Thursday, December 26, 2013
Officials’ Acceptance of Airport Noise Mitigation Funds Did Not Violate Conflict of Interest Law—A.G.
By a MetNews Staff Writer
An exception to the state conflict-of-interest law allows members of the South San Francisco City Council to accept benefits from a program that compensates residents for the cost of mitigating airplane noise, Attorney General Kamala Harris has concluded.
In an opinion requested by state Sen. Jerry Hill, a Democrat who represents the area, on behalf of two council members, and prepared by Deputy Attorney General Diane Eisenberg, Harris said the “public services generally provided” exception to Government Code §1090 applied. The opinion was filed Friday.
Section 1090 generally prohibits a public official or employee from acting on a contract in which that person has an interest. The law, according to a recent state Supreme Court decision, “is concerned with ferreting out any financial conflicts of interest, other than remote or minimal ones, that might impair public officials from discharging their fiduciary duties with undivided loyalty and allegiance to the public entities they are obligated to serve.”
The program that provoked Friday’s opinion is the San Francisco International Airport Aircraft Noise Insulation Program, established in the 1980s and funded jointly by the federal government and the City and County of San Francisco.
San Francisco owns the airport, commonly known as SFO. But the airport is actually located well south of the city, so its noise and other environmental impacts fall primarily on communities in northern San Mateo County, such as South San Francisco.
The program funds noise insulation installation in both private homes and rental units within zones designated by the particular cities. In exchange for assistance, the homeowner or tenant must grant an “avigation easement,” waiving all rights to sue San Francisco regarding airplane noise, unless specified decibel limits are exceeded.
South San Francisco, where property owners can receive up to $15,000 for insulation improvements, joined the program in 1984 and expanded it in 2006. The conflict-of-interest question arose because one council member is a homeowner in an area that was added to the program in the expansion, and another owns a residence in the original zone but has not applied for the funds.
The attorney general said the program falls within the statute’s broad definition of “contract,” so §1090 would generally apply. But the mere receipt of program funds by a council member, on the same terms as other homeowners, falls under the §1091.5(a)(3) exception, Harris concluded.
The exception provides that a person subject to §1090 is deemed not to be interested in a contract if his or her only interest is as 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 body or board.”
Harris cited cases holding that a water board member could own a company that received water from the district as long as his company received the water at the same rate as all other companies, and that a city council member could purchase advertising space from the city at the same rate charged to all other advertisers.
The opinion is No. 12-606.
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