Chapter 3.64 — INTERPRETING CITY CHARTER SECTION 36 CONCERNING MEMBERSHIP

ON BOARDS AND COMMISSIONS

Sections: 3.64.010 Findings. 3.64.020 Definitions. 3.64.030 Contract, work or business of City--Prohibitions. 3.64.040 Chapter declaratory of existing law.

A. For many years the Berkeley City Council has relied on an extensive system of advisory boards and commissions in the formulation of public policy, and approximately thirty commissions, with more than two hundred fifty members meet on a regular basis to reflect and express a broad spectrum of citizen opinion on civic issues.

B. The City benefits from this network of democratic participation because it provides a structured setting within which the viewpoints and experience of citizens can supplement the technical expertise of City staff professionals. In addition this system allows the City to benefit from the wide variety of experience and specialized knowledge of selected citizens--in Berkeley, often at the cutting edge of their fields--that are sources of innovation and sensitive response to public needs.

C. The citizens on Berkeley’s boards and commissions serve out of the desire to discharge civic responsibility. They are not (with the exception of the Police Review Commission and the Rent Stabilization Board) paid for their services and, in most cases, are not reimbursed for expenses they incur.

D. A commissioners’ responsibilities are substantial, and entail a significant expenditure of time. Often, they are called upon to make difficult judgments and arrive at unpopular conclusions.

E. For this system of democratic participation to continue to function effectively, it is essential that citizens who volunteer their services to the City not incur unwarranted personal risk as they participate on boards and commissions.

F. Charter Section 36 prohibits an officer from being directly or indirectly interested in any contract, work, or business of the City. Although this section exempts members of advisory boards, commissions, or committees who serve without salary or other compensation, members of boards, commissions, or committees which perform functions other than advisory functions are subject to this prohibition.

G. Conflict of interest legal issues, especially those raised under the City Charter Section 36, are extremely complex, turn on subtle nuances of fact, and the legal terms used often have meanings different from their common sense construction.

H. The ambiguities in Section 36 deter many qualified citizens from serving as commissioners for fear that they may inadvertently violate the Charter.

I. There is therefore a need to clarify the provisions of the City Charter and to balance the City’s interests in preventing the use of public office for private gain against the City’s need for diverse community representation on its boards and commissions.

J. City Charter Section 36 (b) authorizes the council to enact appropriate legislation to implement the provisions of City Charter Section 36 and Charter Section 118 authorizes the council to enact legislation which may be necessary and proper to carry out any of the provisions of the Charter.

K. Enactment of legislation clarifying and implementing Section 36 is necessary and proper for the reasons set forth above. (Ord. 5694-NS § 1, 1985)

For purposes of determining whether a member of a board and commission has a prohibited interest in a contract, work or business of the City within the meaning of Charter Section 36 and this chapter, the following definitions shall apply:

A. "Advisory board" or "commission." All boards and commissions of the City shall be deemed advisory except in instances when the board or commission is performing other than an advisory function as defined in subsection B below.

B. "Performance of other than advisory functions." A board or commission will be deemed to perform other than an advisory function and to be subject to this chapter and Section 36 only with respect to any contract, work or business of the City, the making or securing of which is influenced either directly or indirectly by the board or commission. A board or commission directly or indirectly influences the making or securing of a contract, work or business of the City whenever it engages in actions, including but not limited to, formally or informally reviewing a contract, reviewing a bid specification or request for proposal, discussing funding of an activity, discussing priorities for funding, or making general policy, implementation of which results in the making or securing of a contract, work or business for the City.

C. "Interested; Exclusions." A City employee or member of a board or commission shall not be deemed to be "interested" in a contract, work or business of the City if their relationship with the contracting party or entity constitutes a "remote interest" within the meaning of Government Code Sections 1091 and 1091.5, the fact of such interest is disclosed to the department, board or commission of which they are a member and noted in its official records, and the employee or member with such interest disqualifies themselves from participating in any manner, either directly or indirectly, in making or influencing any decision related to the contract, work or business of the City in which they have a remote interest. (Ord. 5694-NS § 2, 1985)

No member of a board or commission shall be directly or indirectly interested in any contract, work or business of the City as defined in Section 3.64.020C herein if the board or commission of which they are a member has performed other than advisory functions as defined in Section 3.64.020B herein, with respect to such contract, work, or business of the City. (Ord. 5694-NS § 3, 1985)

This chapter is declaratory of and does not constitute any change in existing law. (Ord. 5694-NS § 4, 1985)