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| Urban Tilth, a Richmond nonprofit that has been officially delinquent in filing with the State of California Department of Justice since May 2022, is on next week’s City Council agenda to receive over $10 million in sole source contract funding from the City of Richmond as a pass through from the State of California Strategic Growth Council.
Item v.3a: APPROVE two sole-source contracts with named grant co-applicants: 1) $7,042,833.41 with Urban Tilth and 2) $3,680,656.75 with Rich City Rides, operating with fiscal sponsorship by Urban Tilth, to implement certain subprojects funded by the $35 Million Transformative Climate Communities (TCC) Round 4 Richmond Rising Project focused on serving the Iron Triangle, Santa Fe, and Coronado neighborhoods, with a term ending December 31, 2028 – Community Development Department(Lina Velasco 510-620-6706/Samantha Carr 510-620-5407).
A charitable organization that is not in good standing with the Registry of Charitable Trusts may not operate or solicit donations in California. (Cal. Code of Regs., tit. 11, § 999.9.4.).
Urban Tilth, which is earmarked for $7,042,833 of the grant is the fiscal agent for Rich City Rides, which is earmarked for another $3,680.657 of grant money. During the ongoing delinquency, Urban Tilth has continued to fundraise and sponsor Rich City Rides, Moving Forward, and other projects – and purchased the abutting flower nursery for $5 million (https://www.latimes.com/california/story/2023-08-02/urban-farm-japanese-flower-nursery-warehouse-distribution-center-bay-area). Rich City Rides is raising millions to purchase several buildings too – a $6million fundraising campaign (https://richmondconfidential.org/2023/05/15/richmond-rich-city-rides-fundraising-campaign/).
A plausible reason that Urban Tilth remains delinquent is that they could not withstand an audit, which is required by state law for organizations of their size. A similar issue of nonprofits in San Francisco that continue to do business despite delinquency drew many headlines recently:
This doesn’t seem to bother either the City of Richmond or the California Strategic Growth Council.
Despite being a sitting City Council members, Doria Robinson is the executive director of Urban Tilth (Doria Robinson – Urban Tilth) and is virtually certain to derive fiscal benefits form this multi-million dollar City of Richmond contract.
Beyond the issue of conducting business illegally while delinquent is the troubling fact of a City Council member benefitting financially from a City contract.
Urban Tilth is a 501(c)3 California nonprofit corporation located at 323 Brookside Drive Richmond CA 94801. The EIN is 20-4124161. The 2021 Form 990 (latest available from GuideStar) for Urban Tilth showed revenue of $5,820,986, expenses of $2,839,035 and net assets of $4,709,305. It was signed by Executive Director Doria Robinson. There were 10 officers, directors and trustees listed, including Executive Director Doria Robinson and Chair Dana Perls and eight board members. Of the ten total listed, Doria Robinson was the only one shown as compensated, with reportable compensation of $143,000. Other salaries and wages total $1,600,517.
The April 7, 2022, Statement of Information filed with the California Secretary of State, listed Chief Executive Officer Doria Daniece Robinson, Secretary Jen Loy, Treasurer Ray Holgado, Board Chair Dana Perls, and Agent Doria Daniece Robinson. In the November 8, 2022, election, Doria Robinson was elected to the Richmond CA City Council, but she was not sworn in until January 10, 2023. The restated Articles of Incorporation of Urban Tilth dated November 9, 2022, listed Dana Perls as Board Chair and Jen Loy as Secretary.
Urban Tilth has been a recipient of grant funds from the City of Richmond since at least 2010. On October 27, 2022, the California Strategic Growth Council recommend award of a $35 million Transformative Climate Communities Grant to the City of Richmond for the “Richmond Rising” project. One of the co-applicants was Urban Tilth, and another was Rich City Rides, for which urban Tilth acts as fiscal agent (https://www.sgc.ca.gov/meetings/council/2022/docs/20221027-Item6_StaffReport_B.pdf). At the December 20, 2022, City Council meeting, the City Council awarded five contracts of $10,000 per co-applicant, including Urban Tilth, to cover costs associated with a “$35,000,000 Transformative Climate Communities (TCC) Round 4 Post-Award Consultation (PAC) process and to complete all the necessary documents to execute the TCC implementation grant agreement, with a term ending June 30, 2023.”
The question is whether Doria Robinson, as the highly compensated executive director of Urban Tilth, can continue to serve on the City Council of Richmond at the same time Urban Tilth becomes a sub-grantee to the City of Richmond for a $10 million TCC grant from the California Strategic Growth Council.
Initially, Urban Tilth’s subgrantee award from the City of Richmond would appear to violate Government Code Section 1090, which states:
Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity.
Section 1090 does not just apply to a governing board member, it applies to the entire board:
When Section 1090 applies, the entire governing board is precluded from entering into a contract. The financially interested member may not merely abstain from discussing and voting on a contract.[1] Government Code section 1092 provides that every contract made in violation of Section 1090 may be avoided by any party except the official who has the conflict of interest. Despite the permissive language of Section 1092, the courts have held that any contract made in violation of Section 1090 is not merely voidable, but is void.[2]
The Attorney General noted that Government Code section 1090 is a codification of the common wisdom that a person cannot serve two masters simultaneously, and that even well- meaning people may be influenced when their personal economic interests are at stake in an official board transaction. The Attorney General observed that an important purpose of Section1090 is to avoid even the appearance of impropriety in government transactions.[3] As a result, Section 1090 is construed broadly.[4]
In a 1993 opinion, the Attorney General stated:
“. . . Section 1090 is concerned with financial interests, other than remote or minimal interests, which would prevent officials from exercising absolute loyalty and undivided allegiance in furthering the best interests of their public agencies. Moreover, when Section 1090 is applicable to one member of the governing body of a public entity, the proscription cannot be avoided by having the interested member abstain; the entire governing body is precluded from entering into the contract. A contract which violates Section 1090 is void.”[5]
On the surface, it would appear that a grant from (and contract with) the City of Richmond for some $10 million dollars would be a significant financial interest or Doria Robinson, Urban Tilth’s chief executive officer with an annual salary of at least $143,000.
However, one of the exceptions to Section 1090 has been cited as a free pass for Doria Robinson.
Exceptions to the prohibition of Section 1090 are provided by Government Code section 1091 for “remote interests” and by Section 1091.5 for what might be called “noninterests.” A board member, who has a “remote interest” in a contract pursuant to Section 1091, must disclose that interest to the board and must abstain from attempting to influence other members and from voting on the contract. However, a board may approve a contract in which a member has only a remote interest, in contrast to the blanket prohibition of Section 1090, if the following conditions are met:
Discloses his or her financial interest in the contract to the public agency; Such interest is noted in the body’s official records; and The officer completely abstains from any participation in the making of the contract.[6]
In a Richmond Pulse article (February 2, 2023), Robinson stated:
RP: What does your being on City Council mean for Urban Tilth?
DR: There’s definitely some specific separations that we have to make. We’ve met with the city attorney and have a lot of clarity on when and how conflict of interest could arise, [and] if ever it does, that I’m clear and I recuse myself, and I’m not involved in any decisions that could create a conflict of interest. We’ve shifted our leadership structure within Urban Tilth. There are a number of directors who can lead without me being involved. Decisions can be made without me, without me being the last voice. We brought on new leaders. I have to be very clear and careful about conflicts of interest. I think that it means we won’t apply for some grants that the city would normally be open to any nonprofits, just because of the trouble it could cause, even though we should have full right to apply for them. We probably won’t apply for any of those over the next four years while I’m in office, and that’s fine.
Doria Robinson is both an officer and an employee of Urban Tilth, a tax-exempt nonprofit corporation. However, the exception listed in 1091(b) has its own exception in 1091.5(a)8:
That of a nonsalaried member of a nonprofit corporation, provided that this interest is disclosed to the body or board at the time of the first consideration of the contract, and provided further that this interest is noted in its official records.
This seems to indicate that the nonprofit exemption of 1091(b)(1) applies only if the officer is nonsalaried, which would deny the exemption otherwise claimed by Doria Robinson, who is a highly-paid salaried employee of Urban Tilth. Regardless of the statutory prohibitions of conflict of interest, there is the issue of the optics of a perceived conflict of interest, which erodes public confidence in government. Being both a City Council member and the highly compensated executive director of an organization having millions of dollars of active contracts with the City of Richmond and the prospect for an additional contract that is twice the organization’s current revenue just doesn’t pass the smell test.
Nothing like this has ever happened before in Richmond -- ever, but we are in a new day when the old rules and protocols don’t seem to matter anymore.
[1] 70 Ops.Cal.Atty.Gen. 45, 48 (1987).
[2] People ex rel. State of California v. Drinkhouse (1970) 4 Cal.App.3d 931.
[3] People v. Honig, 48 Cal.App.4th 289, 314 (1996).
[4] Id. at 314-15.
[5] 76 Ops.Cal.Atty.Gen. 118, 119 (1993).
[6] See, 83 Ops.Cal.Atty.Gen. 246, 248 (2000).
[1] 70 Ops.Cal.Atty.Gen. 45, 48 (1987).
[2] People ex rel. State of California v. Drinkhouse (1970) 4 Cal.App.3d 931.
[3] People v. Honig, 48 Cal.App.4th 289, 314 (1996).
[5] 76 Ops.Cal.Atty.Gen. 118, 119 (1993).
[6] See, 83 Ops.Cal.Atty.Gen. 246, 248 (2000).
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