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HomeMy WebLinkAbout02-21-2012 b5 legally required participationcounci lj aGEnaa aEpoat Meeting Date 2/21/1 2 Item Number B 5 C I T Y O F S A N L U I S O B I S P O FROM : J . Christine Dietrick, City Attorne y SUBJECT :CITY COUNCIL "LEGALLY REQUIRED PARTICIPATION" SELECTION PROCESS FOR CONSIDERATION OF FIRE HAZAR D MAP AMENDMENT OF THE GENERAL PLAN SAFETY ELEMEN T RECOMMENDATIO N Due to potential conflicts of interest of all City Council members, utilize a random means o f selection specified by the City clerk to select three Council members to participate in Council's consideration of proposed amendments to the fire hazard map in the Safety Element of th e General Plan . DISCUSSION Backgroun d The Safety Element of the City's General Plan includes a Fire Hazard Map, which identifies fir e hazard severity zones within the City . The City's map is based on the Fire Hazard Map formulate d by the California Department of Forestry and Fire Protection . Changes to the state map requir e amendment of the City's Safety Element for consistency with the state map, at a minimum . However, the City has discretion to designate additional Wildland-Urban Interface areas beyond th e fire hazard areas identified by the state (further detail regarding required action related to the Safet y Element amendment is set forth in Attachment 1). Because of the discretion afforded to the City, the Council has a variety of alternatives available to i t in amending the Fire Hazard Map . Next month Council will be asked to consider propose d amendments to the map and provide direction to staff regarding the scope of the fire hazard severit y zones to be reflected in the City's Safety Element . While staff's recommended alternative woul d not significantly deviate from the state map, alternatives presented for Council consideration coul d significantly broaden the identified risk areas and impose increased building standards in thes e areas . FPPC Revie w In advance of the Planning Commission's scheduled consideration of this matter, staff identified a possible conflict of interest potentially impacting several Planning Commissioners and the Assistan t City Attorney, resulting from the broader scope of one of the alternatives . Specifically, severa l Planning Commissioners and the Assistant City Attorney own property in or within 500 feet of th e boundary of one of the alternative high risk zones . Accordingly, staff requested the advice of the Fair Political Practices Commission (FPPC) as to whether the affected Commissioners could participate in the consideration of the item and whether the Assistant City Attorney could advise o n the matter (Attachment 1). Council Agenda Report — Legally Required Participation Process Page 2 The FPPC advised that the alternative under consideration had a "reasonably foreseeable materia l financial effect" on the real property interests of the Commissioners and the Assistant City Attorne y (Attachment 2). Thus, unless they were able to establish that the proposed alternative would no t have even "a penny's worth" of impact on the value of their real property, the Assistant Cit y Attorney and affected Commissioner's had a conflict of interest that precluded their participation i n the consideration of or advice on the Safety Element amendments . Because four of the Planning Commissioners were conflicted out and the relevant decisions can be made by the Council, th e matter was not presented to the Planning Commission . Required Disclosures In preparation to bring this matter to Council, staff created a Council conflict of interest ma p utilizing the boundaries of the proposed alternative and a 500 foot radius around each Counci l member's real property interest (Attachment 3). The map shows that the same potential conflict s that arose at the Planning Commission level exist as to all five Council members. Specifically, al l five Council members own real property within the proposed alternative Wildland Urban Interfac e boundary or within 500 feet of a boundary . Thus, unless a majority of Council members ca n affirmatively establish that the proposed alternative would not have even a penny's worth of impac t on their real property interest, all five Council members have disqualifying conflicts of interest . The "one penny rule" establishes an extremely high threshold for participation and makes participatio n unadvisable . The Political Reform Act Regulations, Section 18708, the "Legally Required Participation " provision, sets out the standard for legally required participation and the procedure to be followe d when a conflict precludes participation by a majority of the only body authorized to act on behalf o f the agency . Here, only the City Council can act on a General Plan amendment and such a n amendment must be approved by a majority of the body (i.e., the affirmative votes of thre e members), pursuant to both Government Code and City Charter requirements (Californi a Government Code Section 65356 and Charter Section 506). In accordance with the FPPC regulations, each Council member will be required to disclose on th e record the existence of the conflict, the real property interest implicated (i .e ., whether the conflic t relates to the personal residence of the Council member or another property interest ; if the interest is Other than the personal residence, the property address must be stated for the record). Staff will the n orally disclose the circumstances under which the potential conflict arises and the legal basis for th e conclusion that there is no alternative source of decision . All required disclosures are set forth in this report and will be orally disclosed by Council and th e City Attorney and recorded by the City Clerk at the Council meeting, as required . Process for Selecting Legally Required Participant s Following the disclosures, the City Clerk will conduct a random means of selecting the Counci l members who will participate in the consideration of this matter next month (drawing of lots). Because the regulations permit the participation of only the minimum number of Council member s necessary to act on the item, only three Council members are permitted to participate . Only those Council members selected for participation should interact with staff or act in advance of the item's consideration in any manner calculated to influence or participate in the decision . At the public Council Agenda Report — Legally Required Participation Process Page 3 meeting, the participation of Council members not selected is limited to that specifically authorize d by the FPPC regulations governing public participation on a matter impacting the Counci l member's individual interest (2 Cal . Code Regs §§ 18702 .4 and 18702 .5). FISCAL IMPAC T No fiscal impact beyond the additional staff effort to facilitate this process is anticipated . ALTERNATIVES Council could direct staff to attempt to "segment" the decision on the alternatives from the staff recommended option in order to facilitate greater Council participation . However, the Cit y Attorney concludes that the consideration of the staff recommendation and alternatives are s o "inextricably intertwined" that appropriate segmentation under the applicable legal requirements i s infeasible (2 Cal . Code Regs § 18709). Thus, this alternative is not recommended . ATTACHMENT S 1.Letter dated October 21, 2011 requesting FPPC advice on Planning Commission participation in Safety Element consideration . 2.FPPC Advice Letter dated December 13, 2011 . 3.Council conflict map . 4.Political Reform Act Regulation, Section 1870 8 T :\Council Agenda Reports\2012\2012-02-21\Council Participation Process - Fire safety Element Updat e (Dietrick)\CAR .Required Participation .Fire Safety .2012 .2 .21 .doc Attachment 1 city of san Luis oisp o 990 Palm Street, San Luis Obispo, CA 93401-324 9 October 21, 201 1 VIA FED EX OVERNIGHT MAI L Fair Political Practices Commissio n 428 J Street, Suite 62 0 Sacramento, CA 9581 4 Re :Request for Written Advice on certain Planning Commissioners' and staff's participation in decisions related to amendments of the Fire Hazards section of the City o f San Luis Obispo's General Plan . To Whom It May Concern : Pursuant to Government Code section 83114(b), I write on behalf of Plannin g Commission Chairperson Michael Multari, Planning Commissioner Vice-Chairperso n Mary Whittlesey, Planning Commissioner Michael Draze, Planning Commissioner Airli n Singewald and Assistant City Attorney Andrea Visveshwara, counsel to the Plannin g Commission, to seek written advice on the above-referenced matter . The foregoin g individuals have authorized me to seek this advice on their behalf. Background : State regulations require the identification of lands within very high fire hazar d severity zones. The California Department of Forestry and Fire Protection (Cal Fire) ha s formulated a map ("Fire Hazard Map ") designating moderate, high and very high fir e hazard severity zones for unincorporated areas, as well as areas of very high fire hazar d within Local Responsibility Areas - incorporated communities . The Building Cod e requires more stringent construction standards be applied within the very high fire hazar d severity zones, as well as within an area called the Wildland-Urban Interface (WUI). There is no specific mapping for the WUI and each community makes a determinatio n whether a WUI separate from the very high fire hazard zones will be designated . The City relies on the State's Fire Hazard Map within the Safety Element of th e General Plan . Accordingly, with the recent changes to the State's Fire Hazard Map, th e City must amend its Safety Element and its maps to accommodate the State's changes t o the Fire Hazard Map . The City, however, retains discretion to identify other potential fir e hazard areas in its amendments to the Safety Element and map . The updated map will b e used by the City to determine the appropriate building standards for new construction an d to address plans for new development . Property owners use these maps to comply with the natural hazards real estate disclosure requirements upon the sale of a property . The City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities . Telecommunications Device for the Deaf (805) 781-7410 . B5-4 Attachment 1 The Community Development Department is recommending that the Plannin g Commission recommend that the City Council adopt the State Fire Hazard Map an d amend the General Plan Policy to suggest that the city-wide Building Code be amende d to include more restrictions to address the City's location at the edge of continuous ope n areas subject to potential risk of wildland fire . It is staffs practice to present the Commission and the City Council with alternatives to the recommended action . One such alternative that may be considered b y the Commission is a recommendation for designation of the San Luis Obispo Fir e Department "Wildland Interface Pre-Fire Area" map area ("SLOFD Map") as th e Wildland Urban Interface area. The SLOFD map increases the WUI, not only around th e State's mandated Very High Zone, but also around the City's edge . The number of residents that are included in the Very High Zone and WUI as recommended by th e SLOFD Map is 3,525 . The 2010 Census reflects the City's population at 44,948 . Please note that the Planning Commission could consider extending the WUI beyond tha t boundary recommend by the San Luis Obispo Fire Department, which would result in a greater number of properties being included within the WUI area . Questions Presented: 1.May Chairperson Multari participate in the Planning Commission's consideration of whether to recommend that the City Council modify the State's Fire Hazard Map to designate additional fire hazard areas? Mr . Multari's personal residence, which he owns, is located in the WUI area a s proposed in the SLOFD map . 2.May Vice-Chairperson Whittlesey participate in the Planning Commission's consideration of whether to recommend that the City Council modify th e State's Fire Hazard Map to designate additional fire hazard areas? Ms . Whittlesey's personal residence, which she owns, is located in the WUI are a of the SLOFD Map . 3.May Planning Commissioner Draze participate in the Planning Commission's consideration of whether to recommend that the City Council modify th e State's Fire Hazard Map to designate additional fire hazard areas? Mr . Draze's personal residence, which he owns, is located within the SLOFD WUI area. 4.May Planning Commissioner Singewald participate in the Plannin g Commission's consideration of whether to recommend that the City Counci l modify the State's Fire Hazard Map to designate additional fire hazard areas ? Mr . Singewald's residential condominium is not within or even located withi n 500 feet of the SLOFD WUI area . However, the homeowner's association, o f which Mr . Singewald is a member by virtue of ownership of hi s condominium, owns common area property located in the SLOFD WUI area . Attachment 1 which Mr . Singewald is a member by virtue of ownership of hi s condominium, owns common area property located in the SLOFD WUI area . 5 . May Assistant City Attorney Visveshwara advise the Planning Commission i n its consideration of whether to recommend that the City Council modify th e State's Fire Hazard Map to designate additional fire hazard areas? Ms . Visveshwara's personal residence, which she owns, is located within 500 fee t of the boundary of the WUI area proposed by the SLOFD map . If you have any further questions, please feel free to contact me at the address o n the letterhead or alternatively, (805) 781-7140 or at cdietrick@slocity .org.For you r convenience, I have enclosed the staff report that was prepared for the Plannin g Commission . The item was not considered as scheduled due to the conflict concern s presented here and has been continued to allow for the parties to seek the input of th e FPPC on these issues . Thank you for your assistance in this matter. cc : Michael Multari, Planning Commission Chairperso n Mary Whittlesey, Planning Commission Vice-Chairperson Michael Draze, Planning Commissione r Airlin Singewald, Planning Commissione r Andrea Visveshwara, Assistant City Attorne y J . Christine Dietrick City Attorney Attachment 1 Cal Fir e Fire Hazar d Severity Zone s —City Unit — Railroad Tracks Local Area of Responsibility El Vary Ilgh State Area of Responsibility 1 liell Haan ldoderste sta.k, ra ;klueard Map rcc avvIwe t ek eC tivi vvlt tlt Vp 14411 vt SLOOGIS Al4e,roAkive MA I Pe&T1,T)pbsa 1,1 9tAY1=1it tvetm"tint WIdland Interface Areas w It-ttrl ED DEC 151St SLO CITY ATTORNE Y FAIR POLITICAL PRACTICES COMMISSIO N 428 J Street • Suite 620 • Sacramento, CA 95814-232 9 (916) 322-5660 •Fax (916) 322-0886 December 13, 201 1 J . Christine Dietric k City Attorne y 990 Palm Stree t San Luis Obispo, CA 93401-324 9 RE : Your Request for Advic e Our File No . A-11-200 Dear Ms . Dietrick: This letter is in response to your request for advice regarding the conflict-of-interes t provisions of the Political Reform Act (the "Act").1 Please note this letter is based on the fact s presented . The Fair Political Practices Commission (the "Commission") does not act as a finde r of fact when it renders assistance .(In re Oglesby (1975)1 FPPC Ops . 71 .) There are other bodies of law, separate and apart from the Act's conflict-of-interest provisions that may apply t o the situation you have described . We urge you to check with the Attorney General 's office t o determine whether any other laws are applicable in light of the facts you present . QUESTIONS 1.Does the Act prohibit members of the Planning Commission from participatin g in decisions regarding the adoption of (i) the state's designation of very high fire hazard areas, o r (ii) an alternate designation by the San Luis Obispo Fire Department that would includ e additional areas, if the commissioners own real property in or within 500 feet of the additional areas? 2.Does the Act prohibit the Assistant City Attorney from advising the Plannin g Commission regarding adoption of the state's designation or the alternate designation if sh e owns real property located within 500 feet of the additional areas ? CONCLUSION S 1 & 2 . Yes . The decisions will have a reasonably foreseeable material financial effec t on each of their economic interests in real property . t The Political Reform Act is contained in Government Code Sections 81000 through 91014 . All statutory references are to the Government Code, unless otherwise indicated. The regulations of the Fair Political Practice s Commission are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regulations . Al l regulatory references are to Title 2, Division 6 of the California Code of Regulations, unless otherwise indicated . B5-9 Attachment 2 File No. A-11-200 Page No.2 FACT S State regulations require the identification of lands within very high fire hazard severit y zones ("Very High Zones"). The California Department of Forestry and Fire Protection (Ca l Fire) has formulated a map (the "Fire Hazard Map") designating these zones . The Fire Hazard Map includes land within the City of San Luis Obispo (the "City"), as well as land i n unincorporated areas. The City's Building Code requires more stringent construction standards for Very Hig h Zone areas, as well as an area called the Wildland-Urban Interface (the "WUI Area"). There i s no specific mapping for the WUI Area . Each community makes a determination whether t o designate an area as a WUI Area, separate from Cal Fire's designation in the Fire Hazard Map . The City uses the Fire Hazard Map in its Safety Element of the General Plan . With recent changes to the Fire Hazard Map, the City must amend its Safety Element and maps t o reflect these changes . The City, however, retains discretion to identify other potential fire hazar d areas in its amendments to the Safety Element and map . The updated map will be used by th e City to determine the appropriate building standards for new construction and to address plan s for new development . Property owners use these maps to comply with the natural hazards rea l estate disclosure requirements upon sale of a property . The City's Community Development Department is recommending that the Plannin g Commission recommend to the City Council (i) adoption of the Fire Hazard Map, and (ii ) amendment of the General Plan to suggest building code amendments that would include mor e restrictions on building in areas at high risk of wldland fire . It is staff's practice to present the Planning Commission and the City Council wit h alternatives to a recommended action . One such alternative would be to designate the San Luis Obispo Fire Department "Wildland Interface Pre-Fire Area" map ("SLOFD Map") as the WU I Area (the "Alternate WUI Area"). The SLOFD map increases the WUI Area, not only aroun d the state's mandated Very High Zone, but also around the City's edge . There are 3,525 resident s in the Very High Zones and the Alternate WUI Area . The 2010 census reflects the City's population at 44,948 . In addition, the Planning Commission may consider extending the WU I Area suggested by the San Luis Obispo Fire Department, which would put a greater number o f properties in the WUI Area . Commissioners Multari, Whittlesey and Draze each own real property located in th e Alternate WUI Area . Commissioner Singewald owns a condominium and has a non-exclusiv e easement in his community's common areas, some of which are located in the Alternate WU I Area . Assistant City Attorney Visveshwara owns real property located within 500 feet of the Alternate WUI Area . The commissioners and Ms . Visveshwara are collectively referred t o herein as the "City Officials ." Attachment 2 File No . A-11-20 0 Page No .3 ANALYSIS Section 87100 prohibits any public official from making, participating in making, o r otherwise using his or her official position to influence a governmental decision in which th e official has a financial interest . The Commission has adopted an eight-step standard analysis fo r deciding whether an official has a disqualifying conflict of interest . (Regulation 18700(b).) The general rule, however, is that a conflict of interest exists whenever a public official makes a governmental decision which has a reasonably foreseeable material financial effect on one o r more of his or her financial interests . (Regulation 18700(a).) Step 1 . Are the City Officials "public officials" within the meaning of Section 87100 ? The Commissioner s Under Section 87200, members of a planning commission are public officials . Assistant City Attorney Visveshwara Section 82048 defines "public official" as "any member, officer, employee or consultan t of a state or local government agency ." "Local government agency" is defined to include cities . (Section 82041 .) As a City employee, Ms . Visveshwara is a public official . Step 2. Will the City Officials be making, participating in making, or using their officia l positions to influence a governmental decision ? A public official "makes a governmental decision" when the official, acting within th e authority of his or her office or position, votes on a matter, obligates or commits his or he r agency to any course of action, or enters into any contractual agreement on behalf of his or he r agency . (Regulation 18702 .1 .) A public official "participates in a governmental decision" when, acting within th e authority of his or her position and without significant intervening substantive review, the official negotiates, advises, or makes recommendations to the decisionmaker regarding th e governmental decision . (Regulation 18702 .2.) A public official is attempting to use his or her official position to influence a decision if , for the purpose of influencing, the official contacts or appears before any member, officer , employee, or consultant of his or her agency . (Regulation 18702 .3 .) Planning Commissioner s When the commissioners make decisions to recommend actions by the City counci l regarding the State Fire Hazard Map, the SLOFD map and alternative designations of the WU I B5 - 11 Attachment 2 File No . A-11-200 Page No .4 Area, they will be making, participating in making and influencing a governmental decision . (Regulations 18702 .2 and 18702 .3 (a)) Assistant City Attarnev Visveshwar a As the Assistant City Attorney, Ms . Visveshwara presumably exercises judgment and influences governmental decisions by advising and making recommendations to the Cit y Council, Planning Commission or City staff . If her advice is given "without significant intervening substantive review," Ms . Visveshwara is not deemed to have participated in makin g the decision . Ms . Visveshwara must look at each decision on a case-by-case basis . For example , it may be common for the City Attorney to review and approve advice before it goes to a decisionmaker, but occasionally Ms . Visveshwara gives advice directly, without review, to th e Planning Commission . For this reason, advice as to each decision must be analyzed separately . Step 3 . What are the City Officials' economic interests ? The Act's conflict-of-interest provisions apply only to conflicts of interest arisin g from certain enumerated economic interests . These economic interests are described in Sectio n 87103 and Regulations 18703-18703 .5, inclusive : •A public official has an economic interest in a business entity in which h e or she has a direct or indirect investment of $2,000 or more . (Section 87103(a); Regulatio n 18703 .1(a).) •A public official has an economic interest in a business entity in which he o r she is a director, officer, partner, trustee, employee, or holds any position of management . (Section 87103(d); Regulation 18703 .1(b).) •A public official has an economic interest in real property in which he or sh e has a direct or indirect interest of $2,000 or more. (Section 87103(b); Regulation 18703 .2 .) •An official has an economic interest in any source of income, includin g promised income, totaling $500 or more within 12 months prior to the decision . (Section 87103(c); Regulation 18703 .3 .) •A public official has an economic interest in any source of gifts to him or he r if the gifts total $420 or more within 12 months prior to the decision . (Section 87103(e); Regulation 18703 .4 .) •A public official has an economic interest in his or her personal expenses , income, assets, or liabilities, as well as those of his or her immediate family . This is commonl y referred to as the "personal financial effects" rule . (Section 87103 ; Regulation 18703 .5 .) Attachment 2 File No . A-11-200 Page No .5 Real Property Planning Commissioner s Commissioners Multari, Whittlesey and Draze each own real property located within th e WUI Area . Thus, each of them has an economic interest in their real property . Commissioner Singewald owns a condominium and has a non-exclusive easement in his community's commo n areas, some of which are located within 500 feet of the Alternate WUI Area . An interest in a condominium unit and the common area of the unit is a single property interest .2 Accordingly, Commissioner Singewald has a real property economic interest in property located within 50 0 feet of the Alternate WUI Area . (Regulation 18704 .2(a)(1).) Assistant City Attorney Visevshwara Ms . Visveshwara owns real property within 500 feet of the Alternate WUI area . Thus , she has an economic interest in her real property . Personal Finance s We point out that public officials always have an economic interest in their persona l finances . However, a financial effect on the value of real property owned directly or indirectl y by a public official is not considered a separate financial effect on the official's personal finance s and would not be analyzed separately under the "personal financial effects" rule . (Regulation 18705 .5(a).) Accordingly, the personal financial effects rule does not appear to apply to th e circumstances and we will not discuss it further . Step 4 . Will the economic interests of the City Officials be directly or indirectly involved i n decisions they will make, participate in making or influence as a public official ? Real Propert y Under Section 18704.2(axl), real property is directly involved in a governmenta l decision if: "(1) The real property in which the official has an interest, or any part of that real property, is located within 500 feet of the boundaries (or th e proposed boundaries) of the property which is the subject of the governmental decision . For purposes of subdivision (aX5), real property i s located `within 500 feet of the boundaries (or proposed boundaries) of th e real property which is the subject of the governmental decision' if any par t 2 The Commission has advised in the past regarding condominium ownership that the common area s surrounding a condominium complex has no separate marketable value from the condominium unit .(Munoz Advice Letter, No . 1-07-129 .) We have therefore advised that an interest in a condominium unit is inseparable fro m the interest in the common areas . (Id.) Attachment 2 File No . A-11-200 Page No .6 of the real property is within 500 feet of the boundaries (or proposed boundaries) of the redevelopment project area ." Because the real property in which the City Officials have an economic interest is located in, o r within 500 feet of, the Alternate WUI Area, the property is deemed to be directly involved .3 Step 5. What is the applicable materiality standard ? A conflict of interest may arise only when the reasonably foreseeable financia l effect of a governmental decision on a public official's economic interest is material . (Regulation 18700(a).) The financial effect of a governmental decision on real property that is directly involve d in the governmental decision is presumed to be material . This presumption may be rebutted b y proof that it is not reasonably foreseeable that the governmental decision will have any effect on the real property . (Regulation 18705 .2(a)(1).) Thus, "any financial effect" includes an effect tha t is as small as a penny's worth, and nothing in the facts you have presented indicates that th e presumption of materiality is rebutted . Step 6. Is it reasonably foreseeable that the financial effects of the governmental decisio n on the City Officials' economic interests will meet the applicable materiality standard ? Whether the financial consequences of a decision are reasonably foreseeable at the time a governmental decision is made depends on the facts of each particular case . A material financia l effect on an economic interest is "reasonably foreseeable" if it is substantially likely that one o r more of the materiality standards will be met as a result of the governmental decision . (Regulation 18706(a).) An effect need not be certain to be considered "reasonably foreseeable," but it must be more than a mere possibility .(In re Thorner (1975) 1 FPPC Ops . 198 .) Ultimately, whether a material financial effect is foreseeable at the time a decision i s made depends on facts and circumstances peculiar to each case . Because the Commission does not act as a finder of fact in providing advice (In re Oglesby,supra), the foreseeability of a particular financial effect is a determination that must be left, in most instances, to the informe d judgment of the official . Planning Commissioners You have indicated that the City's Building Code places more stringent constructio n standards on real property located in the WUI Area. These standards would apply to new construction and plans for development . It is conceivable that an owner of property in th e alternate WUI Area may wish to build additional buildings on the property, or replace existin g structures with new ones . If that were to occur, the designation of the WUI Area to include th e When a public official has an interest in one of two alternative options within a decision, the publi c official is disqualified as to the entire decision . Attachment 2 File No . A-11-20 0 Page No .7 City Officials' properties would most likely affect the value of the property by at least on e penny . You also state that sellers of property located in a WUI Area have a duty, under th e natural hazards real estate disclosure laws, to disclose to buyers that the property is located in th e WUI Area . Presumably, the purpose of these disclosure laws is to advise a buyer of conditions that would adversely affect the property and its value . Under these circumstances, decisions regarding the state's Fire Hazard map, the SLFO D map and alternative designations of the WUI Area will have a reasonably foreseeable materia l financial effect on the Planning Commissioners' economic interests . Assistant City Attorney Visveshwar a Ms . Visveshwara does not own real property in the WUI Area, but, rather, within 50 0 feet of the WUI Area . Rights or duties involving construction, or duties do disclose advers e conditions, on property in the WUI Area would not have the same effect on property locate d outside of the WUI Area, but within 500 feet of the area . As stated above, because the Commission does not act as a finder of fact in providing advice, the foreseeability of a particula r financial effect is a determination that must be left, in most instances, to the informed judgmen t of the official . Because we have no information regarding facts or circumstances as to th e decision's possible effects on Ms . Visveshwara's real property, we leave this determination t o Ms . Visveshwara's judgment . Steps 7 and 8. The "public generally" and "legally required participation" exceptions . Even if a material financial effect on a public official's economic interest is reasonabl y foreseeable, he or she still may not be disqualified if the financial effect of the governmenta l decision on the public official's economic interest is indistinguishable from its effect on th e public generally (Section 87103, Regulations 18700(b)(7) and 18707(a)), or if the official i s legally required to participate (Section 87103 ; Regulation 18708). You have not presented an y facts indicating that either of these exceptions is applicable to the Public Officials' situation . If you have other questions on this matter, please contact me at (916) 322-5660 . Sincerely, Zackery P . Morazzini General Counsel By : Valentina Joyc e Counsel, Legal Division VJ :jgl Attachment 2 Conflict of Interest Areas Attachment 3 City Council 500 Buffe r Wildland Interface Target Areas city of Sail IUIS omsp O ESLOr *+CIS Attachment 4 ATTACHMEN T (Regulations of the Fair Political Practices Commission, Title 2, Division 6, California Code o f Regulations .) § 18708. Legally Required Participation . (a)A public official who has a financial interest in a decision may establish that he or sh e is legally required to make or to participate in the making of a governmental decision within th e meaning of Government Code section 87101 only if there exists no alternative source of decisio n consistent with the purposes and terms of the statute authorizing the decision . (b)Whenever a public official who has a financial interest in a decision is legall y required to make or to participate in making such a decision, he or she shall state the existence o f the potential conflict as follows : (1) The public official shall disclose the existence of the conflict and describe wit h particularity the nature of the economic interest . "Particularity" as used in this regulation shall b e satisfied if the official discloses : (A)whether the conflict involves an investment, business position, interest in rea l property, or the receipt of income, loans or gifts ; (B)if the interest is an investment, the name of the business entity in which eac h investment is held ; if the interest is a business position, a general description of the busines s activity in which the business entity is engaged ; if the interest is real property, the address o r another indication of the location of the property, unless the property is the official's principal o r personal residence, in which case the official shall disclose this fact . For income, loans or gifts, the official shall disclose the person or entity that is the source . (2) The public official or another officer or employee of the agency shall give a summar y description of the circumstances under which he or she believes the conflict may arise . Attachment 4 (3)Either the public official or another officer or employee of the agency shall disclos e the legal basis for concluding that there is no alternative source of decision . (4)The disclosures required by this regulation shall be made in the following manner : (A)If the governmental decision is made during an open session of a public meeting, th e disclosures shall be made orally before the decision is made, by either the public official or b y another officer or employee of the agency . The information contained in the disclosures shall b e made part of the official public record either as a part of the minutes of the meeting or as a writing filed with the agency . The writing shall be prepared by the public official and/or an y officer or employee and shall be placed in a public file of the agency within 30 days after th e meeting ; or (B)If the governmental decision is made during a closed session of a public meeting, th e disclosures shall be made orally during the open session either before the body goes into close d session or immediately after the closed session . The information contained in the disclosure s shall be made part of the official public record either as a part of the minutes of the meeting or a s a writing filed with the agency . The writing shall be prepared by the public official and/or an y officer or employee and shall be placed in a public file of the agency within 30 days after th e meeting ; or (C)If the government decision is made or participated in other than during the open o r closed session of a public meeting, the disclosures shalt be made in writing and made part of th e official public record, either by the public official and/or by another officer or employee of th e agency . The writing shall be filed with the public official's appointing authority or supervisor an d shall be placed in a public file within 30 days after the public official makes or participates in th e decision . Where the public official has no appointing authority or supervisor, the disclosure(s) Attachment 4 shall be made in writing and filed with the agency official who maintains the records of th e agency's statements of economic interests, or other designated office for the maintenance of suc h disclosures, within 30 days of the making of or participating in the decision . (c) This regulation shall be construed narrowly, and shall : (1)Not be construed to permit an official, who is otherwise disqualified unde r Government Code section 87100, to vote to break a tie . (2)Not be construed to allow a member of any public agency, who is otherwis e disqualified under Government Code section 87100, to vote if a quorum can be convened o f other members of the agency who are not disqualified under Government Code section 87100 , whether or not such other members are actually present at the time of the disqualification . (3)Require participation by the smallest number of officials with a conflict that ar e "legally required" in order for the decision to be made . A random means of selection may b e used to select only the number of officials needed . When an official is selected, he or she i s selected for the duration of the proceedings in all related matters until his or her participation i s no longer legally required, or the need for invoking the exception no longer exists . (d) For purposes of this section, a "quorum" shall constitute the minimum number o f members required to conduct business and when the vote of a supermajority is required to adop t an item, the "quorum" shall be that minimum number of members needed for that adoption . Comment : Nothing in the provisions of subsection (b)(4)(B) is intended to cause a n agency or public official to reveal the confidences of a closed session contemplated by law . Fo r example, under the Brown Act (Government Code sections 54950 et seq .) a city council may enter a closed session to discuss personnel matters and need not publicly disclose the name of th e employee who is the subject of the meeting. (Government Code section 54957 .) This regulation Attachment 4 does not require a city council person who is legally required to participate in that closed sessio n to disclose that employee's name when the council member makes the record required by thi s regulation . Note : Authority cited : Section 83112, Government Code . Reference : Sections 81002, 81003 an d 87101, Government Code . HISTOR Y 1.New section filed 11-23-98 ; operative 11-23-98 pursuant to the 1974 version of Governmen t Code section 11380 .2 and title 2, California Code of Regulations, section 18312(d) and (e ) (Register 98, No . 48). 2.Editorial correction of 1 (Register 2000, No . 25). 3.Amendment of section and Note filed 1-10-2001 ; operative 2-1-2001 . Submitted to OAL fo r filing pursuant to Fair Political Practices Commission v . Office ofAdministrative Law, 3 Civi l C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27 , 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemakin g requirements) (Register 2001, No . 2). 4.Amendment of subsections (b)(4XA)-(B) filed 1-16-2002 ; operative 2-15-2002 (Registe r 2002, No . 3). 5.Amendment of subsections (a) and (b)(4XA)-(B) and amendment of Comment filed 12-20 - 2005 ; operative 1-19-2006 . Submitted to OAL for filing pursuant to Fair Political Practice s Commission v. Office of Administrative Law, 3 Civil C010924, California Court of Appeal, Thir d District Court of Appeal, unpublished decision, 1992 . (FPPC regulations only subject to 197 4 Administrative Procedure Act rulemaking requirements .) (Register 2005, No . 51). Page intentionally lef t blank .