City Attorney Responds to Miesen Appointment Conflict Editorial
While I appreciate your, and some others’, uneasiness with the City Council’s recent appointment of Steve Miesen to its ranks, I disagree with your “legal analysis” that Mr. Miesen’s position with Republic Waste legally disqualifies him from serving on the Council. (Editorial: “It is not a question of if… It IS a conflict of interest!” published February 13, 2015)
Prior to Mr. Miesen’s appointment, my office analyzed both Government Code Section 1090 (regarding prohibited financial interests in contracts), and 1099 (regarding incompatible offices) as applied to Mr. Miesen. In neither case was a disqualifying, legal conflict of interest found to exist.
With respect to Government Code Section 1090, we reached this conclusion because the prohibitions of 1090 do not apply to the existing contract the City has with Republic; they apply only to contracts or contract amendments that the City might consider entering into with Republic in the future. Such a contract is not expected to arise during Mr. Miesen’s two-year term; if one does, we will look at this issue again. Even then, its likely Mr. Miesen’s position with Republic would be treated as what Code Section 1091 defines as a “remote interest.” Because of this, while we would certainly advise Mr. Miesen that he should recuse himself from any such action, the City itself would not be prohibited from taking such action; nor would Mr. Miesen be required to resign.
We reached a similar conclusion under the rules governing “incompatible offices.” The key factor here is that incompatibility rules expressly apply only to “public offices.” Looking at the Attorney General opinions and cases that interpret these rules, it is our strong belief that Mr. Miesen’s position with Republic does not constitute a “public office;” rather it is properly characterized as “employment” with a private company. Given the significance of the City contract with Republic, one could certainly have reservations about Mr. Miesen having divided or conflicting loyalties. However, that is not the same thing as Mr. Miesen being legally prohibited from service on the Council.
Going forward, we fully expect that conflicts for Mr. Miesen could arise on matters before the Council stemming from his position with Republic. Some of these issues will be fairly easy to identify and address—of the kind any one of the Councilmember might have from time to time. Others may be more novel and complex. (This complexity was increased by the FPPC’s recent adoption of new conflict of interest regulations.) Regarding major land use decisions that may add a significant number of new Chula Vista residents—and new Republic customers—for example, we are likely to seek guidance from the FPPC to clarify when Mr. Miesen can and cannot participate. Identifying and handling these possible conflicts properly will take the combined vigilance and effort of Mr. Miesen, City staff, and my office. If this results in an excessive number of conflicts, we will further consult with Mr. Miesen about his options. We will also fully cooperate with any interest the Attorney General might have in reviewing our 1090 and 1099 analysis. In the interim, as for my office’s part, we will continue to provide the vigilance and effort necessary to support what we believe to be the Council’s legal decision to appoint Mr. Miesen.
Glen R. Googins, City Attorney
City of Chula Vista
Editor’s Response:
Part of the confusion may be in the interpretation of the editorial. You are right, it was not a legal analysis, and no one should have confused this as a “legal analysis”. The editorial was a political analysis of the appointment and the issues that arose from this appointment.
We did not take issue with the 1090 analysis provided by your office, only in the fact that this was the only area where discussion took place about a possibility of a conflict. In our video review of the council meeting at the time of the appointment we did not see any discussion at all on the Government Code Section 1099 (regarding incompatible offices). It was also noted that during the appointment process at no time did Miesen volunteer to relinquish his stock options nor was it addressed, it was only after the questions about his appointment arose that it became prudent for him to take action.
Our contention, after reviewing the 130 plus pages of the California Attorney General’s Conflict of Interest Publication 2010, was that there were several areas that presented conflict of interest issues for Steven Miesen. We only mentioned a couple of what appeared to be the more obvious conflict issues and we left out several others for the sake of space. It was in these areas of conflict of issue possibilities that should have been brought up for discussion and analysis, at the Jan 13, 2015 city council meeting, if not prior to, for an open, public discussion and a thorough vetting process. This did not occur and that is where the problem/issue lays. The residents of Chula Vista are entitled to this vetting process so that they receive the best representation due to them.
As to your belief that Republic Services is a private company and that Steve Miesen is just an employee of a private company, which I disputed in the editorial, this was based on the fact that Republic Services themselves, on their web site, describes their relationship with local governments as a PUBLIC/Private Partnership. They do not describe themselves as a private enterprise. As a PUBLIC/Private enterprise herein lies the problem with Miesen. He is not just any employee but the director of this PUBLIC/Private enterprise who is making key decisions daily on the best direction for his company to realize the greatest profit for the PRIVATE side of the business.
Based on the information provided by Republic Services and Chula Vista government code 8.24, you cannot describe Republic Services solely as a private enterprise. I assume that if Republic Services was to be described as solely a private enterprise the assumption would be that this would change the dynamics of the contract with the City of Chula Vista.
For clarity on this issue and other issues based on the political questions surrounding this appointment I would consider it prudent to ask the State Attorney General to look into the appointment and provide their legal opinion on this appointment.
Daniel Munoz
Editor