RES-10634 Supporting Petition To Amend California Code of RegulationRESOLUTION NO. 10634
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF ORANGE SUPPORTING THE PETITION
TO AMEND TITLE 2, CALIFORNIA CODE OF
REGULATIONS SECTION 18705.5.
WHEREAS, Government Code Section 87100 of the Political Reform Act of 1974
Government Code Sections 81000 through 91014) prohibits a public official from making or
participating in the making of a decision which could have a reasonably foreseeable financial
effect on the public official's "financial interest "; and
WHEREAS, Government Code Section 871025(b)(2) states that a "financial interest"
means "an interest defined in Section 87103;" and
WHEREAS, Government Code Section 87103 provides that a public official generally
has a financial interest in a decision within the meaning of Government Code Section 87100 if it
is reasonably foreseeable that it will have a material financial effect on: (1) the public official,
which includes income to the public official; (2) on business entities or real property in which
the public official has a financial interests; or (3) on any of the public official's sources of gifts
and sources of income; and
WHEREAS, Government Code Section 82030 defines "income" as "a payment
received, including but not limited to "any salary, wage, advance, dividend,
interest... reimbursement for expenses, per diem," etc.; and
WHEREAS, notwithstanding the above, Government Code Section 82030(b) provides
that "income" does not include "salary or reimbursement for expenses or per them ... or other
similar benefit payments received from a state, local or federal government agency...;"
WHEREAS, pursuant to state law the City Council is required to appoint, from among
the members of the City Council, one of its members to sit on various regional boards of public
agencies in Orange County, such as the Vector Control District, Orange County Sanitation
District, Transportation Corridor Agency and others; and
WHEREAS, council members who are appointed to these boards typically receive a per
diem for each meeting of the board that they attend and thus, are receiving a "per diem" or
salary" from a local government agency, which pursuant to Government Code Section 82030
is not considered "income" and thus, not a "financial interest "; and
WHEREAS, the amount that council members receive for serving on these public
agency boards is governed by state law and within state law parameters is determined by the
boards of these public agencies, not by the City Council; and
WHEREAS, the Fair Political Practices Commission ( "FPPC ") is authorized pursuant
to Government Code Section 83112 to adopt, amend and rescind rules and regulations to carry
out the purposes of the Political Reform Act on the condition that such rules and regulations are
consistent with the Political Reform Act; and
WHEREAS, the FPPC has adopted a regulation, Title II, California Code of
Regulations, Section 18705.5 (the "Regulation "), which it has interpreted to preclude a
council member from voting on his or her appointment to a local agency board if it is
reasonably foreseeable that a council member could receive $250 or more during a 12 -month
period from that appointment; and
WHEREAS, in adopting the Regulation, the FPPC has, notwithstanding Government
Code Section's express language to the contrary, made the receipt of salary and per diem
from a local government agency a financial interest and thus, voting on appointments to a
local government agency that provides a salary or per diem, a violation of the Political
Reform Act; and
WHEREAS, the FPPC's apparently contradictory Regulation has resulted in the
entrapment of large numbers of even the most conscientious public officials; and
WHEREAS, the Regulation does nothing to further the primary purposes of the
Political Reform Act which are to insure a better informed electorate or to prevent corruption
of the political process, the two primary goals of the Political Reform Act.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Orange
hereby resolves as follows:
1. That the City Council supports the Petition filed by Ash Pirayou of the law
firm of Rutan & Tucker on behalf of the cities of Anaheim, Dana Point, Irvine, La Palma,
Newport Beach, San Clemente, Villa Park, and Yorba Linda.
2. That a certified copy of this Resolution be forward to the Fair Political
Practices Commission, along with the formal letter of support executed by the City Attorney,
a copy of which is attached hereto as Exhibit "A ", and incorporated herein by this reference.
ADOPTED this 28 day of February, 2012.
ATTEST:
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Mary rp ,City" er c, range
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I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby
certify that the foregoing Resolution was duly and regularly adopted by the City Council of
the City of Orange at a regular meeting thereof held on the 28` day of February, 2012, by the
following vote:
AYES: COUNCILMEMBERS: Smith, Cavecche, Bilodeau, Dumitru
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Whitaker
ABSTAIN: COUNCILMEMBERS: None
Mar urp , ity Clerk, City- range
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