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CONFLICT OF INTEREST CODE
CITY OF BARSTOW
The Political Reform Act (Government Code Section 81000, et seq.) requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation, 2 Cal. Code of Regs.
Section 18730, which contains the terms of a standard Conflict of Interest Code. It can be incorporated by reference and may be amended by the Fair Political Practices Commission after public notice and hearings to conform to amendments in the Political Reform Act. Therefore, the terms of 2 Cal. Code of Regs. Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference and, along with the attached Appendices in which members and employees are designated and disclosure categories are set forth, constitute the Conflict of Interest Code of the City of Barstow.
Designated employees shall file statements of economic interests with the agency who will make the statements available for public inspection and reproduction (Gov. Code Section 81008). Upon receipt of the statements of the Barstow City Council, including its capacity as the Successor Agency of the former Barstow Redevelopment Agency, the Barstow Planning Commission, City Treasurer, City Attorney, City Manager, and Finance Director, the agency shall make and retain a copy and forward the original of these statements to the Fair Political Practices Commission. Statements for all other designated employees will be retained by the agency.
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EXHIBIT ‘A’
CITY OF BARSTOW
CONFLICT OF INTEREST CODE
Section 1. Definitions.
The definitions contained in the Political Reform Act of 1974, regulations of the Fair Political Practices Commission (2 Cal. Code of Regs. Sections 18100, et seq.), and any amendments to the Act or regulations, are incorporated by reference into this Conflict of Interest Code.
Summaries of certain definitions are contained in the attached Addendum which is provided for convenience of reference only and is not a part of this Code. The definitions of key terms contained in the Act or the regulations are amended and changed from time to time. The summaries of definitions contained in the Addendum will be updated accordingly on a periodic basis.
Section 2. Designated Employees.
The persons holding positions listed in Appendix A are designated employees. It has been determined that these persons make or participate in the making of decisions, which may foreseeably have a material effect on financial interests.
Section 3. Disclosure Categories.
This code does not establish any disclosure obligation for those designated employees who are also specified in Government Code Section 87200 if they are designated in this code in the same capacity or if the geographical jurisdiction of this agency is the same as or is wholly included within the jurisdiction in which those persons must report their financial interests pursuant to Article 2 of Chapter 7 of the Political Reform Act, Government Code Sections 87200, et seq.
In addition, this code does not establish any disclosure obligation for any designated employees who are designated in a Conflict of Interest Code for another agency, if all of the following apply:
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A. The geographical jurisdiction of this agency is the same as or is wholly included within the jurisdiction of the other agency; The disclosure assigned in the code of the other agency is the same as that required under Article 2 of Chapter 7 of the Political Reform Act, Government Code Section 87200; and
B. The filing officer is the same for both agencies.1/
Such persons are covered by this code for disqualification purposes only. With respect to all other designated employees, the disclosure categories set forth in Appendix B specify which kinds of financial interests are reportable. Such a designated employee shall disclose in his or her statement of economic interests those financial interests he or she has which are of the kind described in the disclosure categories to which he or she is assigned in the Appendix. It has been determined that the financial interests set forth in a designated employee's disclosure categories are the kinds of financial interests which he or she foreseeably can affect materially through the conduct of his or her office.
Section 4. Statements of Economic Interests: Place of Filing.
The code reviewing body shall instruct all designated employees within its code to file statements of economic interests with the agency or with the code reviewing body, as provided by the code reviewing body in the agency's Conflict of Interest Code.2/ The filing officer shall make and retain a copy of all statements filed by officials who manage public investments, and forward the originals of such statements to the Fair Political Practices Commission. The filing officer shall retain the originals of the statements of all other Designated Employees.
Section 5. Statements of Economic Interests: Time of Filing.
A. Initial Statements.
All designated employees employed by the agency on the effective date of this code, as originally adopted, promulgated and approved by the code reviewing body, shall file statements within 30 days after the effective date of this code.
Thereafter, each person already in a position when it is designated by an amendment to this code shall file an initial statement within 30 days after the effective date of the amendment.
1 / Designated employees who are required to file statements of economic interests under any other agency's conflict of interest code, or under Article 2 for a different jurisdiction, may expand their statement of economic interests to cover reportable interests in both jurisdictions, and file copies of this expanded statement with both entities in lieu of filing separate and distinct statements, provided that each copy of such expanded statement filed in place of an original is signed and verified by the designated employee as if it were an original. See Government Code Section 81004. 2 / See Government Code Section 81010 and 2 Cal. Code of Regs. Section 18115 for the duties of filing officers and persons in agencies who make and retain copies of statements and forward the originals to the filing officer.
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B. Assuming Office Statements.
All persons assuming designated positions after the effective date of this code shall file statements within 30 days after assuming the designated positions, or if subject to State Senate confirmation, 30 days after being nominated or appointed.
C. Annual Statements.
Annual statements shall be filed by all Designated Employees on or before April 1 of each year, disclosing any reportable investments, interests in real property, business positions and income held or received during the previous calendar year provided, however, that the period covered by an employee’s first annual statement shall begin on the effective date of the Code or the date of assuming office, whichever is later. If a person reports for military service as defined in the Service member's Civil Relief Act, the deadline for the annual statement of economic interests is 30 days following his or her return to office, provided the person, or someone authorized to represent the person's interests, notifies the filing officer in writing prior to the applicable filing deadline that he or she is subject to that federal statute and is unable to meet the applicable deadline, and provides the filing officer verification of his or her military status.
D. Leaving Office Statements.
Every Designated Employee who leaves office and does not assume another designated position for the City shall file a statement within 30 days after leaving office.
Section 5.5. Statements for Persons Who Resign Prior to Assuming Office.
Any person who resigns within 12 months of initial appointment, or within 30 days of the date of notice provided by the filing officer to file an assuming office statement, is not deemed to have assumed office or left office, provided he or she did not make or participate in the making of, or use his or her position to influence any decision and did not receive or become entitled to receive any form of payment as a result of his or her appointment. Such persons shall not file either an assuming or leaving office statement.
A. Any person who resigns a position within 30 days of the date of a notice from the filing officer shall do both of the following:
1. File a written resignation with the appointing power; and
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2. File a written statement with the filing officer declaring under penalty of perjury that during the period between appointment and resignation he or she did not make, participate in the making, or use the position to influence any decision of the agency or receive, or become entitled to receive, any form of payment by virtue of being appointed to the position.
Section 6. Contents of and Period Covered by Statements of Economic Interests.
A. Contents of Initial Statements.
Initial statements shall disclose any reportable investments, interests in real property and business positions held on the effective date of the code and income received during the 12 months prior to the effective date of the code.
B. Contents of Assuming Office Statements.
Assuming office statements shall disclose any reportable investments, interests in real property and business positions held on the date of assuming office or, if subject to State Senate confirmation or appointment, on the date of nomination, and income received during the 12 months prior to the date of assuming office or the date of being appointed or nominated, respectively.
C. Contents of Annual Statements.
Annual statements shall disclose any reportable investments, interests in real property, income and business positions held or received during the previous calendar year provided, however, that the period covered by an employee's first annual statement shall begin on the effective date of the code or the date of assuming office whichever is later, or for a board or commission member subject to Government code section 87302.6, the day after the closing date of the most recent statement filed by the member to 2 Cal. Code Regs. Section 18754.
D. Contents of Leaving Office Statements.
Leaving office statements shall disclose reportable investments, interests in real property, income and business positions held or received during the period between the closing date of the last statement filed and the date of leaving office.
Section 7. Manner of Reporting.
Statements of economic interests shall be made on forms prescribed by the Fair Political Practices Commission and supplied by the agency, and shall contain the following
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information:
A. Investment and Real Property Disclosure.
When an investment or an interest in real property3/is required to be reported,4/the statement shall contain the following:
1. A statement of the nature of the investment or interest.
2. The name of the business entity in which each investment is held, and a general description of the business activity in which the business entity is engaged.
3. The address or other precise location of the property.
4. A statement whether the fair market value of the investment or interest in real property exceeds $2,000, exceeds $10,000, exceeds $100,000, or exceeds $1,000,000.
B. Personal Income Disclosure.
When personal income is required to be reported,5/the statement shall contain:
1. The name and address of each source of income aggregating $500 or more in value, or $50 or more in value if the income was a gift, and a general description of the business activity, if any, of each source.
2. A statement whether the aggregate value of income from each source, or in the case of a loan, the highest amount owed to each source, was $2,000 or less, greater than $2,000, greater than $10,000, or greater than $1,000,000.
3. A description of the consideration, if any, for which the income was received.
4. In the case of a gift, the name, address, business activity of the donor
3 / For the purpose of disclosure only (not disqualification), an interest in real property does not include the principal residence of the filer.
4 / Investments and interests in real property which have a fair market value of less than $2,000 are not investments and interests in real property within the meaning of the Political Reform Act. However, investments or interests in real property of an individual include those held by the individual's spouse and dependent children as well as a pro rata share of any investment or interest in real property of any business entity or trust in which the individual, spouse and dependent children own, in the aggregate, a direct, indirect or beneficial interest of 10 percent or greater. 5 / A designated employee's income includes his or her community property interest in the income of his or her spouse, but does not include salary or reimbursement for expenses received from a state, local or federal government agency.
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and any intermediary through which the gift was made; a description of the gift; the amount or value of the gift; and the date on which the gift was received.
5. In the case of a loan, the annual interest rate and the security, if any, given for the loan.
C. Business Entity Income Disclosure.
When income of a business entity, including income of a sole proprietorship, is required to be reported,6/the statement shall contain:
1. The name, address, and a general description of the business activity of the business entity;
2. The name of every person from whom the business entity received payments if the filer's pro rata share of gross receipts from such person was equal to or greater than $10,000.
D. Business Position Disclosure.
When business positions are required to be reported, a designated employee shall list the name and address of each business entity in which he or she is a director, officer, partner, trustee, employee, or in which he or she holds any position of management, a description of the business activity in which the business entity is engaged, and the designated employee's position with the business entity.
E. Acquisition or Disposal During Reporting Period.
In the case of an annual or leaving office statement, if an investment or an interest in real property was partially or wholly acquired or disposed of during the period covered by the statement, the statement shall contain the date of acquisition or disposal.
Section 8. Prohibition on Receipt of Honoraria.
A. No member of a state board or commission, and no designated employee of a state of local government agency, shall accept any honorarium from any source, if the member or employee would be required to report the receipt of income or gifts from that source on his or her statement of economic interests. This Section shall
6 / Income of a business entity is reportable if the direct, indirect or beneficial interest of the filer and the filer's spouse in the business entity aggregates a 10 percent or greater interest. In addition, the disclosure of persons who are clients or customers of a business entity is required only if the clients or customers are within one of the disclosure categories of the filer.
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not apply to any part-time member of the governing board of any public institution of higher education, unless the member is also an elected official.
Subdivisions (a), (b), and (c) of Government Code Section 89501 shall apply to the prohibitions in this Section.
This Section shall not limit or prohibit payments, advances, or reimbursements for travel and related lodging and subsistence authorized by Government Code Section 89506.
Section 8.1. Prohibition on Receipt of Gifts in Excess of $500520 No member of a state board or commission, and no designated employee of a state or local government agency, shall accept gifts with a total value of more than $500520 in a calendar year from any single source, if the member or employee would be required to report the receipt of income or gifts from that source on his or her statement of economic interests. This Section shall not apply to any part-time member of the governing board of any public institution of higher education, unless the member is also an elected official.
Subdivisions (e), (f), and (g) of Government Code Section 89503 shall apply to the prohibitions in this Section.
Section 8.2. Loans to Public Officials
A. No elected officer of a state or local government agency shall, from the date of his or her election to office through the date that he or she vacates office, receive a personal loan from any officer, employee, member, or consultant of the state or local government agency in which the elected officer’s agency has direction and control.
B. No public official who is exempt from the state civil service system pursuant to subdivisions (c), (d), (e), (f), and (g) of Section 4 of Article VII of the Constitution shall, while he or she holds office, receive a personal loan from any officer, employee, member, or consultant of the state or local government agency in which the public official holds office or over which the public official’s agency has direction and control. This subdivision shall not apply to loans made to a public official whose duties are solely secretarial, clerical, or manual.
C. No elected officer of a state or local government agency shall, from the date of his or her election to office through the date that he or she vacates office, receive a personal loan from any person who has a contract with the state or which that elected officer’s agency has direction and control. This subdivision shall not apply to loans made by banks or other financial institutions or to any indebtedness created as part of a retail installment or credit card transaction, if the loan is made or the indebtedness created in the lender’s regular course of business
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on terms available to members of the public without regard to the elected officer’s official status.
D. No public official who is exempt from the state civil service system pursuant to subdivisions (c), (d), (e), (f), and (g) of Section 4 of Article VII of the Constitution shall, while he or she holds office, receive a personal loan from any person who has a contract with the state or local government agency to which that elected officer has been elected or over which that elected officer’s agency has direction and control. This subdivision shall not apply to loans made by banks or other financial institutions or to any indebtedness created as part of a retail installment or credit card transaction, if the loan is made or the indebtedness created in the lender’s regular course of business on terms available to members of the public without regard to the elected officer’s official status. This subdivision shall not apply to loans made to a public official whose duties are solely secretarial, clerical, or manual.
E. This section shall not apply to the following:
1. Loans made to the campaign committee of an elected officer or candidate for elective office.
2. Loans made by a public official’s spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such persons, provided that the person making the loan is not acting as an agent or intermediary for any person not otherwise exempted under this section.
3. Loans from a person which, in the aggregate, do not exceed $500 at any given time.
4. Loans made, or offered in writing, before January 1, 1998.
Section 8.3. Loan Terms.
A. Except as set forth in subdivision (B), no elected officer of a state or local government agency shall, from the date of his or her election to office through the date he or she vacates office, receive a personal loan of $500 or more, except when the loan is in writing and clearly states the terms of the loan, including the parties to the loan agreement, date of the loan, amount of the loan, term of the loan, date or dates when payments shall be due on the loan and the amount of the payments, and the rate of interest paid on the loan.
B. This section shall not apply to the following types of loans:
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1. Loans made to the campaign committee of the elected officer.
2. Loans made to the elected officer by his or her spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such person, provided that the person making the loan is not acting as an agent or intermediary for any person not otherwise exempted under this section.
3. Loans made, or offered in writing, before January 1, 1998.
D. Nothing in this section shall exempt any person from any other provision of Title 9 of the Government Code.
Section 8.4. Personal Loans.
A. Except as set forth in subdivision (B), a personal loan received by any designated employee shall become a gift to the designated employee for the purposes of this section in the following circumstances:
1. If the loan has a defined date or dates for repayment, when the statute of limitations for filing an action for default has expired.
2. If the loan has no defined date or dates for repayment, when one year has elapsed from the later of the following:
a. The date the loan was made.
b. The date the last payment of $100 or more was made on the loan.
c. The date upon which the debtor has made payments on the loan aggregating to less than $250 during the previous 12 months.
B. This section shall not apply to the following types of loans:
1. A loan made to the campaign committee of an elected officer or a candidate for elective office.
2. A loan that would otherwise not be a gift as defined in this title.
3. A loan that would otherwise be a gift as set forth under subdivision (A), but on which the creditor has taken reasonable action to collect the balance due.
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4. A loan that would otherwise be a gift as set forth under subdivision (A), but on which the creditor, based on reasonable business considerations, has not undertaken collection action. Except in a criminal action, a creditor who claims that a loan is not a gift on the basis of this paragraph has the burden of proving that the decision for not taking collection action was based on reasonable business considerations.
5. A loan made to a debtor who has filed for bankruptcy and the loan is ultimately discharged in bankruptcy.
C. Nothing in this section shall exempt any person from any other provisions of Title 9 of the Government Code.
Section 9. Disqualification.
No designated employee shall make, participate in making, or in any way attempt to use his or her official position to influence the making of any governmental decision which he or she knows or has reason to know will have a reasonably foreseeable material financial effect, distinguishable from its effect on the public generally, on the official or a member of his or her immediate family or on:
A. Any business entity which the designated employee has a direct or indirect investment worth $2,000 or more;
B. Any real property in which the designated employee has a direct or indirect interest worth $2,000 or more;
C. Any source of income, other than gifts and other than loans by a commercial lending institution in the regular course of business on terms available to the public without regard to official status, aggregating $500 or more in value provided to, received by or promised to the designated employee within 12 months prior to the time when the decision is made;
D. Any business entity in which the designated employee is a director, officer, partner, trustee, employee, or holds any position of management; or E. Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating $500520 or more provided to, received by, or promised to the designated employee within 12 months prior to the time when the decision is made.
Section 9.3. Legally Required Participation.
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No designated employee shall be prevented from making or participating in the making of any decision to the extent his or her participation is legally required for the decision to be made. The fact that the vote of a designated employee who is on a voting body is needed to break a tie does not make his or her participation legally required for purposes of this Section.
Section 9.5 Disqualification of State Officers and Employees.
In addition to the general disqualification provisions of Section 9, no state administrative official shall make, participate in making, or use his or her official position to influence any governmental decision directly relating to any contract where the state administrative official knows or has reason to know that any party to the contract is a person with whom the state administrative official, or any member of his or her immediate family has, within 12 months prior to the time when the official action is to be taken:
A. Engaged in a business transaction or transactions on terms not available to members of the public, regarding any investment or interest in real property; or
B. Engaged in a business transaction or transactions on terms not available to members of the public regarding the rendering of goods or services totaling in value $1,000 or more.
Section 10. Disclosure of Disqualifying Interest.
When a designated employee determines that he or she should not make a governmental decision because he or she has a disqualifying interest in it, the determination not to act must be accompanied by disclosure of the disqualifying interest.
Officials specified in Government Code section 87200, including officials who manage the investment of public funds, must identify conflicts of interests pursuant to 2 Cal. Code of Regs. (Gov’t Code, § 18702.5.)
Section 11. Assistance of the Commission and Counsel.
Any designated employee who is unsure of his or her duties under this code may request assistance from the Fair Political Practices Commission pursuant to Government Code Section 83114 and 2 Cal. Code Regs. Sections 18329 and 18329.5 or from the attorney for his or her agency, provided that nothing in this Section requires the attorney for the agency to issue any formal or informal opinion.
Section 12. Violations.
This code has the force and effect of law. Designated employees violating any
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provision of this code are subject to the administrative, criminal and civil sanctions provided in the Political Reform Act, Government Code Sections 81000-91014. In addition, a decision in relation to which a violation of the disqualification provisions of this code or of Government Code Section 87100 or 87450 has occurred may be set aside as void pursuant to Government Code Section 91003.
Section 13. Legislative or Judicial Amendments.
Automatic Amendment of Code. All amendments or changes to the provisions of the Political Reform Act of 1974, occurring as the result of legislative amendment or judicial decision only, shall automatically and immediately be incorporated into this Code and this Code shall, without further action, thereupon be deemed amended and changed to reflect such legislative or judicial amendment or decision.
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APPENDIX ‘A’
POSITIONS REQUIRED TO REPORT PURSUANT TO
2 CAL. CODE OF REGS. § 18723
The Mayor, Members of the City Council and Planning Commission, the City Manager, the City Attorney, the City Treasurer, and all other City Officials who manage public investments are included in and governed by the Conflict of Interest Code only with respect to disqualification provisions. For purposes of disclosure, the Mayor, Members of the City Council and Planning Commission, the City Manager, the City Attorney, the City Treasurer, and all other City Officials who manage public investments, as defined by 2 Cal.
Code of Regs. § 18720, are subject to the statutory conflict of interest provisions of Article 2 of Chapter 7 of the Political Reform Act of 1974 (Government Code Section 87200 et seq.) and must file Form 700 Statements of Economic Interest. [Reg. § 18730(b)(3)]. It has been determined that the Finance Director manages public investments and is therefore also required to file Statements of Economic Interests pursuant to Government Code Section 87200.
DESIGNATED POSITIONS DISCLOSURE CATEGORIES
ASSIGNED
Administrative Analyst/Senior Administrative
Analyst
4,5
Administrative Services Manager 1, 2, 4
Assistant City Manager 1, 2, 3
Assistant to the City Manager 1, 2, 3
Chief Wastewater Treatment Plant Operator 4, 5
City Planner 1, 2, 4
City Building Official 1, 2, 4
City Engineer 1, 2, 4
City Manager 1, 2, 3
City Clerk Services Manager 1, 2, 3
Code Compliance Supervisor 4, 5
Community Development Director 1, 2, 4
Community Development Inspector/Senior
Community Development Inspector
1, 2, 4
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DESIGNATED POSITIONS DISCLOSURE CATEGORIES
ASSIGNED
Consultant* 1, 2, 3, 4, 5
Economic Development Administrator 1, 2, 4
Economic Development Manager 1, 2, 4
Economic Development and Planning
Manager
1, 2, 4
Economic Development Director 1, 2, 4
Engineering Services Administrator 1, 2, 4
Environmental Services Administrator 1, 2, 4
Executive Assistant to the City Manager 1, 2, 3
Facilities Maintenance Supervisor 4, 5
Facility Maintenance Supervisor 4, 5
Finance Director 1, 2, 3
Finance Director (Assistant) 1, 2, 3
Fleet Maintenance Supervisor 1, 2, 4
Field Services Supervisor 4, 5
General Manager Environmental Services 1, 2, 4
Human Resources Manager 4, 5
Industrial Pre-treatment Superintendent 4, 5
IT Manager 4, 5
IT Superintendent 4, 5
Parks and Recreation Superintendent 4, 5
Parks and Open Space Supervisor 4. 5
*
Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the Code subject to the following limitation:
The City Manager may determine in writing that a particular consultant although a "designated position" is hired to perform a range of duties that are limited in scope and thus is not required to fully comply with the disclosure requirements described in this Section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The City Manager's determination is a public record and shall be retained for public inspection in the same manner and location as this Conflict of Interest Code.
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DESIGNATED POSITIONS DISCLOSURE CATEGORIES
ASSIGNED
Planning and Environmental Services
Administrator
1, 2, 4
Planning and Community Development
Administrator
1, 2, 4
Police Chief 1, 2, 3
Police Captain 4, 5
Police Lieutenant 4, 5
Police Services Supervisor 4, 5
Public Information Officer 4, 5
Public Works Administrator 1, 2, 4
Public Works ManagerSuperintendent 1, 2, 4
Recreation Program Supervisor 4, 5
Senior Community Development Supervisor 4, 5
Transportation Services Administrator 4, 5
Wastewater Treatment Plant Superintendent 4, 5
Wastewater Treatment Plant Supervisor 4, 5
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APPENDIX ‘B’
DISCLOSURE CATEGORIES
The disclosure categories listed below identify the types of investments, business entities, sources of income, or real property, which the designated employee must disclose for each disclosure category to which he or she is assigned.
Category 1: All investments and business positions in, and sources of income from, business entities that do business with the City or own real property within the boundaries of the City, plan to do business with or own real property within the boundaries of the City within the next year, or have done business with or owned real property within the boundaries of the City within the past two (2) years.
Category 2: All interests in real property which are located in whole or in part within, or not more than two (2) miles outside, the boundaries of the City.
Category 3: All investments and business positions in, and sources of income from, business entities that provide services, supplies, materials, machinery, vehicles or equipment of a type purchased or leased by the City.
Category 4: All investments and business positions in, and sources of income from, business entities that provide services, supplies, materials, machinery, vehicles or equipment of a type purchased or leased by the Designated Employee's Department.
Category 5: All investments and business positions in, and sources of income from, business entities subject to the regulatory, permit or licensing authority of the Designated Employee's Department, will be subject to such authority within the next year or have been subject to such authority within the past two (2) years.
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ADDENDUM
DEFINITIONS OF TERMS USED IN
THE CONFLICT OF INTEREST CODE OF THE CITY OF BARSTOW
TABLE OF CONTENTS
Page
1. "Public Official" ................................................................................................... 19
2. "Designated Employee"...................................................................................... 20
3. "Other Public Officials Who Manage Public Investments" .................................. 20
4. "Making Governmental Decisions" ..................................................................... 22
5. "Participating in the Making of Governmental Decisions"................................... 22
6. "Using Official Position to Influence"................................................................... 24
7. "Financial Interest".............................................................................................. 26
8. "Investment" ....................................................................................................... 27
9. "Interest in Real Property" .................................................................................. 28
10. "Real Property Within the Jurisdiction" ............................................................... 28
11. "Income"............................................................................................................. 29
12. "Gift" ................................................................................................................... 31
13. "Material Financial Effect"................................................................................... 34
14. "Business Entity" ................................................................................................ 36
15. "City"................................................................................................................... 36
16. "Council"............................................................................................................. 36
17. "Filing Officer"..................................................................................................... 36
18. "Act".................................................................................................................... 36
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DEFINITIONS
1. "Public Official": Any natural person who is a member, officer, employee or consultant of the City. The term "public official" also includes individuals who perform the same or substantially the same duties as an individual holding an office listed in the Conflict of Interest Code including "other public, officials who manage public investments" as defined in 2 Cal. Code of Regs. Section 18720.
(a) "Member" shall include, but not be limited to, salaried or unsalaried members of boards or commissions with decision-making authority. A board or commission possesses decision-making authority whenever:
(1) It may make a final governmental decision; or
(2) It may compel a governmental decision, or it may prevent a governmental decision either by reason of an exclusive power to initiate the decision or by reason of a veto which may not be overridden; or
(3) It makes substantive recommendations, which are, and over an extended period of time have been, regularly approved without significant amendment or modification by a designated employee or the City. [Reg. 18700(a)] (b) "Consultant" means an individual who, pursuant to a contract with the City:
(1) Makes a governmental decision whether to:
(A) Approve a rate, rule, or regulation;
(B) Adopt or enforce a law;
(C) Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
(D) Authorize the City to enter into, modify, or renew a contract
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provided it is the type of contract, which requires City approval; (E) Grant City approval to a contract which requires City approval and in which the City is a party or to the specifications for such a contract;
(F) Grant City approval to a plan, design, report, study, or similar item;
(G) Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or (2) Serves in a staff capacity with the City and in that capacity performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code. [Reg. 18700(a)(2)]
2. "Designated Employee": Any official of the City whose position is so designated in the Appendix of the City's Conflict of Interest Code. The Appendix sets forth those positions which entail the making or participation in the making of decisions which may foreseeably have a material financial effect on any financial interest, but does not include any unsalaried member of any board or commission which serves a solely advisory function. (82019)
3. "Other Public Officials Who Manage Public Investments":
(a) As used in the City's Conflict of Interest Code, this term means:
(1) Members of boards or commissions, including pension and retirement boards or commissions, or of committees thereof, who exercise responsibility
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for the management of public investments;
(2) High-level officers and employees of the City who exercise primary responsibility for the management of public investments, such as chief or principal investment officers or chief financial managers. This definition shall not include officers and employees who work under the supervision of the chief or principal investment officers or the chief financial managers; and
(3) Individuals who, pursuant to a contract with the City, perform the same or substantially all the same functions that would otherwise be performed by the public officials described in this definition.
(b) The following definitions shall apply to this Section:
(1) "Public Investments" means the investment of public moneys in real estate, securities, or other economic interests for the production of revenue or other, financial return.
(2) "Public Moneys" means all moneys belonging to,
received by, or held by the City, or by an officer thereof acting in his or her official capacity, and includes the proceeds of all bonds and other evidence of indebtedness, trust funds held by public pension and retirement systems, deferred compensation funds held for investments by public agencies, and public moneys held by a financial institution under a trust indenture to which the City is a party.
(3) "Management of public investments" means the
following non-ministerial functions:
(A) Directing the investment of public moneys;
(B) Formulating or approving investment policies;
(C) Approving or establishing guidelines for asset
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allocations; or
(D) Approving investment transactions.
Those public officials coming within the definition contained in Subsection (a) above are subject to the conflict-of-interest disclosure requirements of Article 2, Chapter 7 of the Political Reform Act and must file a Form 700 Statement of Economic Interests.
4. "Making Governmental Decisions": A public official "makes a governmental decision," except as provided in Definition 5 (b) herein, when the official, acting within the authority of his or her office or position:
(a) Votes on a matter;
(b) Appoints a person;
(c) Obligates or commits the City to any course of action; (d) Enters into any contractual agreement on behalf of the City; (e) Determines not to act, within the meaning of Subsections (a), (b), (c), and (d), unless such determination is made because of the official's financial interest.
When the determination not to act occurs because of the official's financial interest, the official's determination must be accompanied by disclosure of the financial interest, made a part of the City's official record or made in writing to the official's supervisor, appointing power, or to any other person specified in the City's Conflict of Interest Code. [Reg. 18700(b)]
5. "Participating in the Making of Governmental Decisions":
(a) A public official "participates in the making of a governmental decision," except as provided in Subsection (b) of this definition, when he or she, acting within the
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authority of his or her office or position:
(1) Negotiates, without significant substantive review, with a governmental entity or private person regarding the decision to:
(A) Approve a rate, rule, or regulation;
(B) Adopt or enforce a law;
(C) Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement;
(D) Authorize the City to enter into, modify, or renew a contract provided it is the type of contract, which requires City approval; (E) Grant City approval to a contract which requires City approval and in which the City is a party or to the specifications for such a contract;
(F) Grant City approval to a plan, design, report, study, or similar item;
(G) Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or (2) Advises or makes recommendations to the decision-maker, either directly or without significant intervening substantive review, by:
(A) Conducting research or making any investigation which requires the exercise of judgment on the part of the official and the purpose of which is to influence a governmental decision referenced in Subsection 5(a)(1), above; or
(B) Preparing or presenting any report, analysis, or opinion, orally,
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or in writing, which requires the exercise of judgment on the part of the official and the purpose of which is to influence a governmental decision referenced in Subsection 5(a)(1), above. [Reg. 18700(c)] (b) Making or participating in the making of a governmental decision shall not include:
(1) Actions of officials which are solely ministerial, secretarial, manual or clerical;
(2) Appearances by a public official as a member of the general public before the City in the course of its prescribed governmental function to represent himself or herself on matters related solely to the official's personal interests; or (3) Actions by public officials, employees, or employee representatives relating to their compensation or the terms or conditions of their employment or contract.
In the case of public officials who are "consultants," as defined above, this includes actions by consultants relating to the terms or conditions of the contract pursuant to which they provide services to the City, so long as they are acting in their private capacity. [Reg. 18700(d)]
6. "Using Official Position to Influence":
(a) An official is attempting to use his or her official position to influence the decision if, for the purpose of influencing the decision, the official contacts, or appears before, or otherwise attempts to influence, any member, officer, employee or consultant of the City. Attempts to influence, include but are not limited to, appearances or contacts by the official on behalf of a business entity, client, or customer. (b) Notwithstanding Subsection (a) of this definition an official is not attempting
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to use his or her official position to influence a governmental decision of the City if the official:
(1) Appears in the same manner as any other member of the general public before the City in the course of its prescribed governmental function solely to represent himself or herself on a matter which is related to his or her personal interests.
An official's "personal interests" include, but are not limited to:
(A) An interest in real property which is wholly owned by the official or members of his or her immediate family;
(B) A business entity wholly owned by the official or members of his or her immediate family; or
(C) A business entity over which the official exercises sole direction and control, or over which the official and his or her spouse jointly exercise sole direction and control.
(2) Communicates with the general public or the press.
(3) Negotiates his or her compensation or the terms and conditions of his or her employment contract,
(4) Prepares drawings or submissions of an architectural, engineering or similar nature to be used by a client in connection with a proceeding before the City.
However, this provision applies only if the official has no other direct oral or written contact with the City with regard to the client's proceeding before the City except for necessary contact with City staff concerning the processing or evaluation of the drawing or submissions prepared by the official.
(5) Appears before a design or architectural review committee or similar body of which he or she is a member to present drawings, or submissions of an
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architectural, engineering or similar nature which the official has prepared for a client if the following three criteria are met:
(A) The review committee's sole function is to review architectural or engineering plans or designs and to make recommendations in that instance concerning those plans or designs to a planning commission or other agency;
(B) The ordinance or other provision of law requires that the review committee include architects, engineers or persons in related professions, and the official was appointed to the body to fulfill these requirements; and
(C) The official is a sole practitioner.
(c) With regard to a governmental decision which is within or before the City not covered by Subsection (a) of this definition, the official is attempting to use his or her official position to influence the decision if, for the purpose of influencing the decision, the official acts or purports to act on behalf of, or as the representative of, the City to any member, officer, employee or consultant of an agency. Such actions include, but are not limited to the use of official stationery. [Reg. 18700.1]
7. "Financial Interest": A public official has a financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the following:
(a) Any business entity in which the public official has a direct or indirect investment worth $2,000 or more;
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(b) Any real property in which the public official has a direct or indirect interest worth $2,000 or more;
(c) Any source of income, other than gifts and other than loans by a commercial lending institution in the regular course of business on terms available to the public without regard to official status, aggregating $250 or more in value provided to, received by or promised to the public official within 12 months prior to the time when the decision is made; or
(d) Any business entity in which the official is a director, officer, partner, trustee, employee, or holds any position of management; or
(e) Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating [$500520] or more in value provided to, received by, or promised to the public official within 12 months prior to the time when the decision is made. (f) "Indirect Investment or Interest": Any investment or interest owned by the spouse or dependent child of a public official, held or owned by an agent on behalf of a public official, or by a business entity or trust in which the official, the officials agents, spouse and dependent children own directly, indirectly or beneficially a 10% interest or greater. (87103).
8. "Investment": Any financial interest in or security issued by a business entity, including but not limited to common stock, preferred stock, rights, warrants, options, debt instruments and any partnership or other ownership interest owned directly, indirectly or beneficially by the public official, or other filer or his or her immediate family, if the business entity or any parent, subsidiary or otherwise related business entity has an interest in real property within the jurisdiction, or does business or plans to do business within the
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jurisdiction, or has done business within the jurisdiction at any time during the two years prior to the time any statement or other action is required under the City's Conflict of Interest Code. No asset shall be deemed an investment unless its fair market value equals or exceeds $2,000.
"Investment" does not include a time or demand deposit in an financial institution, shares in a credit union, any insurance policy, interest in a diversified mutual fund registered with the Securities and Exchange Commission under the Investment Company Act of 1940 or a common trust fund which is created pursuant to Section 1564 of the Financial Code, or any bond or other debt instrument issued by any government or government agency.
Investments of an individual include a pro rata share of investments of any business entity, mutual fund, or trust in which the individual or immediate family owns, directly, indirectly or beneficially, a 10% interest or greater. (82034)
9. "Interest in Real Property": Includes any leasehold, beneficial or ownership interest or an option to acquire such an interest in real property located within the jurisdiction owned directly, indirectly or beneficially by the public official, or other filer, or his or her immediate family if the fair market value of the interest is $2,000 or more. Interests in real property of an individual include a pro rata share of interests in real property of any business entity or trust in which the individual or immediate family owns, directly, indirectly or beneficially, a 10% interest or greater. (82033)
10. "Real Property Within the Jurisdiction": Jurisdiction is the region, county, city, district, or other geographical area in which the City has control. Real Property shall be
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deemed to be "within the jurisdiction" with respect to the local government agency if the property or any part of a parcel of real property is located within or not more than two miles outside the boundaries of the jurisdiction of the City or within two miles of any land owned or used by the City. (82035)
11. "Income":
(a) "Income" means, except as provided in Subsection (b) , a payment received, including but not limited to any salary, wage, advance, dividend, interest, rent, proceeds of any sale, gift, including any gift of food or beverage, loan, forgiveness or payment of indebtedness received by filer, reimbursement for expenses, per diem, or contribution to an insurance or pension program paid by any person other than an employer, and including any community property interest in income of a spouse. Income also includes an outstanding loan. Income of an individual also includes a pro rata share of any income of any business entity or trust in which the individual or spouse owns, directly, indirectly, or beneficially, a 10% interest or greater.
(b) "Income," other than a gift, does not include:
(1) Income received from any source outside the jurisdiction and not doing business within the jurisdiction, not planning to do business within the jurisdiction, or not having done business within the jurisdiction during the two years prior to the time any statement or other action is required;
(2) Campaign contributions required to be reported under Chapter 4 of the Political Reform Act of 1974;
(3) Salary and reimbursement for expenses or per diem received from a state, local or federal government agency and reimbursement for travel expenses and per
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diem received from a bona fide non-profit entity;
(4) Any devise or inheritance;
(5) Interest, dividends or premiums on a time or demand deposit in a financial institution, shares in a credit union or any insurance policy, payments received under any insurance policy, or any bond or other debt instrument issued by any government or government agency;
(6) Dividends, interest or any other return on a security which is registered with the Securities & Exchange Commission of the United States government or a commodity future registered with the Commodity Futures Trading Commission of the United States government, except proceeds from the sale of these securities and commodities futures;
(7) Redemption of a mutual fund;
(8) Alimony or child support payments;
(9) Any loan or loans from a commercial lending institution which are made in the lender's regular course of business on terms available to members of the public without regard to official status if the proceeds thereof are used to purchase, refinance the purchase of, or for improvements to, the principal residence of the filer or the balance owed does not exceed $10,000;
(10) Any loan from or payments received on a loan made to an individual's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-inlaw, sister-in-law, nephew, niece, uncle, aunt or first cousin, or the spouse of any such person, provided that a loan or loan payment received from any such person shall be considered income if the lender is acting as an agent or intermediary for any person not covered by this paragraph;
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(11) Any indebtedness created as part of a retail installment or credit card transaction if made in the lender's regular course of business on terms available to members of the public without regard to official status, so long as the balance owed to the creditor does not exceed $10,000;
(12) Payments received under a defined benefit pension plan qualified under Internal Revenue Code Section 401(a).
(13) Proceeds from the sale of securities registered with the Securities and Exchange Commission of the United States government or from the sale of commodities futures registered with the Commodity Futures Trading Commission of the United States government if the filer sells the securities or the commodities futures on a stock or commodities exchange and does not know or have reason to know the identity of the purchaser.
12. "Gift":
(a) Except as provided in Subsection (b), any payment that confers a personal benefit on the recipient, to the extent that consideration of equal or greater value is not received and includes a rebate or discount in the price of anything of value unless the rebate or discount is made in the regular course of business to members of the public without regard to official status. Any person, other than a defendant in a criminal action, who claims that a payment is not a gift by reason of receipt of consideration has the burden of proving that the consideration received is of equal or greater value. [82028] (b) None of the following is a gift and none subject to any limitation on gifts:
(1) Informational material serving primarily to convey information and which is provided to an official for the purpose of assisting him or her in the performance of
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his or her official duties or of the elective office he or she seeks. Informational material may include:
(A) Books, reports, pamphlets, calendars, periodicals, videotapes, or free or discounted admission to informational conferences or seminars;
(B) Scale models, pictorial representations, maps, and other such items, provided that where the item has a fair market value in excess of [$500520], the burden shall be on the official to demonstrate that the item is information material;
(C) On-site demonstrations, tours or inspections designed specifically for the purpose of assisting the recipient public officials or candidates in the performance of either their official duties or of the elective office they seek.
No payment for travel or reimbursement for any expenses shall be deemed "informational material."
(2) Gifts which are not used and which, within 30 days after receipt or acceptance, are returned to the donor or delivered to a charitable organization or government agency without being claimed as a charitable contribution or deduction for tax purposes.
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(3) Gifts for which, within 30 days after receipt or acceptance, reimbursement is made to the donor, or the donor's agent or intermediary, for all or a portion of the gift. In such event the value of the gift is reduced by the amount of the reimbursement, and the amount of any gift or activity expense which must be disclosed by the official or donor also is reduced by the amount of the reimbursement. (4) Gifts from an individual's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any such person provided that a gift from any such person shall be considered a gift if the donor is acting as an agent or intermediary for any person not covered by this paragraph.
(5) Campaign contributions required to be reported under Chapter 4 of the Act.
(6) Any devise or inheritance.
(7) Personalized plaques and trophies with an individual value of less than $250.
(8) Hospitality (including food, beverages, or occasional lodging) provided by an individual in his or her home when the individual or a member of the individuals family is present.
(9) Presents exchanged between an official who is required to file a statement of economic interests and an individual, other than a lobbyist, on holidays, birthdays, or similar occasions provided that the presents exchanged are not substantially disproportionate in value.
(10) Free admission, and refreshments and similar non-cash nominal benefits provided to a filer during the entire event at which the filer gives a speech,
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participates in a panel or seminar, or provides a similar service, and actual intrastate transportation and any necessary lodging and subsistence provided directly in connection with the speech, panel, seminar, or service, including but not limited to meals and beverages on the day of the activity. These items are not payments and need not be reported by any filer.
(11) The transportation, lodging, and subsistence specified by 2 Cal. Code of Regs. Sections 18950, et seq.
(12) Wedding gifts and gifts exchanged between individuals on birthdays, holidays, and other similar occasions, provided that the gifts exchanged are not substantially disproportionate in value. [Reg. 18942]
(13) Any gift that is permissible under the regulations of the Fair Political Practices Commission (2 Cal. Code of Regs. § 18110, et seq.), as amended.
13. "Material Financial Effect": The financial effect of a governmental decision on a financial interest of a public official is material if, at the time the official makes or participates in making the decision, the decision will have a significant effect on the official or the officials immediate family, or on the source of income, the source of gifts, the business entity, or real property, which is an economic interest of the official.
The following rules shall apply in determining whether it is reasonably foreseeable that the effects of a governmental decision will be significant:
(a) Material Financial Effect -- Specific Rules. The following regulations, governing specific types of governmental decisions which affect certain specific types of economic interests, shall be utilized in determining whether the reasonably foreseeable effects of the decision will be material with respect to the economic interest.
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(1) Economic Interests Directly Involved in the Decision -- Cal. Code of Regs. Section 18702.1.
(2) Economic Interests Indirectly Involved in the Decision:
(A) Business entities -- Cal. Code of Regs. Section 18702.2; (B) Ownership interests in real property -- Cal. Code of Regs.
Section 18702.3;
(C) Leasehold interests in real property -- Cal. Code of Regs.
Section 18702.4;
(D) Nonprofit source of income -- Cal. Code of Regs. Section 18702.5; and
(E) Individual source of income -- Cal. Code of Regs. Section 18702.6.
In order to determine if a decision's effect is material, it must first be determined if the official's economic interest is directly involved and the effect of the decision is material under Cal. Code of Regs. Section 18702 1. If the official's economic interest is not directly involved in the decision, or the effect of the decision is not material under Cal. Code of Regs. Section 18702.1, then it must be determined if the effect is material under the appropriate regulation of Cal. Code of Regs. Sections 18702.2 through 18702.6. [Reg. 18702(a)]
(b) Material Financial Effect General Rule. Whenever the specific provision of Cal. Code of Regs. Sections 18702.1 through 18702.6, inclusive, cannot be applied, the following general rule shall apply:
The financial effect of a governmental decision is material if the decision will have a significant effect on the official or a member of the official’s immediate family, or on the
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source of income, the source of gifts, the business entity, or the real property, which is an economic interest of the official. [Reg. 18702(b)]
(c) Public Generally Exception. Notwithstanding any determination that the reasonably foreseeable effect of a decision is material under this regulation or under Cal.
Code of Regs. Sections 18702.1 through 18702.6, an official is not disqualified from participation in a governmental decision if the decision affects the official's interest in a manner which is not distinguishable from the manner in which the decision will affect the public generally. [Reg. 18702(c)]
14. "Business Entity": Any organization or enterprise operated for profit, including but not limited to, a proprietorship, partnership, firm, business trust, joint venture, syndicate, corporation or association. (82005)
15. "City": City of Barstow.
16. "Council": City Council of Barstow.
17. "Filing Officer": The filing officer is the person who receives and retains original statements of economic interests with duties as set forth in Cal. Code of Regs. Section 18115. The filing officer shall also be the filing official for statements filed by Members of the Council, Candidates for Members of the Council, and all other public officials who manage public investments.
The filing officer/official for the City of Barstow shall be the City Clerk.
18. "Act": Political Reform Act of 1974, Government Code Section 81000 et seq.