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GC 1090 IMPLICATIONS FOR STAFF MADE CONTRACTS WHERE A COUNCIL OR BOARD MEMBER HAS A FINANCIAL INTRSEST IN THE CONTRACT
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GC 1090 IMPLICATIONS FOR STAFF MADE CONTRACTS WHERE A COUNCIL OR BOARD MEMBER HAS A FINANCIAL INTRSEST IN THE CONTRACT
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7/19/2019 1:36:58 PM
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City Clerk
Date
12/8/2015
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11 <br />BEST BEST & KRIEGER 0 <br />ATTORNEYS AT LAW <br />As the Attorney General has observed <br />"The purpose of section 1090 `is to remove or limit the possibility <br />of any personal influence, either directly or indirectly which might <br />bear upon an official's decision, as well as to void contracts which <br />are actually obtained through fraud or dishonest conduct."' (Stigall <br />v. City of Taft (1962) 58 Cal.2d 565, 569; see Thorpe v. Long <br />Beach Community College Dist. (2000) 83 Cal.AppAth 655, 659; <br />Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 <br />Cal.App.3d 201, 215.) <br />"Section 1090, when it applies, stands as an absolute bar to <br />entering into the prohibited contract. For example, the prohibition <br />cannot be avoided by having the board member with the proscribed <br />interest abstain from participating in the decision -making process." <br />(Thomson v. Call, supra, 38 Ca1.3d at p. 649; Fraser-Yamor <br />Agency, Inc. v. County of Del Norte, supra, 68 Cal.App.3d at pp. <br />211-212.)" (87 Ops.Cal.Atty.Gen. 9, 10 (2004).) <br />The Fair Political Practices Commission ("FPPC") commonly applies a six -step analysis <br />to determine whether an official has a disqualifying conflict of interest under section 1090, and <br />that analysis provides a suitable framework for this discussion. <br />Step 1. Is the official subject to the provisions of section 1090? <br />Because the focus here is on council or board members, every member of a <br />council or board is subject to the provisions of section 1090. <br />Step 2. Does the decision at issue involve a contract? <br />For the sake of this discussion, we assume the staff member is making a "contract" within <br />the meaning of section 1090. For purposes of the statute, a contract includes not only formal <br />contracts but also such things as purchase orders or payments for any goods and services, leases, <br />grants, etc. <br />Step 3. Is the official making or participating in making a contract? <br />This is the crucial question in the analysis for sake of this discussion. Section <br />1090 applies to an official who participates in any way in the making of the contract, including <br />involvement in matters such as preliminary discussions, negotiations, compromises, reasoning, <br />planning, drawing of plans and specifications, and solicitation for bids. (Millbrae Assn. for <br />-2- <br />93939.0020E%22360005.2 <br />
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