HomeMy WebLinkAbout2012/11/06 Item 06CITY COUNCIL
AGENDA STATEMENT
~~~ CITY OF
CHULA VISTA
NOVEMBER 6, 2012 Item
ITEM TITLE: ORDINANCE OF THE CITY OF CHULA VISTA
AMENDING SECTIONS 2.11.030, 2.11.035, 2.11.060,
2.11.090, 2.28.110 C, AND ADDING CHAPTER 2.73
(LEGISLATIVE COUNSEL) TO THE CHULA VISTA
MUNICIPAL CODE IN ORDER TO IMPLEMENT
PROPOSITION "C", ADOPTED AT THE JUNE 2012
MUNICIPAL ELECTION
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING THE CITY MANAGER TO
SOLICIT PROPOSALS FOR LEGISLATIVE COUNSEL
AND TO ESTABLISH THE ADMINISTRATIVE AND
BUDGETARY PROCESS FOR THE OFFICE OF
LEGISLATIVE COUNSEL
SUBMITTED BY: PROPOSITIO C" IMPLEM TATION SUBCOMMITTEE
4/STHS VOTE: YES ~ NO X~
SUMMARY
Consideration of the recommendations of the Proposition "C" (Attachment "1") Council
Subcommittee to implement Prop "C" and establish new conflict procedures for the City Council
and City Attorney's Office.
ENVIRONMENTAL REVIEW
This agenda item makes no physical changes to the environment and is not subject to the
California Environmental Quality Act.
RECOMMENDATION
Council place the ordinance on first reading and adopt the resolution.
SUBCOMMITTEE RECOMMENDATION
The Council-appointed subcommittee was directed to review and recommend policy options.
It has drafted, with the assistance of outside counsel, the attached ordinance and resolution
implementing Proposition "C". The Council Subcommittee recommends the adoption of the
attached ordinance and resolution.
6-7
NOVEMBER 6, 2012, Item
Page 2 of 7
ANALYSIS
Proposition "C"
Prop "C" made a number of changes to the Chula Vista Charter. First, it limited the salary of
the City Attorney to the salary of a Superior Court Judge. Benefits are still based on those
given to other elected official in the City of Chula Vista. Second, it established a term
limitation to two terms for any City Attorney. This is the same limitation that is applicable to
other elected offices. Finally, the Measure established the Office of Legislative Counsel. The
majority of the attached proposed ordinance deals with the Council-appointed Proposition "C"
Subcommittee's recommendations for the establishment of the Office of Legislative Counsel.
The term limit provision of the Charter is self-executing and does not need an implementation
ordinance. The salary limitation requires an ordinance change that is contained in the proposed
ordinance.
Proposition "C" gives the City Council the ability to create an Office of Legislative Counsel.
Under Section Six of the attached ordinance, the Subcommittee has put forward its
recommendations for establishing the Legislative Counsel's Office.
Under Charter Section 503.1, the Charter establishes the office and describes the types of
functions that a Legislative Counsel can play. Under subsection (a), the appointment is made
at the discretion of the City Council and, if appointed, the Legislative Counsel serves at the
pleasure of the City Council.
The Legislative Counsel's duties are broken down into three areas:
(1) advice to the City Council on the City Council's legislative duties;
(2) advice to the City Council on potential conflicts of interest of the City Attorney; and
(3) advice to the Board of Ethics and the Charter Review Commission.
The advice of the Legislative Counsel would be in lieu of the City Attorney.
The Council-appointed Subcommittee worked with outside Counsel to draft the attached
implementing ordinance and resolution. Input was taken from the City Attorney by the
Subcommittee during its deliberative process with the resulting recommendation developed by
the Subcommittee.
Compensation and Benefits of City Attorney (Chula Vista Municipal Code ("CVMC")
Sections 2.11.030 & 2.11.035)
Proposition "C" changed the salary setting mechanism for the elected City Attorney. Instead
of a survey method, the salary will be set at the same level as California Superior Court Judges.
The salary shall not be reduced during the current term of office of the City Attorney, "except
as part of a general reduction in salaries of all officers and employees in the same amount or
proportion."
6-2
NOVEMBER 6, 2012, Item
Page 3 of 7
The Measure did not change the benefits received by the City Attorney, which shall remain at
the same level as the benefits of other City elected officials. CVMC Section 2.11.035 now
clarifies that the City Attorney is part of the unclassified service of the City.
City Boards and Commissions
Currently, CVMC Section 2.11.060 establishes that the City Attorney provides legal advice to
all City Boards and Commissions. The Prop "C" Council Subcommittee recommends changes
to the advisory role of the City Attorney based on the authority granted by Prop "C". The
attached ordinance, under Section 2.11.060, appoints the Legislative Counsel to serve as Legal
Counsel to the Board of Ethics instead of the City Attorney.
In addition, the changes recommended in the new CVMC Chapter 2.73 would have the new
Legislative Counsel serve as legal counsel to the Board of Ethics. Also, the-City Council could
designate the Legislative Counsel to serve as the legal counsel to the Charter Review
Commission in the future. The amendments to 2.11.060 reflect these changes.
Conflict of Interest Procedures
The current municipal code is written with the City Attorney as the focal point of all conflict of
interest legal issues. With the adoption of Proposition "C", the City Council has the ability to
utilize an alternative method of legal advice on conflict issues. Currently, CVMC Section
2.11.090 allows any officer of the City to request that the City Attorney recommend and the
City Council approve the hiring of outside counsel in the case of a potential conflict of interest.
The amendment to 2.11.090 recognizes that the alternative procedure for handling conflicts is
established under Chapter 2.73 (Legislative Counsel), which is discussed in further detail
below.
Board of Ethics
Consistent with the authority granted to the City Council under Prop "C", CVMC Section
2.28.110 is amended to recognize that, if the City Council adopts the attached ordinance, the
Board of Ethics would rely on the Legislative Counsel for legal services. Currently, the City
Attorney serves as the legal counsel and secretary to the Ethics Board. The change to CVMC
Subsection 2.28.110 C would also allow the Legislative Counsel to serve as Secretary for the
Board of Ethics.
Chapter 2.73 Establishing the Office of Legislative Counsel
Section 2.73.010- 2.73.020 (Findings and Purposes)
In order to implement the intent of Proposition "C" and establish an Office of Legislative
Counsel, Chapter 2.73 is added to the Chula Vista Municipal Code. CVMC 2.73.010 sets out
the findings leading to ordinance adoption. The next section lists the purposes behind the
ordinance.
6-3
NOVEMBER 6, 2012, Item
Page 4 of 7
Section 2.73.030 (Office of Legislative Counsel)
Section 2.73.030 establishes the Office of Legislative Counsel It allows the City Council to
either hire an outside legal counsel or establish an in-house position. If the City determines to
contract the services out, the City Manager would be in charge of the recruitment process
under the standard professional services methods in the municipal code.
While the Subcommittee does not recommend that the position be held by an employee, the
Ordinance allows a future City Council to take this approach. If the position is filled by an
employee, the employee would be a member of the unclassified service in the same manner as
other Council-appointed employees.
The Legislative Counsel would serve at the pleasure of the City Council. A majority of the full
City Council (3 members) could vote to remove the Legislative Counselat any time. The
Offtce would be an at-will position.
Section 2.73.040 (Legislative Counsel Duties)
The duties of the position are listed under this section as follows:
A. Advise individual council members on conflict of interest issues and Brown act issues,
as those laws apply to the individual council member in a particular situation, upon request of
an individual city council member.
B. Advise the City Council as a whole on resolutions and ordinances when requested by a
majority of the City Council.
C. Act as permanent advisor to the Board of Ethics.
D. Advise the Charter Review Commission on a case by case basis as determined by a
majority of the City Council.
The Legislative Counsel would be available to individual council members to provide conflict
of interest advice on their potential conflicts. This advice does not prohibit the City Council
from consulting with the City Attorney. Rather, the Subcommittee recommends this
alternative process to allow City Council members the ability to go directly to anon-elected
official for conflict advice and Brown Act advice.
The majority of the City Council could requdst Legislative Counsel assistance on advice for the
drafting of legislation such as ordinances and resolutions. This provision is not self-executing
but would require a formal referral from the City Council to retain the services of the
Legislative Counsel on a particular piece of legislation. If the legislative Counsel is not
retained, the City Attorney's office would play this traditional role. If a legislative matter is
referred to the Legislative Counsel, the Legislative Counsel could not take a partisan position
on the proposed legislation. (Chula Vista Charter Section 503.1(b).)
The Legislative Counsel is appointed the legal counsel for the Board of Ethics instead of the
City Attorney. Under the provisions of this section, the City Council can, but is not required,
to appoint the Legislative Counsel as the legal advisor to the Charter Review Commission.
6-4
NOVEMBER 6, 2012, Item ,j
Page 5 of 7
Under 2.72.040 E, the Legislative Counsel's advice would be in lieu of advice by the City
Attorney. This provision is intended to prevent duplication in services. Finally, 2.73.040 F
allows the City Council to establish written policies and procedures that further refine the
implementation of this Ordinance.
Section 2.73.050 (Covered Conflict of Interest Subjects)
The purpose of this section is to define the scope of the Legislative Counsel's authority when
reviewing conflicts of interest. Whether the potential conflicts involve individual council
members who use the legislative Counsel or potential conflicts of the City Attorney, the
Legislative Counsel may only advise on the enumerated subjects. These subjects are limited to
the types of conflicts that concern financial or personal interests. These subjects are listed as
follows:
(1) Potential conflicts of interest regulated by the California Political Reform Act of
1974 and its implementing regulations;
(2) Contracts involving a potential direct or indirect interest under Government Code
Section 1090 et. seq.;
(3) Potential common law conflicts of interest as determined by case law and other
legal precedent;
(4) The Rules of Professional Responsibility and other ethics requirements of the State
Bar of California and/or the Califomia Supreme Court;
(5) Ethical rules and regulations established and/or administered by the Chula Vista
Board of Ethics under CVMC Chapter 2.28;
(6) State of California or United States statutes, rules and regulations governing ethics
and conflicts of interest of the Office of the City Attorney such as grant requirements,
conditions of funding or other applicable rules and regulations governing ethical conduct.
By listing these subjects in the ordinance, it is clear that subjects outside of these topics are not
under the jurisdiction of the Legislative Counsel. These limitations are intended to keep the
Legislative Counsel's duties from expanding beyond the intent of Proposition "C" and the
terms of this current ordinance.
Section 2.73.060 (Procedures for Potential Conflict Evaluation)
This section sets up the formal process b}~ which conflict of interest referrals involving a
potential City Attorney conflict are handled. This process requires a referral by a majority of
the City Council. Once referred, the Legislative Counsel determines whether the matter should
be handled by the Legislative Counsel or by a specialized outside legal counsel. If an outside
counsel is recommended to be retained, it is only done so after approval of the City Council.
This section makes clear that the Legislative Counsel is subject to City Council control over
the process so that matters will only be referred out to specialized legal counsel if there is
reasonable grounds for the referral in the discretion of the City Council. The process allows
for the establishment of an expedited procedure to make sure that public hearings are not
unduly delayed.
6-5
NOVEMBER 6, 2012, Item
Page 6 of 7
Section 2.73.070 (Board of Ethics Legal Assistance)
This section implements the provisions of Proposition "C" where the City Council is allowed
to delegate to the Legislative Counsel the responsibility of advising the Board of Ethics. With
the adoption of this ordinance, the Legislative Counsel would serve as Legal Counsel and
Secretary to the Board of Ethics.
Section 2.73.080 (Charter Review Commission Assistance)
This section allows, but does not require, that the City Council appoint the Legislative Counsel
to advise the Charter Review Commission.
Section 2.73.090 (Conflict Resolution)
This section implements the provision in Proposition "C" that allows for the establishment of
alternative conflict resolution measures. (Charter Section 503.1(e).) The City Council may
establish written conflict resolution policies, after consultation with the City Attorney and
Legislative Counsel, to avoid duplicative services and to resolve potential conflict issues
promptly. In case of a disagreement concerning the Legislative Counsel's recommendation by
the City Attorney regarding a conflict of interest opinion, the City Council may authorize the
use of special counsel to meet with the Legislative Counsel and City Attorney to attempt to
resolve the differences. However, the City Council retains the authority to determine that a
finding of a potential disqualifying conflict exists and determine to use other legal resources in
lieu of the City Attorney for legal representation in the matter at issue.
Implementation Resolution
The Implementation Resolution directs City Staff to implement the provisions of the
Ordinance; once the Ordinance becomes effective. First, it directs the City Manager to begin
the process of recruiting a Legislative Counsel. The Ordinance follows the current
professional services contracting process. The City Council would approve any contract for
legal services.
Second, the City Manager would integrate the budgetary requirements for the Legislative
Counsel into the City's annual budgetary process. Currently, the City Council. has already
adopted a line item for Legislative Counsel in the 2012-2013 Budget.
Third, the City Manager is directed to supervise the Legislative Counsel. This delegation
allows the City Manager to manage the professional services contract on behalf of the City
Council
DECISION MAKER CONFLICT
No public official has a conflict of interest on this matter. As a legislative act dealing with the
general powers and duties of the City Council and City Attorney, no financial conflict exists.
Conflicts Verification By: James Lough, Special Counsel
Date: October 30, 2012
6-6
NOVEMBER 6, 2012, Item ~o
Page 7 of 7
CURRENT YEAR FISCAL IMPACT
The adoption of this Ordinance and Resolution implements the budgetary allocation already
budgeted by the City Council for the 2012-2013 Fiscal Year.
ONGOING FISCAL IMPACT
This item may result in recurring general fund costs to fund the costs of the Legislative
Counsel. However, as the Office of Legislative Counsel will assume duties already being
carried out by the City Attorney's office, most or all of the costs of the Office of Legislative
Counsel may be re-allocated from the City Attorney's budget.
ATTACHMENTS
1. Proposition "C" Charter Amendment.
2. Ordinance establishing the Legislative Counsel's Office.
3. Resolution Implementing the Legislative Counsel's Office Ordinance.
6-7
Attachment I
PROPOSITION C
LIMITING THE AUTHORITY AND COMPENSATION OF THE CITY ATTORNEY,
ESTABLISHING TERM LIMITS FOR THE CITY ATTORNEY, AND AUTHORIZING THE
ESTABLISHMENT OF THE OFFICE OF LEGISLATNE COUNSEL
Section 1. Puroose.
This charter amendment is intended to limit the authority and compensation of the City
Attorney, as specified herein, to establish term limits for the City Attorney, and to authorize the
City Council to establish the office of Legislative Counsel. These amendments to the City
Charter are intended to achieve these goals.
Section 2. Amendment of the Charter
A. Section 503 of the Charter of the City of Chula Vista is hereby amended to read as
follows:
Section 503 City Attornev: Election, Powers and Duties
(a) Designation as Officer. The City Attorney shall be an officer of the City, in addition
to any other officers designated pursuant to this Charter. Except as otherwise provided by this
Charter, it is the intent of the voters that the City Attomey shall be sufficiently independent of
the City Council and other city officials to advise the City while also acting in the best interests
of the public.
(b) Powers of the City Attomey. Except as otherwise provided by this Charter, the City
Attorney shall:
(1) Represent and advise the City Council and all city officers in all matters of law
pertaining to their offices and advise all boards, commissions, and other agencies of the City on
legal matters referred to him or her, and render written legal opinions when the same are
requested in writing by the Mayor or a member of the Council or the City Manager or any other
officer, board or commission of the City; provided, however, that the City Council may provide
by ordinance that the City Attorney shall neither advise, nor participate in the selection of special
legal counsel to advise, on conflict of interest issues involving the City Attorney.
(2) Represent and appear for the City and any city officer or employee, or former
City officer or employee, in any or all actions and proceedings in which the City or any such
officer or employee in or by reasons of his or her official capacity, is concerned or is a party;
(3) Attend all regular meetings of the City Council and give his or her opinion in
writing whenever requested to do so by the City Council or by any of the boards or officers of
the City;
(4) Approve the form of all contracts made by and all bonds given to the City,
endorsing approval thereon in writing;
6-a
Attachment 1
(5) Prepare any and all proposed ordinances or resolutions for the City, and
amendments thereto;
(6) Prosecute, if so directed by ordinance of the City Council, all offenses against the
ordinances of the City and for such offenses against the laws of the State as maybe required by
law, and shall have concurrentjurisdiction with the District Attorney of the County of San Diego
to prosecute persons charged with or guilty of the violation of the State laws occurring within the
City limits of the City of Chula Vista for offenses constituting misdemeanors;
(7) Whenever a cause of action exists in favor of the City, exercise discretion as to
when to commence or maintain legal proceedings, subject to the approval or ratification by the
City Council, when the basis for such action is within the knowledge of the City Attorney, or, he
or she shall commence or maintain legal proceedings as directed by the City Council; and
(8) Surrender to his or her successor all books, papers, files and documents pertaining
to the City's affairs.
The Council may empower the City Attorney, at his or her request, to employ special
legal counsel on a particular matter, and he or she shall have the power to appoint appraisers,
engineers and other technical and expert services necessary for the handling of any pending or
proposed litigation, proceeding or other legal matter, all within the specific budgetary authority
established by the City Council. Upon the approval of the Council, when the City Attorney has a
conflict of interest in litigation involving another officer of the City in his or her official
capacity, such other officer may retain special legal counsel at City expense, subject to the
specific budgetazy authority of the City Council. Nothing in this section 503 shall be construed
to prevent the City Attorney from giving confidential advice to the City when otherwise allowed
by law.
(c) Election; Compensation of City Attomey. The City Attorney shall be nominated and
elected in the same manner and at the same election as a member of the City Council, except as
otherwise provided in this section. The annual salary of the elected City Attorney shall be
equivalent to the salazy of a Judge of the Superior Court of the State of California. The City
Attorney shall also receive reimbursement on the order of the Council for Council-authorized
travel and other expenses when on official duty out of the City. The City Council may also
provide, by resolution, for the payment of an allowance of a sum certain per month, as
reimbursement for the additional demands and expenses made upon and incurred by the City
Attorney. The City Attorney's salary may not be reduced during the City Attorney's term of
office, except as part of a general reduction of salaries of all City officers and employees in the
same amount or proportion. In addition, the City Attomey shall be entitled to such benefits as
aze granted to other management employees of the City, as established by the City Council from
time to time. The City Attorney shall be in the Unclassified Service.
(d) Qualifications of City Attorney. No person shall be eligible for or continue to hold the
Office of City Attomey, either by election or appointment, unless he or she is a citizen of the
6-9
Attachment 1
United States, a qualified elector, and a California resident, licensed to practice law in all courts
of the State of California and so licensed for at least seven years preceding his or her assumption
of office following election under this charter.
(e) Term of Office of the City Attorney. The City Attorney shall be elected to a nominal
term of four years and shall commence on the first Tuesday of December of the year of the
election, and shall continue until a successor qualifies. The City Attorney shall be subject to The
same limits on terms of service as are applicable to the Mayor and City Council under Section
300(d).
(f) Vacancy, Filling of Upon the declaration of vacancy in the Office of the City
Attorney, the Office of the City Attorney shall be filled by appointment by the majority vote of
the members of the Council; provided, that if the Council shall fail to fill a vacancy by
appointment within sixty days after such office shall become vacant, or i-f the unexpired term of
the City Attorney shall exceed 24 months at the time of the appointment, the City Council shall
cause an election to be held to fill such vacancy. An appointee or the person elected to the
Office of City Attorney for the balance of an unexpired term shall hold of&ce until the next
general election for the Office of the City Attomey.
(g) Vacancy, What Constitutes. The Office of City Attorney shall be declared vacant by
the Council when the person elected or appointed thereto fails to qualify within ten days after his
or her term is to begin, dies, resigns, ceases to be a resident of the State or absents himself or
herself continuously from the State for a period of more than thirty days without permission from
the Council, absents himself or herself from any seven consecutive regular meetings except on
account of own illness or when absent from the City by permission of the Council, is convicted
of a felony, is judicially determined to be an incompetent, is permanently so disabled as to be
unable to perform the duties of his or her office, forfeits his or her office under any provision of
this Charter, or is removed from office by judicial procedure. A finding of disability shall require
the affirmative vote of at least two-thirds of the members of the Council after considering
competent medical evidence bearing on the physical or mental capability of the City Attorney.
B. Section 503.1 is hereby added to the Charter to read as follows:
Section 503.1. Office of Legislative Counsel; Duties.
Notwithstanding any other provision of this Charter, the Council may establish by
ordinance the office of Legislative Counsel, as described in this section.
(a) Legislative Counsel may be selected by the Council and serve at the pleasure of the
Council, on terms and conditions prescribed by the Council. Appointment or dismissal of the
Legislative Counsel shall be approved by a majority vote of the Council.
(b) Legislative Counsel may advise the Council regarding its legislative duties.
Legislative Counsel shall neither oppose nor urge enactment of any legislation.
6-10
Attachment 1
(c) Legislative Counsel may also advise the Council regarding conflicts of interest
involving the City Attorney, and whether the hiring of special counsel is therefore warranted. If
the Council approves the hiring of special counsel, Legislative Counsel may assist the Council in
the selection and appointment of special counsel.
(d) Legislative Counsel may further advise the Council or the City's Board of Ethics
concerning the City's Code of Ethics and alleged violations thereof; and further may advise the
City's Charter Review Commission. Legislative Counsel may also provide such other assistance
to the Board of Ethics in investigating or assisting the Board in the conduct of hearings,
including the hiring of special counsel to the Boazd.
(e) The Council may further provide by ordinance that the advice of the Legislative
Counsel on the matters set forth in this section 503.1 shall be in lieu of that of the City Attorney
The Council may additionally or alternatively provide by ordinance for the prevention or
resolution of conflicts and/or disputes between the City Attorney and Legislative Counsel.
Section 3. Imp]ementation
Upon the effective date of this initiative, the provisions of this initiative shall be inserted
into the Charter as amendments thereto. Any provisions of City Charter, state law or city
ordinances inconsistent with these amendments shall be unenforceable to the extent of the
inconsistency.
Section 4. Severabilit
If any word, sentence, paragraph, subparagraph, section or portion of this initiative is
declared to be invalid by a court, the remaining words, sentences, paragraphs, subparagraphs,
sections and portions are to remain valid and enforceable.
Section 5. Amendment or Repeal.
This initiative may be amended or repealed only by the voters at a City election.
Section 6. Effective Date.
If a majority of the voters voting on the proposed charter amendment vote in its favor, the
charter amendment shall become valid and binding upon filing by the California Secretary of
State.
6-11
Attachment 2
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF CHULA VISTA
AMENDING SECTIONS 2.11.030, 2.11.035, 2.11.060, 2.11.090,
2.28.110 C, AND ADDING CHAPTER 2.73 (LEGISLATIVE
COUNSEL) TO THE CHULA VISTA MUNICHPAL CODE
IN ORDER TO IMPLEMENT PROPOSITION "C",
ADOPTED AT THE NNE 2012 MUNICIPAL ELECTION
WHEREAS, in June of 2012, the voters of the City of Chula Vista approved Proposition
C, which amended the Chula Vista Charter to authorize the City Council to establish an Office of
Legislative Counsel; and
WHEREAS, the Ciry Council fords that implementation of portions of the Measure
require actions by the City Council to implement at the discretion of the-City Council; and
WHEREAS, The City Council further finds that the Chula Vista Municipal Code should
be amended to implement the Measure where City CouncIl action is required to implement
Charter Section 503.1; and
WHEREAS, the City Council further finds that this chapter is not intended to, and does
not in any way, amend or alter the provisions of Proposition C. In the event of a conflict
between this Ordinance and Proposition C, the terms of the Proposition shall prevail; and
WHEREAS, the City Council fords and determines that the establishment of an Office of
Legislative Counsel is necessary and appropriate to provide procedures to resolve potential and
actual conflicts of interest in a way that allows the public's business to be conducted in a fair and
open manner.
THE CITY COUNCIL OF THE CTIY OF CHiJLA VISTA, CALIFORNIA, DOES
ORDAIN AS FOLLOWS:
Section 1. Recitals. The Recitals set forth above are true and correct and
incorporated herein by reference.
Section 2. Sections 2.11.030, x.11.035, 2.11.060, 2.11.090, 2.28.110 C of the Chula
Vista Municipal Code are hereby amended to read as shown in Sections 1-5, inclusive, of Exhibit
"A" as though fully set forth at this point.
Secfion 3. Chapter 2.73 (Legislative Counsel) is hereby added to the Chula Vista
Municipal Code to read as shown in Section 6 of Exhibit "A" as though fully set forth at this
point.
Section 4. Certification; Publication. The City Clerk shall certify to the adoption of
this Ordinance and cause it, or a summary of it, to be published once within 15 days of adoption
in a newspaper of general circulation printed and published within the City of Chula Vista, and
shall post a certified copy of this Ordinance, including the vote for and against the same, in the
City Clerk Department in accordance with Chula Vista Charter section 311.
6-12
Section 5. Effective Date. This ordinance shall take effect and be in force on the thirtieth day
after its adoption.
Presented by
Patricia Aa filar
Councilmember.
Rudy Ramirez
Councilmember
6-13
Approved as to form by
Exhibit A
$trilr;et#aug~indicates language removed from an existing section of the municipal
code and underline denotes language that is added to an existing code section.
Section One. Section 2.11.030 (Compensation of City Attorney) is amended to read
as follows:
2.11.030 Compensation of City Attorney.
The annual salary of the City Attorney shall be equivalent to the salary of a
Superior Court Judge of the State of California. The salary of the City Attorney shall not
be reduced during the City Attorney's term of office, except as part of a general reduction
in salaries of all officers and employees in the same amount or proportion.
.... ~......., .. ~. C
1. ',J 1. !"4. A44,..-... o. T,. :.......I,,... n..h 41.:n F «..,..ln 4F,e !':t.,Pn.... n:l nl.nil
J
C1; 4 F,.nnt nn« 0 4t,~ .... nn4 ,, o..k n 1 „1 t .Ml~~l..~,l 1..,
,1/ t ....In4:n« .. ..,..l:nn Mln ..L...II l.n ,.neA :.. 41,o n..«.....«..n.. /n«,1 21 n']
e e .. ................ .... .. ~,».....,... ~......., .. .
n Fr,r I. r~nnl. , n..« 41... r:«. 4L. «,... ,.I. 4{,e r:.., n.r~-......-« n« an,.:,...nn nF4t,~ r:..
> e ....J .........D ... ... .......b.............. ~.y
> > ~
,{ 6 ....4:,... T4:.. nn4....1...11 l.n .,nnA kn nnln..l.,4a 4h
nF 4L.~ ("4, rA w,. Tl.e ., 1....1..4e,~
r J ,,, 's,~n
1. L !" A,f n« .1,...:,... on nF 41.., !':4. TrTn.. n..o« n4.~11 Ln .«n,l,, n..,:1..41~ 4,. 41.n
J bn« D ~ a
41' 1.' «..l.l~ 4:...n n44,.« 46.e nnln,.l nr:..., :~
4 I n4n« 4L, r,« T R..., nF nnnl. .
r^ F L,' 4' 41,0 ,.4',. ,.F 41,e n:r, nrtN ,.F 4l.n .. L.In
1. 11 1. M 1 nF 41.o ,. n44l.««0. ~ nn4 F .rtl.:.. 4{,e;« ~s;,.a
. n.. ...
«...1,.. .... n... nn..4«., ..4n in«a z 1 n~ ~ i ~nnn~
~~.
Section Two. Section 2.11.035 (Benefits) is amended to read as follows:
2.11.035 Benefits.
The City Attorney shall be entitled to receive benefits commensurate with the
benefits provided to other elected officials of the City. The Citv Attorney shall be part of
the Unclassified Service.
Section Three. Section 2.11.060 (Boards, commissions and agencies of the City) is
amended to read as follows:
6-14
Exhibit A
2.11.060 Boards, commissions and agencies of the City.
Except as specified in CVMC Chanter 2.73 (Legislative
Counsel the City Attorney shall advise all boards, commissions and agencies of the City
on legal matters referred to him or her. The City Council may waive the referral
requirement and authorize, by resolution, any board, commission or agency to directly
request services of the City Attorney. Otherwise, all boards, commissions and agencies of
the City shall be required to request City Council authorization prior to referring matters
to the City Attorney. In such cases, in order to request legal services, the board,
commission or agency requesting such services shall present a written request to the City
Council, which shall specify the particular matter or matters for which the board,
commission or agency seeks services, a description of the requested scope of services,
and any time constraints associated with said services. The City Council shall hear and
act upon such request during a duly noticed regular or special City Council meeting,
which may include a closed session as authorized by the Ralph M. Brown Act. If
approved, the City Council shall forward the request to the City Attorney for action. The
City Council may also, by resolution, delegate to the City Manager the authority to
approve referrals from any board, commission or agency to the City Attorney.
The City Attorney may recommend to the City Council, at any time, that a board,
commission or agency be represented by special legal counsel, when, in the sole
discretion of the City Attorney, it is necessary in order to avoid a conflict of interest
under state or local law. Nothing herein prevents the City Council from using the
alternative procedures set out in CVMC Chapter 2.73 (Legislative Counsel) for the Board
of Ethics or the Charter Review Commission.
Section Four. Section 2.11.090 (Conflicts of Interest) is amended to read as follows:
2.11.090 Conflicts of interest.
Tw~ *~°°^~°° ~-~°~a°^ «''^' Unless the alternative procedures set out in CVMC Chapter
2.73 are followed by the Ciri Council, an officer of the City may, upon recommendation
of the City Attorney and approval of the City Council, retain special legal counsel when a
conflict of interest exists between the City Attorney and such officer of the City. Under
such circumstances, the City Attorney shall make a written recommendation to the City
Council that the City retain special legal counsel. The written recommendation shall
include the basis for the conflict of interest and the timeframe, scope and legal matter for
which the outside legal counsel is recommended. The City Council shall consider and act
upon the written recommendation of the City Attorney at a duly noticed regular or special
City Council meeting, including a closed session as authorized by the Ralph M. Brown
Act.
Section Five. Chapter 2.28 (Board of Ethics), Section 2.28.110 C. shall be amended
to read as follows:
2.28.110 Organization
2
6-15
Exhibit A
C. The ~~~aefLeeislative Counsel or an appointed representative shall act as
secretary to the board. The secretary shall cause notice of meetings of the board to be
kept and distributed. The secretary shall also give appropriate and required written notice
of all meetings to all members and persons having business before the board.
Section Six. Chapter 2.73 (Legislative Counsel) is added to read as follows:
CHAPTER 2.73 LEGISLATIVE COUNSEL.
2.73.010 Findings.
A. In June of 2012, the voters of the City of Chula Vista approved Proposition C,
which amended the Chula Vista Charter.
B. The City Council finds that implementation of portions ofthe-Measure require
actions by the City Council to implement at the discretion of the City Council.
C. The City Council further finds that, under Proposition C, Charter Section 503.1
was added to the Chula Vista City Charter.
D. The City Council further finds that Charter Section 503.1 allows the City Council
to approve an implementing ordinance establishing an Office of Legislative Counsel.
E. The City Council further finds that the Chula Vista Municipal Code should be_
amended to implement the Measure where City Council action is required to implement
Charter Section 503.1.
F. The City Council further finds that this chapter is not intended to, and does not in
any way, amend or alter the provisions of Proposition C. In the event of a conflict
between this Ordinance and Proposition C, the terms of the Proposition shall prevail.
2.73.020 Purposes.
A. The City Council intends, with the adoption of this ordinance, to establish an
Office of Legislative Counsel that will fully implement the will of the voters and
establish clear procedures for the resolution of legal conflict issues.
B. The City Council does not intend by this chapter to expand or restrict the
Measure's scope or seek to address issues already addressed in the Measure.
C. This Chapter is an alternative procedure to that established by the City Council in
CVMC Section 2.11.090.
2.73.030 Office of Legislative Counsel.
A. Under the authority granted to it by Chula Vista Charter Section 503.1, the Office
of Legislative Counsel is hereby established. In its discretion, the City Council may
employ a Legislative Counsel either through contract or employment. The City Manager
shall be delegated the supervisory responsibility over the Legislative Counsel.
6-16
Exhibit A
B. All contracts for legal services as Legislative Counsel shall be governed by
CVMC 2.56.110(f) except as herein provided. The City Manager or designee shall
oversee the contract for legal services with the Legislative Counsel. Any contract may be
with an individual or law firm with an attorney designated as Legislative Counsel.
C. If the Legislative Counsel is an employee of the City, the employee shall be a
member of the Unclassified service. The Legislative Council shall report directly to the
City Council unless otherwise directed by the City Council.
D. Upon appointment by a majority of the membership of the City Council, the
Legislative Counsel shall serve at the pleasure of the City Council and may be removed
by a majority vote of the entire City Council.
2.73.040 Legislative Couusel Duties.
A. Advise individual council members on conflict of interest issues and Brown act
issues, as those laws apply to the individual council member in a particular situation,
upon request of an individual city council member.
B. Advise the City Council as a whole on resolutions and ordinances when requested
by a majority of the City Council.
C. Act as permanent advisor to the Board of Ethics
D. Advise the Charter Review Commission on a case by case basis as determined by
a majority of the City Council.
E. The advice of the Legislative Counsel on matters set forth under this chapter shall
be in lieu of the City Attorney under Charter Section 503 and CVMC Chapter 2.11.
F. Nothing here prevents the City Council from establishing or maintaining written
policies and procedures regazding conflict of interest issues and the use of outside legal
counsel in situations involving conflict of interest issues that are consistent with Charter
Sections 503 and 503.1, CVMC Chapter 2.11 (City Attorney) and/or this Chapter.
2.73.050 CONFLICT OF INTEREST MATTERS SUBJECT TO THIS CHAPTER.
The types of potential conflicts of interest covered under this Chapter subject to
review by the Office of Legislative Counsel are limited to:
(1) Potential conflicts of interest regulated by the California Political Reform Act
of 1974 and its implementing regulations;
(2) Contracts involving a potential direct or indirect interest under Government
Code Section 1090 et. seq.,'
(3) Potential common law conflicts of interest as determined by case law and
other legal precedent;
(4) The Rules of Professional Responsibility and other ethics requirements of the
State Bar of California and/or the California Supreme Court;
6-17
Exhibit A
(5) Ethical rules and regulations established and/or administered by the Chula
Vista Board of Ethics under CVMC Chapter 2.28;
(6) State of California or United States statutes, rules and regulations governing
ethics and conflicts of interest of the Office of the City Attorney such as grant
requirements, conditions of funding or other applicable rules and regulations governing
ethical.conduct.
2.73.060 PROCEDURES FOR POTENTIAL CONFLICT EVALUATION.
A. Upon referral by a majority of the City Council of a potential conflict of interest
involving the City Attorney or the Office of the City Attorney, Ybe Legislative Counsel
shall review the request and make an initial determination of the likelihood of a conflict
of interest under the categories listed under 2.73.050, above.
B. After the initial review, the Legislative Counsel shall determine if the matter
should be handled by special counsel considering the Legislative Counsel's other duties
and whether the Legislative Council has been granted the authority to hire outside
Counsel. The Legislative Counsel shall report the preliminary findings to the City
Council regarding whether a potential conflict of interest exists and whether special
counsel should be retained. The City Council shall give direction to the Legislative
Counsel on the need for additional steps to be taken in the matter as is appropriate. The
City Council may establish alternative expedited. procedures to allow for prompt review
of potential conflict of interest issues in matters involving public hearings or other time
sensitive matters so as not to unduly delay the resolution of the public's business.
C. If any matter is referred back to the Legislative Counsel for action after making
preliminary findings, the Legislative Counsel shall implement the direction to either
further review the matter or procure a special counsel to make a conflict of interest
determination. Upon completion of the review or receipt of a report from special
counsel, the Legislative Counsel shall immediately report the Endings to the City
Attorney and the City Council.
2.73.070 BOARD OF ETHICS LEGAL ASSISTANCE.
A. The Legislative Counsel shall serve as Legal Counsel for the Board of Ethics on
matters involving the City's Code of Ethics, including any potential violations thereof.
Legislative Counsel may also provide legal assistance to the Board of Ethics in its
investigations or assist in the conduct of hearings. Further, the Board of Ethics may use
the Legislative Counsel to assist the Board in retaining special legal counsel when
necessary according to assist the Board to fulfill its duties.
B. The Legislative Counsel shall consult with the City Attorney's Office when
authorized to do so by the Board of Ethics to implement new procedures, rules or fulfill
other assigned legal tasks.
2.73.080. LEGISLATIVE COUNSEL ASSISTANCE FOR THE CITY CHARTER
REVIEW COMMISSION.
6-18
Exhibit A
A. The Legislative Counsel may serve as Legal Counsel for the Charter Review
Commission upon approval of a majority vote of the City Council. Further, when
authorized by the City Council, the Legislative Counsel may assist the Board in retaining
special legal council when necessary according to fulfill the duties of the Commission.
B. The Legislative Counsel shall consult with the City Attorney's Office when
necessary to provide legal assistance to the Charter Review Commission or to avoid au
unnecessary duplication of effort.
2.73.090 Conflict Resolution.
A. The City Council may establish written conflict resolution policies, afrer
consultation with the City Attorney and Legislative Counsel, to avoid duplicative services
and to resolve potential conflict issues promptly.
B. Nothing herein prevents the use of dispute resolution mechanisms to resolve
conflict issues regarding the duties of the respective officers of the City referred to under
this Chapter.
C. In case of a disagreement concerning the Legislative Counsel's recommendation
by the City Attorney regarding a conflict of interest opinion, the City Council may
authorize the use of special counsel to meet with the Legislative Counsel and City
Attorney to attempt to resolve the differences. However, the City Council retains the
authority to determine that a finding of a potential disqualifying conflict exists and
determine to use other legal resources in lieu of the City Attorney for legal representation
in the matter at issue.
D. Nothing herein requires the Legislative Counsel or the City Attorney to
participate in any matter in which either has determined that a conflict of interest exists or
that the appearance of a potential conflict of interest may, in their sole judgment,
undermine faith in the actions of the City.
6-19
Attachment 3
Resolution No. 2012-
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CHULA VISTA AUTHORIZING THE CITY
MANAGER TO SOLICIT PROPOSALS FOR
LEGISLATIVE COUNSEL AND TO ESTABLISH
THE ADMINISTRATfVE AND BUDGETARY
PROCESS FOR THE OFFICE OF LEGISLATIVE
COUNSEL
WHEREAS, the City Council has determined to establish an Office of Legislative
Counsel to implement the intent of Proposition "C" adopted by the voters at the June
2012 Municipal Election; and
WHEREAS, the City Council, in a manner consistent with Proposition "C" and
Chapter 2.73 of the Chula Vista Municipal Code, desires to authorize the City Manager to
solicit proposals from private attorneys and law firms to serve as the Chula Vista
Legislative Counsel; and
WHEREAS, the City Council desires to authorize the City Manager to integrate
the budgetary requirements of the Office of Legislative Counsel into the annual
budgetary process and take other steps necessary to implement Proposition "C" and the
terms of its implementing ordinance.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Chula Vista, that:
1. The above recitations are true and correct.
2. The City Manager is authorized to solicit proposals from qualified law
firms and attorneys to serve as Legislative Counsel for the City of Chula Vista.
3. The City Manager is authorized to include a line item in the City's annual
budget for the Legislative Counsel.
4. The City Manager is authorized to supervise and administer the selection,
retention and supervision of the Legislative Counsel in accordance with the Provisions of
Chapter 2.73 of the Chula Vista Municipal Code.
5. This Resolution shall not take effect until the Ordinance establishing the Office
of Legislative Counsel is effective.
6-20
Presented by
Patricia Aguilar
Councilmember
Rudy Ramirez
Councilmember~
6-21
e.....,..,oa ~~ r,. f .t., t,.,
``rte.
ON OF
cHUwvls~n
Office of the City Attorney
MEMORANDUM
TO: The Honorable Mayor and City Councilmembers
FROM: Glen R Googins, City Attorne~"~ ~"~-
DATE: November 5, 2012
SUBJECT: City Attorney Comments on Subcommittee's Proposed Proposition C
Implementation Ordinance.
The following is a summary of my comments on the Subcommittees' Prop C
implementation ordinance. At the end of this report I have also contained some
suggested alternatives to the Subcommittee's proposal.
I. General Comments
a. The ordinance dramatically exceeds the "legislative intent" expressed
by the City Council during the creation of Prop C to address City Attorney
"conflicts of interest "
Each of the three Councilmembers that endorsed the Charter amendment
indicated that their intent was to address circumstances where the City Attorney had a
"conflict of interest". t As drafted the ordinance purports to allow the City Council to
direct legislative counsel to provide legal advice on virtually any matter that came before
the Council, regardless of whether or not the City Attorney's office has a conflict. This is
the very thing I warned against, and was assured by Council that this was not your intent,
at the time this measure was introduced.
' For example, during the Febmary 28, 2012 Cit Council meeting, Councilmember Castaneda stated that be
'did not want to create a new position but wanted the ability to go outside when there was a direct conflict
with the City Attorney. (This is consistent with the "whereas" provisions in the original draft proposition
the Councilmember Castaneda presented at the February 14"' City Council meeting indicating a limited
focus on Ciry Attorney conflicts.) Similarly, Councilmember Agui]az stated that her concern was with a
potential conflict of interest with respect to the City Attorney advising the Boazd of Ethics and that she
thought the Charter should be amended so that, when the City Attorney is involved in an ethical or Charter
amendment issue, other counsel could be hired.
b. The ordinance fails to resolve key issues identified by outside counsel
and the City Attorney and instead leaves such matters to determinations by the City
either on a case by case basis or per polices and procedures adopted by the Council
in its sole discretion.
In order to complete the measure in time for placement on the Tune ballot
the City Council opted not to address a number of issues identified by special counsel
Tom Brown and my office. These include the potential creation of new conflicts of
interest, the potential that certain matters exceeded City Council lawful or appropriate
authority; and the resolution of conflicting opinions and duties between legislative
counsel and the City Attorney's office. The City instead created a so-called "enabling"
Charter amendment, with advice from Mr. Brown that these issues (among others) could
and should be addressed in the ordinance. Instead, the Subcommittee's ordinance
declines again to address these issues and reconnnends that these matters be addressed
either on a case by case basis or per polices and procedures adopted by the Council in its
sole discretion in the future. This leaves the City Council with indiscriminate authority
and the unchecked ability to control how and by whom legal advice is provided to the
City.
c. With legislative counsel's duties defined so broadly, and with
potential status as a city employee, the ordinance presents the most expensive
conceivable version of legislative counsel.
Prop C was presented as a cost cutting measure by a majority of the
Council and by its proponents (including, in this capacity, Councilmember ltamirez).2
However, with such a broad scope of duties, and potential status as a full time City
employee, legislative counsel will substantially increase the cost of legal services to the
City. A lawyer qualified to serve as "Legislative Counsel" would require substantial
experience in municipal law, at least at a Deputy City Attorney III level. At current rates
for salary and benefits, such an attorney would cost between $175,000 to $200,000 per
year. If legislative counsel were a contract position and City Council meeting staffing
were required to address the broad range of duties assigned, this cost could be even
greater.
The Subcommittee staff report suggests that there will be little additional
cost for legislative counsel. The stated basis for this assertion is that since the work will
betaken away from the City Attorney funding for this work can also be extracted from
the City Attorney's budget. This analysis is faulty. The reality is there will be a
significant duplication of efforts and likely requests for additional work from individual
City Councilmembers. If the concept of conflict advice to individual members is
maintained, multiple outside attorneys may be required. There will also be the need for
my office to purposefully review or duplicate legislative counsel's work in order to fulfill
x According to the comments of Councilmembers Ramirez, Castaneda and Aguilar at the February 28, 2012
meeting, this was not intended to replace the City Attorney or create a new position. Rather, it was intended
to allow the City Council to engage another attorney on a case-by-case basis, when there was a conflict s
2
our duty to advise and defend the City in the event of a challenge to any City action,
regardless of who is providing the City its legal advice.
d. The proposed ordinance undermines the voter approved authority for
the elected City Attorney and creates the "worst of both worlds"-a conflicting,
ambiguous dual system of legal ad~7ce.
3. Specific Comments
For ease of reference, the following comments are presented to respond to items
in the order presented in the Subcommittee staff report, not in order of importance:
a. Compensation Changes (Proposed CVMC Section 2.11.030)
Tom Brown made clear in his advice and "impartial analysis" that the new
City Attomey salary formula would not go into effect until December 2014. The
implementing ordinance should be consistent with this advice and again make that clear.
The language regazding limitations on City Council reductions of the City Attomey
salary during the term is a holdover from the previous formula where the City Attomey
was guaranteed a "minimum" salary, but could be paid more. This should have been
eliminated from the original Charter revision, but was lost in the shuffle, like many other
important details, in the late night Prop C drafting process. If necessazy I would
recommend that Tom Brown be consulted on this matter.
b. Legislative Counsel designation as advisor to the Board of Ethics
(Proposed CVMC Section 2.11.110)
The Subcommittee is proposing that Legislative Counsel, not the City
Attorney, advise the Board of Ethics. As proposed, Legislative Counsel would advise the
Board of Ethics in all matters, regardless of whether or not the Ciry Attorney has a
conflict of interest (for example, if the City Attorney himself, or herself, were the subject
of an ethics complaint). I strongly recommend against assigning this duty to Legislative
Counsel.
As I have previously advised, the elected City Attorney has no inherent
conflict of interest in advising the Board of Ethics. Prior to the establishment of the
elected City Attorney, the appointed City Attorney was already subject to the ethics code.
The appointed City Attorney also advised the Boazd of Ethics. This old arrangement
actually created a conflict of interest. Having an elected City Attorney removes this
conflict. With an appointed City Attorney, that attorney advised the Board of Ethics on
all matters, including on ethics complaints filed against City Councilpersons. These same
Couucilmembers had direct control over that attorney's employment and compensation.
With an elected City Attomey this conflict is eliminated. With Legislative Counsel as
the BOE's advisor, the City regresses to the old system where the City Council appoints
Board members, gets to decide what the ethics code rules are that apply to City Council
members (and others), AND hires and fires the attorney that advises the Board of Ethics.
As proposed, the City Council's legislative counsel would advise the BOE not only on
general matters, but also on ethics complaints against the City Council members
themselves 3
Having the elected City Attorney continue to advise the Board of Ethics
would provide this Board the best possible service at the lowest possible cost to the City.
The City Attorney's office is, in many respects, uniquely qualified to advise the Boazd of
Ethics because (1) we are intimately familiar with the City's ethics code and the
interpretations and advice regazding same provided over the years; (2) we are intimately
familiar with the structure, relationships and workings of city government; and (3) the
City Attomey cannot be fired or demoted by the City Council; therefore the City
Attorney's office can advise in accordance with the law, independent of any undue
influence from City Council in matters that may be favorable or adverse to individual
Councilmember interests. Before the Giry Council decides, for its own benefit, that
Legislative Counsel should advise the Board of Ethics, I would recommend that you
consult with the Board of Ethics on this matter.
c. Legislative Counsel designation as potential future advisor to the
Charter Review Commission (New CVMC Section 2.11.110)
There is similarly no inherent conflict arising from the elected City
Attorltey's responsibilities as legal advisor to the Charter Review Commission. Because
the City Attorney's office works with the Charter every day, our attorney's are the most
qualified experts on what the Charter says, how it has been historically interpreted and
how it works in real life. In this area particularly, the City Attorney's office will provide
better service at a lower cost. Reserving the right to have Legislative Counsel advise the
Charter Review Commission on a "case by case" basis suggests that the City Council
wants to reserve its right to obtain legal advice that is favorable to the City Counci]
and/or more friendly to its objectives, regardless of the law, from an attorney. it can hire
or fire. Before the City Council decides for its own benefit that Legislative Counsel
should advise the Charter Review Commission, I would recommend that you consult
with the Charter Review Commission on this matter.
d. Who supervises Legislative Counsel? (CVMC Secfion 2.73.030)
Subsection A. of this Secfion indicates that the City Manager shall be
delegated "supervisory responsibility" far Legislative Counsel while Subsection C
indicates that Legislative Counsel shall report "directly to the City Council" unless
"otherwise directed". These provisions seem in conflict and are likely to create confusion
unless clarified.
s ]n the event that a complaint were ever to be filed against the City Attorney himself or herself, special
counsel would be hired, by someone other than the City Attomey to advise the Board of Ethics in that
matter. This was true under the Charter at the time there was an appointed City Attorney, and remains true
with an elected City Attorney.
4
e. Legislative Counsel Duties Create Conflicts of Interest and are Overly
Broad (CVMC Section 2.73.040)
Subsection A. suggests that Legislative Counsel will advise "individual
council members" on conflicts and Brown Act issues upon the request of individual
council members. This language seems to suggest that each individual Council member
is the client, not the City. This creates significant conflict of interest issues. Such issues
were identified by Tom Brown and my office at the time similaz language was included
in the First proposed version of the Charter Amendment itself. That language was
removed then, but now similaz language appears here. This language specifically
contradicts the advice given by Mr. Brown and is not authorized by the plain language of
Section 503.1, which repeatedly states that the Legislative Counsel may advise "the
Council." Nothing in the Charter amendment authorizes the Legislative Counsel to
provide individual advice to the City Cotmcilmembers. What is the intent of this
language? And what Brown Act issues are intended to be addressed? With each
individual council member being able to request advice on such matters the cost of this
could be significant. This would also result in loss of the benefit of previous body of
advice given by the City Attorney's office, and create the potential for many different
opinions to be given on similar issues and facts. If a City Councilmember wants a
conflict of interest opinion from their own lawyer, with duties and attorney-client
privileges flowing to them personally this potenflally could be accommodated. But a
mechanism other than one Legislative Counsel would need to be explored, as each City
councilperson may need to be provided their own personal "conflicts counsel."
Subsection B's reference to advice on "resolutions and ordinances" is
both too vague and too broad and, as a result, is extraordinary in its implications. Since
virtually every matter brought before the City Council for its consideration ultimately
involves some form of resolution or ordinance this language suggests that the City
Council could obtain its own advice on virtually any issue that comes before it. This is
not consistent with the legislative intent of Proposition C and substantially undermines
the independence and authority of the elected City Attorney. It is inconceivable that the
voting public had any sense that the City Council would turn Proposition C into this type
of total reallocation of authority under the Charter. The description of the effect of this
provision in the Subcommittee's staff report is slightly more limited than the language in
the ordinance itself. But even this more limited description would purportedly allow the
City Council, on virtually any matter, as often as it desired, to obtain its own legal advice
to the exclusion of the elected City Attorney. This concept of getting Legislative Counsel
to advise on "legislative duties" was in the original Charter amendment proposal. Zt was
patterned after Legislative Counsel for the State Legislature. As I've previously advised,
that context is not analogous to the workings of a City or our Charter's structure for the
allocation of authority. Legislators in Sacramento are more regularly directly involved in
° Mr. Brown specifically advised that the language establishing or authorizing an attorney-client
relationship between individual City Council members and the Legislative Counsel should be struck.
Councihnembers Ramfrez and Castaneda agreed that was not their intent. February 2S, 2012 City Council
meeting.
the creation of "legislation" and the law making process is much more intricate.
Legislative Counsel was created to advise individual lawmakers on this process. This is
not the case in Chula Vista.
Subsections C. and D regarding advice to the Board of Ethics and Charter
Review Commission are discussed in Subsections 3.b and 3.c, above.
Subsection E. goes faz beyond the provision of Proposition C. in
suggesting that Legislative Counsel advice shall be "in lieu" of the City Attorney's
advice on essentially any matter the City Council decides. To be consistent with the
Charter Amendment, reference in the ordinance should only be made to those matters
specifically allocated to Legislative Counsel in Charter Section 503.1, not the matters and
responsibilities allocated to the elected City Attorney in Charter Section 503.
Subsection F, instead of resolving issues of "conflicts of interest (not
defined), or conflicting opinions (implied, but not stated as such), reserves the right to the
City Council to maintain written rules and procedures on these issues. These aze the very
issues that this ordinance was supposed to resolve, in public, after full vetting and
discussions. To reserve the right to make policies in this context is, in effect, a claim of
reservation of absolute authority where limits on authority were supposed to be
deliberated upon and specified.
f. Alternative Procedures for Conflict Evaluation (Proposed CVMC
Sections 2.73.050 and 060).
Proposed CVMC 2.73.060, Subsections A-C, sets up a structure that
purports to give the City Council the ultunately authority to determine whether or not the
City Attorney has a "conflict of interest" sufficient to disqualify the City Attorney from
providing legal advice on a particular matter. This raises a multitude of issues. For one,
it is not clear that this is legal. At the fime he was assisting with the drafting of Prop C,
Tom Brown raised serious concerns as to whether not the City Council could legally
wield this authority. These are matters of professional and/or personal conduct that are
subject to oversight by other state or local authorities, and are not within the City
Council's natural authority. This was one of several issues of concern identified by Mr.
Brown when he stated that it "would not,be appropriate for the City Council to determine
if the City Attorney has an ethical conflict."5 I am not aware that any further analysis of
this issue has been conducted by Mr. Lough.
Even if City Council could "legally" make such a determination, proposed
CVMC Section 2.73.050 is overbroad in its definition of potential "conflicts of interest"
in that it includes common law bias, and "ethical rules and regulations" (items 3, 5 and
6). The City Council has no jurisdiction over these matters; furthermore, these are areas
where recusal can be recommended, but is usually not "determined". Regarding the City
Attorney's Rules of Professional Responsibility, the City as the "client" does have the
authority to "waive" conflicts, but, as I understand it, not to determine them. In
s February 2S, 2012 City Council Meeting
California, the State Bar assigns this duty and obligation to the attorney, and the State Bar
oversees compliance.
It is uncleaz why the City Council should be afforded this extraordinary
authority with respect to the elected City Attomey. They have no such authority with
respect to any other City official or appointee, and no one has this authority with respect
to any of them. This type of authority, wielded in the public way that the ordinance
contemplates, is also highly subject to abuse. First of all, any alleged "conflict" would be
raised and voted upon at a public meeting, by a Council majority not trained in such
matters. The implication would be that the City Attomey had done something wrong, or
failed to adequately address a "conflict" The matter would then be referred to an
attorney, Legislative Counsel, with a clear inference of the City Council's desired
conclusion: that a conflict exists. Legislative Counsel would have a built in motivation
to find some sort of conflict, even if just an "appearance of impropriety" because this will
not only satisfy his or her client, but would also create the possibility that he or she would
be rewarded with the assignment of the "reassigned" work.
g. Conflict Resolntion (Proposed CVMC Section 2.73.090)
As drafted, this Section reserves complete authority to the City Council to
determine when a conflict exists that would "disqualify" legal advice from the City
Attomey, or to establish polices over disputes over who should provide services. As
discussed above, this puts off any real discussion or resolution of these issues and
reserves complete discretion in the hands of the City Council. In my view, this expansion
of City Council authority is legally inconsistent with the letter and intent of the Charter
and the letter and intent of Proposition C.
3. The Ordinance Preparation Process.
The ordinance was prepared at the direction of Councilmembers Ramirez and
Aguilaz in a series of private meetings that they had with outside counsel. On September
26`h I was included for about 25 minutes at the tail end of one of these private meetings,
To the best of my knowledge, no input with respect to the ordinance was solicited firm
the public, the Charter Review Commission, the Board of Ethics or the City Manager.
I received a copy of the proposed ordinance on or about October 24`s. In the
interim, the press of competing urgent City business has made it exU•emely difficult for
me or my office to give the ordinance our full and proper attention. (The task was
especially difficult because of the inherent complexity of this topic and the fact that the
draft is so flawed in so many respects.) Nonetheless, I have endeavored to prepare salient
comments for your consideration in this memorandum. I would like to have gotten these
comments to you sooner.
In my opinion this is too important and too complex a matter to be addressed in
this fashion. It is my recommendation that this matter be more fully vetted, publicly and
privately, through the relevant committees, tluough the City Manager's office and
through my office. As you should recall, this was the process strongly recommended by
outside counsel Tom Brown when the Charter Amendment itself was produced with
virtually no public input aver less than a two week period this past February. Mr. Brown
repeatedly emphasized the importance of utilizing a more considered and thoughtful
approach in preparing the implementing ordinance. Mr. Brown noted that it was, "almost
impossible, on such short notice, to anticipate or forecast everything that might go wrong
or that might make this kind of ordinance impracticable" and that he was "trying to
reserve to [the City Council] not only the ability to adopt an ordinance but the ability to
decide that adopting an ordinance might be a bad idea," and that the Council may decide
not to legislate, "based on input from management staff, other cities, etc." Mr. Brown
was trying to "reserve the ability to make a more considered decision in that regard."6
Contrary to that advice, the process for the preparation and approval of this ordinance
appears to be following a similar approach as the Charter Amendment -little or no input
from the public, staff, the City's boazds and commissions, or analysis of standard and
alternative approaches to providing legal services from other public agencies,
4. Recommended Next StepslAlternatives.
The following is a short summary of possible alternatives to the Subcommitee's
proposed ordinance designed to meet at least some of the objectives of Prop C.
a. Advice to the Board of Ethics/Charter Review Commission
If the City Council really wants the Board of Ethics to be more
independent, and not more subject to City Council influence, the Council should let
Boazd of Ethics choose who it wants as its legal advisor. If an outside attorney is
preferred, the Board of Ethics, not the City Council, should choose that attorney. In no
event would the City Attorney be involved in any hiring of outside counsel or advice to
the Boazd of Ethics in any matter involving a claim against the City Attorney. This was
true before Prop C, and is still true.
Similarly, the Charter Review Commission could be given the authority,
in limited, specified circumstances, to ask for advice from outside counsel.
Circumstances could be limited to discussions of Charter provisions that directly impact
the authority or compensafion of the City Attorney. In this case I would recommend that
City Council. approval also be required.
b. Conflict of Interest Advice for City Councilmembers
Instead of Legislative Counsel advising individual City Council members
on conflict of interest issues, with the attendant conflicts between that lawyer's duty to
the City and dudes to each Councihnember, the City Council members could be allowed
e Quotes are taken from Mr. Brown's presentation during the February 28, 2012 City Council meeting
' Note: This would not be the case if City Council controlled Legislative Counsel advised the Board of
Ethics as proposed by the Subcommittee. In that case, even where a complaint was against an individual
Councilmember, the legal advisor to the BOE would be a lawyer subject to removal by the City Council.
to use their respective funding allocations to hire their own lawyers. If any issue arises,
the Councilmember could hold his or her own lawyer accountable. As an alternative, a
policy could be developed to provide contingent City indemnities for any costs incurred
by a Councihnember in defending against an FPPC claim where that Councilmember
acted upon the advice of the City Attorney.
c. City Attorney Conflicts
The City Council's ability to refer a potential City Attorney conflict of
interest to special counsel could be revised to require a 4/Sths vote. The City Council
would not have the right to "determine" the ultimate conflict, but could require tbat the
City Attorney meet and confer with Legislative Counsel and produce a report back to
City Counsel. If Legislative Counsel believes that the City Attorney has a legal conflict
under the FPPC rules, the City Council could make a public request that the City
Attorney recuse himself/herself from advising on the subject matter.
d. Neat Steps
As indicated above, I would recommend that the proposed ordinance, at a
minimum, be presented to the Board of Ethics and the Charter Review Commission for
their input. Further analysis of the issues raised in this memorandum, and other issues,
should also be conducted, along with analysis of alternatives more consistent with good
government principles, and the letter and spirit of the City Charter.
cc. James Sandoval, City Manager
James Lough, Special Counsel