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HomeMy WebLinkAboutSS3 - Conflict of Interest Regulations for RentersCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. SS3 January 12, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David R. Hunt, City Attorney ext. 3131, dhunt(a)NewportBeachCA.cpov SUBJECT: CONSIDERATION OF ISSUES RE POSSIBLE CONFLICT OF INTEREST REGULATIONS REGARDING THE "RENTER CONFLICT ISSUE" ISSUE: Does the law prohibit public officials who hold a rental interest in real property from being involved in a decision that arises from a matter in close proximity to that rental interest, and if not, can and should the City regulate such a situation? RECOMMENDATION: Review the report and give direction as you deem appropriate. Generally, however, we recommend that the City not add to the relatively complex area of law governing conflicts of interests in that doing so can create a trap for the unwary. Instead, reliance on the extensive state statutory, regulatory and decisional law can be considered to adequately regulate the issue. DISCUSSION: We have been asked to brief the Council on the issue of whether a rental interest in real property can give rise to a disqualifying interest under state law, and if not, to address whether the Council can regulate the area. 1. State Law. As identified in the memorandum from Deputy City Attorney Catherine Wolcott appended as Attachment "A," a month -to -month tenancy does not give rise to a 'financial interest" that disqualifies a public official from being involved in a decision. On the other hand, a "leasehold interest" with a value in excess of $2,000 can create such a financial interest when "directly involved" in a decision. "Leasehold interests" are generally interest in real property of a year or more. CONSIDERATION OF ISSUES RE POSSIBLE CONFLICT OF INTEREST REGULATIONS REGARDING THE "RENTER CONFLICT ISSUE" January 12, 2010 Page 2 In addition, however, the state courts have recognized limited circumstances where there can be a "common law' conflict of interest arising from specific, unique facts even where there is not a "financial interest' recognized under the statutory or regulatory law. Such a situation is analyzed on a case -by -case, fact specific basis. 2. Power for the City to Regulate. The City can regulate the issue of conflict of interests independent of state law where it does not enact less strict standards than state law. Thus, it is within the power of the City Council to adopt regulations that require a City "public official" to be disqualified if that official has a month -to -month tenancy within the proximity of a matter that is subject to a decision that the official is being asked to make. Should the Council wish to proceed with such a regulation, please so instruct the Office of the City Attorney to return with suggestions of how to fashion such a regulation. We, however, recommend that the City not add further regulations to this area of law. The Political Reform Act ( "PRA ") and its implementing regulations have hundreds of provisions carefully crafted to address the issue of financial interests. The Fair Political Practice Commission ( "FPPC ") is charged with the enforcement of the PRA, and there are severe criminal sanctions for violating it. The case law interpreting these laws is very extensive. Since these issues are regulated on a statewide basis we can use other persons' actions and the FPPC's decisions to give clarity to this complex area of this law. Adding further regulations that are unique to the City of Newport Beach increases the administrative burden of interpreting and enforcing those unique regulations. In addition, they can create a trap for the unwary. Most public officials look to the state law. If our regulations are more restrictive, then individuals could be lulled into .complacency by state law and be called up short by unique City regulations. Moreover, unique situations are governed by state decisional law dealing with "common laud' conflicts of interest. Thus, where there are situations that give rise to conflicts sufficient to subvert the process, those situations will likely raise common law conflict of interest issues and they could, under appropriate circumstances, require a public official to disqualify him or herself. Environmental Review This issue is not a project as defined in the California Environmental Quality Act (CEQA) Implementing Guidelines. Public Notice Notice has been given consistent with the Ralph M. Brown Act. No other public notice is required by this item. CONSIDERATION OF ISSUES RE POSSIBLE CONFLICT OF INTEREST REGULATIONS REGARDING THE "RENTER CONFLICT ISSUE" January 12, 2010 Page 3 Alternatives You have the authority to direct our office to prepare regulations that govern the "renter conflict' issue. Alternatively, you can direct us to take no further action, deciding to rely on state law as regulating the field. If you decide you wish for us to develop unique City regulations, we will return shortly with a list of questions to be addressed by the Council so we can proceed with drafting such regulations. CONCLUSION State law deals with the issue of "financial interests" and the conflicts they create, and also deals with unique, fact specific circumstances that give rise to other conflicts. We recommend not adding to this law, but you have the authority to do so, and we will proceed with any direction you provide. Prepared and Submitted by: OFFICE OF THE CITY ATTORNEY -y- David R. Hunt —� City Attorney Attachment 1: Memorandum from Catherine Wolcott to David R. Hunt, dated January 5, 2010 IA09- 00716J Council Study Session - 111212010 - re Renter Conflict Issue ATTACHMENT 1 Memorandum from Catherine Wolcott to David R. Hunt dated January 5, 2010 CITY OF NEWPORT BEACH CITY ATTORNEYS OFFICE DATE : January 5, 2010 TO David R. Hunt, City Attorney FROM: Catherine Wolcott, Matter: Deputy City Attor 7ey Political Reform Act: Conflict of Interest Regulations; [A09- 00716] RE Conflict of Interest — Rental Property Question Presented: Should a member of a City Council, board or commission recuse him or herself from participating in a government decision if he or she holds a leasehold interest in property located within 500 feet of the property that is the subject of the decision? Short Answer: The Political Reform Act ( "PRA ") and California Code of Regulations ( "CCR ") provide an analytical framework for determining whether a conflict exists based upon a financial interest. These laws expressly exclude month -to -month tenancies from the definition of a "financial interest" that will be the basis of a disqualifying conflict of interest. On the other hand, in specific, unique circumstances, case law indicates that, even when a conflict of interest does not exist for PRA purposes, a common law conflict of interest may exist. This issue requires a fact specific determination. Discussion: I. State Statutory Law and Regulations. California Government Code section 87103 states that a public official has a financial interest in a government decision when it is reasonably foreseeable that the decision will have a material financial effect (distinguishable from its effect on the public generally) on, among other things, any real property in which the public official has a direct or indirect interest worth two thousand dollars ($2,000.00) or more. The Government Code does not limit "interests in real property" to ownership interests. Government Code section 82033's definition of "interest in real property" includes "any leasehold interest' ... located in the jurisdiction ... if the fair market value of the interest is two thousand dollars ($2,000) or more." a. Month -to -Month Tenancies do not Give Rise to Disqualifying Financial Interests. ' Typically the term "leasehold" contemplates an interest that is one "of years," usually a year or more. Conflict of Interest — Rental Property January 5, 2010 Page: 2 The CCR gives more specific guidance for government officials who are lessees of property within the jurisdiction. The CCR, however, expressly states that a "leasehold interest" "shall not include the interest of a tenant in a periodic tenancy of one month or less." (CCR § 18233.) Therefore, officials' interests in month -to -month tenancies are not considered "financial interests" for PRA purposes? b. Other Leasehold Interests Must Be Individually Analyzed. As to other "leasehold interests" CCR section 18700 includes a framework for analyzing whether an official's economic interest creates a disqualifying conflict of interest under the PRA. To determine whether a disqualifying conflict of interest exists, CCR section 18700's analysis includes: • Identifying the public official's economic interest; • Determining whether that interest is directly or indirectly involved in the governmental decision; • Determining whether any financial effect on the interest will be material; and • Determining whether it is reasonably foreseeable that the decision will have a material financial effect on the official's economic interests. If it is not reasonably foreseeable that there will be a material financial effect on any of the public official's economic interests, he or she does not have a conflict of interest for PRA purposes.( CCR section 18700(b)(6).) Specifically, CCR section 18703.2 (Economic Interest Defined: Real Property) provides that, for purposes of disqualification under Government Code sections 87100 and 87103, a public official has an economic interest in any real property in which the official's interest is worth two thousand dollars ($2,000.00) or more. That financial interest in real property is directly involved in a governmental decision if the real property is located within 500 feet of the property that is the subject of a governmental decision. (CCR § 18704(a)(1).) The financial effect of a governmental decision that directly involves an official's leasehold interest is presumed to be material. However, that presumption of materiality may be rebutted by showing that it is not reasonably foreseeable that the decision will have an effect on the termination date of the lease, the amount of rent paid by the lessee, the value of the lessee's right to sublease, the legally allowable use of the real property by the lessee, or the use and enjoyment of the leased real property by the lessee. (CCR § 18705.2(a)(2).) The financial effect of a governmental decision that indirectly involves an official's leasehold interest, i.e. one that is more than 500 feet from the affected properties, is presumed to be immaterial. This presumption can, however, be rebutted with evidence of material financial effect by a showing of specific facts listed in CCR section 18705.2(b)(2). 2 However, a common law conflict of interest may still exist even when the official's tenancy is month -to- month. (See discussion of Clark v. City of Hermosa Beach (1996) 48 Cal.App.4"' 1152, in Section 2, below.) Conflict of Interest — Rental Property January 5, 2010 Page: 3 Even if it is reasonably foreseeable that a governmental decision will have a material effect on an official's leasehold interest, the public official will not have a disqualifying interest if he or she can establish that the decision will affect his or her economic interest in the same way it will affect the public generally. (CCR § 18707.) 2. State Case Law. State common law as developed by court opinions has developed an independent body of law dealing with conflicts of interest that are not identified under the PRA. "While the Political Reform Act focuses on financial conflicts of interest, the common law extends to noneconomic conflicts of interest." (48 Cal.App.4th at 1171, f. 18, citing 64 Ops.Cal.Atty.Gen. (1981) 795,797 and 70 Ops.Cal.Atty.Gen. (1987)45, 47.) In Clark v. City of Hermosa Beach, (1996) 48 Cal.App.4"' 1152, the court considered whether a city council member violated the PRA or otherwise deprived landowners of a fair hearing when he participated in a decision on a use permit for a project that potentially affected the view from his rental apartment. The court found that the city council member had not violated the PRA because the council member occupied his apartment under a month -to -month lease. "That act generally prohibits public officials from participating in matters where they have a financial interest in the outcome. No such interest existed here because the PRA excludes any financial interest in real property leased by an official on a monthly basis." (48 Cal.App.4' at 1173, f. 19 (italics in original).) However, the court determined that the project applicant had been denied a fair hearing because, under the state common law, the council member who lived near the project had a conflict of interest in voting on the project. "Because (the council member) lived one block inland of the Clarks, he stood to benefit personally by voting against the Clark's project. It is irrelevant that (the council member) did not own his residence; an interest in preserving his ocean view was of such importance to him that it could have influenced his judgment." (48 Cal.App.4"' at 1172.) As the council member in question had actively and publicly opposed the project on the basis of the impact it might have on his views prior to his election to the city council, it was not difficult for the project applicant to demonstrate his interest in preserving the views from his residence. The Clark case is just one example of decisional law addressing conflicts outside of the context of the PRA. Recommendation: Consistent with Council Policy A -16, a Newport Beach public official subject to the conflict of interest provisions of the PRA, who holds a leasehold interest in property, should consult with the Office of the City Attorney or the FPPC before participating in a governmental decision that may affect that property. [A09-00716] DRH from CW re Renter Conflict Question