Local officials handling recreational marijuana issues will find guidance in two advice letters issued by the Fair Political Practices Commission in the wake of last month’s passage of Proposition 64, the Adult Use of Marijuana Act. As with all FPPC advice letters, the scope of the advice is limited to the Political Reform Act and Government Code section 1090, and the FPPC is not a finder of fact when rendering advice — so any opinion issued assumes the accuracy of all facts.
The first advice letter addresses the question of whether a councilmember may enter into a private partnership through which he or she will seek a permit for marijuana cultivation. The FPPC advised that section 1090 and the PRA do not prohibit a councilmember from entering into a partnership and seeking a cultivation permit from the city, but that the PRA would prohibit the councilmember from making, participate in making, or influencing any permit decisions. Because any action taken by the council would affect the councilmember’s real property, as well as potential future business and sources of income, the councilmember would need to recuse himself or herself from any permit decisions.
The second advice letter addresses the question of whether a county supervisor may make, participate in making, or influence decisions of the board regarding commercial medical marijuana regulation (not including cultivation) if the supervisor rents property to an adult child who has obtained a permit from the sheriff’s office to cultivate marijuana plants on the property. The FPPC advised that, because ordinances regarding other areas of commercial marijuana regulation, including dispensaries, distribution, licensing, processing, testing, and manufacturing, could affect the tenant’s business by impacting its profitability, the financial effect is foreseeable and material and the supervisor has a conflict of interest in any decision. As a result, the supervisor may not participate in the decisions.
These two advice letters do not take any bold new position on conflict of interest provisions and are fully in line with how the FPPC generally evaluates such question. However, they do represent some of the first official advice on how conflict of interest rules may affect the emerging recreational marijuana industry, as current and future elected officials potentially become more involved in commercial marijuana activities.
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