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Vista USD |  BB  9270  Board Bylaws

Conflict Of Interest   

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Preamble

The Board of Trustees desires to maintain the highest ethical standards and help ensure that decisions are made in the best interest of the district and the public. In accordance with law, Board members and designated employees and consultants shall disclose any conflict of interest and, as necessary, shall abstain from participating in the decision involving the conflict.

Conflict of Interest Code

The district has adopted a Conflict of Interest Code (the "Code") pursuant to the requirements of the Political Reform Act of 1974, Government Code Section 81000 et seq. (the "Act"). The Code sets forth the required provisions for the disclosure of assets and income by the officials, employees and consultants designated in the Appendix to the Code, and lists and assigns the disclosure categories specifying the types of assets and income required to be disclosed by each of the designated officials, employees and consultants ("designated employees"), and provides for the disqualification of designated employees from acting where a conflict of interest exists. The requirements of the Code are in addition to other requirements of the Political Reform Act and to other state and local laws pertaining to conflicts of interest and have the force and effect of law. Designated employees violating any provision of the Code are subject to the administrative, criminal and civil sanctions provided by the Act. Additionally, a decision in relation to which a violation of the disqualification provisions of the Code or Government Code Section 87100 has occurred may be set aside as void pursuant to Government Code Section 91003.

All officials, employees and consultants are directed to refer to the district's Conflict of Interest Code for these specific requirements. The Conflict of Interest Code is held in the office of the Executive Assistant to the Superintendent as the district's Filing Officer/Official.

Board members and designated employees shall annually file a Statement of Economic Interest as specified in the district's Code. Board members and designated employees shall, within 30 days after assuming office/employment or leaving office/employment, file a Statement of Economic Interests as specified in the district's Code.

During July of every even-numbered year the Superintendent shall direct the review of the district's conflict of interest code to determine if an amendment is required and file a written statement regarding the results of the review with the code-reviewing body by October 1. If a change in the code is necessitated by changed circumstances, the district shall submit an amended code to the code-reviewing body in accordance with Government Code Section 87306. (Government Code 87306.5)

When an amendment in the district's conflict of interest code is necessitated by changed circumstances, such as the creation of new positions that must be designated, the code shall be amended and submitted to the code-reviewing body within 90 days in accordance with Government Code Section 87306. (Government Code 87306)

When reviewing and amending its conflict of interest code, the district shall provide officers, employees, consultants and members of the community adequate notice and a fair opportunity to present their views. (Government Code 87311)

Disqualification Under the Political Reform Act

If a Board member determines he or she has a financial interest in a decision, as described in Government Code section 87103, this determination shall be disclosed and made part of the Board's official minutes. A Board member shall, upon identifying a conflict or potential conflict of interest and immediately prior to the consideration of the matter, do all of the following:

1. Publicly identify each financial interest that gives rise to the conflict or potential conflict of interest in detail sufficient to be understood by the public, except that disclosure of the exact street address of a residence is not required. (Government Code 87105)

2. Recuse himself/herself from discussing and voting on the matter, or otherwise acting in violation of Government Code Section 87100. The Board member shall not be counted toward achieving a quorum while the item is discussed. (Government Code 87105; 2 CCR 18702.5)

3. Leave the room until after the discussion, vote and any other disposition of the matter is concluded, unless the matter has been placed on the portion of the agenda reserved for uncontested matters. A Board member may, however, discuss the issue during the time the general public speaks on the issue. (Government Code 87105)

If the item is on the consent calendar, the Board member must recuse himself/herself from discussing or voting on that matter, but the Board member is not required to leave the room during consideration of the consent calendar. (2 CCR 18702.5)

4. If the Board's decision is made during closed session, disclose his or her interest orally during the open session preceding the closed session. This disclosure shall be limited to a declaration that his or her recusal is because of a conflict of interest pursuant to Government Code Section 87100. The Board member shall not be present when the item is considered in closed session and shall not knowingly obtain or review a recording or any other nonpublic information regarding the Board's decision. (Government Code 87105)

(Government Code 87105; 2 CCR 18702.5)

Financial Interests in Contracts (Government Code 1090)

Board members, employees, or district consultants shall not be financially interested in any contract made by them in their official capacity or by any body or board on which they are members. Nor shall any Board member, employee or district consultant be a purchaser at any sale or vendor at any purchase made by them in their official capacity. Pursuant to Education Code Section 35233 members of Governing Boards of School Districts and to members of citizens' oversight committees appointed by those Governing Boards are subject to the prohibitions of Government Code Section 1090. (Government Code 1090)

A district officer, employee or elected official may not make a contract in his or her official capacity in which he or she is financially interested. Any participation or influence in the process by which the contract is developed, negotiated and/or executed is a violation of Government Code Section 1090.

If one of the district Board members has a financial interest even if the interested member does not participate and abstains from the decision and vote, the entire Board is precluded from entering the contract in question.

Transactions not involving written contracts, such as sales, payment authorizations, purchases or the making or receipt of a grant, can be contracts covered under Government Code Section 1090.

When a school employee is financially interested in a contract, the district will be prohibited from making the contract only if the employee is involved in the contract-making process. If the employee plays no role whatsoever in the contracting process, either because it is outside the scope of his or her employment, or because the employee had disqualified himself or herself from participation, the district is not prohibited from contracting with the employee or the business entity in which the employee is interested.

Any contract made in violation of Government Code Section 1090 is void and unenforceable and the Board member or employee is subject to: (1) criminal and/or civil penalties; and (2) potential disgorgement of any consideration received or any property acquired in the transaction.

"Remote Interests" in Contracts (Government Code 1091) Certain "remote" financial interests of Board members in contracts do not create a conflict of interest if the Board member follows required statutory procedures. Financial interests which are considered "remote interests" under these circumstances are specifically identified in Government Code 1091. (See Exhibit 1) There are 16 defined "remote interest" exceptions, as shown in Exhibit 1. Financial interests of employees cannot be considered "remote."

A Board member shall not be considered to be financially interested in a contract if he/she has only a "remote interest" in the contract as specified in Government Code Section 1091. A Board member who has a remote interest in any contract being considered by the Board shall disclose his or her interest during the Board meeting. The Board member's disclosure and disqualification shall be noted in the Board's official minutes. The affected Board member shall not influence, or participate in any way with any other Board member in negotiating or approving the contract. Participation in the making of a contract is defined broadly as any act involving preliminary discussions, negotiations, compromises, reasoning, planning, and drawing of plans and specifications, and solicitation for bids. Where a Board member has a publicly disclosed and duly noted remote interest in a contract, the Board may approve the contract by a vote of its membership excluding the vote of the interested Board member. (Government Code 1091).

Financial "Non-Interests" in Contracts (Government Code 1091.5) The Legislature has determined as a matter of policy certain financial interests of Board members and employees are exempt from the provisions of Government Code Section 1090. A non-interest exemption does not require abstention. There are 13 defined "non-interests" in Government Code 1091.5. (See Exhibit 2) A Board member or employee shall not be considered to be financially interested in a contract if his or her interest is any of the "non-interests" listed in Government Code Section 1091.5, as shown in Exhibit 2.

Board Member Vote Affecting "Relative"

Even if there is not a prohibited conflict of interest, a Board member shall abstain from voting on personnel matters that uniquely affect his or her relatives. However, a Board member may vote on collective bargaining agreements and personnel matters that affect a class of employees to which his or her relative belongs. Relative means an adult who is related to the Board member by blood or affinity within the third degree, as determined by the common law, or an individual in an adoptive relationship within the third degree. (Education Code 35107)

Incompatible Offices and Activities

A Board member shall not simultaneously hold two public offices that are incompatible. If a Board member is sworn into an incompatible office, then his or her position in the prior office is automatically terminated.

Pursuant to Education Code Section 35107, an employee of the district may not be sworn into office as an elected or appointed member of the Board unless he/she resigns as an employee. If the employee does not resign, the employment automatically terminates when he/she is sworn into office.

Board members shall not engage in any employment or activity or hold any office which is inconsistent with, incompatible with, in conflict with, or inimical to the Board member's duties as an officer of the district.

No officer or employee of the district shall engage in any employment (including self-employment), activity, or enterprise for compensation that is inconsistent, incompatible, in conflict with, or inimical to his or her duties as an officer or employee of the district. No officer or employee shall perform any work, service, or counsel for compensation outside of the district where any part of his or her efforts will be subject to approval by any other officer, employee, board, or commission of this district, unless otherwise approved in the manner prescribed by this policy. (Government Code 1099, 1126)

Gifts

The Political Reform Act broadly defines "gift" to include any payment or other benefit received by a public official unless the official provided something of equal or greater value in return. (Government Code 82028(a))

Board members and other officials who manage public investments shall not accept from any single source in any calendar year any gifts in excess of the prevailing gift limitation specified by law.

Designated employees shall not accept from any single source in any calendar year any gifts in excess of the prevailing gift limitation specified in law if the employee would be required to report the receipt of income or gifts from that source on his or her statement of economic interests.

The limitation on gifts does not apply to wedding gifts and gifts exchanged between individuals on birthdays, holidays and other similar occasions, provided that the gifts exchanged are not substantially disproportionate in value. (Government Code 89503)

Gifts of travel and related lodging and subsistence shall be subject to the prevailing gift limitation except as described in Government Code Section 89506.

A gift of travel does not include travel provided by the district for Board members and designated employees. (Government Code 89506)

Honoraria

Board members and designated employees shall not accept any honorarium from any source that would be reportable on his or her statement of economic interests. (Government Code 89501, 89502)

(cf. 3430 - Investing)

Legal Reference:

EDUCATION CODE

1006 Qualifications for holding office

35107 School district employees

35230-35240 Corrupt practices, especially:

35233 Prohibitions applicable to members of governing boards

41000-41003 Moneys received by school districts

FAMILY CODE

297.5 Rights, protections, and benefits of registered domestic partners

GOVERNMENT CODE

1090-1099 Prohibitions applicable to specified officers

1125-1129 Incompatible activities

81000-91014 Political Reform Act of 1974, especially:

82011 Code reviewing body

87100-87103.6 General prohibitions

87200-87210 Disclosure

87300-87313 Conflict of interest code

87500 Statements of economic interests

89501-89503 Honoraria and gifts

91000-91014 Enforcement

PENAL CODE

85-88 Bribes

CODE OF REGULATIONS, TITLE 2

18110-18997 Regulations of the Fair Political Practices Commission, especially:

18702.5 Public identification of a conflict of interest for Section 87200 filers

COURT DECISIONS

Klistoff v. Superior Court, (2007) 157 Cal.App.4th 469

Thorpe v. Long Beach Community College District, (2000) 83 Cal.App.4th 655

Kunec v. Brea Redevelopment Agency, (1997) 55 Cal.App.4th 511

ATTORNEY GENERAL OPINIONS

92 Ops.Cal.Atty.Gen. 26 (2009)

92 Ops.Cal.Atty.Gen. 19 (2009)

89 Ops.Cal.Atty.Gen. 217 (2006)

86 Ops.Cal.Atty.Gen. 138(2003)

85 Ops.Cal.Atty.Gen. 60 (2002)

82 Ops.Cal.Atty.Gen. 83 (1999)

81 Ops.Cal.Atty.Gen. 327 (1998)

80 Ops.Cal.Atty.Gen. 320 (1997)

69 Ops.Cal.Atty.Gen. 255 (1986)

68 Ops.Cal.Atty.Gen. 171 (1985)

65 Ops.Cal.Atty.Gen. 606 (1982)

63 Ops.Cal.Atty.Gen. 868 (1980)

Management Resources:

CSBA PUBLICATIONS

Conflict of Interest: Overview of Key Issues for Governing Board Members, Fact Sheet, July 2010

FAIR POLITICAL PRACTICES COMMISSION PUBLICATIONS

Can I Vote? A Basic Overview of Public Officials' Obligations Under the Conflict-of-Interest Rules, 2005

INSTITUTE FOR LOCAL GOVERNMENT PUBLICATIONS

Understanding the Basics of Public Service Ethics: Personal Financial Gain Laws, 2009

Understanding the Basics of Public Service Ethics: Transparency Laws, 2009

WEB SITES

CSBA: http://www.csba.org

Fair Political Practices Commission: http://www.fppc.ca.gov

Institute of Local Government: http://www.ca-ilg.org

Bylaw VISTA UNIFIED SCHOOL DISTRICT

adopted: August 18, 2011 Vista, California