Cart OMia 9M*4
The Fal., Poli;lca: Piactices CommiSci"a C_',•:.:< <: :.
Li s! division 916/322-5901 members, inci„din5 a iull•time chairnu-:
Stataments of Ecwo,r. Inters 916. 321-5662 three may be .3.m : Same political
Enfrttrttient division 916/322-&"l
--4— —5—
The disclosure required by a particular designated official Statements of economic interests must be kept on file b,,
or employee must be narrowly drawn to include only the the official's or employee'>agency and made available
kinds of economic interests he or she could significantly upon request.'-' Statement;of certain officials, including;
affect through the conduct of his or her office.9 for exam- elected state officials , members of the Legislature, judges,
ple,the executive officer of an agency with extensive regu- court commissioners,most high ranking state officials,
latory powers,through the exercise of his or her official many elected local officials,planning commissioners,city
position,could affect a broad range of private economic and county chief administrative officers,city managers,city
interests.The executive officer would thus be required to attorneys and county counsel are also available at the offi-
disctose all investments,interests in real property, sources ces of the fair Political Practices Commission.t3
of income,and business entities in which he or she is a
director,officer,partner,trustee,employee or holds any-
position of management.
In contrast,an employee of the same agency whose Who may be disqualified under
duties are limited to reviewing contracts for supplies,
equipment,materials or services provided to the agency the Political Reform Act?
would be required to report only those interests he or she
holds which are likely to be affected by the agency's con- The disqualification requirements of the Political Reform
tracts for supplies,equipment materials or services.The Act apply to all elected state and local government officials,
employee would report sources of income and business to all appointed state or local government officials,and to
entities in which he or she has an investment or is a direc- all governmental agency employees,except judges and
tor,officer,partner,trustee,employee or holds any position court commissioners."Unpaid members of boards or
of management if the business entity or source of income commissions and consultants to state or local government
is of the type which prc :des supplies,equiprnenL materials agencies who,on an ongoing basis,play a significant role in
or servtces.to.the,gens the decision-making process may also be required to dis-
Each government agency has a list of all agency officials qualif, ,themselves under the Act when faced with a deci-
and employees who must file statements of ecocxmnic sion that could affect their private economic interests-Is
interests.10 Anyone may inspect the conflict of i.teres code
and this list-
The Commission's Technical Assistance and Analysis Div-
ision provides assistance to public officials who have quer- What is a conflict of interest?
tions regarding the forms for disclosure of economic inter-
ests.Questions about the adoption or amendment of an A public official or employee has a conflict of interest
agency's conflict of interest code may be addressed to the when all of the following occur.
Commission's Legal Division. 1. The official makes,participates in,or uses his or hei
official position to influence a governmental decision;
• • 2. it is foreseeable that the decision will affect the offi-
vial's^C(DnOMIC in,^rest;
Are statements of economic 3. The effect of the de-vision on the official's economic
interest v.,111 be material;
interests available to the pubiic? 4. The effect of the decision on the official's economic
interest wIII be distinguishable from its effect on the publi
Statements of economic interests are public records.Any generally.
member of the public must be permitted to inspect and Each of these four components of a conflict of interest is
copy any statement during normal business hours. No more discussed '.glow.
than 10 cents per page may be charged for copes. No The first component o.`a conflict of interest is 1•teethe,
other conditions may be imposed on inspection and copy- the ofiicial makes, �wrticiaates in, or uses his or her oiiic,.'
ing. No one may be required to identify-himseli or herself position to influence a f)vernmen;al decision.'
or sign anything in order to be permitted to ins,--,t or copy
statements."
—g— —9—
The decision a.rects the oft`rcials personal hnancidl credit unions or Insurance policies,al;motly or child
status, or that of his or her spouse or dependent support;loans of S 10,000 or less from banks,credit
children.2b Tc-s does not apply, however,to decisions unions, or credit cards on terms generally availal)lr tit
which affect*,-e official's own government salarv. It the public;mortgages on a principal residence on
applies to anv decision which affects the government terms generally available to the public;loans from
salary of an oiii6al's spouse only if the decision is to family members;or most pensions,%
hire,fire, promote,demote or discipline the spouse, � + The decision affects a person or business entit)•from
or to set a salary for the spouse that is different from whom the official has received gifts of$250 or mora
salaries paid to other employees in the same job clas- in the past 12 months.3'This includes gifts from sour-
sification or position 21 ces inside and outside the official's jurisdiction,
* The decision affects a business entity located in, except for gifts from specified family members.sa Gifts
doing business in,owning real property in,or plan- provided to the official's spouse or children, rather
ning to do business in the official's jurisdiction, in than to the official,are generally not considered gifts
which the official,or his or her spouse or dependent to the official.39
child has an investment of S 1,000 or more 28 invest- • The decision affects a business entity,other than a
ments in a business entity include:ownership of nonprofit organization,in which the official is a direc-
stock,bonds,or commercial paper,a general or tor,officer;partner,trustee,employee or holds a post-
limited partnership interest;or any other form of tion of managernent'a
ownership interest in a business entity.Investments In order to create a conflict of interest,the effect of a
do not include:bank accounts;interests in mutual governmental decision on an official's economic interest
funds,money market funds,or insurance policies,or must be foreseeable"An.effect on an official's economic
government bonds or securities.29 Business entities interest is foreseeable when there is a substantial likelihood
include:corporations;partnerships;joint ventures; that it will ultimately occur as a result of a governmental
,sole proprietorships;and any other type of enterprise a iy„oin. Even during t4�A eliminary phases of a decision,
Operated fora profit-A nonprofit organization is not a t ot-ficial num con side t o ',ktw',t ,end result of a dec;-
business esti-,00 sion is likely to affect his or her economic interests.An
• The decision,affects real estate(real property)located
in the official's jurisdiction and the official,or his or effect does not have to be certain to be foreseeable;how-
ever,if an effect is a mere possibility,it is not foreseeable a2
her spouse or dependent child has an interest of.
$1,000vr more in that real estatejt interests in real The third component of a conflict of interest is whether
property include:ownershi (equity);deeds of trust the effect of the derision an the official's economic interest
mortgages);leaseholds;options to buy,and joint 4viI is scallmatey necessary
tenancies.32 A month-to-month lease is not an interest it is usually necessary to estimate the dollar value of the
in tea( ro effect of a decision on the.official's economic interest to
p r"�'-affe determine whether the effect is material.Specific circum-
located
decision affects a person or business entin• stances under which an effect is material are set forth in the
located in, doing business in, owning real property in,
or planning t1 do business in the official's jurisdiction, Commission's regulations”
from which :^e official has recei�ed income cf 5250 An effect of$250 or more on the income, assets,or out
or more, or r-e official's s use has received income i of pocket expenses of the official, or of his or her spouse or
of$500 or Wore, in the past 12 months-�'With ger- r dependent children,is materiai.4s For purposes of determin-
tain exceptions,income includes:salaries;commis- ;ng whether there is a conflict of interest,it does not matter
sions,rents; :-3yments received for goods or services whether the financial effect increases or decreases the
(including meats for sale of a home,automobile or income,assets,or expenses.
g p`' When an official has an investment rn,or receives
investment;; 3,ans (including loans previously made income from, a business entity, it is necessary to consider
but stili outs-_nme and other types p. how overnmenta'decisions would affect the bu�ines<
ments.35 Inc_-te means groo ss income or patments g
received, rarer than net income, profits or t moble entity. An official may be disqualified from part,c,pal"I'Z r,
income. In,-1:-ie does not include: governme-. salar- decision even thoigh the decision world not affect t' r
value of his or her investment or the aniount of into:„_.,,
inherit;:-_es;dividends. interest or premlu-ns from
pubii-iy ire;-� stock, mutual funds. bang acc punts, or she recc'+vts.``
if
—12— -13—
May a public official ever make a ment; it also may resuh In the official being Ineligible to ron
y P for public office for four.ears-, The fine for a willful tun.
decision in which he or she has a flit`of interest violation r,ay be up to 110,000; the fine
willfully failing to disclose an economic interest may be
disqualifying financial interest? to $10,000 or three times the amount not disclosed,
The law recognizes a type of"rule of necessity"for those ever is greater.68
rare situations in which a public official is legally required ! These penalties apply to violations of the disclosure
to make or participate in a decision,even though the offi- requirements of the Act by any public official.69 However.
tial has a disqualifying financial interest.S9 This rule is dif- they do not apply to violations of the disqualification provi-
ferent from the common law"rule of necessity."It applies sions of the Act by the Governor,other constitutional offic-
only when no one else has the legal authority to make or ers or members of the Legislature. They do apply to dis-
participate in the decision60 In such a case,the Political qualification violations by all other public officials.
Reform Act allows the official to make or participate in the t w
decision,so long as the existence and nature of the official's
financial interest is put on the public record,and the official How can a public official find
does not try to influence the decisions of others 61
An official is not legally required to make or participate in out if he or she has a
a decision simply because the official's vote is needed to
break a tie,or because the official is needed for a quorum conflict of Interest?
as a result of some other official's absence.62 However, if so When a public official suspects that he or she may have
many members of an agency are disqualified because of a conflict of interest in an upcoming decision,the attorney
conflicts of interest that no decision is possible because a for the official's agency should be consulted.The official.
quorum of qualified members cannot be convened,there is can also ask the Legal Division of the Fair Political Practices
a procedure for allowing some officials who hue w'd4stt ►,,- r
ifying financial interest to vote.In that case,the additional Commission for advice.Reque _ fog .yawn.advice are
-iumber of officials necessary to constitute a quorum may generally answered within 2] working da]s,71 although
be selected by drawing lots,or through some other method written or telephone advice may be given more quickly in
of random selection 63 The officials selected may vote,but urgent situations.If an official poses a question which is
must not otherwise act to influence the decision of the unusually complex significant or unique,the full Commis-
other members of`the agency,such as by making state- sion may issue an opinion,although this process takes
longer.72 The Commission provides advice only about the
menu or asking questions.64Political Reform Act the Commission will not answer ques-
t ons about Government Code Section 1090 or other 1 .•.s
which are not part of the Political Reform Act.
• • If the Commission advises an officialin writing that c:s-
qualification is not necessary, and the official has tru•,hfully
What are the penalties for provided all material facts, the official is provided %.ith
immunity against any administrative action brought by the
violation of the conflict of
Commission arisinc from the same conflict of interest
interest provisions of the charges. The written advice also serves as evidence of ;ao.:
faith conduct in a,-,y civil or criminal proceeding base.: on
Political Reform Act?, the same charges.-
The Fair Political Practices Commission can bring an The Commissio-•may only issue opinions or give 2\:%ice
regarding conflict;of interest to the o:f,cial who rn-t%
administrative action against an official who has violated to be disqualifies. )r to the official's authorized tet
the disclosure or disoualification requirements of the Politi-
cal five." Advice abo_ spt'cific situation will not lk
Reform Act, and may impose administrative pendl;ies of members of the �:%c. or to other pe-,ons ..ho
up to $2,000 for eacr,. violation.ts An official who vlci.ates ested in whether no: an official should be d"C'._
the Act may be subie--t to a civil lawsuit in which a court
from th.--
mdy impose d fine.!., willful Gf tie AC; iS a:S.^, a j -
misdemeanor, punl�-able by a fine and%or by impris,Dn- t
-16- -
" Gov.Code§87103 b
'= Gov.Code§82032.
" 2 Cal.Adm.Code§18233-
Gov,
18233_Gov-Code§87103(u.
# Gov.Code§82030ta:. i
" Gov.Code§82030.b:. 1
Gov.Code§87103(e(.
,e Gov.Code§§82028 and 82030(a).
1' 2 Cal.Adm.Code§18726.2.
10 Gov.Code§87103(d1.
" Gov.Code§87103. ;
42 In re Tlkxner 0 9751 1 FPPC Ops.198:see win v.Morrow 1977170
Cal.App.3d 817.
+1 Gov.Code§87103.
•' 2 Cal Adm.Code§§18702,18702.1 and 18702.2.
+s 2 Cal Adm.Code§18702-1(ai(4).
`+ Witt L.Mornow(1977)70 Cat.App.3d 817.
41 2 Cal.Adm.Code§18702.2.
" 2 Cal.Adm.Code§18702.2 tg1.
" 2 Cal Adm.Code§18702.21tl.
50 2 Cal Adm.Code§18702(b)(21.
$' 2 Cal Adm.Code§18702(x).
s1 2 Cal.Adm.Code§18702-1(a1(1)and(2!.
s, 2 CaL,Adm.Code§/.8702.1 ft.
$4 2 Cal.Adm.Code§18702.1(a)(3).
ss Gov.Code§87103.2 Cal.Adm.Code§18703:In re Legtn i 1985.9
FPPC Ops.1.
sa Gov.Code§87100:see.In re Biondo(19'5:1 FPPC Ops.5
S1 2 Cal.Adm.Code§18700(b)(5).
sa Gov.Code§91003(b).
" Gov.Code§87101.
a0 Affordable Housing AlLance v Feinstein 0 986) 179 Cal.ADO. 3d 484:
In re Hudson 1197814 FPPC Ops.13.
+' 2 Cal.Adm.Code§18701;in re Brown 09781 4 FPPC Ops_19.
Q 2 Cal.Adm.Code§18701(c).
+s In re Hudson(19 7814 FPPC Ops.13-
+' 2 CaL Adm Cede§l8701(b)(5).
GS Gov.Code 583116.
" Gov.Code§§91 005(bland 910055.
j1 Gov.Code§§91000 and 91002. .
- Gov.Code§91000(b,.
as Gov.Code§91013 also imposes tate fling fees on officals.ho fail to
Me timely statements of economic interests_
'0 Gov.Code§87102.
" Gov.Code§83114(b::2 Cal.Adm.Code§18329.
11 Gov.Code§83114,at:2 Cal.Adm.Code§§18320-18326.
1' Gov.Code§83114(b1.
1f Gov.Code§83114:2 Cal.Adm.Code§§18320 and 18329.
,s Gov.Code§§6250-6265.
!7 1So49
l
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ„ CALIFORNIA
Dote: - September 16 , 1988
To: County Boards, Commissions and Committees and their
Administrative Officers and Secretaries
From: Victor J. Westman, County Counsel
Re: Summary of selected Brown Act Provisions
The Board of Supervisors has directed that members of County
appointed boards, commissions and committees be provided with a
summary of critical provisions of the Ralph M. Brown Act (Govt.
C. SS 54950 et seq. ) which are pertinent to their board,
commission or committee's meetings.
A. Open Meetings. The Brown Act generally requires that
all County board, commission and committee (hereinafter called
"public body" ) meetings be open for public attendance, all
interested persons permitted to attend, and held on noticed dates
at fixed times and places . If the public body has established a
regularly scheduled meeting date, time and place that should be
sufficient for these requirements (but see additional *Agenda
Posting Requirements" below) of the Brown Act unless some person
has filed a written request to receive written mailed notice of
any regular meeting of the body (Govt. C. SS 54954 .1) . For
example, the public body could establish its fixed regular
meeting time, place and date as the second Thursday of every
month at 7 p.m. , at 5: 15 Brown Street, Bethel Island.
B. Closed Sessions . There are a number of express grounds
(to receive legal advice concerning threatened or pending
litigation, etc. ) authorizing adjournment of a public body from a
public meeting to a closed session. However, this office
envisions only the rarest of situations arising in which the
public body would be permitted to go into closed session. For
this reason, we suggest that if the public body feels a closed
session may be justified, the body should authorize its
chairperson or staff to contact this office to discuss whether a
closed session would be appropriate.
C. Agenda Posting ReQuirements . Since January 1 , 1987
legislative changes to the agenda provisions of the Brown Act
have imposed notice of meeting requirements for involved public
bodies . For this reason, we have set out those requirements in
some detail below.
• County Boards, Commissions -2- September 15, 1988
and Committees and their
Administrative Officers and
Secretaries
1 . Regular Meeting Notice and Related Provisions .
a. Agenda notice requirement. At least 72 hours
before each scheduled regular meeting, an agenda containing a
brief general description of each item of business to be
transacted or discussed at the public body's meeting must be
posted (Govt. C. § 54954 . 2(a) ) . This agenda must specify the
time and location of the regular meeting and must be posted in a
location freely accessible to members of the public during the 72
hour period (Govt. C. S 54954 .2(a) ) . In this offices' view, the
posting of the agenda in an area (lobby, etc. ) of an appropriate
public building open at least during ordinary business hours
should be sufficient to satisfy this requirement. If an item is
not specified on the 72 hour advanced notice agenda, no action
may be taken on it at the meeting except as discussed below in
subsection b.
b. Exceptions to 72 hour agenda notice. Action may be
taken on items which are not set forth on the posted 72 hour
agenda where:
(1) The majority of members of the public body vote
and find that an emergency exists which involves a work stoppage
or other activity which severely impairs public health, safety or
both or a crippling disaster which severely impairs public health
and safety or both.
(2) Upon a determination by a two-thirds vote of the
public body (or all of the public body where less than two-thirds
of its members are present) that the need to take action arose
subsequent to the posting of the agenda.
( 3) The item was posted for a prior meeting, but
action on the item was continued to the present meeting, which
is not more than five calendar days after the meeting for which
the item was posted.
C. Public Input. Every agenda for a regular meeting
of a public body must provide an opportunity for members of the
public to directly address the body on items that are within the
subject matter jurisdiction of it. If a member of the public
addresses an item not appearing on the 72 hour advanced agenda.,
no action may be taken on that item unless such action is
authorized under exceptions b( 1 ) , (2 ) or ( 3) above.
2 . Special meeting notice requirements . State law requires
that an order to call a special meeting has to be provided by 24
hour advance notice to each member of the public body (unless it
had been appropriately waived) and to each local newspaper , radio
i
�f
County Boards, Commissions . -3- September 15, 1988
and Committees and their
Administrative Officers and
Secretaries
or television station who had requested notice in writing . In
addition, the call and notice of the special meeting must be
posted at least 24 hours prior to the special meeting in a
location that is freely accessible to members of the public. It
would appear that this requirement can be satisfied in the same
manner that it is for posting for regular board meetings. (Govt.
C. § 54956 . )
3. Emergency meeting notice requirements. State law allows
the calling of emergency meetings in specified circumstances
(work stoppages, crippling disasters, or other activities which
will severely impair public health, safety or both, as determined
by a majority of the public body) without complying with the
special meeting 24-hour notice or 24-hour posting requirements .
But each newspaper and radio or television station who has filed
a request for special notice must be noticed at least one hour
prior to the emergency meeting by telephone. If "telephone
services are not functioning, said newspaper, radio or TV
stations must as soon as possible be notified of the conclusion
of the meeting and any action taken at it. The minutes of the
emergency meeting must note the list of persons notified or
attempted to be notified, of the emergency meeting. Any action
taken at the emergency meeting must be posted for a minimum of 10
days in a public place as soon after the meeting as possible.
(Gov. C. S 54956 .5 . )
4 . Procedure to void actions taken in violation of the
Brown Acts ' requirements (posted notice of agendas, etc. ). The
Brown ACt set forth a procedure for invalidating actions of a
covered public body taken in violation of that Act (Govt. C. §
54960 . 1) . The procedure provides that before any interested
person may initiate legal action to obtain a judicial
determination of whether the public body has violated the Brown
Act and that any action taken is null and void, the person must
make a written demand on the public body to cure the alleged
defect. If your public body receives such a demand, it should
immediately be brought to the attention of the County Counsel ' s
Office.
Should the demanding party file and succeed in litigation,
the court can allow that demanding party costs and reasonable
attorneys fees against the public body (Govt . C. S 54960 . 5 ) .
Conclusion . As can be seen from the foregoing, it is very
important that your public body properly prepare agendas and
provide required notice of its meetings . If these procedural
mattes are not done correctly, interested parties may take
actio:: to void actions taken at an improperly noticed meetinc .
If yolr public body has any particular questions concerning mese
County Boards, Commissions -4- September 15, 1988
and Committees and their
Administrative Officers and
Secretaries
requirements, please have your chairperson or administrative
staff contact our office for clarification.
VJW/jh
cc: Board of Supervisors
Phil Batchelor, County Administrator
Attn: Scott Tandy