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Home My WebLink AboutXVII - Motion for Reconsideration03/08/2011 13:08 FAX Improvement Association clo Don Krotee 2916 Gay Street Newport Beach Ca. 92663 March 8, 2011 1 ^� 1111 3 -$ • 2011 Re: Dear Mister Mayor Henn and Members of the City Council: As the President of the Newport Heights Improvement Association, a long time resident, a member of those within this City that are unfairly disenfranchised by the referenced action and co Chair of SPON (SPON's objection is tentative in that a Steering Committee vote later this° month may join this action), I object to the referenced votes and decision on the Reagan statue and its placement on the grounds that several council members including Keith Curry, yourself and Rush Hill had an impermissible financial interest in the statue and its placement on City property. It has long been recognized that local public officials cannot benefit from anything they approve. For instance, the common law has long prohibited public officials from entering into contracts or agreements affecting land in which they held an interest even if that interest was a leasehold. See Brandenburg v. Eureka RedevelQpm p=4 (2007) 152 Cal. App. 0 13 50, 1362. Government Code section 1090 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. $tgall v. City of Tact (1962) 58 Ca1.2d 565, 569_ Where a prohibited interest is found, the affected contract is void from its inception, Thomson v. Call (1985) 38 Cal.3d 633, 646 and fa. 15, and the official who engaged in its making is subject td a host of civil and (if the violation was willful) criminal penalties, including imprisonment and disqualification from holding public office in perpetuity. Government Code section 1097; Thomson supra • 38 Cal. 3d at 646 and fn_ l5. Via Facsimile and U& Mail ELI a Michael F. Henn, Mayor cc� CO Members of the City Council City of Newport Beach m 3300 Newport Blvd. C Newport Beach, California 92663 01 Re: Dear Mister Mayor Henn and Members of the City Council: As the President of the Newport Heights Improvement Association, a long time resident, a member of those within this City that are unfairly disenfranchised by the referenced action and co Chair of SPON (SPON's objection is tentative in that a Steering Committee vote later this° month may join this action), I object to the referenced votes and decision on the Reagan statue and its placement on the grounds that several council members including Keith Curry, yourself and Rush Hill had an impermissible financial interest in the statue and its placement on City property. It has long been recognized that local public officials cannot benefit from anything they approve. For instance, the common law has long prohibited public officials from entering into contracts or agreements affecting land in which they held an interest even if that interest was a leasehold. See Brandenburg v. Eureka RedevelQpm p=4 (2007) 152 Cal. App. 0 13 50, 1362. Government Code section 1090 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. $tgall v. City of Tact (1962) 58 Ca1.2d 565, 569_ Where a prohibited interest is found, the affected contract is void from its inception, Thomson v. Call (1985) 38 Cal.3d 633, 646 and fa. 15, and the official who engaged in its making is subject td a host of civil and (if the violation was willful) criminal penalties, including imprisonment and disqualification from holding public office in perpetuity. Government Code section 1097; Thomson supra • 38 Cal. 3d at 646 and fn_ l5. 03/08/2011 13:08 FAX ewport.Heights Improvement Association c/o Don Krotee 2916 Gay Street Newport Bead, Ga. 92663 M Although Government Code section 1090 is confined to the making of contracts, the Political Reform Act applies more broadly to cover participation in any "governmental decision" in which one has a financial interest. See California Government Code section 87100. Government Code section 87100 provides: "No public official at any level of state or local government shall make, participate in making Orin any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest. Government Code section 87103 requires that, if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official or a member of his or her immediate family, an effect is considered "reasonably foreseeable" if there is a substantial likelihood that it will occur. If the effect is a mere possibility, it is not reasonably foreseeable. The focus of the above statutory prohibitions is on actual or potential financial interests. Clark v_ City ofHermosa Beach (1996) 48 Cal. App. 4th 1152, 1171 and fn. 18. However, courts also recognize a common law prohibition against actual or potential conflicts which extends beyond financial interests. Id. Noting the common law prohibition and the need for strict enforcement, the Court of Appeal in Noble v. City of Palo Alto, (1928) 89 Cal. App, 47, 51 stated: A public officer is impliedly bound to exercise the powers conferred on him with disinterested skill, zeal, and diligence and primarily for the benefit of the public. . Actual injury is not the principle the law proceeds on_ Fidelity in the agent is what is aimed at, and as a means of securing it the law will not permit him to place himself in a position in which he may be tempted by his own private interests to disregard those of his principal. This doctrine is generally applicable to private agents and trustees, but to public officers it applies with greater force, and sound policy requires that there be no relaxation of its stringency in any case that comes within its reason.... 03/08/2011 13:08 FAX Newport Veights Improvement Association c(o Don Krotee 2916 Clay street Newport Beach Ca. 92663 M See Clark, 48 Cal. App. 4th at 1170 -1171. See also 4 McQuillin, The Law of Municipal Corporations (3d ed. rev, 1992) 13.35, pp. 840 -841 ( "A finding of self-interest sufficient to set aside municipal action need not b be based upon actual proof of dishonesty, but may be warranted whenever a public official, by reason of personal interest in a matter, is placed in a situation of temptation to serve his or her own purposes, to the prejudice of those for whom the law authorizes that official to act...."). Here, Council members Curry Henn, and Hill had financial interest in the Reagan statue: they contributed to the statue co They did not disclose this interest. They voted in favor of the motion to approve the motion to place the statue which they financed on public property. This is a violation of Government Code sections 1090 and 87100_ The placement of the statue on City property violated City policies including City Council Policy 1-9 ("Art in Public Places ") and City Council Policy 1 -11 C Donataion of Art to City of Newport Beach"). The Council recognized that neither of these policies were followed; they bad violated these policies. Yet, the Council used this recognized violation as a rationale for voting for the Reagan statue. Council member Curry stated at the February 22, 2011 meeting that the donors to the statue including him and Council members Henn and Hill wanted to control the image and likeness, and would not allow the Arts Commission or other City committees to control the image or likeness ofthe statue. Mr. Curry recognized the conflict, stated the conflict and refused to recuse himself or the other council members. %n conclusion, as indicated above, we demand that you reconsider this action, you recuse those with financial interests, and re -vote the placement of the Reagan statue on any Cit owned Property. Please Please be advised that should you not take these actions within ten chit, J will report these impermissible actions to the District Attorney for the County of Orange and the California Fair Political Practices Commission and seek all civil remedies available, you in advance for your prompt attention. Don otee Newport' Iffeightli Improvement Association MR. I ne Black Long time resident