Chapter 4.32 — BURMA DIVESTMENT

Whereas, the citizens of the county of Alameda recognize the moral responsibility of communities to take positive steps to end human rights abuses and support legitimately elected governments; and

Whereas, the nation of Burma (also known as Myanmar, but hereinafter referred to as Burma) has institutionalized torture and rape as political instruments, and embarked upon campaigns of forcible relocation, forced labor and slavery, and persecution of ethnic minorities, and other human rights violations, thereby denying the majority of the population the right to participate in the political process, to benefit from the system of justice, or to exercise economic rights; and

Whereas, the State Law and Order Restoration Council (SLORC), acting as the government of Burma, has implemented a reign of terror preventing political participation by various methods, including:

A.

Ignoring the results of the 1990 elections in which pro-democracy candidates received over sixty (60) percent of the vote and over eighty (80) percent of the seats in the government;

B.

Forcing the imprisonment, death, or exile of many of these candidates, including the six-year house arrest of pro-democracy leader and 1991 Noble Peace Prize recipient Aung San Suu Kyi;

C.

Failing to convene a Constitutional Convention as promised in 1990;

D.

Imposing martial law barring freedom of the press and gatherings of more than five people declaring that "martial law means no law at all";

E.

Forcibly relocating hundreds of thousands of people, both those in neighborhoods with strong prodemocracy support and ethnic minorities including the Muslim Rohingyas and indigenous groups in areas rich with extractive resources, to locales in which malaria and other diseases are rampant and where food, water and sewers are scarce, if at all available;

F.

Barring all labor and trade union organizing and implementing forced labor for the purposes of road and tourist site construction, portaging of military goods and human mine-sweeping;

G.

Pressuring the governments of Thailand and Bangladesh to force refugees back to Burma in exchange for continuing sales of resources such as timber, fishing concessions and natural gas;

H.

Harming the men, women and children of Burma by pillaging villages and townships, and by attacking and burning refugee camps;

I.

Persecuting Buddhist monks for their support of pro-democratic organizing; and

Whereas, the military regime is currently attempting to enhance its standing in the international community and to increase the flow of foreign monies and investment through various means, including the development of massive natural gas fields offshore and the construction of a gas pipeline through areas traditionally held by ethnic minorities, forcing their displacement; and

Whereas, the rightfully elected leadership of Burma, the National Coalition Government of the Union of Burma (NCGUB), winners of the 1990 elections but forced to live in exile, have called upon the world community to impose economic and arms sanctions against SLORC as well as companies operating in Burma; and

Whereas, the NCGUB's call for sanctions is supported by Nobel Peace Prize Laureate Oscar Arias Sanchez, the Dalai Lama, Mairead Mcguire, Archbishop Desmond Tutu, Betty Williams, Adolpho Perez Esquivel and many others, and by the AFL-CIO; and

Whereas, the United Nations and elected representatives of the United States, including President Clinton and many in the House of Representatives and the Senate, have repeatedly shown support for the people of Burma by urging SLORC to release Aung San Suu Kyi and all political prisoners, to respect the results of the May 1990 elections and to commit to undergo genuine democratic reforms. Section 138 of the U.S. Customs and Trade Act of 1990 instructs the President to impose comprehensive trade sanctions against Burma's military regime; and

Whereas, the United States Supreme Court has upheld the power of a municipality to make legitimate economic decisions without being subject to the restraints of the interstate commerce clause when it participates in the market place as a corporation or a citizen as opposed to exerting its regulatory powers; and

Whereas, the county declares the right to measure the moral character of its business partners in determining with whom it seeks to have business relations; and

Whereas, the current legal, social and economic system being imposed on the people of Burma by the SLORC is morally repugnant to the citizens of the county, the board of supervisors of the county does hereby set forth a county policy restricting authorized deposits, investments and the use of county funds in banks, financial institutions, investment firms, or professional service firms which either loan money or which provide professional services to the public or private sector in Burma, restricting authorized

investments in any private company doing business in or with Burma, prohibiting the purchase of commodities actually produced in Burma, restricting contracts for professional services with firms which do business in or with Burma, and setting forth a policy authorizing the selective purchase of products manufactured by firms which do business in or with Burma in accordance with standards enumerated in this chapter.

(Ord. 97-37 § 1 (part))

As used in this chapter:

"Commodities" means and includes, but is not limited to, supplies, goods, commodities, vehicles, machinery, and equipment.

"County" or "county of Alameda" means the county of Alameda, or any entity or official agent acting under the direction of the board of supervisors of the county of Alameda.

"County administrator" means the county administrator of the county of Alameda, or any authorized representative of the county administrator.

"County funds" means all monies, grants, or other funds received and managed by or otherwise under the control of the board of supervisors.

"Entity" means any individual, firm, partnership, corporation, association, or any other organization, however formed. "Entity" includes any parent, subsidiary, affiliate, division, or franchisee of the entity.

"Government of Burma" (also known as "Myanmar") means any public or quasi-public entity operating within Burma, including, but not limited to, municipal, provincial, national, or other governmental bodies, including all departments and agencies of such bodies, public utilities, public facilities, or any national corporation in which the public sector of Burma has a financial interest or operational responsibilities.

"Loans" means and includes any financial transaction involving Burmese entities whether entered into as a singular institution or as a participant in a lending consortia. Such transactions would include purchasing securities, investing in assets, lending monies, making interest-bearing deposits, extending lines of credit, or any other such transaction that is anticipated to result in a return, directly or indirectly, of assets.

"Professional services" means investment counseling, underwriting, providing brokerage services, acting as a trustee or escrow agent, providing any consulting advice or assistance, or otherwise acting as an agent pursuant to a contractual agreement.

"Purchasing agent" means the purchasing agent of the county of Alameda, or any authorized representative of the purchasing agent.

"Treasurer-tax collector" or "county treasurer-tax collector" means the treasurer-tax collector of the county of Alameda, or any authorized representative of the treasurer-tax collector.

All terms used in this chapter shall be construed in a manner consistent with the intent of this chapter.

(Ord. 97-37 § 1 (part))

A.

General Prohibited Transaction.

1.

No county funds shall be deposited or remain deposited in any bank or financial institution which has any outstanding loan to:

a.

The government of Burma, or

b.

Any entity organized under the laws of Burma, or

c.

Any entity for the express purpose of doing business with, conducting operations in, or trading with any private or public entity located in Burma;

2.

No county funds shall be invested or remain invested in the stocks, bonds, securities, or other obligations of any bank or financial institution which has any outstanding loan to:

a.

The government of Burma, or

b.

Any entity organized under the laws of Burma, or

c.

Any entity for the express purpose of doing business with, conducting operations in, or trading with any private or public entity located in Burma;

3.

The prohibitions of this section shall not apply to any bank or financial institution which submits a statement in compliance with the requirements of subsection C of this section;

The prohibitions of this section shall not apply to county funds invested under a trust indenture or investment agreement or otherwise invested by the county under a preexisting contractual obligation, provided that such funds, if invested or deposited in noncompliance with this chapter, shall be withdrawn or divested at the earliest possible maturity date.

B.

The prohibitions of subsections (A)(1)(b) and (c) and (A)(2)(b) and (c) of this section shall not apply if the treasurer-tax collector finds that:

1.

No bank or financial institution is available which is capable of performing the desired function; or

2.

The county will incur a significant financial loss as a consequence of said prohibitions.

In such event, the treasurer-tax collector shall endeavor to select that bank or financial institution which best meets the following two criteria:

1.

Maintains policies that conform to the greatest extent with the intent of this divestment chapter; and

2.

Which is most capable of providing a level of service and/or investment return equal to that which the county could have received if the prohibitions of this section had not been enacted.

The treasurer-tax collector shall periodically report to the board of supervisors each and every exercise of waiver implemented pursuant to this subsection. The treasurer-tax collector shall develop rules and regulations which specifically address both the criteria and reporting procedures. Such rules and regulations shall be approved by the board of supervisors.

C.

Statement Required.

1.

Before any county funds can be deposited or invested in any bank or financial institution, the treasurer-tax collector shall obtain from each bank or financial institution a statement certifying that it does not have any outstanding loan of the type listed in subsection A of this section, or, in the alternative, the treasurer-tax collector shall obtain from each bank or financial institution a statement stating that the policy of the bank or financial institution is to not make any such future loans until democratic rights are restored in Burma, as evidenced when the National League for Democracy in Burma specifically requests the lifting of sanctions and calls for non-Burmese companies to begin investing in Burma to support the reinstitution of democratic rights. The statement shall require the bank or financial institution to notify the treasurer-tax

collector if it subsequently enters into any loan described in this subsection, or if the policy prohibiting such loans is changed.

2.

The requirements of this section shall be satisfied by ensuring that no county funds are invested or deposited by banks or financial institutions which fail to submit the statements required by this section.

D.

Compliance.

1.

The withdrawal or divestiture required by this section shall be completed within one hundred twenty (120) days after the effective date of the ordinance codified in this chapter or upon the maturity of any outstanding investments.

2.

When the treasurer-tax collector determines that county funds must be withdrawn or divested from banks or financial institutions for noncompliance with the provisions of this chapter, the treasurer-tax collector shall advise the bank or financial institution that the withdrawal or divestiture of county funds is required by this chapter.

3.

If the treasurer-tax collector determines that county funds have been deposited of invested in a bank or financial institution which subsequently comes into noncompliance with this chapter, the treasurer-tax collector shall require the withdrawal or divestment of those funds within one hundred twenty (120) days after the date of determination of noncompliance or upon the maturity of any outstanding investments.

(Ord. 97-37 § 1 (part))

A.

General Prohibited Transaction. No county funds shall be invested in or remain invested in the stocks, bonds, securities or other obligations of:

1.

The government of Burma; or

2.

Any entity organized under the laws of Burma; or

Any entity which does business with any private or public entity located in Burma, or conducts operations in Burma.

B.

Implementation by Published List.

1.

Within ninety (90) days after the effective date of the ordinance codified in this chapter, the purchasing agent shall file in the office of the clerk of the board of supervisors and distribute to the board members and the county administrator, a listing of entities which are described in subsection A of this section. The purchasing agent shall make use of information provided by the Investor Responsibility Research Center or other reliable sources in the compilation. of the listing. The purchasing agent shall update and amend the listing semiannually, or more frequently as deemed necessary by the county administrator.

2.

The requirements of this section shall be satisfied by ensuring that no county funds are invested in any stocks, bonds, securities, or other obligations of any entities which appear on the list prepared pursuant to the preceding subsection, or in any stocks, securities, or other obligations of the government of Burma.

C.

Compliance. With respect to county funds currently invested in proscribed investments pursuant to this section, the withdrawal or divestiture required by this section shall be completed within one year after the effective date of the ordinance codified in this chapter. During this one-year period, the treasurer-tax collector shall make reports to the board of supervisors, as prescribed in Section 4.32.120, concerning the progress of divestiture, until all county funds have been withdrawn or divested from proscribed investments. When the treasurer-tax collector determines that county funds must be divested pursuant to this section, the treasurer-tax collector shall advise said companies that the withdrawal or divestiture of county funds is required by this chapter. All other provisions of this section shall take effect on the effective date of the ordinance codified in this chapter.

(Ord. 97-37 § 1 (part))

A.

General Prohibited Transaction. The county of Alameda shall be prohibited from entering into any contractual agreement for the purchase of any commodities that are manufactured or produced in Burma.

B.

Pursuant to the findings set forth in Section 4.32.010, it shall be county policy to minimize the expenditure of county funds on goods and services produced by any entity which buys, sells, leases or distributes commodities and/or professional services to:

The government of Burma; or

2.

Any entity organized under the laws of Burma; or

3.

Any entity which does business with any private or public entity located in Burma, or conducts operations in Burma.

C.

For the purposes of this section, "person," "sealed bid" and "list" are deemed as follows:

1.

"Person" includes the seller, vendor, distributor, manufacturer and provider of products or services to the county.

2.

"Sealed bid" means any bid governed by Administrative Code Section 4.12.020 which has been submitted in a sealed envelope to prevent the contents from being revealed or known before the deadline for submission of all bids.

3.

"List" includes any person whose name appears on the list promulgated by the purchasing agent pursuant to Section 4.32.040(B)(1) of this chapter.

D.

Contracts and Purchases Requiring Sealed Bids. Except as provided in subsections E and F of this section, for all contracts and purchases for which sealed bids are submitted, persons not on the list shall receive a five percent preference, unless:

1.

The use of preferences is specifically prohibited by the governments of the United States and/or the state of California, or any party from whom funding for the contract or purchase is received; or

2.

The use of preferences would result in an additional cost of ten thousand dollars ($10,000.00) or more to the county.

E.

Professional Services Contracts. The county shall make every reasonable effort to enter into professional service contracts with persons not designated on the list.

1.

All professional service contracts entered into pursuant to County Administrative Code Section 4.12.050, shall be made with persons not on the list, unless the purchasing agent or board of supervisors finds, for contracts they are each authorized to enter into, that no reasonable alternative product or service exists, or that additional costs would exceed ten thousand dollars ($10,000.00) or five percent of the cost of the service provided by the person, whichever is less.

2.

For all professional services contracts under ten thousand dollars ($10,000.00), all efforts will be undertaken to avoid contracting with persons on the list.

F.

All public works and construction bid advertisements and contracts shall state the county policy set forth in subdivision B of this section and urge contractors to comply with the policy in making purchases and subcontracts.

G.

For contracts and purchases other than those governed by subsections D, E, F, and G of this section, the county administrator shall promulgate guidelines pursuant to Section 4.32.070 to ensure that county agencies and departments comply, to the extent reasonable and practicable, with the intent of this chapter.

H.

Compliance. This section shall take effect one hundred and twenty (120) days after the effective date of the ordinance codified in this chapter.

(Ord. 97-37 § 1 (part))

If any section, subsection, clause, phrase or portion of this chapter is for any reason held invalid or unconstitutional by any court or federal or state agency of competent jurisdiction, such portion shall be deemed as separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof.

(Ord. 97-37 § 1 (part))

The county administrator shall be authorized to promulgate any rules and regulations necessary or appropriate to carry out the purposes and requirements of this chapter, effective upon final approval of the board of supervisors.

(Ord. 97-37 § 1 (part))

Except as otherwise contained herein, the ordinance codified in this chapter shall take effect upon the final passage by the board of supervisors of the county of Alameda.

(Ord. 97-37 § 1 (part))

The county administrator shall make available for public inspection all statements, lists, and reports filed pursuant to the requirements of this chapter.

(Ord. 97-37 § 1 (part))

The county shall refrain from conducting business with entities found to have knowingly supplied false information used in fulfillment of the requirements of this chapter.

(Ord. 97-37 § 1 (part))

This chapter shall remain in effect from the established effective date until democratic rights are restored in Burma, as evidenced when the National League for Democracy in Burma specifically requests the lifting of sanctions and calls for non-Burmese companies to begin investing in Burma to support the reinstitution of democratic rights.

(Ord. 97-37 § 1 (part))

The county administrator and treasurer-tax collector shall provide a written report on the implementation of this chapter to the board of supervisors on the following basis.

A.

The first report shall be due at the first board of supervisors meeting after the ordinance codified in this chapter has been in effect for one hundred eighty (180) days.

B.

Thereafter, reports shall be due annually.

(Ord. 97-37 § 1 (part))

The county shall make all reasonable attempts to insure that the information required to be provided by this chapter is accurate. However, the county shall not be responsible for the accuracy of information provided by entities and individuals pursuant to this chapter, or for the accuracy of information obtained from the public record or released by public agencies.

(Ord. 97-37 § 1 (part))