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Potential Facebook related conflicts

From: William L. McClure <"William>
Date: Sat, 22 Sep 2018 00:24:43 +0000

Drew and Kirsten -

While I have talked with both of you to explain the FPPC conflict rules regarding potential conflicts of interest that might require Drew to recuse himself from participating in certain matters that might come before the City Council if Drew is elected, I understand that some people may be questioning the accuracy/circumstances of potential conflicts. So, in an effort to clarify and remove any misunderstanding, I wanted to provide you both with an email summarizing our conversations and am sharing this with CC-In so that it is available to the public as well.

An official has a disqualifying interest and must recuse from participating in making a decision if it is reasonably foreseeable that the decision will have a material effect on one or more of the official's financial interests. Receipt of income from FB is a financial interest, so if it is foreseeable that a decision will have a material effect on FB or on property owned or leased by FB (and if there is no exception) then Drew would have to recuse. So the two primary factors that one has to examine for any decision are foreseeability and materiality.

Any application by FB or a FB controlled entity for land use permits or entitlements for land owned or leased by FB would have a foreseeable and material effect on FB and therefor would require recusal. Similarly, an application by a property for property leased by FB would have a foreseeable and material effect and therefore would require recusal.

In addition to applications by FB or applications involving FB owned or leased properties, the following may meet both tests - certain general plan/Connect Menlo updates/amendments that affect the amount of commercial development allowed in the Bayfront area or otherwise have an financial impact on property owned or leased by FB; there could be some conflict issues around some of the discussion of the Master Transportation Plan, in particular regarding improvements in and around the Bayfront Area that might have to be funded by development within the Bayfront Area in which FB is the largest property owner; consideration of projects that are contiguous to Willow Village or other properties owned or leased by FB - more likely to have a conflict if it is a commercial project that could be using some of the remaining development potential in the Bayfront Area, etc.; and possibly improvements to Bayfront Expressway, Willow Road east of 101, and Dumbarton Rail Corridor improvements/studies - there will have to be a factual analysis/determination of what the effects could be to FB, whether they would be required to fund large portions of the cost, etc. to determine materiality.

In my opinion, residential projects such as the proposed MidPen project on Willow Road, or the residential project on Independence, would not likely have a material impact on FB or property owned or leased by FB and therefore would not likely require recusal. While Drew might have a conflict for transportation improvements in the Bayfront area, he would still be able to participate in discussions, direction and decisions regarding other areas of the City as part of the Master Transportation Plan process, so long as those discussions are handled separately from the Bayfront Area improvements.

If Drew is elected we would request a letter opinion from the FPPC on all of these matters providing as much factual information as we can to get an informed opinion. Note that all decisions whether there are 4 or 5 council members voting/participating will need 3 votes to pass.

Please let me know if you have any questions or this is not clear.

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
P Please consider the environment before printing this email
Received on Fri Sep 21 2018 - 17:23:54 PDT

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