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Item 11 - Review of Antidiscrimination Policy for City Investments AGENDA REPORT CITY OF POWAY This report is included on the Consent Calendar. There will be no separate discussion of the repor~ prior to approval by the City Council unless mentDers of the Council, staff or public have this report pulled for discussion, please fill out a slip indicating the report number and give it to the City Clerk prior to the beginning of the City Council meeting. TO: Mayor and M~abers of the City Council FR~M: James L. City ~V~ana~ BY: Kay D. Jimno, Director of Services DATE: May 6, 1986 ~JBJECT: Staff has been requested to prepare a six month review tion clauses add the City's ' policy, policies in state that ' will not be made with who de business with others who practice ~nis form of "social investing" has become a issue and the question is whether the City of Pow-ay should incl~e such a policy in its ' There has been D~ change in the findings which were in the staff report of November 12, 1985. A copy of that report is It is { that the city Council receive and file this report and further tJ%at staff prepare a status report on this subject for City Council review in one year. 1) Agenda Report of Nove~lber 12, 1985 ~ACTION: _.1 of 9 MAY 6 1986 ITEM AGENDA REPORT CITY OF POWAY This report is included on the Consent Calendar. There will be no separate discussion of the report prior to approval by the City Council unless members of the Council, staff or public request it to be removed from the Consent Calendar and discussed separately, If you wish to have this report pulled for discussion, please fill out a slip indicating the report number and give.it to the City Clerk prior to the beginning of the City Council meeting. TO: Mayor and Members of the City Oouncil FROM: James L. City" ~ . BY: Kay D. Jimno, Director of Servi~ DATE: November 12, 1985 ~ Staff has been to prepare a report clauses and the City's policy. policies in ' state that invest- ments will not be made with who do business with others who prac- tice This form of "social ' has becc~ a issue and the question is whether the City of Poway should include such a policy in its ' The Finance staff has policies with finance offi- cer~ from various cities in San Diego County. We have also reviewed reports the policy by the San Diego Unified School a policy that was aimed at in having ' in South Africa. In staff reviewed the San Diego City report to the San Diego City Council on an policy for fund (See "A" ) The concept of "social in the private sector where invest- ment in the stock of other is allowed. To divest of the stock of com- panies doing business with, for example, South Africa, would be a form of economic sanction against those ACTION: Received and filed report, 2 Of 9 NOV121985 iTEM 12 M,~¥6 1906 ITEIV] ~, Agenda Report Policy for City November 12, 1985 Page 2 Cities may not invest in the stock of co~I~nies. Tnerefore, the on ,, business is with banks. To withhold the City's dollars tom banks who may do business with who may have economic ' n South Africa punishes no one but the citizens of Poway who will not be ga ning the best rate of return on of their money. The City finance officers contacted ~d the use of an policy for economic and reasons. ~uch a would limit the earnings pro ~uced by ' by .the number of to c~oose from or ~ , any process to determine whether ' remain in o0mpliance with the policy would be quite time an. probably Finally, such a policy would most likely prohibit ' with the Local Agency Fund, which is part of the State Treasury and is used by many local agencies as an vehicle when bank rates are not as Due to the size of the it often pays higher returns, however, it does business with ~ institu- tions having ' that could be contrary to an policy. As a the State is working on a" plan and when ' would permit the City of Poway to benefit as a deposi- tor in the LAIF. From a practical the City is limited in where it can place invest- ments. As of the date of the last report, the City had $ invested in of deposits from 41 banks or savings and loans, $ on deposit with the State Treasury, and ' with a book value of $987,579 in National Mortgage If t e City were to withdraw the $ from the State Treasury and attempt to p ace these funds in of deposit with banks or savings and .oans, the City would not only suffer a loss in its earnings but would have a time ' this money. The City could be severly in the number of banks and savings and loan that ' could be made in, since many of these banks and savings and loans do business with who have intrests in South Africa. It is that the City Council receive and file this report and further that staff prepare a status report on this subject for City Council review in six months. /ml A) San Diego City report to San Diego City Council 3 Of 9 NOV121S85 ITEM 12 1986 ITEl¥1 OFFICE OF THE CiTY ATTORNEY BUILDING CITY OF SAN DIEGO JOHN W. WITT f619} 236-6220 OPINION NUMBER 85-1 May 8, 1985 City Council Over Fund REQUESTED BY: Rules BY: Jack Katz, Chief Deputy What is the role of the City Council its ability to direct the Board's actions and ts [ Board's] role under Charter § 1 4 n the general is the urther inquiry of whether a "Social to policy would the cited by the Board. It is our legal opinion that, to the of the San Diego City Charter, the City Council cannot direct be made by the Board. The City Council may, by . ing classes or type~ of within which by the Board shall be [Charter ¢ 144.] This it has done [see No. R-259541, dated October 31, 1983] and we shall discuss those in further detail. The Council may also amend the to or modify those ~d~-~nal classes or types of it for the Board. We shall also discuss this further on in this Suffice it' to say at this point that those are meant to guide and not The inquiry "Social as it may the cannot be at this time, as a matter of legal without further facts and It would appear, on its face, that of ' would limit with a impact In and of "Social and may very well be that is, one charged with duties may not avoid or ignore trust q Of 9 Nov ].2'~985 ITEM 12 .............. · ..... -'- · ~.~Y 6 7986 I T F... Rules -2- May 8, 1985 fund solely on a "social basis when, to do so, would impact the trust portfolio and inter~ere with of ' return. To the greatest extent possible, we intend to confine our to matters of law as they concern the Board the City in regard to ' of System funds, leaving to others the moral, social and political d' and At the Rules meeting of January 14, 1985, a was the City change its policy so that no would be placed with or doing in South Africa. See City Manager Report No. 85-44, dated January 24, 1985.] A was by the City Manager in said report and a made that current policy be , the of the Board of a report to the Rules dated January 22, 1985, in which he the same concern and but from a [trust] fund point of view. The matter was ~o March 11, 1985 for further and The Rules and 85-3 to the dated as the same day of the setting forth further and The Rules after the matter to the City Manager for further study and inpu of to the City for an opin on the role of the Council its abil ty to direct the Board and the entire matter to May 13, 1985. The City Manager has an interim report, No. 85-169, dated April 4, 1985 and indicated it will provide a full report for the Rules meeting of May 13, 1985. This opinion is our to the from the Rules This office has, on many the r le of the Board of [S~e, , dated 16, 1982 ( y Dave Morris and Apr 11, 1983 (by Jack Katz); o Law dated April , 1972 ( y Robert J. Logan) and Oct her 16, 198 (by ~ave Morris ; and Op nion No. 82-4, dated 23, 1982 (by John Kaheny .] A common thread of legal and principle in the ci ed and opinion weaves a c ear mosaic as it relates to the role and of the Board of [herein "Board"]. NOV ].2 1985 ITEM 12 5 of 9 NAY'6 1986 ITEM Rules -3- May 8, 1985 The System [herein ] is by and to San Diego City Charter § 141, et seq. Those Charter were into the current Charter at its in 1931. to the Charter, a series of have been enacted for the purpose of giving effect to those [ Code § et seq.l The Board is ~urther to enact and has enacted Board Rules to augment the by and and the and to carry out its as set forth in the Charter and Code. The duty and to invest funds is vested solely and in the Board [Charter § 144]. That is a matter of organic law and not a matter of grace; it flows from the people of The City of San Di~go via the Charter to the Board. The of San Diego, in the Charter and its various and chose to place the for and of funds in an bo~y. The to invest such funds is granted under well define [See aga.n, Charter § 144 and in Counc.1 No. R-259541.] We note, owever, that within those are st~ within the and' of the Board and are not We note fUrther that within the must be by Further, those funds were [and are] as "trust" funds, and managed for the benefit of the System and '[See Charter § 145.] The we now must address is "What is the nature and extent of duty and of the Board as against Board members are of such trust fund~ and are for that degree of and as by law. [ Civil Code § 2228, et seq.] are held to a duty of care. that duty of care the 0f good faith. [76 § 409 et seq.] The of good faith means the trustee must act in the of the trust are obliged to use utmost care to protect trust and make the trust A1 , 101 457 ~n v. Trust Co., 80 377 (1926). Board members have a to seek and obtain a maximum degree of return, bearing in mind and F the risk involved for the sole and v.,1 2 985 IT E WI 12 6 of 9 m,q¥ 1986 ITEM 11 Rules -4- May 8, 1985 purpose by the Charter. , if funds are improperly or poorly ultimate res~ lies with the Board and. liability may attach both jointly and severally. The ultimate concern is return realized as a of rudent for the benefit of the system and the and The pr nciple [citing Rules Consultant Report No. 85-3] requ res that be guided sole factors such as highest and most secure rate o trustee must act in the best of the trust The system's participants and have a clear exp that the fund will prosper by proper from our April 11, 1983 to we that ["acting in best of trust"] means that the funds must be so treated [and ] as to the return for the benefit of the of the system with given to degree of risk. Each must be against the other but the primary concern is the benefit for the well-being of the system. This is all the more tru, ly funded. The trust 'lities are such that they may not be abused or taken lightly. As the return to the system must be within a and prudent' Funds may not be because of of cause when exist which provide greater return. Such in reduced an and to that extent, a gift of public funds. '' It is that Board members are legally char ed with a , [see, January.22, 1 85 letter to ules from the of the Board of ] one which must be free from F orces see ing to direct, or impose a wil upon the Board and the trust funds, for other than that for which the fund was Those forces impose an tension on the trust funds which must be in trust fund principles. A the power to invest funds is vested n the Board, of of any other C ty entity, 'ovided that the comply with u 3g under the City Charter. The prudence or imprudence t986 ITE 7 Of 9 0V1 ;985 ITEM 12 Rules -6- May 8, 1985 fund. However, in the final the City Council is ~ and granted the sole power to with ~ion to the Board's and counsel's atlon. As earlier in this the are just that -- meant to 'and They canno an do not mandate any Upon o the Board has the sole ~ to which will be ma~ hose classes or types of by The City Council does not have the , under any of law, ~ which must be An action by Council to will, , impact the ability and role of Board members as to return and fiscal of the system. The extent of such impact is best lef~ to ' counsel and the system's actuary to and Turning to the present trust fund the therein have been ~ upon of counsel to exit · . They legally exist. The Council may not , any of the to be ' ~ A change in serve to provide only in nature and effect, for of funds. Such change does not and should not direc of present validly held. Any other could, and very would, lead to a a verse impact .on the asset value of the trust fund that said change by Council imposes or This, in turn, would impact [to an extent yet to be ] the fiscal of the system, and upon the Board's to and prudent of such trust funds. SUMMARY In summary, the Board serves in a role and must be ever mindful of the purpose for with the trust fund was i.e., to provide funds for the of the system and payment of granted by the system. In such trustee , the Board must invest the~ funds to the return for the benefit of the system, the and On the other hand, the City Council is y vested with the to classes or types of within which the Board may conduct The Charter places no upon this NOV-l 1985 ITEM 1.2 8 o f 9 Rules C -7- May 8, 1985 and, as a the ability [of the Council] to those guidelines is p however, no attempt ~s made to mandate specific · one caveat is must be given to the im act of any The f scal viabi ity of the system shoui be p The monetary o the system is calculab e and upo the a il~ty of t e system [and the Board to meet that in a and prudent manner may reate a funding In that event, however remote, the C ty may be legally lia le to the and for such short all. JOHN W. WITT, City JK:smm: 715.5: 142: (x043) 9 of 9 NOV 1 2 1985 IT E M 12 ~.~¥6 1986 ITEM ','~