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HomeMy WebLinkAbout2011-05-18 Board of Ethics Minutesi ACTION MINUTES OF BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA Ma 18 2011 Executive Conference Room 3:35 P.M. Chair Starr called the meeting to order at 3:35 p.m. 1. Roll Call MEMBERS PRESENT: Felicia Starr, Chris Schilling, AI Sotoa, Todd Glanz, Michael German (arrived late during Item 6 -arrival time not noted), Anthony Jemison (3:52 p.m.). MEMBERS ABSENT: Norma Toothman. ALSO PRESENT: Deputy City Attorney Simon Silva, Staff to Board of Ethics; Glen Googins, City Attorney; and Cheryl Ponds, Legal Assistant. MEMBERS ABSENT: Chair Starr made a motion to move Item 6 up on the agenda. It was MSUC (Sotoa/Glanz) to move Item 6 up on the agenda. 6. Discussion Regarding Proposed Board of Ethics Responsibilities Under the City's Campaign Contribution Ordinance. Chair Starr gave the floor to Googins. Googins presented the topic of discussion of the City Council's action to expand the authority of the Board of Ethics into the Campaign Contribution Ordinance. Googins continued, that In May of 2010 the City Council initiative, primarily the City Attorney's Office embarked upon a review of the City's Campaign Contribution Ordinance evaluating various issues that City Council members had raised and changes that had occurred in campaign finance law since the last update. Googins advised said changes were finally approved by City Council in January 2011, and action taken related directly the board and its authority is City Council's action to replace the City Attorney as the party that hires outside counsel to investigate and prosecute Campaign Contribution Ordinance violations with the Board of Ethics. Googins stated concerns transferring said authority from the City Attorney to the Board because the Charter vested this authority in the City Attorney and did not permit City Council to transfer this authority. Googins further stated, not withstanding said advice City Council directed the City Attorney's Office to proceed with this particular change amongst others and ultimately the City Attorney provided City Council with a formal written opinion supporting the City 1 Attorney's advice, yet the City Council still adopted the ordinance. Googins provided • the board with options being to proceed with Council action and adopt appropriate ordinance changes or rules and procedures in order to allow the board to fulfill their responsibility or to take some alternative action, which could include reporting back to Council of the board's desire to proceed otherwise either to request some change from Council or some alternative approach to Council assign this authority. Googins advised there are certainly other jurisdictions that use the Board of Ethics in a more expanded capacity and use the Board of Ethics in the campaign finance law context, for example City of San Diego who actually has their Board of Ethics as the enforcement authority. Googins relayed he was here to answer any questions the board may have surrounding this issue. Chair Starr questioned if this would then become a body that would render punitive damages towards a violation. Googins responded no, that role would be very limited with the board's only responsibility being to solicit interest in legal counsel to fulfill the responsibility of investigating and prosecuting campaign contribution violations. Glanz asked if when someone brought a complaint related to the campaign finance ordinance whether it was already in place that the City Attorney's Office would not handle this, but the matter would be handled outside. • Googins stated that the City Attorney's Office was currently not involved in the investigation and prosecution of these cases. Glanz questioned if this was only related to who was going to hire outside counsel, and if the vote was unanimous that City Council wanted the Board of Ethics to do the hiring. Glanz then questioned if whether the board had to deliberate on whether to set up the panel. Googins responded this was an option. Chair Starr replied for now this was just a discussion item and the matter would have to be placed on an agenda. German agreed with Chair Starr that on notice grounds alone the board couldn't do anything but discuss the matter. German also stated he would like to see the City Attorney's opinion given to the City Council and that it would be prudent for the board to hold off on any action until such time. Googins stated he would not be giving the board the same analysis provided to the City Council as this information was privileged to the City Council, but he would provide the same analysis and conclusions as related to the board's role. • , Schilling questioned timeline and wanted to know if board members only had until their next meeting to make a decision. Googins responded yes, as well as potentially implementing the process at a special meeting thereafter. Googins advised they would provide the board with materials and asked that the board not discuss the memo provide due to attorney-client privilege. The item was then opened up to public comment by Chair Starr. An unidentified male speaker spoke on his review of the history of the Board of Ethics and stated everything that had occurred as far as the Board of Ethics is concerned has been political. German moved that the consideration of the proposal adopted by the City Council's Ordinance No. 3179 be put on the agenda for the next regular meeting of the Board of Ethics. Schilling questioned if whether the board should schedule a special meeting to consider the proposal in order for the board to set up a process to take action at the next regularly scheduled meeting. Glanz was unclear of the motion on the table. • German clarified and amended his previous motion. It was MSUC (German/Starr) that the Board of Ethics hold a special meeting on June 1, 2011, to consider the proposed Ordinance No. 3179 sent to the board by the City Council. 2. Approval of Minutes of April 20, 2011, and Ad Hoc Committee Minutes of February 17, 2011, February 24, 2011, and May 12, 2011. The minutes of April 20, 2011, were tabled to the next meeting It was MSUC (Sotoa/Starr) to approve the February 17, 2011 Ad Hoc Committee Minutes. It was MSUC (German/Starr) to approve the February 24, 2011 Ad Hoc Committee Minutes. It was MSUC (Jemison/Starr) to approve the May 12, 2011 Ad Hoc Committee Minutes. • • 3. Review of Chapter 2.28. Silva advised that at the last Ad Hoc meeting the members discussed the process after the initial prima facie review the steps that would occur with the recommendation being that the board would consider various courses of action, 1) setting the matter for a probable cause hearing, 2) create an ad hoc committee including one member or three or less members to conduct an investigation; 3) hire subject to availability an investigator to investigate the complaint, 4) direct the parties to provide additional information. Silva stated the recommendation to address the public's concern in terms of the names of the complainant would be that the names of the complainant would be release unless the complainant filed a declaration under penalty of perjury explaining what specific facts that if they exposed their identity they would suffer physical harm or retaliation. Silva stated the rule is the name is public unless the complainant provides causes to keep the name private, which mimics what the FPPC does. Silva went on to say the committee then discussed the conduct at the probable cause hearing, which would be like a mini hearing, both sides having the opportunity to make an opening statement, present evidence, have witnesses testify, and cross-examine the witnesses. Silva stated the amount of cross-examination and amount of evidence, being that this is not a full blown hearing could be controlled by the board so the board would have the discretion to decide how much evidence they would consider. Silva • then said the standard of proof of probable cause would be a strong suspicion that the allegation may be true, similar to the standard in criminal cases in preliminary hearings where there is probable cause. Silva advised that the board then discussed what would occur at the full hearing, which would generally follow the same format with the standard of proof being preponderance of the evidence, the common standard in administrative hearings. Silva then stated in order for there to be a finding of misconduct 2.28 currently requires there be a vote of five (5) members. Silva further stated, after the full hearing is completed the board would make a recommendation as to what action City Council should take at which point Council will decide what action to take based on the findings of the board. Silva relayed that in the process at any point the case gets dismissed for whatever reason the board has the authority to 1) if a violation that the board feels should go to another prosecuting agency they have the ability to forward to another agency even if the misconduct the board observed isn't something they have jurisdiction over; and 2) if the board sees issues in the process or something that really doesn't fall within the rules they can still make a report or referral to City Council for other types of action, including legislative changes. Silva informed the board the next steps would be review of middle language, which talks about duties of the board, and records. The board would next clean the entire 2.28 up, prepare a staff report, and come back to the entire board with the full issues for their • < • recommendations to take it to Council. Further discussion and questions occurred. 4. Discuss Inclusion of Board of Ethics Complaint Form on City Attorney Website. Silva advised he could have Board of Ethics Complaint Form put on the City Attorney's website and that he would contact the webmaster to do so. 5. Resolution Adopting Complaint Process Guidelines. Silva distributed documents and stated that at a previous meeting the board discussed putting into writing what the current practices are, as such a Resolution adopting Complaint process Guidelines was prepared. Silva then read the resolution. It was MSUC (German/Glanz) to approve the Resolution adopting complaint process guidelines as amended. 7. Public Comments. Jerry Thomas, Chula Vista, California made a personal statement regarding what the City has gone through, and the millions of dollars being spent on frivolous and shallow complaints, and questioned when the last time was that an actual complaint stuck. • Jentz commented on Item 6. There were not other public comments. 8. Members Comments. Glanz commented on Item 6. German commented regarding public comments stating comments are welcome, but please make sure they are informed comments. Sotoa echoed German's comments regarding public comments 9. Staff Comments. Silva stated that at the last meeting the board directed the City Attorney's Office to look to see how they can address or take appropriate action on an alleged Brown Act violation, which may have occurred by another agency that may be investigated by the District Attorney's Office. Silva informed he had been tasked to contact the District Attorney's Office and offer assistance to include possibly providing the transcript of the hearing in which the subject was discussed. • _ Silva then commented that he would endeavor to find the dates for the hearings in • which the Campaign Ordinance was discussed. ADJOURNMENT AT 4:51 p.m. to the next regularly scheduled meeting on May 18, 2011. ,~ _ ,, Joyc M IJ~a Recording Secretary • • 6