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HomeMy WebLinkAboutCC Resolution 14188 (FPPC Disclosure Categories)RESOLUTION NO. 14188 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL REPEALING RESOLUTION NO. 13794 AND RE -ADOPTING THE FAIR POLITICAL PRACTICES COMMISSION'S MODEL CONFLICT OF INTEREST CODE, WITH AN UPDATED LIST OF DESIGNATED OFFICIAL AND EMPLOYEE POSITIONS AND DISCLOSURE CATEGORIES, AS THE CITY'S CONFLICT OF INTEREST CODE WHEREAS, pursuant to the Political Reform Act ("PRA"), California Government Code Sections 81000, et seq., the City Council has adopted by resolution from time to time, most recently by Resolution No. 13794, the Fair Political Practices Commission's ("FPPC") model Conflict of Interest Code, contained at Title 2, California Code of Regulations, Section 18730, as the City's Conflict of Interest Code, including therewith a designation of official and employee positions subject to that Code and their required disclosure categories; and WHEREAS, California law requires that in every even -numbered year, each state agency and local governmental agency is required to review and, if necessary, revise its Conflict of Interest Code, including the review and revision of its list of designated official and employee positions and its list of disclosure categories, so as to incorporate necessary changes, such as the new titles of recently hired employees, deleted positions, and other organizational restructuring; and WHEREAS, the City Council has determined that the attached Appendices A and B, which are incorporated herein by reference, accurately set forth those designated official and employee positions (Appendix A - Designated Employees) and disclosure categories of financial interest (Appendix B - Disclosure Categories), which should be made reportable under the City's Conflict of Interest Code; and WHEREAS, the City Council desires to continue to use the FPPC's model Conflict of Interest Code, as set forth in Title 2, California Code of Regulations Section 18730, a copy of which is 1 available for public review in the City Clerk's office, as the City's Conflict of Interest Code; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as Follows: 1. The above -recited facts are true and correct. 2. City Council Resolution No. 13794 is hereby repealed. 3. The FPPC's model Conflict of Interest Code, as set forth in Title 2, California Code of Regulations Section 18730, is hereby incorporated herein by reference and re -adopted as the City's Conflict of Interest Code. 4. The attached list of designated employee/official positions (Appendix A) and list of disclosure categories (Appendix B) are hereby adopted and incorporated by reference into the City of San Rafael's Conflict of Interest Code. 5. The officials and employees holding designated positions shall file statements of economic interests (Form 700) as required by regulations of the FPPC and by Section 4 (C) of the City's Conflict of Interest Code, with the City Clerk, and the City Council hereby delegates the authority of filing officer to the City Clerk. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on Monday, the 19th day of September, 2016 by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None A-- jet,_r - ESTHER C. BEIRNE, City Clerk W:\City Clerk- WorkFile\Agenda related\FPPC issues\conflict of int reso 09-16.doc 2 APPENDIX A Desianated EmDlovees DEPARTMENT POSITION City Attorney Assistant City Attorney Deputy City Attorney II City Clerk City Clerk Deputy City Clerk City Manager Assistant City Manager Director of Homeless Planning & Outreach Director of Economic Development and Innovation Economic Development Program Coordinator Events Coordinator Community Development Community Services Community Development Director Planning Manager Senior Planner Associate Planner Assistant Planner Planning Technician Code Enforcement Official III Code Enforcement Official II Code Enforcement Official I Chief Building Official Permit Services Coordinator Building Inspector II Building Inspector I Community Services Director Senior Recreation Supervisor Recreation Supervisor Program Coordinator Fire Fire Chief Deputy Fire Chief Battalion Chief - Operations Battalion Chief -Administration Administrative Fire Captain Deputy Fire Marshal Fire Prevention Specialist Fire Prevention Inspector II Fire Prevention Inspector I Environmental Management Coordinator Emergency Management coordinator Vegetation Management Specialist Finance Finance Director Accounting Supervisor Revenue Supervisor Management Analyst DISCLOSURE CATEGORY 1,2 1,2 3b, 3g 3b, 3g 1,2 1,2 1,2 1,2 1,2 1,2 1,2 1,2 1,2 1,2 1,2 1,2 1,2 1,2 1,2 3e 3e 3f, 3g 3f, 3g 3f, 3g 3f, 3g 2, 3d, 3e, 3g 2, 3d, 3e, 3g 2, 3d, 3e, 3g 2, 3d, 3e, 3g 2, 3d, 3e, 3g 2, 3d, 3e, 3g 2, 3d, 3e, 3g 2, 3d, 3e, 3g 2. 3d, 3e, 3g 2. 3d, 3e, 3g 2, 3d, 3e, 3g 2, 3d, 3e, 3g 1,2 1,2 2, 3 (in entirety) 1,2 Library Library Director 3d, 3g Assistant Library Director 3d, 3g Management Services Human Resources Director 3a, 3g Senior Management Analyst 3a, 3g Information Technology Manager 3d, 3e, 3g DISCLOSURE DEPARTMENT POSITION CATEGORY Senior Network Administrator Network Analyst Parking Services Manager Parking Operations Supervisor Administrative Analyst Police Chief of Police Police Captain Police Lieutenant Civilian Supervisor Training Officer Youth Services Program Supervisor Public Works / Public Works Director Sanitation District Assistant Public Works Director / City Engineer Administrative Manager Associate Civil Engineer Assistant Civil Engineer Sr. Associate Engineer Jr. Engineer Associate Engineer Assistant Engineer GIS Analyst Engineering Technician I Engineering Technician II Traffic Engineer Traffic Engineering Technician I Traffic Engineering Technician II Streets Superintendent Streets Maintenance Supervisor Parks Superintendent Parks Maintenance Supervisor Garage Shop & Equipment Supervisor District Manager / District Engineer, Sanitation District Sr. Civil Engineer, Sanitation District Associate Civil Engineer Sewers Maintenance Supervisor Sewer Maintenance Superintendent Boards & Commissions Design Review Board Geotechnical Review Board Park & Recreation Commission Consultants ** 3d, 3e, 3g 3d, 3g 1,2 2, 3d, 3g 2, 3d, 3g 3d, 3e, 3f, 3g 3d, 3e, 3f, 3g 3d, 3e, 3f, 3g 3d, 3e, 3f, 3g 3f, 3g 3r. 3g 1,2 1,2 1,2 1,2 3g 3g 3g 3g 3g 3g 3g 3g 3g 3g 3g 1,2 1,2 3d, 3e 3d, 3e 3d 1,2 1,2 1,2 3e 3e 1,2 1,2 1,2 1,2 ** With respect to Consultants, the relevant department director may determine in writing that a particular consultant is hired to perform a range of duties that are limited in scope and thus is not required to comply with the disclosure requirements described in these categories. Such determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The department director shall forward a copy of this determination to the City Clerk. Nothing herein excuses any such consultant from any other provision of this Conflict of Interest Code. Designated Employees 2016 1 APPENDIX B Disclosure Cateqories Cateqory 1: All investments and sources of income. Cateqory 2: All interests in real property. Cateqory 3: Investments in business entities and sources of income of the type which have or foreseeably could contract with the City to provide services, supplies, materials, machinery, or equipment; or which could be enhanced when a designated employee makes or participates in making a decision. a. Personnel agencies or personnel consultants; b. Municode and Marin County newspapers; c. Financial institutions; d. Department record forms, communications equipment, safety equipment, firefighting or fire detection equipment, automotive or rolling stock sales, automotive parts or equipment, general departmental supplies or equipment; e. Building supplies or building, contractor, or construction firms; f. Travel agencies, recreation and athletic supplies, building maintenance and cleaning supplies; g. Book, software, and audio-visual publishers and distributors; computer equipment manufacturers and distributors. NOTE: PENALTY FOR LATE FILING: AS REQUIRED UNDER THE POLITICAL REFORM ACT OF 1974, AS AMENDED, SECTION 91013, IF ANY PERSON FILES AN ORIGINAL STATEMENT AFTER ANY DEADLINE, HE SHALL BE LIABLE IN THE AMOUNT OF $10.00 PER DAY AFTER THE DEADLINE UNTIL THE STATEMENT IS FILED, UP TO A MAXIMUM OF $100.00, WHICHEVER IS GREATER. T:ACITY COUNCIL AGENDA ITEMS\Agenda Item Approval Process\CC FPPC Bi -Annual Review\Appendix B -Disclosure Categories.2016.docx CITY OF SAN RAFAEL San Rafael, California INTERDEPARTMENTAL MEMORANDUM DATE: August 23, 2016 TO: ESTHER BEIRNE, City Clerk FROM: ERIC T. DAVIS, Deputy City Attorney II , RE: Amendment of Conflicts of Interest Code California Government Code §87306.5 requires that the City review and, if necessary, revise its Conflict of Interest Code every two years. The deadline for the current review and revision of the Conflict of Interest Code is October')', 2016. In 2004, the City of San Rafael adopted a Conflict of Interest Code (SRMC Chapter 2.10) which incorporated by reference the Fair Political Practice Commission's ("FPPC") model Conflict of Interest Code in 2 Cal. Code Regs. Section 18730. While this Code is automatically amended whenever the model code is changed, the City is required to review and, if necessary, to revise its list of "Designated Employees" (those employees required to file statements of economic interest, Form 700) and its list of "Disclosure Categories" (the economic interests which must be disclosed on the Form 700). The last review and revision was made on September 2, 2014 by City Council Resolution No. 13794, and the current lists of Designated Employees and Disclosure Categories are attached as Appendices "A" and "B" to that Resolution. Because of new positions, changed circumstances and structural reorganization within City Departments, the list of "Designated Employees" and the list of applicable "Disclosure Categories" may need to be revised. Please forward copies of those Appendices to all Department Directors. Department Directors should review their department employee positions, the disclosure categories applicable to those positions and, if appropriate, revise both lists. Revised lists should be forwarded to you in sufficient time for City Council adoption of any changes by its September 19, 2016 meeting. WHO IS COVERED Under the Political Reform Act (PRA), all local public officials, who foreseeably may materially affect their own economic interests through their decisions or participation in decisions in their official capacity, must disclose their economic interests by completing and filing with the City Clerk Form 700. Persons required to disclose such economic interests fall into two general classifications: Conflict of Interest Code Page August 23, 2016 1. Those required to file disclosures because of their position (state constitutional officers, legislators, county supervisors, mayors, council members, etc.). Government Code §§87200-87210. Because the Government Code specifically covers these individuals, they are not covered under the City's Conflict of Interest Code. These positions include members of the City Council, the Mayor, members of the Planning Commission, the City Manager, the Finance Director, and the City Attorney. 2. Those required to file disclosures because of their duties (public officials and employees who make or participate in the making of governmental decisions). These include "Designated Employees", those members of City Boards and Commissions with decision-making authority and certain consultants. These positions are covered under the City's Conflict of Interest Code, adopted pursuant to Government Code §§87300-87313, and accordingly, are the focus of this review and revision. A. Boards & Commissions: A basic rule in the FPPC regulations is that the PRA applies to members of all City boards, committees and commissions with decision-making authority. (2 Cal. Code Regs. § 18700(a)). A board, committee or commission has decision-making authority if: It may make a final governmental decision; or 2. It may compel or prevent the making of a governmental decision by its action or inaction; or 3. Its recommendations are, and historically have been, routinely and regularly followed (2 Cal. Code Regs. § 18700(c)(2)(A). Accordingly, if historically, the recommendations of an advisory board (e.g. Design Review Board) have been consistently adopted by the Planning Commission or the City Council, the members of such board, committee or commission must file disclosure statements of their economic interests. Because a board or commission is titled "advisory" is not determinative of whether it has "decision-making authority"; only an historical analysis of a board or commission's '`actions" can determine its status. B. Designated Emplovees: The PRA's requirements apply to those officials, employees or consultants who either make decisions or who participate in the decision-making process. The FPPC has determined that officials, employees or consultants who negotiate for, or provide advice to the decision -maker by Conflict of Interest Code Page 3 August 23, 2016 way of research, reports or analysis, are "'participating in the decision-making process." As such, these officials, employees and consultants must be included in the list of "Designated Employees" and must file disclosure statements in the manner detailed in the City's Conflict of Interest Code. WHAT MUST BE DONE In order to comply with the PRA's requirement of updating the Conflict of Interest Code, each City Department Director should do the following: 1. Review his/her duties and the duties of the department/agency employees to determine whether particular positions should be added or deleted to the list of "Designated Employees." Delete positions which no longer exist or no longer are involved in the decision making process and add those new positions which are involved in the decision making process. 2. Review the functions and duties of any boards, committees or commissions with which the department/agency interacts to determine whether they meet the criteria to file disclosure statements of economic interest. Review the functions and duties of any department -retained consultants to determine whether they meet the criteria to file disclosure statements. After determining what positions must be designated, the Department Directors should next determine which categories shall apply to each position. This determination is fact -driven by the job -functions of a particular position and their relationship to potential financial interests over which that position might have some control. In performing this review, department managers should keep in mind that the City's Conflict of Interest Code and its listed "Designated Employees" and "Disclosure Categories" must: Provide reasonable assurance that all foreseeable conflict-of-interest situations will be disclosed. 2. Provide each affected person a clear and specific statement of his/her duties under the Code. 3. Provide adequate differentiation between "Designated Employees" with different powers and responsibilities. (Government Code §87309). After making the revisions to their lists of designated employees and disclosure categories, Department Directors should forward their revisions to your office. Conflict of Interest Code Page 4 August 23, 2016 EXAMPLE In order to assist Directors in their review, the following example may be helpful. An employee or consultant who negotiates, recommends or otherwise participates in the procurement of computers should be designated on the list of "Designated Employees" under the above criteria. Such an employee or consultant would be required to disclose any interests under category 3 ("Investments in Business Entities and Sources of Income") but would most likely not be required to disclose real property interests. As a city official who has authority to purchase goods, the object of the PRA would be achieved by having this official disclose interests in businesses which sell computers. The same type of analysis would be applicable to employees or consultants who participate in the procurement of office supplies, library books, equipment, materials or services. As an additional aid in determining who to include in a Department's list of "Designated Employees," I have attached the FPPC's fact sheets on "How to Determine Who Should Be Designated in a Conflict of Interest Code," and "Conflict -of -Interest Codes — Designating Positions," and FPPC advice letters on how to determine which consultants are required to file disclosure statements. If you have any questions, please contact me. Attachments cc: Mayor & Council Members Jim Schutz, City Manager Rob Epstein, City Attorney (Regulations of the Fair Political Practices Commission, Title 2, Division 6, 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 Section 87300 or the amendment of a conflict of interest code within the meaning of Section 87306 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, 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 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 (Regulations 18110, 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 economic interests. (3) Section 3. Disclosure Categories. This code does not establish any disclosure obligation for those designated employees who are also specified in 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 economic interests pursuant to article 2 of chapter 7 of the Political Reform Act, 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, Section 87200; and (C) The filing officer is the same for both agencies. 1 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 economic interests are reportable. Such a designated employee shall disclose in his or her statement of economic interests those economic 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 economic interests set forth in a designated employee's disclosure categories are the kinds of economic 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 Statements. 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 30 days after the effective date of this code. Thereafter, each person already in a position when it is designated by an amendment to this code shall file an initial statement within 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 30 days after assuming the designated positions, or if subject to State Senate confirmation, 30 days after being nominated or appointed. (C) Annual Statements. All designated employees shall file statements no later than April 1. If a person reports for military service as defined in the Servicemember's Civil Relief Act, the deadline for the annual statement of economic interests is 30 days following his or her return to office, provided the person, or someone authorized to represent the person's interests, notifies the filing officer in writing prior to the applicable filing deadline that he or she is subject to that federal statute and is unable to meet the applicable deadline, and provides the filing officer verification of his or her military status. (D) Leaving Office Statements. All persons who leave designated positions shall file statements within 30 days after leaving office. (5.5) Section 5.5. Statements for Persons Who Resign Prior to Assuming Office. Any person who resigns within 12 months of initial appointment, or within 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 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, 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. (6) 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 during the 12 months prior to the effective date of the code. (B) Contents of Assuming Office Statements. 4 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 12 months prior 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 during 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, or for a board or commission member subject to Section 87302.6, the day after the closing date of the most recent statement filed by the member pursuant to Regulation 18754. (D) Contents of Leaving Office Statements. 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) Investment and Real Property Disclosure. When an investment or an interest in real property s is required to be reported, a 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; 4. A statement whether the fair market value of the investment or interest in real property equals or exceeds $2,000, exceeds $10,000, exceeds $100,000, or exceeds $1,000,000. (B) Personal Income Disclosure. When personal income is required to be reported, the statement shall contain: 1. The name and address of each source of income aggregating $500 or more in value, or $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 $1,000 or less, greater than $1,000, greater than $10,000, or greater than $100,000; 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 and the term of the loan. (C) Business Entity Income Disclosure. When income of a business entity, including income of a sole proprietorship, is required to be reported, 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 filer's pro rata share of gross receipts from such person was equal to or greater than $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 or local government 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 governing board of any public institution of higher education, unless the member is also an elected official. Subdivisions (a), (b), and (c) of Section 89501 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 Section 89506. (8.1) Section 8.1. Prohibition on Receipt of Gifts in Excess of $460. 7 (A) No member of a state board or commission, and no designated employee of a state or local government agency, shall accept gifts with a total value of more than $460 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. section. Subdivisions (e), (f), and (g) of Section 89503 shall apply to the prohibitions in this (8.2) Section 8.2. Loans to Public Officials. (A) No elected officer of a state or local government agency shall, from the date of his or her election to office through the date that he or she vacates office, receive a personal loan from any officer, employee, member, or consultant of the state or local government agency in which the elected officer holds office or over which the elected officer's agency has direction and control. (B) No public official who is exempt from the state civil service system pursuant to subdivisions (c), (d), (e), (f), and (g) of Section 4 of Article VII of the Constitution shall, while he or she holds office, receive a personal loan from any officer, employee, member, or consultant of the state or local government agency in which the public official holds office or over which the public official's agency has direction and control. This subdivision shall not apply to loans made to a public official whose duties are solely secretarial, clerical, or manual. (C) No elected officer of a state or local government agency shall, from the date of his or her election to office through the date that he or she vacates office, receive a personal loan from any person who has a contract with the state or local government agency to which that elected 0 officer has been elected or over which that elected officer's agency has direction and control. This subdivision shall not apply to loans made by banks or other financial institutions or to any indebtedness created as part of a retail installment or credit card transaction, if the loan is made or the indebtedness created in the lender's regular course of business on terms available to members of the public without regard to the elected officer's official status. (D) No public official who is exempt from the state civil service system pursuant to subdivisions (c), (d), (e), (f), and (g) of Section 4 of Article VII of the Constitution shall, while he or she holds office, receive a personal loan from any person who has a contract with the state or local government agency to which that elected officer has been elected or over which that elected officer's agency has direction and control. This subdivision shall not apply to loans made by banks or other financial institutions or to any indebtedness created as part of a retail installment or credit card transaction, if the loan is made or the indebtedness created in the lender's regular course of business on terms available to members of the public without regard to the elected officer's official status. This subdivision shall not apply to loans made to a public official whose duties are solely secretarial, clerical, or manual. office. (E) This section shall not apply to the following: 1. Loans made to the campaign committee of an elected officer or candidate for elective 2. Loans made by a public official's spouse, child, parent, grandparent, grandchild, brother, sister, parent -in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such persons, provided that the person making the loan is not acting as an agent or intermediary for any person not otherwise exempted under this section. 3. Loans from a person which, in the aggregate, do not exceed $500 at any given time. 9 4. Loans made, or offered in writing, before January 1, 1998. (8.3) Section 8.3. Loan Terms. (A) Except as set forth in subdivision (B), no elected officer of a state or local government agency shall, from the date of his or her election to office through the date he or she vacates office, receive a personal loan of $500 or more, except when the loan is in writing and clearly states the terms of the loan, including the parties to the loan agreement, date of the loan, amount of the loan, term of the loan, date or dates when payments shall be due on the loan and the amount of the payments, and the rate of interest paid on the loan. (B) This section shall not apply to the following types of loans: 1. Loans made to the campaign committee of the elected officer. 2. Loans made to the elected officer by his or her spouse, child, parent, grandparent, grandchild, brother, sister, parent -in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such person, provided that the person making the loan is not acting as an agent or intermediary for any person not otherwise exempted under this section. 3. Loans made, or offered in writing, before January 1, 1998. (C) Nothing in this section shall exempt any person from any other provision of Title 9 of the Government Code. (8.4) Section 8.4. Personal Loans. (A) Except as set forth in subdivision (B), a personal loan received by any designated employee shall become a gift to the designated employee for the purposes of this section in the following circumstances: 10 1. If the loan has a defined date or dates for repayment, when the statute of limitations for filing an action for default has expired. 2. If the loan has no defined date or dates for repayment, when one year has elapsed from the later of the following: a. The date the loan was made. b. The date the last payment of $100 or more was made on the loan. c. The date upon which the debtor has made payments on the loan aggregating to less than $250 during the previous 12 months. (B) This section shall not apply to the following types of loans: 1. A loan made to the campaign committee of an elected officer or a candidate for elective office. 2. A loan that would otherwise not be a gift as defined in this title. 3. A loan that would otherwise be a gift as set forth under subdivision (A), but on which the creditor has taken reasonable action to collect the balance due. 4. A loan that would otherwise be a gift as set forth under subdivision (A), but on which the creditor, based on reasonable business considerations, has not undertaken collection action. Except in a criminal action, a creditor who claims that a loan is not a gift on the basis of this paragraph has the burden of proving that the decision for not taking collection action was based on reasonable business considerations. 5. A loan made to a debtor who has filed for bankruptcy and the loan is ultimately discharged in bankruptcy. (C) Nothing in this section shall exempt any person from any other provisions of Title 9 of the Government Code. (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 or she knows or has reason to know will have a reasonably foreseeable material 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 $2,000 or more; (B) Any real property in which the designated employee has a direct or indirect interest worth $2,000 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 $500 or more in value provided to, received by or promised to the designated employee within 12 months prior 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 $460 or more provided to, received by, or promised to the designated employee within 12 months prior to the time when the decision is made. (9.3) Section 9.3. Legally 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 12 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 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 $1,000 or more. (10) Section 10. Disclosure of Disqualifying Interest. 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 may be accompanied by disclosure of the disqualifying interest. (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 Section 83114 and Regulations 18329 and 18329.5 or from the attorney for his or her agency, provided that nothing in this section requires the attorney for the agency to issue any formal or informal opinion. (12) Section 12. Violations. 13 This code has the force and effect of law. Designated employees violating any provision of this code are subject to the administrative, criminal and civil sanctions provided in the Political Reform Act, Sections 81000-91014. In addition, a decision in relation to which a violation of the disqualification provisions of this code or of Section 87100 or 87450 has occurred may be set aside as void pursuant to Section 91003. 1 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 verified by the designated employee as if it were an original. See Section 81004. See Section 81010 and Regulation 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. 3 For the purpose of disclosure only (not disqualification), an interest in real property does not include the principal residence of the filer. 4 Investments and interests in real property which have a fair market value of less than $2,000 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 14 dependent children own, in the aggregate, a direct, indirect or beneficial interest of 10 percent or greater. 5 A 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. 6 Income of a business entity is reportable if the direct, indirect or beneficial interest of the filer and the filer'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. Note: Authority cited: Section 83112, Government Code. Reference: Sections 87103(e), 87300- 87302, 89501, 89502 and 89503, Government Code. HISTORY 1. New section filed 4-2-80 as an emergency; effective upon filing (Register 80, No. 14). Certificate of Compliance included. 2. Editorial correction (Register 80, No. 29). 3. Amendment of subsection (b) filed 1-9-81; effective thirtieth day thereafter (Register 81, No. 2). 4. Amendment of subsection (b)(7)(B)1. filed 1-26-83; effective thirtieth day thereafter (Register 83, No. 5). 5. Amendment of subsection (b)(7)(A) filed 11-10-83; effective thirtieth day thereafter (Register 83, No. 46). 6. Amendment filed 4-13-87; operative 5-13-87 (Register 87, No. 16). 15 7. Amendment of subsection (b) filed 10-21-88; operative 11-20-88 (Register 88, No. 46). 8. Amendment of subsections (b)(8)(A) and (b)(8)(B) and numerous editorial changes filed 8-28-90; operative 9-27-90 (Reg. 90, No. 42). 9. Amendment of subsections (b)(3), (b)(8) and renumbering of following subsections and amendment of Note filed 8-7-92; operative 9-7-92 (Register 92, No. 32). 10. Amendment of subsection (b)(5.5) and new subsections (b)(5.5)(A)-(A)(2) filed 2-4-93; operative 2-4-93 (Register 93, No. 6). 11. Change without regulatory effect adopting Conflict of Interest Code for California Mental Health Planning Council filed 11-22-93 pursuant to title 1, section 100, California Code of Regulations (Register 93, No. 48). Approved by Fair Political Practices Commission 9-21-93. 12. Change without regulatory effect redesignating Conflict of Interest Code for California Mental Health Planning Council as chapter 62, section 55100 filed 1-4-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 1). 13. Editorial correction adding History 11 and 12 and deleting duplicate section number (Register 94, No. 17). 14. Amendment of subsection (b)(8), designation of subsection (b)(8)(A), new subsection (b)(8)(B), and amendment of subsections (b)(8.1)-(b)(8.1)(B), (b)(9)(E) and Note filed 3-14-95; operative 3-14-95 pursuant to Government Code section 11343.4(d) (Register 95, No. 11). 15. Editorial correction inserting inadvertently omitted language in footnote 4 (Register 96, No. 13). 16 16. Amendment of subsections (b)(8)(A)-(B) and (b)(8. 1)(A), repealer of subsection (b)(8. 1)(B), and amendment of subsection (b)(12) filed 10-23-96; operative 10-23-96 pursuant to Government Code section 11343.4(d) (Register 96, No. 43). 17. Amendment of subsections (b)(8.1) and (9)(E) filed 4-9-97; operative 4-9-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 15). 18. Amendment of subsections (b)(7)(13)5., new subsections (b)(8.2)-(b)(8.4)(C) and amendment of Note filed 8-24-98; operative 8-24-98 pursuant to Government Code section 11343.4(d) (Register 98, No. 35). 19. Editorial correction of subsection (a) (Register 98, No. 47). 20. Amendment of subsections (b)(8.1), (b)(8. 1)(A) and (b)(9)(E) filed 5-11-99; operative 5-11-99 pursuant to Government Code section 11343.4(d) (Register 99, No. 20). 21. Amendment of subsections (b)(8.1)-(b)(8.1)(A) and (b)(9)(E) filed 12-6-2000; operative 1-1-2001 pursuant to the 1974 version of Government Code section 11380.2 and Title 2, California Code of Regulations, section 18312(4) and (e) (Register 2000, No. 49). 22. Amendment of subsections (b)(3) and (b)(10) filed 1-10-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 2). 23. Amendment of subsections (b)(7)(A)4., (b)(7)(B)1.-2., (b)(8.2)(E)3., (b)(9)(A)-(C) and footnote 4. filed 2-13-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Lavv, 3 Civil C010924, California Court of Appeal, Third 17 Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 7). 24. Amendment of subsections (b)(8.1)-(b)(8.1)(A) filed 1-16-2003; operative 1-1-2003. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2003, No. 3). 25. Editorial correction of History 24 (Register 2003, No. 12). 26. Editorial correction removing extraneous phrase in subsection (b)(9.5)(B) (Register 2004, No. 33). 27. Amendment of subsections (b)(2)-(3), (b)(3)(C), (b)(6)(C), (b)(8.1)-(b)(8.1)(A), (b)(9)(E) and (b)(11)-(12) filed 1-4-2005; operative 1-1-2005 pursuant to Government Code section 11343.4 (Register 2005, No. 1). 28. Amendment of subsection (b)(7)(A)4. filed 10-11-2005; operative 11-10-2005 (Register 2005, No. 41). 29. Amendment of subsections (a), (b)(1), (b)(3), (b)(8.1), (b)(8. 1)(A) and (b)(9)(E) filed 12-18- 2006; operative 1-1-2007. Submitted to OAL pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2006, No. 51). 30. Amendment of subsections (b)(8.1)-(b)(8.1)(A) and (b)(9)(E) filed 10-31-2008; operative 11-30-2008. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Off ce of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2008, No. 44). 31. Amendment of section heading and section filed I 1-15-2010; operative 12-15-2010. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2010, No. 47). 32. Amendment of section heading and subsections (a) -(b)(1), (b)(3)-(4), (b)(5)(C), (b)(8.1)-(b)(8.1)(A) and (b)(9)(E) and amendment of footnote 1 filed 1-8-2013; operative 2-7-2013. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements and not subject to procedural or substantive review by OAL) (Register 2013, No. 2). 33. Amendment of subsections (b)(8.1)-(b)(8.1)(A), (b)(8.2)(E)3. and (b)(9)(E) filed 12-15-2014; operative 1-1-2015 pursuant to section 18312(e)(1)(A), title 2, California Code of Regulations. Submitted to OAL for filing and printing pursuant to Fair Political Practices Commission v. Office ofAdMblistrative Law, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2014, No. 51). 19 RESOLUTION NO. 13794 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL REPEALING RESOLUTION NO. 13402, RE -ADOPTING THE FPPC MODEL CONFLICT OF INTEREST CODE AS THE CITY'S CONFLICT OF INTEREST CODE, AND ADOPTING A REVISED LIST OF DESIGNATED EMPLOYEE POSITIONS AND DISCLOSURE CATEGORIES, TO BE INCORPORATED INTO THE CITY'S CONFLICT OF INTEREST CODE WHEREAS, pursuant to California Government Code Sections 81000, et seq. (The Political Reform Act, or PRA), the City Council has adopted by Resolution from time to time the Fair Political Practices Commission's model Conflict of Interest Code, contained at Title 2, California Code of Regulations, Section 18730, as the City's Conflict of Interest Code, and adopted therewith designated employee positions and disclosure categories for incorporation into the City's Conflict of Interest Code, most recently by Resolution No. 13402; and WHEREAS, every even -numbered year every state agency and local governmental agency is required to review and, if necessary, revise its Conflict of Interest Code including review and revision of its list of designated employee positions and its list of disclosure categories, so as to incorporate such changes as the new titles of recently hired employees, deleted positions, and other organizational restructuring; and WHEREAS, the Council has determined that the attached Appendices A and B accurately set forth those designated employee positions (Appendix A - Designated Employees) and disclosure categories of financial interest (Appendix B - Disclosure Categories), which should be made reportable under the City's Conflict of Interest Code; and WHEREAS, the City Council desires to continue to use the FPPC's model Conflict of Interest Code, as set forth in Title 2, California Code of Regulations Section 18730, as the City's 1 Conflict of Interest Code, a copy of which is available for public review in the City Clerk's office; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES AS FOLLOWS: 1. The above -recited facts are true and correct. 2. Resolution 13402 is hereby repealed. 3. The FPPC's model Conflict of Interest Code, as set forth in Title 2, California Code of Regulations Section 18730, is hereby re -adopted as the City's Conflict of Interest Code. 4. The attached list of designated employee positions (Appendix A) and list of disclosure categories (Appendix B) are hereby adopted and incorporated into the City of San Rafael's Conflict of Interest Code. 5. The officials and employees holding designated positions shall file statements of economic interests (Form 700) as required by regulations of the FPPC and by Section 4 (C) of the City's Conflict of Interest Code, with the City Clerk, and the City Council hereby delegates the authority of filing officer to the City Clerk. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on Tuesday, the 2nd day of September, 2014 by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Colin, Connolly, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ESTHER C. BEIRNE, City Clerk WACity Clerk- WorkHlMgenda related\FPPC issueslconf ict of int reso 09-I4.doc 2