Ethics Commission
City and County of San Francisco

Advice Letter – July 20, 2001 – Tim Kelley – Contracts with the City

July 20, 2001

Tim Kelley

4104 24th Street #120

San Francisco, CA 94114

Re: Request for Opinion Concerning Contracting with the City

Dear Mr. Kelley:

You requested the Ethics Commission's interpretation of the Prohibition on Contracts with the City Ordinance, San Francisco Campaign and Governmental Conduct Code

§ 3.200 ("Ordinance"), which bars members of appointed boards and commissions, other than advisory bodies, from contracting with the City and other agencies.

The Ethics Commission provides two kinds of advice: written formal opinions and informal advice. S.F. Charter § C3.699-12. Written formal opinions are available to individuals who request advice about their responsibilities under local laws. Formal opinions provide the requester immunity from subsequent enforcement action if the material facts are as stated in the request for advice, and if the District Attorney and City Attorney concur in the advice. See id. Informal advice does not provide similar protection. See id.

Because you seek advice regarding specific actions that you may take in the future, the Commission is treating your question as a request for a formal opinion.

Question

You asked the Ethics Commission to consider the following question:

As an appointed member of the San Francisco Landmarks Preservation Advisory Board ("Board"), and as a designated filer of an annual Statement of Economic Interests ("SEI"), may you contract with the City, the Port of San Francisco, the San Francisco Redevelopment Agency, the San Francisco Housing Authority, the San Francisco Unified School District, and the San Francisco Community College District?

Summary of Advice

Because you are a member of an advisory board, and advisory boards are specifically exempt from the Ordinance, you are not barred from seeking a personal services contract with the City and the listed agencies. The requirement that members of the Board file an SEI does not change this finding.

Background

You provided the Ethics Commission with the following information:

You are an architectural historian and historic resources consultant who has provided pro bono professional services to the City. You serve on the Landmarks Preservation Advisory Board. You ask if you may contract with the City to provide architectural historian services for historic resource surveys. You indicate that such surveys are sometimes required under Section 106 of the National Historic Preservation Act and for the preparation of Environment Impact Statements ("EIS's") and Reports ("EIRs"). You would like to "freely bid" on contracts to provide architectural historian services with the City, the Port of San Francisco, the San Francisco Redevelopment Agency, the San Francisco Housing Authority, the San Francisco Unified School District, and the San Francisco Community College District. You state that should you be permitted to bid on such service contracts, you will recuse yourself from consideration of those section 106 reviews and EIS's and EIRs on which you worked that come to the Board's attention.

You also state that as a member of the Board, you are required to file an annual Statement of Economic Interest. As a designated filer, you are concerned that you would be deemed a public official with decision-making authority such that you would be subject to the contracting ban under the Ordinance. You asked the Ethics Commission to clarify how the apparent ambiguity between your being a member of an advisory board and your being required to file an SEI affects your ability to contract with the City under the Ordinance.

Discussion

A. The General Prohibition Against Contracting with the City

The Prohibition on Contracts with the City Ordinance provides:

No member of a Board or Commission of the City and County shall, during his or her term of office, contract or subcontract with the City and County, the San Francisco Redevelopment Agency, the San Francisco Housing Authority, the San Francisco Unified School District, or the San Francisco Community College District, where the amount of the contract or the subcontract exceeds $10,000.

S.F. Campaign and Governmental Conduct ("S.F. C&GC") Code § 3.200(c).1 The term "Board or Commission" is defined as "an appointed Board or Commission created by Charter or ordinance of the City and County, at least one of the members of which is required to be appointed by the Mayor, but does not include advisory Boards or Commissions." Id.,

§ 3.200(b)(1) (emphasis added). The term "City and County" includes "any Commission, Board, Department, agency, committee, or other organizational unit, excluding advisory bodies, of the City and County of San Francisco." Id., § 3.200(b)(3). Violation of the Ordinance constitutes official misconduct. Id., § 3.200(f).

The Ordinance was adopted to ensure that contracts are, and appear to be, awarded on a fair and impartial basis. By prohibiting Board and Commission members from contracting with the City, "both actual and perceived favoritism or preferential treatment without creating unnecessary barriers to public service" will be eliminated. Id., § 3.200(a)(1) and (3).

B. The Landmark Preservation Advisory Board

As you note in your letter, the Board is an advisory board. It consists of nine voting members who are appointed by the Mayor to advise the Department of City Planning and the Planning Commission on historical preservation matters. S.F. Planning Code § 1003; see also id., § 1002 ("The Department and the Planning Commission shall be advised in the exercise and performance of their powers and duties by the Landmarks Preservation Advisory Board").

C. Statements of Economic Interests

The Political Reform Act (the "Act") requires public officials, whether elected or appointed, to "perform their duties in an impartial manner, free from bias caused by their own financial interests or the financial interests of persons who have supported them." Cal. Gov. Code

§ 81001(b). Under the Act, designated employees2 who make, participate in making, or influence governmental decisions that could affect their personal financial interests are required to file financial disclosure forms, also known as Statements of Economic Interests ("SEIs"). The purpose of financial disclosure is to alert public officials to personal interests that might be affected while they are performing their official duties. Disclosure also helps inform the public about potential conflicts of interest.

Pursuant to state law, the Board of Supervisors adopted and incorporated the provisions of Regulation 18730 of the California Fair Political Practices Commission (2 Cal. Code of Regs.

§ 18730), creating the Conflict of Interest Code ("Code") for agencies of the City and County of San Francisco. S.F. C& GC Code § 3.1-100 et seq.3 The Code identifies designated positions and disclosure categories. Under § 3.1-300, members of the Board are "designated employees" with Disclosure Category 1.4

C. Application of the Law

Because the enabling ordinance for the Board states that the Board is advisory in nature, and the plain language of the Ordinance excludes advisory boards, it appears that the Ordinance does not apply to preclude you as a member of the Board from seeking contracts with the City, the Port of San Francisco, the San Francisco Redevelopment Agency, the San Francisco Housing Authority, the San Francisco Unified School District, and the San Francisco Community College District.

However, as you point out, you are required to file an annual SEI. You also state that "it is likely that the Planning Commission follows the Landmarks Board advice more often than not." Therefore, you are concerned that the Board may not be deemed an advisory body under the Ordinance. For the reasons that follow, the Ethics Commission finds that simply because members of the Board are required to file SEIs does not mean that the Board is no longer an advisory body for the purposes of the Ordinance.

Both the Ordinance and the requirement that you file an SEI seek to prevent conflicts of interest by public officials who make or influence governmental decisions. Nonetheless, the origin of each law and their focus are different. Filing an SEI alerts you and informs the public about your personal interests that might be affected when you make, participate in making, or influence a governmental decision. Thus, for example, when you advise on a particular piece of property, you must ensure that you do not have an economic interest that conflicts with your ability to provide that advice free from bias caused by your own financial interests or the financial interests of persons who have supported you.

The Ordinance, on the other hand, was adopted with a separate, but complementary, purpose in mind: to lessen the potential for, and the appearance of favoritism or preferential treatment by the City. See S.F. C&GC Code § 3.200(a)(2). The Ordinance accomplishes this by barring contracts between members of boards and commissions with the City and other agencies where the amount of the contract or subcontract exceeds $10,000.

The Conflict of Interest Code was adopted by the Board of Supervisors in January 1990; members of the Landmarks Preservation Advisory Board were designated as SEI filers later that same year. The Ordinance prohibiting members of boards and commissions from contracting with the City was not adopted until 1996. When it was adopted, it explicitly excluded advisory boards and commissions from its coverage. Generally, drafters of an ordinance are presumed to be aware of existing law. See Horwich v. Superior Court, (1999) 21 Cal.4th 272, 283. Had the Board of Supervisors intended that the Ordinance cover the Landmarks Preservation Advisory Board, it would not have explicitly excluded advisory boards and commissions from the Ordinance's coverage.

Finally, although you participate in making or influencing governmental decisions, it is not clear that the Board is vested with decision-making authority, as that term is defined under the Act. Under the Act, a board has decision-making authority if it "makes substantive recommendations that are, and over an extended period of time have been, regularly approved without significant amendment or modification by another public official or governmental agency." 2 Cal. Code of Regs. § 18701(a)(1)(C). You indicate that the Board's "substantive recommendations are subject to further approval, amendment or modification by the Planning Commission and in some cases the Board of Supervisors." You add that in the recent past, both the Planning Commission and the Board of Supervisors "have exercised these prerogatives on several occasions," but that "it is likely that the Planning Commission follows the Landmarks board advice more often than not." This does not indicate that the Board's decisions are "regularly approved without amendment or modification by another public official or governmental agency." Accordingly, there is no indication that the Board's role is more than advisory in nature.

Conclusion

For the reasons discussed above, the Commission finds that you are not prohibited from seeking a contract with the City under the Ordinance. Note, however, that this letter addresses only

§ 3.200 of the S.F. Campaign and Governmental Conduct Code. It does not address, for example, your ability to seek contracts with the Landmarks Preservation Advisory Board, which may be prohibited by San Francisco Charter § C8.105(a) and California Government Code

§ 1090.

I hope you find this letter responsive to your inquiry. If you have additional questions on this matter, please contact me at (415) 581-2300.

Sincerely,

Ginny Vida

Executive Director

S:\ADVICE\contracting § 3.200 Kelley.doc

1 The Ordinance was added by Ord. 374-96, app. 9/30/96.

2 A "designated employee" is "any officer, employee, member, or consultant of any agency whose position with the agency . . .[i]s designated in a Conflict of Interest Code because the position entails the making or participation in the making of decisions which may foreseeably have a material effect on any financial interest." Cal. Gov. Code

§ 82019. An agency is "any state agency or local government agency." Id., § 82003.

3 Section 3.1-100 et seq. was formerly S.F. Administrative Code § 58.500, added by Ord. 3-90, app. 1/5/90; amended by Ord. 340-99, File No. 992046, app. 12/30/99.

4 Persons in Disclosure Category 1 must "disclose income form any source, interests in real property, investments, and all business positions in which the designated employee is a director, officer, partner, trustee, employee, or holds any position of management." S.F. C&GC Code § 3.1-107.

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