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HomeMy WebLinkAbout2011-06-01 Board of Ethics Special PacketNOTICE OF SPECIAL MEETING OF BOARD OF ETHICS CITY OF CHULA VISTA, CALIFORNIA NOTICE IS HEREBY GIVEN THAT THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA WILL MEET IN SPECIAL SESSION ON WEDNESDAY, JUNE 1, 2011 AT 3:30 P.M. IN THE EXECUTIVE CONFERENCE ROOM, LOCATED AT CITY HALL, 276 FOURTH AVENUE, CHULA VISTA, CALIFORNIA, TO CONSIDER THE FOLLOWING: 1. Roll Call. 2. Discussion of Options and Action Regarding Implementation of City Council Approved Board of Ethics Responsibilities to Hire Outside Counsel to Enforce the City's Campaign Contribution Ordinance. 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. Jo a alveaux, cretary 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 4!h Avenue, Chula Vista, California. Notice Dated: 05/23/11 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 1i:3W1,•ak'e> un -Int poF"alty oft peiJor ih6l'ti I zil, &(',i,;loy!a ;yah {i!:.� To,'. I , ... ik:f< i'};" FS' �'�[(L ale✓'t". is ri tli: +i.''. .;S lliil i' DRAFT MEMORANDUM To: Members of the Board of Ethics From: Glen Googins, City Attorney Via: Bart Miesfeld, Senior Assistant City Attorney Re: Selection and Hiring of Outside Attorneys as Enforcement Authority Under the Campaign Contribution Ordinance Date: June 1, 2011 The following is a brief outline of a proposal for the selection and hiring of outside counsel to act as the Enforcement Authority under the City of Chula Vista Campaign Contribution Ordinance. In summary, the City Attorney's Office would initiate the process by establishing a list of qualified attorneys, based upon specific criteria that could reasonably act as the Enforcement Authority under the Municipal Code. The list of qualified potential attorneys would be presented to the members of the Board of Ethics for their review. The Board would then have the obligation of selecting three to five attorney candidates to make up the final panel members to serve as the Enforcement Authority. Upon the receipt of a complaint under the ordinance the City Attorney's office would then formally hire and assign a single attorney from the panel on a random rotating basis. Establishment of a List of Qualified Attorneys . In an effort to assist the Board of Ethics in obtaining a pool of qualified attorney candidates from whom it could select the "panel" under the Ordinance, the City Attorney's office would initiate the process by soliciting applications from attorneys interested in sitting on the panel. The City Attorney's Office would pre-screen all interested applicants based on the factors described below. All attorney applicants that appeared qualified following the pre- screening would then be presented to the Board of Ethics for consideration as members of the panel. The City Attorney would solicit applications from interested outside counsel by providing a public announcement for applications. The announcement and request for applications would be contained in the following: (1) The official City internet website; (2) the San Diego County Bar Association official publication; (3) various legal periodicals and newspapers including the San Diego Dailey Transcript and the Los Angeles Dailey Reporter. In addition, direct referrals from members of the San Diego County Bar Association would be solicited. After receipt of applications from interested attorney candidates the City Attorney's Office would pre-screen the potential candidates under the following factors historically used to select qualified candidates. The specific criteria would include the following: (1) Member of the California Bar in good standing for a minimum of ten consecutive years; (2) Experience in general municipal or public entity law; (3) Experience in some criminal investigation or prosecution establishing an undstanding of the role of investigator/prosecutor; (4) Experience in civil litigation establishing an understanding of the rules of civil procedure and of the local courts; (5) Experience in or advising elected officials in their capacity as public servants; (6) Establishment of a local office or ability to provide services in San Diego County; and (7) Reasonable fees structure to assure cost effective investigations and prosecutions. Selection By the Board of Ethics of the Enforcement Authority Panel The list of pre-screened potential attorney candidates would be forwarded to the Board of Ethics for its independent consideration. From the list of candidates the Board could select those candidates it wished to interview for the final panel. The actual selection of the panel would consist of three to five members and placement on the panel would be at the sole discretion of the Board of Ethics. The City Attorney would have no authority over the selection of qualified candidates to the final panel. Assignment of Specific Panel Enforcement Attorney After formal establishment of the "Enforcement Authority Panel' by the Board of Ethics, the names of those attorneys on the panel would be forwarded to the City Attorney. In the event of a complaint being received under the Campaign Contribution Ordinance, the City Attorney's Office would by random process (the drawing of names) assign a specific panel attorney to investigate/prosecute the matter. Pursuant to the City Charter the City Attorney would by contract hire the randomly selected attorney. The City Attorney would not participate in the investigation or prosecution of the complaint by the selected panel attorney. TY COUNCIL STATEMENT June 21, 2011 Item CITY OF C H U L A VISTA ITEM TITLE: REPORT FROM THE BOARD OF ETHICS REGARDING A PROPOSED POLICY TO IMPLEMENT BOARD OF ETHICS PARTICIPATION IN SELECTION OF THE CAMPAIGN CONTRIBUTION ENFORCEMENT AUTHORITY ATTORNEY AND REQUEST FOR CITY COUNCIL DIRECTION SUBMITTED BY: FELICIA STARR, CHAIR, BOARD OF ETHICS �jr NORMA TOOTHMAN, MEMBER, BOARD OF ETHICS REVIEWED BY: CITY ATTORNEYC-,VjC--�--- 4/STHS VOTE: YES 1-1 NO FX SUMMARY Chapter 2.52 of the Chula Vista Municipal Code (Campaign Contribution Ordinance) was amended to assign the role of selecting the Campaign Contribution Enforcement Authority Attorney ("Enforcement Authority Attorney") to the Board of Ethics. The Board of Ethics, having considered conflicts with the Charter as a result of such assignment and by a vote of the majority of its members, seeks City Council direction on the implementation of that assignment. The Board of Ethics proposes and recommends to the City Council that the Board of Ethics be permitted to implement its assignment by adopting a procedure summarized as follows: (1) the City Attorney's Office and Board of Ethics will work together to develop professional criteria for the selection of attorneys to serve as the Enforcement Authority Attorney; (2) the City Attorney's Office, based on that professional criteria, will solicit applicants for the position of Enforcement Authority Attorney and confirm their qualifications; (3) the Board of Ethics will interview the qualified applicants for the position of Enforcement Authority Attorney; and select a panel of at least three attorneys to act as Enforcement Authority Attorney; and (4) the City Attorney will hire the attorneys so selected and assign cases on a random, rotating basis. The Board of Ethics asks that this procedure be approved by City Council to effectuate City Council's desire that the Board of Ethics select the Enforcement Authority Attorney while ensuring compliance with Charter provisions regarding City Attorney hiring authority. June 21, 2011 Item Page 2 of 4 ENVIRONMENTAL REVIEW The subject of the proposed resolution is not a "project" within the meaning of CEQA (Pub. Resources Code §21000, et. seq.) as set forth in the State CEQA Guidelines section 15060(c)(3). RECOMMENDATION That City Council approve and direct the Board of Ethics to implement its assignment to select the Campaign Contribution Ordinance Enforcement Authority Attorney by using the selection procedure presented herein and recommended by the Board of Ethics. DISCUSSION From June 2010 to December 2010, the City Attorney's Office, under City Council direction, was tasked with reviewing the Campaign Contribution Ordinance (Chula Vista Municipal Code section 2.52 ("Chapter 2.52")) and making recommendations to address City Council's concerns regarding the vulnerability of the ordinance to abuse, duplication of efforts, and high cost of enforcement. The City Attorney's Office presented a detailed report summarizing proposed changes and legal issues. Changes were made to Chapter 2.52 to address most of the legal issues. During the process of amending Chapter 2.52, it was proposed that the Board of Ethics be assigned to select attorneys to serve as the Enforcement Authority Attorney to investigate and enforce Chapter 2.52. The City Attorney's Office advised that such an assignment would violate the City Charter, specifically Charter sections 503 and 505. The City Council proceeded, nevertheless, to approve such an assignment to the Board of Ethics. Under the City Charter section 503, the City Attorney's Office serves as the legal advisor to all board and commissions, including the Board of Ethics. Moreover, under the Chula Vista Municipal Code section 2.28.110(C), the City Attorney's Office is assigned as the secretary to the Board of Ethics. In this capacity, the City Attorney's Office advised the Board of Ethics and presented its same concerns regarding conflicts with the Charter related to this assignment. The City Attorney's Office provided the Board of Ethics a range of options to respond to its assignment, including: (1) that the Board of Ethics implement its assignment as written; (2) that the Board of Ethics recommend alternatives to the City Council; or (3) that the Board of Ethics decline to implement the assignment and refer the matter back to City Council for direction. The Board of Ethics engaged in robust and extensive discussions regarding the nature of its role and alternative means to reconcile with Council's assignment and the Charter's mandates. During the discussion, the City Attorney proposed one possible alternative procedure as follows: (1) the City Attorney's Office and Board of Ethics will work together to develop professional criteria for the selection of attorneys to serve as the Enforcement Authority Attorney; (2) the City Attorney's Office, based on that professional criteria, will solicit applicants for the position of Enforcement Authority Attorney and confirm their qualifications; (3) the Board of Ethics will interview the qualified applicants for the June 21, 2011 Item Page 3 of 4 position of Enforcement Authority Attorney; and, select a panel of at least three attorneys to act as Enforcement Authority Attorney; and (4) the City Attorney will hire the attorneys so selected and assign cases on a random, rotating basis. The Board of Ethics asks that this procedure be approved by City Council to effectuate City Council's desire that the Board of Ethics select the Enforcement Authority Attorney while ensuring compliance with Charter provisions regarding City Attorney hiring authority. The City Attorney's Office presented this alternative in the spirit of wanting to achieve the City Council objective of involving the Board of Ethics, while at the same time not running afoul of the Charter. In addition, the City Attorney's proposed alternative took into consideration, existing municipal code sections, specifically, Section 2.25.050(D). In Section 2.25.050(D), involving the selection of Board of Ethics board members, a list of applicants for membership on the Board is forwarded to two city managers for interview and recommendation. From there, those persons that are recommended for appointment by the two city managers are then referred to the City Council for final consideration for appointment. The Board of Ethics selection process, as found in Section 2.25.050(D), provides for an independent review of candidates, but retains the Charter's mandate that City Council appoint all board and commission members. The proposed alternative procedure for the selection of attorneys to act as the Enforcement Authority Attorney similarly provides for an independent review of candidates, but retains that Charter's mandate regarding the hiring of outside counsel by the City Attorney's Office. Chula Vista Municipal Code section 2.28.080 permits the Board of Ethics to make recommendations regarding the implementation of its duties. Chula Vista Municipal Code section 2.28.100 permits the Board of Ethics to adopt rules of procedures for the conduct of its business. With the aforementioned Municipal Code sections as the backdrop, the Board of Ethics then voted on how to proceed on City Council's assignment to the Board of Ethics the role to select the Enforcement Authority Attorney. By a vote of 5-2, the Board of Ethics voted to express to the City Council the Board's desire to carry out its assigned duties and to recommend to City Council that the Board of Ethics be directed and permitted to select Enforcement Authority Attorney as proposed above. A draft of the policy is attached hereto. If the City Council approves this recommendation, the Board of Ethics will proceed to finalize, adopt and implement this procedure consistent with this draft. The City Attorney's Office should also be directed to prepare any ordinance changes to implement the selection procedure proposed by the Board of Ethics. Note from the City Attorney; This modified procedure does not address the different procedure that will be required if allegations are made against the City Attorney himself/herself. This needs to be resolved soon, certainly by no later than prior to next City Attorney election. DECISION MAKER CONFLICT The proposed action is not site specific, and, as a result, no conflicts have been identified. June 21, 2011 Item Page 4 of 4 CURRENT YEAR FISCAL IMPACT To be determined. ONGOING FISCAL IMPACT The ongoing fiscal impact will vary depending on the number of cases assigned for investigation. In 2004 through Council Action, the annual budget was to include $100,000 for investigation and prosecution of such cases. In December 2010, Council action eliminated requirement to set aside these funds and thus the current proposed budget has no such line item. If funds are needed they would come from the City Attorney's outside services account. ATTACHMENTS Draft policy for City Attorney and Board of Ethics Engagement of Outside Counsel as the City's Enforcement Authority. Prepared by: Felicia Starr, Chair, Board of Ethics, Norma Toothman, Member, Board of Ethics, and Simon Silva, Deputy City Attorney, City Attorney's Office. DRAFT BOARD OF ETHICS Campaign Contribution Enforcement Authority Selection Process Policy Amendments to Chapter 2.52 (Campaign Contribution Ordinance) assigned to the Board of Ethics the role of selecting the Campaign Contribution Enforcement Authority Attorney ("Enforcement Authority Attorney") to investigate and prosecute violations of that Chapter. This policy sets forth the procedures to be followed in the selection of a panel of attorneys to serve the Enforcement Authority Attorney. The procedures are as follows: 1. [Development of Professional Criteria and Solicitation] The City Attorney's Office and the Board of Ethics shall work together to develop professional criteria to establish minimum qualifications to serve as an Enforcement Authority Attorney. Professional criteria may include, but are not limited to, the following: a. Member of the California Bar in good standing for a minimum of ten consecutive years; b. Experience in general municipal or public entity law; c. Experience in some criminal investigation or prosecution establishing an understanding of the role of investigator/prosecutor; d. Experience in civil litigation establishing an understanding of the rules of civil procedure and of the local courts; e. Experience in or advising elected officials in their capacity as public servants; f. Establishment of a local office or ability to provide services in San Diego County; and g. Reasonable fees structure to assure cost effective investigations and prosecutions. The City Attorney's Office," using the established professional criteria, would solicit applications from interested outside counsel by providing a public announcement for applications. The announcement and request for applications would be contained in the following: (1) The official City internet website; (2) the San Diego County Bar Association official publication; (3) various legal periodicals and newspapers including the San Diego Dailey Transcript and the Los Angeles Dailey Reporter. In addition, direct referrals from members of the San Diego County Bar Association would be solicited. 2. [Interview and Selection of Enforcement Authority Panel] A list of attorney applicants ("candidates"), whose qualifications have been confirmed by the City Attorney to assure compliance with the minimum qualifications (above), would be forwarded to the Board of Ethics for its independent consideration. From the list, the Board of Ethics may select those candidates it wishes to interview for the final panel. Interview questions would be developed by the Board and designed to identify the most qualified and ATTACHMENT independent. After interviews, to be conducted in public, the Board of Ethics would choose, in its sole discretion, at least three, and up to five attorneys for placement on the panel. 3. [Assignment of Specific Panel Enforcement Attorney] After formal establishment of the "Enforcement Authority Panel' by the Board of Ethics, the names of those attorneys on the panel would be forwarded to the City Attorney and the City Attorney would hire these attorneys to be on standby service. In the event of a complaint being received under the Campaign Contribution Ordinance, the City Attorney's Office would by random process (the drawing of names/rotation assignment) assign a specific panel attorney to investigate/prosecute the matter. Per the Municipal Code the City Attorney would not participate in the investigation or prosecution of the complaint by the selected panel attorney. ATTACHMENT RESOLUTION NO. 2011-001 RESOLUTION OF THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA APPROVING COMPLAINT PROCESS GUIDELINES AND THAT THE SECRETARY OF THE BOARD OF ETHICS IS DIRECTED TO DELIVER THE INSTANT RESOLUTION AND ATTACHED COMPLAINT PROCESS GUIDELINES TO THE CITY CLERK IN ACCORDANCE WITH CHULA VISTA MUNICIPAL CODE SECTION 2.25.170 WHEREAS, the Board of Ethics is tasked with hearing complaints involving ethics violations delineated in Chapter 2.28 of the Chula Vista Municipal Code; and WHEREAS, the Board of Ethics has established certain past practices, not inconsistent with Chapter 2.28, in the handling of the aforementioned complaints, but those past practices have not been reduced into a written document; and WHEREAS, Chula Vista Municipal Code section 2.25.170 permits Boards to adopt rules, which are consistent with the City Charter, municipal code, and applicable state law, to govern the conduct of their affairs; and WHEREAS, Chula Vista Municipal Code section 2.28.100 specifically permits the Board of Ethics to Adopt "rules of procedure for the conduct of its business;" and WHEREAS, the Board of Ethics has formed an Ad Hoc Committee to make recommendations regarding revisions to Chapter 2.28 of the Municipal Code and, as such, it is intended that the attached Complaint Process Guidelines be temporary guidelines and that they should be reviewed after the aforementioned recommendations regarding revisions to Chapter 2.28 have been considered by the Chula Vista City Council; WHEREAS, the Board of Ethics desires to adopt the attached Complaint Process Guidelines and finds that they are consistent the City Charter, municipal code, and applicable state law, as required by Chula Vista Municipal Code section 2.25.170. NOW, THEREFORE, THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA HEREBY DOES RESOLVE that the attached Complaint Process Guidelines are approved, as amended, and that the Secretary of the Board of Ethics is directed to deliver the instant resolution and attached Complaint Process Guidelines to the City Clerk in accordance with Chula Vista Municipal Code section 2.25.170. Resolution No. 2011-001 Page 2 Presented by: Simon Silva Deputy City Attorney Approved as to form by: en R. Googins Ci Oi*ney �,j U Resolution No. 2011-001 Page 3 PASSED, APPROVED, and ADOPTED by the Board of Ethics of the City of Chula Vista, California, this 18th day of May 2011 by the following vote: AYES: Board members: German, Jemison, Schilling, Glanz, Sotoa, and Starr NAYS: Board members: None ABSENT: Board members: Toothman Felicia Sta , Chair ATTEST: C 4 A --'-A Che§I Ponds, Secretary to Board of Ethics STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF CHULA VISTA I, Cheryl Ponds, Secretary to the Board of Ethics of the City of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2011-001 was duly passed, approved, and adopted by, the Board of Ethics at a regular meeting of the Board of Ethics for the City of Chula Vista held on the 18th day of May 2011. Executed this 150', day of June 2011. r% Cher Ponds, Secretary to the Board of Ethics Resolution No. 2011-001 Page 4 BOARD OF ETHICS Complaint Process Guidelines 1. [Case number assignment] Upon Receipt of a complaint, the complaint shall be assigned a case number. The case number shall consist of the term "BOE," the date it was received, and a capital letter (which shall be added in alphabetical order if more than one complaint is received on the same date). For example for on complaint received on January 1, 2011, the case number shall be "BOE 1-11-11A." For two complaints on that same date, the case numbers shall be BOE 1-11-1 lA and BOE 1-11-11B. The case number shall be used in the public noticing of complaint. 2. [Notification of Subject of Complaint] The subject of the complaint shall be notified and provided a redacted copy of the complaint as soon as possible. The Copy shall be redacted pursuant to CVMC 2.28.150(A). The Chair shall be notified of the complaint. The complainant and subject of the complaint shall be provided notice anytime the complaint is calendared on the agenda for consideration. A copy of the redacted complaint shall be provided to the Board members with the agenda. The complaint shall be kept confidential by the Board members and shall not be discussed with anyone outside of the hearing. 3. [Prima Facie Review] A prima facie review of the complaint shall be set for the next regularly scheduled meeting. However, the Chair may also call a special meeting for such review. At the prima facie review, the Board shall determine if there is a prima facie showing that (1) the subject of the complaint is a person enumerated within section 2.28.020 and (2) the complaint complies with the requirements of Section 2.28.090(A). Section 2.28.090 requires: a. That the complaint be in writing and sworn under penalty of perjury; and b. That the complaint contain "a full allegation of facts which would constitute a violation of the code" [specific prohibitions listed in Section 2.28.090]; and c. That the complaint be timely submitted. The prima facie review is not meant to be a hearing. The review is generally limited to a review of the complaint and documents filed with the complaint. Both the complainant and subject of the complaint may comment at this stage of the proceeding, as permitted by the Brown Act. Staff may present a report on the complaint to assist in the determination of whether there is prima facie showing has been made. If there is no prima facie showing then the case may be dismissed. If there is a prima facie showing the case shall proceed to a probable cause hearing. 4. [Probable Cause Hearing.] If it is determined that a prima facie showing has been made, the next step is to determine if probable cause exists. The complainant may present evidence to support the existence of probable cause. The subject of the complaint may present evidence that probable cause exists. Both sides may present a closing statement as to the existence of Resolution No. 2011-001 Page 5 probable cause. The Board retains the discretion to control the conduct of the hearing. If probable cause exists then, the matter may continue to a hearing. 5. [Hearing] If it is determined that probable cause exists, then the Board may conduct a hearing about the complaint. At the hearing there must be a preponderance of evidence that a violation has occurred and five (5) members, by vote, must agree that a violation of the code has occurred. The complainant may present evidence to support of the complaint. The subject may present evidence in opposition to the complaint. If witnesses testify, both sides may cross-examine witnesses as permitted by the Board. Both sides may present a closing statement. The Board retains the discretion to control the conduct of the hearing. If a violation is determined to have occurred, then the Board shall discuss a recommended course of action for City Council. Both parties may comment on the proposed recommendation. 6. [Conclusion] The above listed guidelines are meant to be a guide to implement the requirements of Chapter 2.28. The Board retains the discretion to and may alter these guidelines on a case-by-case basis and as needed to meet the requirements of 2.28. If the Board alters the procedures set forth herein on a case-by-case basis, the Board is not required to change this document. In the event of a conflict between the guidelines and Chapter 2.28, chapter 2.28 shall govern. The guidelines are meant to be consistent with Chapter 2.28.