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HomeMy WebLinkAboutAgenda Statement 1989/02/21 Item 16 COUNCIL AGENDA STATEMENT Item ,.14' 16 Meeting Date 244/89' I a1 l ITEM TITLE: Ordinance 247 -7 Amending Chapter 2.28 of the Chula Vista Municipal Code to Add a Code of Ethics SUBMITTED BY: City Attorney 60 (4/5ths Vote: Yes No X ) At its joint meeting with the Board of Ethics on December 8, 1988, the City Council adopted "in concept" a proposed Code of Ethics and made a number of referrals back to the Board of Ethics. The proposed ordinance includes those matters previously approved in concept and ) the Board of Ethics' recommendations with regard to the referred matters. RECOMMENDATION: (a) Do not adopt the ordinance. (b) Refer to the Civil Service Commission the question of whether the Civil Service Rules need be amended to prohibit special treatment or favor of individuals by City employees. BC 3/COMMISSIONS RECOMMENDATION: The Board of Ethics unanimously re.._.,mends approval of the ordinance. DISCUSSION: Most of the proposed ordinance has already been approved by the City Council "in concept". There were a few areas which the City Council referred back to the Board of Ethics and staff for further review. Those provisions which were subject to this further review are underlined in the proposed ordinance. This report will attempt to highlight those sections which were referred back. Section 2.28.020 Responsibilities of Public Office. The ordinance now makes clear that it applies only to the City Council, Board Members and Commissioners, City Manager, City Attorney and the City Clerk and not to other City employees. Section 2.28.040 Fair and Equal Treatment. In prohibiting any special treatment of individuals, this section now further makes reference to Charter Section 305 which prohibits councilmembers from interfering with the administration of the City. It's recommended that the concern regarding City employees showing special treatment to individuals be referred to the Civil Service Commission and appropriate "meet and confer" rues be complied with. 262q7 Page 2, Item J4 16 Meeting Date _29 a1aI)a Section 2.28.050 Unethical Conduct. This section lists specific conduct which is prohibited. The specific subsections which were referred back include: b. Knowingly divulge confidential information for personal gain or for the gain of associates in a manner disloyal to the City. This section attempts to strike a balance between the City's interest in having confidential information, the disclosure of which could be harmful to the City, kept confidential and the First Amendment rights of councilmembers to inform the public. There will always be an issue in controversies over this section whether the disclosure was for "personal gain" or for the "good of the public". That is the issue which the Board of Ethics would have to resolve. c. Solicited or accepted emoluments, excluding meals, exceeding fifty dollars ($50.00) in value from any individual or organization doing planning or attempting to do business within the City. The Board of Ethics has increased the value of gifts that may be accepted, without requiring abstention, from $10.00 to $50.00. This amount would not apply to meals. The Political Reform Act allows a public official to accept $250.00 before requiring abstention and requires all gifts in excess of $50.00 (including meals) to be reported. Sections "f" and "g" Dealing with former officers appearing before City boards and commissions and current officers endorsing commercial products have both been amended as directed by Council. In both instances, a City officers may not engage in these practices "for compensation" . Section 2.28.090 Duties of the Board. Some new language has been added to subsection 4 of this section which requires an extraordinary vote of five of the seven members of the Board to make a finding of unethical conduct. This proposed language was referred to staff by the City Council, and the Board of Ethics took no position on it at their follow-up meeting. Section 2.28.120 Meetings. Ti. 3oard is now required to hold at least one meeting per year. Page 3, Item .k( 16 Meeting Date ?,,/-1-4789 &/A1/fig Section 2.28.150 Conduct of Hearing upon Complaint. This section describes how the Board proposes to handle complaints. The Board would notify a person about whom the complaint was received immediately, but would keep the identity of the complainant confidential until it determines that there is probable cause for the complaint. The determination as to whether there was probable cause would be made by a majority vote of the Board. The officer who is the subject of the complaint would have an opportunity to appear personally or to submit a statement to the Board in answer to the complaint. In response to City Council criticism, the Board deleted a number of provisions that were to be included in the proposed Code of Ethics. The Board voted to retain what is now numbered Section 5 by amending it to read as follows: 5. I will report suspected corruption, waste and inefficiency wherever discovered. (The amendment is the addition of the word suspected). The Board also voted to retain what is now subsection 8 as it originally appeared after having this subsection referred back to it by the City Council: 8. I will promote the City of Chula Vista, this Code of Ethics, and be proud to have served as an elected or appointed public official. STAFF ANALYSIS Although the Board of Ethics and the City Council spent a great deal of time and effort in refining the proposed Code of Ethics, it still retains many of the features which led staff to recommend against the original. For example, Section 2.28.050 subsection 2 which lists those actions which constitute unethical conduct further states that it is "not all inclusive". This leaves open the potential for the creation of ex post facto laws. Since a public official does not know what all the standards are, he or she may act now and find out "after the fact" that the Board of Ethics felt this conduct was unethical. Subsection "D" continues to make it unethical to "knowingly make false statements about members of the City Council or other City employees that tend to discredit or embarrass those persons". Normally, the courts hold that the remedy for false statements in the political arena is "more speech, not enforced silence". 69 OPS.ATTY.GEN. 278, 281. There is practically universal agreement that the major purpose of the First Amendment is to protect free discussion of governmental affairs. In Gertz v. Welch (1973) 418 U.S. 323-341, the courts stated that: "Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. The First Amendment requires that we protect some falsehood in order to protect speech that matters." 9 -.2,2.97 Page 4, Item 16 Meeting Date .� ' a./01/ M The Board of Ethics could infringe on First Amendment constitutional rights if it finds someone to have acted in an unethical manner based upon this subsection. The other major criticism which still exists is the question as to whether there is a need for another governmental entity dealing with these issues. We currently have the Fair Political Practices Commission, the District Attorney, U.S. Attorney General, the Federal Grand Jury, and the County Grand Jury to perform this role. With the passage of Proposition 73 last year, the regulations adopted by the FPPC pursuant to the Political Reform Act have become even more pervasive. It is currently difficult to keep track of all the regulations and different entities dealing with this subject. Adding more layers of regulation and government to perform this same task does not necessarily improve ethics and it could result in the creation of more confusion. For these reasons, staff continues to recommend that the ordinance not be adopted. 5235a ,-. //9/efq by he City Council of Chula Vista, California Dated �°2"Q - 26?97