Chapter 12.22

APPEARANCE OF IMPARTIALITY

Parts:

• 1 Purpose and Application

• 2 Definitions

• 3 Requirement

• 4 Consequence of Violation

Part 1

PURPOSE AND APPLICATION

Sections:

An "active participant" or "active participation" means service as an official of the organization or in a capacity similar to that of a committee or subcommittee chairperson or spokesperson; directing the activities of the organization; or devoting significant time to promoting specific programs of the organization including coordination of fundraising efforts. Payment of dues or the donation or solicitation of financial support alone does not constitute active participation. (Ord. 29461.)

It is the purpose and intent of the City of San José in enacting this chapter to protect the public confidence and trust in the electoral and government processes by requiring abstention in certain situations where the participation by an elected official may create an appearance of partiality. (Ord. 29461.)

This chapter defines certain circumstances as legal conflicts of interest for the purposes of councilmember disqualification from voting pursuant to Charter Section 600. (Ord. 29461.)

Part 2

DEFINITIONS

Sections:

A "Campaign consultant" means any person that receives or is promised economic consideration for campaign consulting services. The term "campaign consultant" includes any person that subcontracts with a campaign consultant to provide campaign consulting services, and that receives or is promised economic consideration for providing campaign consulting services. The term "campaign consultant" does not include attorneys who provide only legal services, accountants who provide only accounting services, pollsters who provide only polling services, and treasurers who provide only those services which are required of treasurers by the Political Reform Act, California Government Code Sections 81000 et seq., as may be amended. (Ord. 29461.)

A "covered relationship" means:

• A. A person with whom the elected official has or seeks a business, contractual or other financial relationship that involves other than a routine consumer transaction;

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ETHICS AND OPEN GOVERNMENT PROVISIONS

§ 12.22.260

• B. An immediate family member of the elected official;

• C. A present or prospective employer of a spouse, parent or dependent child; a person for whom the elected official's spouse, parent or dependent child is, to the elected official's knowledge, serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee;

• D. Any person for whom the elected official has within the twelve months served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee;

• E. A former or current campaign consultant of the elected official. A "former campaign consultant" means one who provided campaign consulting services to the elected official in the twelve months preceding the election to office; and

• F. An organization in which the elected official serves or has served within the last twelve months as an active participant.

• (Ord. 29461.)

• A. A particular matter will have a "direct effect" on a financial interest if there is a close causal link between a City Council action in the matter and any expected effect of the matter on the financial interest. An effect may be direct even if it does not occur immediately. A particular matter will not have a direct effect on a financial interest if the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative or that are independent of and unrelated to, the matter. A particular matter that has an effect on a financial interest only as a consequence of its effect on the general economy does not have a direct effect within the meaning of this section.

• B. A particular matter will have a "predictable effect" if there is a real, as opposed to a spec-

ulative possibility that the matter will affect the financial interest. The magnitude of the gain or loss is immaterial.

(Ord. 29461.)

"Elected official" means any of the members of the city council, including the mayor. (Ord. 29461.)

"Immediate family member" has the same meaning as Section 12.20.220 of Chapter 12.20, the nepotism and consensual personal relationships ordinance.

(Ord. 29461.)

"Member of household" means any individual who resides in the same dwelling unit as the elected official including, but not limited to, a roommate who shares the rent or mortgage payment. A guest who is visiting briefly or up to a month is not a member of household.

(Ord. 29461.)

"Particular matter involving a specific party" means any quasi-judicial proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, or other particular matter involving a specific party or parties. A policy or regulation applicable to a discrete and identifiable class of persons is not a particular matter involving a specific party. A person who is merely a member of an organization or association that is involved in a specific matter is not a party. (Ord. 29461.)

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SAN JOSÉ CODE

§ 12.22.270

"Person" means any individual, business entity, trust, corporation, association, committee, or any other organization or group of persons acting in concert.

(Ord. 29461.)

Part 3

REQUIREMENT

Sections:

basis for the abstention including the relevant facts in sufficient detail for the public to understand.

• B. After making this statement, the elected official must not be present for the discussion and leave the meeting room until after the discussion.

• C. Notwithstanding Subsection B. above, if the elected officer is the subject of a particular matter involving a specific party, the elected official, at his or her option, may remain in the room and provide testimony in his or her personal capacity.

• (Ord. 29461.)

Part 4

The following situations constitute a conflict of interest from which a councilmember must abstain:

• A. A particular matter involving a specific party, if the councilmember knows that a decision on the matter is likely to have a direct and predictable effect on a financial interest of a member of his or her household;

• B. A particular matter involving a specific party, if the councilmember knows that a person with whom he or she has a covered relationship is either:

CONSEQUENCE OF VIOLATION

Sections:

The failure of any councilmember to abstain from voting on a particular matter involving a specific party shall have no impact on the validity of any action taken by the city council. (Ord. 29461.)

  1. A party to such matter; or 

2. Represents a party to such matter.

C. A particular matter involving a specific party in which councilmember:

  1. Is the subject of such matter; or 

  2. Represents a party to such matter; or 

  3. Supervises a party to such matter. 

• (Ord. 29461.)

• A. The elected official abstaining from voting on a particular matter involving a specific party must identify on the public record of the meeting in which the matter is being considered the

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