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Viewing Policy: BP 9270 – Conflict of Interest



BP 9270

Board Bylaws

Conflict of Interest

The County Board of Education desires to maintain the highest ethical standards and help ensure that decisions are made in the best interest of the county office of education (COE) and the public. In accordance with law, County Board members shall disclose any conflict of interest and, as necessary, shall abstain from participating in any decisions or discussions that could affect or be effected by those interests, especially, as prohibited by Government Code 1090, those interests related to contracts. The County Board shall consult legal counsel whenever an actual or potential conflict of interest arises.

 

The County Board shall adopt a resolution that specifies the terms of its conflict of interest code, designates any consultant positions required to complete conflict of interest reporting, and establishes disclosure categories required for each position.  The conflict of interest code must be approved by the appropriate code reviewing body.  Upon request by the code reviewing body, the County Board shall review the conflict of interest code and submit any changes to the code reviewing body.

 

When a change in the conflict of interest code is necessitated due to changed circumstances, such as the hiring of a new consultant in a position that is not already designated in the conflict of interest code or a change to an existing consultant’s scope of work in a manner that changes the consultant’s position to a designated position, the amended code shall be submitted to the code reviewing body within 90 days.  (Government Code 87306)

 

When reviewing and preparing the conflict of interest code, the County Board shall provide members of the community, the County Superintendent of Schools, COE staff, and consultants of the County Board adequate notice and a fair opportunity to present their views.  (Government Code 87311)

 

County Board members shall annually file a Statement of Economic Interest/Form 700 in accordance with the disclosure categories specified in the conflict of interest code. A County Board member who leaves office shall, within 30 days, file a revised statement covering the period of time between the closing date of the last required statement and the date of leaving office.  (Government Code 87302, 87302.6)

 

Conflict of Interest under the Political Reform Act

 

A County Board member shall not make, participate in making, or in any way use or attempt to use his/her official position to influence a governmental decision in which he/she knows or has reason to know that he/she has a disqualifying conflict of interest.  A conflict of interest exists if the decision will have a “reasonably foreseeable material financial effect” on one or more of the County Board member’s “economic interests,” unless the effect is indistinguishable from the effect on the public generally or the County Board member’s participation is legally required.  (Government Code 87100, 87101, 87103; 2 CCR 18700-18709)

 

 

 

 

A County Board member is involved in making a governmental decision when, acting within the authority of his/her office or position, he/she votes on a matter, appoints a person, obligates or commits the County Board to any course of action, or votes to enter into or approve any contractual agreement on behalf of the County Board.  (2 CCR 18704)

 

A County Board member who has a disqualifying conflict of interest on an agenda item that will be heard in an open meeting of the County Board shall abstain from voting on the matter.  Although he/she may remain on the dais, if they do choose to stay their presence shall not be counted towards achieving a quorum for that matter.  A County Board member with a disqualifying conflict of interest shall not be present during a closed session meeting of the County Board when the decision is considered and shall not obtain or review a recording or any other nonpublic information regarding the issue. (2 CCR 18700)

 

 

Conflict of Interest under Government Code 1090 – Financial Interest in a Contract

 

County Board members shall not be financially interested in any contract made by the County Board and shall not be included in the development, preliminary discussions, negotiations, compromises, planning, reasoning, and specifications and solicitations for bids for such contracts.  If a County Board member has such a financial interest, the County Board is barred from entering into the contract.  (Government Code 1090; Klistoff v. Superior Court, (2007) 157 Cal.App. 4th 469)

 

A County Board member shall not be considered to be financially interested in a contract if his/her interest is a “noninterest” as defined in Government Code 1091.5.

 

A County Board member shall not be considered to be financially interested in a contract if he/she has only a “remote interest” in the contract as specified in Government Code 1091 and if the remote interest is disclosed during a County Board meeting and noted in the official County Board minutes.  The affected County Board member shall not vote or debate on the matter or attempt to influence any other County Board member’s vote.  (Government Code 1091)

 

To avoid the appearance of impropriety, County Board members may decide not to participate in any discussion or action involving contracts where his/her interest is a “noninterest” or “remote interest” as described in Education Code 1091 and 1091.5.

 

Common Law Doctrine Against Conflict of Interest

 

A County Board member shall abstain from any official action in which his/her private or personal interest may conflict with his/her official duties. The County Board shall consult legal counsel whenever an actual or potential conflict of interest arises.

 

County Board members shall abstain from voting on personnel matters that uniquely affect relatives.  Relative means an adult who is related to the County Board member by blood, affinity, or adoptive relationship within the third degree.

 

 

A relationship within the third degree includes an individual’s parents, grandparents, great-grandparents, children, grandchildren, great-grandchildren, brothers, sisters, aunts, uncles, nieces, nephews, and the similar family of the individual’s spouse/registered domestic partner unless the individual is widowed or divorced.

 

Rule of Necessity or Legally Required Participation

 

On a case-by-case basis and upon advice of legal counsel, a County Board member with a financial interest in a contract may participate in the making of the contract if the rule of necessity or legally required participation applies pursuant to Government Code 87101 and 2 CCR 18705.

 

Incompatible Offices and Activities

 

County Board members shall not engage in any employment or activity or hold any office which is inconsistent with, incompatible with, in conflict with, or inimical to the County Board member’s duties as an officer of the COE.  (Government Code 1099, 1126)

 

Gifts

 

County Board members may accept gifts only under the conditions and limitations specified in Government Code 89503 and 2 CCR 18730.

 

The limitation on gifts does not apply to wedding gifts and gifts exchanged between individuals on birthdays, holidays, and other similar occasions, provided that the gifts exchanged are not substantially disproportionate in value.  (Government Code 89503)

 

Gifts of travel and related lodging and subsistence shall be subject to the current gift limitation except as described in Government Code 89506.

 

A gift of travel does not include travel provided by the County Board for its members.  (Government Code 89506)

 

Honoraria

 

County Board members shall not accept any honorarium, which is defined as any payment made in consideration for any speech given, article published, or attendance at any public or private gathering, in accordance with law.  (Government Code 89501, 89502)

 

The term honorarium does not include:  (Government Code 89501)

 

  1. Earned income for personal services customarily provided in connection with a bona fide business, trade, or profession unless the sole or predominant activity of the business, trade, or profession is making speeches

 

  1. Any honorarium which is not used and, within 30 days after receipt, is either returned to the donor or delivered to the COE for donation into the general fund without being claimed as a deduction from income for tax purposes.

Legal Reference:

EDUCATION CODE

1006  Qualifications for holding office

35230-35240  Corrupt practices, especially:

FAMILY CODE

297.5  Rights, protections, and benefits of registered domestic partners

GOVERNMENT CODE

1090-1099  Prohibitions applicable to specified officers

1125-1129  Incompatible activities

81000-91014  Political Reform Act of 1974, especially:

82003  Agency definition

82011  Code reviewing body

82019 Definition, designated employee

82028  Definition, gift

82030  Definition, income

82033  Definition, interest in real property

82034  Definition, investment

87100-87103.6  General prohibitions

87200-87210  Disclosure

87300-87313  Conflict of interest code

87500  Statements of economic interests

89501-89503 Honoraria and gifts

91000-91014  Enforcement

PENAL CODE

85-88  Bribes

CODE OF REGULATIONS, TITLE 2

18110-18997  Regulations of the Fair Political Practices Commission, especially:

18700-18707  General prohibitions

18722-18740  Disclosure of interests

18750.1-18756  Conflict of interest codes

COURT DECISIONS

McGee v. Balfour Beatty Construction, LLC, et al. (4/12/16, No. B262850)

Davis v. Fresno Unified School District (2015) 237 Cal.App.4th 261

Klistoff v. Superior Court, (2007) 157 Cal.App.4th 469

Thorpe v. Long Beach Community College District, (2000) 83 Cal.App.4th 655

Kunec v. Brea Redevelopment Agency, (1997) 55 Cal.App.4th 511

ATTORNEY GENERAL OPINIONS: 92 Ops.Cal.Atty.Gen. 26 (2009); 92 Ops.Cal.Atty.Gen. 19 (2009);89 Ops.Cal.Atty.Gen. 217 (2006); 86 Ops.Cal.Atty.Gen. 138(2003); 85 Ops.Cal.Atty.Gen. 60 (2002); 82 Ops.Cal.Atty.Gen. 83 (1999); 81 Ops.Cal.Atty.Gen. 327 (1998); 80 Ops.Cal.Atty.Gen. 320 (1997); 69 Ops.Cal.Atty.Gen. 255 (1986); 68 Ops.Cal.Atty.Gen. 171 (1985); 65 Ops.Cal.Atty.Gen. 606 (1982); 63 Ops.Cal.Atty.Gen. 868 (1980);

 

 

 

Policy Adopted: 11-10-2016