6:30 a.m., Dec. 11
California's ethics watchdog takes another bite at San Diego conflict ruling
Advice letters fly regarding one-time consultant to lobbyist for controversial Jamul Indian casino
As reported here last June, marketing and economic consultant Michael Casinelli, then-chairman of the county's Jamul Dulzura community planning group, had a good customer in the form of MJE Marketing Services, the big downtown lobbying and public affairs outfit.
MJE has played lucrative roles in two of the city's biggest recent controversies, the now-defunct Irwin Jacobs-sponsored Plaza de Panama project and the aborted effort by Republican hotel magnates to force Democratic mayor Bob Filner to ratify a funding deal negotiated by ex-mayor Jerry Sanders, a major beneficiary of the hotel lobby's political money.
Another MJE client is the Jamul Indian Village, which is pushing hard to build a controversial casino complex in the back country.
Last year, Casinelli wrote the state's Fair Political Practices Commission asking for advice on whether his previous and anticipated future work for MJE might present a conflict of interest for him if the Jamul casino matter came before the planning committee.
In a May 15, 2012 letter to Casinelli, commission general counsel Zackery P. Morazzini said no:
The Planning Group does not make final governmental decisions and cannot compel or prevent a governmental decision."
In addition, because the committee does not make recommendations directly to the decision maker, the board of supervisors, there is no history of verbatim approval of the Planning Group’s recommendations without significant amendment or modification by another public official or governmental agency.
Consequently, members of the Planning Group are not members of a decision making board or commission, and, therefore are not 'public officials' within the meaning of Section 87100, and are not subject to the Act's conflict-of-interest provisions.
But that turned out not to be the FPPC's final opinion.
Morazzini has issued another letter, dated February 8 of this year and addressed to Paul J. Mehnert, senior deputy San Diego county counsel, in which Morazzini reconsidered his previous advice:
In May 2012 we responded to a request for advice from Michael Cassinelli (sic), a member of the Jamul/Dulzura Community Planning Group by saying that members of that planning group are not public officials.
After receiving your request, we rescinded that letter in order to provide more comprehensive assistance. You have asked us to clarify our advice on the question of whether members of the Planning Groups are public officials.
The determination, according to the latest opinion, ultimately depends on whether the county has been "rubber stamping" the planning group's votes, and that would take further investigation.
...if there is a history or track record of the decision-maker “rubber stamping” an advisory body’s recommendations, the advisory body will be considered to have decision-making authority.
This test, even more than the others, is fact dependent. We must leave this ultimate decision on whether this test applies to you as code reviewing body based on the facts you have before you. However, we can offer some general guidance:
Determining whether a planning group’s recommendations have been regularly approved without significant amendment or modification over an extended period of time requires examining a planning group’s history. Each planning group has its own history, and, therefore, a determination must be made for each individual planning group.
This necessarily requires reviewing the minutes of meetings of both the planning group and the board of supervisors. As the code reviewing body, the board of supervisors is tasked with determining whether individual positions should be included in a conflict-of-interest code.
This includes a factual determination of whether planning group recommendations are regularly approved without significant amendment or modification.
So, where does all that leave Casinelli, MJE, and the casino?
Reached by phone this morning, Casinelli said that after he received the FPPC's first letter clearing him to vote, he got another from the agency telling him that it was reconsidering its initial advice.
The marketing consultant said he hadn't known of the agency's latest February 8 opinion letter to county counsel regarding the matter.
Casinelli, who still serves on the planning committee, added that in any event the issue was moot in his case because he no longer accepts work from MJE to avoid what he described as any possible "appearance of a conflict."
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