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HomeMy WebLinkAbout2011-01-29 e-packet°~zK's~.~~ SPECIAL MEE'TI~TG J O CITY COUNCIL c9LIF0R~1~ OF THE CITY OF SOUTH SAN FRA:[VCISCO P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, California. 94083 CITY HALL CONFERENCE; ROOM 400 GRAND AVENUE SATURDAY, JANUARY 29, 2011 9:00 A.M. NOTICE IS HEREBY GNEN, pursuant to Section 54956 o:f the Government Code of the State of California, the City Council of the City of South San Francisco will hold a Special Meeting on Saturday, the 29th day of January, 2011, at 9:OOa.m., in the City Hall Conference Room, 400 Grand Avenue, South San Francisco, California. Purpose of the meeting: 1. Call. to Order. 2. Roll Call. 3. Agenda Review. 4. Public Comments -comments are limited to items on the Special Meeting Agenda. 5. Items for Discussion: a. Council Goals/Objectives b. Staffs Goals/Objectives c. City Boards & Commissions d. BIO 2011 -Washington, D.C. e. "Pedestrian Friendly" Grand Avf;nue f North Peninsula Neighborhood Services g. Middle School Summer/After School ;ports Program h. Apprenticeship Program i. City Council Vehicle j. Preferential Hiring for Local Bu.~inesse;s and Contractors k. LocaURegional Meeting Meals on 700 Form (FPPC) 1. City Seal m. Tuesday Study Sessions n. Condolence Letters Closed Session -Annual Performance R'.eviev~ (Pursuant to Government Code Section :14957) Title: City Manager and City Attorney. 7. Adjournment. Krista Joy Martinelli, City Clerk SPECIAL CITY COUNCIL MEETING JANUARY 29, 2011 AGENDA PAGE2 CITY OF SOUTH SANFRANCISCO INTER-OFFICE MEMORANDUM DATE: January 21, 2011 TO: Honorable Mayor & City Council FROM: Barry M. Nagel, City Manag r s~4 ~,#,,,,. ~~' ~.~.~, ~~ e SUBJECT: Vision for 2011 Goals An overview of goals for 2011 is listed below and detailed information for each goal is attached: • Management of the Caaital Improvement Plan (Attachment A • Merge Environmental ConsentDecree into the Public Works Sewer Maintenance Division's Policies and Operating Standards • Develop and Propose to Council a Shopping Cart Retrieval Ordinance • Complete Several Large CIP Projects within approved Budgets and Schedules • Install Flow monitoring equipment along Colma Creek to obtain critical data for evaluation purposes in determining rain water inf ltration into the waste stream flow to the treatment plant • Economic Stability ~t'itzaci~m~,~t ~~ • Develop aFive-Year Strategic Plan • Continue to Educate City Employees about Budget Situation • Implement new Eden Financial Software System .to provide more complete, easier to use, and robust financial information to City Departments and City Council in a timely manner, and reduce manual processes where appropriate • Implement a new banking services contract by July I that reduces City paperwork and manual reconciliation efforts and costs, reduces risks to electronic fraud, and minimizes risk to the Cily's cash holdings • Quality of Life Improvement in the Community (Attachment C 8~ C.1 • Complete the Westborough Park Improvement Capital Improvement Project - Continued from 2010 • Expand Strategic Planning for Parks and Recreation Core Services, Future Recreation Needs, and Stang • Pursue Grants and Other Alternative Funding Sources - As grant cycles and, develop new funding partnerships and strategies to sustain current programs and expand into new directions tied to local needs • Prepare a long range staffing plan tied into Library core services • Complete Collection and Circulation upgrade to RFID (radio frequency identification) • Continue laying the Groundwork for Future Ne~v Main Library • Enhancement of Public Safety Operations (Attachment D ~ D.1) • Minimize Operating Costs where Feasible; Develop Better Cost Recovery for services the Fire Departmentprovides to the Community and Businesses and/or to Increase Revenue such as ALS and BLS ambulance programs, fire prevention plan check fees, renewable permits, special activity permits and the offering of specialized training • Implementation of New Technologies to Maximize Efficiencies • Continue Efforts to Improve the City's Ability to Prepare for, Respond to, Mitigate and Recover from Technological Incidents, Natural Disasters and/or National Defense Emergencies • Institute Programs funded by Grant Funds • Liability Reduction and Training Programs • New and Upgraded Equipment and Position • Upgrade of Interdepartmental Policies and Procedures • Expanded Use of Technology (Attachmentt E~ • Redesign and "backup" and "restore" Environment to Protect City Data • Virtualization of Desktops: Reduce PC Replacement Cost and Improve Operations • Replace Existing Copier Machines on Lease with New Copiers • Network Security • Oversee the Development of Georgraphical Information Systems (GIS) and use in the City • Redevelopment and Planning Activities ~A,ttac~~n~er~rt__F~ • Complete The Land Use Plan, EIR, Design Guiel'elines, and Development Standards for the SO-acre El Camino ReaUChestnut Area Plan. Partners to include the ECD, Library, Parks and Recreation, and Public Works departments • Develop a Community Wide Climate Action Plan in accordance with AB 32 and SB 375. Partners to include City Manager's office, DECD and Public Works departments • Coordinate the Entitlement Process for the Oyster Point Redevelopment Project (Shorenstein/SKS), that includes a new campus, infrastructure, new park & marina improvements, new Ferry Terminal connections, and environmental clean-up • Coordinate the Entitlement Process for the Mix-Use, Affordable Housing Project at 636 El Camino Real • Relocate St. Vincents DePaul's Food Service Program to Linden Avenue 2 • Maintaining an Efficient and Effective WVorkforce (Attachment G) • Risk Management Monitor and Evaluate RM Function to Manage Risk and Reduce Cost • Provide Structural Tools for Contemporary Humiin Resources function Analyze and Recommend Updates to Foundational Docunnents • Create and Promote a Positive Environment for ~s'mployees to Excel - Develop, utilize and evaluate innovative, cost effective ways to provide service • Strategic Planning I will be prepared to discuss the 2011 goals at Council's Retreat on January 29. 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' ~ ~ CD ~ ~ ~ ~ ~ C (C~ ~ ~ ~ • ti ~? ~ ~ to ~» ro ~ ^: N ~b ~. ~ Q ~ . `C 0 ~" ear d m C! ,.. su 7 ~ (D • N ~ ~ N ~ N ~ ~ ~ < Q O ~ ~ ~ tD .~-r ~ ~ ~ ~ Q ~ ~ y Ul _. ~~' .- e -, 1. .,.a. V /~ ~'° ~_ .n ~_ ['i'i ~_ rn Brown, Anna From: Martinelli-Larson, Krista Sent: Wednesday, January 26, 2011 2:12 PM To: Council-Only Cc: Nagel, Barry; Mattas, Steve Subject: Board and Commission Information Importance: High Attachments: 2010 Application list.doc; 2011 C B & C CONFID Roster updated 1.1.2011.doc Good Afternoon, I am providing this information for consideration during the Boalyd and Commission item at the Council Retreat this Saturday. I will also send copies of this a-mail and attachments to the Retreat for Council and Staff. I will be available via a-mail on my blackberry Saturday if Council has any questions during the retreat that are not addressed by this a-mail. As we are still awaiting attendance reports from some Boards and Commissions, the attendance report will be forwarded later this week. November/December Recruitment and Interview Meetings. Direction Needed: Should applications submitted since the lasi~ recruitment period be considered at the interview meetings and should the recruiting period be extended to cover a_certain time period before the interview meetings. In November and December 2010, the City Clerk's Office conducted a recruitment for winter Board and Commission term expirations and vacancies. This recruitment closed on December 9, 2010. However, interviews to fill the positions were postponed until Council could discuss future plans for Boards and Commissions. Given the amount of time that has passed since the application deadline and the upcoming interviews, and depending upon Council's determination with respect to the composition of the City's Boards and Commissions, Council may wish to allow applications that have been submitted since the deadline and/or permit an additional recruitment period for submission of applications to be considered for interviews. A list of applications submitted to date is attached. .~l 1 2010 Application list.doc (27 ... Structure of Interviews. Direction Needed: Should the interview process be streamline~al such that Candidates appl my g for multiple positions are interviewed on/y once durin_g the interview schedule. Council will notice that there was a great amount of interest in serving on the City's Boards and Cammissions. Accordingly, many applicants are seeking appointment to multiple positions. To streamline the interview process, Council may wish to interview applicants only once for the 2+ positions respectively applied for as opposed to interviewing each candidate separately for each position. If Council wishes to move to streamline the interview process in this regard, the City Clerk will prepare questions accordingly. For example, I would prepare an interview sheet for each candidate. The candidate's sheet would include the standard questions for each Board/Commission he or she applied for. Background on Current_Status of Boards and Commissions This material is provided for informational purposes in anticipatlion of possible discussion lines pertaining to Boards and Commissions. Current Composition of Boards and Commissions Due to the postponing of interviews, several termed out membE;rs of the City's Boards and Commissions, are continuing to serve until their replacements are selected. This procedure was established by Resolution in 2009, when Council decided that Except for in urgent circumstances, only 2 recruitment/interview meeting sets would be held per year. Commissioners in this situation are: Parking Place Commission: Barbara Irli, Personnel Board: Gloria Taoromina. Upcoming Term Expirations and Vacancies The City Clerk's Office is scheduled to run another recruitment in April/May for spring/summer term expirations and vacancies. This recruitment will cover the follo~nring positions: Conference Center Authority: 4 seats (Metz, McGuire, Ortiz & da Cunha, with Mr„ da Cunha being termed out.); Housing Authority: 1 seat (Gore); Library Board: 2 seats (Fitzpatrick & T~urnberg). Attachments Current Elected and Appointed Officials Roster (Please note: the asterisk ("'`") appearing after an official's name signifies a completed term as defined by Ordinance to include half of a full term plus one (1) day. The asterisk appears only where a term has been completed and does not include the official's present term.) ~~ 2011 C B & C :ONFID Roster upd.. 1{rista Joy Martinelli South San Francisco City Clerk City Hall P.O. Box 711. South San Francisco, CA 94083 Tel: 650-877-8518 [email protected] Status of Board and Commission Applications as of 1.26.11 Cultural Arts Commission (1 Vacancy jSilva]~ Beverly Pettinari Nakshin Shah Historic Preservation Committee (1 VacancyfKon], 1 Tenn Expiration [Acosta] Jeanette Acosta Sylvia Warnes Alexander Khalfin Nakshin Shah Housing Authority Tenant Seat (1 Vacancy~Riordan,]~ Lisa Trujillo Ricardo Garay Nakshin Shah (Inelligible to serve, does no live in housing authority) Frank Roman Parking Place Commission (1 Vacancyf Irli]~ Nakshin Shah Frank Roman Parks and Recreation Commission (1 Vacancy~Nelson], 2 Term Expirations [Gan-one & Re olds Sean Garrone Douglas Reynolds Alexander Khalfin John Rankins David Venturini Susie McFarland Juan Bustos Charles Huang Personnel Board (1 Vacanc~[Taoromina], 1 Term Expiration ~BertolozziJ) Rudy Bertolozzi Linda Parenti Nakshin Shah Juan Bustos Charles Huang Linda Loeffler Sandra Ige (Note: application submitted 1.7.11) Status of Board and Commission Applications as of 1.26.11 Planning Commission (1 Vacancy~Bernardol, 3 Tenn Expirations jGiusti, Moore, Zemke Wallace Moore Mary Giusti William Zemke Edwin Chan Nakshin Shah Carlos Martin Charles Huang Linda Loeffler Juan Bustos Susie McFarland Eugene Sim John Bermudez (Note: application submitted 12.10.10) CITY OF SOUTH SAN FRANCISCO INTEROFFICE MEMORANDUM DATE: January 24, 2011 TO: Honorable Mayor and City Council Members CC: Barry Nagel, City Manager Marty Van Duyn, Assistant City Manager FROM: Michael Lappen, Economic Development Coordinator SUBJECT: 2011 Bio International Convention in Washington DC The Bio International Convention will be held this year in Washington DC from June 27, 2011 to June 30, 2011. ECD staff generally begins to create a budget and prepare for the project at this time. 2010 Bio International Convention in Chicago Last year, the City of South San Francisco was the primary sponsor at the event. We gave Team California $20,000 to pay for the portion of the 10 x 30 Exhibit Hall booth and host the breakfast for biotech company leaders. Last year, the cost of sponsorship and sending Council members and staff to the Convention included the following: Item Expense Team California Sponsorship with Exhibit Hall Booth (10 x 30), s onsorshi si on booth, and Breakfast Forum with State ~~fficials $20,000 Team California Membershi $1,700 TOTAL SPONSORSHIP $21,700 Full Conference Passes for Council 2 0 le _ $2,350 Meals 2 staff & 2 Council members $965 Travel Ex enses 4 eo le _ $1,651 Hotel 4 eo le $3,750 _ TOTAL STAFF & COUNCIL EXPENSES _ $10 416 TOTAL _ $32,116 2011 Bio International Convention in Washington DC This year, Team California has decided to downplay the booth and emphasize the networking sessions. The California Pavilion will use a 20 x 20 booth in the Exhibit Hall. The booth will be designed to hold small meetings, which will permit participants to go to other sessions. The UC TO: Mary Van Duyn SUBJECT: 2011 Bio International Convention in Washington DC DATE: January 24, 2011 Page 2 system, CSU system and the Community College system will join the California booth in the Exhibit Hall. SSF Sponsored Biotech Breakfast Team California, SSF, BioCom, and Bay Bio are making arrangements to hold the breakfast at 101 Constitution Avenue, across from the Capitol Building. SSF would be the official sponsor of the breakfast. Invitations will go out to all industry leaders, congress members, senators, and our City Council members. SSF Staff will send out special invitations to all life science companies located in South San Francisco. Estimated Budget Based on last year's expenses, I anticipate that the budget will increase by approximately ten thousand dollars if all five Council members decide to attend the Convention. The following tables assume that the City Council will attend the Convention for three days, or from June 28 to June 30. Staff will arrive one day early (June 27) to coordinate the Breakfast Forum with Team California and stay for four days. I am listing the assumed budget in the following table: Item Ez ense Team Califomia Sponsorship with Exhibit Hall booth (2(1 x. 20 and the Breakfast Forum with Indus leaders _ $20,000 Team California Membershi _ $1,700 TOTAL SPONSORSHIP _ $21,700 Full Conference Passes 5 eo le _ $1,695 x 5 = $8,475 Meal Allowance (2 staff & 5 City Council members) _ $1,050 (City Council) $400 Staf Airfare $500 er erson 7 eo le _ $3,500 Hotel (4 night stay for staff and a 3 night stay for 5 City Council members $250 er ni t _ $5,250 (City Council) $2,000 Staf TOTAL STAFF & COUNCIL EXPENSES $20 675 TOTAL _ $42,375 Per Person Budget for City Council Participation The following table lists the individual costs for the City Council to attend the Convention, which is approximately $3,500 per person. The personal expenses budget does not include the City's participation with Team California or any of the California-sponsored events. TO: Mary Van Duyn SUBJECT: 2011 Bio International Convention in Washington DC DATE: January 24, 2011 Page 3 Item Per Person Ex ease Full Conference Pass for the Ci Council $1,69:5 er erson Meal Allowance $210 .per person (City Council) $200 er erson Staf Airfare $500 er erson Hotel $1,050 per person (City Council) $1,000 er erson Staf PER PERSON BUDGET FOR COUNCIL $3,455 PER PERSON BUDGET FOR STAFF Assumin no Full Conference ass $1,700 Page 1 of 1 Fragoso, Norma From: Fragoso, Norma Sent: Thursday, January 27, 2011 2:00 PM To: VanDuyn, Marty Cc: Adams, Joy Subject: No. Peninsula Neighborhood Services Center In the spring of 2010, staff became aware of financial and management issues regarding the agency's performance in meeting it's CDBG program obligations. These issues of concern included: late or no quarterly reports, unusually low service numbers, loss of County funding dlue to late and incomplete submittals, serious personnel and board management concerns and agency budget deficits. In June of last year, staff sent a letter to the Board President (signed by the City and the County)requesting financial documents containing information on cash flow, adopted budgets, profit and loss statements, lack of response for the property management requests, and program accomplishments. Staff also arranged for a monitoring visit of their financial records and program records for both the social services component and the House Helpers program. One of the main problems identified was the fact that the former Executives Director, who had been on maternity leave for several months, never returned to work that year. The .agency appointed a former grants writer as Interim Director of the agency, who was not qualified to manage the operations of the agency over the long term. Further issues arose from the board membership and loss of board members due to conflicts among them regarding how to manage the daily operations of the agency. Last fall it became known that the Board President had terminated a long standing staff member/office manager and that there were no staff at the agency to manage the House Helpers rehak~ilitation program. During the holidays, staff met with the Board President who informed us thiat the former Director would not return and that the agency was recruiting for a new Executive Director. Staff informed him that the property rent collection component was taken from them early last year due to late receipts and records. City staff have assumed that responsibility. This year, city staff have taken over the property management tasks completely due to lack of responsiveness. Recently, staff met new House Helpers (staff) managers from North Peninsula who indicated the program would be moving ahead. However, during the first two quarters of this fisc<31 year no reports have been received nor have any home repairs been undertaken. At least, no invoices have been received for reimbursement. Staff continues to closely monitor the agency and will keep the City Council informed as this situation moves forward. Norvna. ~rag~o~so- City of South San Francisco Redevelopment Manager 650-829-6620 1 /27/2011 yp~TK"~V~ o ~ CITY OF SOUTH SAN FRANCISCO °" y CITY ATTORNES"S OFFICE J O c'~IIFOR'~ INTEROFFICE MEMORANDUM DATE: January 29, 2011 TO: Honorable Mayor and City Council FROM: Steven T. Mattas, City Attorney By: Jason S. Rosenberg, Assistant City Attorney SUBJECT: Laws Governing Preferences in Contracting and Purchasing I. QUESTIONS PRESENTED A. Can the City of South San Francisco ("Cit,~") provide a "local preference" on city-awarded projects or purchases, and :if Aso, what action is required to allow such a preference? B. Can the City provide any preference oar assistance to Minority Business Enterprises ("MBE") and/or Women Business Enterprises ("WBE")? II. BRIEF ANSWERS A. Local preferences are permitted only in certain limited situations, provided the City can make required findings that such a preference is necessary due to business conditions in the City, supported by hard data, and if the amount of the preference is not unreasonable in lighit of those conditions. In addition, the Public Contract Code allows local agencies to provide fora "small business preference" in awarding construction, procurement or service contracts. (Pub Contract Code ~' 2002.) B. Since the passage of Proposition 209, local agencies cannot show any preference to Minority Business Enterprises ("MBE") or Women Business Enterprises ("WBE"). Cities can have outreach programs that target small businesses, provided that they do not limit their outreach strictly to MBE or WBE. To: Mayor and City Council From: Steven T. Mattas, City Attorney Re: Ciry Contracting/Purchasing Preference Regulations Date: January 29, 2011 Page: 2 of 5 III. ANALYSIS A. Local Preferences 1. Public Works Projects The City of South San Francisco has adopted the Uniform Public Construction Cost Accounting Act, which requires competitive bidding (without any local preference consideration) for contracts awarded for "public projects" where the value of the work to be performed is more than thirty thousand dollars ($3CI,000). (Pub Contract Code X032.) "Public projects" are projects for (1) the "erection, improvement, painting or repair of public buildings and public works"; (2) work in streams, stream embankment, or for protection against overflow; (3) street or sewer work except maintenance or repair; and (4) furnishing supplies or materials for any such project (including supplies or materials for maintenance or repair of streets or sewers). (Pub Contract Code 2~' O1 X61.) While there is no explicit statutory provision that allows for local preferences for "public projects," there is a statutory provision that allows fora "small business preference." (Pub Contract Code .~' 2002.) The statutory provision that allows for a small business preference allows a local agency to provide for a preference to a small business of up to 5 percent of the bid submitted by lowest responsible bidder. (Pub Contract Code ,~ 2002(a)(1).) The local agency can also require bidders to make a "good faith effort" to meet a small business subcontracting goal. There is no special "finding" requirement for a small business preference. Also, the local agency (here, the Ciry) can define the term "small business" as it is applied to the preference for public projects. However, there is also no geographical (i.e., "local") preference for this small business allowance. Therefore, any business that meets the City's defined "small business" criteria, regardless of location, would be entitled to that preference. 2 Contracts for Service, Supplies and/Qr Edizi ment Government Code ~ 54202 provides for the purchase of supplies and equipment by local agencies, and it does not contain competitive bidding requirements. Instead, it says: Every local agency shall adopt policies and procedures, including bidding regulations, governing purchases of supplies and equipment by the local agency. Purchase of supplies and equipment by the local agency shall be in accordance with said duly adopted policies and in accordance with all provisions of law governing same. No policy, procedure, or regulation shall be adopted which is inconsistent or in conflict with statute. (Government Code ~'S4202) The City has adopted a purchasing ordinance in compliance with Government Code ~ 54202. The purchase of supplies and equipment, not including supplies or materials for a public works project, are subject to the City's purchasing ordinance chapter (South San Francisco Municipal Code Chapter 4.04, hereinafter, the "Purchasing Chapter"). To: Mayor and Ciry Council From: Steven T. Mattas, City Attorney Re: Ciry Contracting/Purchasing Preference Regulations Date: January 29, 2011 Page: 3 of 5 State law does not contain any statutory prohibitions against establishing a "local vendor preference" in the context of a local ordinance. However, a local agency must be able to justify the local preference ordinance based on appropriate findings regarding the conditions and effects of the local market. The Ninth Circuit Court of Appeals examined a local preference in Associated General Contractors of California, Inc: v. City and County of San Francisco (9th Cir. 1987) 813 F.2d 922 ("Associated General Contractors"). There, the San Francisco Board of Supervisors adopted an ordinance providing a preference for local businesses bidding on contracts, up to 5% of the lowesr_ bidder. San Francisco made express findings that local businesses were at a competitive disadvantage due to higher administrative costs associated with doing business in San Francisco (e.g. higher taxes, higher rents, higher wages and benefits for labor, higher insurance rates, etc.)., and that the public interest would be served by financial incentives for businesses to relocate to the City. The Court upheld the "local preference" ordinance, noting that it was an "appropriate and measured" response to the problems it sought to address. The Court also noted that any business entity could take advantage of the preference (which was a 5% bid preference) by establishing an office in San Francisco and paying permit and license fees. Based on the holding of Associated General Contractors, the City could institute a local vendor preference for the purchase of "products or services" of up to five percent, by amending the Purchasing Chapter. However, such an ordinance would be permitted only if the City can legitimately demonstrate that local firms are disadvantaged because doing business within the City limits is more expensive than doing business outside of the Ciry. additionally, should the City seek to institute a local preference, the policy should clearly state that the policy does not apply to any projects using 1:ederal funds, as federal grant funds prohibit local hiring preferences. (see eg. 44 C.F.R. ~ 13.36 (FEMA funds); 23 C.F.R. ~ 635.117(b) (FHWa funds). alternatively, as mentioned above, the City could institute a small business hiring preference in contracts for good or services patterned after Public Contract Code section 2002. However, it is important to keep in mind that any small business preference policy must also take into account projects utilizing federal funds, and provide language that indicates that the policy does not apply when prohibited by federal regulations. B. WBE/MBE Preferences in Hiring In November 1996, California voters approved P.ro~position 209, adding Section 31 of Article I of the California Constitution ("Proposition 209"). Proposition 209 prohibits state and local government agencies from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, and public contracting. Pursuant to state law, "preferential treatment" includes, at a minimum, programs or policies that use racial classification. To: Mayor and City Council From: Steven T. Mattas, City Attorney Re: City Contracting/Purchasing Preference Regulations Date: January 29, 2011 Page: 4 of 5 Additionally, on November 30, 2000, the California Supreme Court invalidated the City of San Jose's MBE and WBE program because of the preferential treatment the program afforded to minority- and women-owned business. The court reasoned that preferential treatment based on race, sex, color, ethnicity and national origin violated Proposition 209. (IIi-Voltage I-Ylire lYlork.r Inc. v. City o, f San ~'o.re (2000) 24 Ca1.App.4th 537.) However, under state law, there are few exceptions to this prohibition. For instance, there are exceptions that apply to funds received from the federal government. Proposition 209 does not prohibit policies necessary to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of i:ederal funds to the state or local agency. The various exceptions would depend on the source of the federal funds and its respective eligibility requirements and regulations. Additionally, the California Legislature passed post-Proposition 209 legislation that allows for focused outreach to minority groups and. women under limited and specific circumstances, and only within the greater ambit of a general recruitment and outreach program to the general public. California Government Code Section 11139.6 allows inclusive public sector outreach and recruitment programs to involve, within the scope of that general outreach and recruitment, focused outreach and recruitment of minority groups and women, so long as women or minority groups are underrepresented in entry level positions of the public agency employer. Underrepresentation is determined by comparing the minority group or the number of women at the governmental agency with that group's representation in the current civilian labor force in the jurisdiction of the governmental agency. Thus, if a public agency in California has evidence that women or minority groups are underrepresented in entry level positions, then such agencies may include focused outreach and recruitment to those groups only if such recruitment is part of the agency's general recruitment and outreach program. Pursuant to Government Code Section 11139.6 and 11139.7, the City may, in contracting and procuring goods, services, information, technology, construction architecture, and engineering consulting, and other consulting services, engage in focused outreach activities, in addition to general outreach, for purposes of increasing participation by California's small business sector and increasing diversity in the state's contracting and procurement activities. The permitted outreach activities may include the following: 1. Invitations to bid distributed to state a:nd local small business and trade associations and chambers of commerce, including ethnic chambers of commerce, and other business and professional associations, including professional minority, women, and disabled veteran-owned business and professional groups and associations, as appropriate; 2. Publication of advertising concerning state and local contracting and procurement opportunities in trade papers and other publications focusing on small business enterprises, including publications and newspapers in languages other than English and those whose primary readership is minority, women, or disabled veteran-owned businesses; and To: Mayor and Ciry Council From: Steven T. Mattas, City Attorney Re: City Contracting/Purchasing Preference Regulations Date: January 29, 2011 Page: 5 of 5 3. Outreach by small business advocates to state and local small business and trade associations and chambers of commerce, including ethnic chambers of commerce, and other business and professional associations, including professional minority, women, and disabled veteran-owned business and professional groups and associations, as appropriate. The City could not, however, engage in a recruitment and outreach program which is limited solely to women or minority groups that are underrepresented in entry level positions at the City. Such a program would be in violation of Proposition. 209 and Section 11139.6. Thus, based on Proposition 209 and subsequent case law, the City cannot provide any preferential treatment to MBE or WBE. Although Proposition 209 prohibits affirmative action by public entities, "this prohibition does not prevent governmental agencies from engaging in inclusive public sector outreach and recruitment programs" as a part of general recruitment, including "focused outreach and recn~itmemt of minority groups and women if any group is underrepresented in entry level positions of a public sector employer." See Cal. Govt. Code Section 11139.6. o ~ CITY OF SOUTI~ SAN FRANCISCO H '" y CITY ATTORfiTE~'S OFFICE v o c'~IIFOR'~1~ INTEROFFICE MEMORANDUM DATE: January 29, 2011 TO: Honorable Mayor and Ciry Council FROM: Steven T. Mattas, City Attorney By: Jason S. Rosenberg, Assistant City Attorney SUBJECT: Laws Governing Receipt of Food by Public: Officials I. QUESTION PRESENTED Are there any restrictions regarding public officials receiving free meals at meetings and what are the disclosure requirements? II. BRIEF ANSWER There are no explicit prohibitions against public officials receiving free meals at meetings, however the Fair Political Practices Commission regulations governing gifts would apply. III. ANALYSIS The receipt of meals by public officials at meetings should be analyzed as a Fair Political Practices Commission ("FPPC") gift issue. The overarching restriction on gifts to public officials applies here: public officials may not accept gifts from any single source totaling more than four hundred and twenty dollars ($420) during calendar year 2011 or calendar year 2012. (FPPC Reg. ~ 18940.2) Additionally, public officials must report any gift worth more than fifty dollars ($50) in value. (Cal. Gov. Code ~ 87207.) A "gift" includes any payment or other benefit conferring a personal benefit for which the public official does not provide goods or services of equal oar greater value. 'This may. include receipt of food by a public official. A. Nominal Gifts of Food Gifts of a "nominal value" are not considered a gift and therefore do not need to be reported. The FPPC does not provide a specific definition of what would constitute a gift of nominal value. Thus, the dictionary definition of nominal, minimal, would apply. Accordingly, a meal provided to a public official that cost between ten and fifteen dollars ($10-$15) could reasonably be considered of minimal ~~Talue, and thus nominal. A meal provided within this range would therefore not constitute a gift and would not have to be To: Mayor and City Council From: Steven T. Mattas, Cit3~ Attorney Re: Laws Governing Receipt of Food by Public Officials Date: January 29, 2011 Page: 2 of 4 reported. However, if non-nominal meals provided to a public official within a calendar year totaled more than fifty dollars ($50) in value, disclosing the receipt of those meals as a gift on the Form 700 is recommended. B. Gifts of Food that are not Nominal Non-nominal gifts of food are not treated as a gift when the gifts area "lawful expenditure" from that public official's own agency. FPPC regulation section 18944.3 states, "a payment by a government agency from that agency's assets that provides food, beverage, entertainment, goods, or services of more than a nominal value to an official in that agency is a gift to that official unless the payment is a lawful expenditure of public moneys." (FPPC Reg. ~ 18944.3.) Our office sought guidance from the FPPC Advice Line regarding the definition of a "lawful expenditure," however the FPPC was not able to provide a definite answer. The FPPC instead directed us to obtain the California Attorney General's definition of "permissible use of public money," and that would define a "lawful expenditure." We have been unable to identify what the Attorney General identifies as a permissible use of public money. Given the lack of clarity regarding a lawful expenditure, a reasonable interpretation would be whether funds to provide meals for public officials have been appropriated by that public agency. Thus, according to section 18944.3, if a public agency provides food to its own public officials using agency funds that were properly allocated, that value of the food provided, even if more than a minimal amount, would likely not be considered a gift. We recommend that we confirm phis conclusion with the Attorney General's office before anyone relies on this definition as a basis for not disclosing the value of the meal. IV. CONCLUSION Based on the review of these regulations, the Cite Council has two options: 1) if the Council desires, it could request that this office seek clarification from the Attorney General's office as to what specifically constitutes a "lawful expenditure;" or 2) not rely on the lawful expenditure regulation and disclose any non-nominal gifts (meals, or otherwise) that total more than fifty dollars ($50). The referenced regulations have been attached to this memorandum. To: Mayor and City Council From: Steven T. Mattas, City Attorney Re: Laws Governing Receipt of Food by Public Officials Date: January 29, 2011 Page: 3 of 4 FPPC Regulation ~ 18940.2. Gift Limit Amount. (a) For purposes of Section 89503, the adjusted annual lrift limitation amount in effect for the period January 1, 2011, to December 31, 2012, is $420. (b) The gift limitation of $250 in Section 89503 shall be adjusted biennially by the Commission to reflect changes in the Consumer Price Index and rounded to the nearest $10. The resulting figure shall be the adjusted gift limitation i.n effect until January 1 of the next odd-numbered year. (c) The adjustment shall be based upon the September forecast of U.S. Bureau of Labor Statisrics California Consumer Price Index for All Urban Consumers for the calendar year immediately preceding the year in which the adjustment is to take effect. (d) The adjusted gift limitation amount shall be calculated by the Commission as follows: (1) The base dollar amount of $250 shall be increased or clecreased by the cumulative percentage change in the annual average California Consumer Price Index from 1990 to the end of the calendar year immediately preceding the year ire which the adjustment will take effect. (2) The dollar amount obtained by application of the calculation set forth in subdivision (b) shall be rounded to the nearest $10. FPPC Regulation ~ 18944.3. Gifts from a Government Agency to Officials in That Agency. Except as provided in Regulation 18944.1 and 18944.2, a payment by a government agency from that agency's assets that provides food, beverage, entertainment, goods, or services of more than a nominal value to an official in that agency is a gift to that official unless the payment is a lawful expenditure of public moneys. To: Mayor and Ciry Council From: Steven T. Mattas, City Attorney Re: Laws Governing Receipt of Food by Public Officials Date: January 29, 2011 Page: 4 of 4 Cal. Gov Code ~ 87207. Income; statement; contents. (a) When income is required to be reported under this article, the statement shall contain, except as provided in subdivision (b): (1) The name and address of each source of income aggregating five hundred dollars ($500) or more in value, or fifty dollars ($50) or more in value if the income was a gift, and a general description of the business activity, if any, of each source. (2) A statement whether the aggregate value of income from each source, or in the case of a loan, the highest amount owed to each source, was at least five hundred dollars ($500) but did not exceed one thousand dollars ($1,000), whether it v~~as in excess of one thousand dollars ($ 1,000) but was not greater than ten thousand dollars ($10,000), whether it was greater than ten thousand dollars ($10,000) but not greater than one hundred thousand dollars ($100,000), or whether it was greater than one hundred thousand dollars ($100,000). (3) A description of the consideration, if any, for which the income was received. (4) In the case of a gift, the amount and the date on which the gift was received. (5) In the case of a loan, the annual interest rate, the security, if any, given for the loan, and the term of the loan. (b) When the filer's pro rata share of income to a business entity, including income to a sole proprietorship, is required to be reported under this article, the statement shall contain: (1) The name, address, and a general description of the business activity of the business entity. (2) The name of every person from whom the business entity received payments if the filer's pro rata share of gross receipts from that person was equal to or greater than ten thousand dollars ($10,000) during a calendar year. (c) When a payment, including an advance or reimburserrient, for travel is required to be reported pursuant to this section, it may be reported on a separate travel reimbursement schedule which shall be included in the filer's statement: of economic interest. A filer who chooses not to use the travel schedule shall disclose payments for travel as a gift, unless it is clear from all surrounding circumstances that the services provided were equal to or greater in value than the payments for the travel, in which case tree travel may be reported as income. 1580191.3