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HomeMy WebLinkAboutCity Attorney Legal Opinion 1995 to12/14/01 • CITY OF HUNTINGTON BEACH Inter-Department Communication TO: HONORABLE MAYOR COOK AND MEMBERS OF THE CITY COUNCIL FROM: GAIL HUTTON, City Attorney DATE: December 14, 2001 SUBJECT: CITY COUNCIL COMMITTEE AND LIASON APPOINTMENTS We are informed that some questions have arisen regarding the annual City Council liaison and subcommittee appointments made by the incoming Mayor. The past practice has been for the Mayor to appoint Councilmembers to act as liaisons to other groups, and to serve on the Council's various subcommittees, subject to City Council approval by minute action. Please note that special legislation applies to the City's liaison to the Orange County Sanitation District.' Pursuant to Health & Safety Code Section 4730.65 (copy - attached), the City may appoint one member of the City Council to be a member of the OCSD's Board of Directors, and one additional member of the City Council may be appointed as an alternate member. G GAIL HUTTON — City Attorney cc: Connie Brockway, City Clerk Ray Silver, City Administrator William Workman, Asst. City Administrator Attachment: Section 4730 .65 �of the Health and Safety Code 'Prior to the District's consolidation,the Mayor and one other Councilmember were appointed to the Board.(Health &Safety Code Section 4730.) PDA/s:mayor&cc—council appointments § 4730.6 HEALTH . J SAFETY CODE Historical and Statutory Notes 19H Legislation Historical and Statutory Notes under .Elections Code.: Legislative findings, declarations, short title,and effec- § 18.5. tive date provisions relating to Stats.1999, a 550, see = Library References Health and Environment C-4.. C.J.S.Health and Environment§§ 7,8,11,56. e . 4730.65. _Orange County consolidated sanitation district; governing board; membership; attend-. ance ' (a) Notwithstanding Sections 4730,4730.1 and 47302, or any other provision of law,a sanitation district' in Orange County, that has been created by the consolidation, pursuant to the Cortese—Knox Local Government Reorganization Act of 1995(Division 3(commencing with Section 56000),Title 6, Gov.C.),of _ one or more sanitation districts, originally established pursuant to Section 4730, and one or more sanitation districts, originally established pursuant to Section 4730.1, shall be referred to,for purposes of Ws section only, as a consolidated sanitation district and the governing body shall be constituted in accordance with subdivision(b). 1 : (b) The governing body of the consolidated sanitation district shall be a board of directors composed of 1' all of the following: . (1) One member of the city council of each city located wholly.or partially within the district's .boundaries provided, however, a city within the consolidated district, the sewered portion of which city lies entirely within another sanitary district,shall have no representation on the board. .• (2) One member of the county board of supervisors. (3) One member of the governing body of each sanitary district,the whole or part of which is included . in the consolidated sanitation district. (4) One member of the governing body of s public agency empowered to and engaged in the collection, transportation,treatment, or disposal of sewage and which was a member agency of a sanitation district ' ..4 consolidated into a consolidated sanitation district. (c) The governing body of the coup and,each a sans district, and public agency that is a B._ g•. Y county city, th1Y P ag Y ." member"agency having a representative on the board of directors.of the consolidated sanitation district, may designate one of its members to act in the place of its regular member in'his or her absence or his or her inability to act. (d) No action shall be taken at any meeting of the consolidated district's board of directors unless a majority of all authorized members of the board of directors is in attendance. (e) A majority of the members of the board of directors present shall be required to approve or. otherwise act on any matter.except as otherwise required by law. (Added by Stats.1997,c.51 (AB.769), § 1.) § 4730.7. .•Delta Diablo Sanitation District; deposits of revenues; restrictions an investments a ?;� 'The governing board of the Delta Diablo Sanitation District may designate any depository or �'- depositories pursuant to Article 2(commencing with Section 53630)of Chapter 4 of Part 1 of Division 2 of. Title 5 of the Government Code for the custody of any or all revenue collected or received for operation and maintenance purposes. All moneys deposited with a designated depository or depositories shall be invested in checking accounts,-savings accounts, certificates of deposit; or other insured accounts. All. other district revenue,-including any moneys collected or received for the payment of principal and 1f interest on district'bonds, other indebtedness, or certificates of participation, and any moneys designated for capital outlay expenditure shall be paid into the county treasury to the credit of the district. Every , designated depository shall give security..sufficient to secure the district against possible loss and shall pay the warrants or checks drawn by the district for demands against the district under any rules as the governing board.may prescribe.: 1 (Added by Stats.1989,a 789, § 17.) 1 4730.8. Riverside county-, sanitation district governing board; functions Notwithstanding the provisions of Sections;14730,4730.1,and 47302,or any other provision of law,the governing board of a sanitation district in the County of Riverside that includes no territory within a ci shall be the county board of supervisors. Additions or changes*Indicated'by underline; -deletions`by`asterisks * ' 12 CITY OF HUNTINGTON BEACH =,`f;t:= HUNTINGTON BEACH CIT Y a,L_L R K CITY COUNCIL COMMUNICATION CITY OF H1i TfiVG 1 Ctki B E A C ii. CA 19qq SEA -2 P 12: 32 TO: Honorable Mayor and City Council Members FROM: Tom Harman, City Council Member DATE: September 2, 1999 SUBJECT: "H"Item for the September 7, 1999, City Council Meeting Request for City Council Approval to Release to the Public the City Attorney's Opinion Concerning the Retirement Tax Override ISSUE: The City Attorney recently provided the City Council with a written legal opinion concerning the legality of the Retirement Tax Override imposed by the City of Huntington Beach. The opinion is dated July 27, 1999 and is identified as RLS No. 99- 336. The opinion was labeled"Confidential; Attorney-Client Privilege"by the City Attorney. According to the City Attorney, this legal opinion cannot be released to the public without the consent of a majority of the City Council. (It should be noted that I do not agree with that position). Members of the public have requested that the written opinion be made available to the public. I support that request. I am a strong advocate and supporter of open government: The city should not in any way hide information from the public or take any action that would have the appearance that the city is attempting to hide something from the public. For this reason, I feel strongly that the legal opinion should be released to the public. This memo and the request contained herein should not be interpreted as a criticism of the City Attorney. Her action of claiming the attorney-client privilege on the opinion communicated to the City Council is entirely correct and appropriate under the circumstances. However,the client and not the attorney holds the attorney-client privilege. Accordingly, the client has the right to waive-the privilege and release the confidential communication if that is what the client wants to do. That is exactly what I am requesting of the City Council. MOTION: I move that the City Council waive the attorney-client privilege as it relates to the legal opinion concerning the Retirement Tax Override(RLS No. 99-336) and authorize the release of this document to members of the general public. TH:lp Xc: Connie Brockway Ray Silver Q Melanie Fallon Gail Hutton � �/ t � 5n , 5O FE CITY OF HUNTINGTON BEACH Inter-Department Communication TO: Connie Brockway, City Clerk FROM: Gail Hutton, City Attorney r- y DATE: May 30, 2000 -7 SUBJECT: PLC Appeal—RLS 00-520 INDEX: Appeals; Legislative Actions; Local Coastal Program Amendments BACKGROUND On March 28, 2000, the Planning Commission heard several items related to a proposed 10-unit project on the 2.7 acre unincorporated area immediately north of the Edwards Street Fire Station. These items included: Zoning Text Amendment#00-1; Negative Declaration#99-18; Local Coastal Program Amendment#00-1; Zoning Map Amendment#99-2; and a request to annex the property into the City(collectively, the "legislative actions"). The Commission recommended approval of the legislative actions. On April.11, 2000, the Commission decided to reconsider its recommendation of approval of the legislative actions. The reconsideration took place on May 9,2000. After reconsideration, the Commission reversed itself, and decided to recommend denial of legislative actions. On May 23, 2000, the City Clerk received Council-member Pam Julien's request to appeal the Commission's decision to recommend denial of the legislative actions. ISSUES 1. Is Council-member Julien's appeal timely? Answer: No. It was filed after the expiration of the ten day time limit. 2. Do the legislative actions need to be appealed, or are they automatically forwarded to the City Council for consideration? Answer: The legislative actions in question comprise a Local Coastal Program Amendment. Therefore, the Zoning Ordinance requires that the LCPA be considered for adoption by the City Council (HBZSO, Section 247.16(B)(3). Thus, no appeal is necessary, and the matter is automatically forwarded to the City Council for review. 1 4/sA-2000Memos:City Clerk—PLC Appeal ANALYSIS The time limit to file an appeal to a decision from the Planning Commission is ten calendar days after the date of the decision. (HBZSO Section 248.16; see also memorandum from Gail Hutton to Connie Brockway dated June 22, 1989, a copy of which is attached hereto.) Here, the decision was made on May 9, 2000. Thus, the appeal must have been filed with the City Clerk by May 19, 2000, in order to be timely. Since the appeal was not filed with the Clerk until May 23, it is not timely. The Zoning Code generally states that unless it is appealed, a Planning Commission denial of a zoning map amendment or zoning text amendment terminates the proceeding. (HBZSO Section 247.12.) However, when the matter in question is an amendment to the City's Local Coastal Program,the Code provides that the Planning Commission's recommendation regarding the amendment must be considered by the City Council. (HBZSO Section 247.16 (B)(3).) Thus, it was unnecessary to appeal the legislative actions, because they comprised an amendment to the City's Local Coastal Program, and must automatically be reviewed by the City Council. If you have any further questions, please contact me at your earliest convenience. GAIL HUTTON City Attorney Attachment c: Honorable Mayor Garofalo and City Councilmembers Ray Silver, City Administrator Howard Zelefsky, Planning Director 2 4-2000Memos:City Clerk—PLC Appeal CITY OF HUNTINGTON BEACH Lo INTER-DEPARTMENT COMMUNICATION HUNnNG70N BEACH To Connie Brockway From Gail Hutton City Clerk City Attorney Subject Appeal of Councilwoman Date June 22, 1989 Winchell from Planning Commission' s Action EIR 89-3 and TT13920 QUESTION Was the appeal filed by Councilwoman Grace Winchell validly filed? ANSWER No. FACTS The action of the Planning Commission' s approval of EIR 89-3 and TT13920 was taken on June 6, 1989 . Councilwoman. Winchell ' s appeal was filed with the clerk' s office on June 19 , 1989 . According to Councilwoman Winchell, on June 5, 1989 she gave a note to the _ council secretary with instructions to file the appeal . The appeal was typed that day and left for Councilwoman Winchell ' s signature. It was not signed until June 19, 1989 , which is the day it was delivered to the City Clerk for filing . ANALYSIS The rule concerning appeals from the Planning Commission is found in the Huntington Beach Ordinance Code, Title 9 Article 998 . This section states that an appeal must be taken within ten (10) days . The. Huntington Beach Ordinance Code provides no relief to a late filing requirement. Search has disclosed no prior legal opinions from this office- on this issue. In Yoakley, Zoning Law & Practice § 13, paragraph 5, the author states, "Where the appeal is not timely perfected the board. is without authority to hear the appeal on the merits . " (cites) . In Rathkopf, The Law of Planning and Zoning, page 41-43, -the following appears, "Where (the) rule . . . require(d) that an appeal be taken within 30 days after the decision complained of, it was held that the board had no authority to hear an appeal on the merits" (when the notice was late) . (cites) . Given these authorities we conclude that there is no jurisdiction forrj the council to hear the late appeal of Mrs . Winchell . GAIL HUTTON City Attorney DATE: May 23, 2000 TO: Gail Hutton, City Attorney FROM: Connie Brockway, City Clerk RE: Appeal of Planning Commission Denial of ZTA-00-1/ND 99-18 LCPA-001 (PLC Land Company Annexation, Zoning Designation and 10 Unit Single Family Residential Subdivision) — (Filed by Councilmember Pam Julien) Transmitted for your review is the above referenced late appeal filed in the City Clerk's Office on May 23, 2000. This date is past the deadline for receipt in the Office of the City Clerk. City staff has informed me that there may be a question as to whether the Planning Commission appeal time was to have commenced on May 9. Administration and Planning staff will be informing your office of this question. Attached for your review is a legal opinion your office provided to me in the past relative to a late appeal filed by Councilmember Grace Winchell. I do not want to advise Councilmember Julien of a rejection of her appeal as late without advice from your office. CC: Councilmember Pam Julien Mayor and Councilmembers Ray Silver, City Administration Howard Zelefsky, Planning Director Scott Hess, Principal Planner Herb Fauland, Senior Planner Wayne Carvalho, Associate Planner G:\Cbmemo\2000CbmemLLate Appeal Julien.doc-mp f" CITY OF HUNTINGTON BEACH City Council Communication TO: Connie Brockway, City Clerk FROM: Pam Julien, Council Member DATE: May 16,2000 SUBJECT: APPEAL OF ZONING TEXT AMENDMENT NO. 00-1/ZONING MAP AMENDMENT NO.99-21LOCAL COASTAL PROGRAM AMENDMENT NO. 00-1/NEGATIVE DECLARATION NO. 99-18 (PLC Land Co. Annexation,Zoning Designation, and 10 unit Single Family Residential Subdivision) I am requesting an appeal of the subject applications which were denied by the Planning Commission on May 9,2000. This will allow the Council to review the annexation request,the proposed zoning designation,as well as the design of the proposed single family residential subdivision. cc: Councilmembers Ray Silver, City Administrator Howard Zelefsky,Planning Director Scott Hess,Principal Planner Herb Fauland, Senior Planner Wayne Carvalho, Associate Planner Z =t1 V E Z cool a0 'P.JV32 NQ1'-1N!!NnH J0 ,k1f0 148-l0 )1110 • CITY OF HUNTINGTON EACH INTER-DEPARTMENT COMMUNICATION HUNTWGTON BEACH - To Connie Brockway From Gail Hutton City Clerk City Attorney Subject Appeal of Councilwoman Date June 22, 1989 Winchell from Planning Commission' s Action EIR 89-3 and TT13920 QUESTION Was the appeal filed by Councilwoman Grace Winchell validly filed? ANSWER No. FACTS The action of the Planning Commission' s approval of EIR 89-3 and TT13920 was taken on June 6, 1989 . Councilwoman Winchell ' s appeal was filed with the clerk' s office on June 19 , 1989 . According to Councilwoman Winchell, on June 5, 1989 she gave a note to the _ council secretary with instructions to file the appeal . The appeal was typed that day and left for Councilwoman Winchell ' s signature. It was not signed until June 19, 1989 , which is the day it was delivered to the City Clerk for filing . ANALYSIS The rule concerning appeals from the Planning Commission is found in the Huntington Beach Ordinance Code, Title 9 Article 998 . This section states that an appeal must be taken within ten (10) days . The. Huntington Beach Ordinance Code provides no relief to a late filing requirement. Search has disclosed no prior legal opinions from this office- on this issue. In Yoakley, Zoning Law & Practice § 13, paragraph 5, the author states, "Where the appeal is not timely perfected the board_ is without authority to hear the appeal on the merits . " (cites) . In Rathkopf, The Law of Planning and Zoning, page 41-43, -the following appears, "Where (the) rule . . require(d) that an appeal be taken within 30 days after the decision complained of, it was held that the board had no authority to hear an appeal on the merits" (when the notice was late) . (cites) : Given these authorities we conclude that there is no jurisdiction for the council to hear the late appeal of Mrs . Winchell . GAIL HUTTON City Attorney CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH TO: Honorable Shirley Dettloff,Mayor, and Members of the City Council FROM: Gail Hutton, City Attorney DATE: August 12, 1998 SUBJECT: Allegations of Conflict of Interests raised by the Huntington Beach Independent regarding Councilmembers David Garofalo and Peter Green The Huntington Beach Independent recently ran a story quoting others stating that Councilmembers Green and Garofalo had violated Government Code Section 1090 when they approved a grant of City funds to the Huntington Beach Convention and Visitors' Bureau. Although this was.the lead part of the story,there were also additional allegations made concerning Councilmember Garofalo's receipt of advertising revenue. This memo only addresses the former issue. The latter is being referred to the FPPC for an advice letter, at the request of Councilmember Garofalo. As to the grant to the Visitors Bureau,the facts are as follows: In July 1995, the Economic Development Department requested the City Attorney's advice regarding whether Councilmembers Green and Garofalo could vote on a grant to the Huntington Beach Convention and Visitors' Bureau. At that time, it was the City Attorney's understanding that the Bureau was a nonprofit corporation and that the two councilmembers were also simultaneously serving as unsalaried members of the Board of Directors of the Bureau. On July 28, 1995,we wrote our opinion addressing Government Code Section 1090. Section 1090 addresses financial interests in government contracts. It basically prohibits a public official from being financially interested in a contract in both his or her private and public capacities. Where applicable, it not only prohibits a public official from having a financial interest in a public contract,but also prohibits the City from entering into the contract, even if the public official abstains from voting on the matter. However, it is subject to a number of exceptions: If the interest is deemed as "remote," then abstention from voting would allow the City to enter into the contract(Government Code § 1091(a)(b)(1)); if the relationship is deemed a"non-interest," then the City may enter into the contract, and the councilmember merely must disclose the \ relationship,but still may vote on the contract(Government Code § 1091.5(a)(8)). \ 1 SF/s:SF-98Memos:2M&CC811 8/12/98-#7 Based upon our understanding that the Conventions and Visitor's Bureau was a nonprofit corporation, on July 28, 1995 we concluded that the two councilmembers had a "remote" interest in a contract, and we advised that Councilmembers Green and Garofalo were obligated to abstain from voting in order for the City to approve the contract. The Request for Council Action("RCA") was presented on August 7, 1995. It expressly stated that Councilmembers Green and Garofalo were not to vote on the grant because of their remote interest in the contract. The RCA provided the Recommended Action as follows: "Recommended Action: Approve the attached Grant Agreement between the City of Huntington Beach and the Conference and Visitor Bureau and authorize the Mayor and City Clerk to execute the document and release funds for$190,000. Note that Council Members Garofalo and Green are members of the Board of Directors of this non-profit corporation. They receive no renumeration for their services. As such, they are considered remotely interested in this contract, as that term is used in California Government Code section 1091. Before the vote on the question of entering into the agreement, this interest must be noted in the record. The vote then must be taken without the participation of council Members Garofalo and Green." (Emphasis added.) Council then approved the RCA. However,because this grant was part of the consent calendar (where the Council's vote is taken on many "E items" by one vote)the City Council meeting, minutes were recorded as a 7-0 vote, like all the other items on the consent calendar and no one read the RCA which showed abstentions should be made and the reasons. (Note. the City Clerk has stated that she will not draft the minutes according to the recommended action that the two councilmembers, Green and Garofalo, abstained and reported their "remote interest," as opposed to the actual 7-0 vote. The Clerk further recommends that future agenda items where there is a legal reason for abstention should be agendized as "F" items and not "E" items. I concur.) Although the disclosure of the remote interest and abstention provided in the RCA and Recommended Action was not "read into the oral record," it remains evidence in the written administrative record that Council had formally approved the disclosure and abstention which then should have been as a 5-2 vote (Green and Garofalo abstention). It should also be noted that when the Council approved a similar RCA for Bureau funding on October 7, 1996,the recommended action again included a provision that Councilmembers Garofalo and Green would be abstaining. The original October 7, 1996 minutes were in error as the abstention voiced by Green and Garofalo was recorded by the Clerk as Sullivan and Green. (The Clerk heard incorrectly, and did not take abstentions from an RCA.) However, at the April 20, 1998, Council meeting,the City Clerk caused this error to be corrected as she listened to the video tape and found that she had recorded Sullivan and Green as abstaining but the voices on the video were Garofalo and Green. 2 S F/s:SF-98 Memos:2M&CC811 8/12/98-#7 In addition, we have since learned that the Visitors' Bureau is not only a nonprofit corporation, but is also a tax exempt corporation. Serving on the board of directors of a tax exempt, nonprofit corporation is deemed to be a non-interest under Government Code Section 1091.5, and as such, Councilmembers Green and Garofalo could have voted on the grant so long as their status as a non-compensated officer of the corporation was noted in the official records of the meeting. In summary,the newspaper article stated that Councilmembers Green and Garofalo voted on a grant to the Bureau although the RCA stated that the Councilmembers were not voting. In our opinion there was no violation of Section 1090 for voting on this item. Further, even if Councilmembers Green and Garofalo had voted on the grant, based upon the facts we have since learned that vote would have been permitted. If you should have any questions concerning this matter, I'll be pleased to answer them. The newspaper article also suggested that Councilmember Garofalo's situation was unique because of the fact that he not only was a member of the Board of Directors of the Bureau, but also had a contract with the Bureau to publish a Visitor's Guide, and as a result of that contract, received revenues through the sale of advertising space in the Guide. Government Code Section 1090 requires the government official have a "financial interest" in the contract in order for there to be a violation of the law. The term "financial interest" is not defined by statute, but has been analyzed through a number of court decisions. In this case, none of the City grant money was ever paid to Councilmember Garofalo by the Bureau. Instead,the money Mr. Garofalo received was from advertisers. To date, there has been no court decision analyzing a situation comparable to this. The cases do not require a direct payment of money, but do require that the government contract at least "enhance" the contractual interest of the contracting party. Whether this type of relationship amounts to such a enhancement is unclear. We do note that in his book entitled "Conflicts of Interest" (1998),the Attorney General has stated that being a supplier of services or goods to a contracting party may amount to a financial interest. Consequently, we will be discussing this matter further with the Attorney General's office. GAIL HUTTON City Attorney Attachments: 1) July 28, 1995 Opinion 2) RCA re: Bureau Grant, dated August 7, 1995 3) Minutes of City Council Meeting of August 7, 1995 4) RCA re: Bureau Grant, dated October 7, 1998 5) Minutes of April 20, 1998 Council meeting, correcting the October 7, 1996 Minutes 6) Corrected Minutes of October 7, 1996 Minutes c: Ray Silver, City Administrator Michael Dolder, Acting Assistant City Administrator Connie Brockway, City Clerk 3 S F/s:SF-98Memos:2M&CC811 8/12/98-#7 Attachment 1 HB CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION TO: HON. MAYOR AND CITY COUNCIL MEMBERS FROM: GAIL HUTTON, City Attorney DATE: July 28, 1995 SUBJECT: Agenda item , Grant Agreement between the City and the Convention and Visitors Bureau Councilmen Garfalo and Green are members of the Board of Directors of the Huntington Beach Convention and Visitors Bureau, a non-profit corporation. They receive no remuneration for their services. ' Under California Government Code section 1090, city officers are prohibited from being financially interested in any contract made by them in their official capacity,.unless they have only � "remote interest" in that contact. Financial interest would include the situation where the Councilmember is a member of a corporation which is the beneficiary of the agreement. "Remote interest" is defined at section 1091 of the California Government Code. That section provides that an officer of a nonprofit corporation, who receives no payment for his services, is considered remotely interested in a contract, for purposes of section 1090. When such a remote interest exists, the City Council may still enter into the proposed agreement, however before the vote on the question, this "remote interest' must be noted in the record and then the vote must be taken without the participation of the parties with the interest, in this case Councilmen Garfalo and Green. GAIL HUTTON, City Attorney /scl c: Michael T. Uberuaga, City Administrator Ray Silver, Assistant City Administrator Jim Lamb, Project Manager 7/green f r. ..;'� .. j�c•� �-�f-.,. dam.. LIMY OF HUNTINGTON BEACH Attachmentv2 MEETING DATE: August 7, 1995 DEPARTMENT ID NUMBER: ED 95-24 Council/Agency Meeting Held: S, Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied City Clerk's Si natu Council Meeting Date: August?-.1995 _ = - Department ID Number. ED 95-24 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: MICHAEL T. UBERUAGA, City Administr + PREPARED BY: RAY SILVER, Assistant City Administrator; Acting Director o Economic Development SUBJECT: APPROVAL OF GRANT AGREEMENT WITH THE HUNTINGTON BEACH CONFERENCE AND VISITORS BUREAU, INC. FOR FISCAL YEAR 1995-96 Statement of Issue,Funding Source,Recorrrnended Action,Alternative Action,Analysis,Environmental Status,Attachment(s) Statement of Issue: The Huntington Beach Conference and Visitors Bureau submitted their annual request for funds for the 1995-96 fiscal year in the amount of $190,000. This amount is an increase of $17,500, or 10%, over their level of funding which has been held constant since 1990-91. Staff is now recommending approval of the attached 12 month contract for $190,000 for Fiscal Year 1995/96. Funding Source: $190,000 of redevelopment tax increment funds are transferred 4o the General Fund for this program. Recommended Action: Approve the attached Grant Agreement between the City of Huntington Beach and the Conference and Visitor Bureau and authorize the Mayor and City Clerk to execute the document and release funds for $190,000. Note that Council Members Garofalo and Green are members of the Board of-Directors of this.non-profit corporation. They receive no renumeration for their services. A$ such, they are considered 'remotely interested in this contract, as that term is used in California Government Code section 1091. Before the vote on the question of entering into the .,agreement, this interest must be noted in the record. 'The vote then must be taken without the participation of Council Members Garofalo and Green.. RCA95-24.DOC -2- 07128195 4:21 P1,A (� Attachment 3 Pagc 8-Council/Agcnc, ;cnda-8/7/95 (8) E-5. (City Council) Ratification of Reappointments to Public Facilities Corporation Board of Directors - Belsitofffilson/Sprague - Ratify the appointments by the Public Facilities Corporation of Floyd G. Belsito, David J. Wilson and Caroline Sprague each for another three year term on the,Huntington Beach Public Facilities Corporation Board of Directors. Their terms will expire in July 1998. Prepared by Administrative Services. (125.10) + . [Approved 6-1 (Dettloff - Abstain)(Sullivan - No - Belsito)] E-6. (City Council) Approval of Grant Agreement- Huntington Beach Conference and Visitors Bureau, Inc. - FY 1995-96-Approve, and authorize the Mayor and City Clerk to execute, the "Grant Agreement Between the City of Huntington Beach and the Huntington Beach Conference and Visitors Bureau for Public. Relations Services and to release funds in the amount of S190,000." Prepared by Economic Development. (600.10) [Adopted 7-0) E-7. (City Council) Agreement - Liebert, Cassidy and Frierson - Labor Relations Services - Consultant- Approve and authorize the Mayor and City Clerk to execute the "Agreement Between the City of Huntington Beach and Liebert, Cassidy & Frierson, a Professional Corporation, for Labor Relations and Legal Services". ($100,000.00). Prepared by Administrative Services. (600.10) [Adopted 7-0] E-8. (City Council) Settlement Agreement& Release Concerning Litigation - Ben Trainer- 303 Third Street-Authorize the Mayor and City Clerk to execute the Settlement Agreement and Release By and Between the City of Huntington Beach and Ben Trainer Concerning Litigation Regarding the Development of Certain Real Property Located at 303 Third Street in Huntington Beach. Prepared by Administrative Services. (600.10) [Adopted 7-0] _ Attachment 4 Council/Agency Meeting Held: Deferred/Continued to: ❑Approved ❑ Conditionally Approved ❑ Denied City Clerk's Signature Council Meeting Date: October 7,-1996.,... Depaftment ID Number. ED 96-63 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: MICHAEL T. UBERUAGA, City Administrator PREPARED BY: DAVID C. BIGGS, Director of Economic Developmen SUBJECT: APPROVAL OF GRANT AGREEMENT WITH THE HUNTINGTON BEACH CONFERENCE AND VISITORS BUREAU, INC. (HBCVB) FOR FISCAL YEAR 1996-97 statement of issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: The Huntington Beach Conference and Visitors Bureau submitted its annual request for funds for the 1996-97 fiscal year in the amount of $190,000. This is the same dollar amount as granted by the City in the current fiscal year. Staff is now recommending approval of the attached 12 month contract for $190,000 for Fiscal Year 1996/97. Fundinq Source: Grant Agreement adopted in FY 1996/97 budget. - Recommended Action: - — 1. Note in City official record that Council Members Garofalo and Green have "remote interest" in the Agreement, pursuant to Government Code Section 1091 (a) and (b)(1), and. that'vote. by City Council on this Agreement will be held*in accordance with the 'guidelines set forth in Section.1091. (See additional explanation in Analysis section). 2. Approve the attached.Grant Agreement between the City of Huntington Beach and the Conference and Visitor Bureau and authorize the Mayor and City Clerk to execute the document and release funds of$190,000. K._.4UEST FOR COUNCIL ACTT...: MEETING DATE: October 7, 1996 DEPARTMENT ID NUMBER: ED 96-63 Alternative Action(s): Modify portions of the Agreement, Analysis: The Huntington Beach Conference and Visitors Bureau was formed in November 1989 to represent the community in the solicitation of leisure travelers, tour groups, and conferences. The Bureau has developed a Huntington Beach Visitor's Guide, a Meeting Planners' Kit, and a four-color rack brochure in five languages. The Bureau is also the place where visitors find information about what to see and do in Huntington Beach and the surrounding area. Their focus for the 1996-97 fiscal year will be on marketing the Eco- tourism opportunities in the City and to continue world-wide marketing for visitors. Note that Council Members Garofalo and Green are members of the Board of Directors of this non-profit corporation. They receive no compensation for their services. As such, they are considered "remotely interested° in this contract, as that term is used in California Government Code Section 1091. Before the vote on the question of entering into the Agreement, this remote interest must be noted in the "official records, and thereafter the body or board [i.e., City Council] authorizes, approves, or ratifies the contract in good faith by a vote of its membership sufficient for the purpose without counting the vote or votes of the officer or member with the-remote interest! Environmental Status: Not Applicable. Attachment(s): "Page-City Clerk s e 1 Grant Agreement nt _ 2. HBCVB 1996-97- 12 Month Budget 3 Letter of August ust 28 19 96 4. Government Code Section 1091 RCA9663.DOC -2- 09/24/96 4:41 PM Attachment 5 "k/20/98 -City Council/Redevelopme kgency Minutes -Page 15 CONSENT CALENDAR- ITEMS APPROVED On motion by Green, second Garofalo, Council approved the following Consent Calendar items as recommended by the following roll call vote: AYES: Harman, Green, Dettloff, Bauer, Sullivan, Garofalo NOES: None ABSENT: Julien (CITY COUNCIL/REDEVELOPMENT AGENCY) MINUTES -Approved and adopted the minutes of the City Council/Redevelopment Agency adjourned regular meetings of March 27, 1998, March 28, 1998, March 30, 1998, and regular meeting of April 6, 1998 and corrected Page 17 a Paae_ 0 of the regular meeting of October 7 9 6 as written and on file in the Office of the City Clerk. (CITY COUNCIL)APPROVED CONSTRUCTION CONTRACT FOR THE WHEELCHAIR RAMP CONSTRUCTION IN THE AMBERLEAF AND FLORIDA/UTICA ENCHANCEMENT AREAS -CC-1016 -C.J. CONSTRUCTION, INC. - 1. Approved the lowest responsive/responsible bid in the amount of$39,975 submitted by the C.J. Construction, Inc., for the Wheelchair Ramp Construction in the Amberleaf and Florida/Utica Enhancement Areas, CC-1016; and 2. Authorized the Mayor and City Clerk to execute the construction contract in a.� the amount of$39,975; and 3. Authorized the Public Works Department to expend a total of $50,000 including the contract amount of$39,975, anticipated construction change orders of $5,025 and supplemental expenditures of$5,000. (CITY COUNCIL)APPROVED STATE PUBLIC LIBRARY GRANT FUND ALLOCATION - Authorized an appropriation of$46,928 into Account E-AA-LS-392-3-20-00 for library books from the unexpended General Fund Balance derived from the $109,814 California State Public Library Fund. (Staff recommends continuance of the past policy by allocating $46,928 from the State Grant for books (primarily children's books). (REDEVELOPMENT AGENCY) APPROVED AS TO FORM: OCEANVIEW PROMENADE OFFICE SPACE LEASE BETWEEN ABDELMUTI DEVELOPMENT COMPANY AND COMPUTER MEMORY TEST LABS - 101 MAIN STREET-Approved as to form the attached office space lease between Computer Memory Test Labs and Abdelmuti Development Company for office space within Oceanview Promenade. (Approval as to form required by the Owner Participation Agreement between the Agency and Abdelmuti Development Company). 615 WWI MINUIL7 Attachment 6 Page 20 - Council/Agc,...:y Minutes- 10/07/96 (City Council) Release Of Securities -City Acceptance Of Tract No. 14044 - Seacliff Partners - w/s Goldenwest Street-s/o Garfield Avenue - Island E -Approved (420.60) - 1. Accepted the improvements constructed and dedicated for public use within Tract No. 14044; 2. released the applicable bonds posted for faithful performance, labor and material and monument; 3. accepted Guarantee and Warranty Bond No. 8585-M, the security furnished for guarantee and warranty of improvements, and instructed the City Clerk to file the bond with the City Treasurer; and 4. instructed the City Clerk to notify the developer, Seacliff Partners, of this action and the City Treasurer to notify the bonding company, Pacific States Casualty Company, of this action. (City Council) Guarantee And Warranty Security Release -Tract No. 14494 - Sunhawk Properties - e/s Van Buren Street-s/Slater Avenue -Approved (420.60) - Released Payment Bond No. 22852, the security furnished for guarantee and warranty of improvements, and instructed the City Clerk to notify the developer, Sunhawk Properties, of this action, and the City Treasurer to notify Union Bank of this action. (City Council) Year End Budget Transfer From The General Fund Reserve To Self-Insurance Fund -Approved (420.60) -Approved the transfer of$410,000 from the General Fund Reserve to reimburse the Self-Insurance Fund. (City Council) Grant Agreement Between City And Huntington Beach Conference And 4- Visitors Bureau For Public Relations Services - Fiscal Year 1996-97 -Approved (600.10) - 1. Noted in city official record that Councilmembers Garofalo and Green have "remote interest" in the Grant Agreement, pursuant to Government Code Section 1091(a) and (b)(1), and that vote by City Council on this Grant Agreement will be held in accordance with the guidelines set forth in Section 1091 set forth in Analysis section of the Request for Council Action dated October 7, 1996; And 2. approved the attached Grant Agreement between the city and the Conference and Visitors Bureau and authorized the Mayor and City Clerk to execute the document and release funds of $190,000. Earlier in the meeting, the City Clerk had announced that the following communication on this item had been provided to the City Council: Request for Council Action dated October 7, 1996 from the City Administrator and the Economic Development Director regarding the Grant Agreement with the Huntington Beach Conference and Visitors Bureau, Incorporated (HBCVB) Councilman Garofalo and Councilman Green abstained from voting on this item. (City Council/Redevelopment Agency) Reiection Of All Bids And Request For Authorization To Re-Advertise - Beach Boulevard - 1-405 - Re-Landscaping -CC-828 -Approved (600.80) The City Council considered a communication from the Public Works Department recommending the rejection of all bids for the Beach Boulevard 1-405 Re-landscaping project and to authorize the re-advertisement of the project. 557 D ° a De7 JA"fe CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH TO: Honorable Shirley Dettloff,Mayor, and Members of the City Council FROM: Gail Hutton, City Attorney DATE: August 11, 1998 SUBJECT: Allegations of Conflict of Interests raised by the Huntington Beach Independent regarding Councilmembers David Garofalo and Peter Green The Huntington Beach Independent recently ran a story stating that Councilmembers Green and Garofalo had violated Government Code Section 1090 when they approved a grant of City funds to the Huntington Beach Convention and Visitors' Bureau. Although this was the lead part of the story, there were also additional allegations made concerning Councilmember Garofalo's receipt of advertising revenue. This memo only addresses the former issue. The latter is being referred to the FPPC for an advice letter, at the request of Councilmember Garofalo. As to the grant to the Visitors Bureau, the facts are as follows: In July 1995, the Economic Development Department requested the City Attorney's advise regarding whether Councilmembers Green and Garofalo could vote on a grant to the Huntington Beach Convention and Visitors' Bureau. At that time, it was,the City Attorney's understanding that the Bureau was a nonprofit corporation and that the two councilmembers were also . simultaneously serving as unsalaried members of the Board of Directors.of the Bureau. On July 28, 1995, we wrote our opinion addressing Government Code Section 1090. Section 1090 addresses financial interests in government contracts. It basically prohibits a public official from being financially interested in a contract in both his or her private and public capacities. Where applicable, it not only prohibits a public official from having a financial interest in a public contract, but also prohibits the City from entering into the contract, even if the public official abstains from voting on the matter. However, it is subject to a number of exceptions: If the interest is deemed as "remote," then abstention from voting would allow the City to enter into the contract (Government Code § 1091(a)(b)(1)); if the relationship is deemed a"non-interest," then the City may enter into the contract;.and the.councilmember merely must disclose the relationship, but still may.vote on the contract(Government Code § 1091.5(a)(8)). S F/s:SF-98 Memos:2M&CC811 8/11/98-#3 Based upon our understanding that the Conventions and Visitor's Bureau was a nonprofit corporation, on July 28, 1995 we concluded that the two councilmembers had a"remote" interest in a contract, and we advised that Councilmembers Green and Garofalo were obligated to abstain from voting in order for the City to approve the contract. The Request for Council Action ("RCA") was presented on August 7, 1995. It expressly stated that Councilmembers Green and Garofalo were not to vote on the grant because of their remote interest in the contract. The RCA provided the Recommended Action as follows: "Recommended Action: Approve the attached Grant Agreement between the City of Huntington Beach and the Conference and Visitor Bureau and authorize the Mayor and City Clerk to execute the document and release funds for$190,000. .� Note that Council Members Garofalo and Green are members of the Board of Directors of this non-profit corporation. They receive no renumeration for their services. As such, they are considered remotely interested in this contract, as that term is used in California Government Code section 1091. Before the vote on the question of entering into the agreement,this interest must be noted in the record. The vote then must be taken without the participation of council Members Garofalo and Green." (Emphasis added.) Council then approved Tie RCA. However,because this grant was part of the consent calendar (where the Council's v to is taken on many "E items" by one vote)the City Council meeting, �? minutes were record d as a 7-0 vote, 'kfe all the othey items on the consent calendF and no rea i show-"'-xg t eir-abstentio the reasons. (Note: du the City Clerk has stated that she draft the minutes according to the recommended action that the two councilmembers, Green and Garofalo, abstained and reported their"remote interest," as opposed to the actual 7-0 vote. The Clerk further recommends that future agenda S items where there is a legal reason for abstention should be agendized as 7" items and not "E" items. I concur.) Although the disclosure of the remote interest and abstention provided in the RCA and Recommended Action was not "read into the oral record," it remains evidence in the written V administrative record that Council had formally approved the disclosure and abstention which then should have been reffee as a 5-2 vote (Green and Garofalo n `''��' kk a S N"d gy��e"iw C0,00-Fmo was .r&cADe � Cl� AA' It should also be noted tha when the Councii approved a similar RCA for Bureau funding on 5 J'�'yfY -- October 7, 1996,the rec ended action again included a provision that Councilmembers '�`�, Garofalo and Green wo Id be abstaining. .4a—�e original October 7, 1996 minutes did"etz a_-�42.�rPn �abstentio However at the..April 20,. 1998 Council meeting;the.City Clerk caused this error to be corrected c?o i.4 cum SF/s:sF-98Mem s:2M&CC811 / �c 8/11/98-#3 !h iss� In addition,we have since learned that the Visitors' Bureau is not only a nonprofit corporation, but is also a tax exempt corporation. Serving on the board of directors of a tax exempt, nonprofit_ corporation is deemed to be a non-interest under Government Code Section 1091.5, and as such, . Councilmembers Green and Garofalo could have voted on the grant so long as their status as a non-compensated officer of the corporation was noted in the official records of the meeting. In summary, the newspaper article incorrectly stated that Councilmembers Green and Garofalo voted on a grant to the Bureau contrary to our advice in 1995 that they abstain from voting. The newspaper concluded that, based upon that vote,they had violated Government Code Section 1090. In our opinion there was no violation of Section 1090. Further, even if Councilmembers Green and Garofalo had voted on the grant, based upon the facts we have since learned that vote would have been permitted. If you should have any questions concerning this matter,I'll be pleased to answer them. GAIL HUTTON City Attorney Attachments: 1) July 28, 1995 Opinion 2) RCA re: Bureau Grant, dated August 7, 1995 3) Minutes of City Council Meeting of August 7, 1995 4) RCA re: Bureau Grant, dated October 7, 1998 5) Minutes of April 20, 1998 Council meeting, correcting the October 7, 1996 Minutes 6) Corrected Minutes of October 7, 1996 Minutes c: Ray Silver, City Administrator Michael Dolder, Acting Assistant City Administrator. Connie Brockway, City Clerk 3 - SF/s:SF-98Memos:2M&CC811 8/11/98-k3 Attachment 1 SIB CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION TO: HON. MAYOR AND CITY COUNCIL MEMBERS. FROM: GAIL HUTTON, City Attorney DATE: July 28, 1995 SUBJECT: Agenda item , Grant Agreement between the City and the Convention and Visitor's Bureau Councilmen Garfalo and Green are members of the Board of Directors of the Huntington Beach Convention and Visitors Bureau, a non-profit corporation. They receive no remuneration for their services. . i Under California Government Code section 1090, city officers are prohibited from being financially interested in any contract made by them in their official capacity,.unless they have only a "remote interest" in that contact. Financial interest would include the situation where the Councilmember is a member of a corporation which is the beneficiary of the agreement. "Remote interest" is defined at section 1091 of the California Government Code. That section provides that an officer of a nonprofit corporation, v ho receives no payment for his services, is considered remotely interested in a contract, for purposes of section 1090. When such a remote interest exists, the City Council may still enter into the proposed agreement, however before the vote on the question, this "remote interest' must be noted in the record and then the vote must be taken without the participation of the parties with the interest, in this case Councilmen Garfalo and Green. GAIL HUTTON, City Attorney /scl c: Michael T. Uberuaga, City Administrator - Ray Silver;Assistant City Administrator Jim Lamb, Project Manager 7/green unY OF HUNTINGTON BEACH Attachment 2 MEETING DATE: August 7, 1995 DEPARTMENT ID NUMBER: ED 95-24 Council/Agency Meeting Held: Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied City Clerk's Si natu , Council Meeting Date: August.7-,1995 Department ID Number. . ED 95-24 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: MICHAEL T. UBERUAGA, City Administr f PREPARED BY: RAY SILVER, Assistant City Administrator; Acting Director o Economic Development {� SUBJECT: APPROVAL OF GRANT AGREEMENT WITH THE HUNTINGTON BEACH CONFERENCE AND VISITORS BUREAU, INC. FOR FISCAL YEAR 1995-96 Statement of Issue,Funding Source,Recomcnended Action,Alternative Action,Analysis,Environmental Status,Attachments)) Statement of Issue: The Huntington Beach Conference and Visitors Bureau submitted their annual ,request for funds for the 1995-96 fiscal year in the amount of $190,000. This amount is an increase of $17,500, or 10%, over their level of funding which hasbeen held constant since 1990-91. Staff is now recommending approval of the attached 12 month contract for $190,000 for Fiscal Year 1995/96. Funding Source: $190,000 of redevelopment tax increment funds are transferred 'to the General Fund for this program. Recommended Action: Approve the attached Grant Agreement between the City of Huntington Beach and the Conference and Visitor Bureau and authorize the Mayor and City Clerk to execute the document and release funds for $190,000. Note that Council Members:Garofalo and. Green are members of the Board. of.Directors of this.non-profit'.corporation. They receive no.renumeration for their services. As such, they are considered `remotely interested in this contract, as that term is used in. California Government Code section 1091. Before the vote on the question of entering into fine ,agreement, this interest must be noted in the record. ---,The vote then must be taken without the participation of Council Members Garofalo and Green. RCA95-24.DOC -2- 0712819S 4:21 PIA t� Attachment 3 Pagc 8-Council/Agcncy..gcnda-8ni95 - (8) E-5. (City Council) Ratification of Reappointments to Public Facilities Corporation Board of Directors - Belsito/Wilson/Sprague - Ratify the appointments by the Public Facilities Corporation of Floyd G. Belsito, David J. Wilson and Caroline Sprague each for another three year term on the Huntington Beach Public Facilities Corporation Board of Directors. Their terms will expire in July 1998. Prepared by Administrative Services. (125,10) �. ` [Approved 6-1 (Dettloff - Abstain)(Sullivan - No Belsito)] E-6. (City Council) Approval of Grant Agreement- Huntington Beach Conference and Visitors Bureau, Inc. - FY 1995-96-Approve, and authorize the Mayor and. City Clerk to execute, the "Grant Agreement Between the City of Huntington Beach and the Huntington Beach Conference and Visitors Bureau for Public Relations Services and to release funds in the amount of $190,000." Prepared by Economic Development. (600.10) [Adopted 7-0] E-7. (City Council) Agreement - Liebert, Cassidy and Frierson - Labor Relations Services - Consultant-Approve and authorize the Mayor and City Clerk to execute the "Agreement Between the City of Huntington Beach and Liebert, Cassidy & Frierson, a Professional Corporation, for Labor Relations and Legal Services". ($100,000.00)- Prepared by Administrative Services. (600.10) [AdopteG 7-0] E-8. (City Council) Settlement Agreement& Release Concerning Litigation - Ben Trainer- 303 Third Street-Authorize the Mayor and City Clerk to execute the Settlement Agreement and Release By and Between the City of Huntington Beach and Ben Trainer Concerning Litigation Regarding the Development of Certain Real Property Located at 303 Third Street in Huntington Beach. Prepared by Administrative Services. (600.10) [Adopted 7-0] (8) Attachment 4 , CounciUAgency Meeting Held: Deferred/Continued to: ❑Approved ❑ Conditionally Approved ❑ Denied City Clerk's Signature Council Meeting Date: October 7, 1996:." Depajtment ID Number. ED 96-63 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: MICHAEL T. UBERUAGA, City Administrator PREPARED BY: DAVID C. BIGGS, Director of Economic Developmen 41-� SUBJECT: APPROVAL OF GRANT AGREEMENT WITH THE HUNTINGTON BEACH CONFERENCE AND VISITORS BUREAU, INC. (HBCVB) FOR FISCAL YEAR 1996-97 Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: The Huntington Beach Conference and Visitors Bureau submitted its annual request for funds for the 1996-97 fiscal year in the amount of $190,000. This is the same dollar amount as granted by the City in the current fiscal year. Staff is now recommending approval of the attached 12 month contract for $190,000 for "Fiscal Year 1996/97. Fundinq Source: Grant Agreement adopted in FY 1996/97 budget. Recommended Action: - — 1. Note in City official record that Council Members Garofalo and Green have "remote interest" in the Agreement, pursuant to Government Code Section 1091 (a) and (b)(1), and. that-vote by City Council on this Agreement will be held"in accordance with the guidelines set forth in Section 1091. (See additional explanation in Analysis section). 2. Approve the attached Grant Agreement between the City of Huntington Beach and the Conference and-Visitor Bureau and.authorize the Mayor and City°Clerk to execute the document and release funds.of..$190,000. .. R—,.cUEST FOR COUNCIL ACTH,., MEETING DATE: October 7, 1996 DEPARTMENT ID NUMBER: ED 96-63 Alternative Action(s): Modify portions of the Agreement, Analysis: The Huntington Beach Conference and Visitor§Bureau was formed in November 1989 to represent the community in the solicitation of leisure travelers, tour groups, and conferences. The Bureau has developed a Huntington Beach Visitor's Guide, a Meeting Planners' Kit, and a four-color rack brochure in five languages. The Bureau is also the.place where visitors find information about what to see and do in Huntington Beach and the surrounding area. Their focus for the 1996-97 fiscal year will be on marketing the Eco- tourism opportunities in the City and to continue world-wide marketing for visitors. Note that Council Members Garofalo and Green are members of the Board of Directors of this non-profit corporation. They receive no compensation for their services. As such, they are considered "remotely interested" in this contract, as that term is used in California Government Code Section 1091. Before the vote on the question of entering into the Agreement, this remote interest must be noted in the "official records, and thereafter the body or board [i.e., City Council] authorizes, approves, or ratifies the contract in good faith by a vote of its membership sufficient for the purpose without counting the vote or votes of the officer or member with the remote interest." Environmental Status: Not Applicable. Attachment(s): City Clerks .... age Number 1 Grant Agreement re - - 2. HBCVB 1996-97- 12 Month Budget 8 99 6 2 1 e of 3 Letter August _ c ion 1 091 Set ion Co de S e 4 Government RCA9663.DOC -2- 09/24/96 4:41 PM Attachment 5 20/98 - City Council/Redevelopment.Agency Minutes -Page 15 :y♦ CONSENT CALENDAR - ITEMS APPROVED On motion by Green, second Garofalo, Council approved the following Consent Calendar items as recommended by the following roll call vote: AYES: Harman, Green, Dettloff, Bauer, Sullivan,Garofalo NOES: None ABSENT: Julien (CITY COUNCIL/REDEVELOPMENT AGENCY) MINUTES -Approved. and adopted the - minutes of the City Council/Redevelopment Agency adjourned regular meetings of March 27, 1998, March 28, 1998, March 30, 1998, and regular meeting of April 6, 1998 and corrected Page 1.7 and Paa _ 0 of the reaular meeting of October 7 1996 as written and on file in the Office of the City Clerk. (CITY COUNCIL)APPROVED CONSTRUCTION CONTRACT FOR THE WHEELCHAIR RAMP CONSTRUCTION IN THE AMBERLEAF AND FLORIDAIUTICA ENCHANCEMENT AREAS -CC-1016 - C.J. CONSTRUCTION, INC. - 1. Approved the lowest responsive/responsible bid in the amount of$39,975 submitted by the C.J. Construction, Inc., for the Wheelchair Ramp Construction in the Amberleaf and Florida/Utica Enhancement Areas, CC-1016; and 2. Authorized the Mayor and City Clerk to execute the construction contract in a.� the amount of$39,975; and 3. Authorized the Public Works Department to expend a total of $50,000 including the contract amount of$39,975, anticipated construction change orders of $5,025 and supplemental expenditures of$5,000. (CITY COUNCIL)APPROVED STATE PUBLIC LIBRARY GRANT FUND ALLOCATION - Authorized an appropriation of$46,928 into Account E-AA-1-$-392-3-20-00 for library books from the unexpended General Fund Balance derived from the $109,814 California State Public Library Fund. (Staff recommends continuance of the past policy by allocating $46,928 from the State Grant for books (primarily children's books). (REDEVELOPMENT AGENCY) APPROVED AS TO FORM: OCEANVIEW PROMENADE OFFICE SPACE LEASE BETWEEN ABDELMUTI DEVELOPMENT COMPANY AND COMPUTER MEMORY TEST LABS - 101 MAIN STREET-Approved as to form the attached office space lease between Computer Memory Test Labs and Abdelmuti Development Company for office space within Oceanview Promenade. (Approval as to form required by the Owner Participation Agreement between the Agency and Abdelmuti Development Company). - 616 *** Copd D TED MINUTES Attachment 6 Page 20 - Council/Agency Minutes- 10/07/96 (City Council) Release Of Securities - City Acceptance Of Tract No. 14044 - Seacliff Partners - w/s Goldenwest Street -slo Garfield Avenue - Island E -Approved (420.60) - 1. Accepted the improvements constructed and dedicated for public use within Tract No. 14044; 2. released the applicable bonds posted for faithful performance, labor and material and monument; 3. accepted Guarantee and Warranty Bond No. 8585-M, the security furnished for guarantee and warranty of improvements, and instructed the City Clerk to file the bond with the City Treasurer; and 4. instructed the City Clerk to notify the developer, Seacliff Partners, of this action.and the City Treasurer to notify the bonding company, Pacific States Casualty Company, of this action. (City Council) Guarantee And Warranty Security Release -Tract No. 14494 - Sunhawk Properties -e/s Van Buren Street -s/Slater Avenue -Approved (420.60) - Released Payment Bond No. 22852, the security furnished for guarantee and warranty of improvements, and instructed the City:Clerk to notify the developer, Sunhawk Properties, of this action, and the .City Treasurer to . notify Union Bank of this action. (City Council) Year End Budget Transfer From The General Fund Reserve To Self-Insurance Fund - Approved (420.60) -Approved the transfer of$410,000 from the General Fund Reserve to reimburse the Self-Insurance Fund. (City Council Grant A reement Between City And Huntin ton Beach Conference And Visitors Bureau For Public Relations Services - Fiscal Year 1996-97 -Approved (600.10) - 1. Noted in city official record that Councilmembers Garofalo and Green have "remote interest" in the Grant Agreement, pursuant to Government Code Section 1091(a) and (b)(1), and that vote by City Council on this Grant Agreement will be held in accordance with the guidelines set forth in Section 1091 set forth in Analysis section of the Request for Council Action dated October 7, 1996; And 2. approved the attached Grant Agreement betweep the city and the Conference and Visitors Bureau and authorized the Mayor and City Clerk to execute the document and release funds of $190,000. Earlier in the meeting, the City Clerk had announced that the following communication on this item had been provided to the City Council:. Request for Council Action dated October 7, 1996 from the City Administrator and the Economic Development Director regarding the Grant Agreement with the Huntington Beach Conference and Visitors Bureau, Incorporated (HBCVB) "Councilman Garofalo and Councilman Green abstained from voting on this item. (City Council/Redevelopment Agency) Reiection Of All Bids And Request For Authorization To Re-Advertise--Beach Boulevard 1-405 Re-Landscaping,-CD=828 -approved (600.80) The City'Council considered a communication from the Public Works Department recommending the rejection of all bids for the Beach Boulevard 1-405 Re-landscaping project_and to.authorize.the re-advertisement of the project. L HB CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION s TO: CONNIE BROCKWAY, City Clerk Gy; n FROM: GAIL HUTTON, City Attorney DATE: March 26, 1997 SUBJECT: Huntington Beach Public Fadilities Corp. Members Statement of Economic Interest QUESTION: Must members of PFC fill out the Statement of Economic Interest required by the Government Code and the City Conflict of Interest Code? ANSWER AND ANALYSIS: No. Only those individuals who participate in making governmental decisions which could affect their personal interests should fill out the forms. The following is excerpted from the Articles of Incorporation: I I The purposes for which this corporation is formed are: 1. The specific and primary purpose for which this corporation is formed is to render assistance to the City of Huntington Beach by constructing or providing for the construction of public buildings and structures including without limitation, a city hall and library building and to provide parking facilities for motor vehicles in connection therewith, together with structures and related facilities for the use, benefit and enjoyment of the public, including ways of ingress and egress and such other facilities and improvements as are necessary for convenience for or incidental to their use on a site or sites located in the City of Huntington Beach. 2. In order to carry out said purpose, this corporation shall have the following powers: (a) to incur indebtedness and in connection therewith to issue bonds, debentures, notes or other evidences of indebtedness; Page 2 Connie Brockway Public Facilities Corp. (b) to lease by any lawful means any real property owned by the City of Huntington Beach and available for such public purposes, to construct or provide for the construction of said buildings, structures and facilities thereon,. and to lease such real property as improved back to the City of Huntington Beach; (c) to assign, transfer, mortgage, convey in trust, pledge and hypothecate the leasehold estate created by any such lease and the rentals payable to this corporation under any such lease back as security for any such bonds, debentures, notes or other evidences of indebtedness; (d) to construct said buildings, structures and facilities or to contract with others for the construction of all or portions thereof; and (e) to exercise any and all rights and powers which a corporation organized under the General Nonprofit Corporation Law of the State of California may now or hereafter exercise. III This corporation is organized by a group of public spirited citizens for the sole purpose of constructing or providing for the construction of said buildings, structures and facilities as a civic venture for and on behalf of the City of Huntington Beach. This corporation shall never engage in any business or activity other than that necessary or convenient for or incidental to the carrying out of the purpose set forth in paragraph 1 of Article II hereof. Based on these duties and consultation with the FPPC (Fair Political Practices Commission),-it is our opinion that no Statement of Economic Interest is required. GAIL HUTTON, 3/z 1 -7 City Attorney /k 3/k/opinion/pfc/3/26/97 4C� r r' • 6, OFFICE OF THE CITY CLERK CITY OF HUNTINGTON BEACH HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION TO: Robert Franz Deputy City Administrator FROM: Connie Brockway, City Clerk SUBJECT: Public Facilities Corporation DATE: April 3, 1997 The City Attorney has recently informed this office that Public Facilities Corporation members are not required to file FPPC Statement of Economic Interests Form 700. 1 have returned the annual statement forms members filed, which were due April 1, 1997, along with a copy of the City Attorney's memo. A copy of the City Attorney's opinion on this matter is attached for your information. cc: Shari Donoho Attachment W A 1 CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH TO: Connie Brockway, City Clerk 0� FROM: Gail Hutton, City Attorney DATE: May 21, 1996 SUBJECT: Mayor of Indianapolis Lecture/Luncheon A quorum of the City Council wishes to attend a program being hosted by a group of political and business leaders in the community. 'The program will include a lecture by the Mayor of Indianapolis and around table discussion with the Orange County Mayors. The focus of the symposium appears to be the Indianapolis mayor's program of governmental down-sizing, privatization, and job creation. There is also a lunch which is open to the public. A question was raised as to whether the City Council could attend if the meeting were not noticed pursuant to the Brown Act. Please refer to the attached memo, sent to you earlier today, in which I responded to this same concern as it pertained to a nature tour which the Council wished to take. The same. law and analysis set forth there pertains equally to this situation. The mayor's lecture- luncheon appears to be in the nature of a social gathering or educational symposium, so provided that the Council does not discuss "city business", the gathering would not violate the Brown Act. Fa, Gail Hutton f�L�/5� City Attorney Attachment: TGI-Meeting CITY OF HUNTINGTON BEACH 171j INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH To: CONNIE BROCKWAY, City Clerk From: GAIL HUTTON, City Attorney Date: May 21, 1996 Subject: RANCHO MISSION VIEJO LAND CONSERVANCY TOUR, May 25, 1996 City Council members have been invited to participate in the Rancho Mission Viejo Land Conservancy Tour on May 25, 1996. From the information I received, it appears that the tour will consist of watching wildlife, local grasslands and coastal sage scrub, and generally experiencing the native Californian habitat. Presumably, there will be an educational component to the tour. A question has arisen whether this constitutes a council meeting, within the meaning of the Brown Act. Section 54952.2 of the California Government Code defines "meeting" and in so doing specifically exempts the attendance of a majority of the members of the legislative body at a gathering open to the public that involves a discussion of issues of general interest, provided that a majority of the members do not discuss city business. That same Government Code section exempts the attendance of a majority of the members at an open meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided again, that city business is not discussed by a majority of the council. It appears that this nature walk would fall under either of these two exceptions and would not be an illegal meeting, provided that a majority of the council or of any committee covered by the Brown Act do not discuss amongst themselves, business of a specified nature that is within the subject matter jurisdiction of our local agency. f� GAIL HUTTON City Attorney SL Jn/tour/5/21/96 CITY OF HUNTINGTON BEACH G 30.3 D 17 INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH TO: Connie Brockway, City Clerk FROM: Gail Hutton, City Attorney DATE: July 25, 1995 03) =< m c� SUBJECT: Appointment to P.F.C. Board a T RLS 95-446 cn71 ISSUE You have asked whether the spouse of a city councilmember may hold a position as a Director of the Public Facilities Corporation. ANSWER Yes. ANALYSIS The Public Facilities Corporation is a non-profit corporation of the State of California, organized in November 1970. Its express purpose is to render assistance to the City of Huntington Beach by constructing or providing for the construction of public buildings, including the city hall and library. The P.F.C. consists of seven members. Each member sits on the Board of Directors. New directors are appointed or elected by the Board. The City Council does not appoint the directors of the P.F.C.; however, the Council can reject a proposed director by resolution transmitted or delivered to the P.F.C. board within 30 days after Notice of the appointment has been given to the Council. (P.F.C. Bylaws, Art. V., Section 1.) The City Charter provides that the City Council cannot appoint a relative of a councilmember to any salaried position in city government. (Section 313.) In the present circumstance, however, this charter section will not be violated for several reasons. First, the Council is not making the appointment; second, the position is not salaried; and third, the position is not in the city government. 4:G:PFC Brd\7/25/95 Connie Brockway July 25, 1995 Page 2 CONCLUSION For the reasons stated above, the spouse of a current City Councilmember is not barred from serving as a Director of the Public Facilities Corporation. Gail Hutton City Attorney c: Pat Dapkus, Management Assistant Robert Franz, Deputy City Administrator Dan Villella, Director of Finance 4:G:PFC Brd\7/25/95 �3cq. 3 RECEIVED CITY CLERK CITY 8F HUNTINGTON iic`ACH,CALIF. HB CITY OF HUNTINGTON BEAC VUL 27 10 04 H 195 INTER-DEPARTMENT COMMUNICATION TO: CONNIE BROCKWAY, City Clerk FROM: SARAH LAZARUS, Deputy City Attorney DATE: July 26, 1995 SUBJECT: RLS 95-451 FACTS The Orange County Municipal Water District (OCMWD) is hosting an inspection tour of a facility in Sacramento and has invited certain City officials to attend at the District's expense. Their expenses would include payment for airfare, lodging and food. QUESTION Would accepting this offer without reimbursing the District violate the City's Code of Ethics, adopted by City Council resolution 6524, or Chapter 2.05 of the Huntington Beach Municipal Code, relating to gifts? ANSWER Accepting this proposed payment for lodging and food would violate the Code provisions unless the official accepting it reimburses the OCMWD. ANALYSIS The OCMWD currently has a contractual relationship with the City. Under the existing agreement, the City purchases twenty five percent of City water from the OCMWD. The OCMWD is therefore "doing business"with the City, as defined by section 2.05.020 (d)(4) of the Huntington Beach Municipal Code. "Gift' is defined as "any payment to the extent that consideration of equal or greater value is not received" (H.B.M.C. 2.05.020 [e]). Since the OCMWD has offered to provide lodging and food without a request for consideration for it, the payment would be a "gift". Page 2 7/26/95 RE: RLS 95-541 Section 2.05.030 prohibits any person doing business with the City to make any gift to a City officer and similarly prohibits City officers from accepting such gifts. Chapter 1.02 (Fourth clause, section 3) of the Code of Ethics provides the same by declaring that officials shall not accept any gift from anyone doing business or expecting to do business with the City. A review of the exceptions to the gift ban listed in H.B.M.C. section 2.05.020(e), subparagraphs (b) (1) through (6) and (1) through (6) under"additional exceptions" do not include gifts from another public entity, such as the OCMWD, unless that gift is food and beverage provided at a ceremonial function commemorating the opening of a new public facility. For these reasons, it would appear that the OCMWD must be compensated for its p9RAH any h I or eating establishment on behalf of City officials during the tour. ZARUS, Deputy City Attorney /k c: Gail Hutton, City Attorney 7/gift 6 Y� HB CITY OF HUNTINGTON BEACH INTER-DEPARTMENT COMMUNICATION _,;0: rn s�-<" a-<cs m m� r-- TO: CONNIE BROCKWAY, City Clerk FROM: GAIL HUTTON, City Attorney Lo DATE: June 19, 1996 SUBJECT: RLS 96-201 Legality of a City Employee Simultaneously Holding Office as a City Council Member QUESTION Is it legally permissible for an employee of the City of Huntington Beach to simultaneously serve as an elected member of the City Council and as an employee of the City? ANSWER Yes, unless a court of competent jurisdiction decides that local employment under these circumstances is a matter of statewide concern. BACKGROUND On 1 January 1996 Govemment Code Sections 53227 and 53227.2 became operative. These sections purport to deny the right of an employee of a local agency to simultaneously serve as a member of the local agency legislative body and as an employee of that local agency. DISCUSSION Govemment Code Section 53227(a) provides as follows: "An employee of a local agency may not be sworn into office as an elected or appointed member of the legislative body of that local agency unless he or she resigns as an employee. If the employee does not resign, the employment shall automatically terminate upon his or her being sworn into office." The section does not prohibit a local agency employee from seeking office or otherwise exercising their right to participate in political activity not otherwise prohibited. It narrowly prohibits the employee from retaining their local agency employment if they choose to be sworn in as a member of the local agency legislature. i Page 2 RLS 96-201 Connie Brockway There are two questions posed by this legislation. 1. Since Section 53227 does not specifically refer to a "charter" city, does it apply to the city? Section 53227.2 states, as follows: "For purposes of this article, the.following definitions apply: (a) 'Local agency' means a city, city and county, district, municipal or public corporation, political subdivision or other public agency of the state. 'Local agency' does not include a county. (b) 'Legislative body' means the board of supervisors of a city and county, the city council of a city or the governing body of a district, municipal or public corporation, political subdivision or other public agency of the state." The legislature sometimes but not always differentiates between charter cities and others when it legislates. However, a reasonable inference may be drawn that since San Francisco, the only'city and county' in the state is a charter city and is referred to in the section, in this case at least the legislature meant to include all cities in its enactment. 2. May the State Legislature legislate in an area of strictly local concern such as eligibility for public employment? The City of Huntington Beach City Charter section 312(b) provides that one may not simultaneously hold two elective positions, but does not prohibit the concurrent holding of an appointive and an elective position. From this, a reasonable inference may be drawn that it was not the intent of the framers of the charter to provide for such a prohibition. What Sections 53327 and 53327.2 attempt to regulate is eligibility for local agency employment. Eligibility for employment by a charter city is generally held to be a matter of local concern. However, many of the attributes of local employment are of statewide concern. For example, the city is required to follow state law in collective bargaining, but local law prevails as to the establishment of wages, pensions, fringe benefits, vacations, sick leave and the like. The City Charter requires that the City provide a "personnel system" governing the hiring and firing of its employees. City ordinances implementing the charter make no provision for the termination of an employee elected to the city council. In Cunningham v. Hart, 80 Cal. App. 2d 902, 183 P2d. 75 a similar question was posed. A section of the Oakland City Charter concerning promotional civil service lists conflicted with certain veterans reemployment rights granted by the state constitution. The court held that although civil service is a matter of municipal concern, where a matter is also of statewide concern, a state law may be passed which will control provisions of municipal charters on the same subject. We see this as 3/bs/opinion/96-201 g/6/19/96 r Page 3 RLS 96-201 Connie Brockway precisely the issue here. Since the court not the legislature decides whether or not a matter is of statewide or local concern, in the final analysis we believe it will take a court decision to decide the issue in this instance. CONCLUSION The State Legislature by enacting and amending Govemment Code Section 3201 et seq, has asserted state preemption and control over restrictions on political activities by local government employees and prohibited restrictions on such activity. Similarly, the State Legislature enacted Govemment Code Section 53327 whereby simultaneous holding of an employee position and legislative position within a local agency is prohibited by statute. The question is whether or not such statute applies to the City of Huntington Beach since the city charter does not forbid the practice. It is arguable that the matter is of local rather than statewide concern and not subject to regulation by the state. In my opinion, in your role as city elections official you are obliged to allow any city employee to become a candidate for an open council position if he or she is otherwise eligible. The employee, however, is prohibited from using city facilities or premises or city time for campaigning. If the employee is elected and chooses to be sworn in as a council member without relinquishing his or her position of employment, only the court can decide if the state code preempts local jurisdiction which in this case, does not preclude such dual function. A GAIL HUTTON, City Attorney /bs 3/bs/opinion/96-201 g/6119/96 RECEIYED CITY fLERq CIT� Lc HUNTINC TOP; CITY OF HUNTINGTON BEAD 59 : ,or, INTER-DEPARTMENT COMMUNICATION >�11 �� TO: PAT DAPKUS, Management Assistant FROM: GAIL HUTTON, City Attorney DATE: May 31, 1996 SUBJECT: RLS 96-368 Breakfast Meeting with Mayor of Indianapolis FACTUAL BACKGROUND: On June 4th, the full City Council plans to meet with the Mayor of Indianapolis. It will be a breakfast meeting. It is not planned to be open to the general public and the topic will be privatization, but staff predicts that the topic may"spill over" into areas of concern specific to the City of Huntington Beach. QUESTION PRESENTED: Is this a meeting within the meaning of the Brown Act such that the meeting must be noticed and made open to the public? ANALYSIS: Section 54952.2 of the California Government Code (the Brown Act) defines"meeting" and in so doing specifically exempts the attendance of a majority of the members of the legislative body at a purely social or ceremonial occasion, provided that a majority of the members do not discuss among themselves"business of a specific nature that is Within the subject matter jurisdiction of the legislative body' (Government Code §54952.2(5)). The Brown Act would be violated if there were a collective deliberation or receipt of information about topics within the purview of the Council,without prior public notice and an opportunity for the public to be heard. The question then becomes whether or not discussing privatization of municipal functions is a such a topic. Is it a issue upon which the Council may eventually be voting or otherwise making applicable to the City? It is obviously a factual question with some gray area. However, it would be safe to say that if the issue privatization were to be solely confined to how privatizing has worked in Indiana, the ban on discussion of local agency business would not be violated. Conversely, if the subject turns to how the A ax Page 2 Pat Dapkus Breakfast Meeting Council could employ the methods used in Indianapolis in the City of Huntington Beach or to the merits of doing so, that would probably be construed as business of a specific nature that is within the subject matter jurisdiction of the City Council. CONCLUSION: The breakfast meeting must be noticed and made open to the public if the subject matter will include privatization of municipal functions within the City of Huntington Beach. If the breakfast will be purely social,with the Mayor of Indianapolis speaking about Indianapolis, the meeting need not comply with the Brown Act. f i GAIL HUTTON, City Attorney scl c: Ray Silver, Assistant City Administrator Connie Brockway, City Clerk Maybrice Henry: 7/sWopinion/breakfas/5/31/96