HomeMy WebLinkAbout12 UPDT CONF INT CODE 03-20-95A PR~OFIr$$1ONAL I:ORPOP./~TION
MEMORANDUM
TO:
Honorable Mayor and Members of the City Council
City of Tustin
FROM:
City Attorney
DATE:
February 27, 1995
RE:
Update of City's Conflict of Interest Code
NO. 12
3- 20_-9_5.~
RECEIVED
FEB 2 8 1995
ADM!NtSTR) T!0N
Action Requested
In order to update the City's Conflict of IntereSt Code, the City Attorney recommends
the following:
.
Approval of a Resolution adopting the state's model Conflict of Interest Code
and repealing Resolutions Nos. 81-61, 86-111, 91-20 and 94-9.
.
Adoption of an ordinance repealing Sections 1220-1229 of the Tustin City
Code which are no longer required.
Background
The Political Reform Act of 1974 (Government Code sections 87100 et seq.)
requires that local governmental agencies, such as the City of Tustin, adopt a Conflict of
Interest Code that identifies designated positions that are required to file Statements of
Economic Interest. Regulations of the Fair Political Practices Commission ("FPPC") set
forth the requirements of a Conflict of Interest Code. The regulations also provide that a
local agency may adopt by reference the State's model conflict of interest code set forth
in Section 18730 of the FPPC Regulations.
In the past, the City has prepared its own Conflict of Interest Code, complying with
all requirements of the Political Reform ACt. Every two (2) years the City is required by law
to review its code and make any needed changes or additions.
While the City's current Code is in compliance with the law, there are benefits to
adopting the "model" Conflict of Interest Code. One advantage is that the model code will,
by definition, contain all required provisions at the outset. The second advantage is that
the model Code will also, b_b_y definition incorporate all statutory and regulatory changes. In
other words, the City would be considered to haVe "adopted" any change in the law and
Honorable Mayor and Members of the City Council
City of Tustin
February 27, 1995
Page 2
regulations without having to actually physically change its Code by Resolution. Of course,
we will notify persons of any changes in their filing requirements.
In addition to approving a Resolution that adopts the model Conflict of Interest Code,
we are recommending the adoption of an ordinance repealing Sections 1220-1229 of the
Tustin City Code. These sections duplicate provisions of state law, and are no longer
required. With one exception, the public officials listed in the City's code are all required
to file Statements of Economic Interest under Section 87200 of the Political Reform Act (not
the City's Conflict of Interest Code). These officials are directly bound by state conflict of
interest laws. The one exception, the "Assistant City Administrator" is already covered by
the Resolution before you.
LOIS E. JEFFi~J~ J/ ~)
Enclosures
cc: William A. Huston, City Manager
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RESOLUTION NO. 95-29
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN ADOPTINGTHE MODEL CONFLICT OF INTEREST
CODE BY REFERENCE, AMENDING THE LIST OF
DESIG1TATED POSITIONS, AND REPEALING RESOLUTION
NOS. 81-61, 86-111, 91-20 AND 94-9
WHEREAS, 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
WHEREAS, the City of Tustin 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
WHEREAS, the City Council 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
WHEREAS, the City Council desires to amend its list of
designated positions for the filing of statements of economic
interests.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City
of Tustin does hereby resolve, determine and order as follows:
SECTION 1: The "Conflict of Interest Code of the City of
Tustin", a copy of which is attached hereto and by this reference is
incorporated herein, is hereby adopted.
SECTION 2: Resolution Nos. 81-61, 86-111, 91-20, and 94-9
are hereby repealed.
Approved and Adopted this 20thday of March, 1995.
THOMAS R. SALTARELLI, MAYOR
ATTEST:
CITY CLERK
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ORDINANCE NO. 1147
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN, CALIFORNIA, REPEALING ORDINANCE NO.
629 (SECTIONS 1220-1229 OF THE TUSTIN CITY
CODE) RELATING TO CONFLICTS OF INTEREST
The City Council of the City of Tustin hereby ordains as
follows:
Section 1.
entirety.
Ordinance No. 629 is hereby repealed in its
PASSED AND ADOPTED, at a regular meeting of the City Council
for the City of Tustin on this day of , 1995.
THOMAS R. SALTARELLI, Mayor
MARY E. WYNN, City Clerk
CONFLICT OF INTEREST CODE
OF THE
CITY OF TUSTIN
SECTION 1: PURPOSE
The purpose of this Conflict of Interest Code of the City of Tustin is to establish a list
of Designated Positions, as required by the Political Reform Act, and to adopt by reference
the terms of Section 18730 qf Title 2 of the California Code of Regulations pertaining to
Conflict of Interest Codes, which is attached hereto as Exhibit "A", and incorporated herein
by this reference.
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 City Manager.
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 City of Tustin.
SECTION 4: PLACE OF FILING FOR STATEMENTS OF ECONOMIC INTERES,'T
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.
EXHIBIT "A"
(Regulations of the Fair Political Practices Commission, Title 2, Division 6 of the Califomia 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 Government 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, Govemment
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. Designated 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, Govemment Code Sections
87200, et sea..
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
(C) The filing officer is the same for both agencies?
~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
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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 Filino.
--
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) ~ection 5. Statements of Economic Interests; Time of Filin?.
(A) Initial Statement. All designated employees employed by the agency on
the effective date of this Code, as originally adopted, promulgated and approved by the'
code reviewing body, shall file statements within thirty days after the effective date of
this Code. Thereafter, each person already in position when it is designated by an
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 Govemment 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.
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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 ~tatements. ,All persons who leave designated positions
shall file statements within thirty (30) days after leaving office.
(5.5) Section 5.5. 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 infiuence 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:
(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 during the period between appointment and resignation
he or she did not make, partidpate in the making, or use the position to influence
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(6)
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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 pdor to
the effective date of the Code.
(B) Contents of Assuminp 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,
respecUvely.
(C) Contents of Annual ~'mtements. 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 period
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.
(D) Contents of Leaving Office ~tatements. Leaving office statements
shall disclose reportable investments, interests in real property, income and business
positions held or received during the period 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)
(4)
interest in real property exceeds one thousand dollars ($1,000), exceeds ten
thousand dollars ($10,000), or exceeds one hundred thousand dollars
($~ 00,000).
The address or other precise location of the real property;
A statement whether the fair market value of the investment or
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.
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(B) Personal Income Disclosure. When personal income is required to be
reported,s 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;
(5) In the case of a loan, the annual interest rate and the security, if
any, given for the loan.
SA 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 govemment agency.
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(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 During Reporting 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 during the period covered by the statement,
the statement shall contain the date of acquisition or disposal.
(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
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.
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(8.1)
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 governing 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 district or designated
employee of a local government agency shall accept any honorarium.
Subdivisions (b), (c), and (e) of Govemrfient 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 Govemment Code Section 89506.
Section 8.1 Prohibition on Receipt of Gifts.
(A) No member of a state board or commission, and no designated
employee of a state agency, shall accept gifts with a total value of more than two
hundred, eighty dollars ($280) in a calendar year from any single 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 governing 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 89504 shall
apply to the prohibitions in this section.
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(9)
(B) No designated employee of the City of Tustin shall accept any gifts with
a total value of more than two hundred fifty ($250) dollars in a calendar year from any
single source.
Subdivision (d) of Government Code section 89504 shall apply to this section.
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
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) m°nths 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 fifty ($250) or more in value provided to, received by, or
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promised to the designated employee within twelve (12) months pdor to the time when
the decision is made.
(9.3) ~;ection 9.3. Legally Reauired Participation.
No designated employee shall be prevented from making or pa~cipating 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.
(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 pdor 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 b'ansactions 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
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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
(11) ~ection 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)
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.
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(5)
(6)
(7)
(8)
(9)
(lO)
Amendment of subsection (b)(7)(A) filed 11/10/83; effective thirtieth day
thereafter.
Amendment filed 4113187; 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.
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City of Tustin
Conflict of Interest Code
APPENDIX
Designated Positions *
COMMUNITY SERVICES
Parks and Recreation Commissioners
Tustin Community Foundation Board of Directors
Recreation Superintendent
Recreation Supervisor
COMMUNITY DEVELOPMENT
Assistant City Manager
Director, Community Development
Assistant Director, Community Development
Building Official
Building Inspector
Code Enforcement Officer
Senior Planner
Associate Planner
Plan Checker
ENGINEERING/PUBLIC WORKS
Director, Public Works/City Engineer
Engineering Services Manager
Senior Public Works Inspector
Public Works Inspector
Field Services Manager
FINANCE
Assistant Director, Finance
LEGISLATION
City Clerk
Chief Deputy City Clerk
Assistant City Attomey
Deputy City Attorney
PERSONNEL
Senior Personnel Analyst
WATER DEPARTMENT
Water Services Manager
Water Board
Disclosure
Categories
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Designated Positions*
POLICE DEPARTMENT
Disclosure
Cateqories
Police Chief I, II, III
Police Captain I, II, III
Police Lieutenant I, II, III
CONSULTANTS **
CATEGORY I
Investment and real property disclosure.
CATEGORY II
Personal income disclosure.
CATEGORY III
Business Income, Commissions and Position Disclosure
The Council Members, City Manager, City Attomey, Finance Director, Planning
Commissioners, and other public officials who manage public investments are required
.to file Statement of Economic Interests pursuant to Government Code Section 87200
et seq., therefore; they are not included as designated positions in this Appendix.
·
The City Manager shall determine on a case-by-case basis whether a particular
consultant is required to comply with the disclosure requirements listed above. If the
City Manager determines that a particular consultant must comply with the above
disclosure requirements, the City Manager shall notify the consultant in writing. 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 City
Manager's notification is a public record and shall be retained for public inspection by
the City Clerk in the same manner and location as this Conflict of Interest Code.
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--
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 finandal interest. (Govemment Code Section 82019
(emphasis added).)
A "consultant" is an individual who provides, under contract, information, advice,
recommendation or counsel to a local govemment 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.
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THE TYPES OF CONSULTANT REQUIRED
TO BE COVERED BY THE CODF
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 attomeys 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. (Kaplall 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 offidals 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 attomey does not create an attorney-client
relationship between defender and county. The contract co-defender 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.)
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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
(Maloney, 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 district to provide construction and engineering
services to build an 18-mile subway are being called upon to deliver a finished product, not to
partidpate or advise the district on general governmental derisions, and are not public officials.
(Torres Advice Letter A-86-245.)
NOTE:
This Guidance document may be replaced from time to time, at the City Manager's or
City Attorney's request without amending the City's Conflict of Interest Code.
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