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MATTHEW T. SUMMERS | 213-542-5719 | [email protected]
790 E. COLORADO BOULEVARD, SUITE 850, PASADENA, CALIFORNIA 91101-2109 | (213) 542-5700 GRASS VALLEY | PASADENA | SACRAMENTO | SOLANA BEACH | SONOMA
MEMORANDUM
TO: Councilmember Marilyn-Dyer Kruse
City of Barstow
DATE: May 31, 2024
FROM: Matthew T. Summers, City Attorney
Taylor M. Anderson, Assistant City
Attorney
RE: Conflict of Interest Analysis - Rules and Policy Committee Review of Planning Commission Policies and Ordinance
INTRODUCTION AND BACKGROUND
The City Council established the Rules and Policies Committee on January 16, 2007 to recommend ordinance language, code revisions, and City policy as referred by the City Council or City Manager. The Committee is an advisory standing committee to the City Council. The Committee consists of two City Council members with technical support from City Manager staff. The Committee meets monthly and when considered necessary by staff. Committee members include Councilmember Barbara Rose and Councilmember Dyer-Kruse.
The Committee is tasked with reviewing rules for the conduct of Planning Commission meetings, proceedings, and business and the ordinance regulating the Planning Commission - Barstow Municipal Code Ch. 2.24 (“Planning Commission”).
You and your husband’s property, and the current location of your residence, were acquired by BNSF for the Barstow International Gateway (BIG) development. The BIG development is roughly a 4,500-acre new integrated rail facility on the west side of Barstow, consisting of a rail yard, intermodal facility and warehouses for transloading freight from international containers to domestic containers.
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You bought vacant land adjacent to the BIG development. You plan to transport your house and personal property to the vacant land within the next year. While you await the transport of your house, you’ve arranged to rent-back your land and residence from BNSF. Included in your personal property are five transportation containers.
The containers were legally placed on at your current residence before the adoption of the BMC section 19.24.035, which established that transportation containers require a conditional use permit and are allowed only in certain zoning districts and subject to certain conditions.
On October 23, 2023, your husband sought a variance from the Planning Commission to place the five containers from your current residence at your new property zoned diverse use. A variance is needed because the BMC only allows transportation containers on commercial, industrial, and public facility zoned properties and your property is zoned diverse use. The variance was granted by the Planning Commission subject to several conditions, including that a conditional use permit for the containers was approved by the Planning Commission before the containers were placed on the vacant land.
On May 13, 2024 and May 28, 2024, the Planning Commission held hearings to consider approval of the relocation of the five transportation containers and constructing a 7,992 square foot accessory structure to house the containers. The Planning Commission continued the hearing to June 10th.
As discussed below, you do not have a material conflict that would prevent you from participating in a discussions or a decision by the Rules and Policy Committee to recommend changes to the Planning Commission’s policies and ordinance. So you do not have to recuse yourself from the Committee for these discussions.
You have a disqualifying conflict of interest in any appeal related to your husband’s permit application for the real property you own that may come before the City Council. If your husband appeals a Planning Commission decision, you must recuse yourself from participating in the hearing as a Councilmember.
POLITICAL REFORM ACT
Under the Political Reform Act, public officials shall not “make, participate in making or in any way attempt to use his official position to influence a governmental May 31, 2024
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decision in which he knows or has reason to know he has a financial interest.”1 A public official has a financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect on a public official’s interests, or a member of the official’s immediate family, that is distinguishable from its effect of the public generally.2 The Act defines a public official’s “immediate family” as the official’s spouse and dependent children.3 One interest defined as having a material financial effect on an official’s interests is “any real property in which the public official has a direct or indirect investment worth two thousand dollars ($2,000) or more.”4 You have a financial interest in the vacant land you and your husband own. As your husband is seeking a conditional use permit for placing five transportation containers and an accessory structure on your vacant land, you have a disqualifying conflict of interest in any appeal that may come to the City Council regarding the conditional use permit. If your husband appeals a Planning Commission’s decision about permits for your property to the City Council, you must recuse yourself from the decision by announcing your conflict of interest on the record of the meeting and leaving the room before consideration of the item.
However, the question is whether you have a conflict of interest in decisions of Rules and Policies Committee to recommend changes to Planning Commission Resolution 467 and BMC Ch. 2.24.
NO FINANCIAL INTEREST IN DECISIONS OF THE COMMITTEE RELATED
TO THE PLANNING COMMISSION
The authority of the Committee is limited to making recommendations about ordinances language, code revisions and City policy to the full City Council. The Committee’s recommended changes to the Planning Commission’s policies and ordinance is limited to the conduct of Planning Commissioners and regulations that apply to the Planning Commission. The Committee is not changing policy related to permits approved by the Planning Commission or conditions placed on permits. So there is no foreseeable way the Committee’s decision on Planning Commission’s policies could materially affect your husband’s permit pending before the Commission. 1 Gov. Code, § 87100.
2 Gov. Code, § 87103.
3 Gov. Code, § 82029.
4 Gov. Code, § 87103, subd. (b).
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Even if the Committee’s recommendation was related to the City’s policies and ordinances related to conditional use permits, it would not apply retroactively to your husband’s application for a permit which is actively pending before the Planning Commission.
Further, a decision by the Committee to recommend policy on the Commission’s decisions about conditional use permits would likely fall within the “public generally exception” in the Political Reform Act. The public generally exception applies when a decision’s financial effect on an official’s financial interest does not differ from its effect on the pubic generally if the official shows that a “significant segment” of the public is affected and the “effect on the official’s interest is not unique” compared to the significant segment.5
A significant segment of the public is defined, in part, as at least 25 percent of all real property, commercial real property, or residential real property within the official’s jurisdiction6 or at least 15 percent of residential real property within the official's jurisdiction if the only interest an official has in the governmental decision is the official's primary residence.7
As a decision about the policies related to duties and conduct of the Planning Commission have no possibility of effecting your husband’s conditional use permit application pending before the Planning Commission, you do not have a financial interest in decisions of the Committee to recommend changes to the Planning Commission’s policies and ordinance. Thus, you need not recuse yourself from the Committee or participating in discussions or decisions about the Committee’s recommendation to the City Council regarding the Planning Commission Resolution 467 or BMC Ch. 2.24.
CONCLUSION
There are no facts to support that you have a disqualifying financial interest in decisions related to the Planning Commission’s policies and ordinance due to your husband’s pending permit application before the Planning Commission. So your do not have to recuse yourself from the Rules and Policies Committee for decisions related to the Planning Commission’s policies and ordinance.
5 Cal. Code Regs. tit. 2, § 18703
6 Cal. Code Regs. tit. 2, § 18703(b)(1)(B)
7 Cal. Code Regs. tit. 2, § 18703(b)(2)
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You have a disqualifying conflict of interest in any appeal related to your husband’s permit application for the real property you own that may come before the City Council. If your husband appeals a Planning Commission decision, you must recuse yourself from participating in the hearing.
We must note we give this advice as City Attorney and that the City is our client, not you individually. There is no attorney-client confidentiality in reviewing conflicts of interest with the City Attorney’s Office and thus, our advice is available to the City. If you wish to receive confidential legal advice directed to you alone, you will need to consult your own attorney. You may not consider that necessary, but we must make you aware of the option. Unlike formal advice from the Fair Political Practices Commission (“FPPC”), our advice cannot immunize you from enforcement actions for violations of the Political Reform Act.
If you would like to seek formal advice from the FPPC regarding your potential participation in a governmental decision about your husband’s pending permit application, we can assist. A formal advice letter can provide the requestor immunity from enforcement actions by the FPPC. It also provides evidence of good faith conduct in any relevant civil or criminal proceeding brought by another party, so long as the facts presented in the request for advice are correct and the requestor follows the guidance given in the FPPC’s advice letter. Formal advice from the FPPC can take several weeks.
Please contact us if you would like to discuss the contents of this memo, or if you have questions.