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RE: Recusal Question

From: William L. McClure <"William>
Date: Wed, 21 Mar 2018 00:59:23 +0000

John --

In reply to your original email which you posted to the City Council inbox, Council members are not legally required to recuse themselves from participating in the election sequencing discussion.

Conflicts of interest are governed by the Political Reform Act. Section 87100 of the Act prohibits a public official from making, participating in the making or otherwise using his or her official position to influence a governmental decision in which the official has a financial interest. Section 87103 provides that a public official has a "financial interest" in a decision, within the meaning of the Act, if it is reasonably foreseeable that the decision will have a material financial effect on one or more of the official's interests. Section 87103 sets forth the interests from which a conflict of interest may arise under the Act. The relevant interest here is any source of income aggregating $500 or more in value provided or promised to, received by the official within 12 months prior to the decision. For purposes of the Act, however, "income" does not include "salary and reimbursement for expenses or per diem received from a state, local or federal government agency." The Fair Political Practices Comm
ission (FPPC), which enforces the Act, has long held that Council salary is not encompassed by the Act and has ruled that council members may participate in a variety of election related issues despite receiving a Council salary. The FPPC also has recognized that the loss of a council seat may well cause a change in an official's well-being, but these effects are not disqualifying personal financial effects.

It is important to note that the Act only covers disqualifying economic interests. It is also important to note that council members must make a variety of decisions which theoretically may impact their future on the Council. In fact, election sequencing could theoretically impact all five council members – whether they run in 2018 or 2020. With respect to this particular decision, numerous cities, counties and school districts have transitioned to a districting process with existing council members actively participating in the process. In fact, given the sharp increase of Voting Rights Act claims in California, the Legislature recently adopted legislation expressly permitting city councils to transition to district elections by Council-adopted ordinance without voter approval. Nevertheless, to address some of the “perception” issues, the Council did form an Advisory Districting Committee and indicated its intent to adopt the Committee’s recommendations, or if not to send it back to the Committee to
 consider the Council’s thoughts/input and to reconsider its recommendations.

Regards, Bill

William L. McClure, City Attorney
City of Menlo Park
1100 Alma Street, Suite 210
Menlo Park, CA 94025
650-324-9300 Ofc
650-324-0227 Fax

-----Original Message-----
From: John Kadvany <jkadvany_at_(domainremoved)
Sent: Friday, March 16, 2018 11:59 AM
To: city.council_at_(domainremoved)
Subject: Recusal Question

Dear Council members -
   I sent the questions below to our city attorney earlier today. Regardless of the answers I think it would be useful and appropriate for the issues and options raised to be addressed early during Wednesday’s districting meeting.
   Thanks very much ,
    John Kadvany / College Ave

    Sent to the city attorney:

 Is there a basic answer to whether / how some CC incumbents may be expected to recuse themselves in voting for district election sequencing, given their (perceived) interest in running in 2018? Or will CC decide this or are they able to completely ignore the issue? There are also options such as participating in the CC discussion without voting, would be curious if such is possible. Of course this would depend on willingness of CC members to declare their current intentions.

Btw I read the staff report, I thought it does a very good job of representing the advisory deliberations. I was also glad to see the committee’s views reported on the 5- vs 6-district choice.

Thanks, John
Received on Tue Mar 20 2018 - 18:01:37 PDT

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