HomeMy WebLinkAboutMINUTES - 04101990 - IO.2 TO: BOARD OF SUPERVISORS Contra
FROM: INTERNAL OPERATIONS COMMITTEE
- 5 Costa
t. � County
March 26, 1990
DATE: t q COLT"
REPORT ON ISSUES RELATIVE TO CONFLICTS OF INTEREST ON PLANNING
SUBJECT: COMMISSIONS
SPECIFIC REOUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
REC0101MDATIONS
1. Request the Community Development Director to share with the
members of all planning commissions (County Planning
Commission, East County Regional Planning Commission and
San Ramon Valley Regional Planning Commission) the County
Counsel' s memo of March 15, 1990 regarding conflicts of
interest. In addition, ask the Community Development
Director to request that the nominating Supervisors and
cities review this report with their commissioners.
2. Request the Community Development Director to remind all
planning commissioners of the need to insure that a quorum
which can vote without conflicts of interest is essential
when critical matters come before the planning commissions
and that the attendance of all members is therefore most
important.
3 . Request applicants for all seats on all planning commissions
to reveal any property holdings they have either in the
County in the case of the County Planning Commission or in
the area of the County over which a regional planning
commission has jurisdiction in the case of a regional
planning commission prior to their application being
considered.
4. Ask all members of the Board of Supervisors and the .
nominating cities in the case of the three East County city
CONTINUED ON ATTACHMENT:VPC YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE O ER
SIGNATURE(S): T 4cPEAK �T6M POWERS
ACTION OF BOARD ON_ April 10, 1990 1 APPROVED AS RECOMMENDED X OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS(ABSENT ) 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 . 1990
County Counsel PHIL BA CHELOR,CLERK OF THE BOARD OF
Community Development Director SUPERVISORS AND COUNTY ADMINISTRATOR I
BY
M382 (10/88) DEPUTY
seats to be sensitive to the fact that extensive property
holdings in the area of the County over which a planning
commission has jurisdiction can create a conflict of
interest situation in which the commissioner can not vote on
matters before the Commission and that this possibility.
should be considered before nominating individuals for seats
on any of the planning commissions. In addition, the
nominating cities and Board of Supervisors need to be
mindful of the fact that extensive work as a real estate
broker, land use consultant, appraiser or other
property-related economic activity may also constitute a
conflict.
5. Request the Community Development Director to furnish each
commissioner a copy of County Counsel' s memorandum dated
January 5 , 1990, particularly calling to their attention
paragraph 2 of Resolution 82/574 which calls on all public
officials to so conduct the public business as to avoid even
any appearance of conflict of interest.
6. Remove this item as a referral to our Committee.
BACKGROUND:
On November 28 , 1989 the Board of Supervisors referred to our
Committee issues relative to East County Regional Planning
Commission conflicts of interest and/or lack of attendance at
Commission meetings because of problems the Commission had in
reviewing and acting on the Oakley General Plan Amendment and the
Bethel Island Specific Plan because of conflicts of interest and
the fact that some commissioners were are vacation at critical
times in the review process.
On March 26 , 1990 our Committee received and reviewed the
attached memorandum from the County Counsel' s Office dated March
15, 1990 and the attached memorandum from the Deputy Community
Development Director dated March 22, 1990.
It seems clear that the situations which caused the conflicts of
interest last year on the East County Regional Planning
Commission were relatively unique because the Commission was
considering a major General Plan amendment for the Oakley area
and a specific plan for an entire community.
County Counsel noted the rather elaborate considerations which
have to be given to property ownership and the distance of
property from the area under consideration by a planning
commission in determining whether a planning commissioner can
vote on a matter under consideration by the Commission.
While these relatively unique situations cannot be expected to
reoccur regularly, they do point to the fact that conflicts of
interest can occur and that they can interfere with the ability
of a planning commission to make decisions. We are, therefore,
making the above recommendations in an effort to remind all of us
of the need to avoid creating situations where repeated conflicts
of interest can occur. At the same time, we want to share with
the members of all of our planning commissions the information
provided us by the County Counsel' s Office.
i
I
COUNTY COUNSEL'S OFFICE =Co3taCounty
RECEIVED
CONTRA COSTA COMY
"AR7WE4 CALIFORNM JAN 0 91990
Date: January 5, 1990 Office of
County Administrator
To: Harvey E. Bragdon, Community Development Director
From: Victor J. Westman, County Counsely-T-it..
Re: Memo On Planning Commissioner Duties
Attached is a memorandum discussing County planning
commissioner duties, obligations and limitations.
You have indicated your department will provide each County
planning commissioner with a copy of this 1-5-90 memorandum as
part of their next commission meeting packet. Your assistance in
this regard is appreciated.- - - - - — - -
I suggest this office's representatives first meet in
February with the San Ramon Valley Regional Planning Commission,
second meet in March with the East County Regional Planning
Commission and finally meet with the County Commission in April.
Please contact this office to arrange specific dates and times
for these study session meetings. ,
VJW:da
Attachment
cc: Spervisors, District Offices
l Batchelor, County Administrator
Attn: C. L. Van Marter
DA5 A:\PLANNING
COUNTY COUNSEL'S OFFICE
CON77M COSTA COUN7Y
MARTRVE4 CALIFORM4
Date: January 5, 1990
To: Planning Commissioners
From: Victor J. Westman, County Counsel
Re: Commissioner Duties And Limitations
With the commencement of the new year, this memorandum is
provided as a brief general review of your duties,
responsibilities and obligations as members of the County's
planning commissions . It also notes some of the obligations of
County staff (i.e. , the Community Development Department) to
provide assistance for the execution of your planning
commissioner duties. We hope -the---f ol-lowing-will-provide you with--
some guidance for each area discussed:
A. Conflict Of Interest,. Last year each planning
commissioner was provided a copy of this office's 9-16-88
memorandum which discusses conflict of interest guidelines and
regulations governing your planning commissioner conduct. We
have attached another copy for your review and file, as it is
still descriptive of your obligations in this area.
If you have any concerns 'as a commissioner about discharging
your duties and any potential or possible conflict of interest,
you may contact Mary Ann McNett (Deputy County Counsel) or, in
her absence, Arthur Walenta (Assistant County Counsel) at this
office, to discuss those concerns. Unless your inquiry can be
easily answered without a particularization of the involved
facts, we will ask that you reduce your concern to writing so
that both you and this office will have a clear and mutual
understanding of the question and involved facts.
B. Open Meeting Requirements . The Brown Act (Govt. C. SS
54950ff. ) requires that your meetings be open and conducted
pursuant to a written agenda which was available and publicly
posted for a specified time period prior to the date of any
involved meeting. The Brown Act's requirements are not further
discussed here since we believe County staff's preparation of
your agendas and provision of meeting notices have been done in
accord with the Brown Act and will continue to be so completed.
If you have any interest in further reviewing the Brown Act's
'provisions, please feel free to contact this office or your
Community Development Department representative who will provide
you with a summary of its provisions.
Planning Commissioners -2- January 5, 1990
C. Planning Entitlement Discretion. '
(1 ) Introduction. Planning commissions (whether they
are a county or city body) do not directly discharge legislative
duties but, for the most part, perform administrative or quasi-
judicial functions pertaining to their review and decisions made
about planning entitlement applications coming before them.
County planning commissions have two general areas of major
responsibility.
First, most of your attention is probably addressed to
reviewing applications for development projects (subdivisions,
land use permits, development or site reviews, etc. ) and making
decisions (approval or denial) on them. When taking action on
such development applications, commissioners act in what is for
legal purposes described as an administrative or quasi-judicial
capacity. Their discretion on such applications is limited by
applicable county ordinances, state statutes or regulations, and
case law interpretations. These commission decisions are usually
final unless appealed to. the_ Board_ of_Supervisors_. __ . .
Second, the other general area in which you take action
is to make recommendations on general or specific plan proposals
and rezoning applications. Your recommendations on these
applications are not final decisions and must go to the involved
legislative body (the Board of Supervisors) for acceptance of
your recommendation or some other related action on the proposed
general plan, specific plan or rezoning. (This is in contrast to
your decisions on development applications which will be final in
the absence of an appeal to the Board of Supervisors who then
would be acting in a quasi-judicial review capacity on those
appeals and not in any legislative capacity. )
When considering such legislative matters (proposed changes
in general plans, zoning, etc. ) , the Board of Supervisors in
almost all instances is not required to take any positive action
on recommendations about, or proposals for, general or specific
plan amendments or rezonings. But planning commissions are
required by (state statutes and the County Ordinance Code) to
make recommendations on such proposals.
( 2) Timely Decisions. When performing the aforenoted
application and plan reviews, you should conclude the review
process before you, and then make decisions in a timely manner.
For example, applications for development projects (subdivisions,
LUPs , site plan reviews, etc. ) must be acted upon within the time
limits specified in the Permit Streamlining Act (Govt. C. SS
65952ff . ) or otherwise they may by operation of law be deemed to
have been approved. Concerning subdivision applications before
you, there are additional shorter time limits specified in the
State Subdivision Map Act (Govt. C. SS 66410ff . ) for decisions ,
Planning Commissioners January 5, 1990
unless waived by the subdivision's applicdnt. Where proposed
general plan or zoning ordinance amendments have been referred to
you by the Board of Supervisors for recommendation, unless your
recommendation is made to the Board in a timely manner, the Board
of Supervisors may assume your approval and proceed to make its
final legislative decision on the amendments.
The Community Development staff in attendance at your
meetings is familiar with these provisions of the Permit
Streamlining, State Planning and Subdivision Map Acts, and will
advise you when these Acts are applicable and of the dates by
which your decisions must be made. We hope this area of
discussion illustrates that decisions on applications before you
must be made in a timely manner.
(3) Scope of Discretion for Decisions. As noted above,
County planning commissions are not legislative bodies, and
therefore they do not have the authority to fix the scope or
range of matters which may or must be considered in order to make
their decisions on development. applications. For the most part,
this range of review discretion is established by legislative
policy made by Board of Supervisors-adopted regulations and
policies and related state statutes and regulations. In other
words, the involved planning commission must make its decision
within the scope of the discretion fixed therefor by the Board of
Supervisors and/or the State Legislature and, in some instances,
by court case decisions.
Perhaps the limits of commission discretion in this
regard can be illustrated by considering a hypothetical
situation. In most of -the County's residential zoning districts
medical offices are an- allowed use if a land use permit is first
applied for and approved by the zoning administrator or planning
commission having jurisdiction. (Co. Ord. C. S 84-4 .404(8) . )
Assuming an LUP applicant's property is so residentially zoned,
then the involved County planning commission does not have the
discretion to refuse to make a decision on, or deny, the
application because it believes medical buildings should not be
allowed in any residential districts. If that is the concern of
a commission, it should address it to the Board of Supervisors by
asking a policy review of this type of allowable use. But the
commission must discharge its obligations by making a specific
decision (denial or approval) on the pending LUP application
within the scope of its discretion by considering the particulars
of that application. The scope of the commissions' discretion
when reviewing an application for medical building land use
permit would be any particular matters required to be considered
by the text of the involved residential zoning district, the
matters generally required to be considered and found by the
Planning Commissioners -4- January 5, 1990
planning commission concerning land use permit applications (Ord.
C. , S 26-2 . 2008 -- copy attached) , and any circumstances must be
addressed to comply with the California Environmental Quality Act
(CEQA) .
In this regard, planning commissions (and the Board of
Supervisors) often receive significant adverse public comment
about a pending development application. Unless that comment is
rationally related to the matters noted above for consideration
to make a decision on a pending land use permit application, the
hearing body cannot use that sentiment as its basis for a
decision on the application. The courts in characterize this as
"not-in-my-back-yard" ( "NIMBY" ) type of testimony. When any such
unrelated "adverse public sentiment" testimony is used as a basis
for its decision by a planning commission (and that can be
demonstrated in subsequent litigation) , the decision will be
overturned, and, in some instances, the County would be held
responsible for damages because an applicant was denied a fair
decision on' his application. (Geo. Tech. Reclamation Industries ,
Inc. v. Hamrick, USCA4, 89-2021, 9-25-89.. ).._ _. _..
D. Conclusion. We wish to emphasize here that these
comments are not intended to indicate that your commissions must
approve applications . But, your commissions must conduct fair
hearings, consider all relevant evidence presented, and
thereafter make timely decisions (whether for approval or denial)
on pending applications .
This office is arranging with the Community Development
Department staff assigned to your commissions to appear in the
near future at one of your study sessions to discuss the content
of this memorandum and any related legal questions you may have
concerning it and the planning process.
VJW:da
Attachments
DA5 A:%COMKISSION
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date. 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
onnv
UUIF I
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. SS 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 annual
statements of economic interests) , the attached "Guide To The
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
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CA:LIFORNIA
Adopted this Order on May 18, 1982 by the following vote:
AYES: Supervisors Powers, Fanden . Schroder, Torlakson, . and McPeak.
NOES: None.
ABSENT: None. e e
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 Board 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 equally, without regard to their wealth. (Gov.C.
§81001[bl .)
(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. S81001[bl .)
(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. 5810021d] .)
2, Common Law Policy on Conflicts. All such officials should so
conduct the public business as to avoid even any appearance of conflict
IL of interest. (See, e.g. , Kimura v. Roberts (19791 89 C.A.3d 871.)
3. Brown Act on Open Meetings
(a) Policy. California's "open meeting law" is the Ralph M.
Brown Act. (Gov.C. SS54950 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.
iul`* "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. §54950.)
44 (b) Enforcement. This policy is elaborated by requirements
that local governmental bodies 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
o them. I hereby certtry that this to a true and correct copy of
an action trAran and entered on the mintitas or the
Board of Suporvl3ors on tho date shown.
��-FYI
r
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
Reform Act.' The Political Reform Act requires public offi-
ACT OF 1974
cials at all levels of government to publicly 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
interest laws,the pamphlet contains footnotes which cite
CALIFORNIA'S CONFLICT OF
the applicable statutes and regulations,as well as selected
Ises and FairPractices Commission opinions.NTE REST LAW FOR PUBLIC caThe pamphletolitical commences with an introduction to the
- Fair Political Practices Commission and the Political
OFFICIALS Reform Act.It then summarizes the disclosure and disquali-
fication requirements for public officials,and explains how
to seek assistance from the Fair Political Practices Commis-
cion concerning conflict of interest questions.The 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. -
.:
14t, The discussion in this pamphlet is necessarily general.It
,., '' will answer most of the basic questions about the conflict
CALIFORNIA FAIR POLITICAL 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
'�. '�•" I Practices Commission will provide assistance with specific
questions about the Political Reform Act You also may
wish to refer the matter to the attorney for the agency in
question or to a private attorney for consultation on specific
requirements of the law.
fair Pott W Pracdm Co wWwim
429)Street,Suite 900
P.O.eon 907 Fair Political Practices Commission
Saaaeft"W,Caittornia 95M
The Fair Political Practices Commission consists of five
Legal Division 916/322-5901 members,including a full-time chairman. No more than
SUWa.rzMs of Wkntsis 916/322-S662 three may be from the same political party.
Enforcement Divides 916/322.6441
-2— —3—
The chairman and one member,who must be from dif- This paAphlet is a guide to the conflict of interest provi-
ferent political parties, are appointed by the Governor.The sions of the Political Reform Act.
three remaining commissioners are appointed,respectively,
by the Attorney General, the Secretary of State and the • •
Controller.Commissioners serve four-year terms and may
not be reappointed once they have completed a full term. How does the Political Reform Act
The Fair Political Practices Commission has primary
responsibility for the impartial,effective administration of prevent conflicts of interest?
the Political Reform Act.The Commission adopts regula-
tions to implement and clarify the Political Reform Act. 1. By Disclosure:The Political Reform Act requires every
These regulations are found in Title 2 of the California public official to disclose all economic interests, such as
Administrative Code, Section 18000, et seq.The Commis- investments,interests in real estate(real property),or
sion also issues opinions and advice letters, conducts sources of income,which the official may possibly affect by
seminars, prescribes forms, publishes manuals,issues the exercise of his or her official duties. Disclosure is made
reports,and enforces the requirements of the Political on a form called a"statement of economic interests." 3
Reform Act 2. By Disqualification:If a public official has a conflict of
interest,the Political Reform Act may require the official to
* * * disqualify himself or herself from making or participating in
a governmental decision,or using his or her official position
to influence or attempt to influence a governmental
The Political Reform Act decision. 4
The Political Reform Act was enacted by the people of
the State of California by an initiative,known as Proposition
9,in 1974.This initiative statute was enacted to accomplish
the following purposes: Who must file statements of
(a) Receipts and expenditures in election campaigns economic interests under the
should be fully and truthfully disclosed in order that the Political Reform Act?
voters may be fully informed and improper practices may
be inhibited. The Governor,members of the legislature,elected state
(b) The activities of lobbyists should be regulated and and local officials,judges and commissioners of courts of
their finances disclosed in order that improper influences the judicial branch of government,and all high ranking
will not be directed at public officials. state and local officials must file statements of economic
(c) Assets and income of public officials which may be interesq'.5 Other officials or employees of state and local
materially affected by their official actions should be dis- govemment agencies must also file statements of economic
closed and in appropriate circumstances the officials interests if they are"designated"in a conflict of interest
should be disqualified from acting in order that conflicts of code adopted by the agency for which they workb Each
interest may be avoided. agency must adopt a conflict of interest code which desig-
(d) The state ballot pamphlet should be converted into a nates all its officials or employees who make or participate
useful document so that voters will not be entirely depend- in governmental decisions which could cause conflicts of
ent on paid advertising for information regarding state interest 7 Unpaid members of boards and commissions and
measures. consultants to state or local government agencies also may
(e) Laws and practices unfairly favoring incumbents be required to file statements of economic interests if they
should be abolished in order that elections may be con- make or participate in making governmental decisions
ducted more fairly. which could affect private financial interest.0
(f) Adequate enforcement mechanisms should be pro-
vided to public officials and private citizens in order that
this title will be vigorously enforced.2
-4— —5—
The disclosure required by a particular designated official Statements of economic interests must be kept on file by
or employee must be narrowly drawn to include only the the official's or employee's agency and made available
kinds of economic interests he or she could significantly upon request.12 Statements 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-
disclose all investments, interests in real property,sources ces of the Fair Political Practices Commission.13
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 direr- all governmental agency employees,except judges and
tor,officer,partner,trustee,employee or holds any position-- --.- _...courtcommissioners.14.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 provides supplies,equipment,materials agencies who,on an ongoing basis,play a significant role in
or services to the agency. the decision-making process may also be required to dis-
Each government agency has a list of all agency officials qualify themselves under the Act when faced with a deci-
and employees who must file statements of economic sion that could affect their private economic interests.'s
interests.10 Anyone may inspect the conflict of interest code
and this list.
The Commission's Technical Assistance and Analysis Div- ,
ision provides assistance to public officials who have ques- 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 her
official position to influence a governmental decision;
* • * 2. It is foreseeable that the decision will affect the offi-
cial's economic interest;
Are statements of economic 3. The effect of the decision on the official's economic
interest will be material;
interests available to the public? 4. The effect of the decision on the official's economic
interest will be distinguishable from its effect on the public
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 below.
than 10 cents per page may be charged for copies. No The rirst component of a conflict of interest is whether
other conditions may be imposed on inspection and copy- the official makes, participates in,or uses his or her official
ing. No one may be required to identify himself or herself position to influence a governmental decision.16
or sign anything in order to be permitted to inspect or copy
statements."
I
_6_ -7-
A governmental decision is any decision made by a A public official who negotiates on behalf of-his or her
government body or by a government official or employee agency with any other public or private agency or with any
in his or her official capacity.Governmental decisions person outside his or her agency concerning a governmen-
include:decisions on ordinances,regulations and resolu- tal decision participates in that decision.20
tions;decisions on contract awards,purchases and leases; An employee whose actions are solely ministerial,secret-
decisions on hiring,firing and personnel actions;decisions arial,clerical or manual does not make or participate in
on land use,zoning, redevelopment plans,permits and var- governmental decisions.21
iances;and decisions on any other matter which may come A public official influences or attempts to influence a
before a state or local government agency.Governmental governmental decision when the official appears before any
decisions do not include purely private decisions made by government agency in his or her official capacity and urges
a public official in his or her personal capacity. that a particular governmental decision be made.Contacts i
A public official makes a governmental decision when with any individual within a government agency for the j
he or she,acting within the authority of his or her office, purpose of urging a particular decision or result are also j
does any of the following: considered influencing or attempting to influence a 1
• Votes on a matter, governmental decision.22 {
• Appoints a person. A public official can sometimes influence a governmental
• Obligates or commits his or her agency to any decision when acting in a private,as well as in an official
course of action. capacity.For example,an official who appears as the repre-
• Enters into any contractual agreement on behalf of sentative of a third parry before the official's own agency is !;
his or her agency. influencing or attempting to influence a governmental deci-
• Determines not to act in any of the ways described- -.-sion.So.is an official who.-as the representative of a third „ s
above,unless that determination is made because party,appears before an agency subject to the appointive or
the official has disqualified himself or herself due budgetary control of the officials agency.
to a conflict of interest17 The following actions by an official are not considered
For example,a public official makes a governmental influencing or attempting to influence a governmental
decision when he or she votes as a member of a board, decision: {
commission or council on any governmental decision, • Appearing before any agency,including his or her j
regardless of the outcome of the vote.Whether the official own agency, in the same manner as any other
votes for or against the action,or for or against his or her member of the general public,to represent only him-
economic interest,the official makes a governmental deci- self or herself on a matter affecting real property or a
sion when he or she votes on the decision. business entity wholly owned by the official,his or
In addition,public officials,including heads of depart- her spouse or dependent children 23
ments,directors of agencies,and employees of state or • Appearing as a private citizen before an agency that is
local government agencies,make governmental decisions independent of the appointive or budgetary contra!of
when they take or authorize any official action on behalf of the official's own agency.The official must not act or
their agencies.A determination that an agency will not take purport to act as the representative of his or her own
a particular action is also a governmental decision. agency,or use his or her agency's official stationery in
A public official participates in a governmental decision any communications.24 -
when he or she responds to comments,takes part in dis- • Communicating with the general public or the
cussions,or advises or makes recommendations to a press 2S
decision-maker,whether or not the decision-maker ulti-
mately follows the official's advice.i8 A consultant who is The second component of a conflict of interest is
hired under contract with a government agency to prepare whether it is foreseeable that the decision will affect the
a report or analysis or to directly advise the decision-maker official's economic interest
may be participating in a governmental decision.19 Whether An official's economic interest is affected whenever a
a consultant participates in a governmental decision governmental decision affects the official in one of the fol-
depends on the duties of the consultant Specific questions lowing ways:
on this subject should be addressed to the Commission
staff.
i
—8— —9—
• The decision affects the official's personal financial credit unions or insurance policies; alimony or child
status, or that of his or her spouse or dependent support; loans of$10,000 or less from banks, credit
children.26 This does not apply, however,to decisions unions, or credit cards on terms generally available to
which affect the official's own government salary. It the public;mortgages on a principal residence on
applies to any decision which affects the government terms generally available to the public;loans from
salary of an official's spouse only if the decision is to family members;or most pensions.36
hire, fire, promote,demote or discipline the spouse, • The decision affects a person or business entity from
or to set a salary for the spouse that is different from whom the official has received gifts of$250 or more
salaries paid to other employees in the same job clas- in the past 12 months.))This includes gifts from sour-
sification or position?1 ces inside and outside the official's jurisdiction,
• The decision affects a business entity located in, except for gifts from specified family memhers.38 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$1,000 or more.18 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 posi-
limited partnership interest;or any other form of tion of management.40
ownership interest in a business entity. Investments
do not include:bank accounts;interests in mutual In order to create a conflict of interest,the effect of a
governmental decision on an o
funds, money market funds,or insurance policies;or official's economic interest
government bonds or securities?9 Business entities must be foreseeable4l An effect on an official's economic
include:corporations;partnerships;joint ventures; interest is foreseeable when there is a substantial likelihood
sole proprietorships;and any other type of enterprise that it will ultimately occur as a result of a governmental
for a profit.A nonprofit organization is nota decision. Even during the preliminary phases of a decision,
operated a pr
business forr an official must consider whether the end result of a deci-
• The decision affects real estate(real property)located sion is likely to affect his or her economic interests.An
in the official's jurisdiction and the official, or his or effect does not have to be certain to be foreseeable; how-
her spouse or dependent child has an interest of ever, if an effect is a mere possibility,it is not foreseeable.42
$1,000 or more in that real estate.31 Interests in real The third component of a conflict of interest is whether
property include:ownership(equity);deeds of trust the effect of the decision on the official's economic interest
be materiaL43
(mortgages);leaseholds;options to buy,and joint willtt is usual) necessaryto estimate the dollar value of the
in real ies.3�A month-to-month lease is not an interest effect of a decision on the official's economic interest to
in real decisipropeon
tfey.33 determine whether the effect is material. Specific circum-
located
decision affects a person or business entity stances under which an effect is material are set forth in the
located in, doing business in, owning real property in,
or planning to do business in the official's jurisdiction, Commission's regulations.44
from which the official has received income of$250 An effect of$250 or more on the income,assets, or out
or more,or the official's spouse has received income j of pocket expenses of the official,or of his or her spouse or
I
dependent children is materials For purposes of determin-
of$500 or more, in the past 12 months.34 With cer- ing whether there is a conflict of interest, it does not matter
tain exceptions, income includes:salaries;commis- i whether the financial effect increases or decreases the
sions; rents; payments received for goods or services
(including payments for sale of a home,automobile or income,assets,or expenses.
investment); loans(including loans previously made When an official has an investment in,or receives
but still outstanding);and all other types of pay- income from,a business entity, it is necessary to consider
ments.3S Income means gross income or payments how governmental decisions would affect the business
received, rather than net income, profits or taxable entity.An official may be disqualified from participating in a
income. Income does not include:government salar- decision even though the decision would not affect the
ies; inheritances;dividends,interest or premiums from value of his or her investment or the amount of income he
publicly traded stock, mutual funds, bank accounts, or she receives.46
-10- -ii-
Whether an effect on a business entity will be considered a zoning variance for an official's business or home,which
material depends on the financial size of the business has a different effect on the official's economic interest than
entity.47 For example,an effect of only $10,000 on the on other members of the general public, does constitute a
gross revenues or assets of a small business is material!B conflict of interest for the official.
while a $1 million effect on the gross revenues or assets of In summary,there are four questions to ask in determin-
a Fortune 500 company is material 49 ing whether an official has a conflict of interest:
A similar sliding scale applies to effects on real property. ` 1. Will the official make,participate in,or use his or her i
As a general rule,an effect of$10,000 or more on the fair I official position to influence a governmental decision?
market value of real property is material.When the effect is i 2. Is it reasonably foreseeable that the decision will affect.
between $1,000 and $10,000, it may be material,depend- I the official's economic interest?
ing on the value of the real property.SO 3. Will the effect of the decision on the official's eco-
Sometimes it is difficult to give a dollar value to the effect nomic interest be materials'
of a governmental decision. In such cases,it is necessary to 4. Will the effect of the decision on the official's eco-
consider whether the decision could significantly affect the nomic interest be distinguishable from its effect on the pub-
official's economic interests 51 For example,the effect may lic generally?
be material if the decision significantly affects the use or The answer to each of these four questions must be yes
enjoyment of land or other interests,or if the official's for the official to be disqualified from a decision because of
receipt of income from a private source is directly related a conflict of interest.
to the decision.
In special situations,an effect is considered material
regardless of its dollar value.These situations include the
following: What should'a public official who
• A person or business entity in which the official has has $ conflict Of Interest d0?
an investment interest worth$1,000 or more,or
which is a source of income of$250 or more to the When a public official determines that it is reasonably
official in the last 12 months,"appears before"the foreseeable that a particular governmental decision will
official in connection with the decision52 A person or have a material effect on his or her economic interest,the
business entity"appears before"an official if it is a official has a conflict of interest The official must not vote
named party to the proceeding or initiates the pro- on,make,participate in any way in,or attempt to influence
ceeding by filing an application,claim,appeal or sim- the decision.S6 This is called disqualification.When an offi-
ilar requestS3 cial disqualifies himself or herself from a govemmental
• The decision would affect the zoning,annexation, i decision because of a conflict of interest,the reason for the
sale,lease,actual or permitted use of,or taxes or fees disqualification must be announced(in the case of a
imposed on real property in which the official has an member of a voting body),or disclosed in writing(in the
interest of$1,000 or more.S4 case of all other officials).s7
The fourth component of a conflict of interest is whether
the effect of the decision on the official's economic interest
will be distinguishable from its effect on the public Is a governmental decision valid if
generallyss
An official does not have a conflict of interest if the effect it was made by an official who had
of a governmental decision on the official's economic I a conflict of interest?
interest is no different from its effect on most other persons
or interests in the jurisdiction.For example,a decision to A governmental decision is not automatically invalidated
impose a city sales tax,which will affect all residents of the I by the participation of an official who had a conflict of
city,does not affect any individual city councilmember(no I interest However,it may be set aside by a court if the court
matter how much he or she pays in sales taxes)in a differ- determines that an official who made the decision had a
ent manner than it affects the public generally,and,as a conflict of interest,that without that official's actions the
result,does not create a conflict of interest for any city decision would not have been made,and that setting aside
councilmember.By way of contrast,a decision concerning the decision will not cause injury to innocent persons.ss
i
—12— j —13—
e
May a public official ever make a I ment;it also may result in the official being ineligible to run i
y p for public office for four years67 The fine for a willful con-
decision in which he or she has a i flict of interest violation may be up to $10,000; the fine for
� willfully failing to disclose an economic interest may be up
•disqualifying financial interest?
to$10,000 or three times the amount not disclosed,which-
The law recognizes a type of"rule of necessity"for those ever is greater.66
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.59 This rule is dif- they do not apply to violations of the disqualification provi-
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
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.6' j
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 have a disqual- Commission for advice. Requests for written advice are
ifying financial interest to vote.In that case,the additional generally answered within 21 working days," although
number of officials necessary to constitute a quorum may written or telephone advice may be given more quickly in
be selected by drawing lots,or through some other method urgent situations.If an official poses a question which is
of random selection63 The officials selected may vote,but unusually complex,significant or unique,the full Commis-
must not otherwise act to influence the decision of the sion may issue an opinion,although this process takes
other members of the agency,such as by making state- longer.72 The Commission provides advice only about the
ments or asking questions. Political Reform Act;the Commission will not answer ques-
tions about Govemment Code Section 1090 or other laws
which are not part of the Political Reform Act
* * * If the Commission advises an'official in writing that dis-
qualification is not necessary,and the official has truthfully
What are the penalties for I provided all material facts,the official is provided with
violation of the conflict of i immunity against any administrative action brought by the
Commission arising from the same conflict of interest
charges.The written advice also serves as evidence of good
Interest provisions Of the
j faith conduct in any civil or criminal proceeding based on
Political Reform Act? I the same charges.77
The Fair Political Practices Commission can bring an The Commission may only issue opinions or give advice
administrative action against an official who has violated regarding conflicts of interest to the official who may have
the disclosure or disqualification requirements of the Politi- to be disqualified,or to the official's authorized representa-
cal Reform Act,and may impose administrative penalties of tive•74 Advice about specific situations will not be given to
up to $2,000 for each violation65 An official who violates members of the public,or to other persons who are inter-
the Act may be subject to a civil lawsuit,in which a court ested in whether or not an official should be disqualified
may impose a fine.66 A willful violation of the Act is also a from the specific decision.
misdemeanor, punishable by a fine and/or by imprison-
i
—14— —15—
in addition,the Commission will not issue an opinion or Government Code Section 1090
provide advice about an official's past conduct.These ques-
tions are referred to the Enforcement Division of the Fair
Political Practices Commission.Whether a public official Government Code Section 1090 and other laws not
has committed a violation of the Political Reform Act is included in the Political Reform Act apply to specific situa-
determined after investigation by the Commission's tions where public officials may have conflicts of interest.
Enforcement Division. For example,Government Code Section 1090 applies to
All Commission regulations and opinions are published conflicts of interest involving contracts made by officials of
by the California Continuing Education of the Bar.Virtually public agencies,and Health and Safety Code Section
all advice requests and advice letters are public records.75 33130 applies only to certain redevelopment situations.
Opinions,significant advice letters and enforcement cases The Fair Political Practices Commission has no authority to
are summarized in the Commission's monthly Bulletin. advise public officials about the application of these laws,
Copies n be obtained from the Commission,opinions,advice letters and enforcement deci- or to enforce them.That responsibility belongs to city attor-
neys,county counsel,other public agency attorneys,district I;
attorneys,and the State Attorney General. i
What should you do if you suspect
that a public official has violated Footnotes
.the conflict of interest provisions - 1�.Code§§81 -91015:
a Gov.Code§81002.
of the Political Reform Act? 2 Art.2(commencing with§8720,Art.3(commencing with§87300),
and Art.5(commencing with§87500),Ch.7,Trtk 9,Gov.Code govern
Complaints concerning violations of the conflict of inter-. disclosure•
est provisions of the Political Reform Act should be made Art 1 (commencing with 187100)•Ch.7,Tide 9,Gov.Code governs
disqualitfication.
to the local district attorney,the Enforcement Division of s Gov.Code§87200.
the Fair Political Practices Commission,or the Attorney • Art.3(commencing with§87300),Ch.7,Title 9,Gov.Code.
General. ' Gov.Code§87300.
• See;Commission on Cal.State Gov.Or&6 Econ.v.Fair Political Prac-
eces Com.(1977)75 Cal.App.3d 716;In re Siegel 0977)3 FPPC Ops.
* * * 62;In re Leach(1978)4 FPPC Ops.48.
+ 2 Cal.Adm.Code 51 8730(b)(3);Hays v.Wood(1979)25 Cal.3d 772.
10 Gov.Code§87302(a).
Campaign contributions and. 11 Gov.Code§81008.
12Gov.Code§81009.
governmental decision-making. 1= Gov.Code§87500.
14 Gov.Code§§82048 and 87100.
The Political Reform Act also contains Government Code IS Gov.Code§82019;2 Cal.Adm.Code§18700;see,In re Maloney
Section 84308,a provision which deals specifically with (1977)3 FPPC Ops.69.
16 Gov.Code§87100-,2 Cal.Adm.Code§§18700 and 18700.1.
conflicts of interest and campaign contributions.Govern- , 17 2 Cal.Adm.Code§18700(b).
ment Code Section 84308 is discussed in detail in a pam- ' 1• 2 Cal.Adm.Code§18700(c).
phlet entitled"A Guide to Government Code Section '+ 2 Cal.Adm.Code§I8700(c)(2).
84308—Conflicts of Interest and Campaign Contributions." 20 2 Cal.Adm.Code%I 87130(c)(1).
This pamphlet is available from the Fair Political Practices 11 2 CalAdm'Code§18700(11'
Pa P 72 2 Cal..Adm.Code 118700.1.
Commission. 23 2 Cat.Adm.Code§18700-1 No).
j4 2 Cal.Adm.Code§18700.1(c).
2S 2 Cal.Adm.Code 118700.1(b)(2).
n Gov.Code§87103.
17 Gov.Code§82030(b)(2);2 Cal.Adm.Code§18702.1(c)(2).
24 Gov.Code§87103(a).
19 Gov.Code§82034.
Gov.Code§82002.
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—9I—
26-'_'.2004-26-2.2010 ADMINISTRATION
26-2.2004 Variance, conditional use and (2) That because of special circumstances
special permits — Notice requirements. (a) Mail applicable to the subject property because of its /
— Addresses. Except as provided by Article size, shape, topography, location or e
26-2.21 , the planning department shall schedule surroundings, the strict application of the
a hearing before the appropriate division, and respective zoning regulations is found to deprive
mail notice thereof pursuant to Government the subject property of rights enjoyed by other
Code Section 65905. The mail notice shall be properties in the vicinity and within the
given, by postage prepaid first-class United identical land use district;
States mail, to all owners of real property within (3) That any variance authorized shall
three hundred feet of the subject land, using substantially meet the intent and purpose of the
addresses from the last equalized assessment respective land use district in which the subject
roll, or from such other records(as the assessor's property is located. Failure to so find shall result
or tax collector's) as contain more recent ad- in a denial. (Ord. 1975: prior code § 2204.30:
dresses in the opinion of the planning director. Ord. 917).
(b) Contents. The notices shall state the time,
date and place of the hearing, the general nature 26-2.20 Variance, conditional use and
of the application, and the street address, if any, specia permits — Conditional use permit
of the property involved or its legal or boundary standards. An application for a conditional use
description if it has no street address. permit is an application to establish a
Substantial compliance with these provisions for - conditional land use within a land use district
notice is sufficient, and a technical failure to which does not allow establishment by right,but
comply shall not affect the validity of any does allow the granting of a land use permit
action taken pursuant to the procedures set after_ a public hearing.. The division of the
forth in this article. planning agency hearing the matter either
(c) Revocations. Notice of hearings on initially or on appeal, shall find the following
revocations shall be given in the same manner as before granting the permit:
on applications. (Ords. 80-87 § 1, 78-54 § 2, (1) That the proposed conditional land use
1975: prior code § 2203.15: Ords. 917 § 5.1, shall not be detrimental to the health,safety and
856 § 1, 382 § 7: see Gov.C. § 65901). general welfare of the county;
(2) That it shall not adversely affect the .
26-2.2006 Variance, conditional use and orderly development of property within the
special permits — Variance permit standards. An county;
application for a variance permit is an (3) That it shall not adversely affect the
application to modify zoning regulations as they preservation of property values and the
pertain to lot area, lot building coverage, average protection of the tax base within the county;
lot width, lot depth, side yard, rear yard, (4) That it shall not adversely affect the
setback, auto parking space, building or policy and goals as set by the general plan;
structure height, or any other regulation (5) That it shall not create a nuisance and/or
pertaining to the size, dimension, shape or enforcement problem within the neighborhood
design of a lot, parcel, building or structure, or or community;
the placement of a building or structure on a lot (6) That it shall not encourage marginal
or parcel. The division of the planning agency development.within the neighborhood;
hearing.the matter either initially or on appeal (7) That special conditions or unique
shall find the following conditions that must characteristics of the subject property and its
exist prior to approval of an application: location or surroundings are established. Failure
(1) That any variance authorized shall not to so find shall result in a denial. (Ord. 1975:
constitute a grant of special privilege Prior code § 2204.40: Ord. 917).
inconsistent with the limitations on other
properties in the vicinity and the respective land 26-2,2010 Variance, conditional use and
use district in which the subject property is special permits — Special permit standards. An
located; application for a special permit shall be
primarily governed by the code provision
(Contra Cosa County 6-86)
28
CONTRA COSTA COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
TO: Internal Operations Committee � DATE: March 22, 1990
FROM: Karl L. Wandry, Deputy Director`U'-
��(
SUBJECT: East County Regional Planning Commission Meetings
In a concentrated effort to move both the Oakley/North Brentwood Area General
Plan and the Bethel Island Area Specific Plan along to adoption staff presented
a rigorous meeting schedule to the East County Regional Planning Commission
which proposed weekly meetings through the last three months of 1989. The East
County Regional Planning Commission accepted that schedule without comment.
As a result of absences due to other commitments (business, holidays, etc. ) and
the potential conflict of interest of Commissioners Nunn and Planchon in the
Oakley area and Commissioner Maybee in the Bethel Island area, the East County
Regional Planning Commission was unable to conduct hearings on the plans due to
the lack of quorum on 10/2, 10/23 and 12/14 (3 of 12 meetings) .
The rigorous schedule made unusual demands on the East County Regional Planning
Commission and that coupled with the potential conflict of interest of the three
members noted above made it difficult to, at times, assemble a quorum in order
to either hold a meeting or to conduct a hearing on specific items.
While it was frustrating to all parties involved to have to cancel all or part
of a hearing it should be noted that each of the commissioners made a concerted
effort to attend the scheduled meetings.
KLW/df
L14:ecrpc.mem
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: March 15, 1990
To: Internal operations Committee
Attn: Claude L. Van Marter, Assistant County
Administrator
From., Victor J. Westman, County Counsel
By: Mary Ann McNett, Deputy County Counsel
Re: East County Regional Planning Commission
This responds to the Board of Supervisors' Order of December
19, 1989 requesting a report concerning the application of the
conflict of interest laws to members of the East County Regional
Planning Commission. We are not responding to questions
concerning the lack of a quorum at meetings of the commission
because we have no information in regard to that issue.
SUMMARY•
Under certain circumstances the Political Reform Act
prohibits public officials (i.e. , planning commissioners) from
participating in decisions which will have a material financial
effect on officials' interests in real property or income.
BACKGROUND:
Various members of the East County Planning Commission have
asked our office and the Fair Political Practices Commission for
advice concerning conflicts of interest. The members have been
advised in accordance with the law as discussed below, and at
times have determined to disqualify themselves from
participation. Most questions addressed by this office
concerning East County planning commissioners, conflicts of
interest have involved ownership of real property in the East
County rather than other types of financial interests. Thus, our
discussion will focus on conflicts arising due to real property
interests .
Claude L. Van Marter -2- March 15, 1990
DISCUSSION:
The Political Reform Act, Government Code section 81000 et
seq. , prohibits a public official from making, participating in
making, or in any way attempting to use his official position to
influence, a governmental decision in which he knows, or has
reason to know, he has a financial interest. Planning
commissioners are public officials who make governmental
decisions. (Gov. Code, § 82048; 2 Cal. Code Regs. S 18700. ) A
planning commissioner who has a financial interest in a matter
before the commission may not participate in decisions concerning
that matter. (Gov. Code, § 87100. )
A planning commissioner will have a financial interest in a
decision if it is reasonably forseeable that the decision will
have a material financial effect, distinguishable from its effect
on the public generally, on the official or on "any real property
in which the public official has a direct or indirect interest
worth one thousand dollars ($1,000) or more" or another financial
interest. (Gov. Code, § 87103(b) . )
a. Foreseeability of Material Financial Effect:
An effect on an official's financial interest is
foreseeable when there is a substantial likelihood that it will
ultimately occur as a result of a governmental decision. An
effect does not have to be certain to be foreseeable; however, if
an effect is a mere possibility, it is not foreseeable. ( In re
Thorner (1975) 1 FPPC Ops. 198. )
b. Existence of Material Financial Effect
Determinations as to material financial effect in the
case of ownership interests in real property are governed by the
regulations of the Fair Political Practices Commission. The
effect of a decision is "material" if it involves zoning,
annexation, sale, or taxation of property which the planning
commissioner owns, or concerns a redevelopment area in which the
official' s property is located. (Title 2 Cal.Code of Regs. §
18702 . 1 . ) The affect of a decision is also material if the
official' s real property is within 300 feet of the property which
is the subject of the decision or the decision involves public
works improvements which may result in new or improved services
for the official' s property. (Title 2 Cal. Code of Regs. §
18702 . 3 (a) ( 1 ) , ( 2) . ) When the official owns real property located
between 300 and 2, 500 feet of the real property subject to the
decision, a material effect exists if the decision will
foreseeably affect the market value of the official' s real
property by $10,000 or more or the annual rental value by $1 , 000
Claude L. Van Marter -3- March 15, 1990
property by $10,000 or more or the annual rental value by $1,000
or more. Under certain circumstances, a decision concerning real
property more than 2,500 feet from the official's property may
still have a material financial effect on the official's
property. (Title 2 Cal. Code. Regs. S 18702.3(a) (3) , (b) . ) This
discussion of material effects is not exhaustive but summarizes
the types of material effects stated in the applicable
regulations .
c. Effect on Public Generally
The Political Reform Act and FPPC regulations do not
require disqualification if the decision at issue would affect
the official's interest in substantially the same manner as it
would affect all members of the public or a significant segment
of the public. (Gov. Code, § 87103; Tit. 2 C.C.R. SS 18702(c) ,
18703 . ) For purposes of the Act, the "public" consists of all
persons residing, owning property or doing business in the
jurisdiction of the East County Regional Planning Commission
that is, the East County. A "significant segment" of the public
must be large in number and heterogeneous in nature - e.g. , all
single-family home owners. (See FPPC Maybee Advice letter # I-
89-394 . ) We note that this exception is quite narrow.
The FPPC recently adopted regulation 18703. 1 concerning
application of the "public generally" rule to small juris-
dictions. The new regulation specifies that the effect of a
governmental decision on the principal residence of. a public
official is not distinguishable from the effect on the public
generally where the official's agency has jurisdiction over a
population of 25,000 or less, covering a geographic area of ten
square miles or less and certain other conditions are met. Since
the East County Planning Commission's jurisdiction covers a
geographic area in excess of ten square miles, section 18703. 1
does not apply to East County Planning Commissioners.
CONCLUSION:
On any given issue involving ownership of real property the
regulations discussed above are applicable in reaching a
conclusion as to the existence of a conflict of interest. When a
planning commissioner has a financial interest in a decision
before the East County Planning Commission and the "public
generally" exception does not apply, the planning commissioner
must disqualify himself from participating in the decision and
state on the record the reason for the disqualification.
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