HomeMy WebLinkAboutCA FPPC Conflict of Interest Code 2014cmr °F Agenda Item No: 3.b
Meeting Date: September 2, 2014
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: City Attorney
Prepared by: Eric Davis, Deputy City Attorney II City Manager Approval:P)11 t -c. 4
File No. 9-4-3
SUBJECT: Resolution 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 (CA)
RECOMMENDATION:
Adopt Resolution
SUMMARY BACKGROUND:
FPPC regulations require that, in every even -numbered year, each public agency review and, if
necessary, revise that portion of the Conflict of Interest Code containing the agency's lists of designated
positions and disclosure categories. These lists have been formulated using the criteria from FPPC
regulations requiring that all local officials, who foreseeably may materially affect their private economic
interests through the exercise of their public duties, disclose their economic interests by filing a statement
of economic interest (Form 700). Some officials are required to file disclosure statements because of
their position, and others are required to file because of their duties.
In compliance with this FPPC requirement, the City Clerk was requested to advise City departments to
review and, if necessary, revise their lists of designated positions and disclosure categories to reflect the
City's current organizational structure. These lists have now been revised with that information
In addition, the FPPC has interpreted the Political Reform Act (PRA) to apply to members of those City
boards and commissions with "decision-making authority," as well as to certain consultants Boards and
Commissions are considered to have "decision-making authority" if historically the recommendations of
those boards and commissions have been routinely adopted by the Council, Consultants are considered
"Public officials" for purposes of the PRA if they either serve in the capacity of a staff member or make
recommendations that are routinely adopted by the City. The various City departments have provided
updated information regarding the applicability of these regulations to their respective consultants as well
as their boards and commissions, and that information has been used to update the Conflict of Interest
Code.
FOR CITY CLERK ONLY
File No.: q —it —3
Council Meeting: C? a -'?-0!4
Disposition: elKi 1349 4
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Pau: 2
A copy of this staff report will be provided to all those who will be required to file for the first time.
Copies of all statements of economic interest are kept on file in the City Clerk's office for public review.
Finally, it should be noted that the disclosure requirements for Mayor, City Councilmembers, City Manager, City
Attorney, City Treasurer, and the Planning Commissioners are set forth in Government Code Sections 87200-
87210, and are not included in the City's Code, These officials are covered under separate regulations and
their disclosure statements are filed with the FPPC in Sacramento, with copies kept on file in the City Clerk's
office for public review..
FISCAL IMPACT:
No fiscal impact is anticipated from adoption of this resolution.
ACTION:
Adopt Resolution
Encls.: Resolution for adoption, including Appendices A and 8
Deputy City Attorney II - Memorandum dated July 28, 2014 with attachments
Model FPPC Conflict of Interest Code (2 CCR Section 18730)
Resolution No. 13402 to be repealed
W ZKy Clerk- Worki'lleWPPCIConflict of Int -700 senesTPPC biennial item 09-14 doe
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
I
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.
S. 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
• 9,vao-e
ESTHER C. BEIRNE, City Clerk
W' -City Clerk- Workf:i16Agcnda relatcdlFPPC issuestconflict of int reso 09-14 doc
2
APPENDIX A
Desianated Emolovees
DISCLOSURE
DEPARTMENT
POSITION
CATEGORY
City Attorney
Assistant City Attorney
11,2
Deputy City Attorney II
1.2
City Clerk
City Clerk
3b, 3g
Deputy City Clerk
3b, 3g
City Manager
Assistant City Manager
11,2
Emergency Services Manager
2, 3d, 3e, 3g
Economic Development Manager
1,2
Economic Development Program Coordinator
11,2
Events Coordinator
1.2
Community Development
Community Development Director
11,2
Planning Manager
1,2
Senior Planner
11,2
Associate Planner
1,2
Code Enforcement Official III
1,2
Code Enforcement Official 11
11,2
Code Enforcement Official 1
11,2
Chief Building Official
11,2
Deputy Building Official
11,2
Plan Checker
1.2
Building Inspector II
3e
Building Inspector I
3e
Community Services
Community Services Director
3f, 3g
Senior Recreation Supervisor
3f, 3g
Recreation Supervisor
3f. 3g
Recreation Coordinator
3f. 3g
fire
Fire Chief
2, 3d, 3e, 3g
Battalion Chief - Operations
2, 3d, 3e, 3g
Administrative Fire Captain
2, 3d, 3e, 3g
Deputy Fire Marshal
2, 3d, 3e, 3g
Fire Prevention Inspector 11
2, 3d, 3e, 3g
Fire Prevention Inspector 1
2. 3d, 3e, 3g
Environmental Management Coordinator
2. 3d, 3e, 3g
Emergency Management coordinator
2, 3d, 3e, 3g
Vegetation Management Specialist
2, 3d, 3e, 3g
Finance
Finance Director
1,2
Accounting Supervisor
1,2
Revenue Supervisor
2, 3 (in entirety)
Library
Library Director
3d, 3g
Assistant Library Director
3d, 3g
Management Services
Human Resources Director
3a, 3g
Information Technology Manager
3d, 3e, 3g
Network Analyst
3d, 3g
Parking Services Manager
11,2
Parking Operations Supervisor
2, 3d, 3g
Administrative Analyst
2, 3d, 3g
Police
Chief of Police
3d, 3e, 3f, 3g
Police Captain
3d, 3e, 3f, 3g
DISCLOSURE
DEPARTMENT POSITION CATEGORY
Police Lieutenant
Civilian Supervisor
Training Officer
Public Works 1 Public Works Director
Sanitation District Assistant Public Works Director 1 City Engineer
Administrative Manager
Associate Civil Engineer
Assistant Civil Engineer
Sr. Associate 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
Sewers Maintenance Supervisor
Sewer Maintenance Superintendent
Boards & Commissions Design Review Board
Geotechnical Review Board
Park & Recreation Commission
Consultants "
3d, 3e, 3f, 3g
3d, 3e, 3f, 3g
3f, 3g
11,2
11,2
11,2
11,2
3g
3g
3g
3g
3g
3g
3g
3g
3g
3g
11,2
1,2
3d, 3e
3d, 3e
3d
1.2
11,2
3e
3e
1.2
11,2
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 2014
APPENDIX B
Disclosure Categories
Cateaory 1: All investments and sources of income.
Cateaory 2: All interests in real property.
Cateaory 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;
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.
W 'TPPOConllict of int -740 scries\Appcndix 9 -Disclosure Categories 2014.docx
DATE:
TO:
FROM.
RE:
CITY OF SAN RAFAEL
San Rafael, California
INTERDEPARTMENTAL MEMORANDUM
July 28, 2014
ESTHER BEIRNE, City Clerk
ERIC T. DAVIS, Deputy City Attorney 11
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 September 2, 2014.
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 4, 2012 by City Council
Resolution No. 13402, 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 2, 2014 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 2
July 28, 2014
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:
The Fair Political Practices Commission has interpreted the PRA to apply to members of all
City boards, committees and commissions with decision-making authority. (2 Cal. Code Regs.
§ 18700(a) (1)). A board, committee or commission has decision-making authority if.
1. 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(a)(b) & (c)).
Accordingly, if historically, the recommendations of an advisory board (e.g. Design Review
Board) have been consistently adopted by the Planning Conunission 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. Desienated Employees:
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 or Interest Code
Page 3
July 28, 2014
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 uositions 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 malting 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 departmentlagency interacts to determine whether they meet the criteria to
file disclosure statements of economic interest.
3. 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:
I. 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.
Contlict oflnterest Code
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Conflict of Interest Code'
Determining Who Makes Making a governmental decision, means the person:
or Participates In the (1) Votes on a matter;
Making of Governmental
Decisions: (2) Appoints a person;
(3) Obligates or commits his or her agency to any course of action; or
(4) Enters Into any contractual agreement on behalf of his or her agency.
Participating In the making of a decision, means the person:
(1) Negotiates, without significant substantive review, with a governmental entity or
private person regarding the decision; or
(2) Advises or makes recommendations to the decision -maker by conducting research
or an investigation, preparing or presenting* report, analysis or opinion which
requires the exercise of judgment on the part of the employee and the employee Is
attempting to Influence the decision.
Who Is a Designated A designated employee Is an officer, employee, member or consultant of an agency
Employee? whose position Is designated in the code because the position entafls the making o
Participation h3 the making of goveMmenial deplEIgns which may foreseeably have a
material effect on any financial interest. (Government Code Section 82019.)
To determine who should be designated in the code. you need to know who within the
agency makes or pariiclpates in the making of governmental decisions. (FPPC
Regulation 2 Cal. Code of Regs. Section 1870 1-18702.4, )
Who Should Not be The term "designated employee" does not Include:
Designated? Public officials specified in Government Code Section 87200
• board of supervisors
• mayors
• chief administrative officers
• city managers
• district attorneys
• city attorneys
• county counsels
- city treasurers
• county treasurers
• other city, county and local agency public
• planning commissioners
officials who manage public investments
• city councilmembers
• Solely clerical, ministerial or manual positions
• Members of boards or commissions which are solely advisory and do not stake
substantive recommendations
Checking Duty Statement You can determine who should be designated in the code by first eliminating those
and Job Description: positions outlined above that are not designated employees.
Next, evaluate the remaining employees, members, officers or consultants of your
agency. Top level management personnel are normally broad policy makers and should
be designated. Look at each position to determine if it makes or participates in the
f making of governmental decisions. One way to accomplish this Is by reviewing duty
j statements or job descriptions.
'This fact sheet should not be used to determine whether your agency is required to adopt a conflict of
interest code Contact the FPPC for assistance in making that determination.
Fair Pailticdi Practices Commission
428 J Street, Ste 620 Sacramerge, CA 95814
1866; ASK+PPC;wwwAppc ca gnv
CFS1 June 2002
Consultants D
in a Conflict ofifterest Code
Who is a Consultant? The Political Reform Act (Gov. Code Sections 81000-91015) provides that "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! (Section 87100.)
In addition, the Act requires every public official to disclose those economic interests
that could foreseeably be affected by the exercise of his or her duties. (Sections
87200-87313.)
The term "public official" includes consultants: "Public official at any level of state or
local government' means a member, officer, employee, or consultant of a state or
local government agency." (Gov. Code Section 82048)
Wgulation 18701 (a)(2) defines "consultant" as an individual who, pursuant to a
contract with a state or local government agency:
(A) Makes a governmental decision whether to:
(i) Approve a rate, rule, or regulation;
(ii) Adopt or enforce a law;
(iii) Issue, deny, suspend, or revoke any permit, license, application, certificate,
approval, order, or similar authorization or entitlement;
(iv) Authorize the agency to enter into, modify, or renew a contract provided it is
the type of contract which requires agency approval;
(v) Grant agency approval to a contract which requires agency approval and In
which the agency Is a party or to the specifications for such a contract;
(vi) Grant agency approval to a plan. design, report, study, or similar item;
(vil) Adopt, or grant agency approval of, policies, standards, or guidelines for the
agency, or for any subdivision thereof;
-OR-
(8) Serves in a staff capacity with the agency and in that capacity participates in
making a governmental decision (Regulation 18702.2) or performs the same or
substantially all the same duties for the agency that would otherwise be
performed by an individual holding a position specified in the agency's Conflict of
Interest Code.
Consultants are
It is not the business or firm providing services to your agency that is considered the
Individuals
consultant. The individual(s) working for the Firm who provide the services are
considered the consultants. These individuals must rile statements of economic
interests based on their personal financial interests and are subject to disqualification
and other laws affecting public officials.
Serving In a Staff
The regulation includes only those individuals who either "participate in making"
Capacity
governmental decisions or are performing substantially all the same tasks that
normaily would be performed by staff members of a governmental entity In most
cases, individuals who work on just one project or a limited range of projects For an
agency are not considered to be working in a "staff capacity " The length of the
individual's service to the agency is relevant. (Memorandum to the Commission
dated March 28, 1994 ) For example, suppose an individual contracted with a city to
study noise at a specified intersection. If the individual took the noise measurements
in one day. and issued a report to the planning commission before its next meeting,
the individual normally would not be serving to a staff capacity If, however, a firm's
Fair PoiitiCai Practices Commission
428 J St.. Ste 620. Sacramento. CA 95614
6661ASK-FPPGwww fppe.ca.gov
C1FS - December 2001
Consultants �.
contract provided that It would provide all plan checking services for a city for five
years, it is much more likely that individuals performing these services would be in a
quasi -staff capacity.
An Individual who makes a govemmental decislon listed above or serves in
staff capacity with the agency is considered a public official who must file a
statement of economic Interests. This applies even If an agency falls to
properly designate a consultant in a conflict of Interest code because the
disqualification provisions of the Political Reform Act operate as soon as an
Individual becomes a public official. The Individual Is subject to the Act's gift
limits and conflict of interest provisions.
F_xampfes An attorney hired to perform ongoing legal services for an agency would usually be
considered a consultant. Attorneys generally have broad powers to affect decisions
which could foreseeably and materially affect their financial interests. These powers
Include the authority to represent and bind the agency to a course of action in
litigation and contract matters. Attorneys often make governmental decisions listed in
Regulation 18701(a)(2)(A) andtor serve in a staff capacity with the agency. However,
an attorney hired to work on one discrete litigation matter, who was not making any
governmental decisions listed above, would not be considered to be working in a
"staff capacity" and, therefore, would not be a consultant. (Memorandum to the
Commission, March 28, 1994.)
An investment firm provides consulting services to a county employee's retirement
association. Pursuant to a contract, employees of the investment firm attend all
board meetings and subcommittee meetings where investment issues are discussed.
Employees of the investment firm are required to perform other services and provide
reports on Investment issues as requested by the retirement board or staff. Because
the employees of the investment advisor serve on an ongoing basis as staff for the
retirement board, and in that capacity participate in the making of all investment
decisions, they are considered consultants under the Act. (Randolph Advice tetter,
No. 1-95-045.)
Individual members of a consulting fine who prepare an EIS/EIR report for the
Sacramento Regional Transit District's ("RT') Folsom light rail extension are
consultants and should be designated in a conflict of interest code. RT hires
environmental consultants on an as -needed basis to prepare extensive or technical
environmental studies which cannot be completed by its staff. RT hires
environmental consultants for each project. The consulting firm will be under contract
with RT to provide environmental services for three projects extending over at least
three years. The consultant conducts research and makes investigations that require
exercise of Its expertise and jpdgment, and prepares the report. The consultant's role
also encompasses recommending to RT's board of directors approval of agreements
and permits it negotiates and approval of the environmental report. Although the RT
board reviews the report and related documents, because of the technical nature of
the study, the consultant's conclusions and recommendations are accepted without
significant intervening substantive review. In addition, members of the consulting firm
have authority to negotiate contracts and recommend RT's approval without
significant independent review by RT (Patterson Advice tetter, No. A-97-570.)
The Commission realizes that not all consultants participate n making decisions on
behalf of public agencies. Rather than amend your code each time you retain a
consultant who is in a decision-making capacity, you may use a specialized
disclosure category which provides that the disclosure required of consultants shall
be determined on a case-by-case basis by the chief executive officer The chief
executive officer may make a determ-nation as to what disclosure, !f any, is required
by any particular consultant
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California Fair Political Practices Commission
Conflict -of -Interest Codes - Designating Positions
Introduction
The FPPC is frequently asked why an agency cannot require all of its employees
to file a Form 700, Statement of Economic Interests. The following discussion outlines
the statutory' and regulatory requirements that provide the basis for determining which
positions should be designated.
Discussion
One of the most frequent questions to FPPC staff is how does an agency
determine which positions should be included in a conflict-of-interest code. The answer
is that each agency is unique, and the list of positions is dependent upon several
factors. For example, an analyst in one agency may not even be covered in a conflict-
of-interest code because that position has no purchasing authority, and its regulatory
related duties are substantially reviewed by more than one supervisor and director. In
another agency, the analyst may have full authority with little oversight. The following
discussion provides background on the statutes, regulations, and guidance provided
through advice letters.
The Political Reform Act ("Act") requires that "every agency shall adopt and
promulgate a conflict-of-interest code." (Section 87300,) Section 87302(a) provides that
a conflict-of-interest code shall contain "specific enumeration of the positions within the
agency which involve the making or participation in the making of decisions which may
foreseeably have a material financial effect on any financial interest." The term "public
official" is defined, in part, in Section 82048 as "... every member, officer, employee or
consultant of a state or local government agency, but does not include judges and court
commissioners in the judicial branch of government." With respect to each such
position, a code is required to list the specific types of investments, interests in real
property, and income that must be disclosed. The responsibility for determining if a
code meets these specifications rests with the "code reviewing body." (Section 87303.)
Section 87309 states what a conflict-of-interest code must contain before it may
be approved by the code reviewing body. Paragraph (c) of that section provides that a
code may not be approved if it "fails to adequately differentiate between designated
employees with different powers and responsibilities." This provision is intended to
ensure, first, that a conflict-ofi-interest code requires financial disclosure only from
employees required to be designated by Section 87302(a) and, second, that a code
' All statutory references are to the Government Code unless otherwise noted.
www.fppc.ca.gov
1.866.275.3772 or 916.322.5660
FPPC TAD - 038-06.2012 • Page 1 of 3
California Fair Political Practices Commission
Conflict -of -Interest Codes - Designating Positions
relate disclosure to the specific duties of such designated employees. Thus, a code
reviewing body would fail to fulfill its obligation under Section 87309(c) if it allowed
designation of positions in a code which, to quote the language of Section 87302(a), do
not entail the "making or participation in the making" of governmental decisions. It
would be equally improper for a code reviewing body to require disclosure of interests
that may not foreseeably be affected materially by decisions made or participated in by
designated employees.
In City of Carmel -by -the -Sea v. Young, the Supreme Court held, in general, that
there must be a balancing of interests between the government's need to expose or
minimize possible conflicts of interest on the one hand, and the right to maintain privacy
in one's personal financial affairs while seeking or holding public office on the other. (2
Cal.3d 259 (1970).) Required disclosure of economic interests under the Act has been
found to be appropriate where it is narrowly tailored to avoid unwarranted intrusion into
the privacy of the public officials involved. (See, Hays v. Wood, 25 Cal3d 770 (1979).)
A public official "makes a governmental decision" when the official, acting within
the authority of his or her office or position, votes on a matter, obligates or commits his
or her agency to any course of action, or enters into any contractual agreement on
behalf of his or her agency. (Regulation 18702. 1.) Therefore, such positions should be
designated in the agency's conflict-of-interest code.
A public official "participates in a governmental decision" when, acting within the
authority of his or her position and without significant substantive or intervening review,
the official negotiates, advises, or makes recommendations to the decisionmaker
regarding the governmental decision. (Regulation 18702.2.) If a superior relies on an
individual's professional judgment, then the individual is participating in making a
governmental decision. In other words, if the individual influences the final decision by
supporting a position or suggesting a course of action, he/she is participating in the
decision even if he/she is not making the final decision. Therefore, the individual's
position must be designated in the conflict-of-interest code.
There are several techniques to assist in making the determination of which
positions need to be designated in the code. These include reviewing organizational
charts — generally, the positions closest to the top must be designated in the code. The
larger the agency, the more likely it is that lower level positions have narrower duties
and additional, substantive review, and therefore, do not need to be designated.
Meeting minutes and annual reports also provide information on the position
responsibilities and provide insight as to which positions warrant supplementary review.
Additionally, agency websites (such as the contact us page) may provide clues as to
whether all positions on an organizational chart are up to date. And lastly, current job
duty statements should be requested.
www.fppc.ca.gov
1.866.275.3772 or 916.322.5660
FPPC TAD • 038-06.2012 • Page 2 of 3
California Fair Political Practices Commission
Conflict -of -Interest Codes - Designating Positions
Summary
High level positions that have authority to vote on a matter, appoint a person,
obligate or commit his or her agency to a course of action, or enter into any contractual
agreement on behalf of his or her agency, mid-level positions that have authority to
negotiate decisions on behalf of the agency without significant substantive review, and
positions that advise or make recommendations to the decision -maker by conducting
research or an investigation, preparing or presenting a report, analysis or opinion that
requires the exercise of judgment on the part of the employee and the employee is
attempting to influence the decision, should all be designated in the conflict-of-interest
code. Positions that are strictly manual, clerical, or ministerial in nature should not be
designated in the conflict-of-interest code. It is important to note that an express
purpose of the Act is to ensure that the assets and income of public officials be
disclosed so that conflicts of interests may be avoided. However, as discussed in the
foregoing paragraphs, only those positions that make or participate in making
governmental decisions are required to report assets and income on a public form.
Thus, the agency and code reviewing body must take a careful look at the agency's
governmental programs and functions as well as the specific duties of those positions
being designated in the code.
www.fppc,ca.gov
1.866.275.3772 or 916.322.5660
FPPC TAD • 038-06.2012 • Page 3 of 3
September 10, 2013
Dianna Marie Valdez, Senior Paralegal
Conflicts of Interest & Ethics Coordinator
Public Policy & Ethics Group
Best Best & Krieger LLP
P O Box 1028
Riverside, CA 92501-1028
Re: Your Request for Informal Assistance
Our File No. I-13-100
Dear Ms. Valdez:
This letter responds to your request for advice regarding financial reporting and the
conflict-of-interest provisions of the Political Reform Act (the "Act").' Because you seek general
guidance, we are treating your request as one for informal assistance.2
QUESTION
Many local agencies are contracting out a portion of their human resources administration
to private Firms. What standards apply to determine whether individuals providing such
administrative services are "consultants" under the Act, subject to its conflict of interest and
economic disclosure provisions?
CONCLUSION
Under the Act, an individual consulting to a government agency is required to file a
statement of economic interests and is covered by the conflict-of-interest rules if the consultant
makes governmental decisions as defined in Regulation 18701(a)(2) or serves a staff capacity
' The Political Reform Act is contained in Government Code Sections 81 QUO through 9101.1. All statutory
references are to the Government Code, unless otherwise indicated. The regulations of the Fair Political Practices
Commission are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regulations. All
regulatory references are to Title 2, Division 6 of the California Code of Regulations, unless otherwise indLeated.
Informal assistance docs not provide the requestor with the immunity provided by an opinion or formal
written advice. (Section 831 14; regulation 18329(c)(3).)
File No. 1-13-100
Page No. 2
and participates in governmental decisions or performs the duties of an individual in the agency's
conflict-of-interest code. (Regulation 18701(a)(2) and 18702.2.)
Based on the sample facts you provided, individuals in the human resources firm Paychex
providing HR services to the local agency will not be considered consultants where the services
they are providing consist of payroll, administrative and educational services, administering
health benefits insurance, and implementing hiring, overtime and other decisions made by
employees of the government agency_ In these instances, the individuals in the human resources
Firm will not be making a governmental decision, or serving in a staff capacity and participating
in a governmental decision or performing substantially all the same duties as someone in the
agency's code, which would require their designation as a consultant.
FACTS
In your work as a Senior Paralegal, you review conflict of interest codes on behalf of
local agencies, many of which contract out some portion of their human resources
administration. You are requesting general guidance about whether individuals in the private
firms providing human resources services to certain local agencies should be considered
consultants under the Act subject to its conflict of interest provisions and required to file annual
statements of economic interests_
For example, you have a client that has outsourced the bulk of its human resources duties
to the firm Paychex. You have sent us a copy of the services agreement between the Lake
Arrowhead Community Services District (the "district") and Paychex, and the overview and the
objectives of this agreement. You also provided summaries from each of these documents as to
what prompted you to believe certain individuals working under this contract may be considered
consultants and required to file Form 700s narrowed to interests based on their duties.
You spoke with a company representative and attorneys working on this matter and from
what they tell you, the individuals that have ongoing contact with the district only provide
payroll, administrative and educational services. They state that no one person has any
responsibility for representing the district in dealing with any claims, insurance, negotiations, etc.
There are a couple of employees at Paychex who administer this client, but they only deal with
the human resources duties and health benefits insurance, which appear to be just a process based
upon the information you obtained. Paychex also develops and provides all policy documents
and handbooks but retains ownership. These are developed based on Paychex's review of
applicable federal and state statutes and regulations then in effect.
ANALYSIS
The Act's conflict-of-interest rules prohibit a public official from making, participating in
making, or using his or her official position in any way to influence a governmental decision in
which the official knows, or has reason to know, that he or she has a "financial interest."
(Section 87100_) Section 87103 provides that a public official has a "financial interest" in a
File No. I-13-100
Page No. 3
governmental decision "if it is reasonably foreseeable that the decision will have a material
financial effect, distinguishable from its effect on the public generally, on the official, a member
of his or her immediate family, or on any" of the official's economic interests. in addition,
certain state and local public officials must file periodic statements of economic interests (Form
700) disclosing those personal assets and interests that may be affected during the performance
of their official duties. (Sections 87200 - 87350.)
A. Consultant.
The Act defines "public official" to include "every member, officer, employee or
consultant of state or local government agency." (Section 82048, emphasis added.) In
addition, the Act defines the term "designated employee" to include "any officer, employee,
member, or consultant" of any agency who meets specified criteria. (Section 82019, emphasis
added.) Under the Act, each agency is required to adopt a conflict-of-interest code. (Section
87300.) Typically an agency's conflict -o€ -interest code includes designations for consultants to
the agency.
The term "consultant" is defined in Regulation 18701(a)(2) as an individual who,
pursuant to a contract with a state or local government agency:
"(A) Makes a government decision whether to:
"(i) Approve a rate, rule, or regulation;
"(iii) Issue, deny, suspend, or revoke any permit license, application,
certificate, approval, order, or similar authorization or entitlement;
"(iv) Authorize the agency to enter into, modify, or renew a contract
provided it is the type of contract that requires agency approval;
"(v) Grant agency approval to a contract that requires agency approval and
to which the agency is a party, or to the specifications for such a contract;
"(vi) Grant agency approval to a plan, design, report, study, or similar
item;
"(vii) Adopt, or grant agency approval of, policies, standards, or
guidelines for the agency, or for any subdivision thereof; or
"(13) Serves in a staff capacity with the agency and in that capacity
participates in making a government decision as defined in regulation
18702.2 or performs the same or substantially all the same duties for the
agency that would otherwise be performed by an individual holding a
File No. 1-13-100
Page No. 4
position specified in the agency's Conflict of Interest Code under
Government Code section 87302."
Thus, there are two ways that an individual can become a "consultant."3 First, an
individual may be a "consultant" if he or she, pursuant to a contract with a government
agency, makes government decisions or enters into contracts for the agency as described in
Regulation 18701(a)(2)(A). Alternatively, an individual may be a "consultant" if he or she
serves in a staff capacity and either participates in governmental decisions (as defined) or
performs the same or substantially all the same duties that would otherwise be performed by
an individual in a position listed in the agency's conflict-of-interest code_
1. Makes government decisions.
As described in Regulation 18701(a)(2)(A) above, if an individual is performing
services under a contract with a government agency and "makes a government decision" for
the agency as listed in that provision, he or she is a consultant.
We note that you are taking the right approach in looking at the actual duties an
individual at the human resources firm performs on behalf of the government agency. The
sample contract you submitted between Paychex and the district seems to be a general, form
contract that lists all possible human resources services that Paychex may provide for the
district or for other clients. In determining whether an individual needs to be designated as a
consultant, you are correct to focus on the actual duties performed by an individual in the
human resources firm for a government agency, rather than the possible services listed in a
form contract.
For example, Paychex advised you that the individuals who will have ongoing contact
with the district will only provide payroll, administrative and educational services. They stated
that no one person has any responsibility for representing the district in dealing with any claims,
insurance, negotiations, etc. There are a couple of employees at Paychex who administer the
district as a client but this is only dealing with the human resources duties and health benefits
insurance processing.
The facts in your example indicate that the individuals at Paychex will not be making
government decisions, entering into contracts or performing other actions listed in Regulation
18701(a)(2)(A) for the district. Accordingly, we next examine whether the individuals serve
in a staff capacity under subdivision (B).
,A business entity cannot be a "consultant- under Regulation 18701(a)(2), because the term is applied
only to an "individual," that is, a natural person, It is the employee of the firm, who actually performs the duties
tender the contract, who may be a consultant if his or iter activities meet the definition of "consultant." (Herecher
Advice Letter, No. A-92-278.)
File No. I-13-100
Page No. 5
2. Serves in a staff capacity.
The phrase "serves in a staff capacity" in subdivision (B) has been construed by the
Commission to include only those individuals who are performing substantially all the same
tasks that normally would be performed by one or more staff members of governmental
agency. Implicit in the notion of service in a staff capacity is an ongoing relationship between
the contractor and the public agency. We have advised that a contractor serves in a staff capacity
where the contract calls for work to be performed "over more than one year" on "high level"
projects (Ferber Advice Letter, No. A-98-118).
We have advised that a contractor does not act in a staff capacity where the work is to be
performed on one project or a limited number of projects over a limited period of time (Sanchez
Advice Letter, No. A-97-438), where the relationship between the contractor and the agency
would last only 12 16 months with no ongoing relationship contemplated (Harris Advice
Letter, No. A-02-239) and where, under a multi-year contract, the contractor would perform only
on a sporadic basis. (Maze Advice Letter, No. 1-95-296; Parry Advice Letter, No. 1-95-064.)
The services you are inquiring about will be performed by the human resources firm for
the local government agency on a continuing, ongoing basis. The agreement between Paychex
and the district for human resources services will continue until terminated and involves a variety
of duties that would otherwise be performed by district employees. Under these circumstances,
the individuals at the human resources firm will be working in a staff capacity.
The next step in the analysis is to determine whether the consultant will either participate
in making a governmental decision or will perform "the same or substantially all the same duties
... that would otherwise be performed by an individual holding a position specified in the
agency's Conflict of Interest Code . _ .."
Participates in making a governmental decision or performs the same or similar job
duties normally performed by an individual in a position listed in the agency's conflict-of-
interest code.
Regulation 18702.2 states that an official participates in making a governmental decision
when, acting within the scope of the official's position, the official:
"(a) Negotiates, without significant substantive review, with a government
entity or private person regarding a governmental decision referenced in
[Regulation 18701(a)(2)(A)];
"(b) Advises or makes recommendations to the decisionmaker either
directly or without significant intervening substantive review, by:
"(1) Conducting research or making any investigation which requires the
exercise of judgment on the part of the official and the purpose of which is
File No. I-13-100
Page No. 6
to influence a governmental decision referenced in [Regulation
18701(a)(2)(A)]; or
"(2) Preparing or presenting any report, analysis, or opinion, orally, or in
writing, which requires the exercise of judgment on the part of the official
and the purpose of which is to influence a governmental decision
referenced in [Regulation 18701(a)(2)(A)]."
Under the contract between Paychex and the district, it appears that the individuals
providing human resources services to the agency will be implementing decisions already made
by the government agency, rather than be participating in governmental decisions or performing
duties of an individual in a position listed in the agency's conflict of interest code, and thus
would not be considered consultants under the Act. This is true where the individuals are
providing administrative services, handling payroll, providing educational services, and
processing health benefits insurance. This is also true where the individuals at the private human
resources firm are implementing decisions made by employees of the local agency with respect
to new hires, separations and overtime authorization.
However, if individuals in the private human resources firm are making executive
decisions concerning human resources matters on behalf of the agency, such as making hiring
decisions, deciding what health benefits to offer (that have not already been pre -approved), or
approving contracts on behalf of the agency, then you are correct that they would need to be
designated as consultants under the Act.
For example, outside human resources personnel will not require being designated as a
consultant in an agency's conflict-of-interest code if they undertake the following activities:
- payroll administration;
- administration of employee benefits;
- processing new agency hires or separation of employees;
- implementing authorized employee overtime;
- prepare salary or benefits surveys for consideration by the government agency.
On the other hand, outside human resources personnel will need to be designated as a
consultant in an agency's conflict-of-interest code if they undertake the following activities:
- hire an outside attorney to represent the agency in personnel issues;
- select and purchase software for the agency for use payroll and human resources
administration;
- select benefits packages offered to agency employees. including determining what kind
of benefits to provide or which providers to utilize;
- participate as part of the agency's executive management team;
- approve health benefit claims.
File No. I-13-100
Page No. 7
In addition to someone who "serves in a staff capacity" and "participates in making a
government decision," the regulation also includes as a consultant an individual who "serves in a
staff capacity" and "performs the same or substantially all the same duties for the agency that
would otherwise be performed by an individual holding in a position specified in the agency's
conflict-of-interest code." Of course, an agency's conflict of interest code specifically lists
positions that make or participate in government decisions.; You will want to review a local
government agency's conflict of interest code carefully, to make sure that the code is not
overbroad in designating agency employees who have human resources responsibilities that do
not involve making or participating in a governmental decision. This will ensure that individuals
at an outside HR firm will not be inadvertently pulled in as consultants under this provision.
We hope this provides you general guidance as you review the contracts for human
resources services entered into by local agencies. If you have other questions on this matter,
please contact me at (916) 322-5660.
Sincerely,
Zackery P. Morazzini
General Counsel
By: Hyla P. Wagner
Senior Counsel, Legal Division
HPW.jgl
The definition of" designated employee" under Section 82019 includes those whose position entails making or
participating in making go%ernment decisions, exempt employees, elected positions, and those employees in%olted
in contracting or procurement
FAIR POLITICAL PRACTICES COMMISSION
428 J Street • Suite 620 • Sacramento, CA 958142329
(916) 322-5660 • Fax (916) 322-0886
April 15, 2008
Jennifer Fint
Administrative Assistant
ERMA
1831 K Street
Sacramento, CA 95811
Re: Your Request for Advice
Our File No. A-08-038
Dear Ms. Fint:
This letter responds to your request for advice on behalf of the Employment Risk
Management Authority 'ERMA") regarding the "consultant" provisions of the Political
Reform Act (the "Act").
QUES'T'ION
Are the brokers who work for A1liant Insurance Services, Inc. (the "brokers") and
provide excess insurance quotes to the ERMA Board of Directors (the "Directors")
"consultants" under the Act such that they should be designated in the conflict of interest
code and file Statements of Economic Interests ("SEC')?
CONCLUSION
Based on the information you provided, the brokers are not considered
"consultants" under the Act, and thus will not file SEI's.
FACTS
You are writing on behalf of ERMA, a Joint Powers Authority ("JPA') with state
jurisdiction. ERMA engages an insurance brokerage firm to collect information and
obtain quotes for excess insurance (insurance over the ERMA pooled limit). The brokers
` The Political Reform Act is contained in Government Code Sections 91000 through 91014. All
statutory references are to the Government Code, unless otherwise indicated. The regulations of the Fair
Political Practices Commission are contained in Sections 18110 through 18997 of Title 2 of the California
Code of Regulations. All regulatory references are to Title 2, Division 6 of the California Code of
Regulations, unless otherwise indicated.
Am
File No. A-08-038
Page No. 2
provide insurance quotes annually, and the board decides whether or not ERMA will
purchase excess insurance. ERMA is not currently buying excess insurance.
The brokers do not invest or manage any ERMA Funds, and do not make the
decision whether or not ERMA will purchase excess insurance.
Per the contract between the brokers and ERMA, the brokers are responsible for,
among other things, evaluating ERMA's current and potential excess insurance needs.
The brokers must also inform the ERMA board of any problems or issues related to
coverage, and will monitor the program to ensure its continued efficacy. The brokers
also agree that then the ERMA board requests their presence at the board meetings, they
will attend and present the pertinent information.
ANALYSIS
The Act's conflict-of-interest rules prohibit a public official from making,
participating in making, or using his or her official position in any way to influence a
governmental decision in which the official knows, or has reason to know, that he or she
has a "financial interest." (Section 87100.) Section 87103 provides that a public official
has a "financial interest" in a governmental decision "if it is reasonably foreseeable that
the decision will have a material financial effect, distinguishable from its effect on the
public generally, on the official, a member of his or her immediate family," or on any of
the official's economic interests. In addition, state and local public officials must file
periodic statements of economic interests (Form 700) disclosing those personal assets and
interests that may be affected during the performance of their official duties. (Sections
87200 - 87350.)
Your request for advice on behalf ERMA relates to the interpretation of the city's
conflict of interest code. The Fair Political Practices Commission (the Commission") is
the code -reviewing body for ERMA, a JPA. For this reason we are able to provide
advice regarding ERMA's code.
The Act defines -public official" to include "every- member, officer, employee or
consultant of state or local government agency." (Section 82048.) ERMA is a state
agency by virtue of its being a JPA. Regulation 18701(a) defines, for purposes of Section
82048 (and Section 82019 which defines "designated employee") a consultant:
(2) "Consultant" means an individual who, pursuant to a contract with
a state or local government agency:
(A) Makes a governmental decision whether to:
1. Approve a rate, rule, or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit. license, application,
certificate, approval, order, or similar authorization or entitlement;
4. Authorize the agency to enter into, modify. or renew a contract
provided it is the type of contract that requires agency approval;
" File No. A-08-038
Page No. 3
5. Grant agency approval to a contract that requires agency approval
and to which the agency is a party, or to the specifications for such a
contract;
6. Grant agency approval to a plan, design, report, study, or similar
item;
7. Adopt, or grant agency approval of, policies, standards, or
guidelines for the agency, or for aay subdivision thereof; or
(B) Serves in a staff capacity with the agency and in that capacity
participates in making a governmental decision as defined in
Regulation 18702.2 or performs the same or substantially all the same
duties for the agency that would otherwise be performed by an
individual holding a position specified in the agency's Conflict of
Interest Code under Government Code Section 87302.
(Regulation 18701(a)(2). copy enclosed.)
The Act qualifies a "consultant" as being an individual who has a contract with a
state or local government agency. You have provided a copy of the contract. The
contract you provided is between ERMA and the brokerage firm of Alliant Insurance
Services, Inc. The people who perform the duties under the contract would be the focus
of our inquiry. (,See Wasko Advice Letter, A-04-270, copy enclosed.)
To further determine whether the brokers are "consultants" under the Act, you
must determine whether the brokers are "making governmental decisions." If the brokers
engage in any of seven criteria listed above, they qualify as consultants. (See Regulation
18701(a)(2).)
From the information you provided, and a careful reading of the contract between
the brokers and ERMA, we find nothing to establish that the brokers have the authority to
make any decisions, or take any actions listed in Regulation 18701(a)(2)(A). Therefore,
the brokers do not qualify as consultants under this Regulation.
Additionally, under Regulation 18701(a)(2)(B), the brokers could be considered
consultants if they serve "in a staff capacity with the agency and in that capacity
participate[] in making a governmental decision as defined in Regulation 18702.2 or
performs the same or substantially the same duties for the agency that would otherwise be
performed by an individual holding a position specified in the agency's Conflict of
Interest Code under Government Code Section 87302."
This provisions applies two separate tests: fust, whether the individual serves in a
staff capacity and in that capacity participates in making governmental decisions and
second, whether the individual serves in a staff capacity with the agency and in that
capacity perforins all or substantially all the same duties of an individual holding a
position specified in the agency's conflict of interest code.
The Randolph Advice Letter (No. I-95-045) illustrates how one decides whether a
person serves in an agency staff capacity within the meaning of Regulation
18701(a)(2)(B). This advice letter notes that the "staff capacity" language generally
File No. A-08-038
Page No. 4
excludes individuals who work on one project or a limited range of projects. Generally,
"serving in a stag capacity" involves an on-going relationship between the agency and
the contractor. (.See Wasko Advice letter, supra; see also, Travis Advice Letter, No. A-
96-053.) The Commission has previously found that a tern of more than one year is
significant enough to meet this temporal qualifier, whereas nine months of regular and
continuous work is not normally enough to qualify. (Ferber Advice letter, No. A-98-118
and Smith Advice Letter, No. 1-99-316.)
The brokers' duties, as described in the contract you provided are unique to the
excess insurance market, and it seems as though ERMA's staff would not otherwise
perform these duties. While the term of the contract does extend for one year with the
option to renew, the brokers are not engaging in "regular and continuous" work for the
agency. Rather, they have specified duties that they perform at necessary intervals, and
when called upon to do so, report to the agency.
The brokers are not serving in a staff capacity, as their duties are limited to those
specified in the contract and are specialized in the area of excess insurance.
A person "participates in making a governmental decision" when he or she. acting
within the authority of his or her position:
(a) Negotiates, without significant substantive review, with a
governmental entity or private person regarding a governmental
decision referred to in Regulation 18701(a)(2)(A);
(b) Advises or makes recommendations to the decisionmaker either
directly or without significant intervening substantive review, by:
(1) Conducting research or making any investigation which
requires the exercise of judgment on the part of the official and the
purpose of which is to influence a governmental decision referred
to in Regulation 18701(a)(2)(A); or
(2) Preparing or presenting any report, analysis, or opinion, orally,
or in writing, that requires the exercise of judgment on the part of
the official and the purpose of which is to influence a
governmental decision referred to in Regulation 18701(a)(2)(A).
(Regulation 18702.2.)
On reading the contract between the brokers and ERMA. and after reviewing your
facts, we see no evidence that the brokers are participating in or making governmental
decisions. Rather, the brokers advise the ERMA board on an occasional basis. They
obtain excess insurance quotes and present them to the board. The board then decides
whether to purchase the excess insurance, Currently, ERMA is not purchasing excess
insurance.
Based on the limited facts you have provided, the brokers do not seem to fit under
the definition of "consultant" and therefore would not file SEI's.
File No. A-08-038
Page No. 5
If you have other questions on this matter, please contact me at (916) 322-5660.
Sincerely,
Scott Hallabrin
General Counsel
By: Heather M. Rowan
Counsel, legal Division
HMR: jgl
Enclosures
August 19, 2004
Leslie E. Murad, 11
Office of the City Attorney
City of Redlands
Post Office Box 3005
Redlands, CA 92373-1505
Re: Your Request for Advice
Our File No. A-04-070
Dear Mr. Murad:
This letter is in response to your request on behalf of the city council for the City
of Redlands regarding Wildan, a professional engineering consulting firm, for advice
regarding the conflict-of-interest and filing provisions of the Political Reform Act (the
"Act").'
QUESTION
For the purposes of qualification as a consultant under the city's conflict of
interest code, does the Wildan professional engineering consulting firm, or the
individuals of Wildan performing duties under the contract with the City of Redlands,
qualify as "consultants" for the City of Redlands under the Act, such that they must file a
Form 7007
CONCLUSION
Yes. Based on the information you have provided, the inclividuals performing the
services specified in the contract between the City of Redlands and Wildan are
considered "consultants" to the City of Redlands under the Act and are therefore
obligated to file a Form 700. Please note that Wildan, the company, cannot be considered
to be a consultant under the Act since consultants are individuals, as discussed below.
However, in accordance with the city's conflict of interest code, this determination
should be made by the city council regarding whether the employees of Wildan are
consultants under the city's conflict of interest code.
Government Code sections 81000 — 91014. Cornnnission regulations appear at Title 2, sections
18I09-18997, of the California Code of Regulations
File No. A-04070
Page No. 2
FACTS
The City of Redlands Public Works and Community Development Departments
(the "city") retain consultants for the purpose of assisting with the workload when the
city does not have sufficient employees to handle assignments. Both departments have
retained Wildan, a professional engineering consulting Finn, to review engineering plans,
maps and documents relative to proposed development. Wildan also examines building
plans for compliance with state building codes as well as performing field inspections as
a building inspector. Wildan performs this work as if the consulting firm was an
employee of the city. Wildan submits its reports and findings to the city's departments
for review, ratification and concurrence by the public works director and the city's chief
building official.
The public works director is a designated position within the city conflict of
interest code. The chief building official is not. The chief building official does report,
however, to the community development director, a designated position within the city's
conflict of interest code. The position of"consultant" is listed as a designated position
within the conflict of interest code with the city council making the determination of who
qualifies as a consultant under the conflict of interest code.2
Additional facts were provided by you. on April 2, 2004, stating that Wildan only
has the power to recommend a correction be done but is capable of temporarily stopping
work on a project in order for a correction to be made. You also provided that this
relationship is ongoing with the same type of work being performed by Wildan
continually.
ANALYSIS
The Act's conflict-of-interest rules prohibit a public official from making,
participating in making, or using his or her official position in any way to influence a
governmental decision in which the official knows, or has reason to know, that he or she
has a "financial interest." (Section 87100.) Section 87103 provides that a public official
has a "financial interest" in a governmental decision "if it is reasonably foreseeable that
the decision will have a material financial effect, distinguishable from its effect on the
public generally, on the official, a member of his or her immediate family," or on any of
the official's economic interests. In addition, state and local public officials must file
periodic statements of economic interests (Form 700) disclosing those personal assets and
interests which may be affected during the performance of their official duties, (Sections
87200 — 87350.)
Your request for advice on behalf of the Redlands City Council relates to the
interpretation of the city's conflict of interest code. The city council determines who
qualifies as a consultant under that code and is. the code reviewing body as well. Where
the Commission is not the code reviewing body for the conflict of interest code of the
2 This information was provided by you in a telephone discussion on August 18, 2004.
a
File No. A-04-070
Page No. 3
agency or individual questioning the conflict of interest code interpretation, the
Commission provides advice only in situations where the individual or agency has
already requested an interpretation from the code reviewing body. (Regulation
18329.5(x)(3).) In this case, the code reviewing body is requesting the Commission's
interpretation in coordination with the agency and individuals in qucstion, so the
Commission is able to provide advice.
The Act defines "public official" to include "every member, officer, employee or
consultant of a state or local government agency." (Section 82048, emphasis added.)
The local agency sponsors referred to in this advice request are by definition "local
government agencies" under section 82041. Regulation 18701 provides for purposes of
section 82048 (and section 82019 which defines "designated employee"), the definition
of a "consultant":
"(2) `Consultant' means an individual who, pursuant to a
contract with a state or local government agency:
(A) Makes a governmental decision whether to;
1. Approve a rate, rule, or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revolve any permit, license,
application, certificate, approval, order, or similar
authorization or entitlement;
4. Authorize the agency to enter into, modify, or renew a
contract provided it is the type of contract that requires
agency approval;
5. Grant agency approval to a contract that requires agency
approval and to which the agency is a party, or to the
specifications for such a contract;
6. Grant agency approval to a plan, design, report, study, or
similar item;
7. Adopt, or grant agency approval of, policies, standards, or
guidelines for the agency, or for any subdivision thereof; or
(B) Serves in a staff capacity kith the agency and in that
capacity participates in malting a governmental decision as
defined in Regulation 18702.2 or performs the same or
substantially all the sante duties for the agency that would
otherwise be performed by an individual holding a position
File No. A-04-070
Page No. 4
specified in the agency's Conflict of Interest Code under
Government Code Section 87302." (Regulation
18701(a)(2).)
We note at the outset that a business (such as Wildan) or governmental entity
cannot be a "consultant" under regulation 18701(a)(2), since the term is applied only to
an "individual," that is, to a natural person. You must look to the person performing the
duties under the contract to determine who, if anyone, is acting as a consultant. (Sanchez
Advice Letter, No. I-03-173.) In addition, if individuals within Wildan do not have
duties under the contract, or those duties do not meet the definition of "consultant," as
stated above, then those individuals are not consultants under the contract. (Del Guercio
Advice Letter, No. I-01-116.) Therefore, in order to apply this analysis, the city council
must determine which individuals working for Wildan are performing the duties pursuant
to the contract and then apply this analysis to determine who is designated a consultant.
Regulation 18701(a)(2) establishes two standards for qualification as a consultant.
An individual who satisfies either standard is a consultant for the purposes of the Act.
First, an individual may be a "consultant" if he or she performs, pursuant to contract, any
of the actions described in subdivisions (a)(2)(A)(l)-(7) of regulation 18701.
Alternatively, an individual may be a consultant if he or she "serves in staff capacity with
the agency" under subdivision (a)(2)(B).
Based on the facts provided, the duties performed under the contract by the
personnel of Wildan include reviewing engineering plans, maps and documents relative
to proposed development as well as examining building plans for compliance with state
building codes and performing field inspections as a building inspector. You state that
the personnel will submit the reports and findings to the city's departments for review,
ratification and concurrence by the public works director and the city's chief building
official. However, you also state that the Wildan personnel are capable of temporarily
stopping work on a project in order for a correction to be made.
Under the first test, where the contract expressly provides for a significant amount
of control and direction by the city, which also retains the ultimate decision-making
authority, the personnel of the contracting entity do not fulfill the qualifications of a
consultant. (Del Guercio Advice Letter, supra.) 4n the other hand, in the situations
described by your facts where the consultants have the authority to "suspend" an activity,
the criteria identified in regulation 1870I(a)(2)(A)(3) and (6) -- i.e. the authority to issue,
deny, suspend, etc. any permit, license, approval, order, or similar authorization, and the
ability to grant agency approval to a plan, design, report, study, or similar item - appear to
be met_ (See Toschi Advice Letter, No. I-94497 [engineer is a consultant to the city
because he has the power to grant agency approval to a plan or similar item] and .1lciuti
Advice Letter, No. I-94-205 [city geologist is a consultant to the city because he has the
power to accept or reject a project even though the decision is appealable to the city
council].)
E,
31 File No. A-04-070
Page No. 5
To assist in determining if an individual is a consultant under the second test,
whether he or she "serves in a staff capacity," the Commission has explained that the test
for serving in a staff capacity is two-pronged. Both prongs of the test must be satisfied to
qualify an individual as a consultant. The first prong is used `o identify only individuals
who are performing substantially all the same tasks as would usually be performed by
staff' members of the governmental agency. This eliminates the inclusion of individuals
who work only on a discrete project and includes the quasi -staff member. Also included
in the elements of this prong is the requirement that the individual participate in making a
governmental decision as defined in regulation 18702.2.
You provided in your facts that Wildan is performing substantially the same
duties as a building inspector would provide the city acting as an employee of the city.
The city does not designate building inspectors in its conflict of interest code, but the
duties of Wildan go beyond the duties of that position. if the positions Wildan
individuals are filling should be designated in the agency's conflict of interest code
because the position is one in which the person makes or participates in the making of
decisions, then this first prong of the test is met for those individuals performing the same
duties under contract. (Ferber Advice Letter, No. A-98-118.) According to your facts,
the duties included involve participation in the making of governmental decisions as
defined in regulation 18702.2, if not making a governmental decision, as discussed
above, and should be designated in the conflict of interest code.
The second prong is a temporal qualifier. This is used to limit the individuals
included as consultants under the "staff capacity" test to those who work for the agency
for a significant amount of time. Implicit in the notion of "serves in a staff capacity" is
that there is an ongoing relationship between the contractor and the public agency. The
standard does not include individuals who work on one project or a limited range of
projects for the agency unless those projects extend over a long period of time. (Travis
Advice Letter, No. A-96-053; Randolph Advice Lettcr, No. A-95-045.) According to
your facts, this is an ongoing project. Previous Commission advice has found that a term
of more than one year is significant enough to meet this temporal qualifier, whereas nine
months of regular and continuous work is not enough to qualify. (Ferber, supra, and
Sinith Advice Letter, No. I-99-316.) This, of course, qualifies as an ongoing relationship;
therefore, the temporal qualifier has been met.
The individuals who perform either of the tasks described, such as examining
building plans for compliance with state building codes or performing field inspections as
a building inspector under the first test, while having the ability to suspend work on
projects pending changes being implemented qualify as consultants under the Act. In
addition, those who qualify as serving in a staff capacity under the second test, also
qualify as consultants under the Act and both are therefore obligated to file a Form 700.
Your request for advice does not identify the duties of the individuals of Wildan, so the
city council will have to determine, based on the guidelines provided above, who is
performing the duties specified under the contract to identify the consultants to the city.
File No. A-04-070 '
Page No. 6
If you have any other questions regarding this matter, please contact me at (916)
322-5660.
Sincerely,
Luisa Menchaca
General Counsel
LO
GW.jg
I;1AdviceLtrs\A-04070
Galena West
Counsel, Legal Division
July 7, 1998
Phillip S. Cronin
County Counsel
County of Fresno
2220 Tulare Street, Fifth Floor
Post Office Box 1549
Fresno, California 93716
Re: Your Request for Advice
Our File No. I-98-155
Dear Mr. Cronin:
This letter responds to your request for advice on behalf of the Fresno County Public
Works and Development Services Department, and a Iocal school district, regarding provisions
of the Political Reform Act (the "Act").' Because your question is general in nature, we provide
you with informal assistance as required by Regulation 18329.
QUESTION
Must a consultant be designated as such in a government agency's conflict of interest
code when he or she "participates in making" a governmental decision, but does not actually
"make" such decisions or serve as de facto agency staff ?
CONCLUSION
If an individual is properly classified as a "consultant" under Regulation 18700(a)(2), he
or she is a "public official" within the meaning of Section 87100, and must be designated in the
agency's conflict of interest code, even if the consultant's role is limited to "participation" in
governmental decisions. But not all persons advising government agencies are "consultants"
within the meaning of the Act. Persons who do not actually make governmental decisions, or
function as de facto agency staff, may not be "consultants" under the Act even if they do
' Government Code sections 81000 - 91014. Cotn:nission regulations appear at title 2, sections 18109 -
18995, of the California Code of Regulations.
File No. 1-98-155
Page 2
occasionally advise government agencies. Persons who are not "consultants," and who are not
otherwise public officials, should not be designated in an agency's conflict of 'interest code.
FACTS
The Fresno County Counsel has been asked by two county agencies for advice regarding
their obligations under the Act, and specifically whether they may be required to list certain
persons as "consultants" in their conflict of interest codes. The county counsel's office does not
feel that it can provide a definitive answer to these agencies and, since the potential reporting
burdens are substantial, county counsel seeks informal advice to resolve uncertainties growing
out of the following fact patterns.
The Public Works and Development Services Department is responsible for contracts
between the County of Fresno (the "county") and various engineering firms, architects, and other
consultants. The county needs a feasibility analysis for a sewer or water treatment plan. An
engineering firm, under contract, would famish qualified individuals to analyze various siting,
equipment, processing, and construction options, and the resulting report would be presented
directly to the board of supervisors (the "board"). The board would decide whether to proceed at
a particular site, and in a particular manner, based on the report.
For purposes of this letter, it is presumed that neither the engineering firm nor the
individuals working on the project would "make" a governmental decision, but that individuals
employed by the engineering firm would "participate in making" the decision through the
influence of their reports. In addition, individuals on the firm's staff might be working on other
projects for the county concurrently, or they might have previously worked on other county
projects. Individuals employed by this firm tend to provide a significant amount of advice to the
county.
The school district uses consultants in insurance, legal matters, collective bargaining,
environmental assessments, school design and construction, independent audits, and a variety of
special studies. Each of these consultants provide advice within his or her area of expertise
directly to the decisionmaker in the district but, again by hypothesis, they do not "make"
governmental decisions or stand in the shoes of a district employee.
ANALYSIS
Chapter 7 of the Act (Sections 87100-87500) governs conflicts of interest. Article 3 of
Chapter 7 (at Sections 87300-87313) requires that every government agency adopt a conflict of
interest code identifying all persons who, in the course of their duties with the agency, might
E
3
File No. I-98-155
Page 3
affect the outcome of governmental decisions.Z Persons designated by a conflict of interest code
are required to disclose economic interests that could foreseeably be affected by agency
decisions. (See generally Section 87302; Marks Advice Letter, No. A-98-073.) The conflict of
interest codes required of governmental agencies support the Act's general prohibition against
decisionmaking on matters that might pose conflicts of interest, stated at Section 87100:
"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."
Section 82048 and Regulation 18700(a) provide definitions of the term "public official,"
as used Chapter 7, to mean a "member, officer, employee, or consultant of a state or local
government agency." (Emphasis added.) Regulation 18700(a)(2) defines "consultant" as:
"[A]n individual who, pursuant to a contract with a state or local
government agency:
(A) Makes a governmental decision whether to:
1. Approve a rate, rule, or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application,
certificate, approval, order, or similar authorization or entitlement;
4. Authorize the agency to enter into, modify, or renew a contract
provided it is the type of contract which requires agency approval;
5. Grant agency approval to a contract which requires agency
approval and in which the agency is a party or to the specifications
for such a contract;
6. Grant agency approval to a plan, design, report, study, or similar
item;
7. Adopt, or grant agency approval of, policies, standards, or
guidelines for the agency, or for any subdivision thereof; or
(B) Serves in a staff capacity with the agency and in that capacity
performs the same or substantially all the same duties for the
agency that would otherwise be performed by an individual
holding a position specified in the agency's Conflict of interest
Code."
2 With the exception of a few officials not pertinent to this letter.
J
File No. I-98-155
Page 4
As statute and regulation make clear, one who qualifies as a consultant under the
foregoing criteria is a public official governed by, among other provisions, Section 87100.
Section 87100 prohibits all public officials from making, or participating in, or using their
positions to influence, governmental decisions in which they have a financial interest.
Regulation 18730 provides guidance as to those persons (or "positions") that must be
designated in an agency's conflict of interest code. Subdivision (b)(2) provides that persons to he
designated include those who make or participate in making governmental decisions which may
foreseeably have a material effect on their financial interests. This subdivision has also been
construed by the Commission to include persons who use their official position to influence a
governmental decision. (Brewton Advice Letter, No. I-96-126,) Thus public officials who
"participate" in goverrimental decisions, including consultants, must be designated in conflict of
interest codes along with those who actually "make" the decisions.
You refer in your letter to the 1994 amendment to the regulatory definition of
"consultant," observing that the regulation, in its present form "no longer clearly excludes"
consultants who do nol actually make governmental decisions or act in an agency staff capacity
"on an ongoing basis." Your ultimate concern is that any engineer or attorney who provides a
single item of advice to an agency thereby participates in a governmental decision (assuming a
decision related to the advice) and that large numbers of occasional advisors would accordingly
have to be listed in local agency conflict of interest codes. Such a conclusion is unwarranted.
The analytical problem you present does not grow out of the 1994 amendment to
Regulation 18700. A consultant, properly so called, has always been regarded as a public official
subject to the restrictions of Section 87100, which prohibits all public officials, among other
things, from participating in a governmental decision foreseeably affecting their financial
interests. The problem you raise is one of classification. An individua13 under contract to make
even a single governmental decision may be a consultant by virtue of Regulation 18700(a)(2)(A).
Persons who do not make, but who participate in governmental decisions under contract, may be
classified as consultants only under Regulation i 8700(a)(2)(B), that is, if they serve in an agency
staff capacity.
The Randolph Advice Letter (No. 1-95-045), to which you allude, sets out the criteria for
determining whether a person serves in an agency staff position for purposes of Regulation
18700(a)(2)(B). This advice letter notes that the staff capacity language generally excludes from
the scope of the regulation those individuals who work on one project or a limited range of
projects for an agency. We ha,,e provided the same advice in subsequent letters. (See, e.g.,
3 A public official must be a natural person. (Section 82048 )
File No. 1-98-155
Page 5
Under Regulation 18700(a)(2)(B), a person who provides advisory services related to a
single project, or to a limited range of projects, may not be classifiable as a consultant. This is
true even if his or her services amount to participation in one or a few related governmental
decisions. If such a person is not otherwise a public official, he or she need not be designated in
an agency's conflict of interest code.
To summarize, your inquiry presumed a distinction -- for purposes of designation on
conflict of interest codes — between consultants who "make," and consultants who merely
"participate in," governmental decisions. The significant distinction, however, is between those
persons whose "participation" defines them as consultants, and those persons who are not
classifiable as consultants, even though they may participate in governmental decisions.
All consultants, as defined by Regulation 18700, must be designated in agency conflict of
interest codes. But not all persons under contract to public agencies are "consultants," even if
they do on occasion "participate in" governmental decisions. The dispositive question, for
persons who "participate in" but do not "make" governmental decisions, is the extent of the
services provided to the agency.
If you need assistance in determining the proper legal classification of particular persons
"participating in'' decisions of county agencies, or if you have other questions on this matter,
please contact me at (916) 322-5660.
Sincerely,
Steven G. Churchwell
General Counsel
By: Lawrence T. Woodlock
Staff Counsel, Legal Division
SGC:LTIN:tls
I IL
-�
�';
FAIR POLITICAL PRACTICES COtiI.1lSSiO`
42$ J Street • Suite hlti • Sj xanwnas, CN VN14-2z_'u
May 26, 1998
Harold Ferber
Chief Counsel
Health and Welfare Agency Data Center
1651 Alhambra Boulevard
Sacramento, California 95816
Re: Your Request for Advice
Our File No. A-98-1 IS
Dear Mr. Ferber:
This letter is in response to your request for advice regarding the provisions of the
Political Reform Act (the "Acf1.1
QUESTION
Are HWDC's "high-level" contractors exempt from the definition of "consultant" in
regulation 1870€1(a)(2)?
CONCLUSION
No, the high-level contractors are not exempt from the definition of "consultant."
FACTS
HWDC has two main lines of business. It is the data center for the departments within
the Health and Welfare Agency, As a data center, it performs normal data center functions
including procuring, installing and operating hardware and software necessary to run major
applications for customer departments. HWDC also maintains one of the largest
telecommunication networks in the state.
Goverrimcrit Code sections 9 1000 - 91014 Commission regulations appear at title 2, sections 15109 -
13995, of the California Code of Regulations
File No. A-98-118
Page 2
HWDC's second line of business involves managing complex system integration
projects. The projects include the statewide automation of child support enforcement, the
statewide automation of welfare, and the statewide fingerprint imaging system and others.
Each of these projects includes contractors who work on only one of these specific
projects. The nature of the involvement in these projects ranges from relatively narrow short
term functions such as reviewing specifications for a solicitation document to broader project
roles of a duration that may extend over more than one year. Some projects are quite large. For
example, HWDC manages multi-year contracts that can involve more than $100 million and
involve the employment of scores of state staff supplemented by a variety of county and private
contractors.
The contractors do not engage in the type of activities listed in regulation
18700(a)(2)(A).2 However, some contractors have broad project roles of a duration of more than
one year. These "high-level" contractors work closely with managers in dealing with the most
significant issues confronting the projects. Although these contractors work closely with
executive staff, they do not perform all of the functions that staff managers perform. That is,
they do not hire staff, prepare budgets, deal with personnel or supervision issues or engage in
other tasks associated with a state manager. You believe these high-level contractors are most
analogous to the highest level of state managers who are designated in the agency's conflict of
interest code.
0011 %W 61
The Act's conflict-of-interest provisions apply only to "public officials." "Public
official," for purposes of the Act. is defined to include every member, officer, employee, or
consultant of a state or local agency, with certain exceptions. (Section 82048.) The term
.&consultant" means an individual who, pursuant to a contract with a state or local go%ernment
agency:
``(A) Makes a governmental decision whether to:
1. Approve a rate, rule, or regulation;
2. Adopt or enforce a law;
3. [ssue, deny, suspend, or revoke any permit, license,
application, certificate, approval. order, or similar authorization or
entitlement;
4. Authorize the agency to enter into. modify, or renew a
- Whether the contractors engage in the type of activities listed in regulation 18700(a)(?)(A) is a question
that involves legal analysis. For purposes of this tetter, we are treating this legal conclusion as a statement of Fact.
As such, we are not opining as to whether the contractors engage in the activities listed in the regulation.
File No. A-98-118
Page 3
3. Issue, deny, suspend, or revolve any permit, license,
application, certificate, approval, order, or similar authorization or
entitlement;
4. Authorize the agency to enter into, modify, or renew a
contract provided it is the type of contract which requires agency
approval;
5. Grant agency approval to a contract which requires agency
approval and in which the agency is a party or to the specifications
for such a contract;
6. Grant agency approval to a plan, design, report, study, or
similar item;
7. Adopt, or grant agency approval of, policies, standards, or
guidelines for the agency, or for any subdivision thereof; or
(B) Serves in a staff capacity with the agency and in that
capacity performs the same or substantially all the same duties for
the agency that would otherwise be performed by an individual
holding a position specified in the agency's Conflict of Interest
Code." (Regulation 187OO(a)(2), copy enclosed.)
Regulation 18700(a)(2) establishes two criteria for qualification as a consultant; an
individual who satisfies either criterion is a consultant for purposes of the Act. Finst, an
individual may be a "consultant" if he or she performs, pursuant to a contract, any of the actions
described in regulation 18700(a)(2)(A). Your facts state that the project consultants do not
engage in the type of activities listed in regulation 18700(a)(2)(A).
Alternatively, an individual may be a consultant if he or she "serves in a staff capacity
with the agency" under regulation 1870O(a)(2)(B). The test established in regulation
1870O(a)(2)(B) is a twofold test. (Randolph Advice Letter, No. 1-95-045; Memorandum to
Commission, Regulation 18700, dated March 28, 1994.) First, the contractor must work on more
than a single project or a limited range of projects for an agency. Implicit in the notion of service
in a staff capacity is an ongoing relationship between the contractor and the public agency.
(Sanchez Advice Letter, No. A-97-438, Afaze Advice Letter, No. I-95-296, Parry Advice Letter,
No. I-95-064.) Second, even if a contractor worked on more than a single project or a limited
range of projects for an agency, the contractor's duties must also be those of a quasi -staff
member and must be substantially the same as tasks performed by individuals whose position at
the agency is described in the agency's conflict of interest code.
The first prong of the regulatory test, the "staff capacity" language, eliminates, in most
cases, those individuals who work on one project or a limited range of projects from the scope of
the regulation. However, this qualifier also includes a temporal element. Consequently, even if a
contractor only works on a single project, the length of the individual's service to the agency is a
relevant factor that must be considered. In the Sanchez Advice Letter, No. A-97-438, we advised
File No. A-98-118
Page 4
"Our only concern in reaching this conclusion is the duration of
the contractual relationship, which will be over two years.
However, in context, this duration is not indicative of an on-going
relationship which might otherwise lead to the conclusion that
there is a staff relationship ... although the term of the contract is
over two years, this duration is attributable to the need for periodic
monitoring, not to perform continuous work during that time.
Under these circumstances, the duration of the contractual
relationship does not preclude the conclusion reached above."
In the _faze Advice Letter, No. 1-95-296, we advised the employees of an accounting
firm, who performed annual independent audits of municipal governmental entities pursuant to
multi-year contracts, that they were not consultants under the Act. However, in that letter, we
further advised the employees that if they provided other accounting services to the agencies,
they may become consultants under the Act. Similarly, in the Parry Advice Letter. No. I-95-064,
we concluded that employees of an engineering firm, who reviewed hydrological studies on a
sporadic basis, were not consultants under the Act. However, in the Parry letter, we further
advised that if the engineering firm provided consulting services on a regular basis, then the
employees would be considered consultants.
In applying the first prong of the regulation. previous advice letters reveal that the length
of a contractor's services to an agency is a significant factor where the contract is for a term of
more than one year and the services are rendered on a regular and continuous basis for the
duration of the contract. Your inquiry concerns high-level contractors who have broad project
roles of a duration of more than one year. Under these facts, the first prong of regulation
18700(a)(2)( B) is met.
The second prong of the regulator} test provides an additional condition—the tasks of the
contractor must be substantially the same as one of the individuals whose position at the agency
is described, or should be described, in the agency's conflict of interest code. (Kalland Advice
Letter. No. 1-96-078.) You indicate that the duties of the high-level contractors are most
analogous to the tasks performed by the highest level of state managers who are designated in the
agency's conflict of interest code. However, the high-level contractors do not perform all of the
functions that state managers perform. To illustrate, high-level contractors do not hire staff,
prepare budgets. deal with personnel or supervision issues.
Based on your facts, it does not appear that the high-level contractors perform
substantially all the same tasks performed by state managers. But, the inquiry does not end here.
The next step is to inquire whether the position of an agency employee with the same duties as
the contractor should be designated in the agency's conflict of interest code. An agency's
conflict of interest code must list the positions within the agency that make or participate in the
making of governmental decisions. (Section 87302.)
a 0
File No. A-98-118
Page S
The next step is to inquire whether the position of an agency employee with the same duties as
the contractor should be designated in the agency's conflict of interest code. An agency's
conflict of interest code must list the positions within the agency that make or participate in the
making of governmental decisions. (Section 87302.)
A public official "participates in making a goverumental decision" when he or she
negotiates (without significant substantive review) with a governmental entity or private person
regarding a governmental decision, or when he or she advises or makes recommendations to the
decisionmaker (either directly or without significant substantive review) by: 1) conducting
research or making any investigation which requires the exercise of Judgment on the part of the
official and the purpose of which is to influence a governmental decision, or 2) preparing or
presenting any report, analysis, or opinion, orally, or in writing which requires the exercise of
judgment on the part of the official and the purpose of which is to influence a governmental
decision. (Regulation 18700(c).)
You indicate that high-level contractors work closely with managers in dealing with the
most significant issues confronting the projects. This activity appears to fall within the definition
of "participating in snaking a governmental decision." Therefore, an agency employee with the
same duties as a high-level contractor should be designated in the agency's conflict of interest
code. Accordingly, the second prong of the regulatory test is met.
Since both prongs of the regulatory test are met, the high-level contractors are considered
"consultants" for purposes of the Act.
If you have any other questions regarding this matter, please contact me at (916) 322 -
5660.
Sincerely,
Steven G. Churchwell
General Counsel
By: Julia Butcher
Staff Counsel. Legal Division
SGC -JB tis
(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.2
(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.
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 87342.6, 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 fled 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 property3 is required to be reported,4
the statement shall contain the following:
1. A statement of the nature of the investment or interest;
2. The name of the business entity in which each investment is held, and a
general description of the business activity in which the business entity is engaged;
3. The address or other precise location of the real property;
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,5 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 $440.
(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
$440 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 (e), (f), and (g) of Section 89503 shall apply to the prohibitions in
this section.
(8.2) Section 8.2_ Loans to Public Officials.
(A) No elected officer of a state or local government agency shall, from the Mate
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, erriployee,
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 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.
(l7) 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.
(E) This section shall not apply to the following:
1. Loans made to the campaign committee of an elected officer or candidate for
elective office.
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 five hundred
dollars ($500) at any given time.
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 shatl, 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:
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 $440 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 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.
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.
2 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 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 filers 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) flied 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).
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 B-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 sled 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 Y(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. 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(d) 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)(13)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 Law, 3 Civil CO 10924, 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. 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 Farr Political Practices
Commission v. Office of Administrative Law, 3 Civil COI 0924, 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 11-15-2010; 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)(3y(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).
RESOLUTION NO. 13402
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SAN RAFAEL REPEALING RESOLUTION NO. 13037,
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. 13037; 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 13037 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 4th day of September, 2012 by the following vote, to wit:
AYES: COUNCILMEMBERS: Connolly, Heller, McCullough & Vice -Mayor Levine
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Mayor Phillips
ESTHER C. BEIRNE, City Clerk
w.'.City Cleric- WoMile'•Agenda related',MC imestontiict of int meso 10-12 dnc
E
CITY OF SAN RAFAEL
ROUTING SLIP 1 APPROVAL FORM
INSTRUCTIONS: USE THIS FORM WITH EACH SUBMITTAL OF A CONTRACT, AGREEMENT,
ORDINANCE OR RESOLUTION BEFORE APPROVAL BY COUNCIL I AGENCY.
SRRA 1 SRCC AGENDA ITEM NO. h
DATE OF MEETING: 912!2014
FROM: Eric Davis
DEPARTMENT: City Attorney
DATE: August 25, 2014
TITLE OF DOCUMENT: Resolution Repealing Resolution 13442, 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
Department Director (si ature)
(LOWER HALF OF FORM FOR APPROVALS ONLY)
APPROVED AS COUNCIL /AGENCY
AGENDA ITEM:
�f
City Manager (signature)
NOT APPROVED
REMARKS:
APPROVED AS TO FORM:
t4,) � 6
City Attorney (signature)