Agreements approved by Riverside County and cities in the Coachella Valley in support of a multiple species habitat conservation plan did not violate a political corruption law, according to the state attorney general's office.
Attorney General Jerry Brown's opinion unit provided its analysis in response to a request by state Sen. Jim Battin, a Republican from La Quinta who has since been termed out. A staunch opponent of the Coachella Valley multiple species habitat conservation plan, Battin in June 2007 asked the attorney general if a memorandum of understanding between the county and eight cities in support of the plan violated Penal Code bribery prohibitions, and if the agreement would remain in effect as the membership of elected bodies changed over time.
Deputy Attorney General Marc Nolan said the MOU did not violate the Penal Code, and that ongoing implementation of the agreement was permissible because it did not contract away any jurisdiction's police power.
Nearly 15 years of planning and politicking went into the habitat plan, which the cities approved in 2007 and became final in September 2008 when the U.S. Fish and Wildlife Service and the California Department of Fish and Game provided formal approval. The plan permanently preserves 240,000 acres (in addition to 500,000 acres already owned by public agencies) to provide habitat for 27 sensitive plant and animal species (see CP&DR Local Watch
, April 2006). The "hard line" plan prevents nearly all development in protected areas and calls for a mitigation fee (now at $5,730 per acre) on development outside protected areas to fund acquisition of conservation lands. Every city in the Coachella Valley except Desert Hot Springs, along with Riverside County and other local government agencies, has agreed to participate in the plan.
Battin fought against the habitat plan and specifically against political pressure from Riverside County Supervisors Roy Wilson and Marion Ashley, both of whom championed the plan and publicly suggested they would make life difficult for cities who did not support the plan. Battin questioned the MOU between the county and the cities under which the county agreed to abide by city development standards within a city's sphere of influence if the city endorsed the habitat plan. Battin suggested the agreement amounted to illegal vote trading under Penal Code § 86.
In his opinion, however, Nolan explained that § 86 concerns bribery, corruption and personal advantage, and that the provisions dealing with vote-trading are narrowly written. "The mere fact that the item voted upon involves a proposed trade-off between jurisdictions
does not dictate or even imply that any trade-off will occur between officials
voting on that item," Nolan wrote. The mutual obligations set forth in the MOU did not portray a corrupt intent, he added.
"To conclude otherwise would, in effect, criminalize the conduct of entering into intergovernmental contracts which, by their very nature, mutually commit participating jurisdictions to any number of obligations, and thereby subject the public officials who vote to enter into such agreements to the severe criminal and civil sanctions reserved for bribery and like offenses," Nolan wrote. "We decline to attribute such sweeping coverage to § 86. Absurd results would follow."
An agency may not contract away its police power or that of "successor legislative bodies," but the agreement at issue here did not do so, Nolan found. In fact, the implementing agreement made clear a participating jurisdiction may withdraw from the conservation plan and its provisions with sufficient notice, Nolan pointed out.
The attorney general's opinion is No. 07-506 and may be found at 08 C.D.O.S. 14099, and 2008 DJDAR 16920. It was published on November 13, 2008.