CC SR 20170919 07 - City Attorney Conflict of Interest MemoALESHIRE &
WYNDERLLP MEMORANDUM
ATTORNEYS AT L A W
TO: Honorable Mayor and City Council Members
CC: Doug Willmore, City Manager;f',/.,-
FROM: Dave Aleshire, City Attorney, Alondra Espinosa, Esq.
DATE: September 19, 2017
RE: Conflicts of Interests and Recusal Procedures
I. INTRODUCTION
In response to a request from Council Member Brooks, we have prepared a brief
overview of the City of Rancho Palos Verdes' and California's parliamentary conflict of
interest law and recusal procedure. This memorandum provides general background
information pertaining to when public officials must or may recuse themselves from
making or participating in a government decision.
II. SUMMARY OF CONCLUSIONS
A. Statutory law only requires recusal when a decision potentially or actually
benefits defined financial interests of a public official (herein "statutory
conflict").
B. Through judicial decisions a somewhat broader "common law" rule has
been developed for recusal where (i) personal or pecuniary interests would
create the "appearance of impropriety," or (ii) where persons are entitled to
due process, the decision -maker has evident bias preventing a "fair hearing"
(herein "common law bias").
C. The City has adopted Rosenberg's Rules of Order, and Robert's Rules of
Order secondarily, as its parliamentary rules. Rosenberg's Rules "are
meant to create an atmosphere where the members of the body and the
members of the public can attend to business efficiently, fairly and with full
participation," and also do not address recusals other than when legally
required.
D. Nothing in the City's policies requires participation by members of the
bodies absent a legal conflict. The Planning Commission's Rules and
Procedures allow a commissioner who does not wish to vote for or against
an item to abstain.
E. The City could further refine its rules to discourage recusal in any
circumstances not amounting to a statutory conflict or common law bias.
01203.0001/404597.11
1
Conflicts of Interests and Recusal
Procedures
September 19, 2017
Page 2
III. CALIFORNIA'S CONFLICT OF INTEREST LAW
A. Analysis
Participation, conflicts, and recusals of members of legislative and appointed
bodies are governed by the Political Reform Act and the parliamentary rules adopted by
the City.
Financial interests constitute a statutory conflict that requires
recusal.
The California Political Reform Act (the "Act")' provides the foundation for the
State's conflict of interest law. Very broadly, the Act mandates that a public official shall
not make, participate in making, or in any way attempt to use his or her position to
influence a governmental decision if he or she knows or has reason to know that he or
she has a financial interest in the decision. Gov't Code §§ 87100, 87103, 1090; 2 C.C.R.
2, § 18700(a). If this is the case, the public official is disqualified from participating and
must recuse himself or herself, unless an exception applies. In addition, Section 1090 of
the Government Code provides that "city officers ... shall not be financially interested in
any contract made by them in their official capacity, or by any body or board of which they
are members." The statutes do not address recusal for reasons other than conflict, as
defined.
2. The "Common law" also reauires recusal for Dersonal or Decuniary
interests and demonstrated bias generally in quasi -adjudicative
proceedings.
The courts have also identified conflicts of interest in particular circumstances,
even in the absence of a statutory violation. The common law (generally developed
through judicial precedent) requires recusal where (i) personal or pecuniary interests
would create the "appearance of impropriety," or (ii) where persons are entitled to due
process, the decision -maker has evident bias preventing a "fair hearing" ("common law
bias").
A "public officer is impliedly bound to exercise the powers conferred on him with
disinterested skill, zeal and diligence and primarily for the benefit of the public." Noble v.
City of Palo Alto, 89 Cal. App. 47, 51 (1928)(The profiting of abandoned bicycle sales by
an on duty police chief was held to be against policy.). Decision makers should not be
tempted by their personal or pecuniary interest. 92 Ops.Cal.Atty.Gen. 19 (2009) (A
parent -board member should disqualify him or herself in an adult child's business
transaction with the agency because there is likely a personal interest, or at minimum the
1 Gov't Code § 81000 et. seq.
01203.0001/404597.11 2
2
Conflicts of Interests and Recusal
Procedures
September 19, 2017
Page 3
appearance of impropriety.). When a common law conflict of interest exists, a public
official is disqualified and recusal is required.
Recusal for conflict is also important when an applicant is appearing before a body
that is acting in a quasi-judicial capacity, as that applicant has the right to a fair and
unbiased decision -maker under the due process clause. Cohan v. City of Thousand Oaks,
30 Cal. App. 4th 547, 557 (1994). A public official is disqualified from participating if they
are biased in favor or against a party involved in a quasi-judicial decision. The public
official may also be disqualified from participating if they have a personal interest in the
decision's outcome or if they have received information outside of the public hearing that
causes them to have a closed mind to any factual information that may be presented at
the hearing.
Mere familiarity with the facts does not necessarily constitute bias. Rather, the
public official must be prepared to apply the law to the particular factual situation
presented during the hearing, regardless of what prehearing opinions the public official
may hold. Examples of such bias tend to be extreme. See, e.g., Mennig v. City Council,
86 Cal. App. 3d 341 (1978)(An entire city council was disqualified from participating in the
decision to increase the penalties against the city's police chief because all council
members had testified during the hearing against the chief, creating the probability of
actual bias, and thus were deemed "so personally embroiled in the controversy... as to
disqualify them."); Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1152 (1996)(A city
council was deemed bias when it denied a property owners' application because a council
member held animosity toward the project as it would directly impact the quality of his
residence, and the city attempted to impose a construction moratorium.); cf., City of
Fairfield v. Superior Court of Solano County, 14 Cal. 3d 768 (1975)(Council members
who stated their opposition to a development before the hearing were not disqualified
from participating in the decision because the statements were made during their election
campaign and recusal would frustrate their freedom of expression.)
3. Rosenberg's Rules of Order and Robert's Rules of Order, adopted
by the City, encourage but do not mandate full participation absent a
rnnflirt
The City has adopted Rosenberg's Rules of Order for all proceedings. If a
particular issue is not addressed by Rosenberg's Rules, the City utilizes Robert's Rules
of Order. Gov't Code § 36813; Rancho Palos Verdes City Council Rules of Procedure §
2.5.
Rosenberg's Rules favor full participation in all parliamentary processes. In the
section discussing Courtesy and Decorum, Rosenberg's Rules explain, "[t]he rules of
order are meant to create an atmosphere where the members of the body and the
members of the public can attend to business efficiently, fairly and with full participation."
As such, Rosenberg's Rules encourages full participation and does not describe any
01203.0001/404597.11
3
3
Conflicts of Interests and Recusal
Procedures
September 19, 2017
Page 4
instance in which a member of a deliberative body should recuse themselves other than
when they are legally required to do so.
Consistent with Rosenberg's Rules, Robert's Rules discourage abstentions and/or
recusals by members of deliberative bodies for anything other than a legally recognized
conflict. However, participation is not mandatory. As stated in Robert's Rules Article VIII,
46, "while it is the duty of every member who has an opinion on the question to express
it by his vote, yet he cannot be compelled to do so. He may prefer to abstain from voting,
though he knows the effect is the same as if he voted on the prevailing side." (Emphasis
added.)
4. No council policy addresses participation by members, but the
Planning Commission's Rules and Procedures authorize
commissioners to abstain from voting if they do not want to vote for
or against an item.
The City Council's Policy Manual contains all current policies for the City. Most of
the policies do not relate to City Council or Planning Commission conduct and procedures
-- there are a few that do, but none of them address participation or recusal at the body's
own meetings.
The Planning Commission's Rules and Procedures ("PC Rules") were established
pursuant to the Section 2.20.020 of the Municipal Code to govern the Planning
Commission's business conduct. Section 4.1.2.5 of the PC Rules addresses recusals. If
"a Commissioner is not eligible to participate in the consideration of an item due to a
conflict of interest, said Commissioner shall be considered recused from the voting." Here,
recusal is limited to a "conflict of interest" (emphasis added). Furthermore, Section 4.1.2
of the PC Rules authorizes a commissioner to abstain from a vote. As stated in this
section, "if a Commissioner is eligible to participate in the consideration of an item and
wishes to not vote in the negative or affirmative on the item, the Commissioner may elect
to abstain from the vote." (Emphasis added) There is no requirement to vote in the
affirmative or negative.
5. The City could further refine its rules to discourage recusal in any
circumstances not amounting to a statutory conflict or common law
bias.
Both statutory and common law address situations when recusal is required, i.e.,
when a decision potentially or actually financially benefits a public official, or when the
public official is unable to make a fair and unbiased decision based on the facts before
him or her comment. Parliamentary rules permit full participation in all cases except when
a conflict exists, but do not compel such participation. Currently the City does not have a
procedural rule that requires full participation by any member of a governing body, barring
a conflict. The City may refine its PC Rules to discourage recusal in any circumstances
01203.0001/404597.11
0
El
Conflicts of Interests and Recusal
Procedures
September 19, 2017
Page 5
not amounting to a statutory conflict or common law bias. As previously mentioned,
Section 4.1.2.5 of the PC Rules addresses recusals. Currently, recusal is limited to a
"conflict of interest." This Section could be revised by inserting language discouraging
recusal or requiring the Commission's approval before recusal, if desired.
01203.0001/404597.11
[END OF MEMO]
5
��