SR 01-26-2021 8A
City Council Report
City Council Meeting: January 26, 2021
Agenda Item: 8.A
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To: Mayor and City Council
From: George Cardona, Interim City Attorney, City Attorney’s Office
Subject: Pico Neighborhood Association and Maria Loya v. City of Santa Monica –
Determination Regarding Common Law Conflict of Interest of Councilmember
de la Torre
Recommended Action
With respect to the pending litigation in Pico Neighborhood Association and Maria
Loya v. City of Santa Monica, Los Angeles Superior Court, Case No. BC 616804,
Second District Court of Appeal, Case No. B295935, California Supreme Court,
Case No. S263972, in which one plaintiff is an association for which
Councilmember de la Torre was, until November 2020, a board member, and the
other plaintiff is Councilmember de la Torre’s wife, staff recommends that Council
determine that, in accordance with the principles set out in AG Opinion 07-807
(Jan. 14, 2009), Councilmember de la Torre has a common law conflict of interest
and is therefore disqualified from participating in or attempting to influence
discussions or decisions relating to this litigation.
Discussion
A. The Litigation
In the election conducted on November 3, 2020, Oscar de la Torre was elected to serve
as a member of the Santa Monica City Council. He took his oath and assumed his
duties as a Councilmember on December 8, 2020. Prior to being elected to the City
Council, Mr. de la Torre served as an elected member of the governing board of the
Santa Monica-Malibu Unified School District (“SMMUSD”) for approximately 18 years.
The City of Santa Monica (“City”) is currently the defendant in pending litigation alleging
that the City’s use of an at-large election system to elect its City Council members
violates the California Voting Rights Act.
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The original complaint in the litigation was filed on April 12, 2016 by three plaintiffs: the
Pico Neighborhood Association (“PNA”), Maria Loya (Councilmember de la Torre’s
wife), and Advocates for Malibu Public Schools. The original complaint alleged that “the
provision in the Santa Monica City Charter requiring at-large elections for the city
council and the SMMUSD governing board, not only runs afoul of the CVRA [California
Voting Rights Act], it also runs afoul of the Equal Protection Clause (Article I, Section 7)
of the California Constitution, among other controlling laws.” The original complaint did
not seek damages, but did seek an award of plaintiffs’ attorneys’ fees, costs, and
litigation expenses.
A First Amended Complaint (“FAC”) was filed on February 23, 2017. The FAC was filed
by two plaintiffs, PNA and Ms. Loya (collectively “Plaintiffs”). The FAC dropped the
allegations regarding at-large elections for the SMMUSD governing board, and alleged
only that “the provision in the Santa Monica City Charter requiring at-large elections for
the city council, not only runs afoul of the CVRA, it also runs afoul of the Equal
Protection Clause (Article I, Section 7) of the California Constitution, among other
controlling laws.” The FAC did not seek damages, but did seek an award of Plaintiffs’
attorneys’ fees, costs, and litigation expenses. The litigation proceeded to trial,
judgment, and appeal based on the allegations in the FAC.
During the litigation, Ms. Loya was deposed on May 15, 2018. She testified that she
became involved with the PNA and became a board member in either 2002 or 2003,
that she left PNA in 2010 for family and work reasons, and that she came back in 2013
and was elected again to be a board member. She testified that at the time of her
deposition she was serving as PNA’s treasurer. Ms. Loya was called by Plaintiffs as a
witness at trial and testified on August 2, 2018. She testified that Mr. de la Torre was
the representative for the PNA in this case. As of January 22, 2020, PNA’s website lists
Ms. Loya as a board member who serves as PNA’s communications officer.
(Attachment A)
During the litigation, Mr. de la Torre was deposed on May 9, 2018 in his individual
capacity. Mr. de la Torre was deposed on May 10, 2018, as the person identified by
PNA as most qualified to testify on behalf of PNA on specified topics,. At both
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depositions, Mr. de la Torre was represented by Kevin Shenkman, one of the attorneys
for Plaintiffs in the litigation. At the time of the depositions, Mr. de la Torre was the co-
chair of PNA. He testified that he had been elected to that position in an election held
the prior year and that he had previously held the position of chair of the PNA three to
four years ago. Mr. de la Torre was also called by Plaintiffs as a witness at trial and
testified on August 22 and 23, 2018. Mr. de la Torre testified that his mother and father
were involved in the founding of PNA in 1979, and “we have a long history of family
involvement in the [PNA].” He also testified that he remained the co-chair of PNA, that
his wife, Ms. Loya, was a member of the PNA board, and that his niece, Griselda
Garces de la Torre, was the agent for service of process of the PNA. During his recent
City Council campaign and as of November 2020, Mr. de la Torre served as chair of the
PNA board. Councilmember de la Torre has advised that following his election to the
City Council, he resigned from his position as chair of the PNA board at a PNA board
meeting conducted on or about November 19, 2020. As of January 22, 2020, PNA’s
website identifies Councilmember de la Torre as “Santa Monica City Councilor since
December 2020: previously a board member.”
Trial on the allegations in the FAC began August 1, 2018, and the presentation of
evidence concluded on September 11, 2018. After extensive post-trial briefing, on
February 13, 2019, the trial court issued judgment in favor of Plaintiffs on both of their
causes of action.
Following issuance of the trial court’s judgment, Plaintiffs’ attorneys filed motions
seeking approximately $23 million in attorneys’ fees and costs. Pursuant to an
agreement between the parties, the City’s response to the fee motion, and the hearings
regarding costs and fees have been continued to follow the resolution of proceedings in
the Court of Appeal and the California Supreme Court.
The City filed a notice of appeal from the judgment on February 22, 2019. After briefing,
the Court of Appeal held oral argument on June 30, 2020.
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On July 9, 2020, the Court of Appeal issued an opinion holding that the City did not
violate either the CVRA or the Equal Protection Clause of the California Constitution.
The Court of Appeal reversed the trial court’s judgment, ordered the Plaintiffs to pay
costs to the City, and directed the trial court to enter judgment for the City. Plaintiffs
filed for rehearing, which the Court of Appeal denied on August 5, 2020.
On August 18, 2020, Plaintiffs filed a petition seeking review by the California Supreme
Court. On October 21, 2020, the California Supreme Court granted review only on a
limited question relating to Plaintiffs’ claim under the CVRA: “What must a plaintiff prove
in order to establish vote dilution under the California Voting Rights Act?” The California
Supreme Court left intact the Court of Appeal’s ruling in the City’s favor on the Equal
Protection claim.
Briefing in the California Supreme Court is ongoing. Plaintiffs’ filed their opening brief
on December 21, 2020. The City’s answering brief is due March 22, 2021. No date has
yet been set for oral argument before the California Supreme Court.
Were the California Supreme Court to affirm the holding of the Court of Appeal, the
litigation would conclude; the City would not be required to make any change to the
Charter-established at-large election system, and the City would not be required to pay
any fees to the Plaintiffs’ attorneys. Were the California Supreme Court to reverse the
holding of the Court of Appeal, the City would anticipate a remand to the Court of
Appeal for further review and to resolve the remaining issues relevant to Plaintiffs’
CVRA claim that the Court of Appeal found unnecessary to reach because of the basis
for its ruling. Were Pplaintiffs ultimately to prevail in the litigation, the City would
anticipate returning to the trial court for resolution of the pending motions in which the
Plaintiffs seek payment by the City of the Plaintiffs’ attorneys’ fees and costs.
B. The Common Law Conflict of Interest
The City has sought formal advice from the California Fair Political Practices
Commission (“FPPC”) as to whether Councilmember de la Torre has a financial conflict
of interest under Government Code Section 1090 (which would preclude the City from
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entering into any contract relating to the litigation) or the Political Reform Act (which
would require that Councilmember de la Torre recuse from participating in any decisions
relating to the litigation). The City has not yet received advice on these issues from the
FPPC. Should the FPPC determine that there is a financial conflict of interest, that
would serve as a separate, independent basis for disqualifying Councilmember de la
Torre.
Separate and apart from disqualifying financial interests within the meaning of Section
1090 or the Political Reform Act, the common law doctrine against conflicts of interest
“prohibits officials from placing themselves in a position where their private, personal
interests may conflict with their official duties.” Clark v. City of Hermosa Beach, 48 Cal.
App. 4th 1152, 1171 (1996), quoting 64 Ops. Cal. Atty Gen. 795, 797 (1981)
The FPPC does not provide advice on common law conflicts of interest. The City
sought guidance from the California Attorney General on whether Councilmember de la
Torre’s prior position as a board member and representative of PNA during the litigation
or his wife’s continuing status as a plaintiff in the litigation poses a common law conflict
of interest. The California Attorney General has declined to provide advice, indicating
that their authority to issue legal opinions is controlled by Government Code Section
12519, which states that opinions shall be provided to “a city prosecuting attorney when
requested, upon any question of law relating to criminal matters,” and that, as a result,
because the current situation involves a matter of civil law, rather than criminal law, they
are unable to provide the City with a legal opinion under the authority of their governing
statute. Nevertheless, as a matter of general guidance and reference, the California
Attorney General provided the City with a copy of a California Attorney General Opinion
-- official citation 92 Ops. Cal. Atty. Gen. 19 (2009) (Cal. AG No. 07-807) -- that
discusses the common law doctrine and its application in a particular case where the
California Attorney General found that the prohibitions of Government Code Section
1090 and the Political Reform Act did not apply. A copy of this opinion is attached.
(Attachment B)
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The 2009 Attorney General Opinion found that a city redevelopment agency board
member had a common law conflict of interest with respect to the agency’s decision
whether to enter into a loan agreement for commercial property improvement where the
proposed recipient of the loan was a corporation solely owned by the adult son of the
agency board member. The 2009 Attorney General Opinion determined that the
agency board member had no disqualifying financial interests within the meaning of
Section 1090 or the Political Reform Act. But, it noted, this did not preclude a finding of
a common law conflict of interest because “the common law prohibition extends to
noneconomic interests as well.” Indeed, the common law doctrine has long been held
to apply beyond financial interests, requiring more generally that a public officer
“exercise the powers conferred on him with disinterested skill, zeal and diligence and
primarily for the benefit of the public.” Noble v. City of Palo Alto, 89 Cal. App. 47, 51
(1928); see also Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1152, 1170-71
(1996). As the 2009 Attorney General Opinion explained: “even if the agency board
member cannot be said to have a statutory financial interest in her son’s contract with
the agency within the meaning of section 1090 or the Political Reform Act, it is difficult to
imagine that the agency member has no private or personal interest in whether her
son’s business transactions are successful or not.” Thus, it concluded, “In our view, the
agency board member’s status as the private contracting party’s parent and co-tenant
places her in a position where there may be at least a temptation to act for personal or
private reasons rather than with ‘disinterested skill, zeal, and diligence’ in the public
interest, thereby presenting a potential conflict.” As a result, the Opinion held, “to avoid
a conflict between her official and personal interests, the board member should abstain
from any official action with regard to the proposed loan agreement and make no
attempt to influence the discussions, negotiations, or vote concerning that agreement.”
Just as it was “difficult to imagine that the agency member has no private or personal
interest in whether her son’s business transactions are successful or not,” it seems
difficult to imagine that Councilmember de la Torre has no private or personal interest in
the outcome of the pending litigation where his wife remains a plaintiff in the litigation,
his wife remains a board member of the other plaintiff in the litigation, and, until shortly
before being sworn in as a councilmember, he was the chair of the board of the other
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plaintiff in the litigation and served as that plaintiff’s representative at deposition and
trial. As a result, in accordance with the principles set out in the 2009 Attorney General
Opinion, staff recommends that Council determine that Councilmember de la Torre has
a common law conflict of interest and should therefore be disqualified from participating
in or attempting to influence discussions or decisions relating to this litigation.
Pursuant to Council Rule 18, this determination should be made by Council vote of the
councilmembers other than Councilmember de la Torre, who also has a personal
conflict of interest in the determination whether he has a conflict of interest with respect
to the litigation. Staff recommends, however, that Councilmember de la Torre be
allowed to participate in the discussion as to whether he has a conflict of interest with
respect to the litigation so that the Council can hear his explanation as to why he
believes he does not have a conflict of interest. If Council determines that a common
law conflict of interest exists and Councilmember de la Torre is, therefore, disqualified,
then all subsequent discussions and actions relating to the litigation should be treated in
the same way as if Councilmember de la Torre recused himself, that is, Councilmember
de la Torre may not be present during any discussions or decisions related to the
litigation.
Prepared By: Denise Anderson-Warren, City Clerk
Approved
Forwarded to Council
Attachments:
A. Attachment A--20210122.Board Members – PNA
B. Attachment B--AG Opn. 07-807
C. Responses from Oscar De la Torre Part 1
D. Responses from Oscar De la Torre Part 2
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1/22/2021 Board Members – PNA
https://pnasantamonica.wordpress.com/board-members/1/2
PNA
Pico Neighborhood Association – Santa Monica, California
Board Members
PNA Board
Oscar De la Torre, Santa Monica City Councilor since December 2020: previously a board member.
Cris McLeod, Chair . Cris is a resident of the Pico Neighborhood, 16 years long. Cris is the Secretary and
Treasurer for the GSMOL Chapter here in Santa Monica and he is also the Secretary for the Home
Owners association at Mountain View Mobile Home Park on Stewart St. He has been involved with the
PNA as a member for 12 Years. He regularly speaks at City Council and is a strong advocate for low
income residents, Cris is also a member of SMMR.
Brian Oneal, Co-Chair and Secretary. Brian is History Professor and community leader from the newly
formed Gandara Park Neighborhood Association, more to come.
Marco Marin, Director @ Large. Is A long time Santa Monica Resident and board member. We will
update his bio asap.
Maria Loya, Communications Officer. Maria has lived in the Pico Neighborhood for 18 years. She brings
her experience as a community organizer and activist on issues related to the environment, development
and education. Maria was recently re-elected as member of the Santa Monicans for Renter’s Rights
(SMRR) Steering Commi ee. She and her husband, Oscar de la Torre are raising two wonderful boys in
the Pico Neighborhood.
Berenice Onofre. Director @ Large, A longtime resident of the Pico neighborhood, Berenice is proud to
serve as a PNA Board member, Berenice also just earned her Doctorate in Education from CAL State La.
Andrew Kalinowski, Director @ Large, is a Santa Monica resident and our most recent board member.
Is a Certified Public Accountant (CPA), is also a Certified Management Accountant (CMA), Andrew is
also a Board Member of the Ferris Foundation which is a nonprofit fund for higher education and was
the Former President and Board Member of the GRYP which is a young professional organization based
in Michigan prior to his move to Santa Monica.Andrew is actively involved in Junior Achievement of
SoCal and has volunteered with multiple nonprofit organizations where he assisted minority owned
businesses in finance, operational improvements, business planning, legal, and tax planning.
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1/22/2021 Board Members – PNA
https://pnasantamonica.wordpress.com/board-members/2/2
Gina de Baca, Director @ Large. Gina has been a PNA Boardmember for more than 16 years. Gina is a
life long resident of Santa Monica and has lived in the Pico Neighborhood for more than 24 years. She
has been a long time advocate for youth and Pico Neighborhood families. She serves on the Santa
Monica Early Childhood education task force, Edison PTA Board, member of Kuruvungna Spring Board
of Directors and Founder of Cabeza de Vaca cultural school in Santa Monica.
Mary Cornejo, Director @ Large. Mary is a native to Santa Monica. She has lived her entire life in the
Pico Neighborhood. Mary is a member of the Women of the Moose. She is also a member of St. Anne’s
Church Guadalupana group. She has been married for 32 plus years and raised 5 great kids in Santa
Monica. Mary wants to work to engage Pico Neighborhood families in issues affecting our community.
Jeff Blake, Director @ Large. Jeff has been a Santa Monica resident since 2008 and a Pico Neighborhood
resident since 2011 and a PNA Board member since 2017. Jeff hopes to use his background in
Healthcare and community relations to support PNA’s ongoing advocacy on behalf of the City’s most
vibrant community.
Christhild Anderson, Director @ Large. After ge ing married to her late husband (an American) in
1980, Christel lived permanently in Santa Monica and applied for her Green Card. Both her two children
went to Edison Elementary School’s Bilingual Program, where she and her husband and were very
active board members of the PTA. After teaching Preschool as well as Kindergarten, and Elementary
Special Ed. both in Germany and the USA, she continued with Graduate Social Work Training in both
Countries and is registered with the California Board of Behavioral Sciences. She enjoys applying her
Community Work Skills for the benefit of the PNA to help in preserving and creating a livable Santa
Monica for all Generations.
Catherine Eldridge, Parliamentarian. Catherine, a PNA Boardmember for more than 8 years has lived
in Santa Monica and the Pico Neighborhood for over 25 years. She is a tireless advocate for Village
Trailer Park mobile home residents which is within the Pico Neighborhood. Catherine has been a long
time advocate for affordable housing in Santa Monica through her participation in the Santa Monica for
Renters’ Rights (SMRR). She will continue to be a voice for Pico Neighborhood residents in City Hall.
Blog at WordPress.com.
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07-807
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
EDMUND G. BROWN JR.
Attorney General
_________________________
OPINION
of
EDMUND G. BROWN JR.
Attorney General
MARC J. NOLAN
Deputy Attorney General
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No. 07-807
January 14, 2009
________________________________________________________________________
THE HONORABLE NORMA J. TORRES, MEMBER OF THE STATE
ASSEMBLY, has requested an opinion on the following question:
May a city redevelopment agency enter into a loan agreement for commercial
property improvement where the recipient of the proposed loan is a corporation solely
owned by the adult, non-dependent son of an agency board member who also resides
with the board member in the same rented apartment?
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CONCLUSION
The circumstance that the recipient of a proposed commercial property
improvement loan from a city redevelopment agency would be a corporation solely
owned by the adult, non-dependent son of an agency board member who also resides
with the board member in the same rented apartment does not, by itself, preclude the
agency from entering into an agreement to make that loan. However, to avoid a conflict
between her official and personal interests, the board member should abstain from any
official action with regard to the proposed loan agreement and make no attempt to
influence the discussions, negotiations, or vote concerning that agreement.
ANALYSIS
We are informed that a city redevelopment agency is considering whether to enter
into a loan agreement for commercial property improvement and that the recipient of the
proposed loan is to be a corporation solely owned by the adult son of an agency board
member. We are also told that, while the son resides with the board member in the same
rented apartment, we may assume for purposes of this analysis that he is not dependent
on the board member for support.1 Given this context, we are asked whether the agency
may enter into the proposed loan agreement without violating any conflict-of-interest
laws. As relevant here, those laws consist of two statutory schemes, Government Code
section 1090 and its related provisions and the Political Reform Act of 1974, as well as
the common law doctrine against conflicts of interest. For the reasons that follow, we
conclude that the given circumstances, by themselves, would not preclude the agency
from entering into the proposed loan agreement, but that, to avoid a conflict between her
official and personal interests, the board member should completely abstain from any
official action with regard to the proposed loan agreement and make no attempt to
influence the discussions, negotiations, or vote concerning that agreement.
Government Code section 1090
Our consideration of the question presented first requires that we undertake an
analysis under Government Code section 1090,2 which generally forbids the board of a
public agency from entering into a contract in which one of its members has a personal
1 In support of this assumption, we have been informed that the agency board
member does not claim her son as a dependent for tax purposes.
2 All further references to the Government Code are by section number only.
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financial interest.3 In the words of the statute, “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 . . . .”4
A city redevelopment agency is a public body,5 and members of its governing
board are thus public officials within the meaning of section 1090, which applies to
virtually all members, officers, and employees of such agencies.6 An agreement by a
public agency to loan money is treated as a contract for purposes of section 1090.7
Section 1090 is concerned with financial interests, other than remote or minimal
interests, that prevent public officials from exercising absolute loyalty and undivided
allegiance in furthering the best interests of their public agencies.8 Under section 1090,
“the prohibited act is the making of a contract in which the official has a financial
interest.”9 Such an interest may be direct or indirect, but the “evil to be thwarted by
section 1090 is easily identified: If a public official is pulled in one direction by his
financial interest and in another direction by his official duties, his judgment cannot and
should not be trusted, even if he attempts impartiality.”10 A contract that violates section
1090 is void.11
With these principles in mind, we consider whether the familial relationship
between the redevelopment agency board member and the member’s adult son will, by
itself, render the proposed loan agreement between the agency and the member’s son’s
corporation invalid under section 1090. We considered a similar question in 88
Ops.Cal.Atty.Gen. 222 (2005). At issue in that opinion was whether the adult son of a
3 89 Ops.Cal.Atty.Gen. 217, 218 (2006).
4 Govt. Code § 1090.
5 Health & Safety Code § 33100; see 88 Ops.Cal.Atty.Gen. 222 (2005).
6 See 61 Ops.Cal.Atty.Gen. 243, 248-250 (1978) (applying § 1090 to members of a
local redevelopment agency).
7 E.g., Carson Redevelopment Agency v. Padilla, 140 Cal. App. 4th 1323, 1329-
1330 (2006).
8 Stigall v. Taft, 58 Cal. 2d 565, 569 (1962).
9 People v. Honig, 48 Cal. App. 4th 289, 333 (1996).
10 Carson Redevelopment Agency, 140 Cal. App. 4th at 1330.
11 Thomson v. Call, 38 Cal. 3d 633, 646 (1985).
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redevelopment agency board member could acquire real property within the
redevelopment zone without causing the member to violate Health and Safety Code
section 33130(a), which prohibits agency officers and employees from acquiring “any
interest in any property included within the project area within the community,”
including “any indirect financial interest” in such property.12 Because the statute under
analysis did not further specify what constituted a prohibited “indirect financial interest,”
we found it appropriate to consult other conflict-of-interest statutes, including section
1090, to determine whether the parent-adult child relationship between the agency
member and his son would give rise to the member having a cognizable financial interest
in the property his son sought to purchase.13 Our review of analogous statutory schemes
led us to conclude that no such prohibited interest would arise solely on account of the
parent-adult child relationship.14
Here, where we are called upon to analyze section 1090 and its related provisions
directly, rather than by comparison, the result is the same. For purposes of this analysis,
we note that the Legislature has expressly defined certain “remote interests”15 and
“noninterests”16 that do not come within section 1090’s general prohibition. If a “remote
interest” is present, as defined in section 1090, the proposed contract may be made, but
only if (1) the public official or board member in question discloses his or her financial
interest in the contract to the public agency, (2) such interest is noted in the entity’s
official records, and (3) the individual with the remote interest abstains from any
participation in the making of the contract.17 If a “noninterest” is present, as defined in
section 1091.5, the contract may be made without the official’s abstention, and generally
a noninterest does not require disclosure.18 We have found that an examination of these
statutory exceptions is useful in determining what would otherwise be viewed by the
Legislature as constituting a proscribed “financial interest.”19
12 88 Ops.Cal.Atty.Gen. at 224.
13 Id. at 224-225.
14 Id.
15 § 1091.
16 § 1091.5.
17 See 88 Ops.Cal.Atty.Gen. 106, 108 (2005); 83 Ops.Cal.Atty.Gen. 246, 248
(2000); see also People v. Honig, 48 Cal. App. 4th at 318-319.
18 City of Vernon v. Central Basin Mun. Water Dist., 69 Cal. App. 4th 508, 514-
515 (1999); 84 Ops.Cal.Atty.Gen. 158, 159-160 (2001).
19 85 Ops.Cal.Atty.Gen. 34, 36-37 (2002); see Honig, 48 Cal. App. 4th at 289, 317.
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In our 2005 opinion, we observed that, although the Legislature deems a parent to
have a remote financial interest for purposes of section 1090 “in the earnings of his or her
minor child for personal services,”20 there is no similar determination that a parent has
either a direct or indirect financial interest in the property or earnings of an adult child.21
And we have previously found that the familial relationship between a county supervisor
and his adult brother, in that instance an automobile dealer, would not result in a violation
of section 1090 if the brother sold automobiles to the county. “Neither brother has any
proprietary ‘interest’ in the financial attainments of the other; neither is entitled to any
contribution or support from the other.”22
The situation here is analogous. A parent is not legally compelled to support an
adult child absent special circumstances not present here, such as the child’s incapacity.23
Conversely, an adult child has no legal duty to support a parent, unless the parent is “in
need and unable to support himself or herself by work,”24 a circumstance also not present
here.
We are informed that the board member’s son’s corporation will receive the
proceeds of the agency’s loan. There is no indication that the member will personally
profit from this transaction. While the Legislature could have characterized the inherent
“interest” that a self-supporting parent may be said to have in the financial attainments of
an adult child as one that, by itself, amounts to a prohibited financial interest, it has not
done so. Nor have we located any judicial determination that the parent-adult child
relationship, in itself, creates a financial conflict of interest in situations of the sort
considered here.25 Thus, we conclude that the familial relationship between the board
20 § 1091(b)(4).
21 88 Ops.Cal.Atty.Gen. at 225.
22 28 Ops.Cal.Atty.Gen. 168, 169 (1956).
23 In re Marriage of Chandler, 60 Cal. App. 4th 124, 130 (1997); In re Marriage of
Lambe & Meehan, 37 Cal. App. 4th 388, 391-392 (1995); see Fam. Code § 58.
24 Fam. Code § 4400; see also Chavez v. Carpenter, 91 Cal. App. 4th 1433, 1445
& fn. 8 (2001) (noting statutory standard).
25 An example of an indirect financial interest stemming from a parent-adult child
transaction is found in Moody v. Shuffleton, 203 Cal. 100 (1928). There, a county
supervisor sold his printing business to his son and took back a promissory note secured
by a chattel mortgage on the business. Because the business helped to secure the value of
the official’s mortgage, it was held that a conflict existed when printing contracts were
awarded to the son. Id. at 103-104; see also Thomson, 38 Cal. 3d at 645. In that case, the
public official had a financial interest in the transaction (that of a mortgage holder in a
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member and her adult son does not invalidate the proposed loan agreement under section
1090.
For similar reasons, we believe that a housing arrangement in which a public
official and his or her adult child live together in the same rented apartment does not
necessarily give the parent a prohibited financial interest in the contractual dealings of the
child for purposes of section 1090. Although by statute a landlord has a “remote interest”
in his or her tenant’s official contracts and vice versa,26 the same is not the case for
individuals who share a rented apartment, and whose legal obligations to one another are
different in kind from those owed between landlord and tenant. Thus, we conclude that
section 1090 does not preclude the redevelopment agency from entering into the contract
at issue due solely to the circumstance that an agency board member and her adult son
share living space in a rented apartment.
Having so concluded, however, we caution that if there were other circumstances
suggesting that the member had a financial interest in the proposed contract, those
circumstances would need to be analyzed separately to determine whether an
impermissible conflict existed.27
The Political Reform Act
We next consider what effect, if any, the Political Reform Act of 197428 has on
this question. The Political Reform Act generally prohibits public officials from
participating in “governmental decisions” in which they have a financial interest.29 Of
potential relevance here, the Political Reform Act requires officials to abstain from
participating in such a decision when it will have a material financial effect on a member
of his or her “immediate family.”30 The term “immediate family” includes only the
official’s “spouse and dependent children.”31 As stated earlier, we are assuming here that
the board member’s adult son is not her dependent.
printing business seeking to contract with the county) that was separable from and not
dependent on the parent-child relationship.
26 § 1091(b)(5).
27 See, e.g., 88 Ops.Cal.Atty.Gen. at 225.
28 §§ 87100 et seq.
29 See § 87100; 88 Ops.Cal.Atty.Gen. 32, 33-34 (2005).
30 § 87103.
31 § 82029.
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No other provision of the Political Reform Act purports to link a public official’s
personal financial interests to those of an individual (other than the official’s spouse
and/or dependent children) with whom he or she shares a rented residence. Therefore, we
find that the Political Reform Act’s prohibitions are not triggered by the circumstance
that the board member shares a rented residence with her adult son, whose corporation
seeks to contract with the agency.
Common Law Doctrine against Conflicts of Interest
Having found no disqualifying financial interests within the meaning of section
1090 or the Political Reform Act, we now analyze the circumstances under the common
law doctrine against conflicts of interest. The common law doctrine “prohibits public
officials from placing themselves in a position where their private, personal interests may
conflict with their official duties.”32 While the focus of the statutes analyzed above is on
actual or potential financial conflicts, the common law prohibition extends to
noneconomic interests as well.33 Thus, we have previously cautioned that, even where no
conflict is found according to statutory prohibitions, special situations could still
constitute a conflict under the common law doctrine.34 While the common law may be
abrogated by express statutory provisions,35 the statutes we have considered thus far do
not address the circumstances we have been asked to evaluate, nor are we aware of any
other statutes that address those circumstances.
Here, even if the agency board member cannot be said to have a statutory financial
interest in her son’s contract with the agency within the meaning of section 1090 or the
Political Reform Act, it is difficult to imagine that the agency member has no private or
personal interest in whether her son’s business transactions are successful or not. At the
least, an appearance of impropriety or conflict would arise by the member’s participation
in the negotiations and voting upon an agreement that, if executed, would presumably
redound to her son’s financial benefit. As one court has said with regard to the common
law doctrine and the need to strictly enforce it:
32 Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1152, 1171 (1996), quoting 64
Ops.Cal.Atty.Gen. 795, 797 (1981); see also Kunec v. Brea Redevelopment Agency, 55
Cal. App. 4th 511, 519 (1997).
33 Clark, 48 Cal. App. 4th at 1171 & fn. 18; 70 Ops.Cal.Atty.Gen. 45, 47 (1987);
64 Ops.Cal.Atty.Gen. at 797.
34 See 53 Ops.Cal.Atty.Gen. 163, 165-167 (1970).
35 70 Ops.Cal.Atty.Gen. at 47; 67 Ops.Cal.Atty.Gen. 369, 381 (1984).
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A public officer is impliedly bound to exercise the powers conferred
on him with disinterested skill, zeal, and diligence and primarily for the
benefit of the public. . . . [¶] . . . . [¶] Actual injury is not the principle the
law proceeds on. Fidelity in the agent is what is aimed at, and as a means
of securing it the law will not permit him to place himself in a position in
which he may be tempted by his own private interests to disregard those of
his principal. This doctrine is generally applicable to private agents and
trustees, but to public officers it applies with greater force, and sound
policy requires that there be no relaxation of its stringency in any case that
comes within its reason. . . . 36
In our view, the agency board member’s status as the private contracting party’s
parent and co-tenant places her in a position where there may be at least a temptation to
act for personal or private reasons rather than with “disinterested skill, zeal, and
diligence” in the public interest, thereby presenting a potential conflict. In an earlier
opinion, we advised that a common law conflict of interest may “usually be avoided by
[the official’s] complete abstention from any official action” with respect to the
transaction or any attempt to influence it.37 Under these circumstances, we believe that
the only way to be sure of avoiding the common law prohibition is for the board member
to abstain from any official action with regard to the proposed loan agreement and make
no attempt to influence the discussions, negotiations, or vote concerning that agreement.
36 Noble v. City of Palo Alto 89 Cal. App. 47, 51 (1928) (citations omitted); see
also Clark, 48 Cal. App. 4th at 1170-1171.
37 See 70 Ops.Cal.Atty.Gen. at 47; 64 Ops.Cal.Atty.Gen. at 797; see Clark, 48 Cal.
App. 4th at 1171 (conflicted official is disqualified from taking any part in the discussion
and vote regarding the particular matter); Eugene McQuillin, The Law of Municipal
Corporations vol. 4, § 13.35, 840-841 (3d ed. rev. 1992); 26 Ops.Cal.Atty.Gen. 5, 7
(1955).
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Accordingly, we conclude that the circumstance that the recipient of a proposed
commercial property improvement loan from a city redevelopment agency would be a
corporation solely owned by the adult, non-dependent son of an agency board member
who also resides with the board member in the same rented apartment does not, by itself,
preclude the agency from entering into an agreement to make that loan. However, to
avoid a conflict between her official and personal interests, the board member should
abstain from any official action with regard to the proposed loan agreement and make no
attempt to influence the discussions, negotiations, or vote concerning that agreement.
*****
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Packet Pg. 24 Attachment: Responses from Oscar De la Torre Part 1 (4427 : PNA CVRA lawsuit Conflict of Interest)
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Packet Pg. 28 Attachment: Responses from Oscar De la Torre Part 1 (4427 : PNA CVRA lawsuit Conflict of Interest)
2039 ½ Stewart St.
Santa Monica, CA 90404
Odelatorre16@yahoo.com
VIA EMAIL and U.S. MAIL
November 30, 2020
Fair Political Practices Commission
1102 Q Street, Suite 3000
Sacramento, CA 95811
advice@fppc.ca.gov
Re: Request for Formal Advice from Oscar de la Torre, Santa Monica
I am writing to follow-up on, and correct, the letter sent to the FPPC by Santa
Monica’s interim city attorney, George Cardona, on November 25, 2020, seeking
advice concerning my obligations as an incoming elected member of the Santa
Monica City Council.
Though Mr. Cardona and I agreed on November 24, 2020 to cooperate in jointly
presenting the relevant facts and questions to the FPPC, Mr. Cardona then hastily
and unilaterally wrote to the FPPC without affording me the opportunity to review
his letter. Mr. Cardona’s letter, unsurprisingly, does not accurately and fairly
convey the relevant facts to the FPPC, presents a question that seems designed only
to obscure the dispositive fact that I have absolutely no financial interest in the
outcome of Pico Neighborhood Association v. City of Santa Monica, and presumes
to know how the California Supreme Court might decide that case. In contrast, Mr.
Cardona himself has a vested financial interest in the City of Santa Monica
continuing to resist the implementation of district-based elections in compliance
with the California Voting Rights Act, because a district-elected council is almost
certain to terminate Mr. Cardona, who he himself acknowledged to me that he does
not believed the CVRA applies to Santa Monica and has advised the City to waste
tens of millions of dollars on a futile effort to maintain the City’s racially
discriminatory at-large elections.
I, therefore, write to the FPPC to provide a fair and complete summary of the
relevant facts and point out the errors in Mr. Cardona’s letter, so that the FPPC can
provide a fully-informed opinion. I have also sought an opinion from private legal
counsel, and have also attached that opinion in this request for advice (please see
Ambrose letter attached).
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FACTS
A. My Background and Advocacy Work
I have been an activist and politician for my entire adult life. In 1990, I was
elected Student Body President of Santa Monica High School, after a group of
white students discouraged me from running because, according to them, no
Mexican could be elected. In 1994, I was elected AS. President of Chico State
University, spurred on by the need to organize opposition to Proposition 187. In
2002, I was elected to the governing board of the Santa Monica-Malibu Unified
School District. In each of those roles, and in all other aspects of my life, I have
worked for racial and social justice.
For decades, I have also advocated to the Santa Monica City Council for racial and
social justice. I was raised, and now live, in the racially segregated and minority-
concentrated Pico Neighborhood of Santa Monica. The inequities thrust upon the
Pico Neighborhood are both historically troubling, and continually damaging to
the residents of the Pico Neighborhood. All of the environmental hazards of the
City, for example, have been placed in the Pico Neighborhood – e.g. a hazardous
waste storage facility, the 10 freeway, the City’s vehicle maintenance yard and an
unabated landfill that emits methane into a Gandara Park. Furthermore, the
concentrated poverty, marginalization and social neglect prompted me to create
the Pico Youth & Family Center, a youth center founded in 1998 to address more
than 62 gang-related homicides that had occurred in the Pico Neighborhood since
1982.
Recognizing that these inequities stemmed, in part, from the lack of political
representation, and the underrepresentation of minorities throughout all decision-
making bodies, particularly from the Pico Neighborhood, on the Santa Monica
City Council, I have advocated for district elections for nearly a decade. The lone
Latino elected to the Santa Monica City Council before 2020 in the City’s 74 years
of at-large elections similarly advocated for district elections, and voted to adopt
district elections in 1992 – an effort that fell short by one vote on the seven-
member city council. As the former President of the California Latino School
Board Association, I have also advocated for district elections throughout
California because the at-large elections in many California cities tend to dilute
minority votes. Replacing racially discriminatory at-large elections with fair
district-based elections is an issue about which I care deeply.
None of my advocacy work for district elections or for the Pico Neighborhood has
been for financial compensation.
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B. My Role in the Pico Neighborhood Association
Consistent with my lifelong advocacy for the Pico Neighborhood, I have held
various roles with the Pico Neighborhood Association (“PNA”). Most recently, I
served as “co-chair” of the PNA. I have resigned my position with the PNA to
focus my efforts on my upcoming role on the city council.
PNA is a small non-profit neighborhood group that has, for over 40 years, given
the Pico Neighborhood residents some voice, when the City’s at-large elections
have denied them any voice in their local government. PNA was founded by
Black and Mexican American leaders in 1979 to fight against the social neglect of
the City Council that up to now was constituted by a majority of elected leaders
who resided in the wealthier and almost exclusively white north side of the City.
PNA raises a small amount of money through modest membership dues, and its
annual budget is consistently less than $5,000. PNA has no employees, and
engages in no commercial transactions. Rather, PNA’s board – usually consisting
of about 12 residents who are unpaid volunteers – meets approximately once a
month to discuss issues pertinent to the Pico Neighborhood, and advocates for the
interests of the Pico Neighborhood residents. The PNA has no real property in
Santa Monica, or anywhere else.
Neither I, nor any of my family members, have ever been paid by PNA. My
parents were involved with the PNA when it advocated for a more equitable
distribution of Community Development Block Grants more than 40 years ago,
and they were not paid any compensation for their work or role in the PNA. More
recently, my wife and I have served as board members of PNA, and we likewise
have never been paid, nor have we ever sought compensation, for any of our work.
Rather, we have all volunteered with the PNA for no financial compensation at all.
Contrary to Mr. Cardona’s letter, I did not, at the trial of Pico Neighborhood
Association v. City of Santa Monica, testify on behalf of PNA. Nor did my wife
testify that I would do so. Rather, I testified in that trial to share my own
experiences, particularly in campaigning for elected office on the school board and
struggling in the very different city council elections. I was deposed in that case,
as were all of the other PNA board members – though, frankly, it seemed those
depositions were taken solely for the purpose of providing a training exercise for
some of the more junior attorneys working on the case. Again, contrary to Mr.
Cardona’s letter, I was not represented by Mr. Shenkman in my individual
capacity at that deposition; Mr. Shenkman represented PNA and appeared at my
deposition in that role.
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In order to focus on my upcoming role as a member of the Santa Monica City
Council, I resigned my position on the PNA board. I have no intention of
resuming any role with the PNA, though I am certainly sympathetic to its mission
to advocate for the historically-unrepresented Pico Neighborhood.
C. I Have Absolutely No Financial Interest, Direct or Indirect, in the
Outcome of Pico Neighborhood Association v. City of Santa Monica.
In April 2016, following unsuccessful efforts to convince the city council to
voluntarily adopt district-based elections, the PNA filed a lawsuit against the City
of Santa Monica (“Voting Rights Lawsuit”), alleging that the City’s at-large
elections violate the California Voting Rights Act of 2001 and the Equal
Protection Clause of the California Constitution. My wife, Maria Loya, is also a
named plaintiff in that case. The Voting Rights Lawsuit went to trial in 2018, and
the plaintiffs prevailed on both of their causes of action; in 2020 the Court of
Appeals reversed; and in October 2020 the California Supreme Court granted the
plaintiffs’ petition for review, while also de-publishing the Court of Appeal’s
opinion. The case is now pending before the California Supreme Court, with the
plaintiffs’ opening brief due in December.
Though I doubt it makes a difference to the FPPC’s analysis, Mr. Cardona’s
characterization of the California Supreme Court’s actions thus far in the Voting
Rights Lawsuit is incomplete and inaccurate, and his predictions about how the
California Supreme Court might decide the case are unfounded. If anything can
be predicted from the California Supreme Court’s actions, it is that a reversal is
likely, based on the Court’s depublication of the Court of Appeal’s faulty decision
in its entirety and on the Supreme Court’s own motion.
The Voting Rights Lawsuit seeks only non-monetary relief – an injunction and
declaration from the Court. Consistent with the requested relief, the Judgment
entered by the Los Angeles Superior Court awards the plaintiffs injunctive and
declaratory relief, but no monetary relief. While the plaintiffs’ lawyers are likely
entitled to recover their fees and costs, and they have already filed a motion to
recover some of their fees and a memorandum of costs, I understand the plaintiffs
cannot share in those fees. In fact, at the outset of the case my wife and PNA both
agreed that they have no right to any attorneys’ fees or costs recovered in that
case. Likewise, the attorneys representing my wife and PNA agreed that they
would handle the Voting Rights Lawsuit pro bono and pay all associated costs. In
other words, the attorneys, not PNA or my wife, bear all of the financial risk and
are entitled to the entirety of any financial reward. Therefore, neither I nor my
wife have any financial interest, direct or indirect, in the outcome of the Voting
Rights Lawsuit – our interest is merely the implementation of district elections and
justice.
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Nor does Mr. Cardona’s underhanded suggestion, through his final question
posed, that somehow PNA might be offered something of value in settlement
negotiations change the simple fact that I have no financial interest in the Voting
Rights Lawsuit. There have been dozens of CVRA cases settled or otherwise
adjudicated in the nearly 18 years since the CVRA was enacted. In each and every
one of those settlements and judgments, the relief consisted of a change to the
defendant’s elections and an award of attorneys’ fees and costs; never has any
CVRA plaintiff received any monetary compensation. The City of Santa Monica
has never offered any monetary compensation to the PNA or my wife to settle the
Voting Rights Lawsuit, and I know that my wife would never entertain such an
offer if it were made. Rather, my wife, PNA and their attorneys have consistently
told the City any settlement negotiations must first address changes to the method
of electing city councilmembers and second address the amount of attorneys’ fees
and costs to be paid to the plaintiffs’ attorneys, and the discussion of attorneys’
fees and costs will not begin until the election changes are resolved. Indeed, it
would be inappropriate to conflate those two distinct issues.
D. The 2020 Campaign and Election.
I first ran for the Santa Monica City Council in 2016. Though I did very well with
voters in the Latino-concentrated Pico Neighborhood, I received much less
support from the other parts of the city, and I lost. The 2016 election outcome,
and what I experienced in that campaign, underscored the need for district-based
elections in Santa Monica – as the Los Angeles Superior Court found.
Despite my experience in 2016, I ran again in the November 2020 election. A
series of events demonstrated the mismanagement of the City by the incumbent
council members and the City’s upper management staff. For example, on May
31, 2020 the city’s police tear-gassed and brutalized peaceful protestors while
allowing looters to steal from and destroy the City’s businesses, apparently at the
direction of the city council and upper management staff. A tremendous anti-
incumbent sentiment developed, and I felt 2020 would be an unusual opportunity
to win a seat on the Santa Monica City Council. Ultimately, my sense was proven
correct; three of the four incumbents seeking re-election were defeated (as many
as had been defeated in the previous 26 years), and I came in fourth in a race for
four seats.
Throughout my campaigns, both in 2016 and 2020, I stressed the need for the City
to adopt district-based elections. In the 2020 campaign, the major candidates were
all asked by a local newspaper whether they supported adopting district-based
elections. All of the incumbents answered “no,” while all of the challengers
endorsed by Santa Monicans for Change (including me) answered “yes.”
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Ultimately, three of the challengers (including me), and only one of the
incumbents, was elected. I believe our support for district elections reflects the
will of the voters; in fact, a survey of 400 voters in 2018 showed that Santa
Monica voters support the adoption of district-based elections by a margin of more
than 2 to 1. The adoption of district-based elections makes even more sense in
light of the fact that the City has spent untold millions of dollars to fight against
adopting district-based elections. As the voters elected me to the city council to
advocate for district elections, among other things, I intend to do exactly that.
While the incumbent council members who oppose district elections have accused
me of having some unidentified conflict of interest with respect to the issue of
district elections, and the Voting Rights Lawsuit seeking the implementation of
district elections, it is those incumbent council members who have had the conflict
of interest for the past five years as they have used the City’s financial resources to
fight against district elections so that they may retain their council seats and the
stipends, car and phone allowance, insurance etc that comes with their positions.
For example, with the district map chosen by the Los Angeles Superior Court, at
least two of those incumbent council members reside in the same district –
meaning that only one of them could be elected in a district-based election.
Frankly, I find the accusation that I am the one who has a conflict of interest to be
biased and racist – just like the incumbent council members insistence on clinging
to the at-large election system that the Los Angeles Superior Court found was
adopted and maintained for the express purpose of denying Latinos and African
Americans representation in their municipal government.
*****
Please feel free to contact me if you have any questions regarding this matter.
Very truly yours,
Oscar de la Torre
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