• Opinion: "We Must Lead"
EVENTS - FEBRUARY 2017

Southern California Latino Policy Center

Latinos have arrived as a political force in California. But it is imperative we translate growing power at the ballot box towards strengthening the Latino “agenda.”

  • Improving educational outcomes for students
  • Addressing critical health issues
  • Jobs and local economic development

Vision

We are school board members, city council members, elected city clerks and attorneys, community college trustees and other local Latino elected officials.

We represent a new effort by local policymakers towards greater accountability and a commitment to a higher standard of ethics and transparency.

California’s economic future is relying in large measure on the economic stability and success of our state’s 14 million Latinos. The development of a strong Latino middle-class is vital to California’s economic stability.  This provides an excellent opportunity for us to collaborate in the development of more effective regional solutions.

Mission

The Southern California Latino Policy Center is a non-partisan, policy education and research organization created to provide local Latino elected officials from LA County, Orange County and the Inland Empire with resources, research and professional development opportunities designed to help those officials create the most effective and impactful policies for Latino families and all communities.

From the Editor

Who Will Lead?

By: Victor Abalos

We salute those marching in the streets and protesting at airports. We also commend those of you busy organizing “The Resistence.” Political expression and engagement in this time of our history is vital.

But as an organization dedicated to supporting elected officials, we want to pay particular attention to those who have chosen to channel their anger/outrage/anxiety into public service.

There are dozens of political candidates lined up for the March 7 primary election – as well the growing list of candidates jumping into the CD34 special election. Many are first timers. We wanted to get their take on this election – what motivated them to run and find out whether the results from last November impacted their decision.

If we have indeed entered a new political era – what will define it? We have been following with considerable interest, particularly on social media, what many of you are against. But what are we for? “The Resistence” may become an important political force in this country and in California, but as that force works to oppose the new president’s policies, what agenda will it advance?

Our interviews with the candidates just started – we will share them in our March 1 edition of the Latino Policy Connection newsletter. If you know of (or are) a political newcomer running for office and want to share your thoughts, please contact me. My email is below.

This month we feature an exclusive preview of gubernatorial candidate Antonio Villaraigosa’s economic proposals – a plan he will be outlining in a speech in Sacramento today (Feb. 1).

Villaraigosa has made no secret of his position – shared strongly by the SCLPC – that our state’s economic future is closely tied to our ability to get more Latinos into the middle class. He expands on that idea in his latest address:

“At precisely the moment Latinos have become the largest ethnic group in California, the promise of a better life is growing farther and farther out of reach for a growing segment of our society… California must lead. And because Latinos will soon to be the majority of this state, we must lead.”

We agree with Villaraigosa. We as Latino advocates must work to ensure Latinos have access to – and are ready for – 21st Century jobs. We need to lead the way to make sure our families have access to affordable housing.

It is a new day. What’s not new is what we need to get done.

 

Victor Abalos: Editor's BlogVictor Abalos is Executive Director of the Southern California Latino Policy Center and Editor of the Latino Policy Connection.

victor@socalatinos.org
@SOCALatinos

Opinion

“We must lead”

By: Antonio R. Villaraigosa

As the threat of Donald Trump’s policies become all too real, Californians are uniting as never before. We have now seen millions marching to defend our health care, defend a woman’s reproductive freedoms and defend the very right of millions of Californians to stay with their families rather than face arrest and deportation.

As we fight against Trump, it is necessary to also pause and reflect on what we are fighting for. While it is appropriate that we defend our progressive values, it is equally necessary that we work even harder to make progress for the many Californians who are still being left behind. We must make progress on improving our schools, improving access to an affordable college and lifelong learning and improving our infrastructure so it will spur and allow our economy to grow.

Because we need to do more than stop Trump, we need to keep California moving forward.

We should be proud of our progress, but the last thing we can be is complacent. We must act now, and we must act boldly.

As a former mayor, I know that action at the local government level – the closest government to the people – can have the quickest and longest lasting impact.

For the first time in many generations, our middle class is shrinking. We have more wealth as a state – but also more poverty – than any state in the nation. More often than not, those in poverty are Latino. We do not need to look very far to realize that many of the communities being left behind are Latino neighborhoods and many of our most challenged schools have students who are predominantly Latino.

This growing inequality is threatening the very fabric of our society.

Economic inequality has grown because our policies have not kept pace with our economy. As in other states, California has lost many good-paying jobs and replaced them with jobs that pay low wages.

The truth is, in today’s economy, having a job is often not enough to ensure those things all Californians want for our families – an affordable place to live in a safe neighborhood, basic health care, child care and good schools for our children and the chance for a secure retirement for every family.

At precisely the moment Latinos have become the largest ethnic group in California, the promise of a better life is growing farther and farther out of reach for a growing segment of our society.

If the recent election taught us anything, it is that where there is no hope, people will act on their fears. The erosion of economic opportunity gives space for the politics of fear.

So now, California must lead. And because Latinos will soon be the majority of this state, we must lead. We must help this state to become a national example of how to build a successful 21st Century Economy that creates middle-class jobs. We must work to preserve the fundamental notion that anyone willing to work hard and play by the rules can meet the basic needs for themselves and their family.

Californians remember that voters lashing out amid economic anxiety is nothing new. As a state, we have gone through this before.

I was first elected to the Assembly in 1994 on the heels of a deep recession that plunged our state billions of dollars into debt and sent unemployment sky high.

That economic upheaval helped give rise to a politics of demagoguery, division and the scapegoating of immigrants. That culminated with Proposition 187 and the elimination of bilingual education and affirmative action.

But during my six years in Sacramento, including three as Speaker of the Assembly, I worked with leaders from both parties to find common ground to find solutions to the problems facing our state.

We created a children’s health care program, which extended coverage to three quarters of a million kids across the state. When the federal government stripped public support for legal immigrants, I helped bring people together to ensure those benefits were covered here in California.

At that time, Latinos were a minority – fighting to protect our families from very Trump-like attacks. We should all remember that we were not alone then. Asians, African Americans, Filipinos, the LGBT community, progressive and liberal whites and even conservative whites stood with us because they understood that we embraced and embodied the American dream.

Now that we are soon to be the majority, let’s always remember that moment. We endured because we were not alone.

We stand at a moment of great change and a time of great anxiety. But we have been here before and have persevered and prospered. As a leader in our community, your voice is needed like never before in our history. I look forward to standing beside you as we fight together, community by community, to defend our communities and make sure that no voice in California goes unheard.

Antonio R. Villaraigosa served as a Member of CA State Assembly, Speaker of the Assembly, and then served on the LA City Council before becoming the 41st Mayor of Los Angeles. He is now a candidate for Governor of California.

 

Ethics Advisor

Seven Billion Dollars Soon to Hit the Streets in Disadvantaged Communities Across the U.S.

New Markets Tax Credits – the Best Kept Secret in Financing Public Projects

By: Ruben Duran

Right before Thanksgiving 2016, the federal government announced the release of $7 billion of tax credits aimed at spurring private equity investment into projects in low income communities. Administered through the U.S. Treasury’s CFDI Fund, the tax credits are known as “New Markets Tax Credits,” and have proven to be a flexible and powerful tool for development in underserved communities across the country.

If you’ve never heard of New Markets Tax Credits, also known as “NMTC,” don’t feel bad. Many public officials and their staffs, although they might have seen the term somewhere, don’t really know a lot about the program. That’s a shame, because under the right circumstances, NMTC can and does provide significant capital for qualified projects, ranging from community centers and sports facilities to charter schools and retail developments.

The NMTC was authorized in the Community Renewal Tax Relief Act of 2000 as part of a bi-partisan effort to stimulate investment and economic growth in low income neighborhoods and rural communities that lack access to the capital needed to support and grow businesses, create jobs, and sustain healthy local economies.

The NMTC program attracts capital to low income communities by providing private investors with a federal tax credit for investments made in businesses or economic development projects located in some of the most distressed communities in the nation – census tracts where the individual poverty rate is at least 20 percent or where median family income does not exceed 80 percent of the area median.

California public agencies, including cities, counties and special districts, can use NMTC to provide significant cash contributions to qualified projects in qualified areas, and NMTC presents a meaningful opportunity to leverage funding and assets that public agencies already own or anticipate receiving for individual projects.

Public agencies throughout the nation regularly sponsor qualified projects that successfully compete for and receive NMTC. A successful transaction will involve a project in a qualified census tract that produces community benefits such as the creation or retention of jobs, the provision of services to underserved populations and/or environmental benefits and improvements. The tax credits are provided through the participation of a Community Development Entity (“CDE”) that has received an allocation of tax credits from the CDFI Fund. A public agency seeking to use NMTC will first need to identify qualified projects and then enlist the support and participation of a CDE with NMTC allocation.

Proceeds from a NMTC transaction may be used for a wide range of project costs, from pre-development expenses to construction (including infrastructure), purchase of supplies and equipment and provision of services to qualified communities. Infrastructure costs are generally only funded to the extent they are part of a larger qualified project and can be directly tied to the community benefits attributable to the project.

Although the program is highly competitive and can be complex, over the last several years I have successfully closed two NMTC deals for public agencies. The first was for a city-sponsored state-of-the-art health and wellness facility and the other for a port infrastructure project plus a mobile pantry bringing healthy food and nutrition education to needy communities. These two examples show the breadth and flexibility of the program; only a handful of projects cannot use NMTC, including strictly residential (though mixed-use projects do qualify), massage parlors, racetracks, and liquor stores.

NMTC has been used for YMCAs, office and retail, hotels, industrial development and many other types of projects. The main restriction is ensuring that the tax credits are deployed in a qualified census tract. To find out whether a project in your jurisdiction qualifies and NMTC can be used to attract private investment dollars, contact me anytime.

Ruben Duran is a partner in the Los Angeles office of Best Best & Krieger, LLP. He serves as the Southern California Latino Policy Center’s Ethics Advisor and represents cities, school districts and special districts throughout California. He helped his clients the City of Desert Hot Springs and the Oxnard Harbor District use New Markets Tax Credits to fund exciting, high-impact projects.

ruben.duran@bbklaw.com
@BBKRubenDuran
(213) 787-2569

The Ethics Advisor

Good Governance Floats on a Sea of Integrity

images

By: Gary Schons

“In civilized life, law floats in a sea of ethics,” the late Earl Warren, who served as a U.S. Supreme Court chief justice and as California attorney general and governor, stated in a 1962 speech. In a closely related sense, good governance floats on a sea of integrity. Only when government institutions abide by the norms of public integrity established by our laws and traditions can good governance take root and flourish.

When we speak of public integrity, foremost are qualities of individual virtue, undivided loyalty, transparency and accountability. Only when these principles are maintained by the individuals who serve will government institutions function with economy, efficiency and effectiveness. And when those virtues fail or cease to exist, waste, fraud, abuse, mismanagement and even corruption eventually corrode the processes of governing.

After an election that ushered in a host of new public officials and laws at the national, state and local levels, it is an appropriate time to reflect on the preeminence of integrity in our public institutions.

A recent survey conducted at Chapman University in Orange, revealed that people’s greatest fear is government corruption. At first blush, this seems surprising given the risks and harms posed by international terrorism, climate change and environmental degradation or economic disruption. But, on second thought, it is an understandable reaction. Individuals create their government through the ballot box, fund it through their taxes and are served and controlled by it in their daily lives. Government is constant and omnipresent in the lives of all citizens. Trust in its proper workings is fundamental to the social compact in which citizens cede certain of their freedoms, liberty and property to the state.

California is blessed with a public integrity infrastructure that is second to none in the country. In surveys of the states for public integrity practices, California consistently ranks at the top. The Political Reform Act and Government Code section 1090, which prohibit conflicts of interest, seek to ensure that government agencies have the undivided loyalty of its officials, in addition to promoting transparency in the political process. The Brown Act “Open Meetings” Law and the Public Records Act promote transparency and accountability by affording the public (and press) open access to government meetings and public records.

However, these laws alone are not self-executing and are no guarantee the goals they serve will be achieved. They must be put into regular practice and enforced. A robust system of checks and balances among the various organs of government provides the architecture for enforcement. The FPPC, the local prosecutor, the county grand jury exercising its civil “watch dog” function, and the State Auditor each serve important roles in monitoring, ensuring compliance with and sanctioning those violate these statutes.

However, the single most important guarantor of public integrity is an engaged citizenry informed by a principled press.

Case after case of local government malfeasance have come in communities where the citizens are not engaged and watchful of the processes of local governance. In such circumstances, open meeting laws are violated and “backroom” deals and decisions are made. Officials act despite clear conflict of interests. And, inevitably, mismanagement, abuse, fraud and corruption permeates the governing processes. This leads to massive losses to the public fisc, diminished public services and, eventually, a loss of public trust and faith in the governing entity. Thus, citizen participation is critical not just on Election Day, but on an on-going basis as the ultimate watch dog of official probity, transparency and accountability.

In a future installment of the Ethics Advisor, we will examine some case studies of failed governance directly attributable to lack of oversight and enforcement of public integrity norms and laws.

 


Gary Schons
 heads the Government Policy & Public Integrity practice. He served as trial counsel for the Commission on Judicial Performance.
Gary is an active member of the California District Attorneys Association, lecturing and authoring articles for the association.

Gary.Schons@BBKLaw.com   (619) 525-1348

Opinion

Tell Your Own Story

by Ed Coghlan, The JVA Group

Leaders of school districts and municipal government constantly ask us, “how can we get our story out better?”

Our answer is simple: “Tell your own story.”

The old way of doing things — putting out press releases and putting them on your website — simply doesn’t work anymore.

You must be your own best storyteller.

Develop your own content and promote it on social media platforms that you should have, like Facebook and Twitter. Whether it’s a story about a successful student or a positive economic development in your city, you can – and must – tell these stories every day. Use all your platforms like your website, newsletters, emails, even events – to promote these stories.

Develop a positive and consistent narrative to change or cement perceptions that you are doing a good job! This requires an investment but this is an investment with an important return – engaged and informed stakeholders.

If you believe communications is important to making sure your constituents and stakeholders know about all the good work your organization is doing then a strong, content driven, digital strategy is your answer.

Ed-headshotEd Coghlan is a principle with the JVA Group. He is a former LA news director with more than thirty years experience as a communications professional.

@EdCoghlan
ed@jvagroupla.com

From the Editor

Change is Inevitable

By: Victor Abalos

Everything has changed.

That much is as obvious as it is inevitable. What generates the anxiety that pervades is the uncertainty about what precisely this change will bring. We predict critical sometimes dramatic changes in how the work will get done. But what hasn’t changed – what cannot change – is what has to be done.

We will continue to support efforts to improve education outcomes for our students. They must truly be prepared for 21st Century jobs and careers. We continue to believe the development of a strong Latino middle-class is vital to California’s economic stability.

That’s why we are working with the Pat Brown Institute and their collaboration with the California Community Foundation to provide the leaders of the Southeast Cites and other so-called “710 Corridor” communities with vital data. If good data drives good policy then policymakers there have been given the tools to do nothing less than transform an entire region and the communities and families that live there.

We also strongly support efforts by policymakers to develop regional solutions. It’s why we’re endorsing the Local Government Association’s Yosemite Policymakers Conference this coming March.  Regional gatherings designed to help policymakers delve into policy issues is critical. The LGA has even provided our readers with a 10% discount on registration!

But the Southern California Latino Policy Center also recognizes that like strategies institutions must also adapt to change in order to remain relevant and effective.

We are working on a plan for 2017 and beyond to ensure our organization continues to be a useful force advancing change. Because everything must change.

 

Victor Abalos: Editor's Blog

Victor Abalos is Executive Director of the Southern California Latino Policy Center and Editor of the Latino Policy Connection.

victor@socalatinos.org
@SOCALatinos

From the Editor

Voting Rights Strategy Makes a Comeback

By Victor Abalos

dsc_6904

When MALDEF started suing or threatening to sue cities, school districts and other public entities over possible voting rights act violations back in the 90’s, Latino and other civil rights activists cheered. While redistricting had started to address the severe lack of representation Latinos and other “minorities” were dealing with in Congress, local governments had initially escaped their attention.

And while many cities and school districts fought back, the courts gradually vindicated MALDEF and the other plaintiffs in these kinds of lawsuits. These entities were forced to create districts that slowly created opportunities for Latinos to actually win elections in cities and districts where they had significant populations. There are now hundreds of Latinos representing California cities; school, community college and water districts; and even some (although not nearly enough) counties.

We are still far from adequate representation but we’ve made significant progress.

But a curious thing happened.

ballot_into_machine_maleWhen MALDEF recently decided to resurrect that strategy and send out a round of “demand letters” to local cities and school districts, several of them jumped immediately to change their voting systems from at-large to districts. Some jurisdictions didn’t even wait to get letters and started working on setting up districts. I spoke with a few lawyers who represent public entities who didn’t get letters who told me it was a simple calculation: Why resist when you’re going to lose and end up spending lots of money on legal fees?

But some cities are resisting and interestingly, those cities are currently lead by Latino policymakers. Adriana Maestas’ article in this month’s issue includes interviews with some of those officials.

Their resistance highlights the fundamental changes to our political environment that our region’s ever-changing demographics are creating – changes that are catching too many local policymakers unprepared. This situation also reveals the still unresolved tensions between ethnic and racial communities in this region that have been ignored for too long.

dsc_6985Victorville is one of those cities being challenged – not by MALDEF but by an attorney claiming to represent the African-American community there. Victorville is mostly Latino and white with a sizable African-American community. And while there are two Latinos on the council, there are no African-Americans.

How Victorville resolves this challenge – whether through negotiation or in the courts – provides a window into future voting rights challenges in California, and more importantly, whether Latinos policymakers now in power learn from history and provide ways for under-represented communities to have a voice. Or whether they’ll just wait to get a letter from MALDEF.

 

Victor Abalos: Editor's Blog

Victor Abalos is Executive Director of the Southern California Latino Policy Center and Editor of the Latino Policy Connection.

victor@socalatinos.org
@SOCALatinos

Voting Rights Challenges Target California Cities and School Districts

By Adriana Maestas
Latino Policy Connection

dsc_6955MALDEF, the national Latino civil rights organization, has once again begun targeting California cities and school districts threatening legal action unless they change the way they conduct their elections. This strategy has been used effectively in the past by MALDEF and other civil rights organizations, to challenge mostly white policy bodies in ethnically diverse cities and districts.

The Mexican American Legal Defense and Education Fund, commonly known as MALDEF, maintains those cities and school districts are using at-large voting to weaken the electoral influence of Latinos.

This new challenge was revealed through demand letters delivered to the cities of Placentia, Eastvale, Rialto, Redlands, La Mirada, Chino Hills and Monrovia, in addition to a handful of school districts including Lawndale Elementary and Victor Valley Unified High School Districts.

Separately:

  • The City of Santa Monica is being sued by local activists also for alleged voting rights violations
  • Fullerton is undergoing voting procedure changes because of a similar legal challenge
  • Anaheim was sued by the ACLU and settled that suit by creating districts – one of which is sure to produce a Latino council member.

The MALDEF letters demand changes by these entities from at-large voting to district voting or face a legal challenge. The letters have already spurred some cities into action to change their voting procedures while some have indicated they will put the decision before their voters.

ballot_into_machine_male

Although the numbers of Latino elected officials in this state has grown considerably since the passage of the CRVA, Latinos are still woefully under-represented in several parts of California. Last June, citing a survey by the California Latino Legislative Caucus and the Leadership California Institute, The Latino Policy Connection published a report that revealed the lack of political representation as the biggest threat to California Latino prosperity.

The Latino Policy Connection reached out to MALDEF as well as several local Latino policymakers to discuss the revival of this strategy and ask policymakers if they believed the strategy is effective. Although once praised by Latino civil rights activists, this threat of legal action to enforce voting rights apparently no longer enjoys widespread support.

dsc_6911

In 2014 in Whittier voters approved a measure changing the way council members were elected moving from at-large to district elections. Although Latinos make up nearly two-thirds of Whittier’s population, a Latino hadn’t been elected to the council since 1989.

“Up until April 2016, our council was all Anglo. In this last election, I was able to run a campaign that focused on my side of town,” said Josue Alvarado, who was elected to represent District One in Whittier last April.josue-alvarado

“Normally, it was the more affluent and conservative part of the city that would dominate the elections. For me, I’m a strong supporter of the district system, and I think that the City of Whittier is a good model for rolling it out. In the next election, we could even elect a Latina.”

It was a lawsuit by the Whittier Latino Coalition that lead to the change.

But not all Latino elected officials support district elections. Gloria Garcia, who is the first Latina mayor of Victorville, provided us with her perspective.gloria-garcia

“Our city is very intermingled so I’m not sure that voting districts will make sense for Victorville. Right now we don’t have districts; we elect people to the city council at-large. I’m not sure that I’m going to be happy with a district system in my city because I don’t think that you can say that one particular area is strictly this ethnic group or that.”

Currently, there are two Latinos on the city council in Victorville. Earlier this year an attorney in Victorville sent a letter to the city saying that the at-large system dilutes the influence of African-American voters. As of the 2010 census, Victorville’s population is 48.5% white, 48.7% Latino, 16.8% African-American, 4% Asian, and 1.4% Native American.

negrete-e-pose-4Victorville Council Member Eric Negrete agrees with Mayor Garcia their city doesn’t need to change their voting process but he says if a study underway reveals the current voting system leaves some communities out – he’d support the change.

“Things have changed, and we are in the process of adjusting to those changes. Our community is mixed very well, and I have reached out to the African-American community. I am concerned about having our communities of color being represented. So if the study recommends at-large districts, and we have to create those, I would get behind it.”

Even in cities where Latinos dominate the city council such as El Monte, Mayor Pro Tem Victoria Martinez offered her thoughts on at-large versus district elections.

victoria-martinez“It’s critical that those who have fought to be represented have an opportunity to collaborate with like-minded leaders to have their voices heard, and if they need to change the system to have that representation on boards, then yes, voting districts should be considered,” Martinez said.

In El Monte, Latinos constitute 69% of the population, and the next largest ethnic group is Asian at 25.1% as of the 2010 census.

Compton Community College District Trustee Sonia Lopez believes this issue is more than just about voting rights.

“I think the larger issue here is how we are engaging and motivating our communities to be involved in the electoral process. We have some of the lowest voter turnouts in history.  We have elected officials in communities of color being elected by a couple hundred votes.  We must do more.  Our strategies must change. We need to think of the future and how we can utilize technologies that will interest our young voters, or millennials that are our future. ”

Since 2004 attorneys from MALDEF as well as from several private firms, have filed about 30 lawsuits and have sent dozens of demand letters to attempt to set in motion the creation of voting districts. Approximately 210 jurisdictions that include community college boards, city councils and other local boards, have voluntarily changed voting systems, lost or settled in court, or put the issue before voters in a referendum.thomas-saenz

“The best thing for any city to do is not to litigate these issues or if they are faced with litigation, to resolve it quickly,” Thomas Saenz, MALDEF President and General Counsel told the Latino Policy Connection.

“MALDEF was one of the original sponsors of the CVRA (California Voting Rights Act), which applies where there is racially-polarized voting, meaning that after election after election, generally the Latino community has different views than the non-Latino community. This means that the Latino community is usually supporting different candidates and has their own preference for initiatives. In the context of racially polarized voting, an at-large system puts the Latino community or another minority group at a disadvantage because they cannot advance their preferred candidates,”

medina-head-shotMaribel Medina, an attorney who works on issues related to voting rights, said, “I think it is vital that we ensure Latinos are properly represented at all levels of government, particularly at the local level where policy has such an impact on the day-to-day lives of Latino families.”

Medina added, “but it’s just as important – and often overlooked – to make sure there are Latinos in positions of authority as administrators, managers, and lawyers. These people actually create and enforce the policies that our elected officials will vote on.”

Once voting districts are created in places where racially polarized voting was identified, Latinos need to continue to fight for representation beyond councils and on appointed boards and at the staff level to make sure that policies are enforced. The success that cities and other jurisdictions in California have in creating more opportunities will be a model in places like Texas and Arizona where there have been efforts to limit Latino civic participation.

Adriana 0814

 

Adriana Maestas is a Southern California-based writer and educator.

Policymaker Profile: Karina Macias – Huntington Park City Council

Karina MaciasKarina Macias was elected to the Huntington Park City Council in March 2013. Two years after her election, she was elected to serve as the Mayor of Huntington Park for the 2015-2016 term, making her the youngest Mayor in the history of the City.

Council Member Karina Macias grew up in Huntington Park as the only child of immigrant parents. She earned her Bachelor’s Degree in Political Science and Psychology, with a minor in International Studies from Mount St. Mary’s University in Los Angeles. Passionate about global issues, she then went on to earn her Master’s Degree in International Studies from Chapman University.

 

 

The Ethics Advisor

The Details Matter: Recusing Yourself Due to Conflict of Interest

By Ruben Duran

imgresOnce, when I had put a lot of time and attention into arranging the particulars of social engagement, an old acquaintance called me a “detallista.” At the time, I think she may have meant it more as a slight than a compliment, but today – as a lawyer – I understand the value and importance of being meticulous with details, especially for clients in the area of ethics.

A common situation that can sometimes trip up elected officials is the correct way to declare a conflict and recuse one’s self from any consideration of the matter.

As a refresher, you may remember from prior Ethics Advisor columns that it is not necessarily always illegal or unethical for a public official to have a financial conflict of interest in some item that is making its way through the channels of approval at a local agency. The ethical and legal problems arise when you try to influence – in any way – the outcome of the decision on the matter.

For example, suppose you learn that a future agenda item concerns your compadres’ property down the street. The house is within 500 feet of yours, and you and they have jointly invested in a small business venture (your investment is more than $2,000). You have correctly determined that you have a disqualifying conflict of interest and you fully intend to recuse yourself from voting on the matter when it comes to a vote at the meeting.

Prior to the public meeting, is it enough that you are aware of the conflict and intend to refrain from voting? No. You must also be sure that you say and do nothing prior to the meeting that could be seen as an attempt to influence the decision regarding your compas’ property. Under case law and FPPC decisions, “the decision” or “the action” is given a very broad meaning, and encompasses much more than the actual vote on the item. It means the planning, analysis and staff work leading up to a vote or other final action, and you could get into trouble for trying to sway or affect the decision in any way. The best way to avoid even the appearance that you might have tried to influence a decision is simply to stay away from the issue altogether.

At the public meeting, the law prescribes some very specific procedures for removing yourself if you have a conflict. First, once the item is announced by the presiding officer, you must state on the record the reason for your recusal and then you must leave the room while the item is being discussed. For example, “I have a conflict of interest on this matter because it involves property within 500 feet of my residence and the property owner and I are joint investors in the ACME Business Co., Inc.”

Then, you must leave the room.

Yes, leave the room. There are only a couple of exceptions to this rule:

443138First, you may remain in the room if the item on which you are conflicted is on the body’s consent calendar. The announcement would still be the same, and the minutes would reflect an abstention from that particular item on the consent agenda. You may vote on the remaining items on the consent calendar.

The second exception applies in the very narrow and limited circumstance where the item on which you are conflicted relates directly to your “personal interests.” These include:

  • Interests in real property wholly owned by you or your immediate family (in our example above, you might be allowed to rely on this exception to offer input as a member of the public if you did not also have a business investment with your compadres);
  • Interests in a business entity wholly owned by you or your immediate family; and
  • Interests in a business entity over which you (or you and your spouse or domestic partner) exercise sole direction and control.

Even though the regulation allows a public official to remain in the room when these interests are at stake, some officials balance their rights as individuals with their responsibility to maintain the public’s trust in both their leadership and the agency they serve by leaving the room after providing input related to their personal interest.

Apart from allowing us to maintain the public’s trust by compliance, strictly following these rules will keep us out of hot water with the Fair Political Practices Commission. The FPPC regularly prosecutes enforcement actions against public officials for failing to observe the rules, or even for failing to observe them completely. In other words, some public officials, even though they have gone through the trouble of identifying a potential conflict and have even attempted to put the conflict on the record and remove themselves from the decision, may still face scrutiny and potential liability if they failed to announce the conflict properly, or if they failed to leave the room at the appropriate time. Neither the Southern California Latino Policy Center nor the Ethics Advisor want you to be another headline or report on the FPPC’s website.

The Ethics Advisor: "It's Getting Hot"

Ruben Duran
ruben.duran@bbklaw.com
Follow me on Twitter @BBKRubenDuran
(213) 787-2569

Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.