Venezia: State clarifies what Newport Councilman Duffield can vote on

In May, I wrote about Bob “Stop the Dock Tax” McCaffrey and his group, Residents for Reform, pushing Marshall Duffield to run for the Newport Beach City Council.

At the time, I raised questions about Duffield’s potential conflicts of interest, should he get elected. His business, Duffy Boats, is in Newport Harbor, and the council votes on harbor issues.

Duffield strongly disagreed with my assessment of his situation.

So Duffield runs on a platform that’s mostly about the harbor, endures the rigors of campaigning, spends oodles of money and wins and unseats then-Mayor Rush Hill.

And after all that, he recuses himself at the last Newport council study session regarding reevaluating dock fees?

He told me voting could pose a conflict with his business interests.

All of this follows a 10-page letter dated Jan. 6 from the Fair Political Practices Commission — a state agency that monitors public officials and employees — addressed to Newport City Attorney Aaron Harp.

The letter states it’s in response to the city’s “request for advice on behalf of Councilmember Marshall ‘Duffy’ Duffield regarding his duties under the conflict of interest provisions of the Political Reform Act.”

At issue is the Section 1090 conflict-of-interest rule, and the FPPC clearly answered some direct questions asked by the city.

“May Councilman Duffield participate in governmental decisions involving clients of Duffy Boats, in circumstances where the work/service performed by Duffy Boats for the client is in another jurisdiction?”

The FPPC’s answer was “no,” even when the question was asked if the client was in the city.

And when asked if the councilman can participate in “setting the rent for commercial tidelands pier permits/leases while Duffy Boats or clients have residential pier/permits leases with the city, the FPPC answer again was “no.”

But there were questions raised in the document that the FPPC didn’t give clear direction on, like whether Duffield could vote on issues relating to dredging, eel grass, tidelands or general fund revenue and how to allocate those in the harbor.

And there’s the issue of his commercial pier lease.

The letter states, “Duffy Boats has an annual commercial pier permit from the city for boat rental and sales facility at 2001 W. Coast Hwy., which allows Duffy Boats to maintain a marina over publicly owned tidelands in Newport Harbor.”

Can the councilman legally negotiate with the city for renewal of this permit?

Reading the FPPC advice on these — there really isn’t any — only stated case law on both sides of the issue and various interpretations of Section 1090.

The person who will ultimately have to make the judgment calls as to what Duffield can and can’t vote on will be City Attorney Harp.

In an email, I asked Harp to explain the non-committal portion of the FPPC letter.

“The conflicts-of-interest rules are administered by the state, and it may be best to contact the FPPC to the extent you are looking to clarify items in the letter,” his email stated.

And what about his judgment calls on the grayer issues regarding Duffield?

“I really can’t comment on legal advice that will be provided to council members in the past or the future,” Harp wrote. “The conflict-of-interest rules are fairly complex, and we need to analyze each situation.

“However, I don’t read the letter from the FPPC to council member Duffield as a blanket prohibition barring him from participating in matters related to the harbor. How I read the letter is that there are situations that will need to be carefully analyzed to see whether there is a potential conflict or not.”

Reading that same letter, I disagree with Harp.

One thing’s clear — because the FPPC is so unclear — the city is entering uncharted waters. Why didn’t Duffield sort out this conflict biz before he got elected?

He really couldn’t.

Candidates can get advice, but in the end, the FPPC is the only opinion that matters here.

And the city can’t legally ask the FPPC whether a candidate has a potential 1090 conflict; it can ask only after the person is elected.

What are Duffield’s thoughts on the matter?

“The FPPC opinion is no surprise and makes sense to me,” he wrote. “I’ve asked for clarification on a couple of items regarding land use in the harbor. Basically, I can vote on most harbor items unless it deals with the owner of a Duffy Boat that I maintain on a monthly basis.”

We’ll see if it’s as simple as he thinks. I doubt it will be.

BARBARA VENEZIA lives in Newport Beach. She can be reached at [email protected].