by Alan Pryor and Rik Keller
Note: The preceding Part II in this series covering Brown Act violations is here:
“Housing Element Committee members are expected to remove themselves from all discussions and votes on matters in which they have any direct personal financial interest.
In gauging such extra-legal conflicts of interest and/or duty, each member shall exercise careful judgment and introspection in giving priority to the interests of fairness and objectivity; if there is any reasonable doubt that the member has a conflict, the member shall refrain from participation in the committee’s deliberations and vote(s).” – City of Davis Housing Element Committee Ground Rules (p. 4)
Last week the authors wrote a carefully-researched and well-documented article on the City of Davis’s Housing Element Committee (HEC) alleging several serious violations of the California state Brown Act open meeting laws prohibiting direct communications between members of jurisdictional bodies. As stated in that article (found here), the composition of the Council-appointed HEC, which is supposed to represent a “diversity of interests” in the community, was instead primarily composed of development and real estate interests and their local supporters.
In our article, we also disclosed that several weeks ago, there were a last-minute series of policy recommendations very favorable to the real estate and development interests in the City that were suddenly introduced to the Committee by these same real estate and development interests. These recommendations, in direct violation of the Brown Act, were sent directly from one member of the HEC to the entire HEC.
The HEC then further violated the Brown Act in considering and voting to adopt the same recommendations without publicly noticing that these recommendations were being considered by the HEC. In essence, these recommendations were introduced secretly to the HEC and then voted upon without full public disclosure and scrutiny of the recommendations.
We initially published our first article in the series in the Davisite on June 8th. The City of Davis sent a response email at the end of the following business day, on June 9th, about an hour before that evening’s Planning Commission meeting started, in which the central agenda item was discussion and consideration of the Housing Element update. The key conclusion in the City’s email regarding conflicts of interest was that “Since the HEC is a purely advisory committee, its members are not required to disclose conflicts of interest in a Form 700, nor are its members required to recuse when “public officials” in similar circumstances would be required to recuse under the Political Reform Act.”
However, the City’s self-serving response appears to have been hastily assembled by City staff and the City Attorney 1) without regard to the central points we raised in our previous article, 2) without consideration of relevant State law and guidelines, and 3) without referencing the City’s own explicit guidance it previously provided the HEC itself! These are all well-documented in Part II of the series.
Conflicts of Interest
In addition to Brown Act violations, the development and real estate interests on the Committee failed to adequately disclose conflicts of interest in terms of their investments and holdings in the City that would be impacted by these very same favorable recommendations approved by the HEC.
Requirements for the Form 700 “Statement of Economic Interests” are set forth in State law in California Government Code Section 87200 and in the City of Davis’s Conflict of Interest Code (Municipal Code, Article 2.12.010 and Resolution No. 17-008, Series 2017 (documents.cityofdavis.org/Media/Default/Documents/PDF/CMO/City-Clerk/17-008-Conflict-of-Interest-Code-Update.pdf)
The City states that “The intent of the Form 700 is to ensure that decision makers are not using their authority to affect personal financial interests.” (https://www.cityofdavis.org/city-hall/transparency-portal/personal-financial-disclosures)
In our June 8 article, we stated that “the City of Davis did not require Mr. Gibson or any other Council-appointed members of the HEC to disclose potential conflicts of interest to the City by filling out a Form 700 which discloses potentially conflicting property holdings or employment. It was improper for the City to ignore potential conflicts of interest of HEC members by not requiring such disclosures.’
Our argument consisted of the following:
- The City did not require Form 700s statements of HEC member. This is a factual statement
- Such disclosures are required for committee members on committees that make decisions. This is a factual statement
- It was improper (note: we did not say “illegal”) for the City to ignore potential conflicts of interest of HEC members. This is a statement that we believe is supported by the evidence
- We listed many financial conflicts of interest of HEC members that weren’t disclosed (and some that were).
The City responded in an email stating that the HEC members are “not required to disclose conflicts of interest” and are not “required to recuse” themselves from discussion and votes. The City’s response focuses on the State of California Political Reform Act and repeats twice that the HEC “is a purely advisory committee.”
However, just they as they did in their response to allegations of Brown Act violations (see Part II of this article series), the City omits key parts of the law they cite, and they also fail to address specific City requirements for commission/committee members for the City, as well as specific rules provided to the HEC itself.
In their email response, the City stated, “A member does not include a person who performs duties as a part of a committee, board, commission, group or other body that does not have decision-making authority” and cites “C.C.R. Section 18700(c)(2).” This is a close-enough quote of the actual text in the California Code of Regulations (Regulations of the Fair Political Practices Commission, Title 2, Division 6, C.C.R.), however it omits the next key provision in Section 18700(c)(2) (A) [emphasized in bold below]:
“(A) A committee, board, commission, group, or other body possesses decisionmaking authority whenever:
(i) It may make a final governmental decision;
(ii) It may compel or prevent a governmental decision either by reason of an exclusive power to initiate the decision or by reason of a veto that may not be overridden; or
(iii) It makes substantive recommendations and, over an extended period of time, those recommendations have been regularly approved without significant amendment or modification by another public official or governmental agency.”
In this omission, the City clearly wanted to avoid a discussion about whether the HEC makes/made “substantive recommendations.” One can understand this strategy to not be forthcoming since, in a sentence the shortly follows, the City states that the “HEC’s main functions are to provide comments, feedback, and recommendations…” The City would have to walk a fine line indeed to claim that the HEC’s role is to provide recommendations, but that it did not/does not make substantive recommendations.
This is not a black-and-white issue at all. It involves determining whether the HEC makes substantive recommendations, and the extent to which those recommendations are adopted over time by other officials or bodies of the City. We firmly believe that the City should err on the side of caution and maximum transparency, and that it was indeed improper for the City to not require Form 700 declarations for the HEC members. It should be noted that the Planning Commission ended up voting in favor of two of the recommendations of the HEC without significant amendment or modification. This alone provides substantive presumption that the HEC was acting as a decision-making body.
The City’s list of positions required to file Form 700s was last updated in 2017, and hence states nothing about the recently-formed Housing Element Commission. The City also did not state whether the City Attorney issued a substantive opinion on Form 700s not being required for the HEC beforehand, or whether they sought an opinion from the California Fair Political Practices Commission (FPPC), or provided anything more substantive than the post hoc justification they’re “not required” because they are a “purely advisory committee,” with no further explanation.
Comparing the stated roles and responsibilities of the HEC to other commissions in the City, the vast majority of the latter are specifically listed as requiring Form 700 declarations for members—only 4 of the “seventeen advisory groups categorized as boards, committees, and commissions listed in the City of Davis Commission Handbook (updated February 2020) are specifically listed as not requiring them.
Comparing the role of the HCE to other City commissions, the City of Davis Commission Handbook states [our emphasis in bold]: “The primary role of city of Davis commissions is to review and make recommendations to the City Council on matters within the commission’s scope of responsibility as set forth in the enabling resolution/ordinance….”
There do not seem to be substantive differences in the officially-described purposes, roles, and responsibilities of many of the commissions who do require them compared to those commissions who don’t require them and the HEC
For example, the Senior Citizen Commission [SSC] (Form 700s not required) is described as “appointed by and acts as an advisory body to the City Council” and its roles and responsibilities include “advising the City Council on matters related to policy and regulations relevant to senior citizens.” The Natural Resources Commission [NRC] is required to complete Form 700s, and it is described as “appointed by and acts as an advisory body to the City Council” and its roles and responsibilities include “advise the City Council on the preservation, management and enhancement of the city’s natural resources.” There appears to be no real distinction in the level of responsibility between the two Commissions and the HEC in terms of decision-making authority.
Yet multiple HEC members who had specific and substantial financial conflicts of interest did not recuse themselves from discussion or votes as required.
Going Beyond the Issue of Form 700s
Notably, the City’s response to us was incomplete and misleading as it focused on narrow requirements for Form 700s. However, ethical obligations for appointment procedures to commission/committees and the actions of those members one appointed extend beyond this criteria. Indeed the City states in its Commission Handbook in its section on “Ethics and Conflicts of Interest” that “It is important to keep in mind that ethics laws are minimum standards. It is not possible to write laws to prevent all actions that could weaken the public’s trust. Just because a given course of conduct is legal does not mean that it is ethical (or that the public will perceive it as such)” (p. 35)
More than a week before we wrote our initial article in this series, the City responded (dated 5/28/2021) to an information request and stated that, other than Form 700s for HEC members who were on existing City commissions, there were no “documents relating to the potential conflicts of interest of the committee.” This was shocking to us because the City has a standard application form for commissions, committees, and task forces (linked here: https://www.cityofdavis.org/city-hall/commissions-and-committees/apply-to-serve-on-a-city-commission) that contains a large text box entry space for applicants to “answer the following “Do you have any interests or associations which might present a conflict of interest? If yes, please explain:”. The City did not require HEC applicants to complete this standard procedure which would have provided more transparency and openness. Setting aside compliance with Form 700s for the moment, this is an egregious failure by the City to foster openness and transparency in governance.
Furthermore, the City and the HEC itself did not even enforce its own rules for ensuring that conflicts of interest do not arise. Similar to the HEC ignoring its own rules in relation to open public disclosure and the Brown Act that we documented in Part II of this series, the HEC established specific established its own “Ground Rules” regarding conflicts of interest that it violated The HEC received these “Ground Rules” for its committee at its December 3, 2020, meeting, and these were also published with the agenda for the meeting. Under “17. Conflicts of Interest,” the Rules state very clearly [our bold emphasis added]:
“Housing Element Committee members are not considered to be “public officials” as defined in the California Government Code, and therefore are not subject to the State Political Reform Act and its disclosure provisions. Financial Interests Form 700 will not be applicable. Nevertheless, Housing Element Committee members are expected to remove themselves from all discussions and votes on matters in which they have any direct personal financial interest.
In gauging such extra-legal conflicts of interest and/or duty, each member shall exercise careful judgment and introspection in giving priority to the interests of fairness and objectivity; if there is any reasonable doubt that the member has a conflict, the member shall refrain from participation in the committee’s deliberations and vote(s).”
As we documented in the first article in our series, there were multiple such financial conflicts of interest by multiple HEC members who either did not recuse themselves from voting on recommendations for which they could be construed to have a direct conflict, recuse themselves from participating in the discussions including HEC members Doug Buzbee, Don Fouts, and Don Gibson.
The published Ground Rules for the HEC go on to state “To avoid conflict interest concerns, the members shall not advise on specific recommendations relative to the inventory of suitable land.” Additionally, the HEC as a whole did more than just discuss specific recommendations relative to the inventory of suitable land, but actually voted on them as part of the series of 10 recommendations that HEC member Don Gibson introduced that were one of the main Brown Act violation we documented in Parts I & II of this series of articles.
Summary and Recommended Actions
Numerous Brown Act violations occurred with respect to HEC member communications prior to the latest May 20, 2021 meeting in which "recommendations" were wrongfully put forward by Mr. Gibson and then subsequently and illegally approved by the HEC without proper public disclosure and recusal by members with conflicts of interest. The City needs to correct these process deficiencies in the following manner:
- The City needs to appoint new HEC members with a broader representation of community-based affordable housing advocates. The current makeup of the HEC is vastly tilted towards development and real estate interests and resulted in policy proposals that represent a massive giveaway to them.
- The City needs to reconvene the HEC for the purpose of allowing recusal of voting and discussion by certain members and disallowing the final HEC vote of approval of the Housing Element. It should begin the process anew with a substantially improved public review process while avoiding all of the attendant Brown Act violations and conflicts of interest.
- The above actions need to occur prior to the next time the matter is before the Planning Commission and City Council for approval to ensure that any vote taken by the HEC is compliant with all provisions of the Brown Act.