HomeMy WebLinkAbout2012/11/20 Item 03AttaUmen[ 2
oRDUVANCE No. _ SECOND PEpDiNG AND ppOPT10N
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 ADDTIVG CHAPTER 2.73 (LEGISLATIVE
COUNSEL} TO THE CHULA VISTA MUNICIPAL CODE
IN ORDER TO IMPLEMENT PROPOSITION "C",
ADOPTED AT THE NNE 2012 MLI~TICTPAL ELECTION
WHEREAS, in June of 2012, the voters of the City of Chula Vista approved Proposition
C, which amended fhe Chula Vista Charter to authorize the City Council to establish an Office of
Legislative Counsel; and
WHEREAS, the City Council fords that implementation of pcrtions of the Measure
require actions by the City Counci] 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 Proposifion 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 potenfial 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 CITY OF CHULA VISTA, CALIFORNIA, DOES
ORDAIN AS FOLLOWS:
Section 1. Recitals. The Recitals set forth above aze true and correct and
incorporated herein by reference.
Section 2. Sections 2.11.030, x.11.035, 2.11.060, 2.11.090, 2.28.310 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
Section 3. Chapter 2.73 (L.egislative 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.
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Section 5. Effective Date. This ordinance shall take effect and be in force on the thirtieth day
after its adoption.
Presented by
Patricia Aguilaz
Councilmember.
Rudy Ramirez
Councilmember
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Approved as to form by
Exhibit A
Sf~ilte4ht~exgh-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. Secfion 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 salazy of a
Superior Court Judge of the State of California. The salary of the City Attomey shall not
be reduced during the City Attorney's term of office, except as part of a general reduction
in salazies of all officers and employees in the same amount or proportion.
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Section Two. Section 2.11.035 (Benefts) 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 ofthe City. The Citv Attomev 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:
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Exhibit A
2.11.060 Boards, commissions and agencies of the City.
T~ ~ ~ - --~•.aa°~ •r•^* _~ Except as specified in CVMC Chapter 2.73 (Leeislative
Counsel the City Attorney shall advise all boazds, commissions and agencies of the City
on lega] 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 boazds, commissions and agencies of
the City shall be required to request City Council authorization prior to referrittg matters
to the City Attomey. In such cases, in order to request legal services, the boazd,
commission or agency requesting such services shall present a written request to the City
Council, which shall specify the particulaz 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 [o the City Attorney.
The City Attomey 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 Attomey, it is necessary in order to avoid a conflict of interest
under state or local law. Nothin, herein prevents the Ciri Council from using the
alternative procedures set out in CVMC Chanter 2 73 (Leeislative Counsell for the Boazd
of Ethics or the Charter Review Commission.
Section Four. Section 2.11.090 (Conflicts of Interest) is amepded to read as follows:
2.11.090 Conflicts of interest.
'*'t• * + °°••-° ~ °~ as°^ *k°k Unless the altemative procedures set out in CVMC Chapter
2 73 are followed by the Citv Councih 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 regulaz 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
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Exhibit A
C. The C-t~Attseney-Le2islative Counsel or an appointed representative shall act as
secretary to the board. The secretary shall cause notice of meetings of the boazd 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 (Legislafive Counsel) is added to reail'as follows:
CHAPTER 2.73 LEGISLATI~~ 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 V ista Charter.
B. The City Council finds that implementation of portions ofthe-Measure require
actions by the City Council to implement at the discretion ofthe 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 fmds 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 ofthis 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.
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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#heGity, 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 Ciry 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 Counsel 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 particulaz 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 ofthe 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 ofthe City Attomey 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 Attomey) and/or this Chapter.
2.73.050 CONFLICT OF INTEREST MATTERS SUBJECT TO THIS CHAP"I'ER.
The types of potential conflicts of interest covered under this Chapter subject to
review by the Office of Legislative Counsel aze limited to:
(1) Potential conflicts of interest regulated by the Califomia 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 Baz of Califomia add/or the Califomia Supreme Court;
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Exhibit A
(5) Ethical rules and regulations established and/or administered by the Chula
Vista Boazd 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 Attomey such as grant
requirements; cbiid3thons 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 Attomey or the Office of the City Attomey, the 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. tf any matter is referred back to the Legislative Counsel for action afrer making
preliminary findings, the Legislative Counsel shall implement the direction to either
further review the matter or procure a special wunsel 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 findings to the City
Attomey 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 COMNIISSION.
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Exhibit A
A. The Legislative Counsel may serve as Legal Counsel for the Charter Review
Commission upon approval of a ma}ority 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.
g. The Legislative Counsel shall consult with the City Attorney's Office when
t:ecessary to provide legal assistance to the Charter Review Commission or to avoid an
unnecessary duplication of effort.
2.73.090 Conflict Resolution.
A. 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.
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 regazding 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 fmding of a potential disqualifying conflict exists and
determine to use other legal resources in lieu ofthe 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 appeazance of a potential conflict of interest may, in their sole judgment,
undermine faith in the actions of the City.
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Office of the City Attorney
MEMORANDUM
TO: The Honorable Mayor and City Councilmembers
FROM: Glen R Googins, City Attome~'~~"--
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' Pmp C
implementation ordinance. At the end of this report I have also contained some
suggested alternatives to the Subconunittee'spmposal.
1. 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 Couacilmembers that endorsed the Charter amendment
indicated that their intent was to address circtunstances where the City Attorney had a
"conflict of interest". 1 As drafted the ordinance purports to allow the City Council to
d'lrect 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 February 28, 2012 Cit Council meeting, Councibnember Castaneda stated that be
did not want to create a aew position but wanted the ability to go outside when there was a direct conflict
with the City Atmrney. (This is consistent with the "whereas" provisions is the original drag proposition
the Councilmember Castaneda presented at the February 14°1 City Couacil meeting indicating a limited
focus on City Attomey conflicts.) Similarly, Councilmember AguUaz stated that her concern was with a
potential conflict of interest with respect to the City Attorney advising the Board of Ethics end that she
thought the Charter should be amended so that, when the City Attomey is involved in an ethical or Charter
amendment issue, oilrec counsel could be hired.
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b. The ordinance fails to resolve key issues identified by outside counsel
and the City Attorney and instead leaves snch matters to determinations by the City
either on a case by case basis or per polices and procednres adopted by the Council
In its sole discretion.
In order to complete the measure in tune 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 Ivlr. 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 recommends 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.
G With legislative counsel's duties defined so broadly, and with
potential status as a city employee, the ordinance presents the most expensive
conceivahle 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, Councihnember Ramirez)?
However, with such a broad scope of duties, and potential status as a ful[ 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 salazy 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 wunsel. The stated basis for this assertion is that since the work will
be taken 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 Councihnembers. If the concept of conflict advice to individual members is
maintained, multiple outside attorneys may be required. There wi[1 also be the need for
my office to purposefully review or duplicate legislative counsel's work in order to fulfill
Z According to the cemments of Councilmembers Ramirez, Castaneda and Aguilar at the February 2s, 2012
meeting, this was not intended to replace the City Anorney 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.z
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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 adcTCe.
3. Specific Comments
For ease of reference, the following comments are presented to respond to items
in the older 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 cleaz.
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 mote. 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 necessary 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 Boazd of Ethics. As proposed, Legislative Counsel would advise the
Board of Ethics is all matters, regardless of whether or not the City Attorney has a
conflict of interest (for example, if the City Attomey 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 Attomey 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 Board 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 51ed against City Councilpersons. These same
Councihnembets 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
Boazd members, gets to decide what the ethics code rules aze that apply to City Council
members (and others), AND hires and fires the attorney that advises the Boazd of Ethics.
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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 Atomey continue to advise the Board of Ethics
would pzovade this 13oazd She bast possible service ai thelowesE.possible wsi fo the City.
The City Attorney's office is, in many respects, uniquely qualified to advise the Board of
Ethics because (1) we are intimately familiar with the City's ethics wde and the
interpretations and advice regarding same provided over the years; (Z) we are intimately
fatiliar with the structure, relationships and workings of city government; and (3) the
City Attorney 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 Ciry Council decides, for its own benefit, that
Legislative Counsel should advise the }3aard of Ethics, I would recommend that you
consult with the Board oi' Ethics on this matter.
c. Legislative Counsel designation as potential future advisor to the
Charter Review Commission (lYew CVMC Section 2.11.110)
There is similazly no inherent conflict arising from the elected City
Attorney'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. ht 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 Council
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 Section indicates that the City Manager shall be
delegated "supervisory responsibility" for 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 c.!~eate confusion
unless clarified.
3 In the event that a complaint were ever to be filed against the City Attorney hnnself m• herself, special
counsel would be hued, by someone other than the City Attorney to advise the Board of Ethics in that ~ '
matter. This was true under the Charter at the Ynne there was an appointed City Attorney, and remains true
with an elected Ciry Attorney.
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e. Legislative Counsel Duties Create Conflicts of Interest and are Overly
Broad {CVMC SeMion 2.73.040)
Subsection A. suggests that Legislative'Counsel will`advise "individual '
councll members" on conflicts and Brown Actissnes-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 pro4posed 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-Commsel to
provide individual advice to the City Councilmembers. 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 oN+n lawyer, with duties and attorney-client
privileges flowing to them personally this potentially 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 ofresolution 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 legislafive intent of Proposition C and substantially undermines
the independence and authority of the elected City Attomey. It is inconceivable that the
voting public had auy 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 Subwmmittee's staff report is slightly more limited than the taro ~~ge in
the ordinance itself. But even this mole 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 Attomey. This concept of getting Legislative Counsel
to advise on "legislative duties" was in the original Charter amendment proposal. It was
patterned after Legislative Counsel for the State Legislature. As I've previously advised,
that context is nor analogous to the worlangs of a City or our Charter's s[mcture for the
allocation of authority. Legislators in Sacramento aze more regularly directly involved in
° tvir. Brown specifically advised that the language establishing or authorizing an aaomey-client
relationship between individual City Council members and the Legislative Counsel shoWd be struck.
Comcilmembers Ramirez and Casmneda agreed that was not their intent. February 28, 2012 Ci[y Council
meeting.
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the creation of "legislation" and the law malting 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 regazding advice to the Board of Ethics and Charter
Review Commission are discussed in Subsections 3.b and 3.c, above.
SubseMion E. goes far beyond the provision of Proposition C. in
suggesting thaz 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 Char[er 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 ofinterest (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 are 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 ultimately 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 particulaz matter. This raises a multitude of issues. For one,
it is not clear that this is legal. At the time 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 aze
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 Ivlr. Lbugh.
Even if City Council could `9egally" make such a determination, proposed
CVMC Section 2.73.050 is overbroad in its definition of potential "conflicts of interest"
in that it inc]udes 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 detemrine them. In
' February 2g, 2D72 City Council Meetnig
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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 Attorney; -They havepo,such authority with
respect w any other City official or appointee, and no one has this authority with respect
to any of them. This type of authority, azelded in the public way thatthe ordinance j
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 refeaed to an
attorney, Legislative Counsel, with a cleaz inference of the City Council's desired
conclusion: that a conflict exists. Legislative Counsel would have a built in mofivation
to find some sort of conflict, even if just an "appearance of impropriety.'.' because this will
not only safisfy 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 Resolution (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 ofP 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 ]etter 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 Councihnembers 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 from
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 Octobez 24~ti. In the
interim, the press of competing urgent City business has made it extremely 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. 1 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, pubGcIy and
privately, through the relevant committees, tluough the City Manager's office and
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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 titan a two week period this past Febmary. Mr. Brown
repeatedly emphasized the importance of utilizing a more considered and thoughtful
approach in preparing the implementing ordinance. Ivir. 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 far the prepazation 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
altemat3ve approaches to providing legal services from other public agencies.
4. Recommended Next Steps/Alternatives.
The following is a short summary of possible alternatives to the Subcommitee's
proposed ordinance designed to meet aL 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 mare 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
prefened, the Boazd 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 Attomey.t This was
true before Prop C, and is still hue.
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 Chazrter provisions that directly impact
the authority or compensation of the City Attorney. In this case I would recotttmend 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 duties to each Councihnember, the City Council members could be allowed
s Quotes are taken from MIr. Brown's presentation during the February 26, 20f2 City Council meeting
' Note: This would not be the case if City Council controlled Legislative Counsel advised die Board of
Ethics as proposed by the Subconunittee. 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.
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to use their respective funding allocations to hire their own lawyers. If any issue azises,
the Councihnember 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 "deteunine" the u]timate conflict, but could require that 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 himselflherself from advising on the subject matter.
d. Nett 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.
ce. James Sandoval, City Manager
James Lough, Special Counsel
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