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FPPC: Bushnell Right to Recuse Herself from Cannabis Tax Vote
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By Thadeus Greenson umboldt County Second District Supervisor Michelle Bushnell was correct to recuse herself from discussing and voting on local cannabis tax relief earlier this year, the California Fair Political Practices Commission has advised, finding she had an economic interest in the issue. The FPPC informed Bushnell of its decision in a recent letter, which was sent in response to her request for “advice” and, as such, is not a legally binding opinion. But the FPPC was unequivocal that Bushnell’s holding state and county permits to cultivate 1 acre of cannabis on a property she owns in southeastern Humboldt County legally prohibits her from voting on changes to local cultivation taxes, at least as they pertain to outdoor farms. The fact that Bushnell has not begun cultivating the property is irrelevant, the FPPC wrote, as changes to the tax “would have a reasonably foreseeable, material financial impact on [her] real property interest.” A possible exception — which applies when an elected official’s financial interest in the issue is “indistinguishable from the effect on the public generally” — does not apply, the FPPC found, as Bushnell’s permitted cultivation area is roughly fourtimes larger than the average permitted cultivation site of one-quarter of an acre. As such, a decision financially impacting the property would constitute a “unique effect,” the FPPC found. The issue of Bushnell’s potential conflict of interest burst into public view as the board was set to hold a Feb. 1 public hearing to consider reducing or repealing Measure S, a voter approved annual tax of $3 per square foot of indoor cultivation area, $2 per square foot of mixed light cultivation and $1 per square foot of outdoor cultivation. Spurred by the state’s crashing wholesale cannabis market and having long complained of being overtaxed and over-regulated, local farmers had been making a concerted effort for weeks to get the Humboldt County Board of Supervisors to take up the issue. A lot of that effort — in the form of calls and emails — was reportedly direct-
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ed at Bushnell, whose district is home to the majority of Humboldt County’s licensed farms and who sat on the board’s ad-hoc cannabis subcommittee with Fifth District Supervisor Steve Madrone. The push worked, as the subcommittee asked that the issue be put before the full board at a special hearing. But when the Feb. 1 meeting opened, Bushnell announced she would have to recuse herself — an announcement that seemed to blindside the dozens of representatives of the cannabis industry who would later address the board that day. In retrospect, it seems it shouldn’t have. When campaigning for office in 2020, Bushnell was open about being in the process of seeking a cultivation permit and many seemed to relish her election as the county’s first “out-of-the-closet cultivator” to serve in perhaps the world’s most famous cannabis county. Bushnell also is listed as the property owner for two other permitted grows — a fact she has similarly been open about. But the prospect of Bushnell recusing herself from a vote was not something that had seemingly been discussed publicly, even as Bushnell participated in other votes impacting the industry. Perhaps most notable among those votes was one in October to allow cannabis farmers to make late payments without penalty on the second installment of 2020 Measure S payments. For her part, Bushnell said the issue first came up during a conversation with her lawyer after Boot Leg Farms LLC, a company owned by she and her husband, received a state cultivation permit Jan. 3. Still unsure if they would cultivate the property given the state of the cannabis market in California, Bushnell realized if she did, she could face a Measure S tax bill of up to $43,560. Bushnell said her lawyer was adamant: “You cannot do this.” The FPPC has now essentially agreed. But Bushnell’s case seems to underscore the complexities at play under California’s Political Reform Act of 1974 and associated laws designed to promote transparency and accountability, in part by purging
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Continued on next page » northcoastjournal.com • Thursday, June 2, 2022 • NORTH COAST JOURNAL
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