Caution on Conflict-of-Interest Laws Hobbles City Council

Call this “The Year of Living Cautiously” for Mayor Maureen O’Connor and two of her colleagues, Abbe Wolfsheimer and Bruce Henderson, perhaps the three wealthiest members of the San Diego City Council.

It started June 5, when City Atty. John Witt cited the three for inadvertently violating state conflict-of-interest regulations by voting on a telephone contract involving companies in which they have financial interests.

Smitten, the three have responded by refusing to vote on a growing number of matters before the council until Witt’s office offers a clear interpretation of the labyrinthine state regulations.

While the trend has risen to somewhat absurd heights--O’Connor and Wolfsheimer refused to vote on a contract for a City Hall security firm because they could not determine if the company had corporate parents--the underlying problem is anything but comical to their council colleagues. Other council members believe that their constituents are being denied representation when the three are forced to abstain on serious matters.

Well Intentioned but ‘Absurd’

“The purpose of the law is well-intentioned,” Henderson said at Tuesday’s council meeting, when he abstained on two important issues because he remains unclear on the conflict-of-interest standards. “The result, as we see it applied here on the local level, is simply absurd.”

“It’s no wonder people don’t run for public office,” said Joann Johnson, a Wolfsheimer aide. “If anybody owns property in certain parts of the city, they can’t function as an elected official. It’s getting to be a problem.”

At issue are state Fair Political Practices Commission regulations, tightened last year, which ask elected officials to judge whether their votes will have “foreseeable” effects on their investments, whether those effects will be “material” and whether the effects will be “direct” or “indirect.” Definitions of those terms are lengthy.

Under the new regulations, council members voting on development projects now must determine whether property they own is within 300 feet of the project. If so, they generally must disqualify themselves, on the theory that the value of their holdings will increase because of the new project, said FPPC spokeswoman Sandra Michioku.

If, however, their property is 300 to 2,500 feet away, the council member must decide if the value of his or her holdings will increase by $10,000 or more before deciding on disqualification, Michioku said.

The problem is that only an appraiser knows for sure. On Tuesday, Wolfsheimer, who owns a condominium 450 feet from the Huntington high-rise proposed for the corner of Broadway and State Street, wasn’t sure what to do when the matter came before council. She announced that she would not vote. Henderson, who has a “small interest” in the Horton Grand Hotel on Island Avenue, also was confused. He abstained.

With three other council members absent, only four were left to discuss the issue, which was dropped for lack of a quorum.

Matters were not helped Tuesday when Witt’s office, responding to written pleas for guidance from both O’Connor and Henderson, issued two legal opinions that said, in essence: “We don’t know. You decide for yourself.”

O’Connor called the ruling a “flip answer.” Henderson, unsure if he could vote on an ordinance protecting single-family neighborhoods in which he owns a home, was enraged.

“I can’t vote on single-family protections in all of Pacific Beach or Mission Beach?” he asked incredulously. “That’s what I’m elected to do!

Can’t Pass the Buck

“Mr. Johnson,” he told Assistant City Atty. Ron Johnson, “you can’t pass the monkey to my back. I was not elected city attorney and I’m not paid as city attorney. I have the right under the charter to turn to you folks for advice. If you have to hire a legal expert, you do it, because you need to maximize my opportunity to vote.”

Johnson held his ground, saying he could not make the call without the help of an appraiser. Deputy City Atty. Cristie McGuire, who wrote the opinion, said she received the requests only Monday and had too little information to render a judgment.

Michioku said some public officials are hiring appraisers to answer these questions, and the council authorized Johnson to do just that before the council meets again Sept. 11. It also ordered preparation of a new legal opinion, with the assistance of the FPPC, if necessary.

But Wolfsheimer aide Johnson, frustrated with the advice of long-time antagonist Witt, said she will seek guidance from state Atty. Gen. John Van de Kamp’s office for her boss, who is in the sensitive position of facing reelection next month.

“If you can’t get a legal opinion on this, I’m certainly not willing to let my boss be a test case in court as to whether she can or cannot vote on this,” Johnson said.

On Tuesday, the council found another way around the single-family protection ordinance. Addressing the matter neighborhood by neighborhood, some council members chose to abstain when their neighborhoods came up.

When La Jolla’s turn came, O’Connor, Wolfsheimer and Henderson, who all own property there, excused themselves, leaving a bare minimum of five council members able to vote. (Councilman Wes Pratt was absent). Luckily, all concurred that La Jolla’s single-family homes needed protection from redevelopment as multifamily units.

“It passes,” said Deputy Mayor Judy McCarty, “with districts 2, 3, 5, 7 and 8 unfortunately not owning property in La Jolla.”