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HomeMy WebLinkAboutAgenda StatementCITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: September 16, 2014 AGENDA ITEM NO. ITEM TITLE: Resolution of the City Council of the City of National City accepting the written statement that no further changes are needed at this time to the Conflict of Interest Code which Incorporates by reference the Fair Political Practices Commission's Standard Model Conflict of Interest Code, currently in effect through Resolution No. 2012-192. (City Attorney) PREPARED BY: Claudia Gacitua Silva DEPARTMENT: PHONE: Ext. 4222 APPROVED BY: EXPLANATION: Please see attached memorandum. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: �,Nra ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt the attached resolution.; BOARD / COMMISSION RECOMMENDATION: IN/A ATTACHMENTS: (Memorandum Proposed resolution. Mayor Ron Morrison Council Members Louis Natividad Alejandra Sotelo-Solis Mona Rios Jerry Cano CALIFORNIA - NATIONAL C17111 �. INCaRPORATED Office of the City Attorney City Attorney Claudia Gacitua Silva Senior Assistant City Attorney Elise Cusato Deputy City Attorney Jennifer Knight TO: Mayor and City Council DATE: September 16, 2014 FROM: City Attorney SUBJECT: Written Statement that No Further Amendment is Needed to the Current Conflict of Interest Code The Basic Conflict of Interest Rule The basic rule for conflicts of interest is set forth in Section 87100 of the Political Reform Act, California Government Code Section 87100, et seq. (the "Act"), as follows: No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest. In this context, "public official" means every member, officer, employee, or consultant of a state or local government agency (Section 82048). The City's Conflict of Interest Code The Political Reform Act requires various city officials to file an annual Statement of Economic Interests ("SEI"). Those required to file statements are divided into two groups — those required to file under Government Code Section 87200 (mayors, council members, planning commissioners, city managers, city attorneys, and those who manage public investments), and those required to file under Government Code Section 87300. The reporting requirements of the Section 87200 filers are established by state law. The reporting requirements of the Section 87300 filers are established by conflict of interest codes adopted by each city. The conflict of interest code contains a list of "designated positions" which are subject to the code. The individuals who occupy those positions are required to file a SEI. What information those individuals must report on their SEI is also identified in the code under "disclosure categories." The categories of financial interests that must potentially be disclosed are: investments, interests in real property (except a personal residence), sources of income including gifts, and business positions. Whether all or only some of these interests must be reported, and to what extent they must be reported, is determined on a case -by -case basis. 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327 The criteria for determining whether an officer, employee, board member, or consultant should file a statement of economic interests under a conflict of interest code are set forth in Sections 18700, and 18702 through 18702.4 of Title 2 of the California Code of Regulations. (Title 2 of the California Code of Regulations ["CCR"j are the administrative regulations adopted by the FPPC to implement the Political Reform Act). Essentially, if in carrying out the duties of their position, the individual is involved in making, participating in the making, or using or attempting to use his/her official position to influence a governmental decision that he/she knows or has reason to know he/she has a disqualifying conflict of interest, then the individual is subject to the reporting requirement. In adopting a conflict of interest code, the City Council makes the factual determination as to whether these criteria are present, thus requiring inclusion of a classification in the code. The CCR contains certain sections which provide some guidance to the City Council in making this determination. Section 18702.1 provides that a public official "makes a governmental decision" when the official, acting within the authority of his or her office, votes on a matter, appoints a person, obligates his or her agency to any course of action, enters into any contract on behalf of the agency, or determines not to act on any of the above, unless such determination not to act is made because of his or her financial interest. Section 18702.2 states that a public official "participates in making a governmental decision" when, acting within the authority of his or her position, he or she negotiates, without significant substantive review, with a governmental entity or private person regarding a governmental decision. A public official also participates in making a governmental decision when he or she advises or makes recommendations to the decision -maker either directly or without significant intervening substantive review, by conducting research or making any investigation that requires the exercise of judgment on the part of the official in order to influence a governmental decision; or prepares or presents any report, analysis, or opinion, orally or in writing, which requires the exercise of judgment in order to influence a governmental decision. Section 18702.3 sets forth the factors to consider in determining when a public official is "using or attempting to use his/her official position to influence a governmental decision". With regard to a governmental decision which is within or before an official's agency or an agency appointed by or subject to the budgetary control of his or her agency, the official is attempting to use his or her official position to influence the decision if, for the purpose of influencing the decision, the official contacts or appears before or otherwise attempts to influence any member, officer, or employee or consultant of the agency; or if, for the purpose of influencing the decision, the official acts or purports to act on behalf of, or as the representative of, his or her agency to any member, officer, employee, or consultant of an agency. Such actions include, but are not limited to, the use of official stationery. Section 18702.4 enumerates the actions which are not considered "making or participating in making a governmental decision," as follows: (1) Actions of public officials which are solely ministerial, secretarial, manual, or clerical. 2 Conflict of Interest Code Proposed Amendment (2) Appearances by a public official as a member of the general public before an agency in the course of its prescribed governmental function to represent himself or herself on matters related solely to the official's personal interests. Actions by public officials relating to their compensation or the terms or conditions of their employment or contract. (3) Section 18702.4 also provides that an official is not attempting to "use his or her official position to influence a governmental decision" when engaged in the following activities: (1) (2) (3) Appearing in the same manner as any other member of the general public before an agency in the course of its prescribed governmental function solely to represent himself or herself on a matter which is related to his or her personal interests. Communicating with the general public or the press. Negotiating his or her compensation or the terms and conditions of his or her employment or contract. (4) Preparing drawings or submissions of an architectural, engineering or similar nature to be used by a client in connection with a proceeding before any agency. Appearing before a design or architectural review committee or similar body of which he or she is a member to present drawings or submissions of an architectural, engineering or similar nature which the official has prepared for a client, (5) Disclosure Categories Under the Conflict of Interest Code The types of financial interests which must be reported under the Conflict of Interest Code are known as "Disclosure Categories". The following are seven potential Disclosure Categories: CATEGORY 1: CATEGORY 2: CATEGORY 3: CATEGORY 4: CATEGORY 5: Investments and sources of income. Interests in real property. Investments, interests in real property, and sources of income subject to the regulatory, permit, or licensing authority of the department. Investments in business entities and sources of income that engage in land development, construction, or the acquisition or sale of real property. Investments in business entities and sources of income of the type which, within the past 12 months or calendar year, whichever is applicable, have contracted with the City of National City or the Community Development Commission of the City of National City to provide services, supplies, materials, machinery, or equipment. 3 Conflict of Interest Code Proposed Amendment CATEGORY 6: Investments in business entities and sources of income of the type which, within the past 12 months or calendar year, whichever is applicable, have contracted with the person's department to provide services, supplies, materials, machinery, or equipment. CATEGORY 7: Business positions. Section 18730 of the CCR, which is incorporated in the City's Conflict of Interest Code, describes the information that is required to be reported on the SEI under the Disclosure Categories as follows: 1. Investment and Real Property Disclosure. When an investment or an interest in real property is required to be reported, the statement shall contain the following: a) A statement of the nature of the investment or interest. b) 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. c) The address or other precise location of the property. d) A statement whether the fair market value of the investment or interest in real property equals or exceeds two thousand dollars ($2,000), exceeds ten thousand dollars ($10,000), exceeds one hundred thousand dollars ($100,000), or exceeds one million dollars ($1,000,000). 2. Personal Income Disclosure. When personal income is required to be reported, the statement shall contain: a) The name and address of each source of income aggregating five hundred dollars ($500) 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. b) A statement of 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), greater than ten thousand dollars ($10,000), or greater than one hundred thousand dollars ($100,000). c) A description of the consideration, if any, for which the income was received. d) 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 4 Conflict of interest Code Proposed Amendment the gift, the amount or value of the gift, and the date on which the gift was receive. e) In the case of a loan, the annual interest rate and the security, if any, given for the loan and the term of the loan. 3. Business Entity Income Disclosure. When income of a business entity, including income of a sole proprietorship, is required to be reported, the statement shall contain: ' a) The name, address, and a general description of the business activity of the business entity. b) The name of every person from whom the business entity received payments if the filer's pro rata share of gross receipts from such person was equal to or greater than ten thousand dollars ($10,000). 4. 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 entity. Requirement to Review/Amend Conflict of Interest Code Section 87306.5 of the Act requires that no later than October 1 of each even -numbered year, the code reviewing body (the City Council is the "code reviewing body" for all agencies in the City, including the CDC) shall cause a review of its conflict of interest code to occur, and for the code to be amended if necessitated by changed circumstances. Upon review of the code, if no change is required, a written statement to that effect shall be submitted to the City Council no later than October 1 of that same year. The City Council last amended the City's Conflict of Interest Code on September 18, 2012, pursuant to Resolution No. 2012-192. Upon review of the code, no further changes are required or recommended. At the present time, it is my recommendation that the Code designating positions remain as previously adopted. There are no new positions to be added at this time. Accordingly, the resolution for approval accepts t -tten stat-. t indicating no change is required. 5 DIA GAA SILVA City Attorney Conflict of Interest Code Proposed Amendment