Our File No. 1-14-067 QUESTION CONCLUSION

FAIR POLITICAL PRACTICES COMMISSION 428 J Street ? Suite 620 ? Sacramento, CA 95814-2329 (916) 322-5660 ? Fax (916) 322-0886

May 1, 2014

John G. Barisone Santa Cruz City Attorney PO Box 481 Santa Cruz, CA 95061-048 l Re: Your Request for Informal Assistance

Our File No. 1-14-067 Dear Mr. Barisone:

This letter responds to your request for advice regarding conflict-of-interest provisions of the Political Reform Act (the "Act").t Because you seek general information, we are providing informal assistance.2 Nothing in this letter should be construed to evaluate any conduct that has already taken place. In addition, this letter is based on the facts presented. The Fair Political Practices Commission (the "Commission") does not act as the finder of fact. (/11 re Oglesby (1975) l FPPCOps. 71.)

QUESTION Does Regulation I 8702.4(b)(4) permit a public official to initiate contact with his agency's staff for the purpose of gathering information relevant to the preparation of drawings or submissions of an architectural, engineering, or similar nature to be used by a client in a proceeding before the agency?

CONCLUSION Other than the preparation of certain drawings and submissions, Regulation 18702.4 permits direct contact with an agency only if "necessary" for the processing or evaluation of the drawings or submissions. As construed by the Commission, a contact is "necessary" only if it is

1 The Political Reform Act is contained in Government Code Sections 81000 through 91014. All statutory references arc to the Government Code, unless otherwise indicated. The regulations of the Fair Political Practices Commission are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regulations. All regulatory references are lo Title 2, Division 6 of the California Code of Regulations, unless otherwise indicated.

2 Informal assistance does not provide the requestor with the immunity provided by an opinion or formal written advice. (Section 83114; Regulation I8329(c)(3).)

File No. 1-14-067 Page No. 2

initiated by agency staff for the purpose of processing or evaluating the drawings or submissions. While Regulation 18702.4 permits an official to participate in the more technical aspects of preparing drawings and submissions, contacts with agency staff for the purpose of gathering information relevant to the preparation of drawings and submissions are not considered necessary under Regulation 18702.4 because this information may be obtained by the official's client or another agent of the client.

Nonetheless, an official may initiate limited contacts that are ministerial in nature, such

as seeking information that would otherwise be available to the public. Ministerial

communications include inquiries regarding a parcel's previous permit history, existing zoning

determinations, location within a sensitive habitat area or a historic district, development

limitations, verification

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FACTS On behalf of the City of Santa Cruz, you are seeking clarification of Regulation 18702.4, which provides an exception to the Act's conflict-of-interest rules for an official preparing a drawing or submission of an architectural, engineering, or similar nature to be used by the official's clients in a proceeding before the official's agency. As Regulation 18702.4 allows an otherwise disqualified official to make "necessary contact" with agency staff concerning the processing or evaluation of a drawing or submission prepared by the official, you ask whether the there are any circumstances in which the official may initiate "necessary contact" with agency staff pursuant to the regulation. This request is prompted by the fact that, in the City of Santa Cruz, residents who happen to be engineers, architects, and licensed contractors have historically been appointed to serve on the City's Transportation and Public Works Commission, Planning Commission, Board of Building and Fire Appeals, and Historic Preservation Committee.4 The Santa Cruz City Council has made these appointments in light of these individuals' knowledge, education, experience, and expertise with respect to the type of issues and projects their commissions are routinely called upon to review, consider, make recommendations, or rule upon. Many of these appointees are sole practitioners who have historically served clients in connection with projects to be developed and constructed in the City of Santa Cruz. Clients will typically retain these architects, engineers, and contractors to ascertain the feasibility of a proposed project and then, if feasible, to design the project, submit plans and drawings to the pertinent departments, and to supervise or otherwise participate in the construction of the project upon the issuance of permits.

3 You have sought advice on behalf of officials from multiple city agencies. See the Fulhorst Advice Letter, No. I- 12-045, for a discussion of how the conflict-of-interest rules apply to contacts or appearances before another city agency and city staff members shared with the official's agency.

.i You state that the Santa Cruz ordinance creating the Board of Building and Fire Appeals, found at Santa Cruz Municipal Code Chapter 18.41, actually requires the majority of its members to be either an architect, engineer, or licensed contractor.

File No. I-14-067 Page No. 3

Invariably, architects, engineers, and contractors find it necessary to contact Public Works and Planning Department staff in order to explain the proposed project and to determine whether the City of Santa Cruz is in possession of information bearing upon the feasibility of the project or other information that is necessary in order to assure that the project will comply with applicable regulations. For example, prior to submitting a development application including plans and drawings, the project architect will typically inquire as to previous permit history for the parcel, existing zoning determinations applicable to the parcel, whether the project site happens to be within a mapped sensitive habitat area or a historic district, development limitations applicable to the parcel, parking requirements applicable to the proposal, and clarifications regarding the approval process. During any stage of the development process, the project architect, engineer, or contractor may wish to verify interpretations of zoning ordinances and building codes that the Planning Department and Building Department will apply in assessing the project's code compliance. In addition, it is not uncommon for project architects, engineers, or contractors to informally confer with Planning Department staff regarding their ability to recommend a particular project's approval in light of the sometimes subjective findings that need to be made in order to issue a design permit or conditional use permit for a project.

ANALYSIS The Act's conflict-of-interest provisions ensure that public officials will "perform their duties in an impartial manner, free from bias caused by their own financial interests or the financial interests of persons who have supported them." (Section 8100l(b).) Section 87100 prohibits any public official from making, participating in making, or otherwise using his or her official position to influence a governmental decision in which the official has a financial interest. A conflict of interest exists whenever a public official makes, participates in or uses his or her official position to influence a governmental decision that has a reasonably foreseeable material financial effect on one or more of his or her interests as specified by Section 87103. Regulation 18702.4(b)(4) Notwithstanding a disqualifying conflict of interest, Regulation 18702.4(b)(4) provides a limited exception allowing an official to prepare drawings or submissions of an architectural or engineering nature. More specifically, this regulation states that a public official is not attempting to use his or her official position to influence a governmental decision before his or her own agency, or an agency appointed by or subject to the budgetary control of his or her own agency, if the official:

"Prepares drawings or submissions of an architectural, engineering or similar nature to be used by a client in connection with a proceeding before any agency. However, this provision applies only if the official has no other direct oral or written contact with the agency with regard to the client's proceeding before the agency except for necessary contact with agency staff concerning the processing or evaluation of the drawings or submissions prepared by the official."

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In adopting Regulation I 8702.4(b)(4), the Commission's rulemaking file indicates that cities were concerned about limitations under the Act on the professional activities of planning commissioners or city council members who were also architects or engineers. In 1985, an ad hoc committee from the City Attorneys Department of the League of California Cities agreed that such architects and engineers should be able to prepare drawings and plans for clients, even though the drawings and plans would be submitted before the planning commission. The city attorneys thought (and the Commission ultimately agreed) the exception was necessary in order to allow local architects and engineers, who often are sole practitioners or work in small firms, to continue to practice their profession while serving as planning commissioners or council members. (See Memorandum from Diane Fishburn to Commission, Proposed Amendment to Regulation 18700.1, dated April 29, 1985.)

However, emphasizing the point that Regulation 18702.4(b)(4) was intended to be limited to the technical aspects of preparing a drawing or submission for the use of a client, the Commission expressly cautioned that the provision only applied so long as "the official has no other direct oral or written contact with the agency ... except for necessary contact with agency staff concerning the processing or evaluation of the drawings or submissions prepared by the official." Because Regulation 18702.4(b)(4) was intended to be limited to the more technical aspects of preparing a drawing or submission on behalf of a client, Commission staff has narrowly construed the exception in subsequent advice, finding that:

"[Regulation 18702.4(b)(4)], which is limited to the preparation of technical documents (RttmansoffAdvice Letter, No. 1-94-045), does not permit an official to have any other direct contact with the agency regarding the client's project except for necessary contact with agency staff concerning the processing or evaluation of the drawings or submissions prepared by the official. 'Necessary contact' has been narrowly construed to only allow an official to respond to questions from agency staff regarding the evaluation of drawings and submissions prepared by the official or relating to their movement through the approval process. (Woody Advice Letter, No. 1-99-061 and Holbert Advice Letter, No. 190-080.)" (Ottolia Advice Letter, No. 1-02-099.) Based upon the facts provided, you are concerned that officials are not able to engage in activity typically conducted by other engineers, architects, and licensed contractors that they deem "necessary" to gather information relevant to the project and the preparation of drawings or submissions related to the project. However, Regulation 18702.4(b)(4) was never intended to permit an official to represent a client in any aspects of a project or proceeding other than the preparation of drawings or submissions of a an architectural or engineering nature and to answer questions concerning the processing and evaluation of those drawings or submissions. As anticipated in adopting Regulation 18702.4(b)(4), any other contact for the purpose of influencing the official's agency would have to be made by the official's client or an agent of the client other than the official. Accordingly, initiating contact for the purpose of gathering

File No. 1-14-067 Page No. 5

information relevant to the project and the preparation of drawings and submissions is not "necessary" for purposes of the Act and does not fall with the Regulation l 8702.4(b)(4).

Ministerial Communications

Nonetheless, while you have sought assistance regarding Regulation 18702.4(a)(4), many of the actions you have described may not be prohibited under the conflict-of-interest rules because there is no governmental decision at issue and the communication is ministerial in nature. Pursuant to Regulation 18702.4(a)(l ), an official is not making or participating in making a government decision if the official's actions are solely ministerial, secretarial, manual, or clerical. We have previously advised that an official may contact his or her agency to "pose general questions which are ministerial in nature, such as questions about the required contents and form of applications submitted for building and safety department processing or requests for staff's explanation regarding a specific code requirement in order to prepare a submittal for a client." (Torrance Advice Letter, No. A-94-084.) We have also advised that "the Act would not prohibit [an official] from obtaining information otherwise available to the public." (Gallagher Advice Letter, No. 1-94-279.)

Accordingly, inquiries limited to a parcel's previous permit history, existing zoning determinations, location within a sensitive habitat area or a historic district, development limitations, parking requirements, clarifications regarding the approval process, and verification of interpretations of zoning ordinances and building codes are all permitted under the Act's conflict-of-interest provisions. However, we must caution that any contact made to pose a question ministerial in nature may not be used to attempt to influence any agency action. For example, while an official may seek a clarification of a zoning ordinance interpretation, the official may not raise or question the interpretation or attempt to persuade the agency in making a determination relative to the project or feasibility of the project. (See Torrance Advice Letter, supra.) If you need further assistance in determining whether any particular communication is ministerial in nature, you should seek further advice describing the nature of the communication.

If you have other questions on this matter, please contact me at (916) 322-5660.

Sincerely,

Zackery P. Morazzini General Counsel

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By: Brian G. Lau Counsel, Legal Division

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