On May 15, 1995, Supervisor Gary Giacomini received a $1,500 contribution from Kitchell Cem, Inc. The Buck Center's construction management firm. The Committee to Save Mt. Burdell thinks this contribution disqualifies him from voting in any Marin Local Agency Formation Committee's (LAFCo) proceedings; including the annexation request from the city of Novato to annex the land on which the future Buck Center will be built.
To bolster this claim, the Committee to Save Mt. Burdell quotes the Government Code, section 84308: "No officer of an agency shall make, participate in making or in any way make, or in any way attempt to use his or her official position to influence the decision in a proceeding involving a license, permit or other entitlement for use pending before the agency if the officer has willfully or knowingly received a contribution in the amount of more than $250 dollars within the preceding 12 months from a party or his or her agent if the officer has reason to know that the participant has a financial interest in the decision."
Whether Giacomini will receive any financial benefit from the construction of the Buck Center is not known. It is known that some of his friends will receive a financial benefit from the construction of the Center.
Government Code section 84308 requires an officer to return a contribution "within 30 days from the time (the officer) knows or should have known about the contribution and the proceeding." Evidently Giacomini had some idea that he should not vote and would receive some financial interest from the Center, because he returned the contribution in the middle of November when he knew the Buck Center's application was pending before LAFCo. But this hardly satisfies the requirement of Government Code 84308 because the code says 30 days and Giacomini kept the contribution from May 10th until the middle of November.
In a letter to LAFCo, the Committee to Save Mt. Burdell's lawyer, J. William Yeates of Sacramento, writes: "LAFCo's January 4, 1996 annexation proceedings for the Buck Center project has been irreparably tainted by Commissioner Giacomini's improper participation in the decision-making process. He should not have participated at all in the proceeding. Yet, he clearly participated among the colleagues on LAFCo, as well as with the Novato City Manager during the public hearing process. In fact, Commissioner Giacomini made the very motion that was adopted by the agency—an act for which he had no authority."
The letter continues, "On behalf of my client, the Committee to Save Mt. Burdell, I urge you to set aside your January 4, 1996 decision, expunge the record, and reschedule a public hearing without any public participation from Commissioner Giacomini, as required by law."
This request was granted, and a rehearing was scheduled for February 8, 1996, but a charge was requested of $600 plus $50/hour as long as the meeting lasts.
The lawyer for the Committee to Save Mt. Burdell immediately answered saying, "After reading Section 56857 of the Government Code, I could not find any authority for charging any person who files a request for reconsideration with you. However, since your letter takes the demand as a matter of fact, I assume that there must be a local regulation that your agency has adopted and is implementing that requires the payment. Please send me a copy of the regulation or refer me to the statutory authority that authorizes your agency to charge my client the reconsideration fee. Otherwise, on behalf of my client, I request you waive the fee in this matter. This appears particularly appropriate in this instance, since my client's request for reconsideration involves the qualifications of a member's participation rather than a modification of the adapted annexation resolution."