HomeMy WebLinkAboutAGENDA REPORT 1997 0402 CC REG ITEM 09NIV • 10,40 , r 7 s
TO: The Honorable City Council
FROM: Lillian E. Hare, City Clerk
DATE: March 24, 1997 (CC Meeting of 4/2/97)
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SUBJECT: Consider Bud80 AnWWMent to Appropriale hum for a Resdd&" Appraisal to
Determine Conflict of Interest Relative to the Political Reform Act
Specific Plan 2
The Political Reform Act was anted by the people of the State of California. Under the
cotes of interest provisions of the Act, an official has a Baal ittered in a decision if it is
reasonably foreseeable that the decision will have a material financial effect on the official that is
d iahable from its effect on the public generally.
The Act provides that the effect of a decision is material as to red property in which an official
has an interest if the location/distance from a subject property and the in the
fair market value of the official's property is as set forth in the Act. The January 9, 1995 letter
from the City Attorney titled "Conflicts of Interim Ownership Interest in Real Property" is
attached as exhibit A as a reference on the specifics of distance and the increases/decreases in fair
market value in the Act.
The only objective method of ding the pcessible it ceMase/dec r"80 in property value of an
official's property situated with the 2500 feet dismince threshold of a subject property is to have
an appraisal prepared by a qualms real estate appraiser. With an appraisal, an official can
determine if the $10,000 property value thre dwW has be= reached and he/she must abstain from
participation in the decision making process relative to a subject property.
The City Attorney has opined that the "City Council can retucmably die that the
expenditure of public funds for conflict of interw appmals, constitutes; a p khc purpose, given
that the expenditure will enable counciknembers to perform their official duties, irrespective of
their own financial resources." (See exhibit B.)
f 11
Council Report
March 24, 1996
Page 2
specific Plan 2 will be considered by the Cow in the UPGON* anoaths. CouacilnrerWM
Woa isle's homes is within 2500 feet of the > kjW prsjeast and wo t waft re require a condict of
merest appraisal. Staff has requested two iadamai bid: appraisers — David
Knorr and Lynn Kennedy. The lowest bid was tendared by W. Kin m for $ 1250. Mr. Kimura
is a resident of the City with a current Business Registration and Hoare Ooaagwtion Permit.
In adcgtm to the currently requested appraisal, there are several general issues which the Council
may wish to consider in order to develop a policy for future conflicts of interest appraisals. Some
of the issues are as follows:
Should the opportunity for conflicts of interest appraisals extend to the Planning
Commission? To Staff?
2. Should there be a knelt of one (or anrc &w set nastier) Of apepraisais per CcN
per year? For Planning Cornnni wners? For the City N4mmW and Director of
Comrnnnity Development?
3. Should the budget include funding for one or more appraisals or should a deternsination
be made on a case by case basis?
4. Should there be catWm of allowabiiity? Should the cateepries be relative to whom is
the decision maker? (For er wWk, should appraisals be allowed for Ppanniag
CogwNwoms only when they are the decision mokw# body ?) Should the dries of
aliowability be date noins d by the camplexily of the project — allowed for a Specific Phan
but not for a major modification of an approved pest?
Should appraisals be allowed for the Planning Conw ission if there are four other members
who can vote?
The Council may wish to consider reafan* the above questions and any others forasulated this
evesing to the Council Ad Hoc Comninee on the Rules of Procedure or another Ad Hoc
Committee for devehopm at of a corAicts of WWCA appraisal poky.
Staff Reconnrrendation: ( ROLL CALL VOTE REQUIRED)
Adopt Aesohntion 97 -_ Appropriating $1,250 f m Genial Fund Reserves to
100.100.0000.000.9116 for a resideWal appraisal and refer drdking of a conflicts of interest
appraisal policy to a City Council Ad Hoc Committee.
111 :'1
council Report
March 24, 1996
Page 3
Attachments:
Exhibit A: City Attorney's memo dated January 9, 1995
ExhPoit B: City Attorney's memo dated January 19, 1996
Bids
Resolution
111
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VENTURA C O UNTY OFFICE
2310 PONDEROSA DRIVE
SUITE I
CAMARILLO, CALIFORNIA 93010
(805) 987 -3466
ORANGE COUNTY OFFICE
3200 BRISTOL STREET
SUITE 640
COSTA MESA, CALIFORNIA 92626
(714) 54S -5559
LAW OFFICES
BURKE, WILLIAMS & SORENSEN
61'. IVES- SIXTH STREET, SUITE 2500
'_(,S ANGELES, CALIFORNIA 90017
(213) 236 -0600
TELECOPIER: (213) 236 -2700
January 9, 1995
The Honorable Mayor Paul W. Lawrason
and Members of the City Council
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Conflicts of Interest
Ownership Interest in Real Property
Dear Mr. Mayor and Councilmembers:
10 jgg1
City Of Mompark
BURKE, WILLIAMS, SORENSEN 6 GAAR
LIGHTON PLAZA
7300 COLLEGE BOULEVARD
SUITE 22C
OVERLAND PARK, KANSAS 66210
19131 339 -6200
WRITER'S DIRECT DIAL
213 - 236 -2721
OUR FILE NO. 01359 -001
It has recently come to my attention that there may be
some misunderstanding by councilmembers and staff members
regarding when an interest in real property is cause for
disqualification from participation in the decision making
process pursuant to the Political Reform Act (Gov't Code § 81000
et sea.) I have therefore prepared the enclosure, which is an
outline of the regulations regarding this matter.
If you have any questions regarding the outline or its
application, please do not hesitate to contact me.
r truly ours,
CHE L J. KANE
CITY RNEY, MOORPARK; and
BURKE, WILLIAMS & SORENSEN
Enclosure
cc: Steven Kueny, City Manager
.,<2:117400.1
000286
C
.:2:117217.1
MATERIAL FILIAL EFFECT:
OWNERSHIP INTEREST IN REAL PROPERTY
(Cal.Code Regs., tit 2, § 18702.3)
An official has a financial interest in a decision if it is
reasonably foreseeable that the decision will have a material
financial effect on the official (or an immediate family member)
that is distinguishable from its effect on the public generally.
(Gov't Code § 87103.)
The effect of a decision is material as to real property in which
the official (or an immediate family member) has a direct, indirect
or benefit interest if:
A. The official's property is located:
1. Within 300 feet of the subject property unless the
decision will have no financial effect on the official's property.
2. More than 300 feet but not more than 2500 feet from the
subject property and it is reasonably foreseeable that the decision
will:
a. increase /decrease the fair market value of the
official's property by $10,000 or more or
b. increase/ decrease the rental value of the official's
property by $1,000 or more per 12 month period
3. More than 2500 feet from the subject property only if:
a. there are specific circumstances which make it
reasonably foreseeable the fair market value /rental value of the
officials property will increase /decrease by $10,000/$1,000 and
b. the effect will not be substantially the same as the
effect upon at least 25% of the properties within 2500 feet of the
official's property or
C. there are less than 10 properties under separate
ownership within 2500 feet of the official's property.
B. The decision involves the construction of, improvements to,
infrastructure (e.g. streets, sewers) and the official's property
will receive new or substantially improved services.
NOTES
1. Factors to be considered in determining whether a
$10,000 /$1,000 increase/ decrease is reasonably foreseeable include,
but are not limited to:
a. proximity of the subject property and the magnitude of
the proposal in relationship to the official's property;
b. whether it is reasonably foreseeable that the decision
will affect the development or income producing potential of the
official's property; and
C. if the official's property is residential, whether it is
reasonably foreseeable that the decision will change the character
of the neighborhood (i.e. traffic, view, privacy, intensity of use,
noise, air emissions).
2. If the decision may affect the official's property but does not
involve a subject property, the standards set forth in A.2 apply.
3. Whenever the decision involves the establishment or
modification of a redevelopment project area or the adoption or
Amendment of a redevelopment plan, the boundaries of the subject
property are the boundaries of the redevelopment project area.
..{2:117217.1 -2-
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LAX2:145550.1
January 19, 1996
The Honorable Mayor and Members
of the City Council
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
FRESNO OFFICE
7108 NORTH FRESNO STREET
SUITE 101
FRESNO, CALIFORNIA 93720 -2938
(209) 261 -0163
BURKE, WILLIAMS, SORENSEN & GAAR
LIGHTON PLAZA
7300 COLLEGE BOULEVARD
SUITE 220
OVERLAND PARK, KANSAS 66210
1913) 339 -6200
WRITER'S DIRECT DIAL:
213- 236 -2721
OUR FILE NO. 0136"01
Re: California Constitution, Article 16, Section 6
Expenditure of Public Funds_ for Real EstateAMraisalsof Public Funds for Real_ Estate_ Appraisals
Dear Mr. Mayor and Councilmembers:
Pursuant to the Political Reform Act, members of your
City Council, as well as commission and staff members, are
prohibited from participating in any decision that may increase
or decrease the value of their residences or other real estate
holdings by $10,000 or more. (Gov't Code S 87100; Cal. Code
Regs., tit. 2, S 18702.3.) As a matter of course, the Fair
Political Practices Commission suggests that this determination
be made by a real estate appraiser. Because an appraisal can
cost several thousand dollars at a minimum, you have asked if the
appraisal can be paid for from public funds.
Discussion
In a 1993 informal advise letter, staff to the Fair
Political Practices Commission concluded that use of public funds
to pay for such an appraisal is not prohibited by the Political
Reform Act and that the expenditure does not result in a gift
that must be reported pursuant to the Act. (FPPC File No. 1 -93-
200.) Because the jurisdiction of the Commission is limited to
the Political Reform Act, the advise letter did not address the
issue as it relates to the California Constitution.
The California Constitution, at section 6 of article
16, prohibits public funds from being expended or loaned for a
private purpose. (City of Downey v. Board of Administration
�pOL t/fo
LAW OFFICES
BURKE, WILLIAMS & SORENSEN
VENTURA COUNTY OFFICE
611 WEST SIXTH STREET, SUITE 2500
2310 PONDEROSA DRIVE
LOS ANGELES, CALIFORNIA 90017
SUITE 1
CAM ARILLO, CALIFORNIA 93010
1213) 236 -0600
(805) 987 -3468
ORANGE COUNTY OFFICE
TELECOPIER: (213) 236 -2700
3200 PARK CENTER DRIVE
SUITE 760
COSTA MESA, CALIFORNIA 92626
(714) 546 -5669
LAX2:145550.1
January 19, 1996
The Honorable Mayor and Members
of the City Council
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
FRESNO OFFICE
7108 NORTH FRESNO STREET
SUITE 101
FRESNO, CALIFORNIA 93720 -2938
(209) 261 -0163
BURKE, WILLIAMS, SORENSEN & GAAR
LIGHTON PLAZA
7300 COLLEGE BOULEVARD
SUITE 220
OVERLAND PARK, KANSAS 66210
1913) 339 -6200
WRITER'S DIRECT DIAL:
213- 236 -2721
OUR FILE NO. 0136"01
Re: California Constitution, Article 16, Section 6
Expenditure of Public Funds_ for Real EstateAMraisalsof Public Funds for Real_ Estate_ Appraisals
Dear Mr. Mayor and Councilmembers:
Pursuant to the Political Reform Act, members of your
City Council, as well as commission and staff members, are
prohibited from participating in any decision that may increase
or decrease the value of their residences or other real estate
holdings by $10,000 or more. (Gov't Code S 87100; Cal. Code
Regs., tit. 2, S 18702.3.) As a matter of course, the Fair
Political Practices Commission suggests that this determination
be made by a real estate appraiser. Because an appraisal can
cost several thousand dollars at a minimum, you have asked if the
appraisal can be paid for from public funds.
Discussion
In a 1993 informal advise letter, staff to the Fair
Political Practices Commission concluded that use of public funds
to pay for such an appraisal is not prohibited by the Political
Reform Act and that the expenditure does not result in a gift
that must be reported pursuant to the Act. (FPPC File No. 1 -93-
200.) Because the jurisdiction of the Commission is limited to
the Political Reform Act, the advise letter did not address the
issue as it relates to the California Constitution.
The California Constitution, at section 6 of article
16, prohibits public funds from being expended or loaned for a
private purpose. (City of Downey v. Board of Administration
�pOL t/fo
L.AX2:145550.1
The Honorable Mayor and Members
of the City Council
January 19, 1996
Page 2
(1975) 47 Cal.App.3d 621, 629.) If a public purpose is served,
the constitution is not violated even though individuals may
incidentally benefit from the expenditure or loan. (Patrick v.
Riley (1930) 209 Cal. 350.) In a long line of case, the courts
have held that the determination of what constitutes a public
purpose is primarily a matter for the legislative body (i.e. your
City Council) to determine. (Shean v. Edmonds (1949) 89
Cal.App.2d 315.) That determination will not be disturbed by the
courts if it has a reasonable basis. (Id.)
Several cities, including Dana Point and Oxnard, use
public funds to pay for appraisals that arise from the Political
Reform Act. And in a 1994 formal advise letter, staff to the
Fair Political Practice Commission ruled that the expenditure of
campaign funds for such an appraisal serves a "governmental
purpose ". (FPPC File No. A- 94- 320.)1
Although the courts have not yet been asked to review
the issue, they have held that a councilmember not only has "a
right but an obligation . . . to state his views on matters of
public importance." (City of Fairfield v. Superior Court (1975)
14 Cal.3d 768, 780.) In the absence of an appraisal, a
councilmember with a potential conflict of interest runs the risk
of violating either that obligation by non - participation or the
Political Reform Act by participation. If the appraisal must be
paid for from personal funds, only those councilmembers with
substantial financial resources could reasonably afford to participate.?'
1 The FPPC staff addressed the issue in terms of the expenditure
of campaign funds. Under the Political Reform Act, campaign
funds may be used in assocation with the holding of office if the
expenditure serves "a political, legislative or governmental
purpose ". (Gov't Code § 89512.)
21 In a number of related situations, the expenditure of public
funds has been upheld as serving a public purpose. For example,
paying to insure public officials against tort liability was
upheld on the ground that "any decrease in the potential
liability of an official will increase the willingness of
competent people to assume the risk of office." (People v.
Standard Accident Ins. Co. (1941) 42 Cal.App.2d 409, 412.)
(continued...)
The Honorable Mayor and Members
of the City Council
January 19, 1996
Page 3
Conclusion
Your City Council can reasonably determine that the
expenditure of public funds for conflict of interest appraisals
constitutes a public purpose, given that the expenditure will
enable councilmembers to perform their official duties,
irrespective of their own financial resources. In order to ensure
that councilmembers are only incidentally benefitted, I recommend
that the appraiser be retained by the City and the scope of the
appraisals extend no further than is necessary to evaluate the
potential conflict of interest under the Political Reform Act.
Finally, you could consider extending such expenditures to
commission and staff members.
Ve y trul ours,
CHERIL J . KANE
CITY RNEY, MO RPARK; and
BURKE, WILLIAMS & SORENSEN
CJK:
cc: Steven Kueny, City Manager
2'( ... continued)
Paying for the physical examination of
ground that the examination was not for
but was to aid them in complying with a
anybody with a contagious disease from
Atty.Gen. 288.) Paying the expenses of
physically handicapped councilmember wa
that the member needed the assistant in
duties. (65 Cal.Ops.Atty.Gen. 517.)
i.AX2:145550.1
teachers was upheld on the
their personal benefit
state law that prohibits
teaching. (18 Cal.Ops.
an assistant to a
s upheld on the ground
order to perform official
000231
DAVID D. KIN"A, MAI Real Estate Appraiser & Consultant
March 7, 1997
Lillian E. Hare, CMC
City Clerk
City of Moorpark
799 Moorpark Avenue
Moorpark, Ca 93021
Re: Appraisal Services
Residence of Councilman John Wazniak
735 Charles Street
Moorpark, California
Dear Ms. Hare:
Pursuant to your request, I have prepared this contract to provide an appraisal or opinion document
for the above referenced property. It is my understanding that Specific Plan 2 is a proposed
residential project located north of the officials property that may result in a conflict of interest
pursuant to Gov't Code 81000 et seq.
The scope of the study will include an assessment of the physical elements of the project and its
specific relation with the officials home, including changes in access and circulation, views, etc. As
specifically stated in the code, the possible conflicts of interest are based on project distance and if
the proposed project will increase /decrease the fair market value of the officials home by $10,000 or
more or will increase /decrease the rental value of the officials property by more than $1,000 or more
per 12 month period. These items will be specifically addressed in document.
The fee for the services will be $1,250, payable upon the delivery of the report. Two copies of the
report will be provided. The report will be delivered within 30 days of the date of signed approval.
If this contract meets with your approval, please sign the attached authorization.
Respectfully submitted,
David D. Kimura, MAt
The above proposal is approved and accepted.
Authorized Signature
111 -
Date
4308 Cedardale Road, Moorpark, California 93021 ■'.Phone (805) 529 -1562 ■ FAX (805) 529 -fNF C E I V E
MAR 1 n 07
"I pl
LYlIN 10ENltEDX APPR7,I"L BskYICEB
996 NONCHALANT DRIVE
SIMI VALLEY, CA. 93065
PH. (805) 527 -6106
FAX (805) 522 -9363
MARCH 10, 1997
LILLIAN E. HARE, CMC
CITY CLERK
799 MOORPARK AVENUE
MOORPARK CA., 93021
RE: IMPACT STUDY /APPRAISAL
735 CHARLES STREET
MOORPARK, CA. 93021
DEAR MS. HARE;
I HAVE RECEIVED YOUR LETTER DATED 3/4/97 OUTLINING THE
GUIDELINES FOR AN IMPACT STUDY / ASSIGMMNT ON THE SINGLE
FAMILY RESID=CL► RRfERSNCED ABOVE. THE SCOPE OF THE
ASSIGNMENT TO INCLUDE ANALYZING AND QUANTIFYING THE
POTINTIAL POSITIVE OR NEGATIVE AFFECT (IF ANY) OF THE
PROPOSED SPECIFIC PLAN 02 PROJECT.
AS PER OUR PHONE CONVERSATION CONCERNING THE ASSIGNMENT
OF THE IMPACT STUDY FOR THE PROPOSED SPECIFIC PLAN #2 AND
THE "ALTERNATIVES" A FEE QUOTATION OF $1500. WILL BE
ADEQUATE. ANY FUTURE STUDIES THAT YOU MIGHT REQUEST WILL
REQUIRE ADDITIONAL TIME AND RESOURCES.
I CAN BEGIN THIS ASSIGNMENT IMMEDEATELY UPON YOUR APPROVAL
AND THE TIME REQUIRED SHOULD NOT EXCEED 15 WORKING DAYS. THE
REPORT WILL BE SUBMITTED IN A NARRATIVE FORMAT WITH THE
APPLICABLE SECTIONS OF TITLE 2, SECTION 18702.3 OF THE
CALIFORNIA CODE OF REGULATIONS ADDRESSED.
IF THIS PROPOSAL MEETS WITH YOUR APPROVAL, I WOULD LIKE
TO SET UP A TIME WHEN I CAN PICK UP EXHIBITS THAT WILL BE
NECESSARY AND WHICH WILL BE USEFUL IN THE COMPLETION OF THIS
ASSIGNMENT.
IF YOU HAVE ANY FURTHER QUESTIONS OR NEED CLARIFICATION
ON ANY ASPECT OF THIS PROPOSAL, PLEASE FEEL FREE TO CALL OUR
OFFICE.
MAR 10 ' 97 1609
SINCERELY;
LYNN EDY, C
4)00:93