Benicia City Council hasn’t made any decision about releasing to the public an opinion about whether Mayor Elizabeth Patterson should recuse herself from addressing or voting on the proposed Valero Crude-By-Rail project, City Attorney Heather McLaughlin said late Tuesday.

Her comments arrived too late to be incorporated in a story in which Patterson said that during conversations that took place for some time and included two exchanges of emails and an in-person meeting, she had been asked to recuse herself from participating in that decision.

Patterson said McLaughlin also had asked her to refrain from sending emails calls e-alerts to subscribers. The mayor has described those emails as a way to provide information on a variety of topics.

“We can’t really comment on this story much since it involves the attorney client privilege,” McLaughlin said after presstime Tuesday. “The Council has not made a decision to release the opinion to the public.”

However, she did explain situations in which a city government member might be asked to recuse himself or herself.

“Various laws can require people to refrain from participating in decisions,” she said. “The one we see most frequently is the conflict of interest due to financial interests.” She said those conflicts are governed by the Political Reform Act.

“Other reasons include the appearance of a conflict,” she said. That appearance may not be an actual, legal conflict, she said.

Other reasons for the request could be based on bias or the inability to be impartial, she said. The request could be made for other reasons, too, she said.

McLaughlin cited Benicia Municipal Code sections that could come into play.

One is Section 4.16.010, regarding policy. It states, “The proper operation of city government requires that: (1) public officials and employees be independent, impartial and responsible to the people; (2) government decisions and policy be made using the proper channels of government; and (3) that public office or employment not be used for personal gain.”

She also cited Section 4.16.020 that describes the responsibilities of public office and employment.
That portion of the code says, “Public officials and employees are bound to uphold and carry out the Constitution of the United States, the Constitution of the state of California, and the law and regulations of the city.

“Public officials and employees shall observe in their official acts the highest ethical standards and discharge faithfully the duties of their offices or employment regardless of personal considerations.

“Public officials and employees shall recognize that the public interests must be their primary concern; that they fulfill the public trust invested in them by their conduct; and that conduct in their official affairs should be above reproach.”

She said Benicia’s Code of Conduct also provides guidance.

That is a four-page document that, along with the state open government law for local governments, the Brown Act and Benicia Open Government section of the city code, are supplied to elected and appointed officials and are reviewed annually during each person’s open government training.

That code requires public officials to comply with both the letter and spirit of the laws and politics of government operations; that public officials be independent, impartial and fair in judgment and actions; that public office be used for the public good instead of private gain; and that public deliberations and processes be done openly unless they are required to be handled privately, and that they occur in “an atmosphere of respect and civility.”

To accomplish that, the Code of Conduct has 17 subsections that define appropriate behavior and govern such situations as conflicts of interest, in which the officials aren’t to use their posts to influence government decisions in which they have a material financial interest, or advocacy, in which Council and advisory panel members must state if their comments are being made as an individual resident or as a person with a city office.

Concerning communication, the Code requires officials to share substantive information they may receive from sources outside the public decision-making process.

The Code also governs gifts, favors, communications, use of public resources, compliance with laws, respect for the process, conduct at meetings, dealings with city employees and other matters.

She briefly touched on the most recent Council meeting, at which Councilmember Mark Hughes recused himself from participating in the panel’s ultimate decision to continue its pursuit of membership in the Marin Clean Energy Community Choice Aggregation power agency.

Hughes has retired as an employee from Pacific Gas and Electric, the city’s current electricity provider. If the city joins MCE, customers would be switched to the community choice agency unless they formally request to remain customers of PG&E.

“It was alleged that he had a conflict of interest under the Political Reform Act,” McLaughlin said. “We sought an opinion from the Fair Political Practices Commission about this. They concluded there was not a conflict.”

However, Hughes, who had recused himself from the previous times the Council had considered the subject, said, “Perception really matters.”

He continued, “I am going to recuse myself. I think it’s the right thing to do.”