T-32754\ BFCPP COI Applicant MEMO
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TO: HONORABLE MAYOR AND CITY
COUNCIL
FROM: Nora Frimann
City Attorney
SUBJECT: Board of Fair Campaign and
Political Practices Applicants:
Conflicts of Interest
DATE: March 10, 2023
BACKGROUND
The City Council will interview applicants for the San José Board of Fair Campaign and Political Practices (“BFCPP”) to fill any vacancies.
This office routinely reviews applications to City Boards, Commissions and Committees.
Although the applications do not provide complete information, they do occasionally disclose potential conflicts of interest or incompatible offices. The purpose of this memorandum is to highlight major areas of potential conflict that are disclosed by the applications. In order to analyze potential conflicts, it is necessary to consider the duties of the particular commission or committee to which the applicant is seeking appointment.
DUTIES
The BFCPP is a five-member commission established to:
• Monitor compliance with all campaign, lobbying and ethics ordinances in the San José Municipal Code (See SJMC Title 12);
• Investigate complaints and issue findings where appropriate, including fines; and • Recommend changes to campaign, lobbying, and ethics regulations and policies.
MEMBERSHIP REQUIREMENTS
BFCPP members must be appointed by a two-thirds vote of the City Council and selected by the same procedure of application and public interview used for the Planning Commission. (SJMC §2.08.1610.) BFCPP members may also be removed by two-thirds vote of the City Council for any reason or no reason. (SJMC §2.08.1640.)
BFCPP members must have some demonstrated familiarity and experience with campaign laws and should be representative of the community. (SJMC §2.08.1630(A).) They also have special eligibility requirements, which may result in a vacancy or removal
HONORABLE MAYOR AND CITY COUNCIL
Mar. 10, 2023
Subject: Board of Fair Campaign and Political Practices Applicants
BFCPP COI Applicant MEMO
if not followed. (SJMC §2.08.1630, see also SJMC §2.08.050.) BFCPP members must be qualified electors of the City and may not hold elected public office; publicly en dorse any candidate for City office; engage in political or campaign activity on behalf of any candidate for City office; or be employed by or have any contractual relationship with any candidate for City office. (SJMC §2.08.1630(A)(C)(E)(F).) Further, no member can participate as a candidate in any election for public office for a period of one year before and after tenure on the Board. (SJMC §§2.08.1630(D).) Finally, no member may be employed by the City or have any direct and substantial financial interest in any business, work or official action taken by the City. (SJMC §§2.08.1630(B).)
LEGAL CONFLICTS THAT MAY PRECLUDE VOTE OR PARTICIPATION
Certain positions may preclude a commissioner from participating in a commission discussion or from voting on a matter if there is a conflict. While this list is not complete, conflicts usually fall within the following situations:
• An application shows entities that are “sources of income” to a potential commissioner within the 12 months preceding the start of the commission term, as defined under the Political Reform Act.
• An application shows sources of income to a spouse or Domestic Partner of a potential commissioner within the 12 months preceding the start of the commission term.
• An applicant or the spouse or Domestic Partner of an applicant, is an Officer or Board Member of an entity and it is foreseeable that the entity could be involved in a matter coming before the commission.
In each of these instances, the commissioner may be required to recuse himself or herself if a matter comes before the Commission affecting the above interests. A Commissioner’s employer, or the employer of the Commissione r’s spouse, is generally considered a source of income to the Commissioner such that the Commissioner will have to recuse himself or herself from taking part in the Commission’s decision on a matter if the decision will have a foreseeable financial effect on the employer.
APPEARANCE OF BIAS
There may also be facts which would not amount to a legal conflict of interest, but still require recusal because certain relationships may create an appearance of bias. City Council policy requires commissioners to be free from bias in their decision mak ing and may require recusal if the facts could reasonably lead one to conclude that the commissioner would be biased for or against an entity or entities.
HONORABLE MAYOR AND CITY COUNCIL
Mar. 10, 2023
Subject: Board of Fair Campaign and Political Practices Applicants
BFCPP COI Applicant MEMO
APPLICANTS
Ebert, Gregory: Applicant applied on February 16, 2023. Applicant is a resident of District 6 in San Jose and is employed as a Social Science Teacher with East Side Union School District. The Applicant reports previous involvement as an intern with the Office of the Governor of the State of Oregon. The Applicant indicated that as an AP Gov ernment Teacher, they are familiar with state laws, and have previously volunteered on past campaigns. It appears that the Applicant’s experience may satisfy the special eligibility requirement to demonstrate familiarity and experience with campaign laws. The Applicant does not hold an incompatible office.
Jain, Kashvi: The Applicant applied on February 23, 2023. The Applicant is a resident of District 10 in San Jose and is not currently employed. The Applicant reported involvement as a student representat ive and intern for the election campaign of Rishi Kumar. In response to the special eligibility question concerning familiarity or experience with campaign laws, the Applicant responded that they have minimal familiarity or experience.
Based on this respon se, it is unclear if the Applicant’s minimal familiarity or experience with campaign laws would satisfy the special eligibility requirement to demonstrate such familiarity. The Applicant does not hold an incompatible office.
Tadimeti, Venkata Naga Vasundhara: The Applicant applied on February 16, 2023. The Applicant is a resident of District 10 in San Jose and is self employed as a pet care provider. The Applicant’s spouse is employed as an engineer with Juniper Networks in Cupertino.
The Applicant reports past and current community involvement with the Bret Harte School PTA and the Girl Scouts of America. The Applicant also reported involvement as a volunteer for a Mayoral campaign whereby they became familiar with campaign laws.
Based on this res ponse, it appears the Applicant may satisfy the special eligibility requirement to demonstrate familiarity or experience with campaign laws. The Applicant does not hold an incompatible office.
Space, Lee: Applicant applied on January 6, 2023. Applicant is a resident of District 9 in San Jose and is currently employed as the Director of Tech Partnerships with Palo Alto Networks. The Applicant reports past and current community involvement with the Blues Board, Hudson Valley Blues Society, and a group listed as the “CAAC.” The Applicant’s employment and community involvement history does not specifically address the special eligibility requirement to demonstrate familiarity and experience with campaign laws. The Applicant does not hold an incompatible office.
HONORABLE MAYOR AND CITY COUNCIL
Mar. 10, 2023
Subject: Board of Fair Campaign and Political Practices Applicants
BFCPP COI Applicant MEMO
CONCLUSION
The Council may wish to consider the above comments in making its recommendations regarding appointments to the BFCPP.
NORA FRIMANN
City Attorney
By_/s/_Matthew Tolnay (electronically signed)______
Matthew Tolnay
Deputy City Attorney
cc: Jennifer Maguire, City Manager
Toni J. Taber, City Clerk