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HomeMy WebLinkAboutRDA 95-01 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 RESOLUTION NO. RDA 95-1 A RESOLUTION OF THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY ADOPTING THE MODEL CONFLICT OF INTEREST CODE BY REFERENCE, AMENDING THE LIST OF DESIGNATED POSITIONS, AND REPEALING RESOLUTION NO. RDA-80-5 The Tustin Community Redevelopment Agency does hereby resolve as follows: The Political Reform Act of 1974 and Government Code sections 87100, et seq. (the "Act") require a local governmental agency to adopt a Conflict of Interest Code pursuant to the Act; and II. The Tustin Community Redevelopment Agency has, in the past, adopted a Conflict of Interest Code complying with all requirements of the Government Code and the California Code of Regulations; and III. The Tustin Community Redevelopment Agency desires to conform its Conflict of Interest Code to the model Conflict of Interest Code set forth in the California Code of Regulations by incorporating by reference the provisions of section 18730 of Title 2 of the California Code of Regulations; and IV. The Tustin Community Redevelopment Agency desires to amend its list of designated positions for the filing of statements of economic interests; and The "Conflict of Interest Code of the Tustin Community Redevelopment Agency of the City of Tustin," a copy of which is attached hereto and by this reference is incorporated herein, is hereby adopted; VI. Resolution No. RDA-80-5 is hereby repealed; and VII. A copy of this Resolution and attached Conflict of Interest Code is to be transmitted to the City Council of the City of Tustin as the code reviewing body for approval. Approved and Adopted this 20th day of March, 1995 f~ording Secretary Chairpers6~// 1995. CONFLICT OF INTEREST CODE OF THE TUSTIN COMMUNITY REDEVELOPMENT AGENCY SECTION 1: PURPOSE The purpose of this Conflict of Interest Code of the Tustin Community Redevelopment Agency is to establish a List of Designated Positions, and to incorporate by reference the terms of Section 18730 of Title 2 of the Califomia Code of Regulations pertaining to Conflict of Interest Codes, which is attached hereto as Exhibit "A". SECTION 2: DESIGNATED POSITIONS The positions listed in the Appendix to Exhibit "A" are Designated Positions. Officers and employees holding those positions are Designated Employees and are deemed to make, or participate in the making of decisions which may foreseeably have a material effect on a financial interest. Individual consultants may be Designated Employees, as determined by the Agency's Executive Director. SECTION 3: INCORPORATION BY REFERENCE OF SECTION 18730 OF TITLE 2 OF THE CALIFORNIA CODE OF REGULATIONS Section 18730 of Title 2 of the California Code of Regulations as set forth in Exhibit "A," and any amendments to it duly adopted by the Fair Political Practices Commission, along with the attached Appendix are hereby incorporated by reference and constitute the Conflict of Interest Code of the Tustin Community Redevelopment Agency. SECTION 4: PLACE OF FILIN(~ FOR STATEMENTS OF ECONOMIC INTEREST Pursuant to Section 4 of Exhibit "A" hereto, persons occupying Designated Positions shall file statements of Economic interests with the City Clerk of the City of Tustin. 1100-00013 4043_1 EXHIBIT "A" (Regulations of the Fair Political Practices Commission, Title 2, Division 6 of the California Code of Regulations) 18730. Provisions of Conflict of Interest Codes (a) Incorporation by reference of the terms of this regulation along with the designation of employees and the formulation of disclosure categories in the Appendix referred to below constitute the adoption and promulgation of a Conflict of Interest Code within the meaning of Government Code Section 87300 or the amendment of a Conflict of Interest Code within the meaning of Govemment Code Section 87307 if the terms of this regulation are substituted for terms of a Conflict of Interest Code already in effect. A code so amended or adopted and promulgated requires the reporting of reportable items in a manner substantially equivalent to the requirements of Article 2 of Chapter 7 of the Political Reform Act, Government Code Sections 81000, et seq. The requirements of a Conflict of Interest Code are in addition to other requirements of the Political Reform Act, such as the general prohibition against conflicts of interest contained in Govemment Code Section 87100, and to other state or local laws pertaining to conflicts of interest. (b) The terms of a Conflict of Interest Code amended or adopted and promulgated pursuant to this regulation are as follows: (1) Section 1. Definitions. The definitions contained in the Political Reform Act of 1974, regulations of the Fair Political Practices Commission (2 Cal. Code of Regs. Sections 18100, et seq.), and any amendments to the Act or regulations, are incorporated by reference into this Conflict of Interest Code. (2) Section 2. Desiqnated Employees. The persons holding positions listed in the Appendix are designated employees. It has been determined that these persons make or participate in the making of decisions which may foreseeably have a material effect on financial interests. (3) .Section 3. Disclosure Categories. This Code does not establish any disclosure obligation for those designated employees who are also specified in Govemment Code Section 87200 if they are designated in this Code in that same capacity or if the geographical jurisdiction of this agency is the same as or is wholly included within the jurisdiction in which those persons must report their financial interests pursuant to Article 2 of Chapter 7 of the Political Reform Act, Government Code Sections 87200, et seq. In addition, this code does not establish any disclosure obligation for any designated · employees who are designated in a conflict of interest code for another agency, if all of the following apply: (A) The geographical jurisdiction of this agency is the same as or is wholly included within the jurisdiction of the other agency; (B) The disclosure assigned in the code of the other agency is the same as that required under Article 2 of Chapter 7 of the Political Reform Act, Government Code Section 87200; and 1100-00013 4044_1 (C) The filing officer is the same for both agencies.~ Such persons are covered by this Code for disqualification purposes only. With respect to all other designated employees, the disclosure categories set forth in the Appendix specify which kinds of financial interests are reportable. Such a designated employee shall disclose in his or her statement of economic interests those financial interests he or she has which are of the kind described in the disclosure categories to which he or she is assigned in the Appendix. It has been determined that the financial interests set forth in a designated employee's disclosure categories are the kinds of financial interests which he or she foreseeably can affect materially through the conduct of his or her office. (4) Section 4. Statements of Economic Interests: Place of Filing. The code reviewing body shall instruct all designated employees within its code to file statements of economic interests with the agency or with the code reviewing body, as provided by the code reviewing body in the agency's conflict of interest code? (5) Section 5. Statements of Economic Interests: Time of Filing. (A) Initial Statement. All designated employees employed by the agency on the effective date of this Code, as originally adopted, promulgated and approved ~Designated employees who are required to.file statements of economic interests under any other agency's Conflict of Interest Code, or under Article 2 for a different jurisdiction, may expand their statement of economic interests to cover reportable interests in both jurisdictions, and file copies of this expanded statement with both entities in lieu of filing separate and distinct statements, provided that each copy of such expanded statement filed in place of an original is signed and vedfied by the designated employee as if it were an original. See Government Code Section 81004. 2See Government Code Section 81010 and 2 Cal. Code of Regulations. Section 18115 for the duties of filing officers and persons in agencies who make and retain copies of statements and forward the originals to the filing officer. 1100-00013 by the code reviewing body, shall file statements within thirty days after the effective date of this Code,except that designated employees who were also designated employees under the City's pdor conflict of interest code may satisfy this requirement by filing an Annual Statement by Apdl 1, 1995. Thereafter, each person already in position when it is designated by an amendment to this Code shall file an initial statement within thirty (30) days after the effective date of the amendment. (B) Assuming Office Statements. All persons assuming designated positions after the effective date of this Code shall file statements within thirty (30) days after assuming the designated positions, or if subject to State Senate confirmation, thirty (30) days after being nominated or appointed. (C) Annual Statements. All designated employees shall file statements no later than April 1. (D) Leaving Office Statements. All persons who leave designated positions shall file statements within thirty (30) days after leaving office. (5.5) Section $.$. Statements for Persons Who Resign Prior to Assuming Office. Any person who resigns with twelve (12) months of initial appointment, or within thirty (30) days of the date of notice provided by the filing officer to file an assuming office statement, is not deemed to have assumed office or left office provided he or she did not make or participate in the making of, or use his or her position to influence any decision and did not receive or become entitled to receive any form of payment as a result of his or her appointment. Such persons shall not file either an assuming or leaving office statement. (A) Any person who resigns a position within thirty (30) days of the date of a notice from the filing officer shall do both of the following: 1100--00013 4 4044_1 (6) (1) File a written resignation with the appointing power; and (2) File a written statement with the filing officer declaring under penalty of perjury that dudng the pedod between appointment and resignation he or she did not make, participate in the making, or use the position to influence any decision of the agency or receive, or become entitled to receive, any form of payment by virtue of being appointed to the position. Section 6, Contents of and Period Covered by Statements of Economic Interests, (A) Contents of Initial Statements. Initial statements shall disclose any reportable investments, interests in real property and business positions held on the effective date of the Code and income received dudng the twelve (12) months prior to the effective date of the Code. (B) Contents of Assuminq Office Statements. Assuming office statements shall disclose any reportable investments, interests in real property and business positions held on the date of assuming office or, if subject to State Senate confirmation or appointment, on the date of nomination, and income received during the twelve (12) months pdor to the date of assuming office or the date of being appointed or nominated, respectively. (C) Contents of Annual Statements. Annual statements shall disclose any reportable investments, interests in real property, income and business positions held or received dudng the previous calendar year provided, however, that the pedod covered by an employee's first annual statement shall begin on the effective date of the Code or the date of assuming office whichever is later. 1100-00013 4044_~ (D) Contents of Leavinq Office Statements. Leaving office statements shall disclose reportable investments, interests in real property, income and business positions held or received during the pedod between the closing date of the last statement filed and the date of leaving office. (7) Section 7. Manner of Reporting. Statements of economic interests shall be made on forms prescribed by the Fair Political Practices Commission and supplied by the agency, and shall contain the following information: (A) Investments and Real Property Disclosure. When an investment or an interest in real property3 is required to be reported,4 the statement shall contain the following: (1') A statement of the nature of the investment or interest; (2) The name of the business entity in which each investment is held, and a general description of the business activity in which the business entity is engaged; (3) The address or other precise location of the real property; 3For the purpose of disclosure only (not disqualification), an interest in real property does not include the principal residence of the filer. 4Investments and interests in real property which have a fair market value of less than $1,000 are not investments and interests in real property within the meaning of the Political Reform Act However, investments or interests in real property of an individual include those held by the individual's spouse and dependent children as well as a pro rata share of any investment or interest in real property of any business entity or trust in which the individual, spouse and dependent children own, in the aggregate, a direct, indirect or beneficial interest of 10 percent or greater. 1100-00013 4044_1 (4) A statement whether the fair market value of the investment or interest in real property exceeds one thousand dollars ($1,000), exceeds ten thousand dollars ($10,000), or exceeds one hundred thousand dollars ($1oo,oo0). (B) Personal Income Disclosure. When personal income is required to be reported,5 the statement shall contain: (1) The name and address of each source of income aggregating two hundred fifty dollars ($250) or more in value or fifty dollars ($50) or more in value if the income was a gift, and a general description of the business activity, if any, of each source; (2) A statement whether the aggregate value of income from each source, or in the case of a loan, the highest amount owed to each source, was one thousand dollars ($1,000) or less, greater than one thousand dollars ($1,000), or greater than ten thousand dollars ($10,000); (3) A description of the consideration, if any, for which the income was received; (4) In the case of a gift, the name, address and business activity of the donor and any intermediary through which the gift was made; a description of the gift; the amount or value of the gift; and the date on which the gift was received; 5A designated employee's income includes his or her community property interest in the income of his or her spouse but does not include salary or reimbursement for expenses received from a state, local or federal government agency. 1100-00013 4044_1 (5) In the case of a loan, the annual interest rate and the security, if any, given for the loan. (C) Business Entity Income Disclosure. When income of a business entity, including income of a sole proprietorship, is required to be report,6 the statement shall contain: (1) The name, address, and a general description of the business activity of the business entity; (2) The name of every person from whom the business entity received payments if the flier's pro rata share of gross receipts from such person was equal to or greater than ten thousand dollars ($10,000). (D) Business Position Disclosure. When business positions are required to be reported, a designated employee shall list the name and address of each business entity in which he or she is a director, officer, partner, trustee, employee, or in which he or she holds any position of management, a description of the business activity in which the business entity is engaged, and the designated employee's position with the business entity. (E) Acquisition or Disposal Durinq Reportinq Period. In the case of an annual or leaving office statement, if an investment or an interest in real property was partially or wholly acquired or disposed of dudng the pedod covered by the statement, the statement shall contain the date of acquisition or disposal. 6Income of a business entity is reportable if the direct, indirect or beneficial interest of the filer and the flier's spouse in the business entity aggregates a 10 percent or greater interest. In addition, the disclosure of persons who are clients or customers of a business entity is required only if the clients or customers are within one of the disclosure categories of the filer. 1100-.00013 4044_1 (8) Section 8. Prohibition on Receipt of Honoraria. (A) No member of a state board or commission, and no designated employee of a state agency, shall accept any honorarium from any source, if the member or employee would be required to report the receipt of income or gifts from that source on his or her statement of economic interests. This section shall not apply to any part-time member of the goveming board of any public institution of higher education, unless the member is also an elected official. Subdivisions (b), (c), (d), and (e) of Government Code Section 89502 shall apply to the prohibitions in this section. (B) No member of the goveming board of a special distdct or designated employee of a local government agency shall accept any honorarium. Subdivisions (b), (c), and (e) of Government Code Section 89502 shall apply to the prohibitions in this section. This section shall not limit or prohibit payments, advances, or reimbursements for travel and related lodging and subsistence authorized by Government Code Section 89508. (8.1) Section 8.1 Prohibition on Receipt of Gifts. No member of the governing board of a special district, or designated employee of a local government agency shall accept any gifts with a total value of two hundred fifty ($250) dollars or more in a calendar year from any single source. Subdivision (d) of Government Code Section 89504 shall apply to this section. (9) Section 9. Disqualification. No designated employee shall make, participate in making, or in any way attempt to use his or her official position to influence the making of any governmental decision which he 1100-00013 4044_1 or she knows or has reason to know will have a reasonably foreseeable matedal financial effect, distinguishable from its effect on the public generally, on the official or a member of his or her immediate family or on: (A) Any business entity in which the designated employee has a direct or indirect investment worth one thousand dollars ($1,000) or more; (B) Any real property in which the designated employee has a direct or indirect interest worth one thousand dollars ($1,000) or more; (C) Any source of income, other than gifts and other than loans by a commercial lending institution in the regular course of business on terms available to the public without regard to official status, aggregating two hundred fifty dollars ($250) or more in value provided to, received by or promised to the designated employee within twelve (12) months pdor to the time when the decision is made; (D) Any business entity in which the designated employee is a director, officer, partner, trustee, employee, or holds any position of management; or (E) Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating two hundred eighty ($280) or more in value provided to, received by, or promised to the designated employee within twelve (12) months pdor to the time when the decision is made. (9.3) Section 9.3. Leqally Required Participation. No designated employee shall be prevented from making or participating in the making of any decision to the extent his or her participation is legally required for the decision to be made. The fact that the vote of a designated employee who is on a voting body is needed to break a tie does not make his or her participation legally required for purposes of this section. .oo-ooo~3 ~0 4044_1 (9.5) Section 9.5. Disqualification of State Officers and Employees. In addition to the general disqualification provisions of Section 9, no state administrative official shall make, participate in making, or use his or her official position to influence any governmental decision directly relating to any contract where the state administrative official knows or has reason to know that any party to the contract is a person with whom the state administrative official, or any member of his or her immediate family has, within twelve (12) months prior to the time when the official action is to be taken: (A) Engaged in a business transaction or transactions on terms not available to members of the public, regarding any investment or interest in real property; or (B) Engaged in a business transaction or transactions on terms not available to members of the public regarding the rendering of goods or services totaling in value one thousand dollars ($1,000) or more. (10) Section 10. Manner of Disqualification. When a designated employee determines that he or she should not make a governmental decision because he or she has a disqualifying interest in it, the determination not to act must be accompanied by disclosure of the disqualifying interest. In the case of a voting body, this determination and disclosure shall be made part of the agency's official record; in the case of a designated employee who is the head of an agency, this determination and disclosure shall be made in wdting to his or her appointing authority; and in the case of other designated employees, this determination and disclosure shall be made in wdting to the designated employee's supervisor 4044_1 (11) Section 11. Assistance of the Commission and Counsel. Any designated employee who is unsure of his or her duties under this Code may request assistance from the Fair Political Practices Commission pursuant to Government Code Section 83114 or from the attorney for his or her agency, provided that nothing in this section requires the attomey for the agency to issue any formal or informal opinion. (12) Section 12. Violations. This Code has the force and effect of law. Designated employees violating any provision of this Code are subject to the administrative, cdminal and civil sanctions provided in the Political Reform Act, Government Code Sections 81000 -91014. In addition, a decision in relation to which a violation of the disqualification provisions of this Code or of Government Code Section 87100 or 87450 has occurred may be set aside as void pursuant to Government Code Section 91003. Note: Authority: Govt. Code Section 83112. Reference: Govt. Code Sections 87300 - 87302, 89501, 89502, 89503 and 89504 History: (1) (2) (3) (4) (5) (6) (7) (8) (9) (lO) New section filed 4/2/80 as an emergency; effective upon filing. Certificate of Compliance included. Editorial correction. Amendment of subsection (b) filed 1/9/81; effective thirtieth day thereafter. Amendment of subsection (b)(7)(B)l filed 1/26/83; effective thirtieth day thereafter. Amendment of subsection (b)(7)(A) filed 11/10/83; effective thirtieth day thereafter. Amendment filed 4/13/87; effective thirtieth day thereafter. Amendment of subsection (b) filed 10/21/88; effective thirtieth day thereafter. Amendment filed 8/28/90; effective thirtieth day thereafter. Amendment filed 8/7/92; effective thirtieth day thereafter. Amendment filed 2/5/93; effective upon filing. 1100-00013 4044_1 -T ........ ]- .................. I Tustin Community Redevelopment Agency Conflict of Interest Code Desiqnated Positions Redevelopment Program Manager Redevelopment Project Manager Consultants ** APPENDIX Disclosure Categories I, II, III I, II, III CATEGORY I Investment and real property disclosure. CATEGORY II Personal income disclosure. CATEGORY III Business Income, Commissions and Position Disclosure The Agency Director shall determine on a case-by-case basis whether a particular consultant is required to comply with the disclosure requirements listed above. If the Agency Director determines that a particular consultant must comply with the above disclosure requirements, the Agency Director shall notify the consultant in wdting. The written notification shall include a description of the consultant's duties and, based upon those duties, a statement of the extent of disclosure requirements. The Agency Director's notification is a public record and shall be retained for public inspection. 1100-00013 4044_1 FPPC GUIDANCE ON CONSULTANTS The term "designated employee" includes any officer, employee, member or consultant of any agency involved in the making or participation in the making of decisions which may foreseeably have a matedal effect on any financial interest. (Government Code Section 82019 (emphasis added).) A "consultant" is an individual who provides, under contract, information, advice, recommendation or counsel to a local government agency. (2 Cal. Code of Regulations. Section 18700 (a) (2).) The term "consultant" does not include a person who: (A) Conducts research and arrives at conclusions with respect to his or her rendition of information advice, recommendation or counsel independent of the control and direction of the agency or any agency official, other than normal contract monitoring, and (B) Possesses no authority with respect to any agency decision beyond the rendition of information, advice, recommendation or counsel. The term "individual" is used in Regulation 18700 to cladfy that corporate entities do not need to file statements of economic interests. A consultant is not the corporate entity but rather the individuals within the entity who provide the consulting services. It is these persons who must file statements of economic interests. Generally, consultants who prepare a product or perform services for a single specific matter are not the type of consultants required to be covered by a code, whereas consultants who provide more general assistance and advice to a government agency on an on-going basis should be covered. However, should a consultant provide recommendations or advice and there be significant intervening substantive review of the recommendations made by that consultant before submission to the final decision-maker, then that consultant is not the type necessary to be covered by a code. To provide some guidance to you in distinguishing between consultants required and not required to be covered by a code, we have set out some excerpts from Commission advice letter regarding particular consultants under factual situations. Copies of Commission advice letters may be obtained by contacting the Legal Division at (916) 322-5901. 1100O0013 4044_1 THE TYPES OF CONSULTANT REQUIRED TO BE COVERED BY THE CODE The attomeys within a law firm providing legal services to a redevelopment agency are consultants subject to the financial disclosure requirements. (Albuquerque Advice Letter A- 85-244.) Government attorneys participate in the highest level of decision making through their advice and counsel. When a contract attorney provides advice and counsel to a government agency on an ongoing basis, the attorney is actually participating in the governmental decision process similar to government attorneys. (Gifford Advice Letter A-85-201). A contract county engineer-surveyor, when performing review of permit applications, is a consultant. (Maloney Opinion, 3 FPPC Opinions 69 (No. 76-082, August 18, 1977.) An engineering and project management consultant retained to provide information, advice, recommendations or counsel on a long range electrical resource plan, essentially functions as additional agency staff, and is a consultant. (Kaplan Advice Letter A-82-108.) A computer evaluation consulting firm retained to provide advice on a computer implementation plan, conduct research to determine the current state of the art in computers, determine who are potential vendors for hardware or software, assist in preparing the specifications for bids, evaluate bid responses, advise the county on the appropriate bid to select and to be available for consultation and training, are interacting directly with the decision makers on an on-going basis. Their participation involves a broad exercise of discretion. The firm's employees are public officials and should be covered by a code (.Workman Advice Letter A-87-078.) THE TYPES OF CONSULTANTS NOT TO BE COVERED BY A CODE An attorney retained by the county as a "co-defender" to provide indigents with legal services in criminal cases and juvenile proceedings is responsible only to his or her clients. The agreement between the county and the attorney does not create an attorney-client relationship between defender and county. The contract co-clefender is not a consultant. (Hill Advice Letter A-87-304.) An engineer is retained to construct a filtration system. He is to complete the project according to specifications of a contract and there are no deviations from the contract. The engineer uses his own expertise to render professional services according to the specifications of a contract and is being called upon to deliver a finished product. This engineer is not a consultant within the meaning of the Act. (.Clifford Advice Letter A-83-103.) 11(X)-00013 4044_1 An environmental consulting firm retained to prepare an environmental impact report is using his or her expertise to render professional services according to the specifications of a contract. The individuals within the firm are being called upon to deliver a finished product, not to participate in governmental decisions. (Crouch Advice Letter A-83-069.) In the Maloney Opinion, the Commission determined that a contract county engineer- surveyor was not a "consultant" when performing engineering or surveying tasks which were not subject to the control or discretion of the county. The Commission held that "the preparation of surveys and engineering studies.." did not involve "any official decision- making." (However, when performing reviews of permit applications, he was held to be a public official (Malone,/, 3 FPPC Opinions 69, No. 76-082, August 18, 1977). A consulting engineer retained to evaluate and recommend to an agency which type of water treatment system would be best for the agency would normally be a public official. However, since all plans, specifications, recommendations and estimates are reviewed by an independent engineering-consulting firm pdor to presentation to the agency, the engineer is not "participating" in a governmental decision due to the intervening substantive review by the independent firm. (.Rose Advice Letter A-84-306 and A-84-299.) An independent real estate appraiser retained to value the damage to a specific piece of property is not making or participating in the decision-making process and is not a consultant. (Trott Advice Letter A-76-543.) Three firms which have contracted with a distdct to provide construction and engineering services to build an 18-mile subway are being called upon to deliver a finished product, not to participate or advise the distdct on general governmental decisions, and are not public officials. (.Torres Advice Letter A-86-245.) NOTE: This Guidance document may be replaced from time to time, at the Agency Director's or Agency Counsel's request without amending the Agency's Conflict of Interest Code. 1100=00013 4044_1 City of Tustin REDEVELOPMENT AGENCY RESOLUTION CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) ss RESOLUTION NO. RDA 95-1 Mary E. Wynn, City Clerk and Recording Secretary of the Community Redevelopment Agency of the City of Tustin, California, does hereby certify that the whole number of the members of the Community Redevelopment Agency is five; that the above and foregoing resolution was passed and adopted at a regular meeting of the Tustin Community Redevelopment Agency held on the 20th day of March, 1995, by the following vote: AGENCY MEMBER AYES: AGENCY MEMBER NOES: AGENCY MEMBER ABSTAINED: AGENCY MEMBER ABSENT: Saltarelli, Potts, Doyle, Thomas, Worley None None None Valerie Crabill, Chief Deputy City Clerk for Mary E. Wynn, City Clerk