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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: J 7 ` J 1 f Mary rp ,City" er c, range 2 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 3