HomeMy WebLinkAbout2015/03/19 Board of Ethics Agenda PacketI declare under penalty of perjury that I am employed
by the City of Chula Vista in the office of the City Clerk
and that I posted the document according to Brown Act
requirements.
CITY OFCHULAVNI'A Dated:
Board of Ethics
Notice is hereby given that the Board of Ethics of the City of Chula Vista has called and will
convene a Special Meeting of the Board of Ethics on Thursday, March 19, 2015, at 5:15 p.m. in
Cotmcil Chambers, located at 276 Fourth Avenue, Building A, Chula Vista, California to
consider the item(s) on this agenda.
SPECIAL MEETING OF THE BOARD OF ETHICS
OF THE CITY OF CHULA VISTA
March 19, 2015
5:15 p.m.
Council Chambers- Building A
276 Fourth Avenue
Chula Vista, CA
CALL TO ORDER
ROLL CALL: Commissioners: Toothman
Livingston ; Robles ; and Chair Schilling___
; Jemison _; Esquer ;
CITY STAFF: James Lough, Esq., Outside Counsel
PUBLIC COMMENTS
Persons speaking during Public Comments may address the Board Commission on any
subject matter within the Board Commission's jurisdiction that is not listed as an item on the
agenda. State law generally prohibits the Board Commission from discussing or talcing
action on any issue not included on the agenda, but, if appropriate, the Board Commission
may schedule the topic for future discussion or refer the matter to staff Comments are
limited to three minutes.
ACTION ITEMS
The Item(s) listed in th& section of the agenda will be considered individually by the
Board Commission and are expected to elicit discussion and deliberation, if you wish to
speak on any item, please fill out a "Request to Speak" form and submit it to the Secretary
prior to the meeting. Comments are limited to five minutes.
1. Discussion and Action Regarding Selection of Outside Counsel to Advise Board of
Ethics in BOE complaints 2-18-15A and 2-20-15A, Including Using List of Attorneys
That Had Been Selected by BOE to Serve as the Enforcement Authority under Chula
Vista Municipal Code section 2.52 (Campaign Contribution Ordinance) to Select
Attorney to Serve as Outside Counsel*
* This item was" approved at the March 11, 2015 Board of Ethics Meeting. The approved
item improperly listed one case number as 2-20-15B. Approval of this item will correct
the typographical error to properly list the ease as number 2-20-15,4.
2. Discussion and Action regarding the "Prima Facie Review," pursuant to Chula Vista
Mtmicipal Code section 2.28.110, of Ethics case numbers 2-18-15A and 2-20-15A
OTHER BUSINESS
3. STAFF COMMENTS
4. CHAIR'S COMMENTS
5. COMMISSIONERS'/BOARD MEMBERS' COMMENTS
ADJOURNMENT to a date to be determined or the regular meeting on April 15, 2015, in the
Council Conference Room C101, Building A at 276 Fourth Avenue, Chula
Vista, California.
Materials provided to the Board of Ethics related to any open-session item on this agenda are
available for public review in the Office of the City Attorney at 276 Fourth Avenue, Chula Vista,
Building A, Chula Vista during normal business hours.
In compliance with the
AMERICANS WITH DISABILITIES ACT
The City of Chula Vista requests' individuals who require special accommodations to access,
attend, and/or participate in a City meeting, activity, or service, contact the Human Resources
Department at (619) 691-5041 (CaliJbrnia Relay Service is available for the hearing impaired by
dialing 711) at least forty-eight hours in advance of the meeting.
Page 2 IBoard of Ethics Special Meeting March 19, 2015
LOUNSBERY FERGUSON
ALTONA & PEAK LLP ESCONDIDO AND SAN DIEGO
960 Canterbury Place, Suite 300
Escondido, California 92025-3870 SPECIAL COUNSEL
JOHN W. WITT Telephone (760) 743-1201
Facsimile (760) 743-9926
www.LFAP.com
James P. Lough Direct: (760) 743-1201
Of Counsel Email: JPL@LFAP.com
TO: Chula Vista Board of Ethics
FROM: James P. Lough, Special Counsel
DATE: March 18, 2015
SUBJECT: Prima Facie Review: Chula Vista Municipal Code Section 2.28.110 (Ethics
Complaints: Appointment of Councilmember Steve Miesen, January 13, 2015)
You have asked our office to review two complaints objecting to the Appointment of
Councilmember Steve Miesen. (Attachments “A” & “B”.) Under Chula Vista Municipal Code
(“CVMC”) Section 2.28.110, the Board of Ethics is required to review the two complaints to
determine if they establish a prima facie case of violations covered by CVMC Chapter 2.28
warranting further investigation. As discussed below, it is the recommendation of Special Counsel
that the two complaints be dismissed for not meeting the standards set out in CVMC Section
2.28.110(A)(3). The allegations contained in the two complaints do not contain allegations of facts
that would constitute a violation of the specific provisions enumerated in CVMC Chapter 2.28.
The issues raised relate to matters outside of the jurisdiction of the Board of Ethics.
GOVERNMENT CODE SECTION 1090 (ANTI-CONTRACTING PROHIBITION)
The primary allegation under both complaints deals with Government Code Section 1090
(“1090”).1 Because a public official cannot “serve two masters”, the Legislature adopted the anti-
contracting provisions to regulate private contracts with public entities to regulate and, in many
cases, prohibit participation by public officials. (Attachment “C”.) These regulations fall into
three categories: prohibited interests (1090); remote interests (1091); and non-interests (1091.5).
It is our understanding that the City Attorney rendered an opinion on the applicability of the anti -
contracting laws to the appointment of Councilmember Miesen. As discussed below, it is not
1 All statutory references are to the California Government Code unless otherwise noted.
Chula Vista Board of Ethics
March 18, 2015
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LOUNSBERY FERGUSON ALTONA & PEAK LLP
within the scope of the appointment of Special Counsel to render a second opinion on this issue.
It is the charge to this office to assist the Board in determining whether there is a prima facie case
under CVMC 2.28. Any opinion about the appointment process by this office would not have any
legal effect on the appointment or the assumption of office of Councilmember Miesen. (See,
People v. Chacon (2007) 40 Cal.th 558.) However, with regard to the scope of this opinion, the
law is clear that contracts entered into before the appointment of a public official do not violate
1090. (Beaudry v. Valdez (1867) 32 Cal. 269; 85 Ops. Cal. Atty. Gen. 176 (2002); 84 Ops. Cal.
Atty. Gen. 34 (2001).) The official may continue to serve during the term of the contract. The
appointment does not void the contract. If the contract is extended, amended or renegotiated, the
issue will arise again. This opinion does not cover past transactions prior to the January 13, 2015
appointment. It also does not speculate on the possible future contract issues involving the
appointed Councilmember.
While this opinion is limited to the jurisdiction of the Board of Ethics, some explanation is needed
to explain the three interests under the anti-contracting legislation. The most important interest is
the “prohibited interest”. A prohibited interest bars the person from serving as a public official
because of the contract interest. These interests are of such a degree that mere service in a public
position is not tolerated. (See, Lexin v. Superior Court (2010) 47 Cal. 4th 1050, 1073; Thomson v.
Call (1985) 38 Cal. 3d 638, 650.)
The second interest is a “remote interest”. (§1091.) A remote interest is an interest of the public
official in a contract that allows the official to hold public office as long as they disqualify
themselves from any participation in any involvement in their contract issues with the City. The
Legislature, under 1091, has set out specific rules that define what type of interest is “remote”.
The third type of interest is a “non-interest”. (§1091.5.) This category allows an official to serve
as a public official and vote on the matter as long as they disclose their interest in the contract.
These “interests” typically involve non-profit private positions.
JURISDICTION OF THE BOARD OF ETHICS OVER 1090 ISSUES
Under CVMC Chapter 2.28, the jurisdiction of the Board of Ethics is established. (CMVC Sec.
2.28.020 (PURPOSE).) The Board is to hear issues of violations of the prohibitions established
under the City’s Code of Ethics. (CVMC Chapter 2.01.) The Code of Ethics “Specific
Prohibitions” are found under CVMC Section 2.01.030(C). There are thirteen separate subsections
that list the prohibited conduct subject to the Board’s enforcement authority. Prohibited
contracting is not listed in any of these categories.
The absence is not surprising considering the State Legislature’s intent when it adopted 1090. The
California Legislature meant to establish statewide standards and the means that they were not be
enforced. Intentional violations are subject to criminal prosecution by the County District
Chula Vista Board of Ethics
March 18, 2015
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LOUNSBERY FERGUSON ALTONA & PEAK LLP
Attorney or the State Attorney General. Lesser violations are also subject to the jurisdiction of
District Attorneys and the Attorney General. In recent years, the Legislature has given concurrent
authority over 1090 issues to the Fair Political Practices Commission. (§1097.1.) This jurisdiction
is not granted pursuant to the Political Reform Act (87100 et. seq.), but through specific sections
of §1090 et seq. Therefore, CVMC 2.01.030(C)(9) regarding violations of the Political Reform
Act do not come into play. Even if it did, the FPPC rules regarding conflicts of interest do not
arise until there is an action taken in a conflicted matter. The appointment of a public official who
is interested in a contract, by itself is not a violation. (Beaudry v. Valdez (1867) 32 Cal. 269; 85
Ops. Cal. Atty. Gen. 176 (2002); 84 Ops. Cal. Atty. Gen. 34 (2001).) Since none of the thirteen
prohibitions listed under CVMC 2.01.030(C) prohibit interests in contracts, the two complaints do
not state a prima facie case for a 1090 et seq. contracting violation under Chula Vista Ethics rules.
Potential enforcement of the anti-contracting rules lies with other enforcement agencies
determined by the California Legislature.
GOVERNMENT CODE 8920 ET SEQ. ETHIC RULES
The second claim under the first complaint (Attachment “A”) relates to the State Code of Ethics.
This California Government Code is not applicable to local Chula Vista officers. The rules only
apply to state officers. Attached is a copy of the applicable portions of the Attorney General’s
Conflict of Interest Guide on the subject. (Attachment “D”) They clearly lay out the
inapplicability of these rules.
MATTER PENDING BEFORE THE OFFICIAL (CVMC 2.01.030(C)(13))
The second complaint (Attachment “B”) raises the claim that the official is negotiating for
employment at the same time that the official “must act or make a recommendation”. The
appointment of Councilmember Miesen was not an action that he took on a matter that he was a
“city official” and “must act or make a recommendation”. At some future time, the
Councilmember may be faced with an issue involving the contract between his employer and the
City. However, his appointment does not raise that issue. As discussed above, the mere taking of
office does not constitute a violation. (Beaudry v. Valdez (1867) 32 Cal. 269; 85 Ops. Cal. Atty.
Gen. 176 (2002); 84 Ops. Cal. Atty. Gen. 34 (2001).) No matter was pending where
Councilmember Miesen acted as an official under CVMC 2.01.030(C)(13).
CALIFORNIA CONLFICT OF INTEREST VIOLATION
The second complaint raises a Political Reform Act Conflict of Interest allegation. However, as
discussed above, the complaint deals with the appointment of the Councilmember. This action
does not constitute participation by the appointed Councilmember in a matter that he has a personal
financial interest requiring recusal. At the time of the appointment, the Councilmember was not a
public official. (See, 82048; Fair Political Practices Commission Regulation (“Regulation”)
Chula Vista Board of Ethics
March 18, 2015
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LOUNSBERY FERGUSON ALTONA & PEAK LLP
§18701, subd. (b)(1).) Once appointed, there was no action taken or matter considered where he
had a financial interest. (Regulation § 18702.1, subds. (a)(1)-(4).) One may occur in the future,
but there is no issue under the FPPC conflict of interest regulations at this time.
COMMON LAW CONFLICT ALLEGATION
Common law conflicts deal with bias and other conflicts that predate the Political Reform Act and
are judicially enforced. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152.) In Clark,
the court concluded that in an adjudicatory hearing, the common law is violated if a decision maker
is tempted by his or her personal or pecuniary interests. In addition, the doctrine applies to
situations involving a nonfinancial personal interest. (Id. at p. 1171, fn. 18; 92 Ops. Cal. Atty. Gen.
19 (2009).)
Here, there has not been a decision that Councilmember Miesen has been involved in that would
trigger the common law doctrine under the allegations of either complaint. Therefore, the common
law allegation does not present a prima facie case.
INCOMPATIBLE OFFICES
The second complaint raises the holding of two “incompatible” offices claim. (§1135 et. seq.).
The state rules on incompatible offices are not self-executing. (§1126, subd. (a).) The Board of
Ethics does not have a specific ordinance that specifies standards for incompatible offices that
meet the state requirements to implement the incompatible office statutes. Without specific
standards, no enforcement could take place and no prima facie case can be established
Since the issue is a contractual relationship, the issue is not the office but the timing and impact of
the contract with the City. This issue is covered by the anti-contracting laws that the State
Legislature has designated other enforcement agencies that do not include the Board of Ethics. .
None of the thirteen categories in 2.01.030(C) would apply.
COUNCIL RECUSAL ON THE APPOINTMENT
The final allegation in the second complaint asks that the entire City Council be recused from the
appointment process involving Mr. Miesen. However, the complaint lists no grounds for such a
recusal. None of the Councilmembers who voted on the matter are alleged to have a financial
interest in the vote to approve Councilmember Miesen. Furthermore, the Board of Ethics has no
jurisdiction to override City Council actions.
CONCLUSION
Chula Vista Board of Ethics
March 18, 2015
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LOUNSBERY FERGUSON ALTONA & PEAK LLP
Special Counsel recommends that the Board of Ethics find that there are no grounds in either
complaint to make a prima facie case regarding the appointment of Councilmember Miesen. The
main question raised in both complaints is about the appointment of a Councilmember who works
for a company that had a contract to perform services for the City prior to his appointment. The
appointment itself did not raise any issues about the terms and conditions of the contract. No vote
was taken or contemplated on the contract. Since no vote was taken or contemplated on the
contract itself, the City’s conflict of interest rules do not come into play at this time.
The authority over anti-contracting issues has been placed elsewhere by the California Legislature.
It lies with the District Attorney, State Attorney General and the Fair Political Practices
Commission. Any citizen, including the complainants, may file complaints with the agencies that
have jurisdiction over such matters. The Board of Ethics was established without jurisdiction over
1090-type contracting claims. If it had jurisdiction over these matters, that jurisdiction would
likely conflict with state law and impair the City Council’s ability to determine whether to affirm
or reject a contract that violates these rules. (§1092.) It could also interfere with the enforcement
actions of those agencies that are charged with enforcement.
I will be present at the meeting to answer questions.
JPL;kld
Attachments