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HomeMy WebLinkAbout2010/05/20 Board of Ethics Minutes• ACTION MINUTES OF BOARD OF ETHICS AD HOC COMMITTEE MEETING CITY OF CHULA VISTA, CALIFORNIA May 20, 2010 Executive Conference Room 4:12 P.M. Chair Starr called the meeting to order. Roll Call MEMBERS PRESENT: Michael German, and Felicia Starr. MEMBERS ABSENT: AI Sotoa. ALSO PRESENT: Joyce Malveaux, Legal Assistant and Secretary to Board of Ethics; Simon Silva, Deputy City Attorney and Staff to Board of Ethics, and Anthony Jemison, Board Member. 2. Review of Chapter 2.28. Silva handed out materials from the Ad Hoc meeting of April 8, 2010, and provided the • board members with Resolution No. 2008-217, Resolution of the City of Chula Vista Amending the Appendix to the Local Conflict of Interest Code and Designating Filers for Purposes of AB 1234, which included a list of Form 700 filers; Chapter 2.05 of the Municipal Code regarding Personnel and Civil Service Regulations; and his revisions to Chapter 2.28 of the Board of Ethics. Silva stated as the code is currently written it only covers elected and appointed individuals within the charter. Silva relayed that the committee had discussed expanding the code to cover the Chief of Police, Fire Chief, and others along that level to include Form 700 individuals. Silva explained in his review of Form 700 individuals the list was rather lengthy including, directors, assistant planner, associate planner, benefit manager, building inspector at all levels, and landscape planner. Simon advised that due to the nature of their jobs these individuals must make disclosures as they are in a position to appropriate funds for the City. Silva didn't think these individuals necessarily needed to be covered by the Ethics Ordinance. Silva felt this ordinance was initially intended to cover the policy makers for the City. Silva also provided the committee with the unclassified individuals including the Assistant Chief of Police, Assistant Directors, and others he didn't feel should be covered such as CBAG individuals which were law enforcement individuals, which were not City employees, but • granted funded positions out of amulti-agency law enforcement group. Silvas 1 • suggested to keep current individuals, elected and appointed officials, and add department heads, as this would include policy makers for the City or those influencing the City Manager and City Council as to decisions. Silva referred the committee to section 28.28.020, Application of Chapter and explained, and provided them with revised language: "This chapter shall apply only to "City Officials." City Officials shall mean elected members of the Chula Vista City Council, including the mayor, the city manager, the city attorney, the city clerk, board members and commissioners, C~ Department Heads, as well as ex-city officers who are subject to the conflict of interest code. Silva felt this language as written covers policy makers for the City. Silva expressed another issue the committee had was with respect to mid-managers, some of which are Form 700 filers, which are represented individuals and not necessary to go through meet and confer process. Silva then discussed discipline of individuals under Civil Service Rules, which covers unclassified individuals. Silva advised there were rules against theft, and self-dealing. Silva was also tasked with breaking the ordinance up into two sections, the code of conduct and prohibitions. Silva provided revised language 2.28.010, Establishment of Code of Ethics: a. Public office is a public trust and City Officials shall exercise their public duties in a manner that preserves that trust. The public trust can best be • preserved if City Officials adhere to a high standard of ethics that transcend the standards prescribed by law. High ethical stands required that all City Officials understand, and avoid unethical behavior. Unethical behavior can develop in a variety of situations, but occurs when the public interest is not the sole and paramount interest in all actions conducted by all City Officials. The purpose of this ordinance is to encourage the highest standards of behavior by public officials, increase public confidence in public officials, and to assist public officials with decision making in areas of ethical concern. Silva advised that this language was from a combination of language that was already there, and was a preamble. Simon went on to section b: The Code of Ethics has two components, consistina of a Code of Conduct and Prohibitions. The Code of Conduct is intended to provide a set of principals from which Public Officials can draw upon to assist them in conducting the public's business. As such, the Code of Conduct is directory in nature and not subject to action by the Board of Ethics. The second involves specific Prohibitions. This set of Prohibitions are actions which public officials should not enaaae in. and as such, is subject to action by the Board of Ethics. Silva stated following this section the committee could include actions by the Board of Ethics in which the committee could specify what could be done. Silva felt the only thing the board couldn't do was issue notes of censure or different types of reprimands, but could do referrals as appropriate. • 2 Silva deleted the previous section, but took from what was there to create the language. Silva then moved on to revised language: 2.28.021, Code of Conduct. The public judges its City government by the way City Officials conduct themselves in the posts to which they are elected or appointed. All City Officials should conduct themselves in a manner that will tend to preserve public confidence in, and respect for, the government represented. The purpose of this Code of Conduct is to encourage the highest standards of behavior by City Officials, increase public confidence in the City Officials that serve the public, and assist City Officials with decision-making in areas of ethical concern. City Officials, in the performance of their duties, should adhere to the following principles: 1. City Officials are agents of public purpose and hold office for the benefit of the public. As such, City Officials have a duty to act in the best interest of the public. 2. City Officials shall strive to protect the public's resources through diligent and judicious management. 3. City Officials must be loyal to the public they serve and should put the public's interest above their personal interests. 4. City Officials must protect and enhance the image and reputation of the City. 5. City Officials must treat all citizens conducting business with the city with due courtesy, efficiency, and impartiality, and no on citizen shall receive special advantage. 6. City Officials must always be mindful of the public trust and confidence in the exercise of their assigned duties, shall refuse to condone breaches of public trust or improper attempts to influence the decision-making process. 7. City Officials must always be mindful of • conflict of interest laws and abide by them. This Code seeks to promote confidence and respect in City Government by encouraging City Officials to adhere to a high standard of ethics that transcends the standards prescribed by law. Silva advised that he added some of these sections and morphed others. Silva mentioned that the committee should also want to consider adding language advising to disclose any area of ethical misconduct. Silva stated the problem with this would be if a statement were given in confidence. Silva then went to Specific Prohibitions: 2.25022. Persons subject to this Chapter are expected to abide by all current local, state, and federal laws but shall be considered to have committed unethical conduct if any of the following occur. Silva advised he kept this section the same, but added section 7: Violate any State or Federal law involving ethics, including, but not limited to Government Code sections 1090 and 87100 (the Political Reform Act f PRAI). If the alleged violation involves a violation of State or Federal law, the Board of Ethics may await action or notice of inaction by State or Federal agencies having jurisdiction over the alleged violation or the expiration of any applicable statute of limitations before proceeding with the provisions of this Chapter. The purpose of waiting until the State or Federal agencies have had an opportunity to review the alleged violation is to ensure that the Board of Ethics does not errantly or unknowingly interfere with any investigation that may be conducted by those agencies. 3 State and Federal agencies include, but are not limited to the United States Attorney's Office, the California Attorney General's Office, the San Diego County District Attorney's Office, the San Diego Countv Grand Jury, and the Fair Political Practices Commission F( PPC). Silva stated this section is written so as a DA conducting a felony criminal evasion carries a lot more weight, just as the FPPC, and an action to remove someone from office has more punch than what the Board of Ethics can do. Silva informed the board this section was written so that if a state or federal agency advises the board they are going to pursue a matter the board can weight, or if the board is informed that the agency isn't going to pursue a matter then the board could. Silva additionally advised that he added statute of limitations language in the event an agency waits one year for a 1090 violation, or 3 years for a felony, and the board hasn't heard back from the agency then the board would be able to bring the matter back. German commented he liked the work Silva had done, and stated the product was nice, clean, and flows well. Starr commented she liked it as well. Silva suggested another way to make the document cleaner would be to combine Code of Conduct and Prohibitions into one and label it Code of Ethics, which would be a) duty of conduct which there are no sanctions for, and b) the prohibitions. Simon stated the Code is the guidance and the prohibitions. Silva then provided an overview on what had been discussed for Jemison who arrived at the meeting. Jemison expressed concern on section 7 created by Silva and use of the word should. Silva state the word should was only directory in nature. Jemison questioned if there was a difference in the words should or may. Silva stated the word may would probably be the better word to use. The above language in section 7 was revised to use the work may rather than should and is in bold for clarification. German suggested on a mental note when the committee get to the section on procedure with prohibitions they may want to include language to be aware of the statute of limitations. • , Silva stated that when the board gets to the section on procedure language stating "if the matter is pending decision the statute of limitations will be noted." Silva advised he would come back with changes in a cleaner version based on the input he received. German was tasked with review of section 2.28.050 subsection 6, now 2.28.022(6) to read: "A prohibited action is appearing as a compensated representative at any time before the council, or any Commission, Boar, or city staff in connection with any case or other matter with which he/she personally participated while an official or employee of the city for twelve (12) months following the date of separation from elected or appointed office or from city employment, except by permission of the city council finding on four-fifths vote that special identified and articulated circumstances exist, cast at a regular public meeting taken after the involved member of the city council has left office." German stated the language is prospective as it now is as it puts city official on notice for the future so no real deprivation of representation would occur unless the city official knows he or she would be acting in capacity as the outside advisor. German stated in this instance, within twelve (12) months the individual should not represent the public as he or she would already be thinking of representing themselves. German didn't see the need for any change or any problem with the section as written. Silva questioned when German was tasked with this section if the standard was the • appearance of impropriety. Starr stated Silva felt this section was too strict and would require frequent recusals. Silva felt he had no problem with this section as written, but was referring to section 7, reading "present even the appearance of conflict ..." Silva stated last year a case came out that said appearance of bias does not require recusal. Simon also advised he had language from another case about the impact to what it means when one recuses themselves inappropriately, and this case states if one recuses themselves at every allegation of misconduct because it creates an appearance then one would be depriving the voter of 1) opinion, and 2) actual vote to either support or take out action. Silva reiterated appearance was subjective of appearance to whom, the person accusing you that may have a bias, or based on I saw you walking down the hallway with a developer. Simon stated this could be an appearance and advised this particular section could be broad in this respect, but didn't feel this was a standard the board should hold city officials to. Silva recommended including in this language in the code section rather than as an actual prohibition so that people are aware of how people see one interacting and whom they are interacting with. Silva stated if the committee wanted to set the standard as appearance they should 5 • definitely be thinking about this, but does that automatically disqualify one. Silva felt that with respect to the appearance section if one was doing something with someone else and they were that close then they should recuse themselves under the Doctrine of Conflict of Interest where there is personal bias to an issue. German agreed this language would better fit in the code section. German requested Silva provide him with cites to the cases he mentioned. Silva provided the case cite People vs. Maryland, in which he spoke about what it means to inappropriately recuse oneself reads, "Local governments would be seriously handicapped if every possible interest no matter how remote or speculative would serve as a disqualification of an official. If this were so it would discourage capable men and women from holding public office. Courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism, but in doing so they must be mindful that to abrogate a municipal action at the suggestion that some remote or nebulous interest is present would be to unjustifiably deprive a municipality in many important instances of services of its duly elected employees or officials. " Silva advised this is a New Jersey case, but has been around since 1958, and there are other cases that mimic this law. • Silva suggested the committee review the code as he's proposed and if they want to add anything to let him know. Silva stated he review other codes to ensure the committee is including everything they want to include. Silva informed the committee that he would also start looking at the section on procedure. 3. Public Comments. There were none. 4. Member Comments. There were none. 5. Staff Comments There were none. ADJOURNMENT AT 5:13 p.m. to the next scheduled Ad Hoc Committee meeting on June 17, 2010, at 4:00 p.m. • 6 ~~ • Joyc Ma ea Recording Secretary •