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HomeMy WebLinkAbout2011-05-19 BOE Ad Hoc PacketNOTICE OF SPECIAL MEETING OF AD HOC COMMITTEE OF THE BOARD OF ETHICS CITY OF CHULA VISTA, CALIFORNIA NOTICE IS HEREBY GIVEN THAT THE AD HOC COMMITTEE OF THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA WILL MEET IN SPECIAL SESSION ON THURSDAY, MAY 19, 2011 AT 4:00 P.M. IN THE EXECUTIVE CONFERENCE ROOM, LOCATED AT CITY HALL, 276 FOURTH AVENUE, CHULA VISTA, CALIFORNIA, TO CONSIDER THE FOLLOWING: Roll Call. 2. Review of Chapter 2.28. 3. Public Comments - This is an opportunity for the general public to address the Board of Ethics on any subject matter that is not an agenda item. 4. Members' Comments. 5. Staff Comments. Joyce M I. e ux, Secretary The City of Chula Vista, in complying with the American With Disabilities Act, request individuals who require special accommodations to access, attend and/or participate in a City meeting, activity or service request such accommodation at least forty-eight (48) hours in advance for meetings and five (5) days for scheduled services and activities. Please contact Legal Assistant Joyce Malveaux for specific information at (619) 691-5037 or Telecommunications Devices for the Deaf (TDD) at (619) 476-5357. California Relay Service is also available for the hearing impaired. At the discretion of the Board, all items appearing on this agenda, whether or not expressly listed for action, may be deliberated and may be subject to action by the Board. All public records relating to an agenda item on this agenda are available for public inspection at the time the record is distributed to all, or a majority of all, members of the Board. Such records shall be available at the Office of the City Attorney located at 276 4th Avenue, Chula Vista, California. Notice Dated: 05/13/11 THE CHULA VISTA BOARD OF ETHICS IS COMMITTED TO HONOR THE PUBLIC TRUST BY PROMOTING ETHICAL VALUES AND MONITORING ETHICAL STANDARDS IN ALL ASPECTS OF CITY GOVERNMENT I doa!w(i +.tit ko P&I'. tt!1 of f+'9t'3a.ry Jl &t I „, s cs rr Elty .c; cJ s -y i..: li ir�!id c.0 i:J TY COUNCIL STATEMENT CITY OF CHULAVISfA Item No. 21 ITEM TITLE: ORDINANCE AMENDING CHULA VISTA MUNICIPAL CODE CHAPTER 2.52, THE CITY'S CAMPAIGN CONTRIBUTION ORDINANCE SUBMITTED BY: BART C. MIESFELD, CITY ATTORNEY,yl\ REVIEWED BY: CITY ATTORNEY 4/5THS VOTE: YES 1-1 NO FX] SUMMARY At the October 12, 2010 City Council meeting, the City Attorney presented the City Council with a report analyzing the City's Campaign Contributions ordinance and identifying the provisions that were duplicative of the Political Reform Act ("PRA"), in order to determine whether, and to what extent, the Fair Political Practices Commission ("FPPC") could enforce the ordinance. The City Council then directed the City Attorney's office to return with amendments to the ordinance to: (i) delete the provisions that duplicate the PRA; (ii) make updates necessitated by recent case law; and (iii) revise the enforcement section. This item is brought forward in response to that direction. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that there is no possibility that the activity may have a significant effect on the environment because it does not involve a physical change to the environment; therefore, pursuant to Section 15061(b)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Council place the ordinance on first reading if it deems appropriate. BOARDS/COMMISSION RECOMMENDATION Not Applicable. 21-1 NOVEMBER 23, 2010, Item Z Page -2 - DISCUSSION 1. BACKGROUND The City's Charter requires the City Council to "adopt reasonable regulations related to campaign contributions" in order to "avoid the potential for undue or improper influence over elected officials resulting from excessive campaign contributions." The regulations must be contained within the City's Municipal Code.' Chula Vista Municipal Code Chapter 2.52, entitled, "Campaign Contributions," was enacted in 1989, in compliance with the Charter requirement. At the May 25, 2010 City Council meeting, the Council discussed the Campaign Contributions ordinance and some Council members expressed concerns with the ordinance. The Council directed the City Attomey to review the ordinance and return to Council with recommendations regarding potentially repealing or amending the ordinance. At the June 15, 2010 City Council meeting, Councilmember Ramirez initiated further discussion of the ordinance. The discussion centered on the potential for repealing Section 2.52.140, which contains the enforcement provisions of the ordinance. During the discussion, certain Council members voiced concerns regarding the ordinance, including the costs that the City has incurred to investigate complaints filed in recent years, potential abuses, and the possibility of duplication of the enforcement efforts of other agencies. As a result, the Council directed the City Attorney to return to the Council on .lune 22, 2010 to present the Council with potential options for suspending enforcement of the ordinance, pending the outcome of the City Attorney's comprehensive review and analysis. The Council ultimately, voted to amend the ordinance to suspend Section 2.52.140 for 180 days. On July 13, 2010, the Council again discussed the Campaign Contributions ordinance. That discussion centered primarily on enforcement of the ordinance. At the end of the discussion, the Council directed the City Attorney to review the ordinance to determine which of its provisions are duplicative of the PRA, in order to determine whether, and to what extent, the FPPC could enforce the ordinance. The Council directed the City Attorney to return to the Council to report the results of the ordinance review. That report was presented to the Council on October 12, 2010. At that time, the Council directed the City Attorney's office to return with amendments to the ordinance to: (i) delete the provisions that duplicate the PRA; (ii) make updates necessitated by recent case law; and (iii) revise the enforcement section. This item is brought forward in response to that direction. II. PROVISIONS DUPLICATING THE PRA The Campaign Contributions ordinance can be found at Chula Vista Municipal Code ("CVMC") Chapter 2.52, Sections 2.52.040 through 2.52.120 set forth the substantive provisions of the ordinance.2 In our October 12th staff report, we detailed our comparison Chula Vista City Charter, Sec. 904 2 Attachment 1 to this Agenda Statement contains the entire text of the City's Campaign Contributions ordinance for the Council's reference. 21-2 NOVEMBER 23, 2010, Item Q- I Page - 3 - of the City's Campaign Contribution to the PRA. We identified the following provisions as being duplicative: 2.52.040.C. (Prohibition against making a contribution in another's name) 2.52.040.D. (Prohibition against aggregating husband and wife contributions) 2.52.070.B. (Campaign contribution account personal funds to be deposited) 2.52.090.A. (Return of contributions) 2.52.110 (Campaign statements) Pursuant to the City Council's direction, we have prepared an amended ordinance which deletes the above provisions. A copy of the draft amended ordinance, reflecting the revisions in a redline/strikeout format, is attached as Attachment 2 to this Agenda Statement for the Council's consideration. In addition, CVMC section 2.52.080 (Surplus Campaign Funds) is essentially duplicated at PRA section 89519(b). However, there are a couple of differences: (i) the phrase "including loans to oneself up to an amount of $5,000" from CVMC 2.52.080.B.1. is not included; and (ii) section 89519(b) also allows surplus funds to be used for: "(1) The payment of outstanding campaign debts or elected officer's expenses. (4) Contributions to a political party committee, provided the campaign funds are not used to support or oppose candidates for elective office. However, the campaign funds may be used by a political party committee to conduct partisan voter registration, partisan get -out -the -vote activities, and slate mailers as that term is defined in Section 82048.3. (5) Contributions to support or oppose any candidate for federal office, any candidate for elective office in a state other than California, or any ballot measure." Because Section 2.52.080 is not exactly duplicated in the PRA, we have left it in the draft amended ordinance. However, the Council could opt to delete section 2.52.080 and rely on the FPPC to enforce PRA section 89519. Doing so would expand the acceptable uses of surplus funds to include those in section 89519. Alternatively, the Council could retain Section 2.52.080. Doing so would leave enforcement to the local enforcement authority and would limit the acceptable uses of surplus funds to those in CVMC2.52.080.B. Finally, we added some language to the ordinance in response to concerns voiced by some of the Council members regarding adequately informing local candidates of applicable FPPC provisions. Specifically, we added an opening paragraph in Section 21-3 NOVEMBER 23, 2010, Item Page - 4 - 2.52.010 that notifies local candidates that they are required to comply with Chapter 2.52, as well as the PRA and FPPC regulations, and providing the citations for easy reference. 111. LEGAL UPDATES Several of the revisions reflected in the draft amended ordinance were made as a result of recent Supreme Court and District Court decisions. These revisions primarily affect the City's regulation of campaign contributions and are discussed below. A. Basis for Limiting Campaign Contributions Limitations on campaign contributions are subject to strict scrutiny because they have been found to impinge on First Amendment rights. The only basis on which limits on direct campaign contributions to candidates have been upheld is a governmental interest in stemming the reality or appearance of corruption in the electoral process. [Davis v. FEC (2008) 554 U.S. 724; Buckley v. Yaleo (1976) 424 U.S. 1.] As a result, we have added language regarding the City's interest in preventing corruption and the appearance of corruption in its local elections. B. Amount of Campaign Contribution Limits The City's ordinance currently limits the amount of contribution an individual can make to $300, and prohibits an "organization," as that term is defined in the ordinance, from making contributions. We have made some revisions to these provisions in response to recent case law. First, in a recent challenge to the City of San Diego's campaign contribution ordinance, a federal district court enjoined San Diego's ban on contributions by political parties, but subsequently upheld a $1,000 limit on such contributions. [Thalheimer, et al. v. City of San Diego, et al. (S.D. Cal. Feb. 16, 2010) 706 F.Supp.2d 1065; Thalheimer, et al. v. City of San Diego (S.D. Cal. Sep. 3, 2010) _ F. Supp.2d ___._, 2010 U.S.Dist. LEXIS 92090.1 As a result, we added language to the ordinance to clearly exempt political parties from the definition of "organization" and to limit campaign contributions by political parties to $1,000. The City Council could choose to increase that limit, but we would not recommend imposing a lower limit because it may be subject to a Constitutional challenge. Second, the United States Supreme Court has opined as to factors to be considered in determining whether campaign contribution limits would withstand Constitutional scrutiny; one factor considered is whether the limit is indexed to inflation. [Randall v. Sorrel (2006) 548 U.S. 230: U.S. Supreme Court struck down $400 Vermont contribution limit on state elective office, partially because the limit was not indexed to inflation.] In response, we amended the ordinance to provide that both the individual contribution limit and the'political party contribution limit be indexed to inflation. 21-4 NOVEMBER 23, 2010, Item '2-1 Page -5- C. Limitations on Expenditures Although the Supreme Court has approved limitations on campaign contributions, subject to strict scrutiny, it has rejected such limitations on campaign expenditures. It affirmed this position in a decision earlier this year in which it held unconstitutional the long-standing ban on corporations and labor unions using their general treasury funds to make independent expenditures on behalf of federal candidates. [Citizens United v. Federal Election Com. (2010) 130 S.Ct. 876.] The City's ordinance does not limit campaign expenditures. However, so that the ordinance is not misconstrued, we have added language to clarify that the contribution limitations do not limit expenditures. D. Application to Elected City Attorney Finally, we revised the ordinance to include the City Attorney in the definition of "City elective office." This change was made in response to the Charter amendment making the City Attorney an elected, rather than appointed, position. IV. ENFORCEMENT We also revised the enforcement provisions of the ordinance, in response to comments from the Council members. The changes to section 2.52.140 are summarized below. A. Bifurcation of Review and Investigation Responsibilities As revised, the amended ordinance essentially constitutes a bifurcated version of the prior enforcement approach. The amended ordinance retains the panel counsel, selected by the City Attorney, for review of complaints alleging violations of the ordinance. However, there would be an initial review of the complaint; any follow-up investigation would be handled separately. Specifically, the first panel counsel would be responsible for reviewing the complaint and making a probable cause determination. If he or she determines the complaint is meritless, the complaint will be returned to the complainant and no further action will be taken. If the enforcement authority determines there is probable cause to find there was a knowing or willful violation of the chapter, the complaint will be forwarded to the District Attorney for handling. If the enforcement authority determines there is probable cause to find there was a negligent violation of the chapter, the complaint will be returned to the City Attorney, who will forward it to the next attorney in the panel counsel rotation for investigation and further handling. The primary aim of this approach is to expeditiously obtain an initial determination of the merits of the complaint by a qualified, unbiased reviewer and then to get it to the appropriate authority if further investigation is warranted. B. Reliance on Other Agencies In response to Council member concerns regarding duplication of efforts of other agencies and the enforcement costs to the City, we also revised the ordinance to utilize other agencies when appropriate. The amended ordinance provides that the District Attorney will receive complaints that alleging knowing or willful violations and that the violations of the PRA will be sent to the FPPC and will not be investigated by the enforcement authority. We also eliminated the $100,000 appropriation mandate. The 21-5 NOVEMBER 23, 2010, Item 2-1 Page -b- intent of these revisions is to limit the role of the enforcement authority, and consequently, the cost to the City of enforcing the ordinance. C. Other Additional revisions were made in response to various Council member comments. Those include: (i) reducing the amount of the per violation fine from $5,000 to $500, in order to reduce the disparity in how fines were meted out; (ii) modifying the limitations period so that, whether the enforcement authority chooses to pursue a complaint as a civil or an administrative matter, the limitations period is four years in either case; and (iii) adding language and penalties to dissuade the filing of meritless complaints. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently, the 500 -foot rule found in California Code of Regulations section 18704.2(a)(1), is not applicable to this decision. CURRENT YEAR FISCAL IMPACT The General Fund currently reflects a budget of $100,000 to investigate alleged violations of the City's Campaign Contributions Ordinance. ONGOING FISCAL IMPACT Eliminating the requirement to investigate alleged violations of the Campaign Contributions Ordinance would result in budgetary savings of $100,000. There would continue to be unanticipated litigation expenses if the City was required to pay for attorney services on behalf of the City employee being investigated. ATTACHMENTS Attachment 1 - Chula Vista Municipal Code Chapter 2.52 Attachment 2 — Proposed Amended Chapter 2.52 - Redline Prepared by: Jill DS Maland, Assistant City Attorney, Office of the City Attorney 21-6