Newly-minted Merced City Councilmember Mike Harris in December cast a yes vote on a multimillion-dollar construction contract awarded to a company owned by his brother-in-law.
The contract with Atwater-based Rolfe Construction was for a major road reconstruction project that began last week on a one-mile stretch of Yosemite Avenue in north Merced.
The Merced FOCUS looked further into the issue after receiving a tip from a concerned citizen.
In an interview with The FOCUS, Harris acknowledged his familial connection to Rolfe Construction, but said he consulted with Merced City Attorney Craig Cornwell before the Dec. 16 vote.
Cornwell determined that under California law, it would not be a conflict of interest for Harris to cast a vote on the contract since he would not personally financially benefit from it, city officials said. Additionally, the contract did not involve Harris’ immediate family, meaning his spouse or children.
Considering that determination, Harris, who represents City Council District 3, said voting on the project felt like the best way to represent his constituents. The project is needed and came at a good price, he said.
“For appearances sake, I could have recused myself, but I think that would have been a disservice to my district and the people I represent,” Harris said. “I’m here to represent them and to make decisions in their best interest. So absent any conflict of interest for myself, I thought it was my duty to go ahead and vote.”
Still, Merced’s City Council Code of Conduct requires council members to take into consideration another factor: the appearance of a conflict of interest.
That’s why John P. Pelissero, director of government ethics for the Markkula Center for Applied Ethics at Santa Clara University, said it would have been more prudent for Harris to recuse himself.
“Just to avoid what even their policy calls out – which is the optics of having even the appearance of a conflict of interest – it would have been prudent for the city council member to abstain from voting on this particular contract,” Pelissero said in a telephone interview with The FOCUS.
Rolfe Construction contract
Rolfe Construction was established in 1972 by Norman Rolfe, Harris’ father in law, and has done projects for the city of Merced for decades.
The company mostly works underground on residential, commercial and public works infrastructure projects for water, sewer, storm drainage, irrigation and digging trenches for joint utilities. The company works throughout the Central Valley, according to its website.
Harris said his father-in-law retired around seven years ago. The company now is run by his brother-in-law, Dennis Rolfe, with whom Harris said he and his wife do not maintain a close relationship.
The company went through the city’s competitive bidding process for the Yosemite Avenue project and was the lowest of six bids, coming in at around $5.8 million. The highest bid the city received was over $14 million.
During the Dec. 16 meeting, the city council unanimously approved the Rolfe Construction contract. Harris seconded Councilmember Shane Smith’s motion to approve the contract before the unanimous vote of approval.
The Yosemite Avenue project will fully reconstruct about one mile of roadway with lane expansions, upgrade over 5,000 feet of a sewer mainline, improve traffic signals and improve pedestrian accessibility.
The bulk of the work on Yosemite Avenue will be done between G Street and Parsons Avenue. The roadway on Mansionette Drive will also be repaired.
The construction project will require hard road closures and detours and is expected to wrap up around October. It’s funded through Measure V funding, a countywide transportation tax, and money from California’s Senate Bill 1 for road improvements.
Harris’ vote
Harris told The FOCUS he consulted with Cornwell, the city attorney, before the Dec. 16 meeting, when the Rolfe contract appeared on the city council agenda.
Since neither Harris nor his wife or children have a financial interest in the company, and the company did not contribute money to Harris’ campaign, the city attorney determined there was no conflict for Harris.
Harris has another brother-in-law who operates Phase 1 Construction, also out of Atwater. That company did contribute to Harris’ campaign, but Harris said the company doesn’t do business in Merced, adding that he would recuse himself from voting on a contract if it ever did make it to the city council dais.
The California Fair Political Practices Commission regulates and enforces the Political Reform Act, the state’s post-Watergate era law on conflicts of interest along with campaign finance, lobbying and governmental ethics.
In response to questions from The FOCUS, Merced city officials pointed to California regulations from the FPPC, which say a conflict may exist if a decision or vote results in financial benefit or loss of $500 or more for the elected official or their immediate family member.
City officials pointed to another section of code that defines immediate family members as a spouse or children.
“What does all this mean? Blood relationship is not the determination for a conflict of interest,” Merced Public Information Officer Jennifer Flachman wrote in an email. “Councilman Harris’ adult relatives, (that is, not his spouse or dependent children), where there is no financial relationship, does not create a conflict of interest.”
Perception and the taxpayer’s best interest
Pelissero, the director for Santa Clara University’s government ethics center, said many agencies include in-laws in their nepotism and conflict of interest codes.
Aside from financial benefit, Merced’s City Council Code of Conduct also calls on council members to “refrain from creating an appearance of impropriety in their actions and decisions.”
“The right thing would have been just to avoid creating any ethical questions,” he said of Harris’ vote.
“The main reason for having these kinds of conflict of interest rules is to ensure that the public interest is what is always being served, not any private or financial interest.”
The code of conduct instructs council members to act in the public interest, stating:
“Recognizing that stewardship of public interest must be their primary concern, members will work for the common good of the people of Merced and not for any private or personal interest, and they will assure fair and equal treatment of all persons, claims and transactions coming before them.”
Harris encouraged anyone who has questions or concerns about the vote to reach out to him directly.
Despite Pelissero’s opinion, Harris said he would likely vote on a Rolfe Construction contract again. If his constituents communicated their disapproval of such votes, he’d reconsider his position, Harris said.
“I’m still following what the city’s policies are,” he said. “If the city changed its policy, I would absolutely follow it.”
How we reported the story
A reporter for The Merced FOCUS received a tip in late February from a community member that Harris voted on a contract for his father-in-law’s construction company.
In mid-March, a different reporter reviewed the Dec. 16 city council agenda and watched the city council meeting and determined Harris did cast a vote for the contract.
After reviewing the FPPC conflict of interest guidelines, the reporter first contacted Merced’s public information officer about the issue in late March.
After that, the reporter sought out an independent ethics expert to weigh in for the story.
The reporter contacted Harris, who agreed to an interview in mid-April. Harris met the reporter for an in-person, on-the-record interview, shortly after work on Yosemite Avenue was scheduled to begin.
The reporter sent follow-up questions and confirmed other details for the story after interviewing Harris and before the story was published.
