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What’s Known, What’s Unknown About Council Conflicts of Interest and Downtown Redevelopment

The one Councilmember we know can’t — and doesn’t — participate in decisions about downtown is Mayor Lisa Gillmor. Her office is there and she owns several properties in the Franklin Mall.

But it’s unknown if District 5 City Council candidate Suds Jain will, as a Councilmember, have to recuse himself from discussion about the Downtown plan because his home is within 1,000 feet of the conceptual downtown redevelopment.

That hasn’t stopped Gillmor partisans from saying with certainty that Jain will have to recuse himself — no doubt trying to divert public attention from substantive issues in the election like the budget deficit, police reform and the hopeless appeal of an avoidable voting rights lawsuit that will cost the City over $4 million.

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The fact is that the FPPC doesn’t answer hypothetical questions. So until Jain is elected to the City Council and the question is brought to the FPPC to consider under current rules — approved in September — nobody knows.

At its Sept. 17 meeting, the California Fair Political Practices Commission (FPPC) adopted changes to California ethics rules concerning officials’ primary residences as potential conflicts of interest — i.e. material interests in the outcome of decisions.

Previously, a decision had to affect at least 25 percent of the public in the jurisdiction before officials didn’t have to recuse themselves from the discussion and legislative action. The new rules reduce that number to 15 percent of the public.

That led to a situation where, “Officials are elected to represent the interests of their neighborhood and neighbors and a narrow application of the public generally exception may unnecessarily prohibit officials from serving the interests of their constituents,” according to the Sept. 17 FPPC agenda report.

In August, the City requested FPPC advice about Jain’s ability, as a Planning Commissioner, to discuss the Downtown Specific Plan because he lives within 1,000 feet  (920 feet) of the planning area and Jain’s ability to participate in legislation as a City Councilmember.

The answer to the first question was that Jain did have a “material interest.” The answer to the second was, “We must decline to answer hypothetical questions… Should Commissioner Jain be elected to the City Council he should seek further advice at that time.”

FPPC General Counsel Dave Bainbridge continued, “Please note that we are only providing advice under the conflict of interest provisions [as of Aug. 26] of the Act…

Also note that we are not a finder of fact … any advice we provide assumes your facts are complete and accurate. If this is not the case or if the facts underlying these decisions should change, you should contact us for additional advice.”

In other words, if the project boundaries change, if the law changes, if the facts presented by the city aren’t correct — any of these things could change the picture.

The changes will allow both Councilmembers Raj Chahal and Karen Hardy to participate in decisions about the El Camino specific plan and development projects there.

They won’t change Gillmor’s need to recuse herself from decisions about the El Camino Real area plan because of business interests with at least one property owner with a project under construction, John Vidovich, owner of De Anza Builders.

The new rules have no bearing on District 6 candidate Robert Mezzetti’s possible conflict of interest with respect to Republic Metropolitan’s project on VTA land near Santa Clara University. Mezzetti has been a registered lobbyist for Republic Metropolitan since 2017.

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