NIONS [VOLm.a! 58

MAY 197:))

fj.S. ~~;arin~;~:

A11'ORNEY GENEllAL'S OPINIONS

case must be reported by the

sed the condition, or by both

ithout qualification that "[a]ll

the name, date of bitch, and

'cler characterized by lapses of

iyed by the legislature, it is of

:d by a sratute is the prime

t v. County of Cala~e,aI, 29

mination of sec tion 410 that

ds caused by persons having

1indful that the function of

~purpose of th(; law (Sele<;t

l Cal. 2d 640, (;45 (1959»),

blic safety gathered from the

:aL App. 2d Supp. 905, 909

e term "physician" in stating

rely report .. :' is indicative

; of the section by establishadmleistrative ageocy having

ive on the Stare's highways,

elng the grant of the driving

lese circumstances, it :would

. the physician upon whom

nsbly and practically sought

Id be reported in faa, by'

the terms of section 410 (1)

:dundant reports of the same

sonableaess of a regulatory

tred to the legislature; and

e and me objett thereof is

and safety, the legislative

116 Cal. App. 2d 807,810

reasonable resu lt consisrenr

:aJ. Pacific Collectiom, Inc.

ito conclude that when the

zner is nonetheless requlred

consciousness under section

)hysicia.n is not ified of the

: patient to the local health

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In summary. therefore, it is concluded that the responsibility to report cases of

disorders characeerieed by lapses of consciousness is the individual responsibility

of both the diagnosing and the treating physician.

Opinion No. CV 74·317-May 30,1975

SUBJECT: SANTA MONICA AIRPORT-USES-COMMISSION-Considering

its numerous contractual IIrid lease obligations, Santa Monica may not cease

using Municipal ,AiJ:port for airport purposes. Conflict of interest arises when

members of Airport Commission participate in proceedings to determine

charges for tie-down spaces where they are lessees of such spaces.

'Z',,;'BequeSted bY:.ASS~LX~,44thl)ISTIhcr

"......... ,·c;,~;i'~~~Yi~.;~~r~flj.i .

.•~.Opinionby:.· EVELLEJ~:;¥.£?.tm'f~

',.'!'i•...

Daniel Weston,Deputy

The Honorable Alan Sieroey, Assemblyman from the Forry-Fourth District,

has requested an opinion On the questions which may be stated as follows:

1. May the City of Sanra Monica, at the present time, cease using the Santa

Monica Ml.1nicipal Ail:pol:t for airport purposes?

2. Would 'rtconfiki'of lineere$[ $.rise' where members of the Santa Monica.

Airport Commissio~'parrictPQte':int.i~~issIoii~proceedings for the purpose of

making reco.mmendations to tl~eSanHi'Monic{ City Council concerning charges to

be levied for aircraft tie-down spaces at the Sant;l.Monica Municipal Airport where

such members are lessees of such tie-down ~paces at s-uch airport?

•

The conclusions a.re;

1. The City of Santa Monica, at the present time, may not cease using the

Santa Monica Municipal Airpor.tfor alrpcrrpurposes. -

2. ,Aconflict ofInrerese does arise where ~~mbers of the Santa Monica Aitport

Commission particiPate in CommiSsion' ptoceedWgsfor the purpose of making

recommendarions to theSanta'Monica'CitY'Councilconcerning charges to be levied

ior aircraft tie-down spaces at the Santa Monica Municipal Airporr where such

members llre lessees of such tie-down spaces llt such airporr,

The conflict of interest m$.Y be avoided by the affected member by immediately

disclosing the interest, withdrawing from participation in the matter, refraining

from ".9ting, refr~ing frotnllttempring to inB.uBnce other members, and having

all of these mseeers reflected in.·the minutes. ...

_rd' • ir'qL;:;/lon5",·;~Iclln_L.i.'

""ANAYS!S.,>".

1. May the City of Saa'~Monia:'at'rh~~pre;e;;ttime, cease using the Santa

Monica Municipal ,Airport for airport purposes?
A'rTORNEY GENERAL'S OPINIONS [VOLUME 58

The Santa Monica Municipal Airport,l is owned by the City of Santa Manka. 2

The initial property 'Was acquired pursuant to a bond measure approved On Apcil

14,1926, with the bond monies ro be used for public park purposes.!

In 1927, the Stare Legislaeure enacted the following provision into law:4

"Any lands previously acquired by , . , any municipal corporaelon

. , , for park purposes, may be used for any of the purposes in this

section specified [airport operation); it being hereby specifically declared

that the purpose specified in this section shall constitute park purposes,">

The property initially acquired consisted of approximately 128 acres lind

included Clover Field, a then 0PeL'llt1og air neld. The City, since the original acquislsidon, has purchased outright, additional lands and the Airport presently consists of

approximately 215 acres. .. .

Almost from the inception, and continuiag to the present time, the City has

eneered into numerous contracts, !eliSe'Sand licenses affecting the use of the Airport.

It is abundantly clear that the City had such authority to obligate itself. Section

50474 of the Government Code? subdivisions (c) and (h) provide that in COnnection with the erection or maintenance of an airport, a local' agency may "Lease

01: assign for operation any space and any necessary or useful appurtenances, appliances, or Ott!!r conveniences," and may "Enter iaeo Contracts or Otherwise cooperate

wirh the Federal Government 01: other public or private agencies,"

Section 50475 provides;

"A Iocalagency operating or maintaining $.D. airport may grant leases,

licenSes, concessions,and other privileges, regarding aviation facilities to

the state or the United Scares, fo.r the use or occupation of hangars, structures, works, or other aviation facilities 'by the' Department of Defense,

National Guard, or other state or federal departments or agencies in connection with avjation or air commerce."

1Hereinafter referred to as the Airport.

2 Hereiouter somccimes referred TO as City.

~The people oESal1ta MOlliQL,00 April 14, lSi26,'adopted [he following proposition:

._.."Shall the CiqqJ, S1Ulta MoniclL incur a beDded indebtedness oE $860.000

for the acquisition, eonstrucdon and ' completion oi-« certain municiplll Jmprovem¢OT, to wit: ml: acqliliitioD of lands in the:City oESanta. MOllica., California,

beio8 & par[ of thllt certala ~Ct of land c;ommonly koOWllas Qoverfield for

public; parle purposes, lind the improvement thereof by the acquisition or COI15UUCtiOD thereill of illl lUc;h buildings; stnlaures and improvemenu as may be

necessary or conveuiecr for putpoSe of a public pa.dc?" '

4 Stats. 1927, Chap. 267, effective July 29, 1927.

IS Cases in other jurisdictions have held that airport 'We is a type of plU'k usc, lrrespeeti"e

of stll[\Itory ddinltions. ODe such we was S~hmolJI v. 01ldh01n4 City, 144 Okla. 208

(1930). In the SchmolJI cue, [he court considered "whether or 'not an aviation llirporr,

wirh IlU n.ecC&slUY.and lropet' equipment •.. may be paid for Oltt of funds derived from

the sale of bonds issue and sold for the purpose of public; park improvement.... The court

dedded: "If a dlT may use a portion of sud! fund:! (deFived from the sale of bonds voted

to purchase orlI)a,j/ltaio, a park) for buildles $jdewaIb arouod.:Walks and driveways through

a pll.tk for the lImuscmeDc OJ:the public; WI!see'no good tWoll'[or 1101dJn8the dty canner

expend a put of its funds iQ fll&intaining an ilitpon... :'

ClAll references are to the Goveroment Code u~s otherwise stated,

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;:\;kA'i 1975J ATrO:R.Nlrr GENERAL'S OPINIONS 347

\?:'.': .. Section 50478 provides:

..}/::~~ "A local. agency may lease or sublease p.openy owned, leased, or

.,:,.:. otherwise controlled by it for not to exceed 50 years f~r airport purposes

;':::,' ::i .or purposes incidental to alrcrafr, including:

;}::':.'. (:" •.(a) Manufacture of aircraft, airplane engines, and aircraft equiph;';,'?:· menr, parts, and accessorles,

Kr~'.·.;·~ "(b) Construction and maintenance of hangars, moodag masrs,

.' .. ' . flying fields, signal lights, radio equipment, service shops, conveniences,

appliances, works, structures, and other air navigation, aircraft, and airplane engine manufacturing plants and facilities."

It is dear that a municipality may enforce its airport contracts, City and County

~/':ofSan Francisc/) v. Western Au' U'nes, Inc; 204 Cal. App. 2d 105 (1962); and that

:'::;:contractSate enforceable against the municipality. Trans World Airlines Y. City and

!<:'¢~~1Jtyof San Pf,mcisco, :228 f.2d 473 (1955), cert, den. 351 U.S. 919 (956).

!;:,:':ijri this case, the City and Count)' of San Francisco, in 1942, entered into a long term ~II •••: •••

•<COntract for :20 years with ~, A with the payment charges fixed by the agree-

.t·iti~nr. In 1950, the Board of Supervisors attempted by resolution to raise the fees :!3q be p~d by TWA. The Coun held tbat the City and County of San Francisco had

. ':J;;Ql1nditself as to its rates and charges by entering into a valid contrscr expressly

~J:~i:lrhorUedby state law, and .tbatduiing the term of such contracr, it could not

::·~iiclia.terallychange the terms thereof. (See Berkeley lAwn Bowling Club v. City of

.:~:$er~ele1,42 Cal. App. 3d 280 (974).)

fi~<:~::Note is further made of the legislative intent that these municipal airport

~'::~i)p~racrsarc:to be observed, Sections 37440 through 37444 provide generally that a

.(-)~~cipally owned airport, which is restricted to use for airPOrt purposes, may,

(.'~iinder certain conditions;bc sold.Seaion 37443 expressly provides that such sale

'?>;~:'shallbe made-subject to any duty pr obligation imposed by law or contract upon

)?tlie cit;' with respect to suchproperty:~rJ1t;L .'

".h·oll~.,' I

~;":/.:;.;.'We'now rurn to a consideration of thenumerow contracts which have been

t)~tered into by the City' respeedngthe use of the Airport and its property. No

·K.:~rful pmpose would be served by considering in detail each of these agreements

;:;:~!~CCa. consideration of some of them. will amply demonstrate the degree to

\.,,:w.~ichthe Oty bas contraCted ~way itS rights to deal freely with the Airport

.<~f~P~ty lW,dj~~.,\J.~~~~~_a;{por~ ,J~e~e.l1gr~t:m~tpDJlybe subsumed. under 5

. {)~E;lleral c:lassificui0J:l~iFed~rlll prant Agreements, Federel Lease Agreements, Fed-

::.:'..~alTransfer Agreement, State, Grant AgreemcDtS~ ~d Prlvate Lease Agreements.s

".,' If' , ,."-J •.!.,, '_.'.1"_""'4.L. _. L.'_"-.'_.~ > \. _-...

..,' ". "e.": •..

i.".!~'. 7 In the event of a sale of·an airport 'pursua.nt to ,these sectloes, the airport must '\;::'§.;~~4a~to be used for "jrport pUl'J?OSc:sfOInOt less than 10 years from the date of sale,

::('

{.:;:.~':'" S The Offir;e of the City Atmeney of Santa MoniC*. has 1;'Iovldecl.us with copies of

~:""iJ:Y.ny of the OU~'~fldjl'l8privare leases as well as a compreheoslve chronolcgical history of

~::.:.~,ventsaffer;tifl,8 the Airporr. the Federal Aviation Ad.ininisu~ioo bas provided us with

~'i(~CWiesof 27 documeaes in"lolving agreements with the Federal Gcverrimece, The State

V.:'PC~tmc:n~ of ACIonautics has pro ..••ided us with copies of 12 grant I\sreemenu made pursuant

"}~:J~e_CaIi(ornilj, .Airpw·t_Ass)~tlnCl".~l)nd$, (§§ 21680-21688, Public Utilides Code.) '~~:F . '.' . -

,·~t·:
~vvo

348 An'ORNEY GE.NERAL'S OPINIONS {VOLUME 58

In 1941, the Oty of Santa Monica and the Federal Government entered inro

lease No. W-04-193·ENG.4894, modified by supplemental agreements number 1,

dated July 23, 1945, and number 2, dated July 15, 1946. The City and the Federal

Government also entered into Lease No. W3460-ENG.549, dated December 1.

1941, and modified by supplemental ageeemenes number I, daeed December 20,

1944, and number 2, dated JuI}. 25, 1946. These leases cover approximately one

hundred seventy acres of [he property located at the Airport. The Federal Government expended approximately $800,000.00 in improving the land leased to it,

and the City, in return, agreed pursuant to the above mentioned leases, to maintain

the alrport for the benefit of the public during the life of ehese improvements.

The nature of such Improvemenes were the construction of two hangars, the

construction of II control cower, fencing, construction of a service road and utilities

and improvement of So concrete runWay and taXiway.'"

In addieion, six grant agreements were entered into between the City and the

Federal Government. In essence, these grant agreements provided the City with

Federal funds for rbe improvement of the Airport propexry. In return for such

funds, the City has agreed to maintain the Airport fOr the use and benefit of rhe

public during the life of rhe improvement made with the Federal funds. In no

event is the life of ehe particular improvement deemed to be more than twenty

years, under any grant agreement. Therefore, the maximum duration of the obligations of the City under these grane agreements is twenty years from the dace

of execution of the grant agreeJ:!lent.".. .",

The lim such grant agreement is number 9..Q4·044-801, Contract No.

CA6A2985. It was entered into 00 May 11, 1944. Two amendments dared

6-24-48 and 10-18-48 were also executed. This agreement, by its terms, expired

in twenty years from the dare of the last amendment to it, or in 1968 and thus

is not material to Ollr inquiry.

The second grant agreement, number 9-04-044-5702, Contract No. C4A4161A, was entered' into 00 June 25, 1957. Under this grant agreement, the

United Scates agreed' to incur maximum'obligations ·of $20,056.00 for the conserucdon of an entry road, fence rclcri.iiori,iinStaJlatiori of obsrrucdon lights, and

installment of taxiway entrance siges. As with the previous gtaoc agreement,

Section 8 of the JUDe 25, 1957 agreement requi,r;ed that the a.greement remain in

full force and effect rhroughout the useful life of me fa.cilities developed under the

project, nor to exceed twenty years from the date of accepmnce of the agreement.

Therefore, the City (If Saara Monica ceases to be bound by the provisions thereof

onJ:une 25,197,,, The actUa1cosdncurrea by the Federal Government under this

grant agree:menr!as. f~.~,266.26~: ." " .'(,'I(! .

.The third grant agreemenr,·n\lmhcr,9.04-044083, Contract No. C4CA4906-A,

was eneered into on.ApriI2~, 1958, and provided for Federal funding fOr COIl8tnlCoMost of the agreementS with the Federal GovermIlenr provide tha.c the term of the

obligation &hall condnue during the useful life of the improvements. No inforznation has

been prQvidecl us, nor f.U.;aestiOD made to US, that the useful life of all $Uch improvemems

have DOW expired.

"
't!.:J vvv

,:'

MAY 1975J ..•.. rrOlUmy GENEl'tAL'S OPINIONS 349

rica of a taxiway crossing, construction of an aircraft apron, and construction of

extensions to existing a.ircraft aprons, indudlog storm drains. The federal Government expended $19,574.00. Again, this agreement was limited in duration to

the useful life of the improvements provided for thereunder, but in no event to

exceed twenty years, or 1978.

The fourth grant agreement, number 9·04-044-5904, Contract No. FA-4-188,

was executed on April 29, 1959. The improvements to be made by The Federal

Government under this grant agreement were the construction of an additional

apron including a drainage :1nd a retaining wall. The amouae expended 'Was

$13.952.00. As with the other agreements, this one wasIimited to the useful life

of the improvements constructed thereunder, DOt to exceed twenty years, or 1979.

The fifth grant agreement, number 9-04-044·D205, Conerace No. FA·WE·

2313, was entered into on June 22,.1962_ The improvements made under this 1962

grant agreernenr were rhe consrruction of an extension of the aircraft apron, ineluding' a reeaining wall, hazard lights, and the relocaelon of utilities. The obligation

of the Federal Government under this agreement was $72,804.00. The duration

of this agreement was the: usefl.lllife of [he improvementS made but in any event the

agreement term was nor to exceed twenty years, or 198'2. As a part of this agreement,

a sponsor's assurance agreement was executed by the City. A similar sponsor's

agreement had previously been incorporated in the amendment to the firSt grant

agreement, executed in 1948, and reincorporated in the grant agreement of June

25. 1957. Paragraph 6 of the project application dated April ,0, 1962, states as

follows:

''The sponsor will operate and majnra.in, in a safe and serviceable

condition the airport and .all facilities thereol1 and connected therewith

which are necessary to serve the aeronautical users of the airport ... and

will not permit any llctivity thereon ,\\,h~ch.\'vould interfere with Ies use

N'";';'" ',. C' ':-f>

for airport purposes. . . .' .

The following language is contained in Pan 3 of the same sponsor's assurance

agreement:

"2. The sponsor wHl operare the airport as such for the use and

benefit of the public. In furtherance of this coveaaae (but without limit.

ingIes 'geneiiFapplicability and effect), the sponsor spedncp-lly agrees

th~t it will keepthe airport open eoall' types,'Jc:inds, and classes of aeronautical uses .. _ ((o;,'\1C(;O;,

• • ••

"4. The sponsor agreestbac it will operate the airport for the use

and benefit of ehe public On fair and reasonable terms. . ."

These provisions were incorporsecd in the later gnnt agreement,

The sixth gran~ .ags:ee.cneoc,.number 9-04-04+906, Contract No. DOT·

PA69WE~153~, WaS:executed on July 24, 196R The improvements to be consuuCtedthereunderiricludedthe rerooval·of aii,rilbandonc:d coatrol tower, the
350

.,:~

ArroRNl·:Y G£NER.A.l':S OPINIONS {VOLUME 58

modernization of field lighting, the relocating of field lighting controls and circuits,

and a new control rower, Also, a new control tower panel Was to be built. The

actual amount spent by the Federal Government under this grant agreement was

$12,406.00. .

In addition the City has en eered .into numerous lease agreements with the

Federal Government. Some of these ate noted below.

Lease No. F.A4-1718, was executed on July 26, 1961, and expires June 30,

1981. The Federal Goveenmenr installed a navigational aid fa.cility all the property

which is the subject oj this lease, which is known as a Vassy Visual Slope Indicator,

The COst for this visual slope indicator was $26,560.00, and this cost was borne

by the Federal Governmene,

lease No. WE-l.7024, was executed on April 12, 1963, 'and expires June 30,

1983. The land was acquired by the Pedeeal Goveramene fOJ: installation of a very

high frequency omni range facility, The cost for the construction of this facility

was $226,000.00 which was borne by the Federal Government,

Lease No. FA64-WEI054, was execured on July 2. 1964. and expires June 30,

1984. The land leased to the Federal Government is used for runway and identifiet

lights. The amount of money expended by the Federal Government for this facility

was $5,420.00.

Lease No. PA65-WE1153, was ex~d.ltt:d:onApril 6, 1965 and expires June 30,

2015. This lease ;5 for property upon which a control tower was constructed. The

COstfor the construction of rhcconrrol tower facility by the Federal GOvernment

was $386,931.00.

Lease No. FA65-WEl194, was executed on Auguse 25, 1965, and expires June

30, 2015. The land leased is used for a remote transmitter receiver. The cost to

the Federal Government for this ~adlity was $46>600.00.

_ ,,~. ' ,'·, ••••••r "'7"'- '"," . - -".

Lease No." DOT.P472·'WE-1830 wis exefUte~June 30, 1972, and expires

June 30, 1982. The COst to the' Feder~J:Governmentfor this lease is $ll,OOO.OO

pet year. The land is used for' gCl1eril'avlatioo"'distriCt· offices and the amount

spent by the Feder~Go";li!t~~nt to date for iroprovemenrs is $22,540.00 ..

In addition to the above, various Other leases with the Federal Government

have, from time to time, been entered into.

These leases include the lease signed on January 1.5, 1953, two signed on

:May 29, 1968, and. three oo.Ma.tch ~9'il~]1..'n>~_expiratiol\ dates of these leases

~.' : ~. __ ) ~_~.""'''' .•.•••.•;~~. ,-c" "~.'.' . _.,_,

are, respectively, 1978, 1.9.81, lQ83,,:t984. 20.15 and 2015.

. '-.--." • ,_ "'; ,_- .. _. A •• ~_)\j. '

On August 10, 1948, the Cityflnd(~Ltl!~~~ral_~\1ern'IIlent executed a document eneieled Imt'#menl of T1'an.t!er.By this ~eni: the Federal Government

acting pursuant to the War Assets Adc.qioist.tation Act, rerurned coarrol of the

Airport propetty to the City. The Insmeot of Transfer provided that the

surrender to the City was suj;.ject .to certain reservations, resericricns, conditions

and covenants as thereafter set forth, and thac the same shall tun with the land.

Only a few of [he conditions, ere, will be alluded to.

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. :':.:~~:.':
MAr 1975J ArrORNEY GENERAL'S OPINIONS 351

The City agreed thar the pIopery transferred "shall be used for public airport

purposes for the use and benefic of the public," that "tbe United States of America

• , • f hrough any of its employees or agents shall at alI times have the right to make

non- exclusive use of the landing area," and finally that "0<> property transferred

by this instrument shall be used, leased, sold, salvaged, Or disposed of by ... [the

City of Santa Monica] for ocher ChllQ airport purposes without the writtee.Fonseq.;

of the Civil Aeronaucics Adminlsu-acor, which shall be,gr~tcd only if said

Administrator determines that the property can be used, leased, sold, salvaged' Or

disposed of for other than airport purposes without IDllterially and adversely affeccing [he development, improvement', operation Or maintenance of the airpono at .; i

which such property is locared,"lo, '. . ':\

From 1962 through and indudingl97~,the'Ci~ hahet~ivecl"1.1~payn1en:tS-"----·:~! ~

in excess' of $37,000 from the AirpOrt A$sistan,~e ~volyjng"f"und ~tnJtli"s~r~c i!

by the State Dcpatcm.ent of Aeronautics. ·ra each Case the CitY' obligati~ itse!i,' ~!

~~~~~~~~~~?T~ ~::~t~:::F~!ft :6~~f;~ ..'*i'W~

time periods. However section 216B7 Public Utilities Code does provide that [\

In tbe event a benefidaty airport Ceases to be used as an airport wirhin 20

years of a granr, thar repayment of the monies muse be made to the Airport

Assistance Revolving Fund as therein more specifically s~c forth. .

We consider linally the contract obligations 'Which the City has lucurredwlth [

private parries relative to the use of the Airport. There are numerous master lea~e;

agreements and subsidiary sub-leases executed by the master lessees. "Extensive'

consideration of these leases regarding the use of the Airport is nor necessary,

Some of the master leases include leases with Clover Leaf Aviation, .Lear Siegler,

Bel Ai.t Service, Douglas Alrcrafr Corporation, Pacific Aerornotive, Inc" Gunnell

Aviaoon, Kettler Aviacion, Jon Daudy, Earl Beacon Lease a :PliLne~and Briles Helicopter. These leases expire respectively in -1996, 19j9,-lSi79~19S6:)979·,·1~)791'

1979, 1982, 1981, and 1979. "." . "y;

In summary, it is.apparent that the Cicy has entered into numerous contracts

and leases wherein it has conrracted away its rights to deal freely with the Airport

property aod its uses as an airport. These connaceuel sgreemeces when considered

as a whole and in light of the overall pattern of extensive and extending obligation,

II' The former City AttOrney of Santa Monica, Roben G. Catkins, 00 }I\lluary 23, 1%2,

issued an opinion which concluded, "Deed No. 4 (CCS) ("IDstrunJenfo£ Transfer") liod

the rerms of theJ;ltoje~ application above alludett to tOInpel the l;Olldusion that .the City

muse operate the ailpOtC as An airport. and that the City canDOt Je,sally utl.ill1terally,on lti_

OWn moricn, abandon the use of the Santa Monica Mu.nicipo.l Aitpou III an airport." ".,,,,,

The present City Attorney, Richard L. Kllic'kerbodcer, hll$ suzgested mu stvetal of thaG

a8teem~nt1l eocered into with the FederQ.!Government (inc1udiOS said Insuu.m.enc oE Transfer)

may be voidable under gl:1lc:ra1 COOtl'llCt law. For the purposes of this opinion we assume

WimO\lt deciding mat all tbe $lgrccmenrs considered herein are valid, since the avoldance of

several of the agreemeoti would not sjJ;:ni6cantly dect the remaining overall patrern of

obligation, •. .

••
"'C::I vvv

AnORNEY GENERAL'S OPINIONS (VOlUMB 58

leads to rhe conclusion that the Gty may not at the present time cease using the

Airport for airpon purposes.Jl

2. Would a conflice of inreresc arise where members of the Santa Monica

Airporr Commission participate in Commission proceedings for the purpose of

making' recommendarions to the Santa Monica City Council concerning charges to

be levied for aircraft rie-down spaces at the Sanea Monica Municipal Airport where

such members are lessees of such de-down spaces at such airport?

. The Santa Monica Airpo« Commission" is created by the City charter, Section

1015 of the Santa Manka Municipal Code provides:

"There shall be an Airport Commission, consisting of five members,

which shall be appoinred by the City Council. They shall be qualilied

electors of the City. DOne ~£ whom shall hold ~y paid office or employ.

ment in the City government."

The dudes of the Commission are set forth in section 1016 of the Santa

Monica Municipal Code as follows:

"The Airpore Commission shall have power and be required to:

"(a) Acr in an advisory capacity to the City Council in all matters

pertaining to the Municipal Airport and to aviation matters generally to

the extent that they affect the City;

"(b) Approve or disapprove the appointment of a Municipal Ailport Director h)' the City Ma.nage.r,as and when the: City Couacd provides

for the Alling of.such position; and .

..( c ) Consider and recommend to the, City, .Council roles and regulations for the rnansgemeat.and operation, of, the Municipal Airpon."

We are informed by the City Attorney that rhe Commlssion acting under

SUbdivision (a) above, advises the City Council as ro what rates should be charged

for de-down spaces; and acting under subdivision (b) above, the Commission

exercises an absolute vero power over the appoinemenr of the Aupon Director.

The Airport Director's duties and powers are extensive. U It is thus apparent that

11 In concluding tlUt ~oottat'tU~; 'ommitmcnts prevent the preseDt cessation of airport

\lsase,· we do not reach the Clut'stio~ ast9 Vihat eleteDt, t.be partial acquisitioD of airport

property pursuant to the 1926 bC>llQ c!lecti9~ was ,tanWDOUOCto ,P\1blic dedication of such

prop<mythereby cxercising furthee resrrainu"on'the Oty as 'to ~irs options in dealing with

the properly.

,~ Hereafter referred to asCornmission.

~3 Section 2217 of the SinCB Monica Municipal· Code provides:

"The duties and funwons of the Airport Director shall be as follows:

." (a) Be responsible for alllle:tivities of the Santa Monica Airport;

"( b) Act liS depanmeot head for the SlUItl!.Monica Ai'Port Departmecr;

•.(c) SUpIID'ise all pe!sotloeI, pJ:orect facilities and properlY of the Cily at

lU,hAirp~- H'-· ,.", "

"(d) MaincaiD all reicirt;b of flight operations as required;

•.(e) SUI>etv.iscthe oj:ietatioDOf the Conuol Tower;

••(f) Aqeod allmeedngs .9f-tbe A~rt Cozn.t:njuic:ln;aD<!

"(g) Perform such other duties in conn~ion with the ·maintcnaoce and

operation of such Airport as mAy he prescribed by the City Maoager:'

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Conflict of interest laws fall under two broad classifications, searurory law ':;::!

and the common Jaw of conflicts of interest. We shall examine themboth." .. ,,,,. ""',,', ,'f{

,···.'$o':'f'1~];:1 .

The Political Reform Act of 1974 (known as Proposition 9 in 'thcJwui' 4i~:;'ftii: !

1974 primary election),' is codified in sections 81000 through 91014. Section' i;\ I

82048 provides that, '''Public official" means every member, officer, employee OJ:' :,::', j

consultant of a State Or local government agency." Section 87100 provides that, "No ~!\!(

public officW at any level of state or local government shall. make. participate in .!~:

making Or in any wa.yattempt to use his o.Bicialpos¥on.f'llnB.\.tence.a gQ.Ysr~~t,~L_,'_,__-.=\.. '

decision in which he knows or has re~n to know be h~ a beancid interest." .:'ilI

However it appears that Commission .~~s do not fl\lt:withiI.1~c~~~71Q9,

in that they do not have a financial interesr lIS such a5tte.6ned ln 'se<:tion;~pO

w hich 'provides in relevant part: .' . .' '.~" . ..' .,:",,'l: ., "~:

"An official has a financial interest in a decision within the meaning

of Section 87100 if it is reasonably foreseeable that the decision will have

a material financial effect, dlseinguishable from its effect on the public

generally, on:

MAY' 1975) ATIORNEY GENERAL'S OprnIONS

the Commission functions not ooly in an advisory capacity, but also exercises some

of the governmental powers of the city, The members, therefore, appear to be

"officers," Consequently, we need nor meet any potential issue as to whether the

members are "officers" or "officials" within the meaning of the various conflict

of interest statutes. See, generally, 42 Ops. Cal Atty. Gen. 93,95 (1963).

"(b) Any real property in which the public oflicialhas a direct

or indirect in~erest worrh mote than one thousand dollars ($1.000);'" the

We have been informed that the case of ric-down spaces range from $40 per

month to $130 per month and that the rentals are from month to month. From

the facts lIS we understand them, it would appear that a one month license interest

costing $130 would nor he an interest in property' havwg a lair marker value in

excess of $l,OOO.u . . .. .

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Similarly, it would appear: that die conflict of interests; pro\11si6n-of the

"Mosoone Act," (§§ 3600-3760), would not apply sm,se<;[io9,.)62~'<b).<2)

excludes therefrom properry interests of less than $1,000' value,' G' Fri~,lp~ore.

sections 1090-1097 do not apply since 'these sections ptohibit ce,tt-a.in :financial

ioterests "in any contract" made by a member in his oJEdaI capacity. §. 1090.10

H There are approximately 600 tie-down spaces available, "or all of whj~ life filled.

An ap~licant fiUs out a dor;ument entitled. "Rental of Space License," This agreemenr provldes

thll( the: "Iicease m~y be renewed monthly by pllyment of the monthly charge on or bclore

the first of each rncnth, Failure to !"'-y monthly In advlI.nce shall automatically revoke this

license •... "

1:; 'Ibis Ac:chas been substantip,l1y amended by 1974 Stilts. Chapts. 48 and 1249.

; .

~8We are advised thllt the Commission members do' nOt participate direcdy in the

mwng lU'ld letting of the tie-dowq licerue conttaas. Thus, Uterally, ",dons 1090~'~BISIq,

have no Ilpplication to the questions prescnted herein. However, this proscription of the

Code hu been held to be a.ppliCllble not only to the aecv.al JlOvcrwnenral l:olJ¢CIcung body,

hut also [0 tsdvisou the~eofas to me contrsce, or others who may plIldopate in we makiog

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ArrORNEY" G:ENERAL'S OPINIONS {VOLUME 58

Also, sections 8920-S926 do nor apply since by its terms it does nat extend to city

officials.

We turn to a consideration of the common law of conflict of interest which

we find applicable, Ie was scared in 42 Ops, Cal Atty. Gen. 151 at 155 (1%3):

"The COUltS have made dear that even though 'a specific confliCt of

interest situation does not come within tbe sratutory proscription-such

a confliCt may still be condemned by the courts as violative of public

policy which is always susceptible to broader interpretation than the

express statutory provisions: Kaufmann & Widiss, The California ConfticJ

of lnteres» Laws, 36 So. Calif. L. Rev. 186, 187 (1963). the fundamental

policy is that 'A public office is a public trust created in the interest and

for the benefieof the people. Pu.blic officers are obligated ... to discharge

their responsibilities with integritY and fidelity .. " {T]hey may not

exploit Or prostitute their official position £01' their: private benefits.

'When public officials are influenced in the performance of [heir public

duties by base and improper considerations of personal advantage, they

violate their oath of offiCeand viriare the trust reposed in them, and the

public is injured by being deprived of their loyal and honese services.

, . .' Terry v. Bender, 143 Cal. App. 2d 198, .206 (19%) ,"

And further in 40 Ops, Cal. .Atty: Gen. 210, 212· (1962) :

"It is also important to note that the California courts have traditionally predicated conflict of interest declsioos On the dual basis of: (a) the

Statutory- restriction; and (b) the prohibition of sound public policy

evolved (rom common law principles. See City of Oakland v. California

Const. cs: 15 Oil. 2d 573,576 (1940); Schaefqr v, BeritJste;n, 140 Cal

App. 2d 278, 290(1956). Thus, in Noble v. qty of Palo Alto, 89 Cal.

App.4l,51 (1928), the court concludedrhst, 'A public officer is impliedly

bound to exercise the powers conferred on him with disinterested skill,

zeal, and diligence ... .' (Emphasis added.) Fidelity in the public officer

muse be maintained, and the law does not permit a public officer to place

himself in a position in which he might be tempted by his Own private

interest to disregord the interests of the public. See StiCall v. C#~ of Tafl,

Cal Sup. Cr. Dkr, No. S.F. 20906 (Oct. 23, 1%2); People v. Darby,

114 CaLApp.2cl ,412,.425 .(1952)." - .. ..__

of the COot1'l\(t. SeeSd.,"!1ff' v.'"lJ8rj;'Jlsin, ------------------ 140 Cal. A~p: :zd 278. :291-292 (956); 46

Cps. Cal. Atty. Gen. 74.(1965) re/advisors;' See Sdgall'v.CiW of TRItt 58 Cal. 2d 565

(962); MilJbril8AUfJ. Po, Rflsi1~"ti4~urt'i1!1Il:~.C~ ol.~1.iJJb.rtl8, 262 Cal. App. 2d

222,236.237 OS/68),.reomerput1op"nrs. c , ••• ,J .; •. d.

However, we believe thar under theuniqNe cirrotnsmnces of this ease a court would

probably not 50 apply section 1090 if the Commission members complied with the subsequenrly dis~ssed comrcoa law rules regarding £u1l disclosure and nonparddplltion. The

unique circumstanceshetein are (I) that there is a ,mdtipte memberCommission instead of

a sin,!;lc "advisor" or other participant, as was the: case In me aUthorities above cited, and

(2) cile advisory or participation stams is one srep removed trotn the l1-CtUslcootract itself.

The public should be suHicie.ndy protccred by dlsdosure nnd abstention as hereafter set

forth. Under.similarclrcwnsuno:s.we.have $imiJady concluded.. Letter to Hon. Sig Hansen,

Di,ret;tol', Department of Human ltcso~es Developmenc. J\US\lSt 16; 1972,1~. ]2·143.

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MAy 197:1) ATTORNEy GENERAL'S OPINIONS 355

This office has further pointed Out that, "The general common Isw-conflict

of ineeresr rule is not resrriceed to contractual relationships .... It strictly requites

public officers to avoid placing themselves in a position in which personal interest

may come into conflict with their duty to the public." 46 Ops, Cal. Atty. Gen. 74,

86 (1965).

The gist of the common law of conflict of interest: is to prevent the doing of

an official act where the official may have a direct or iadieece interest in the OUtcome. The courts of this sraee have held thae an interest may be so remote and

speculative as nor to create auy conflict of interest. HOlchkiJs v, MQran, 109 Cal.

App, 321,323 (1930). What coestirurcs a remoee and speculative {merest is nat

dearly defined. For example, in Peopu Y. Da,t"ll(CaJ' App. 2d412 (19'2), .

the court used language that mightsuggesftharanfjneeresnhannightaffeet-s.n'·- --c.-'.••..•'-:::.:

official's conduct creates It conflict. InDllrbr. theCo~.~pprovin~th~!,,~structions,.;;~!

of the trial court, stated (at page 455);. ··~;i;~; -""i~

", . . Whether the Irlter;esr was direr;1 or tnd;re~/,nnnole'''Orr;~~:: :.

tingen/, the sum lind substance of the three instructions r~dasa!whoIe

is that if the inrerese of rbe member is sufficient to cause him to /;9 !wayed

:in the sligh/BJI degree from his duty' to the public, it is a vIolarion of

section 1097 as well as lOlL" (Emphasis sdded.)

In light of the language in Darb.1,'-extreme 'caution should be exercised in

concluding that an interest is tOOremote. It 'Would appeal: not to be tOO remote

an interest where the interest of the member of the Commission was 'that; the'

member's spouse leased tie-down space from the City (e.g., see the last paragraph;

of seceioa 87103 where the interest of the spouse is deemed ehaeof the official).

Further it would appear that lin interest would nor be eoo remote where a member

of the Commission leases tie-down frorn a private parry at the Airport. This is

so because a. member could hypothetically keep the City rates low and thereby

through the forces ot competition keep me private rates low. We have been informed that twO of the Commisslon members fall wiehln these two examples.

We turn finally to the question of'rhe remedy thar is to be applied. when it

is determined that a condice exists. Several opinions of this olike' have dealt withe

situations wherein marttrs have come before boards 'or comm1ssio~ wherein'a

member of the board had an interest in the matcer, In 26 Ops. Cal. Atty. Gen. :5

(19") we were required to rule upon the question whether a supervisor could

participate in the deliberations and decision regarding the relocation of a county

road where the supervisor owned property traversed by one of the twO routes under

consideration. We held thar he could QOt,stating at pages 6-7:,

"The question which arises at this 'point is whether the supervisor

who owns the affected land may Participate in the prlcr'deliberarions a.ndt

decision concerning the route the relocated road is to take, It Is obvious

rhat this decision \ViII directly affect a private interest of the supervisor;

that is, whether Or nor his land will be condemned by the county. 'While

Government Code section 1090 does not forbid his participation, since
~56

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ATtORNEY G£NElVJ.'S OP~NIONS [VOLUME 58

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ehe section is resrriceed to aceiviries of a contractual nature, the common

law rule on which lr is based is not so lirnired."

Likewise, in 39 Ops, CaL Atty. Gen. 165, 168 (1962) we held rhar a municipal

ordinance 'Was invalid which granted an excepeion to a zoning ordinance in which

a city councilman, having a direct financial interesr, Cast the deciding vore, In SO

holding, we noted:

". .. this opinion should no; be construed as holding thar a member

of a city council cannot have an interest, regardless of his lack of participation in the VOte,in property subject to a zoning regulation of the city.

As regards non-contractual matters coming before a governing body, if

the interested officer refrains from votiog, it would appear that the

demands of public policy have been met; '.. , otherwise, only citizens who

live and work in a complete vacuum, could be ~alifiec:l to sit on public

bodies', .. ."

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Thus, it is seen that the common law doeuine prohibits participation by 11

Commission member in rnaeters in which ehe member bas an interest. This

includes not only participation in the voee, but also prior deliberations. The larter

is of course to prevene the member from inf11~encing unduly the outcome of the

vote,

In numerous opinions this office has, in ardculaeing thi~ COmmon law remedy

in conflict of interest sieuations, spccified the approach of abstention:

"(1) he should immediately disclose the interest, (2) he should

withdraw from any participation, in the matter, () he should refrain

from attempting to influence another 'member of'the bo.ard and should

refrain from voting, and (4) all of t,bisshould be reflected in the

minures/?"

It is concluded that a conflict of interest does arise where members of the

Santa Monica Airport Commission pareicipare in Commission proceedings for rhe

purpose of making recommendations to .the Santa. Monica City Council concerning

charges [Q be levied. io~u,~!!~~~p~e~~Q~{l ,s~ccs at.the Santa Manka Municipal

Airport where such members,l1,1;'eJess~spf such tie·d0w'lljjspaces at such airport.

The conflict of imerlMmay be Qvoided by the aHected member by immediately disclosing the interest, withdrawing-froml'aiticipationin thuDJutcr, .cet~~ining from VOting, refraining trom attempting to influence other members. and

having all of these matters reflected in the minures,

11 Letter to HOll, Sig Hansen, Direcror, Depattment of Human Reseurces Development,

August 16, 1972. I.L. 72-143, A.ccora: leeter to Mr. T. P. Stivers, District Securities Officer,

Dlsericr Sccurities Division of ()ffice of StateiTreasurer, Octobcr6.-1970, I.L. 70-177: Letter

to Speci~IAssistant,AttorQey Gen.eraI, FeJ,tuary 17~19?2, U~c.7t·53; L~~r, to Dr. Malcolm

H. Merrill, M.D., Dlteaor of Publie HC'lth, OCTober 1~"1964, I.L. 64.163.