HomeMy WebLinkAbout1991/04/16 Item 5
April 12, 1991
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council
George Krempl, Deputy City Manager ~~
City Council Meeting of April 16, 1991
This will transmit the agenda and related materials for the regular City
Council meeting scheduled for Tuesday, April 16, 1991. Comments regarding
Written Communications are as follows:
Sa. IT IS RECOMMENDED THAT THE CLAIMS FILED BY ELIZABETH SCOTT, ERICK ROBERT
SCOTT, MICHELLE ELIZABETH SCOTT AND ELIZABETH SCOTT, JOHN DENNIS COFFEE,
JOSE VIDRIO AND MARIA VIDRIO, AND JONES INTERCABLE ALL BE DENIED.
Sb. IT IS RECOMMENDED THAT THE RESOURCE CONSERVATION COMMISSION'S REQUEST
TO REMOVE JAMES STEPHENS AS A MEMBER, DUE TO EXCESSIVE ABSENCES, BE APPROVED
AND THAT THE VACANCY BE ADVERTISED.
Sc. IT IS RECOMMENDED THAT THE PETITION REQUESTING AN ALL-WAY STOP AT THE
CORNER OF EAST LAKE DRIVE AND LAKE SHORE DRIVE BE REFERRED TO STAFF AND
THE SAFETY COMMISSION FOR REVIEW AND REPORT.
Sd. IT IS RECOMMENDED THAT THIS LETTER FROM ALAN HERRIDGE BE RECEIVED AND
FILED.
Se. This is a letter from Sue Miller, Chair of the Library Board, requesting
clarification as to her status with the City, citing confusion that Library
Board members are "designated employees" for Conflict of Interest Code
filing purposes as a result of the recent amendment to the Code by the
Counci 1, but are defined by the Charter as an "advi sory body". The two
terms, as defined in the law, are not mutually exclusive concepts, and
the City Attorney's Office has advised her accordingly. Furthermore,
neither concept is inconsistent with the notion expressed by the City
Attorney at the April 9, 1991 meeting that Library Board members do not
have the status as "city employees". IT IS RECOMMENDED THAT NO FURTHER
ACTION BE TAKEN WITH REGARD TO THIS LETTER.
mab/51
COUNCIL AGENDA STATEMENT
Item .5 ~
Meeting Date 4/16/91
ITEM TITLE:
Claims Against the City
SUBMITTED BY:
Director of Personnel (!fr-
(4/5ths Vote: Yes
NO_LJ
REVIEWED BY:
ci ty Managerl
I
Ms. Elizabeth scott, Mr. Erick Robert Scott,
Ms. Michelle Elizabeth Scott,
and Ms. Elizabeth Scott on behalf
of Mr. Erick Robert Scott and Ms. Michelle
Elizabeth Scott
c/o Daniel R. Knowlton
Attorney at Law
2128 Arnold Way, suite 2
Alpine, CA 91901
Claimant No.1:
On March 13, 1991, a claim within the jurisdiction of the Superior
Court was filed against the City of Chula Vista, by Ms. Elizabeth scott,
et al. The claim alleged the City of Chula vista was responsible for a
single-car rollover accident on september 14, 1990, that resulted in the
death of Mr. John Allan Scott. Mr. Scott's accident occurred in the area
of 2600 otay Lakes Road. The claim states the City is responsible due to
faulty design of the roadway, failure to warn, improper maintenance, etc.
Due to remote liability on the part of the city, it is the recommen-
dation of the city's claims administrators, Carl Warren & company, concur-
red in by Risk Management, that the claim be denied.
Claimant No.2:
Mr. John Dennis Coffey
P. O. Box 121866
Chula vista, CA 91912-6566
On March 15, 1991, Mr. John Dennis coffey filed a claim for an
amount within the jurisdiction of the Superior Court. The claim alleged
improper conduct on the part of the Chu1a vista Police Department who
allegedly entered a residence on September 17, 1990 and conspired with the
landlord to conduct unlawful activities that resulted in a loss of Mr.
coffey's personal property, reputation, etc.
Due to remote liability on the part of the City, it is the recommen-
dation of the city's claims administrators, Carl Warren & Company, concur-
red in by Risk Management, that the claim be denied.
Form A-113 (Rev. 11/79)
5 fA-l
Mr. Jose Vidrio and
Ms. Maria vidrio
c/o Legal Aid society of San Diego, Inc.
110 South Euclid Avenue
San Diego, CA 92114
On January 17, 1991, a claim was filed on behalf of Mr. Jose Vidrio
and Ms. Maria Vidrio and an amended Claim was filed on April 5, 1991. The
vidrios allege the city caused them damages on June 12, 1990 within the
jurisdiction of the superior Court in connection with a deferred loan
approved by the City Chip Loan Committee through Community Development.
The Vidrios allege the city breached its agreement by failing to properly
inspect and control the quality of work under their contract with Bay View
Design and construction.
Claimant No.3:
Due to remote liability on the part of the city, it is the recommen-
dation of the city Attorney and Risk Management that this claim be denied.
Claimant No.4:
Jones Intercable of San Diego, Inc.,
c/o Jerold H. Goldberg, Esq.
McDonald, Hecht & Solberg
600 "B" street, suite 1100
San Diego, CA 92101
On March 27, 1991, a claim within the jurisdiction of the Superior
Court was filed against the City by Jones Intercable of San Diego, Inc.
The claim alleges, among other things, that the City breached their cable
franchise, damaged their ability to operate a cable television franchise
and damaged their reputation by failing to recognize Jones' franchise for
certain annexed areas.
The City is currently in litigation with Jones Intercable and this
claim is filed in connection with their lawsuit. It is the recommendation
of our outside counsel, the City Attorney and Risk Management, that this
claim be denied.
RECOMMENDATION: Deny the above four claims.
J
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OPEN LETTER
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lJI) APR - 5 1991 ~ '
TO:
CHULA VISTA CITY COUNCIL
C1TYC/lCOUNCll OfflCE.S
UtA VISTA.
FROM:
CONCERNED CITIZENS OF CHULA VISTA
DATE:
MARCH 20, 19'31
RE:
PEDESTRIAN SAFETY
-----------------------------------------------------------------
We, the undersigned residents of the Chula Vista community of
Eastlake, are extremely dissatisfied with the recommendation by
i"le engineering department to reject the request for an all way
stop at the corner of Eastlake Drive and Lakeshore Drive.
Apparently, the measured levels of traffic and pedestrian flow
are not sufficient to warrant an all way stop. Unfortunately, it
only takes one vehicle and one pedestrian to have a tragic
incident. This particular intersection has very poor visibility
for vehicles moving north on Lakeshore Drive. We feel that the
configuration of the intersection more than the volume of traffic
is the contributing factor that makes it so dangerousd An all
way stop at this location would have no negative impact on the
traffic flow of our community.
We, as a group, respectfully ask that before you make a final
decision on this matter, that you consider all factors that can
be cause for hazardous conditions. You have the ability to help
avert a potential tragedy by approving this safety request.
Nothing could possibly be worse than agonizing over the questic'l
of " Why didn't we do it " after a tragedy has occurred.
Thank you in advance for your sincere consideration with respect
to this matter.
b!.M.5.
ADDRESS
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OPEN LETTER TO CHULA VISTA CITY COUNCIL (CONT.:>
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OPEN LETTER TO CHULA VISTA CITY COUNCIL (CONT.)
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OPEN LETTER
TO:
CHULA VISTA CITY COUNCIL
FROM:
CONCERNED CITIZENS OF CHULA VISTA
DATE:
MARCH :20, 19'31
RE:
PEDESTRIAN SAFETY
-----------------------------------------------------------------
We, the undersigned residents of the Chula Vista community of
Eastlake, are extremely dissatisfied with the recommendation by
the engineering department to reject the request for an all way
stop at the corner of Eastlake Drive and Lakeshore Drive.
Apparently, the measured levels of traffic and pedestrian flow
are not sufficier'lt to warrant an all way stop. Unfortunately, it
only takes one vehicle and one pedestrian to have a tragic
incident. This particular intersection has very poor visibility
for vehicles moving north on Lakeshore Drive. We feel that the
cl~nfiguration of the intersection more than the volume of traffic
is the contributing factor that makes it so dangerous. An all
way stop at this location would have no negative impact on the
traffic flow of our community.
We, as a group, respectfully a~;k that be'fore you make a final
decision on this matter, that you consider all factors that can
be cause for hazardous conditions. You have the ability to help
avert a potential tragedy by approving this safety request.
Nothing could possibly be worse than agonizing over the question
of '1 Why didn't we do it II after a tragedy has occurred.
Thank you in advance for your sincere consideration with respect
to:, this matter.
NAME .',
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WIlITTEN COMMUNICATIONS
5d ..1
,.,.......~-.:
Sovereignty's Strategy
To Lower Your Taxes
Congressmen must make a public declara-
I tion - follow the old system of underfund-
ing education, having inadequate health
services and housing, poor infrastructure,
and gouge the taxpayer even more heavily
OR vote for Sovereignty's proposal which
. lowers your taxes and funds necessary needs.
A one-hour panel discussion with five
experts was filmed and edited for television
presentation. It was shown first on WREX- TV
13, Rockford, Illinois on August 31, 1989.
This panel showed the problem, explained
the solution and benefits. VHS copies of this
video are available.
To put Sovereignty proposal into effect,
YOUR SIGNATURE s needed on the follow-
ing petition:
"To promote the general welfare: we,
the people, petition Congress to make
interest-free loans of United States
Treasury money to tax-supported
bodies for voter-approved capital
projects."
Tax bodies are being asked, in. the form of a
resolution, to support the same advisory
petition. Has your county, city, or school
board done so? You, the taxpayer, need to
request their support.
To obtain the petition to circulate and the
resolution for your local tax bodies, call or
write:
l1\
Q....
,
N
Sovereignty
Post Office Box 782
Freeport, IL 61032
815-232-8737
~
Panelists
Professor Robert Blain
t.' Professor of Sociology
,< Southern Illinois University
jII'~ Edwardsville, Illinois
"With this proposal, we pay-not our children.
They inherit the treasures we build-not
debts."
Margaret Thoren
Businesswoman-Cleveland, OH
Author-"Figuring Out The Fed"
Editor-"Truth In Money"
"Too much money chasing too few goods is
one of the biggest myths. Did you have too
much money in 1979-8H Were the shelves
empty? The problem is too much debt and
interest and too little money."
Professor John Hotson
Professor of Economics
University of Waterloo
Waterloo, Ontario, Canada
,
"Politicians tell us they would like to save the
human race from the environmental crisis but
can't because of the debt and deficit. What
could be more incredible folly than thaI?"
Professor Sue Atcheson
Professor of Economics
Mount San Antonio College
Walnut, California
"The whole idea is to assist the taxpayer with
the overburden of taxes."
I:
Royce Olson
Past-President
Chamber of Commerce
Winter Park, Florida
"Three requirements are needed for these
projecls: labor force, materials, and money.
Sovereignty's proposal will provide the missing
element-money."
j -
Your
5'
CAN LOWER YOUR TAXES
HERE'S HOW..........
.SOVEREIGNTY
A NOT FOR PROFIT ORGANIZATION
TAXPAYERS AND FUTURE TAXPAYERS
POST OFFICE BOX 782
FREEPORT, IL 61032
( 815-232-8737
. l<' p Y\ R ~ I^._ 1'\ '" ~ k
\T'
~
Here's The Problem
The taxes on your income and property are
outrageously high - and climbing. And
the reason they are continuing to climb is
because of the high interest payments that
local, state, and federal government must
pay on the money they borrow. These
interest payments represent wasted tax ,I
money because the borrowers received no
material benefit in return. You and your
neighbors are wasting millions of dollars
each year in non-productive interest pay-
ments.
when the same property tax distribution
formula is applied to taxes paid for interest
on the above government debts, the size of
the waste is evident and the needed changes
are obvious.
The example and microcosm of cities and
counties is Rockford, Illinois in Winnebago
\J\ County.
~ Taxes Applied Taxes Wasted
I for 1989 for interest on debt
1Al (in millions) (in millions)
School $44.5 $93.7
City 20.8 47.6
County 10.8 22.5
The problem is: How can communities such
as Rockford, Illinois pay for the services they
need without borrowing huge amounts of
money and then taxing the citizens to pay
millions of dollars of interest each year?
"The most productive investments the
government could make are in infrastructure
elements. These increase productivity and
allow all of us to live better lives."
Alan S. Blinder
Economist
Business Week
I
Yes, There Is A Solution!
The solution simply calls for the Congress
to invoke a provision in the Constitution to
instruct the U.S. Treasury to cLeate money.
and 10<!!ljnot give) int.eLest-free to tax-
supported bodies (e.g.: cities, counties,
townships, school "aistricts, states, and even
the federal governmentl.f2"I:Vot~~;1I?PJ:~)Ved
(a must) capital projects (not day-to-day
expenses).
The no-interest loans could also be used
to payoff current debts in order to save
interest.
Institutions such as the Federal Reserve and
commercial banks create money every day
so the Treasury wouldn't be doing anything
unusual. Other governments over the
centuries have created no-interest loans
to meet emergency expenses, so, again, this
idea isn't revolutionary. It's been carried
out successfully before.
Repayment to the Treasury would be over
a reasonable period of time and with no
interest.
When the Treasury receives the money, it
simply cancels it and removes it from circu-
lation. This action prevents inflation.
The solution makes no change in the way
individuals and businesses borrow money
or make investments.
"The privilege of creating and issuing money
is not only the supreme prerogative of
Government, but it is the Government's
greatest creative opportunity. The taxpayers
will be saved immense sums of interest."
Abraham Lincoln
t
,
The Benefits Of The Sovereignty Solution
Sovereignty is circulating a petition which
requests that Congress instructs the Treasury
to issue no-interest loans. When you sign
this petition, you are in effect voting for a
proposal that will:
1. Lower your income and property taxes.
2. Fund necessary and legitimate needs in
the areas of:
housing
health care
education
waste disposal
water and sewer systems
bridges and roads
env,ironmental protection
"3. Build capital projects at one-third to
one-half the cost of coventional bonded
financing.
4. Increase employment.
5. Prevent inflation.
6. Allow current debts to be paid off to
save interest.
7. Allow real economic development to
benefit the whole community.
"Under Sovereignty's proposal, banks
would simply have to redirect a portion of
their investment portfolio. Bank customers
would see additional lending dollars avail-
able at the retail level. That would obviously
help small business expansion(s), the con-
sumer's cost of money, the housing trade,
etc., etc."
Edward F. Mrkvicka, Jr.
Former Bank President
and CEO
.
TAX-BODIES SUPPORTING THE SOVEREIGNTY RESOLUTION
@
CITIES POPULATION
Freeport, Illinois 26,000
Dixon, Illinois 16,000
Sterling, Illinois 16,000
Rockton, Illinois 2,500
E1yria, Ohio 65,000
lena, Illinois 2,900
Monroe, Wisconsin 10,000
Roscoe, Illinois 1,500
South Beloit, Illinois 4,100
Oregon, Illinois 3,500
Eaton Rapids, Michigan 5,000
DeKa1b, Illinois 33,000
Traverse City, Michigan 15,500
Wadsworth, Ohio 15,200
laPorte, Indiana 21,800
Fairmont, West Virginia 22,800
Seymour, Texas 3,550
Freeport, Pennsylvania 2,381
Michigan City, Indiana 37,000
Westmont, Illinois 16,700
Berkeley, Missouri 16,000
North Chicago, Illinois 38,774
Be11wood, Illinois 19,800
Sanford, New York 2,635
Deposit, New York 2,000
lansing, Michigan 127,321
Fort Myers, Florida 45,200
Waterloo, Iowa 66,000
San Marcos, California 23,600
Weston, West Virginia 4,800
Southwest (ChicaQo) Conference Qf local Governments
A1sip-7,134 Bedford Park-1,020 Oak lawn-60,590 Burbank-28,462
Crestwood-10,712 Orland Park-23,045 Ever9reen Park-22,260
Hickory Hi11s-13,778 Palos Park-3,150 Justice-l0,552
lemont-5,640 Merrionette Park-2,054 Bridgeview-14,155
Orland Hi11s-5,021 Chicago Ridge-13,473 Palos Heights-11,096
Palos Hi11s-16,654 Hometown-5,324 Willow Springs-4,147
Worth-11,592
OVER FOR COUNTIES. TOWNSHIPS. AND SCHOOL DISTRICTS
S~4
COUNTI ES
Lorain, Ohio
Cuyahoga, Ohio
Marion, West Virginia
Whiteside, Illinois
LaPorte, Indiana
Ellsworth, Kansas
Grand Traverse, Michigan
Vinton, Ohio
Green, Wisconsin
Guernsey, Ohio
Darke, Ohio
Lawrence, Ohio
Rich1and, South Carolina
Baylor, Texas
Columbia, Florida
Lee, Florida
Columbiana, Ohio
Berks, Pennsylvania
TOWNSHIPS
Freeport, Illinois
Jackson, New Jersey
Wadsworth, Ohio
Lakevi11e, Massachusetts
SCHOOL DISTRICTS
Freeport, Illinois #145
Orangevi11e, Illinois #203
Dakota, Illinois #201
Eastland, Illinois #308
Stockton, Illinois #206
Marion County, West Virginia
Byron, Illinois #226
Winnebago, Illinois #323
Montrose County, Colorado
Schaumburg District 54, Illinois
Collier County, Florida
Deposit Central, New York
Jackson County, New Jersey
SJ-5
POPULATION
275,000
1,500,000
66,000
67,000
110,000
6,600
55,000
11 ,600
30,000
46,000
55,000
63,900
270,000
4,355
35,400
205,266
113,600
336,000
POPULATION
26,000
34,000
4,400
7,600
ENROllMENT
4,800
550
875
725
770
9,576
1,172
1,162
4,295
16,000
20,566
803
5,435
@
COUNCIL:
,0
~/
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RESOLUTION NO.
WHEREAS, the City Council of the City of
from time to time issue bonds to finance capital
projects that are necessary to ensure the health
of the citizens of -(I and
must
lmprovement
and welfare
WHEREAS, the City Council of the City of _
recognizes the fact that the cost of interest for
issued to fund capital projects is a great burden
taxpayers of the City of
bonds
on the
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF _, that it does hereby express
its support for the advisory ~etition which requests that
the United States Congress instruct the United States
Treasury to create anc issue interest-free loans to tax-
supported bodies for the purpose of funding voter approvec
capital projects.
-
RESOLVED this
day of
, 199C.
Mayor
YEAS:
NAYS:
ABSTAIN:
PRESENT:
ATTEST:
City Clerl(
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ClN OF
CHULA VISTA
CHULA VISTA PUBLIC LIBRARY
April 10, 1991
The Honorable Mayor and City Council
city Hall
276 Fourth Avenue
Chula Vista, CA 91910
Dear Mayor and Council:
At the city Council meeting of April 9, 1991, Library Board of
Trustees Vice Chairman, Ronald Williams, told you we are confused.
Are we "advisory" or are we "designated employees".
If you study the enclosed document from D. Richard Rudolf,
Assistant City Attorney, perhaps you will come to the conclusion,
as we have, that once we are no longer "advisory" we become
"designated employees". We were very surprised at City Attorney
Boogard's response that we are not "designated employees".
We have included here our city Charter description so you may see
why we are confused. It refers to us as advisory. Who and what
are we now? We need an answer.
Perhaps you should consider changing the word "advisory"
contained throughout boards and commissions descriptions.
no idea what would be appropriate.
which is
We have
We would appreciate your response to our question before the next
scheduled Library Board meeting, April 24, 1991.
I remain yours respectfully,
;
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Suzan C. M~ller
Library Board Chairman
cc: City Manager
city Attorney
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365 F STREET/CHULA VISTA. CALIFORNIA 91910/(619) 69\-5168
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DATE:
March 20, 1990
FROM:
Rosemary Lane, Library Director
Ql'''''
\ Rich Rudolf, Assistant City Attorney
TO:
SUBJECT:
Financial Disclosure by Members of the
Library Board of Trustees
You have received complaints from some members of the Library
Board of Trustees that they should not be required to fill out
financial disclosure forms in accordance with the Political
Reform Act, after they had received a letter from the City Clerk
directing them to disclose their interests in real property,
investments in business entities and sources of income of the
type which within the past two years have contracted with the
Library to provide services, suppl ies, mater ials, machinery or
equipment, and business positions pursuant to the City's Conflict
of Interest Code. This is to confirm our oral advice that the
members of the Library Board of Trustees are required to so
report by April 1, 1990, if the Library Board of Trustees has
made substantive recommendations which are, and over an extended
period of time have been regularly approved without significant
amendment by you or the City Council. This is a judgment call,
requiring analysis of whether the decisions of the Library
Trustees are "substantive", what is an "extended" period of time,
and whether their recommendations have been "regularly" approved
without "significant" amendments by yourself or the City
Council. You are assisting the City Clerk and me in reviewing-
the necessary facts to require or excuse their status as
"designated employees" under the City's Conflict of Interest Code
(Chula Vista Municipal Code Chapter 2.02 and 2 California Code of
Regulations 18730).
DISCUSS ION
A ma jor purpose of the Poli tical Refo rm Act (Government Code
~~81000 et seq.) is that the "assets and income of public
officials which may be materially affected by their official
actions should be disclosed and in appropriate circumstances, the
officials should be disqualified from acting in order that
conflicts of interest may be avoided". Additionally, "adequate
enforcement mechanisms should be provided to public officials and
private citizens in order that this title will be vigorously
enforced", (Government Code ~8l002). The provisions of the
Political Reform Act are required to be liberally construed to
accomplish its purposes. (Government Code ~81003).
The City is required to
(Government Code ~87300),
reasonable assurance that:
have
The
a Conflict of Interest Code
code is supposed to provide
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Rosemary Lane
March 20, 1990
Page 2
(I) All foreseeable potential conflicts will be disclosed or
prevented;
(2) Persons affected are provided with clear and specific
statements of duties; and
(3)
Adequate differentiation
employees with different
(Government Code S87309).
is made
powers
between designated
and responsibilities.
The code must designate positions determined by the code
reviewing body (the City Council) (Government Code S82lll) to
entail the making or participating in the making of decisions
which may foreseeably have a material financial effect on any
financial interest. (Government Code S87302). The code must
specify the types of reportable interests (investments, business
positions, interests in real property and sources of income)
foreseeably affected in a mater ial way by the decision of the
designated employee.
.-
As to adv isory boards and commissions, the sta tu te defines a
.designated employee. to include any officer, employee, member or
consultant of any agency whose position is designated. in a
Conflict of Interest Code because the position entails the making
or participating in the making of decisions which may foreseeably
have a mater ial effect on any financial interest. (Government
Code S820l9(c)). The terms .officer., .employee., .member., and
.consultant. are not defined in the statute, but are defined in
the regulations. ---However, Government Code S82109 expressly
provides that the term .designated employee. does not include
.any unsalaried member of any board or commission which serves a
solely advisory function..... (Emphasis added).
The Fair Political Practices Commission is required to administer
the act and has the power to adopt rules and regulations to carry
out its purposes and provisions. The Commission has adopted
regulations, and they are found in Title 2, Division 6 of the
California Code of Regulations (commencing with Section 18100).
(Hereafter all section references are to the regulations unless
otherwise specified).
Both the statutes (Government Code S82048) and the regulations
(Section l8700(a)) define the term .public official. to include
.unsalaried members of boards or commissions with decision-making
authority.. (Emphasis added). The regulations further specify
that "decision-making authority" includes either making a final
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Rosemary Lane
March 20, 1990
Page 3
governmental decision; or if the board or commission "makes
substantive recommendations which are, and over an extended
period of time have been, regularly approved without significant
amendment or modification by another governmental agency."
(Section l8700(a)(l)(C)).
The first question which must be answered is whether the
definition of "public official" in the regulations quoted above,
carries out the purposes and provisions and is consistent with
the provisions of the act, especially with. the exception found in
the statutory definition of "designated employee", which excludes
commission members who are members of a commission which is
"purely advisory"? It seems reasonably clear that the term
"purely advisory" is less than entirely clear and therefore a
term needing, and capable of definition by the FPPC through its
regulations. We believe the definition of "public official"
which makes a distinction between those commissions or boards
wi th decision-mak ing author i ty as opposed to being purely
advisory, turning on whether their recommendations are regularly
approved without significant amendment over an extended period of
time, is consistent with the purposes of the act. Such a
definition will result in the disclosure and potential
disqualification of persons in a position to influence decisions,
where their assets and income may be materially affected by that
ability to influence the ultimate governmental decision.
The second questions is: What does the regulation require? We
believe that the regulation requires that the code reviewing body
(here the City Council) must approve a local Conflict of Interest
Code which includes designation of those advisory boards,
commi ttees or commissions which have member s meeting the
definitions set forth in the ~egulations. That requires a
case-by-case determination of wh~ther the committee, board or
commission decisions are (a) substantive, (b) approved without
significant amendment, and (c) are so approved over an extended
period of time.
Our conclusion is bolstered by the informal advise of the FPPC in
a letter to the City of Carlsbad dated November 28, 1989
(1-89-671). That informal advise letter stated:
"Once there is a history of a particular advisory
board I s recommendations being routine if accepted
without amendment or modifications, the board does
convert from a sOlely advisory function to one
making or participating in the making of a
governmental decision and would be covered by
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Rosemary Lane
March 20, 1990
Page 4
the Confl ict of Interest Code. We have in the
past advised new advisory commissions that they
are in fact solely advisory until a history of
recommendations has been established."
Our conclusion is also supported by the discussion in Commission
on California State Government Organization and Economy v. FPPC
(1970) 715 Cal.App. 3d 716, 142 Cal.Rptr. 468, the only case to
have construed this language. There the Court of Appeal held
that uncompensated part-time, appointive members of the
Commission on State Government Organization and Economy were not
exempt from the Political Reform Act's requirement of filing
periodic financial disclosure statements, notwithstanding the
fact that the primary function of the Commission was advisory.
The Court held that the Commission's investigations were capable
of directly altering activities and decisions of State agencies,
and that the Commission members were vested with power to
influence decisions of State agencies which regulated or affected
their private businesses, property or income. The Court stated:
"Advisory is authoritatively defined as having
the attribute of advising; giving or tendlng
to give advice; in the context of Section
82019 the signification of advice is oplnlon
gi ven or offered as to act ion. (The Oxfor d
Engllsh Dlctlonary.) When these definitions
are flushed out by cognitive notions, the word
advisory denotes indirect, relatively passive,
hortatory and non-binding counselor gUidance,
as contrasted with active management,
decision-making and imposition of obligatory
orders or decrees." (15 Cal.App.3d 716 at
720-721, 142 Cal.Rptr. 46~, at 470-471.
After observing that the presence or absence of decision-making
power is an important factor, the Court of Appeal found the
Commission was exercising decision-making power when it acted
indirectly, submitting its studies and recommendations to the
Governor and the Legislature which had the power to accept or
reject them.
"The indirection is only nominal and
theoretical. Executive agencies which are
vulnerable to charges of abuse, inefficiency
or waste, will tend to anticipate public
criticism by voluntary self-improvement. The
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Rosemary Lane
March 20, 1990
Page 5
more vulnerable the agency, the greater its
sensi ti vi ty to the Commission J s investigatory
power. Like a biological organism, the
complex and interdependent array of executive
agencies responds to external stimuli and
internally secreted adrenal in. In real life,
the Commission's investigations are not all
indirect and advisory. They are capable of
directly altering the activities, that is, the
decisions of executive agencies, .resulting in
tangible effects which far outdistance the
soft inducements of good counsel.'
(Commission v. FPPC, supra, 75 Cal.App.3d 716
at 723, 142 Cal.Rptr. 468 at 471).
Finally, the Court emphasized that the purposes of the Political
Reform Act were preventive, acting upon tendencies as well as
prohibited results, and observed that an official participates in
a decision when he influences it directly or indirectly. With
regard to the often heard objection that requiring disclosure
would discourage membership on a public service advisory body,
the Court observed:
'Many citizens would rather hang on to their
privacy than damage it through public
serVlce. The damage to privacy is inflated by
enterprising journalists who mistake gossip
for news. The cost, at any rate, is a concern
of the legislative branch, not the courts.'
(75 Cal.App.3d 716, at 724, 142 Ca1.Rptr. 468
at 473).
A third question is: What would tiappen if the City Council does
not include members of boards and commissions meeting the
regulatory test in the City's Conflict of Interest Code?
Initially, it should be pointed out that the City Council is the
Code reviewing body for the local Conflict of Interest Code for
the City of Chula Vista. Clearly, it is their initial
determination as to who are 'designated. employees. However, an
officer, employee, member or consultant of the City or a resident
of the City may petition the City Council to amend the Conflict
of Interest Code (Government Code ~87307). The statute then
provides jUdicial review of any action of the Code Reviewing Body
ini tia ted by the FPPC, through the At torney Gener aI, or by an
officer, employee, member or consultant of the City or a resident
of the City, directly or through the District Attorney.
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Rosemary Lane
March 20, 1990
Page 6
(Government Code SS87308 and 91001). Theoretically, failure of
the City Council to designate members of boards or commissions
meeting the test could constitute a misdemeanor (Government Code
591000), but it is hard to imagine either criminal or civil
penalties being invoked by the District Attorney (see Government
Code 591005.5) in such an event. Additionally, the statute
expressly provide for injunctive relief to enjoin violations or
compel compliance with the provisions of the Political Reform Act
by any resident of a city, including the right to reasonable
attorney's fees in the event such a resident prevails in the
litigation (Government Code 591003).
The Ci ty of Chula Vista I s local Conflict of Interest Code is
found in Chula Vista Municipal Code Chapter 2.02. In Section
2.02.030, the City Council has delegated to the City Clerk and
City Attorney, acting together, authority to designate positions
other than those expressly set forth in the Code as posi tions
which must provide financial disclosure and under specified
circumstances, be disqualified from participation in governmental
decisions. utilizing that authority, the following
committees/commission members have been designated:
Board of Appeals and Advisors; Board of Library Trustees; Civil
Service Commission, Design Review Committee; Growth Management
Oversight Committee; International Friendship Commission;
Montgomery Community Planning Committee; Otay Valley Road Project
Area Committee; Resource Conservation Commission; Safety
Commission; and the Town Centre Project Area Committee. The list
inadvertently omits the Parks and Recreation Commission. This
list of boards and committees was in a draft Appendix prepared
for a potential amendment to the Chula Vista Municipal Code
Conflict of Interest Code provisions which was not yet ready to
go to Council for approval. since the City Clerk was unable to
determine from prior records of the previous City Clerk what
boards and commissions were sent disclosure form requirements,
she utilized the draft new Appendix for this year I s mailing. We
have subsequently discovered that members of certain boards and
committees feel they should not be required to make financial
disclosures under the Act. The City Clerk and this office are
currently attempting to review the records of the City Council
with regard to those boards, commissions or committees to
determine their "track record" with their recommendations to the
City Council.
I have also advised you that this
statewide concern and of current
Attorneys of the cities in San
whole subject is
local concern
Diego County.
a matter of
to the City
We will be
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Rosemary Lane
March 20, 1990
Page 7
discussing this very subject at our retreat in Palm Springs on
March 24, 1990. However, I am fairly confident that our ultimate
conclusion will be as stated herein. Accordingly, you should
begin an historical review to determine whether the decisions of
the Library Trustees are substantive and have been approved
without significant amendment over an extended period of time by
yourself or the City Council. I am fairly confident that your
research will conclude that those regulatory guidelines have been
met and that the members of the Library Board of Trustees are
requi red to disclose the specified,. limi ted, financial
interests. However, if you discover through your historical
research that any of those requisites are not met, please discuss
with me as soon as possible. In the event that the regUlatory
requirements are met, those members have been designated, and
must file their reports with the City Clerk by April 1, 1990 or
suffer a $10.00 per day penalty for late filing. Accordingly, it
is important that you notify them of the risk involved in
noncompliance, the likelihood that the regulatory requisites will
have been met, and the relative Simplicity of the reporting
requirements once they embark upon the process. The City Clerk's
Office will be happy to assist any Board of Library Trustees'
member with the process of filling out the requisite forms in the
limited categories in which they are required to report.
Ultimately the City Council, as the Code reviewing body, should
make this determination based upon the advice of the City
Attorney, City Manager, and City Clerk. The list was intended to
be reviewed by the City Manager and the Director of Personnel
before being utilized, after Council approval. That process will
be undertaken before next year's disclosure statements are called
for by the City Clerk.
If I may be of further assistance an this matter, do not hesitate
to contact the me.
DRR:clb
cc: John Goss
Beverly Authelet
6975a
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.
Boards, Commissions, Committees Handbook
ti. Per Ordinance No. 1909, the Commission's responsibilities include
an advi sory functi on rega rdi ng the imp 1 ementat i on of mass
transportation within the City. The Commission is to advise and
recommend to the Ci ty Counci 1 on Chul a Vi sta Transi t operati onal
items including, but not limited to, route structures; fares;
condition of buses; interface with all other fonns of transit and
bench; and bus stop and bus shelter locations.
Secretarial service is provided by the Mayor/Council secretary.
I. INTERNATIONAL FRIENDSHIP COMMISSION 6/17/69 Ord. 1206
consists of ten members appointed to
Thi s body has the following scope of
The International Friendship Commission
four year tenns on a staggered basis.
respons i bi 1 i ty:
1. Plans, develops and carries out economic cooperation, cultural
interchange and mutual understanding on the basis of mutual
friendship between the City of Chula Vista and her sister cities.
Secretarial service is provided by the secretary to the Director of Public
Sa fety.
J. LIBRARY BOARD OF TRUSTEES 9/13/12 Ord. 15 and Ord. 199
The Board of Library Trustees is
year tenns on a staggered basi s.
follows: .
composed of fi ve members, appoi nted to four
This body's scope of responsibility is as
1. Acts in an advisory capacity to the City Council in all matters
pertaining to City libraries.
2. Recommend to the Council the adoption of such bylaws, rules and
regul ati ons as it may deem necessary for the admi ni strati on and
protection of City libraries.
The Board works in conjunction with the Library Director.
K. I~OB ILEHOME I SSUES COMMITTEE Mi nute Acti on 10/19/82
In June 1981, as a response to the space rent increase situation in mobilehome
parks in Chula Vista, an Ad Hoc COl1l1littee on Mobilehome Issues was created.
The Committee dealt extensively with the space rent issue as well as other
issues germane to the mobilehor.1e park environment. It was the Committee's
desire to see a similar body exist to monitor the space rent situation as well
as to deal on a periodic basis with other significant problems facing the
mobilehome community.
On October 19, 1982, the City Council approved the establishment of the
Mobilehome Issues Committee. The Committee consists of eleven members - one
member, the Chairman, is appointed from the community at large and the other
ten members comprise the following: five park residents and five park owners.
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OlY OF
CHULA VISTA
OFFICE OF THE CITY ATTORNEY
April 12, 1991
Suzanne C. Miller
Board of Library Trustees Chairperson
46 Alvarado Place
Chula Vista, CA 91910
Dear Ms. Miller:
This is in response to your letter of April 10, 1991 addressed to
the Mayor and City Council of the City of Chula Vista. In that
letter, you request clarification of whether members of the Board
of Library Trustees are .advisory. or .designated employees..
The answer is, you are both. You are also .members. as well as
unpaid .officers. of the City of Chula Vista.
DISCUSSION
The Board of Library Trustees exists pursuant to the authority of
Article VI of the Charter of the City of Chula Vista relating to
.appointed boards and commissions.. All such boards and
commissions created either by the Charter or by ordinance of the
City Council .shall consult with and advise the Mayor, Councilor
City Manager as may be provided herein or in the ordinances
establishing such boards and commissions, but they shall have no
authority to direct the conduct of any department.. (Charter
section 600). with specific regard to the Board of Library
Trustees, the Board is created by Charter Section 607 and its
duties include to .act in an advisory capacity to the City
Council in all matters pertaining to City libraries.... (Section
608). The Board consists of at least five .members. appointed by
the City Council. (Section 607). Thus, for purposes of the
Charter, the Board is made up of .members. who are not employees,
and probably are .officers, but in any event may not be
compensated for their services.. (Section 601(b)).
However, as we have previously explained in our March 20, 1990
memorandum to Library Director Rosemary Lane, for the purposes of
the Fai r poli tical Practices ~ct (Government Code Section 81000
et seq.) there is a term of art called a .designated employee.
which includes any officer, employee, member, or consultant of
any agency whose position is designated in a conflict of interest
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276 FOURTH AVE/CHULA VISTA, CALIFORNIA 91910/(619) 691-5037
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April 12, 1991
Page 2
code because the position entails the making or participating in
the making of decisions which foreseeably have a material effect
on any financial interest. (Government Code Section 82019 (c) ) .
That section specifically provides that a designated employee
does not include 'any unsalaried member of any board or
commission which serves a solely advisory function.....
(Emphasis added).
The term 'member' is not defined in the statute, but is defined
in the regulations. The term member includes 'salaried or
unsalaried members of boards or commission with decision-making
authority.' (Emphasis added). The regulations further specify
that 'decision-making authority' includes either: making a final
governmental decision; or if the board or commission 'makes
substantive recommendations which are, and over an extended
period of time have been, regularly approved without significant
amendment or modification by another governmental agency.' (2
California Code of Regulations Sec. 18700(a)(1)(C)).
Accordingly, as we have previously advised in the March 20, 1990
memo to Rosemary Lane, for the purposes of the Political Reform
Act and application of the conflict of interest law of the State
of California, the City Council of the City of Chula Vista
determines who are 'designated employees. for the purposes of the
ci ty 1 S Conflict of Interest Code. wi th regard to member s of
boards and commissions, the Council is required to make a
case-by-case determination of whether the board or commission
decisions are (a) substantive; (b) approved without significant
amendment; and (c) are so approved an extended period of time.
If the City Council, as the Code reviewing body determines that
all three requisites have been met, then it should designated
those members of that board or commission as .designated
employees., in the City's Conflict of Interest Code. On the
other hand, if the City Council determines that one or more of
those prerequisites has not been met, the City Council is not
required to make such members designated employees in the City
Conflict of Interest Code. However, as we have previously
advised the City Council, the City Council is free to impose
additional requirements on any person with regard to conflict of
interest, so long as those additional requirements do not prevent
the person from complying with the Fair Political Practices Act.
(Government Code Section 81013).
As you can see, there is good reason for your confusion. The
Charter contemplates your membership on an advisory board which
has no authority to direct the conduct of any department.
Nevertheless, for the purposes of the Political Reform Act, once
the City Council determines that your .recommendations. are
substantive, approved without significant amendment, and are so
Se-12
CITY OF CHULA VISTA
suzanne C. Miller
April 12, 1991
Page 3
approved over an extended period of time, you no longer perform a
.solely advisory function., but have passed over into the arena
of having .decision-mak ing author i ty. and should be made
.designated employees. for the purposes of disclosure under the
Conflict of Interest Code and disqualification under the Fair
Political Practices Act. (Government Code section 87100).
Very truly yours,
~L~tW
D. Richard Rud~
Assistant City~orney
DRR:clb
cc: Mayor and City Council
John Goss, City Manager
8752a
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