Lessons from California

Don’t allow your town to be the place where Democracy goes to die and Cell Towers metastasize.

Read about the current status in Hillsborough, CA, including a 2018 Motion to dismiss and a 2020 closed session item.

August 6, 2020
Via E-mail

Christopher J. Diaz
Best Best & Krieger
2001 North Main St., Ste. 390
Walnut Creek, CA 94596

Miyuki Yokoyama
Clerk, Town of Hillsborough
1600 Floribunda Avenue
Hillsborough, CA 94010

Re: Conflict Of Interest Issues

Dear Mr. Diaz and Clerk Yokoyama:

We are writing on behalf of the Hillsborough Citizens Alliance (“HCA”) regarding the revelation of Councilmember Benton’s conflict of interest related to the Town’s settlement with Crown Castle and the Council’s efforts to modify the wireless telecommunications ordinance. HCA joins with Hillsborough’s citizens to express its grave concerns over Councilmember Benton’s conduct, which came to light for the first time during the July 27 meeting.

  • Specifically, Councilmember Benton’s Form 700 reveals that he invested up to $100,000 in Crown Castle in June 2019, while he was participating in the Town’s closed-door negotiations to resolve Crown Castle’s lawsuit.
  • After making that investment, Councilmember Benton was obligated to recuse himself, yet he proceeded to participate in several closed sessions concerning Crown Castle and participated in multiple Council meetings supporting the Town’s efforts to grant concessions to wireless carriers by weakening WTF design standards.

Making a substantial investment in Crown Castle at the same time the Town was engaging in confidential negotiations with the company is not only unseemly, it would appear to violate the Political Reform Act:

“No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.” Gov. Code § 87100.

The Political Reform Act “was enacted to assure an independent, impartial and honest government,” and economic conflicts of interest “undermine [this] goal by providing an economic incentive for deciding a particular official matter without regard to its merits, or with regard to its effect upon the official’s pocketbook.” Cty. of Nevada v. Macmillen, 11 Cal 3d 662, 673–74 (1974); accord Witt v. Morrow, 70 Cal.App.3d 817, 822–23 (1977) (“[T]he whole purpose of the Political Reform Act of 1974 is to preclude a government official from participating in decisions where it appears he may not be totally objective because the outcome will likely benefit a corporation or individual by whom he is also employed.”).

Councilmember Benton’s investment also appears to violate the duty of undivided loyalty he owed to the citizens of Hillsborough. “The government’s right to the absolute, undivided allegiance of a public officer is diminished as effectively where the officer acts with a hope of personal financial gain as where he acts with certainty.” People v. Honig, 48 Cal.App.4th 289, 325 (1996). And “[a] person is disqualified to discharge the services of a position in a municipal government when he has a personal interest which might interfere with the unbiased discharge of his duty to the public or prevent his exercise of absolute loyalty and undivided allegiance to the best interests of the city.” Raymond v. Bartlett, 77 Cal. App.2d 283, 285–86 (1946).

By participating in the Town’s decision-making related to Crown Castle despite his conflict of interest, Councilmember Benton has tainted the entire process and called into question the validity of the Town’s actions. “The conflict of interest laws . . . establish an objective standard ‘directed not only at dishonor, but also at conduct that tempts dishonor;’ they are preventive, acting upon tendencies as well as prohibited results. A violation occurs not only when the official participates in the decision, but when he influences it, directly or indirectly.” Comm’n On Cal. State Gov. Org. & Econ. v. Fair Political Practices Comm’n, 75 Cal.App.3d 716, 723 (1977).

Under the FPPC’s regulations, Councilmember Benton was required to disclose his conflict of interest publicly, recuse himself, and leave the room

[like this . . .]

. . . because it was foreseeable that the Crown Castle settlement agreement (and, by extension, the design standards adopted to benefit Crown Castle) would have material financial effect on his financial interest. 2 CCR § 18707; see also, e.g., FPPC Advice Letter No. A-16-155 (Sondergren) (mayor’s ownership of more than $2,000 in Costco stock required recusal from city’s decisions related to a local Costco). Here, a material effect occurred under the law because Councilmember Benton owned more than $2,000 in Crown Castle stock which itself was the subject of action by the Town in multiple respects. As a result of Councilmember Benton’s participation in the negotiations, the Town’s approval of the Crown Castle settlement agreement may well be void. See Gov. Code § 91003(b). HCA is exploring its options in this regard.

Finally, Councilmember Benton’s actions implicate multiple provisions of the Town of Hillsborough’s conflict of interest policy, which declares that a conflict of interest exists when a Town employee:

“Participates in his or her capacity as a Town employee in the issuing of a . . . contract in which he or she has a private pecuniary interest, direct or indirect, or performs in regard to such contract some function requiring the exercise of discretion on behalf of the Town.

Has a financial interest or personal interest in any legislation coming before the City Council and participates in discussion with or gives an official opinion to the City Council unless the employee discloses on the record of the Council the
nature and extent of such interest.”

~ Town of Hillsborough Policy 205A, subds. (c) & (g).

Now that Councilmember Benton’s conduct has come to light,** HCA believes the Town must take prompt and thorough action to restore the public trust**. To that end, HCA requests:

  1. That the Town take no further action to ratify the settlement agreement or its terms until an independent investigation is completed into Councilmember Benton’s conduct and the citizens of Hillsborough have the opportunity to review the results of that investigation.

  2. That the Town review the financial disclosure statements of each councilmember dating back to January 2018 to confirm that they completely and accurately disclose all investments and financial interests as required by California law, and specifically confirm that the councilmembers do not have investments in telecommunications stock or other investments or financial interests that create a conflict of interest related to the Town’s efforts to modify the wireless communications ordinance. Note that the statements of economic interest must include “any investments . . . held at any time” during the reporting period, and the Political Reform Act defines “investment” broadly to include investments made through other entities or by members of the official’s immediate family. Gov. Code §§ 87203; 82034. To that end, we have reviewed the 2019 Form 700s for each councilmember other than Councilmember Benton and were surprised to see that not a single member has disclosed owning a single stock. Indeed, Mayor Christianson and Councilmember Chuang claimed to have no reportable interests at all, while Councilmember May disclosed no investment interests at all. (In addition, HCA requests copies of the Form 700s from 2016 through the present for all council members, the City Manager, City Attorney, Public Works Director, and Planning Director.)

  3. That the Town hold a community meeting to restore public trust that has been strained due to the Council’s rush to adopt WCF design standards that were intended to conform to the settlement agreement with Crown Castle.

Thank you for your attention to these matters.


s/ Bradley A. Benbrook
Bradley A. Benbrook

City of Hillsborough Reconsideration of sWTF Design Standards — July 27, 2020

Read the May 20, 2013 — US Supreme Court Ruling




JUSTICE SCALIA delivered the opinion of the Court.

The US Supreme Court consider whether an agency’s interpretation of a statutory ambiguity that concerns the scope of its regulatory authority (that is, its jurisdiction) is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984).