Board of Directors Meeting Wednesday, March 1, 2017 6:00 pm City of Hayward Council Chambers 777 B Street, Hayward, CA AGENDA Meetings are accessible to people with disabilities. Individuals who need special assistance or a disability-related modification or accommodation to participate in this meeting, or who have a disability and wish to request an alternative format for the meeting materials, should contact Bruce Jensen, Senior Planner at the County of Alameda, at least 2 working days before the meeting at (510) 670-5400 or [email protected]. If you have anything that you wish to be distributed to the Board please hand it to a member of EBCE staff who will distribute the information to the Board members and other staff. 1. Roll Call & Oath of Office (if required) (Stephanie Cabrera) 2. Approval of Agenda (Chair) 3. Public Comment This item is reserved for persons wishing to address the Board on any EBCE-related matters that are not otherwise on this meeting agenda. Public comments on matters listed on the agenda shall be heard at the time the matter is called. As with all public comment, members of the public who wish to address the Board are customarily limited to two minutes per speaker, but an extension can be provided at the discretion of the Chair. CONSENT AGENDA 4. Approval of Minutes from February 15, 2017 Board Meeting (Stephanie Cabrera) REGULAR AGENDA 5. County Staff update (Bruce Jensen, Inder Khalsa) Multiservices Bids - Protest / Appeals Status
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Board of Directors Meeting Wednesday, March 1, 2017
6:00 pm
City of Hayward Council Chambers
777 B Street, Hayward, CA
AGENDA
Meetings are accessible to people with disabilities. Individuals who need special assistance or a
disability-related modification or accommodation to participate in this meeting, or who have a
disability and wish to request an alternative format for the meeting materials, should contact
Bruce Jensen, Senior Planner at the County of Alameda, at least 2 working days before the
1) Review and approve Community Advisory Committee Scope.
2) Approve Resolution EBCE R-2017-3 adopting the Community Advisory Committee Conflict of
Interest Policy.
Analysis and Discussion
A. Community Advisory Committee Scope
Section 4.9 of the EBCE Joint Powers Agreement provides for the creation of the Community Advisory
Committee (CAC) and broadly describes the roles and responsibilities of the CAC, as follows:
4.9 Community Advisory Committee.
The Board shall establish a Community Advisory Committee (CAC) consisting of nine
members, none of whom may be voting members of the Board. The function of the CAC
shall be to advise the Board of Directors on all subjects related to the operation of the
CCA Program as set forth in a work plan adopted by the Board of Directors from time to
time, with the exception of personnel and litigation decisions. The CAC is advisory only,
and shall not have decision-making authority, or receive any delegation of authority from
the Board of Directors. The Board shall publicize the opportunity to serve on the CAC,
and shall appoint members of the CAC from those individuals expressing interest in
serving, and who represent a diverse cross-section of interests, skill sets and geographic
regions. Members of the CAC shall serve staggered four-year terms (the first term of
three of the members shall be two years, and four years December 1, 2016 -11-
thereafter), which may be renewed. A member of the CAC may be removed by the Board
of Directors by majority vote. The Board of Directors shall determine whether the CAC
members will receive a stipend and/or be entitled to reimbursement for expenses.
The Chair of the CAC will serve as a non-voting “Ex Officio Board Member” pursuant to Joint Powers
Agreement Section 4.2.2.
On January 30, the Board appointed a Selection Committee to interview and propose selected members to
the Board. On February 15, the Board approved the application form for the CAC.
In developing the attached draft Scope of duties/activities for the CAC, staff reviewed the Scopes of
similar advisory bodies for Peninsula Clean Energy, Sonoma Clean Power, and Valley Clean Energy and
developed the attached Scope for the EBCE CAC. The Scope includes the following duties and activies
for the CAC:
1. Work on defined objectives as directed by the Board, to produce materials that will assist the
Board in decision-making.
2. Review and comment on EBCE budget and rates, policy and programs.
3. Help the Board to identify issues of concern and opportunities to educate community members
about the EBCE.
4. Identify potential partners and partnerships, which the Board may wish to pursue in
implementing EBCE.
5. Draft reports, in coordination with EBCE staff, to the Board with its findings and
recommendations.
6. Serve as an information-channel back to their colleagues and communities.
7. Represent the views of their constituencies in their comments and recommendations.
8. Other duties or tasks, as the Board shall determine in its sole discretion.
Staff is recommending that the Board review the Scope, receive public input, and either approve the
Scope or direct staff to make revisions to the Scope.
Additional Issues to Consider:
Funding and Support. Staff is proposing that the Board approve contracts up to $20,000 to
assist in carrying out the CACs duties; total may not exceed $50,000 per year
Chief Executive Officer Reports to Community Advisory Committee. EBCE staff or the
Chief Executive Officer shall provide a report to the Community Advisory Committee on the
operations of the Authority during the preceding fiscal quarter. The report shall contain
information regarding the financial performance of the Authority during the preceding quarter,
the number of accounts served, the amount of power delivered, and a narrative description of
energy efficiency, energy conservation, renewable power generation, and other programs carried
out by the Authority.
Fiscal Impact:
The EBCEA Board will be asked to consider if a stipend will be provided for CAC members for their
participation in the regularly scheduled EBCEA Board meetings. Costs associated with staffing the CAC
are unknown.
B. Community Advisory Committee Conflict of Interest Policy
Pursuant to Section 4.9 of the the EBCE Joint Powers Agreement, the Community Advisory Committee is
purely an advisory body. Under the Political Reform Act (PRA) and Fair Political Practices Commission
(FPPC) Regulations Section 87100, solely advisory bodies which have no final decision-making
authority, or a pattern of approval of their recommendations without modification by the Board, are not
“Public Officials” subject to the PRA, and many State conflict of interest rules. As defined in the Joint
Powers Agreement, the CAC qualifies as a “purely advisory body at this point in time.
Although the CAC is not subject to the PRA or FPPC Rules, other CCAs with similar advisory bodies
have nonetheless adopted Conflict of Interest Policies for those bodies in order to avoid any self-dealing
or public perception of conflicts. Additionally, the adoption of a Conflict of Interest Policies would be
helpful to the EBCE in the event that the CAC be found to be not solely advisory and its members subject
to the PRA at some point in the future. At the same time, the CAC is intended to represent a “diverse
cross-section of interests, skill sets and geographic regions,” and participation by a variety of community
members should be encouraged.
The recommended CAC Conflict of Interest Policy is based on the conflict code adopted by Valley Clean
Energy for their Advisory Committee. The objective of the CAC Conflict of Interest Policy is to
encourage the participation of a variety of parties on the CAC, while also providing transparency and
requiring members to recuse from decisions directly impacting their financial interests. The requirements
are summarized as follows:
Disclosures. CAC members should provide the same disclosure as a public official would use for
the Political Reform Act (PRA).
Interests subject to disclosure. Focus on interests related to the electrical energy industry –
energy procurement and generation and then additional topics on a case by case basis.
Real Property. Real property disclosures not needed at this time but may in the future if the
EBCE engages in decisions about siting energy projects.
Disclosure thresholds. The Conflict of Interest Policy establishes specific thresholds for
disclosure of financial interests: (1) more than $500 of personal income in any year, and (2) for
business entities or investments, is worth more than $5,000 or where the member (or any
affiliates, as defined in the Code as close family members or employer) owns more than 5% of
the entity.
Disclosure process. Require annual disclosure but also disclosure and recusal on a real time basis
(i.e. interests held when the item comes before the committee).
Failure to disclose. Board discretion to determine if non-disclosure warrants removal.
The CAC Conflict of Interest Policy does not require disclosure of small scale residential or commercial
renewable energy generation facilities (e.g. roof-top solar PV of 100kW or less in size). If adopted,
Community Advisory Committee members will be required to disclose significant financial interests to
the EBCE during the interview process and fill out a Form 700 upon appointment.
The CAC Conflict of Interest Policy balances the desire for transparency and disclosure against the Joint
Powers Authority mandate to attract a broad spectrum of participants in the CAC. Staff recommends that
the Board adopt Resolution R-2017-3, approving the CAC Conflict of Interest Policy.
Fiscal Impact:
Some training and individual advice to CAC members by staff or the CEO, and in some cases, legal
counsel, may be required in order to ensure compliance with the the Conflict of Interest Policy. Costs
associated with providing training and advice are unknown.
Attachments:
9A – Community Advisory Committee Scope
9B – Resolution EBCE R-2017-3 Adopting the Community Advisory Committee Conflict of Interest
Policy
Exhibit CC - Community Advisory Committee Conflict of Interest Policy
Attachment 9A
EBCE Community Advisory Committee Scope
The purpose of the East Bay Community Energy Authority (“EBCE”) Community Advisory
Committee (“CAC”) is to advise the EBCE Board of Directors (“Board”) on all subjects related
to the operation of the Community Choice Aggregation program pursuant to California Public
Utilities Code Section 366.2 (“CCA Program”) as provided in Section 4.9 of the EBCE Joint
Powers Agreement and set forth in a work plan adopted by the Board of Directors from time to
time. The Chair of the CAC serves as a non-voting Ex Officio Board Member on the Board
pursuant to Section 4.1 of the Joint Powers Agreement.
The CAC will, under the direction of the Board and EBCE Chief Executive Officer:
1. Work on defined objectives as directed by the Board, to produce materials that will assist
the Board in decision-making.
2. Review and comment on EBCE budget and rates, policy and programs.
3. Help the Board to identify issues of concern and opportunities to educate community
members about the EBCE.
4. Identify potential partners and partnerships, which the Board may wish to pursue in
implementing EBCE.
5. Draft reports, in coordination with EBCE staff, to the Board with its findings and
recommendations.
6. Serve as an information-channel back to their colleagues and communities.
7. Represent the views of their constituencies in their comments and recommendations.
8. Other duties or tasks, as the Board shall determine in its sole discretion.
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Attachment 9B
RESOLUTION EBCE R-2017-3
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE EAST BAY COMMUNITY ENERGY AUTHORITY ADOPTING A CONFLICT OF INTEREST CODE FOR THE
EAST BAY COMMUNITY ENERGY COMMUNITY ADVISORY COMMITTEE
THE BOARD OF DIRECTORS OF THE EAST BAY COMMUNITY ENERGY AUTHORITY DOES HEREBY FIND, RESOLVE, AND ORDER AS FOLLOWS:
Section 1. The East Bay Community Energy Authority (“Authority”) was formed on December 1, 2016 pursuant to a Joint Powers Agreement to study, promote, develop, conduct, operate, and manage energy and energy-related climate change programs (“CCA Program”) in Alameda County.
Section 2. Section 4.9 of the Joint Powers Agreement authorizes the creation of a Community Advisory Committee (“CAC”) to advise the Board on all subjects related to the operation of the CCA Program.
Section 3. The CAC is a purely advisory body and therefore not subject to the Political Reform Act, Government Code §§ 81000, et seq. or the Fair Political Practices Commission (the “FPPC”) Regulations pursuant to 2 California Code of Regulations § 18100.
Section 4. Nevertheless, to promote transparency and to avoid self-dealing or the appearance of self-dealing by CAC members, the Board desires to adopt a Conflict of Interest Code for the CAC that requires disclosure of certain financial interests and recusal from decisions impacting those financial interests.
Section 5. The Board hereby adopts the East Bay Community Energy Authority Community Advisory Committee Conflict of Interest Policy, attached and incorporated herein as “Exhibit CC” as the Conflict of Interest Policy applicable to the CAC and its members.
Section 6. All CAC members required to submit a statement of economic interests shall file their statements with the Authority’s Filing Official. The Filing Official, or his or her designee, shall make and retain a copy of all statements filed with the Authority. All retained statements, original or copied, shall be available for public inspection and reproduction.
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ADOPTED AND APPROVED this ____ day of ___________, 2017.
Chair
ATTEST:
Secretary
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EAST BAY COMMUNITY ENERGY AUTHORITY CONFLICT OF INTEREST CODE
APPENDIX "A"
DESIGNATED POSITIONS
Designated Positions Disclosure Categories
Member of Board of Directors 1, 2, 3, 4
Member of Board of Directors (Alternate) 1, 2, 3, 4
Chief Executive Officer 1, 2, 3, 4
General Counsel 1, 2, 3, 4
Consultant 5
Newly Created Position *
* Newly Created Position
A newly created position that makes or participates in the making of governmental decisions that may foreseeably have a material effect on any financial interest of the position-holder, and which specific position title is not yet listed in the Authority’s Conflict of Interest Code, is included in the list of designated positions and shall disclose pursuant to the broadest disclosure category in the Code, subject to the following limitation: The Chief Executive Officer of the Authority may determine in writing that a particular newly created position, although a “designated position,” is hired to perform a range of duties that are limited in scope and thus is not required to fully comply with the broadest disclosure requirements, but instead must comply with more tailored disclosure requirements specific to that newly created position. Such written determination shall include a description of the newly created position’s duties and, based upon that description, a statement of the extent of disclosure requirements. The Chief Executive Officer’s determination is a public record and shall be retained for public inspection in the same manner and location as this Conflict of Interest Code. (Gov. Code Section 81008.)
Within 90 days of the creation of a newly created position that must file a statement of economic interests, the Authority shall update this Conflict of Interest Code to add the actual position title in its list of designated positions, and submit the amended Conflict of Interest Code to the County Administrator’s Office for code-reviewing body approval by the Alameda County Board of Supervisors. (Gov. Code Section 87306.)
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EAST BAY COMMUNITY ENERGY AUTHORITY CONFLICT OF INTEREST CODE
APPENDIX "B"
DISCLOSURE CATEGORIES
Designated positions must report financial interests in accordance with the assigned disclosure categories.
Category 1: Persons in this category shall disclose interests in real property located within the jurisdiction of the East Bay Community Energy Authority. Real property shall be deemed within the Authority’s jurisdiction if the property or any part of it is located within two miles of the borders of any of the parties to the Joint Powers Agreement for the Authority, or within two miles of any land owned or used by the Authority.
Designated persons are not required to disclose property used primarily as their principal residence.
Category 2: Persons in this category shall disclose reportable income from persons or business entities that have contracted with the Authority, or that provide, plan to provide, or have provided within two years from the time a statement is required under this Conflict of Interest Code, contractual services, or other services, supplies, materials or equipment of the type utilized by the Authority.
Category 3: Persons in this category shall disclose reportable investments in business entities that contract with the Authority or that provide, plan to provide or have provided within two years from the time a statement is required under this Conflict of Interest Code, contractual services, or other services, supplies, materials or equipment of the type utilized by the Authority.
Category 4: Persons in this category shall disclose reportable business positions in business entities that contract with the Authority or that provide, plan to provide or have provided within two years from the time a statement is required under this Conflict of Interest Code, contractual services, or other services, supplies, materials or equipment of the type utilized by the Authority.
Category 5: Each Consultant, as defined for purposes of the Political Reform Act, shall disclose pursuant to the broadest disclosure category in the Authority’s Conflict of Interest Code subject to the following limitation: The Chief Executive Officer of the Authority may determine in writing that a particular consultant, although a “designated position,” is hired to perform a range of duties that are limited in scope and thus is not required to comply fully with the disclosure requirements of the broadest disclosure category, but instead must comply with more tailored disclosure requirements specific to that consultant. Such a written determination shall include a description of the consultant’s duties and, based upon that description, a statement of the extent of the
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disclosure requirements. The Chief Executive Officer’s written determination is a public record and shall be retained for public inspection in the same manner and location as this Conflict of Interest Code.
EXHIBIT CC
East Bay Community Energy Authority
Community Advisory Committee – Conflict of Interest Policy
I. Purpose and Scope
The purpose of this Policy is to establish guidelines for the disclosure of potential
conflicts of interest by members of the East Bay Community Energy Authority (“ECBE”)
Community Advisory Committee (“Committee”). The Committee is purely an advisory body,
and its members are therefore not subject to the Political Reform Act (“PRA”), Fair Political
Practices Commission (“FPPC”) regulations, and many State conflict of interest rules.
Nevertheless, EBCE wishes to ensure that any member’s material financial interests that may be
affected by matters on which EBCE seeks input from the Committee are publicly disclosed and
known by the EBCE Board when considering the Committee’s advice and/or that the Committee
Member is disqualified from participating in providing advice on particular matters which may
materially affect the Member’s financial interests.
II. Financial Interests Subject to Disclosure
A. This policy requires the disclosure of any Qualifying Interest. A Qualifying
Interest is a financial interest owned by the Committee Member or the Committee Member’s
affiliates’ that: (1) for sources of income, generates more than $500 of personal income in any
year, and (2) for business entities or investments, is worth more than $5,000 or (3) by the
amount(s) for sources of income, business entities and investments that would require disclosure
under the PRA and the FPPC Regulations, whichever is greater. In determining whether an
interest requires disclosure or disqualification, the Committee Member and EBCE shall look to
the standards in the PRA and the FPPC Regulations. A Committee Member’s “affiliates” means
the Committee Member’s direct family (parents, spouse, siblings, minor children, and
dependents), employer, or any business entity in which the Committee Member and the
Committee Member’s Affiliate owns more than 5%.
B. As used in this Policy, a “Qualifying Interest” is any financial interest of the
Committee Member or his or her Affiliate(s) in a “Business Entity,” an “Investment,” or a source
of “Income,” as these terms are defined in the PRA1 and the FPPC Regulations as amended from
1 Government Code § 82005: “Business entity” means any organization or enterprise operated
for profit, including but not limited to a proprietorship, partnership, firm, business trust, joint
venture, syndicate, corporation or association.
Government Code § 82034: “Investment” means any financial interest in or security issued by a
business entity, including, but not limited to, common stock, preferred stock, rights, warrants,
options, debt instruments, and any partnership or other ownership interest owned directly,
indirectly, or beneficially by the public official, or other filer, or his or her immediate family, if
the business entity or any parent, subsidiary, or otherwise related business entity has an interest
in real property in the jurisdiction, or does business or plans to do business in the jurisdiction, or
has done business within the jurisdiction at any time during the two years prior to the time any
statement or other action is required under this title. An asset shall not be deemed an investment
unless its fair market value equals or exceeds two thousand dollars ($2,000). The term
“investment” does not include a time or demand deposit in a financial institution, shares in a
credit union, any insurance policy, interest in a diversified mutual fund registered with the
Securities and Exchange Commission under the Investment Company Act of 1940 or in a
common trust fund created pursuant to Section 1564 of the Financial Code, interest in a
government defined-benefit pension plan, or any bond or other debt instrument issued by any
government or government agency. Investments of an individual includes a pro rata share of
investments of any business entity, mutual fund, or trust in which the individual or immediate
family owns, directly, indirectly, or beneficially, a 10-percent interest or greater. The term
“parent, subsidiary or otherwise related business entity” shall be specifically defined by
regulations of the commission.
Government Code § 82030 - “Income” means, except as provided in subdivision (b), a payment
received, including but not limited to any salary, wage, advance, dividend, interest, rent,
proceeds from any sale, gift, including any gift of food or beverage, loan, forgiveness or payment
of indebtedness received by the filer, reimbursement for expenses, per diem, or contribution to
an insurance or pension program paid by any person other than an employer, and including any
community property interest in the income of a spouse. Income also includes an outstanding
loan. Income of an individual also includes a pro rata share of any income of any business entity
or trust in which the individual or spouse owns, directly, indirectly or beneficially, a 10-percent
interest or greater. “Income,” other than a gift, does not include income received from any source
outside the jurisdiction and not doing business within the jurisdiction, not planning to do
business within the jurisdiction, or not having done business within the jurisdiction during the
two years prior to the time any statement or other action is required under this title.
(b) “Income” also does not include:
(1) Campaign contributions required to be reported under Chapter 4 (commencing
with Section 84100).
(2) Salary and reimbursement for expenses or per diem, and social security,
disability, or other similar benefit payments received from a state, local, or federal government
agency and reimbursement for travel expenses and per diem received from a bona fide nonprofit
entity exempt from taxation under Section 501(c)(3) of the Internal Revenue Code.
(3) Any devise or inheritance.
(4) Interest, dividends, or premiums on a time or demand deposit in a financial
institution, shares in a credit union or any insurance policy, payments received under any
insurance policy, or any bond or other debt instrument issued by any government or government
agency.
(5) Dividends, interest, or any other return on a security which is registered with the
Securities and Exchange Commission of the United States government or a commodity future
registered with the Commodity Futures Trading Commission of the United States government,
Futures Trading Commission of the United States government, except proceeds from the sale of
these securities and commodities futures.
(6) Redemption of a mutual fund.
(7) Alimony or child support payments.
(8) Any loan or loans from a commercial lending institution which are made in the
lender’s regular course of business on terms available to members of the public without regard to
official status.
(9) Any loan from or payments received on a loan made to an individual’s spouse,