HOW TO PROPERLY DISCLOSE AND RECUSE UNDER THE POLITICAL REFORM ACT AND GOVERNMENT CODE SECTION 1090

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11I BEST BEST & KRIEGER 2#ijb OCT -3 PM j: L17 ATTORNEYS AT LAW CITY OF SANTA ANA Memorandum CLERK OF CCUPJcjj, To: PUBLIC AGENCY CLIENTS From: BEST BEST & KRIEGER LLP` Date: SEPTEMBER 29, 2016 Re: HOW TO PROPERLY DISCLOSE AND RECUSE UNDER THE POLITICAL REFORM ACT AND GOVERNMENT CODE SECTION 1090 When a public official determines that he or she has a disqualifying conflict of interest under either the Political Reform Act (Government Code § 87100 et seq., "the Act") or Government Code section 1090, the process of removing, or "recusing" from "consideration of the matter" can be about as welcome as a flu shot. However, once a disqualifying conflict exists, complying with the legal requirements for recusal is every bit as important to full compliance with the law.' The Fair Political Practices Commission ("FPPC") often gets complaints alleging a failure to properly and fully comply with the recusal process required by law. If a complaint is justified, the affected official could face a fine and/or the adverse publicity of an FPPC enforcement action, and possibly even criminal prosecution. Public officials who do the right thing by identifying a conflict of interest ahead of time and then comply with the law by refraining from influencing or making a decision are best served (as is the public) by properly and successfully recusing themselves. Specifically, they must complete the process of disclosure by "announcement and identification." This process must be understood by all public officials and those who advise them, the council or board clerk and its counsel. It is important to remember that while this memorandum speaks to recusal under both the Act and section 1090, a conflict under section 1090 will rarely be cured by identification, announcement and/or recusal. More commonly, a section 1090 conflict will result in a void and unenforceable contract, but the law provides for very specific "remote interests" that will allow the contract to proceed once the conflicted member has properly recused. ' Often, whether a disqualifying conflict exists is a close call. This determination should always be made with the assistance and advice of counsel. However, once the public official decides to recuse, it serves no interest to go half way and suggest to the agency for its records, fellow officials, and the public that the recusal is "voluntary' or "erring on the side of caution." If so, that recusal may be challenged as not complying with the Act or Government Code § 1090. If the question is close enough that the official decides to recuse, the record should be clear that there is, in fact, a disqualifying conflict of interest and the recusal is required by the applicable law. This product provided under the Public Policy & Ethics Group Program 93939.00020A29177323.3