Thursday, June 22, 2006
State Conflict-of-Interest Law Does Not Bar City Officials From Renting Hangar Space at Municipal Airport—A.G.
By TINA BAY, Staff Writer
State conflict-of-interest law does not preclude members of a city airport commission from renting hangar space at the city airport but generally bars their participation in proposals to revise hangar rate rental structure, Attorney General Bill Lockyer has opined.
Responding Tuesday to a two-part query by Torrance City Prosecutor John Fellows, Lockyer said city airport commissioners currently renting hangar space from the city may continue to do so if the space is rented on a first-come, first-served basis at set rates.
However, he concluded that the commissioners “may not, absent a legal necessity, participate in or attempt to influence the commission’s or city council’s consideration of proposed revisions to a hangar rental rate structure if it is reasonably foreseeable that the decision will have a material effect, distinguishable from its effect on the public generally, on their respective finances.”
The attorney general explained that when making reports and recommendations to the city council on matters related to the city airport, city airport commissioners must comply with Government Code Sec. 1090’s requirement that “city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members.”
Although a city airport commissioner renting hangar space from the city obviously has a financial interest in the rental agreement, he said, the commissioner may nonetheless continue renting from the city if he qualifies for the “noninterest” exception provided by Sec. 1091.5(a)(3).
Lockyer concluded that this statutory exception—which deems a commissioner not interested in a city contract if the contract treats him as a recipient of public services that the city generally provides to the general public on the same terms—applied to city airport commissioners under the facts of Fellows’ query.
“[T]he hangar rental scheme at issue here is applicable to all potential customers and available on a first-come, first-served basis; the rental fees are based upon the square footage of the hangar space and whether the renter is a resident or non-renter of the city. Airport commissioners receive no priority to the hanger space and receive the preferential rental rate,” the attorney general explained.
On the issue of rental rates, Lockyer said an airport commissioner renting hangar space from the city may not participate in any aspect of decision-making regarding hangar rental rates if it is “substantially likely” that the commission’s decision will affect the commissioner’s finances by at least $250 in a 12-month period, and that this financial effect is distinguishable from the effect of the decision on the general public.
Under the Political Reform Act of 1974, Lockyer said, a commissioner with a “disqualifying financial interest” may participate in the decision only if the disqualification of a number of commissioners would leave the commission with less than a quorum to act—and only if the commission follows procedural requirements.
“[W]e caution that the full extent to which the Act’s provisions and implementing regulations may apply here would depend upon a careful examination of all the particular facts involved,” he concluded.
The opinion, No. 05-801, was prepared for Lockyer by Deputy Attorney General Marc J. Nolan.
Copyright 2006, Metropolitan News Company