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HomeMy WebLinkAbout2011-06-01 Board of Ethics MinutesACTION MINUTES OF SPECIAL BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA June 1 2011 Executive Conference Room 3:39 P.M. Chair Starr called the meeting to order at 3:39 p.m. 1. Roll Call MEMBERS PRESENT: Felicia Starr, Chris Schilling, Michael German, Anthony Jemison, AI Sotoa, Todd Glanz, and Norma Toothman. ALSO PRESENT: Simon Silva Staff to Board of Ethics, Glen Googins, City Attorney, and Cheryl Ponds, Legal Assistant. 2. Discussion and Action Regarding Proposed Board of Ethics Responsibilities Under the City's Campaign Contribution Ordinance. Starr stated today's meeting focused on City Council's action taken in January to assign responsibility to the Board of Ethics to hire outside counsel to act as the investigator and enforcement authority under the City's Campaign Contribution Ordinance and turned • the matter over to Googins. Googins advised the previous language and practice under the ordinance provided for the City Attorney to perform this function the idea behind that structure was that it provided a balance between two competing principles, on the one hand, state law and the City Charter provided for the City Attorney to prosecute Political Reform Act violations and local code, and also provided for the City Attorney to hire outside counsel; on the other hand the Campaign Contribution Ordinance called for potential investigation and prosecution of City Council members the very same people who hired and appointed the City Attorney and to whom the City Attorney was beholden for his or her employment. The question then became whether or not the City Attorney would be unbiased and independent in this function? Googins provided the solution was to have the City Attorney involved, however hiring outside counsel as an independent investigator and prosecutor of alleged violations of the Campaign Contribution Ordinance. Googins stated with the elected City Attorney the dynamics have changed, as there is no longer an appointed City Attorney and the conflict of interest is removed, as the City Attorney is no longer beholden to the City Council for his livelihood and arguably can now be independent and unbiased in handling allegations and violations by City Council members. Googins stated now the City Attorney is subject to these very rules, and at least as it relates to the City Attorney himself or herself with respect to allegations in conduct of a campaign couldn't be handled by the City Attorney and he should be distant from engagement in the investigation and prosecution of such matters. Googins provided the City Council solution is to have the Board of Ethics take 1 on the role of hiring and engaging the outside counsel authority in order to investigate and prosecute alleged violations under the Campaign Contribution Ordinance. The City Council proposed to do this, not only as it relates to the City Attorney's Office itself, but also with respect to all alleged violations, even violations alleged against City Council members. Googins informed the board that the City Attorney's Office had advised that this proposal violates the City Charter, which provides the authority to the City Attorney to be the legal counsel for the City and specifically to hire outside counsel. Googins additionally provided this is also something that is not currently authorized or contemplated in the Board of Ethic's role, but could be addressed by ordinance. Googins referred board member to his May 31, 2011 memo with options outlined on pages 2-3: A. Proceed to implement the City Council assignment to solicit proposals and appoint a panel of attorneys to act as the Campaign Contribution Ordinance enforcement authority; B. Recommend one or more alternatives for City Council considerations at an upcoming Council meeting. Alternatives could include (i) informal policies and procedures adopted by the City Attorney to ensure that the enforcement attorneys hired would be qualified and unbiased; (2) no City Attorney involvement in allegation against the City Attorney himself/herself; and/or (3) a completely revamped process implemented by a future Charter Amendment. The Board of Ethics could have at least some role in any of these alternatives; and C. Decline to implement the assignment and refer the matter back to City Council for further action. Chair Starr opened the matter up for discussion among the board. • German agreed with Googins that under the City Charter as presently written the board could not accept the charge to the board from the City Council. German added that a policy statement needed to be made that an appointed board such as the Board of Ethics should not be in the position of making decision such as this, but by an elected official, including the now City Attorney. German stated the removal of elected officials from the consequences of their actions in minute ways, such as this effectively insulates them from the review that they should be subject to. Discussion continued with questions by Jemison regarding City Council's desires and thoughts, from Toothman regarding this matter had been tasked to the Charter Review Commission, and additional comment by Sotoa and questions by German. Googins and Silva answered questions and addressed comments of the board. Glanz stated the board did not have the jurisdiction to deny what they had been charged with by the City Council. Glanz continued that the City Council had determined the board is to carry out this function and it is not for the board to refuse this. There was discussion surrounding the policy prepare by the City Attorney. • z • Googins responded to comments made apologizing for board members being involved in this circumstance. Googins advised there was a charge of all of them, him included to follow the Charter and Code of the City. Googins stated in this case there is an interpretation of the Charter that is inconsistent with the action take by the City Council, and they are responsible for following both. Googins informed the board that he is not recommending they be defiant of the City Council, but advised that the board needed to take the matter up in some shape or form. Additional discussion and questions continued. Silva stated in the board had some time to decide when and whether they were going to implement the policy and had about 30 days to decide if they were going to do so. Silva brought the board's attention to when they had developed interim procedures it was his advice then and still his advice that the procedures they develop have to be consistent with the Municipal Code and the City Charter. Silva stated the board had been tasked with implementing this ordinance, but there are lots of questions. The question, which has to be answered is how to implement this charge that is consistent with the Charter. Simon suggested the board ask Council how they could implement this consistent with the Charter, regarding the conflict how council can address the conflict along with recommendations on how the conflict could be addressed. Silva then went into the provision referred to by Glanz (b)(6) and informed this referred to prosecution, and the matter before the board has to do with selection of the counsel. Silva advised going to Council and asking how they could do this and be consistent with the Charter. • Googins the summary of a Memorandum From him, via Bart Miesfeld, Assistant City Attorney: In summary, the City Attorney's Office would initiate the process by establishing a list of qualified attorneys, based upon the specific criteria that could reasonably act as the Enforcement Authority under the Municipal Code. The list of qualified potential attorneys would be presented to the members of the Board of Ethics for their review. The Board would then have the obligation of selecting three to five attorney candidates to make up the final panel members to serve as the Enforcement Authority. Upon the receipt of a complaint under the ordinance the City Attorney's Office would then formally hire and assign a single attorney from the panel on a random rotating basis. Establishment of a List of Qualified Attorneys: In effort to assist the Board of Ethics in obtaining a pool of qualified attorney candidates from whom it could select the "panel" under the Ordinance, the City Attorney's Office would initiate the process by soliciting applications from attorneys interested in sitting on the panel. The City Attorney's Office would pre-screen all interested applicants based on the factors described below. All attorney applicants that appeared qualified following the pre-screening would then be presented to the Board of Ethics for consideration as members of the panel. • 3 The City Attorney would solicit applications from interested outside counsel by providing a public announcement for applications. The announcement and request for application would be contained in the following: (1) The official City Internet website; (2) the San Diego County Bar Association official publication; (3) various legal periodicals and newspapers including the San Diego Daily Transcript and the Los Angeles Daily reporter. In addition, direct referrals from members of the San Diego County Bar Association would be solicited. After receipt of applications from interested attorney candidates the City Attorney's Office would pre-screen the potential candidates under the following factors historically used to select qualified candidates. The specific criteria would include the following: (1) Member of the California Bar in good standing for a minimum of ten consecutive years; (2) Experience in general municipal public entity law; (3) Experience in some criminal investigation or prosecution establishing an understanding of the role of investigator/prosecutor; (4) Experience in civil litigation establishing an understanding of the rules of civil procedure and of the local courts; (5) Experience in or advising elected officials in their capacity as public servants; (6) Establishment of a local office or ability to provide services in San Diego County; and (7) Reasonable fees structures to assure cost effective investigations and prosecutions. Selection By the Board of Ethics of the Enforcement Authority Panel: The list of pre- screened potential attorney candidates would be forwarded to the Board of Ethics for its independent consideration. From the list of candidates the Board could select those candidates it wished to interview for the final panel. The actual selection of the panel would consist of three to five members and placement on the panel would be at the sole discretion of the Board of Ethics. The City Attorney would have no authority over the selection of qualified candidates to the final panel. Assignment of Specific Panel Enforcement Attorney: After formal establishment of the "Enforcement Authority Panel" by the Board of Ethics, the names of those attorneys on the panel would be forwarded to the City Attorney. In the event of a complaint being received under the Campaign Contribution Ordinance, the City Attorney's Office would by random process (the drawing of names) assign a specific panel attorney to investigate/prosecute the matter. Pursuant to the City Charter the City Attorney would by contract hire the randomly selected attorney. The City Attorney would not participate in the investigation or prosecution of the complaint by the selected panel attorney. Discussion continued with question raised by Toothman to Silva asking if Silva felt this proposal was transparent and in compliance with the Charter. Silva responded it was, and would be a recommendation for Council to act on, and advised that Council would make the ultimate determination to go with the original decision or change it to the board's proposal as present by the City Attorney. Silva advised this process does several things: 1) it complies with the Charter, 2) the selection criteria goes out to in a process which is public and individuals bid on it, and 3) the board will interview individuals with no Brown Act exceptions of interviews for this criteria so it would be • a done here in public; 5) and the final component being consistent with due process • requirements of selecting a hearing officer in that it has to be random from the list reason being in House vs. San Bernardino County which says you can't have prosecutors selected based on they only criteria being that they are getting paid. Silva reiterated that this process meets the legal requirement and is transparent. The forum was opened up to public comment. There was public comment by Earl Jentz, Chula Vista, California. Jentz directed board members attention to Sec. 503(b)(6) of the City Charter and provided an outline surrounding the revised Campaign Ordinance. Allison Sampite of the Star questioned if there was another body that could inherit this responsibility. Glanz responded it was not for the board or the City Attorney to determine policy, and that City Council had made the charge to the board and felt this board was the most qualified to do this. German responded the first inquiry would have to be whether action was consistent with the Charter or checking the Charter to see which other board would have jurisdiction or capacity to make the choices and which board is best equipped to do this. Googins responded the core of the City Attorney's advice was that matter to hire outside counsel could not be delegated to the Board of Ethics or any other group and as such any other group would have the same inconsistency. Allison Sampite, Star News then questioned where the money would come from for outside counsel and if there would be a limit. Googins replied that one of the actions that Council took was to eliminated the pre- budgeted amount of $100,000 from the budget, and as such whoever ended up with the authority of engaging outside counsel the money would need to come out of another line item in this years budget. Glanz questioned if these funds would come from the City Attorney's budget. Googins responded no and that he believed it was anon-departmental account budget. Googins informed there would be a provision in the upcoming years budget for resources, and should for some reason those resources are not available the City Attorney would have to go back to Council. It was MSUC (Glanz/Jemison) that the board accept Option A provided by the City Attorney to proceed to implement the City Council assignment to solicit proposals and appoint a panel of attorneys to act as the Campaign Contribution Ordinance • 5 . enforcement authority, and at the next meeting the board decide how this implementation is to be done. Motion fails -Ayes being Glanz and Schilling; Sotoa, abstaining; Nays being (Starr, Toothman, German, and Jemison). Schilling stated his concern with the process presented by the City Attorney's Office is the fact that the City Attorney qualifies to pull a list of candidates and they are going to provide the board with whom they think the board should pick. Schilling stated he felt this should be removed due to so many political favors and his feeling that the board needs to be more transparent. Schilling addressed public comment regarding why this was taking so long by responding that the board had just learned of this at the last meeting or the board would have taken action sooner had they known. Starr directed a question to Googins if the City Council was aware of the options submitted to the board. Googins replied the Council was not aware of this particular option, but was aware based on advise he had given them back in January that he would be giving the board similar advice, and that the board was charged with implementing the City Council's action, and that he had not be copying City Council on specific communication. German questioned if any objections were raised by the City Council when Googins • advised he would be submitting communications and advice to the board. Googins responded no. Glanz wanted the board to be clear that this makes the City Attorney able to form a panel exactly what the majority of Council said do not do. It was MSUC (Glanz/German) that Board of Ethics desires to implement Council's direction but recommends that Council consider adoption of the proposed hybrid contained in the June 21, 2011 memorandum from the City Attorney, with further input from the Board of Ethics on setting the pre-qualifications of the panel. Motion passes with Glanz and Schilling opposed; and ayes by Toothman, Starr, German, Jemison, and Sotoa. Googins stated that the City Attorney along with the board would need to put something together surrounding the decision made today to present to Council. Googins suggested Chair select a couple of people on the board to assist with this task. Starr stated she would be happy to assist along with Toothman. • s • 3. Public Comments. There were none. 4. Members Comments. German; and Glanz. 5. Staff Comments. There were none. ADJOURNMENT AT 5:15 p.m. to the next regularly scheduled board meeting on June 15, 2011. ~.~ Jo a alv ux Recording ecretary • • 7