UPDATE: MONTEREY COUNTY WEEKLY, March 25, 2010, Squid Speaks
Squid Fry By Squid CARMEL CONFLICTS
ABSTRACT: At the 5 January 2010 City Council meeting, the City Council unanimously approved a Resolution entering into an agreement with DD Evans Consulting/Dadiw Associates to provide financial management services at an annual cost of $84,000. DD Evans Consulting/Dadiw Associates are Dewey D. Evans, Principal DD Evans Consulting and Laura Dadiw, Principle Dadiw Associates; Dewey Evans is also City Treasurer, a City officer. The contract runs from January 5, 2010 through June 30, 2013. In his Agenda Item Summary, prepared by City Administrator Rich Guillen, there is no mention of a conflict of interest or California Government Code Section 1090. California Government Code section 1090, which is incorporated into Carmel-by-the-Sea’s Municipal Code, prohibits public officials, employees and consultants from being financially interested in contracts made by them. Moreover, contracts that violate section 1090 are void and a violation may subject the public official to severe sanctions. A SUMMARY of Contractual Conflict of Interest Government Code Section 1090 and the relevant sections of the Carmel-by-the-Sea Municipal Code are presented. A COMMENT is made regarding the City Administrator and City Attorney. Apparently, the City will consider the aforementioned matter at the Special City Council Meeting on the budget on Tuesday, March 23, 2010, according to City Attorney Don Freeman, as reported by MONTEREY COUNTY WEEKLY.
SUMMARY:
Contractual Conflict of Interest
Government Code Section 1090.
Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity.
Government Code Section 1090
In Addition to PRA Restrictions
Officials cannot have a financial interest in any contract made by them in their official capacity, or by any board of which they are a member
Making a contract includes preliminary discussions, negotiations, planning and solicitation of bids
Application of Prohibition to Officers. Any member of the governing board is conclusively presumed to have made any contract even if disqualification occurred
Financial Interest. Can be direct or indirect
Government Code Section 1090
Consequences of Violation
– Contract is void
– Public agency keeps benefits it has received
– Violator must give back any benefits received, plus interest on any money
– If willful violation, $1,000 fine or state imprisonment can result
– Permanent disqualification from holding public office in state
(Source: The Perils of Public Purchasing, Mary J. Bradley, Director of Finance, City of Sunnyvale, 2008)
CARMEL-BY-THE-SEA MUNICIPAL CODE:
3.12.210 Illegal Contracts – Interest by City Officer, Employee.
A. No officer or employee of the City shall be, or become directly interested in, any contract work or business, or in the sale of any article, the expense, price or consideration of which is payable from the City treasury, nor shall such officer or employee receive any gratuity or advantage from any contract or person furnishing labor or material for same.
B. Any contract with the City that any officer or employee has or develops an interest in may be declared void by the City Council.
C. Members of City volunteer and support organizations who are not also full- or part-time employees of the City shall be exempt from the provisions of this section.
D. The provisions of this section shall not be construed to excuse noncompliance with State laws regulating conflicts of interest. (Ord. 2003-02 § 1, 2003).
3.12.230 Officer Defined.
The term “officer” as used herein shall include the Mayor, Council Members, City Administrator, Assistant City Administrator, City Treasurer, City Attorney, Department Directors, members of Boards, Commissions and Committees, and assistants (if any) to said positions. (Ord. 2003-02 § 1, 2003).
COMMENT:
• In “Ethics Training for City Employees” from another California city, it states, “Section 1090 is fairly complicated, so it’s a good idea to contact us or your deputy City Attorney when you’re faced with conflicts issues related to contracts.” In City Administrator Rich Guillen’s Agenda Item Summary, there is no mention of whether or not the item was reviewed and approved by City Attorney Don Freeman. Questions: If the item and contract were not reviewed and approved by City Attorney Don Freeman, why not? Conversely, if the item and contract were reviewed and approved by City Attorney Don Freeman, was he unconcerned about California Government Code section 1090?
NOTE:
Special Budget City Council Meeting March 23, 2010 @ 4:30pm
The meeting will be the City Council Budget Workshop. City Council will set their 3-Year Work Program (goals) and priorities at this workshop.
The meeting will be held in the Council Chambers at City Hall, located on the east side of Monte Verde Street between Ocean and Seventh Avenues at 4:30 P.M.
OTHER SOURCES:
Double Dipping: Carmel financial contracting is an inside job, despite state regulations to the contrary, Robin Urevich, MONTEREY COUNTY WEEKLY, March 18, 2010
Office of the Attorney General
State of California, Department of Justice
Ethics Orientation for State Officials
Contractual Conflicts of Interest: All Contracts
CITY COUNCIL
AGENDA PACKET
Regular Meeting
Tuesday, January 5, 2010
3 comments:
Along with Sue's rubberstamp councils and the city administrator, Don Freeman is one of her chief, go-to enablers. Instead of making sure the council abides of the laws, he shields them and makes excuses for them when he knows they are violating the law. He believes the city has the right to do whatever it wants and his attitude is let's try it, we will probably get away with it. And usually the city does get away with it because the one lone violated applicant or person does not have the financial and emotional wherewithall to pursue court action against the city.
I wonder how much taxpayer monies are spent undoing what should have been done correctly in the first place. Why do we still have to put up with that incompetent city administrator? I have never seen a more incompetent city administrator in my life.
Part of Carmel's closed government is the City Attorney Don Freeman. He makes it difficult to reach him expeditiously. He does not have an email address. His phone is answered by a legal secretary as the gatekeeper. And when you finally talk to him, you get the feeling he is covering for the city. In my opinion, he has been the city's attorney for too long also.
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