In a decision that is likely to have strong reverberations in Davis, the California Supreme Court ruled this week that public officials may be guilty of violations of conflict of interest laws even when a city attorney advises them that their actions are legal.
According to a February 9, 2007 Los Angeles Times article:
“A public official is not required to know that his conduct is unlawful” to be found to have broken the law, Justice Carol A. Corrigan wrote for the court. “Therefore, reliance on advice of counsel as to the lawfulness of the conduct is irrelevant.”
The defendant was charged with violating Government Code section 1090 by holding a financial interest in a contract made by the public agency of which she was a member.
The defendant then claimed “entrapment by estoppel defense.” Entrapment-by-estoppel is an “affirmative defense” that “is available when a government official has actively misled a defendant into a reasonable belief that his or her charged conduct is legal.”
The court rejected this claim. In part this rejection was based on the specific situation of the individual who was a council member and the attorney served at their pleasure.
The court observed that the city attorney in Bell Gardens was a subordinate of the City Council. An official cannot escape liability by “claiming to have been misinformed by an employee serving at her pleasure,” the court said.
Otherwise, a public official could “insulate herself from prosecution by influencing an appointee to provide the advice she seeks.”
However, they also ruled much more generally on this question so as to appear to apply to all cases where an individual used the advise of counsel as insulation against prosecution for conflicts of interest.
“Private attorneys interpret and advise their clients on the application of statutes under all kinds of circumstances. Yet the average citizen cannot rely on a private lawyer’s erroneous advice as a defense to a general intent crime.”
“The defense of action taken in good faith, in reliance upon the advice of a reputable attorney that it was lawful, has long been rejected. The theory is that this would place the advice of counsel above the law and would place a premium on counsel’s ignorance or indifference to the law.” (People v. Chacon).
This ruling is particularly germane at this moment to the General Plan Housing Commission Steering Committee. The question arose on Thursday about the issue of conflict of interest.
Former Davis City Councilmember and Committee Member Mike Harrington said at the meeting, “Some people in this room stand to make tens of millions of dollars from our decisions.”
According to the Davis Enterprise:
“Committee members wouldn’t need to recuse themselves because their vote would be one of 15, said Bob Wolcott, Davis’ principal planner. One person wouldn’t be able to sway the vote unless there was a good reason to put housing on a property he or she had a financial interest in.”
At the time of yesterday’s story, we found this an unconvincing argument.
An individual city councilmember is just one of five, and yet anytime a discussion comes within 500 feet of their property they must recuse themselves.
The City is in the process of updating its Conflict-of-Interest code:
“Pursuant to Government Code Section 87302, the code will designate employees and officials who must disclose certain investments, income, interests in real property and business positions, and who must disqualify themselves from making or participating in the making of governmental decisions affecting those interests.”
This Supreme Court ruling then would appear to apply in this case. Just because Bob Wolcott says that Committee Members wouldn’t need to recuse themselves, does not make it so. Member of the steering committee despite the advice of City Planner Bob Wolcott and City Attorney Harriet Steiner, could still potentially face conflict of interest charges.
—Doug Paul Davis reporting