Inquiring minds want to know:
By Marsha M. Rea
Published: January 11, 2013
Well, Hello Everyone and Happy New Year... It’s been a while since we’ve come together here in the Times. Much has happened over the past two months, nationally and here at home, and there are as many differing opinions on the electoral outcomes as there are people in our community. What would be a breath of fresh air in the body politic, in the opinion of the writer, would be at least a semblance of collegiality, cooperation and civil communication among our elected officials, from Congressional corridors in Washington, D.C. to the halls of our City Council.
Here is a case in point, (which, for those of you who watched, was aired in Monday’s Council meeting): At the City Council meeting on December 17, 2012 Kim Uhlich, Staff Director of the Ventura County Local Agency Formation Commission (LAFCO) made a presentation on pending action by LAFCO which could possibly remove Fagan and/or Adams Canyons from the city’s sphere of influence. So, Virginia, one might ask... What is a LAFCO? LAFCOs are independent regulatory commissions created by the California Legislature to control the boundaries of cities and most special districts, basically to avoid unimpeded growth. While it does have some jurisdictional powers in the county, it is not a County Agency. The impact of such a decision in the case at hand, should it come to pass, will quite probably have a negative impact on future Santa Paula development based on the city’s existing General Plan. During the meeting we saw an unfortunate local example of the disingenuous and unproductive behavior we see displayed on the national news each evening.
At the outset of the discussion following Ms. Uhlich’s presentation, two of the incumbent council members, Mayor Ralph Fernandez and Councilman Bob Gonzales questioned whether newly elected Councilman Martin Hernandez was required to abstain from participating in any decisions or actions related to development issues in the two areas in question due to a conflict-of-interest. They stated that they based their objections to his participation on his employment by the County of Ventura and, more particularly, on his service as Chief of Staff and Field Representative for Supervisor Kathy Long. Councilman Hernandez stated he had no conflict, and a query to City Attorney John Cotti elicited the same response. Even with the negative assertion by Mr. Cotti, the Council decided to proceed with a request for Cotti to investigate and issue a written opinion on the matter.
So here is my problem with all of this hollow-cheeked dust blowing ... If Mr. Fernandez, Mr. Gonzales and/or other council members had concerns about Mr. Hernandez’s participation, why did none of them, or the City Manager have a discussion with him prior to the meeting, thus giving time for the City Attorney to provide guidance that would have avoided an embarrassing public interaction? Contrary to Mayor Fernandez’s assertion at Monday’s meeting that the Brown Act precluded their ability to address the issue prior to the December 17th, any one (but not two) of them could quite legally have had a conversation with Mr. Hernandez on the subject.
Looking back a few years, I seem to recall that former Council member and Mayor Robin Sullivan was a member of the LAFCO Board, when, without any complaints, or allegations of impropriety or conflict-of-interest, she actively participated in development decisions for the City. Absent any changes in law or qualifying criteria in the ensuing years that research has missed, I must say I’m once again stumped by this current state of affairs and the actions of our council.
The people of the State of California enacted the Political Reform Act of 1974 by an initiative measure in June 1974. It is the starting point in any consideration of conflict-of-interest laws in California. These laws are grounded on the notion that government officials owe paramount loyalty to the public. Thus, personal and private financial considerations on the part of governmental officials should not be allowed to enter the decision-making process. The State’s Fair Political Practices Commission (FPPC) is the agency primarily charged with the responsibility of advising officials, informing the public, and enforcing the Act.
Under the Act, public officials are disqualified from participating in government decisions in which they have a potential financial interest (This is the important point, Virginia!). The Act does not prevent officials from owning or acquiring financial interests that conflict with their official duties, nor does the mere possession of such interests require officials to resign from office.
The Act’s disqualification requirement hinges on the effect a decision will have on a public official’s financial interests. When a decision has the requisite effect, the official is “disqualified from making, participating in making, or using his or her official position to influence the making of that decision at any stage of the decision-making process”. By establishing a broad, objective disqualification standard, the Act attempts to cover both actual and apparent conflict-of-interest situations between a public official’s private interests and his or her public duties. I know, it’s a bit of “wonk-speak”, but that’s the law... It really just means that if you have a horse or even a donkey in the race, you can’t saddle up and ride...
It is not necessary to show actual bias on the part of the official and it is not even necessary to show that an official’s assets or the amount of his or her income will be affected by a decision in order to trigger disqualification. Other more nuanced effects may also bring about an official’s disqualification. However, even though this is a broad disqualification requirement, it is by no means all-inclusive. Conflicts arising out of matters other than a financial interest, such as friendship, family, or general sympathy for a particular viewpoint, are outside the scope of the Act and, therefore, do not pose a problem.
The Act deals with conflict-of-interest situations on a transactional, or case-by-case, basis. This means that situations must be assessed for possible conflicts of interest in the light of their individual facts. The Act demands continual attention on the part of officials. They must examine each transaction to determine if a conflict of interest that triggers disqualification exists.
So, back to the case in point... Mayor Fernandez, etal have not alleged any financial benefit to Mr. Hernandez from the actions the Council may or may not take related to Fagan or Adams Canyons; therefore, unless the writer has missed something REALLY BIG hidden behind the hedge, their position seems to be quite baseless, uninformed and/or, one might even say, politically driven.
Mr. Gonzales, on the other hand, owns and lives in a home that is located within 500 feet of the sphere of influence lines which are the subject of the current LAFCO adjustment process. This 500 foot measure is the demarcation distance for determining conflicts-of-interest related to personal interests in real estate (Title 2, California Code Reg. Sections 18704.2 and 18705.2). Owning real estate within 500 feet of property under consideration by a governing body disqualifies the owner from the decision-making process because the value of his/her property could be materially affected through actions taken by the council.
There is, however, a provision in the law, called the “public generally” exception, which says (Heads up, Virginia - more wonk-speak ahead) that, “even if a public official determines that his or her economic interest will experience a material financial effect as a result of the governmental decision before the official, he or she may still participate in decision-making under the “public generally” exception, if the financial effect of the decision on his or her economic interests is indistinguishable from its effect on the public generally.” (California Code Reg. Section 87103, regulation 18707)
Whether or not the location of Mr. Gonzales’s home puts into question his ability to participate in future decisions related to possible development in Adams or Fagan Canyon is a matter to be determined by legal counsel. It was gratifying to see the Council at last Monday’s meeting agree to Mr. Hernandez’s request that within the scope of the Council’s demand for a legal opinion related to him, they will include an analysis of the financial interests/benefits of the entire council. Sometimes it takes a little time for the light to shine through... I’m just sayin’...