Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 98-405
of :
: November 16, 1998
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE HELEN MACLEOD THOMSON, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
Is a former member of a city council who participated in the planning, discussions, and
approval necessary to implement a city loan program for developing businesses within the city thereafter
precluded from acquiring a loan under the program?
CONCLUSION
A former member of a city council who participated in the planning, discussions, and city
approval necessary to implement a city loan program for developing businesses within the city is thereafter
precluded from acquiring a loan under the program.
ANALYSIS
A city councilman, while a member of both the council and the city's redevelopment agency,
participated in the planning, discussions, and approval necessary to implement a loan program for developing
businesses within the city. The revolving loan program is currently funded by a federal community
development block grant.
After leaving office, the councilman decided to establish an equipment rental business in the
city. May he now obtain a loan under the city's program he helped create? We conclude that such a loan
would be prohibited by the terms of Government Code section 1090. Footnote No. 1
Section 1090 provides:
"Members of the Legislature, state, county, district, judicial district, and city officers
or employees shall not be financially interested in any contract made by them in their official
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capacity, or by any body or board of which they are members. . . ."
Both the courts and this office have concluded that a contract may be "made" by a public officer or employee
within the meaning of section 1090 even though the actual execution of the contract occurs after he or she
leaves such public office or employment. In the leading case of Stigall v. City of Taft (1962) 58 Cal. 2d 565,
the court concluded that a contract was "made" by a former city councilman after leaving office:
". . . [We] are persuaded, if not compelled, to reject in the case at bar the narrow and
technical interpretation of the word 'made' and construe its statutory meaning to encompass the
planning, preliminary discussions, compromises, drawing of plans and specifications and
solicitations of bids, in all of which Councilman Black participated and which there were, in the
broad sense, embodied in the making of the contract." (Id., at p. 571.)
Accordingly, the court ruled that the councilman could not contract with the city after leaving office where he
had participated in the planning and preliminary discussions in setting up the contract. (Ibid.)
In 66 Ops.Cal.Atty.Gen. 156 (1983), we were asked whether county employees could
propose to the county that it contract out the administration of its federal community development block
grant program and thereafter leave county service and become the private administrators of the program. The
county employees had "initially discussed the matter with, and made comments and suggestions to
appropriate county persons charged with investigating its feasibility and desirability. . . ." (Id., at p.157.) We
stated:
"Since the word 'made' as it is used in section 1090 . . . has been more broadly
interpreted than its technical sense in contract law, to encompass such embodiments in the
making of a contract as preliminary discussions, negotiations, compromises, reasoning,
planning, drawing of plans and specifications and solicitation for bids [citations], the final
execution of a contract, which is the time when it is technically made, 'is not the only time when
a conflict of interest [under § 1090] may be presented.' [Citation.] Rather the section is violated
whenever it can be established that a public employee had the opportunity to and did influence
its execution or participated in its making, either directly or indirectly to promote his personal
interests. [Citations.] Have the county employees in the situation presented come within its
prescriptive ambit? We believe they have." (Id., at pp. 159-160.)
In a letter opinion issued in 1993 (Cal.Atty.Gen., Indexed Letter, No. IL 92-1212 (Jan. 26,
1993)), we considered whether a former city planning commissioner could be hired as a city consultant after
leaving office. We concluded:
"There is no question here that the former planning commissioner, in his role as chair
of the organization subcommittee of the planning commission, was significantly involved in the
policy determination to have much of the city's general plan revision project done through
consultants. In our view, it is not controlling that this recommendation came during a prior fiscal
year and with respect to a prior fiscal year budget. Both the case law and 'prudent conservatism,'
(which we have always advocated with respect to section 1090), would dictate that all matters
concerning the general plan revision be considered a 'single transaction' despite the overlap
between budgets and fiscal years. [Citation.]
"Likewise, we believe that an attempt here to segment the question of hiring
consultants as between different fiscal years and particular budgets would be rejected by a court
and a violation of section 1090 found if the proposed consultant contract were to be awarded. In
short, the former commissioner was an active participant in the overall city policy decision to
'contract-out' much of the general plan revision. Accordingly, he cannot now benefit from such
participation [Citation ]
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participation. [Citation.]
"Our conclusion does not mean that members of advisory boards and commissions of
local agencies may never be hired as consultants upon leaving public service. It means only that
if the officials were instrumental in proposing 'contracting-out' services, they may not later be the
beneficiaries of their proposals."
Recently, in People v. Honig (1996) 48 Cal. App. 4th 289, the court rejected the contention
that section 1090 contained a foreseeability requirement, stating:
". . . In defendant's view, to be financially interested in a contract within the meaning
of section 1090 it must be reasonably foreseeable that the contract will have a financial effect on
a source of income of the official and the effect must be material, meaning 'a financial effect of
real importance or great consequence,' or 'a significant effect on a source of income.'
"We reject defendant's suggested interpretation of section 1090. This section has long
been interpreted as prohibiting an official from having any financial interest in a contract,
whether direct or indirect. [Citation.] Although the Legislature amended the statute in 1963 to
clarify that it was concerned with financial interests, the Legislature has never seen fit to qualify
the proscribed financial interests with modifiers such as 'material,' 'substantial,' 'significant,' or
'direct,' 'certain,' 'probable,' and the like. [Citation.]" (Id., at pp. 323-324, fn. omitted.)
We similarly reject here the suggestion that section 1090 may only be violated when at the time the official
was instrumental in setting up a government program, he subjectively intended to contract with the agency
after leaving office. The statute has never been so rigidly construed. (See 66 Ops.Cal.Atty.Gen., supra, at
159-160; Cal.Atty.Gen., Indexed Letter, No. IL 92-1212, supra.) Instead, we have looked to whether the
official had the opportunity and did participate in the policy decision to create the government program under
which the contract would later be executed.
We note that the harsh consequences of section 1090's prohibition have been ameliorated by
the Legislature in specified circumstances involving what are termed "remote interests" (§ 1091) and
"noninterests" (§ 1091.5). (See 81 Ops.Cal.Atty.Gen. 169, 172 (1998).) The only exemption from the
prohibition that merits our analysis here is section 1091.5's classification as a "noninterest" of certain "public
services" received under contract:
"(a) An officer or employee shall not be deemed to be interested in a contract if his or
her interest is any of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(3) That of a recipient of public services generally provided by the public body or
board of which he or she is a member, on the same terms and conditions as if he or she were not
a member of the board.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
We have examined the legislative history of the 1961 amendment that added the "public services" exemption
to section 1091.5. (Stats. 1961, ch. 381, § 2.) The scope of this exemption is not identified therein. We have
previously determined informally, however, that "public services" would include public utilities such as
water, gas, and electricity, and the renting of hangar space in a municipal airport on a first come, first served
basis. The furnishing of such public services would not involve the exercise of judgment or discretion by
public agency officials. Rather, the rates and charges for the services would be previously established and
administered uniformly to all members of the public. (See 80 Ops.Cal.Atty.Gen. 335, 338 (1997).)
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Obtaining a government loan involves more complex considerations. The loan applicant
must qualify, and the public official approving the loan must exercise some degree of discretion and
judgment. Whatever may be the scope of the "public services" exemption of section 1091.5, subdivision
(a)(3), it does not include the extension of a business development loan, where the conditions of the loan
would be specific to the particular proposal in question. In People v. Watson (1971) 15 Cal. App. 3d 28, 37,
the court held that a debtor-creditor relationship is covered by section 1090 as a contract and financial
interest.
Finally, we note the proscription contained in Public Contract Code section 10411,
subdivision (a), applicable to former state officers and employees:
"No retired, dismissed, separated, or formerly employed person of any state agency or
department employed under the state civil service or otherwise appointed to serve in state
government may enter into a contract in which he or she engaged in any of the negotiations,
transactions, planning, arrangements, or any part of the decision-making process relevant to the
contract while employed in any capacity by any state agency or department. The prohibition of
this subdivision shall apply to a person only during the two-year period beginning on the date the
person left state employment."
A similar one-year proscription is contained in the federal law governing local public activities financed by
community development block grants. (24 C.F.R. § 570.611 (1997).) The Legislature could easily provide a
like limitation period regarding the execution of contracts for purposes of section 1090, if it so chooses.
We conclude that a former member of a city council who participated in the planning,
discussions, and approval necessary to implement a city loan program for developing businesses within the
city is thereafter precluded from acquiring a loan under the program.
*****
Footnote No. 1
Section references are to the Government Code.
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