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HomeMy WebLinkAbout2011-07-13 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, JULY 13, 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. Discussion and Action (Including Referral/Recommendation to City Council) Regarding Board of Ethics Ad Hoc Committee's Proposed Changes to 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 Maly aux, 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: 07/08/11 THE CHULA VISTA BOARD OF ETHICS IS COMMITTED TO HONOR THE PUBLIC TRUST BY PROMOTING ETHICAL VALUES AND MONITORING ETHICAL STANDARDS IN ALL ASPIECTS OF CITY GOVERNMENT ' I dedaro under pehalty.of mury 101 1 &q1 by th, Cityof 0tltilay*t1Pl'-,A901 t 9Cf *'9 CitytA0rrwy 14nd that I posted this Agenduft*x on the BOOM' 3 at the Public .5r.rir-;,1 i? trop and a; y Hap on 7� BOARD OF ETHICS AND CODE OF ETHICS* Sections: 2.28.010 Establishment of Board of Ethics and Code of Ethics. 2.28.020 Application of the Code of Ethics. 2.28.030 Code of Ethics. 2.28.040 Creation of the Board of Ethics. 2.28.050 Purpose. 2.28.060 Duties of the Board of Ethics 2.20.070 Powers of the Board of Ethics. 2.28.080 Organization. 2.28.090 Meetings. 2.28. 100 Order of Business. 2.28.110 Advisory Opinions. 2.28.120 Complaints -Form, Referral to Other Enforcement Agency, and Requests for Confidentiality. 2.28.130 Complaint Procedures -Receipt of Complaint. 2.28.140 Complaint Procedures -Prima facie Review. 2.28.150 Complaint Procedures -Probable Cause Hearing. 2.28.160 Complaint Procedures -Hearing on the Merits. 2.28.170 Complaint Procedures -Decision After Hearing on the Merits. 2.28.180 Conflicts. 2.28.190 Records. 2.28.200 Severability. * For provisions of Charter law concerning appointive boards and commissions, see city Charter §§ 600 —606. 2.28.010 Establishment of Board of Ethics and Code of Ethics. Public office is a public trust and City Officials shall exercise their public duties in a manner that preserves that trust. The public's trust can best be preserved if City Officials adhere to a high standard of ethics that transcend the standards prescribed by law. High ethical standards require that all City Officials understand, and avoid unethical behavior. Unethical behavior can develop in a variety of situations, but it 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 City officials, to identify and take appropriate action with respect to unethical behavior, and to assist City Officials with decision making in areas of ethical concern. Accordingly, the Board of Ethics, as stated in Section 2.28.040, and Code of Ethics, as stated in Section 2.28.030, are hereby established. 2.28.020 Application of the Code of Ethics. The Code of Ethics 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, Assistant City Managers, City department heads, as well as to ex -City Officials who were subject to this chapter. 2.28.030 Code of Ethics The Code of Ethics is divided into two areas, Guiding Principles, as set forth in subdivision A, and Specific Prohibitions, as set forth in subdivision B. The Guiding Principles are intended to provide a set of principles from which City Officials can draw upon to assist them in conducting the public's business. As such, the Guiding Principles directory in nature and not subject to the complaint procedures set forth in Sections 2.28.120 through 2.28.160. The Specific Prohibitions are actions that City Officials shall not engage in, and as such, are subject to the complaint procedures set forth in Sections 2.28.120 through 2.28.160. A. Guiding Principles. The public judges its 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 they represent. The purpose of these Guiding Principles 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 strive to adhere to the following Guiding 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 interests of the public. 2. City Officials must strive to protect the public's resources through diligent and judicious management. 3. City Officials should not engage in, . permit, or condone fraud, but should be proactive to identify fraud and seek to correct the causes that lead to the fraud. Fraud in public service includes, but is not limited to, making a false or misleading representations about a material fact or engaging in deceitful conduct. 4. City Officials should not engage in, permit, or condone waste, but should be proactive to identify waste and seek to correct the causes that lead to the waste. Waste in public service involves the extravagant, careless, or needless expenditure of city funds, or the consumption of city property, that results from deficient practices, systems, controls, or decisions. 5. City Officials should not engage in, permit, or condone abuse, but should be proactive to identify abuse and seek to correct the causes that lead to the abuse. Abuse involves the intention or improper use of city resources, including abuse of position, authority, or resources such as tolls, vehicles, or other city property. 6. City Officials must be loyal to the public they serve and should put the public's interests above their personal interests. 7. City Officials must protect and enhance the image and reputation of the City. 8. City Officials must treat all citizens conducting business with the City with due courtesy, efficiency, and impartiality, and no one citizen shall receive special advantage. 9. City Officials must always be mindful of the public trust and confidence in the exercise of their assigned duties and shall refuse to condone breaches of public trust or improper attempts to influence the decision-making process. 10. City Officials must always be mindful of conflict of interest laws and abide by them. 11. City Oficial must be aware of all their financial interests, thereby ensuring that such financial interests do not influence their conduct or actions. 12. City Officials should avoid an appearance of a conflict of interests when possible. However, they should be mindful that recusal or abstention should be reserved for actual conflicts or where a good faith determination has been made by the City Official that recusal is appropriate. 13. City Official's are expected to abide by all local, state, and federal laws. These Guiding Principles seek 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. B. Specific Prohibitions. City Officials shall be deemed to have engaged in unethical conduct under this chapter and are prohibited from engaging in the following: 1. Accept gifts, favors, or promises of future benefits, which might compromise or tend to impair independence of judgment or action. 2. Use his/her position to unduly influence the deliberations or outcomes of official proceedings, both during and outside of those proceedings, of bodies of which he/she is not a member, in derogation because of the value of the independent advice of boards, commissions and other advisory bodies to the public decision- making process. 3. Use their official title or position for personal gain. Personal gain includes, but is not limited to situations, wherein a City Official solicits items of value in consideration of their official title or position. 4. Divulge confidential information for personal gain or for the gain of associates in a manner contrary to the public interest or in violation of any law. 5. Use or permit the use of resources including but not limited to funds, seals or logos, city time, personnel, supplies, equipment, identification cards/ badges or facilities for unapproved non -city activities, except when available to the general public, provided for by administrative regulations or policies, or approved by City Council. 6. Appear on behalf of the private interests of third parties before the Council or any board, commission or proceeding of the city; nor shall members of boards, commissions, and other advisory boards appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies, except for limited exceptions, as provided for in Fair Political Practices Commission Regulation 18702.4. 7. No Ex -City Officer (not including a former mayor or councilmember) for a period of one-year after leaving office or employment shall, for compensation, act as an agent or attorney for, or other otherwise represent, any other person by making oral or written communication before any city administrative office or agency or officer or employee thereof, if the appearance of communication is made for the purpose of influencing any action or proceeding involving the issuance, amendment, awarding, or revocation of a permit, license, grant, or contract for the sale of purchase of goods or property. 8. No former member of the City Council, including the Mayor, shall be eligible to appear as a compensated representative at any time before the Council, or any commission, board, 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, 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. Such special identified and articulated circumstances, include but are not limited to, determinations that it is in the best interest of the City to permits such representation, that the former councilmember, including the Mayor, is uniquely qualified to appear on the matter, or it is impractical to require another representative to appear on the matter. (Refer to Civil Service Commission for the hiring rules.) 9. Endorse or recommend for compensation any commercial product or service in the name of the city or in the employee's official capacity within the city without prior approval by a city council policy. 10. Violate Government Code section 87100 related to financial interests and governmental decisions made by them. If a complaint is filed with the Board of Ethics alleging a violation of this subsection, the Board of Ethics recognizes that the Fair Political Practices Commission ("FPPC") is the primary enforcement authority of the Political Reform Act and that there decisions should be given great weight. As such, if a complaint is filed concurrently, then the Board of Ethics may defer action on such allegation, as set forth in this chapter. If a complaint is not filed concurrently, the Board of Ethics may submit a complaint to the FPPC and defer action until such complaint is addressed by the FPPC. A ruling on the merits by the FPPC may be accepted as a finding of the Board. 2.28.040 Creation of the Board of Ethics. A Board of Ethics shall be created and appointed in accordance with Section 600 of the city of Chula Vista Charter and in the manner set forth in this chapter. (Ord. 2297 § 1, 1989). 2.28.050 Purpose. It is the purpose of this Board of Ethics advise and make recommendations to the city council of the city of Chula Vista on all matters relating to potential unethical conduct and to make such necessary and appropriate recommendations to the city council for the implementation of the code of ethics and amendments thereto, which may become necessary from time to time. The Board of Ethics will serve as a hearing body for violations of this chapter and shall render impartial and objective opinions and insure that those covered by this chapter are appropriately informed. Members of the Board of Ethics should be aware that they are in a unique postion given their role under this chapter and as such must strive to avoid any appearance of bias or partiality. Accordingly, they should be aware that their conduct and actions will be scrutinized by the public at all times, but particularly during the election cycle. (Ord. 2297 § 1, 1989). 2.28.060 Duties of the Board of Ethics. It shall be the function of the Board of Ethics to implement this chapter. The duties of the Board shall be: A. To receive or initiate complaints of violations of this chapter. The affirmative vote of five members of the board shall be necessary for it to find a violation of this chapter. B. To hear and investigate complaints and transmit the findings and recommendations to the City Council. C. To render advisory opinions or interpretations with respect to the application of this chapter, either on request or on its own initiative. D. To propose revisions of this chapter to assure its continuing pertinence and effectiveness. (Ord. 2297 § 1, 1989). 2.28.070 Powers of the Board of Ethics. The Board of Ethics is authorized to receive complaints, conduct investigations upon complaints or information received, make referrals to other governmental agencies regarding unethical conduct, hold hearings, swear witnesses, render advisory opinions and adopt rules of procedure for the conduct of its business. (Ord. 2297 § 1, 1989). 2.28.080 Organization. A. The Board of Ethics shall be composed of seven members appointed by the City Council for a term of four years, as prescribed by the provisions of the city Charter and the municipal code of the city of Chula Vista.. Members for the Board of Ethics shall be appointed in the manner as set forth in Chula Vista Municipal Code section 2.25.050, subdivision D. Irregularities in the interview process set forth in Section 2.25.050, subdivision D, may be brought to the attention of the City Council. No person may be appointed as a member of the Board of Ethics, or shall be entitled to retain their membership, if he or she, within the past 10 years prior to the date of appointment, has been convicted of any felony or a crime involving moral turpitude or has been found to have committed a criminal violation of the Fair Political Practices Act. B. The Board of Ethics shall elect from its membership a chair and a vice -chair. The term of the chair and vice -chair shall be for the period of one year, commencing on July 1 st each year. The chair shall preside at all meetings. In the absence of the chair at any meeting, the vice -chair shall preside, and in the absence of both chair and vice -chair, the board members present shall elect a chair pro tempore for said meeting. C. The City Attorney or an appointed representative shall act as secretary to the board. The secretary shall cause notice of the meetings of the board to be kept and distributed. The secretary shall also give appropriate and required written notice of all meetings to all members and persons having business before the board. (Ord. 2778 § 1, 1999; Ord. 2630 § 1, 1995; Ord. 2297 § 1, 1989). 2.28.090 Meetings. The Board of Ethics will hold meetings at the call of the chair or the vice -chair or a majority of the members of the Board of Ethics. The Board of Ethics shall hold at least one meeting per year. (Ord. 2297 § 1, 1989). 2.28.100 Order of business. A. The following shall be the order of business for all meetings: 1. Roll call of members. 2. Reading of minutes of previous meeting. 3. Amendment or approval of minutes of previous meeting. 4. Consideration of matters continued from previous meeting. 5. Consideration of new complaints or requests. 6. Consideration of proposed or existing state legislation in the field of ethics and amendments to the code of ethics of the city of Chula Vista. 7. Other business. 8. Oral communication. The aforementioned order of business may be modified by an affirmative vote of the Board of Ethics. B. Items of business shall be placed on the agenda at the direction of the City Manager, City Attorney, City Clerk, the Chair of the Board of Ethics, and upon an affirmative vote of the majority of Board members. (Ord. 2297 § 1, 1989). 2.28.110 Advisory opinions. When a City Official has doubt as to the applicability of a provision of this chapter to a particular situation, he or she may make a written inquiry to the Board of Ethics for an advisory opinion. The purpose of the advisory opinion is to assist the City Official in the task of judging themselves, so as to enable them to properly carry out their responsibilities as trustees in the public interest, and to conform their conduct to the Code of Ethics. The City Official shall have the opportunity to present their interpretation of the facts at issue and of the applicable provisions of this chapter before such advisory opinion is rendered. 2.28.120 Complaints -Form, Referral to Other Enforcement Agency, and Requests for Confidentiality. A. All complaints regarding violations of this chapter, shall be in writing, identify a person subject to the Code of Ethics, contain a full allegation of facts that would constitute which would constitute a violation of the specific prohibitions enumerated in this chapter, and sworn under penalty of perjury. All alleged violations must be submitted within 90 days of occurrence or when it should have been discovered with the exercise of reasonable diligence. Justification for any delay in filing complaints is the responsibility of the complainant. For complaints concerning unethical patterns of behavior, such complaints must be received by the Board of Ethics within 90 days of the most recent event comprising the pattern of behavior complained of, or within 90 days of when the last event should have been discovered with the exercise of reasonable diligence. The Board of Ethics will, in its discretion, limit the pattern of behavior to those events the Board of Ethics feels are proximately related in time to be a part of the same pattern of behavior. B. The Board may refer the matter to a local, state, or federal enforcement agency that may have jurisdiction over the matter at any stage of the proceedings and may hold in abeyance Board action pending results of the referral. The Board of Ethics may, but is not required to, resume Board action on the matter if it has been provided notice of inaction by State or Federal Agencies having jurisdiction over the alleged violation, the expiration of any applicable statute of limitations, or inaction for more than one year by the agency to whom the complaint was referred. Local, state and federal enforcement agencies include, but are not limited to, the United States Attorney's Office, the California Attorney's General's Office, the San Diego County District Attorney's Office, the San Diego County Grand Jury, and the Fair Political Practices Commission (FPPC). If the Board learns of misconduct during any stage of the proceedings, but the misconduct is not within the specific prohibitions set forth in this chapter, the Board of Ethics may make a referral to the appropriate local, state, or federal enforcement agency that may jurisdictions over the alleged misconduct. C. The name of the complainant shall be disclosed unless the complainant has requested that their name be kept confidential and there is good cause to withhold such name. Requests for confidentiality shall be addressed as follows: 1. To request that their name be kept confidential the complainant must provide, with their complaint, a detailed factual statement, sworn under penalty of perjury, that they would suffer harm or retaliation if their name were to be disclosed. Conclusionary or speculative statements of harm or retaliation are insufficient to establish good cause. 2. Upon a request for confidentiality, the Chair and two board members, chosen by the Chair, shall form an ad hoc committee within two business days being informed by the City Attorney's Office of a request for confidentiality and, after consideration of the request, determine if good cause exists to withhold disclosure of the name. The Chair shall inform the complainant of its decision within five business days. 3. If the decision is to deny the request for confidentiality, complainant shall have five business days to withdraw their complaint. If complainant requests that the complaint be withdrawn, the entire complaint shall be returned to complainant and their complaint shall not be disclosed. The complaint and complainant's name shall be not disclosed during this evaluation process. 4. Upon a finding of good cause by the Ad Hoc Committee formed under this section, the name of the complainant shall be kept confidential unless and until a finding of probable cause is made. The complaint shall also be redacted accordingly. 2.28.130 Complaint Procedures -Receipt of Complaint. A. The following procedures will be followed upon receipt of a complaint: 1. The complaint will be assigned a case number. 2. The complainant ("Complainant") will be sent a letter that provides notice that the complaint was received, the date of the next hearing in which the complaint will be addressed, and which generally explains the procedures which will be followed. 3. The subject of the complaint (hereinafter "Respondent") will be sent a letter that provides notice that a complaint has been received naming them as the subject, the date of the next hearing in which the complaint will be addressed, and which generally explains the procedures which will be followed. The Respondent will also be sent a copy of the complaint with the letter. The complaint may be redacted as provided for in 2.28.120, subdivision C, (related to confidentiality requests). 4. The Chair of the Board of Ethics shall be notified that a complaint has been received. Notwithstanding any other time frames, the Chair may set a special meeting on the complaint. 5. A preliminary review (hereinafter "Prima Facie Review") of the complaint will be set within 30 days of receipt of the complaint. If the complaint is received within 90 days of a municipal election in which a public official is a candidate, the Prima Facie Review of the complaint will be set within 15 days of the receipt of the complaint. The Chair and members shall be sent copies of the complaint for their review prior to the hearing. The Chair and members receiving copies of the complaint shall not discuss the complaint nor disclose the complaint to any person outside of the hearing. 2.28.140 Complaint -Prima Facie Review. The Board of Ethics will conduct a prima facie review ("Prima Facie Review") of the complaint. The purpose of Prima Facie Review is to determine if the complainant has made a prima facie showing that the complaint complies with the requirements Sections 2.28.120, subdivision A, [Complaints -Form, Referral to Other Enforcement Agency, and Request for Confidentiality] thereby establishing jurisdiction. A prima facie review may result in the following: A. [No Prima Facie Showing Made -Dismissal] After completing the Prima Facie Review, the Board may dismiss the complaint for any of the following reasons: 1. The complaint is not in writing or is not made under penalty of perjury; 2. The Respondent is not a public official within the meaning of this chapter; 3. The complaint does not contain a full allegation of facts that would constitute a violation of the specific prohibitions enumerated in this chapter; 4. The complaint restates other complaints containing essentially similar or identical allegation that have already been disposed of, and the evidence presented does not warrant reopening of the previous case; 5. The allegations contained in the complaint are already under investigation by the Board of Ethics; 6. The complaint consists of speculation, opinion, frivolous contentions, or absurd accusations; or 7. The Board of Ethics determines other good cause requires dismissal. If the dismissal is for this reason, the good cause must be set forth in the minutes of the preliminary review. If the complaint is dismissed, the Board shall issue a letter to the Complainant and Respondent as soon as possible, indicating the reason for the dismissal of the complaint. Such letter is not a conclusive finding and is not intended to be evidence in any enforcement action, initiated by another agency. B. [Prima Facie Showing Made -Further Action.] If the Board determines that a prima facie showing has been made, then the Board shall determine the appropriate course of action, including the following: 1. The Board may request additional information from Complainant or the Respondent. The Board shall endeavor to complete this action within 45 days from the prima facie finding. If the information is not received within the 45 days, such fact shall be reported to the Board. After this stage is complete the matter should be set for a probable cause hearing within 30 days. 2. The Board may create an ad hoc sub -committee comprised of one to three Board members to conduct further investigation. The ad hoc sub -committee shall endeavor to complete its investigation within 90 days of the prima facie finding. If the investigation is not completed within the 90 days, such fact shall be reported to the Board. After this stage is complete the matter should be set for a probable cause hearing within 30 days. 3. The Board may hire an individual from a list of pre -qualified investigators to conduct an investigation. This provision is subject to available funding. The investigator shall endeavor to complete the investigation within 90 days of the prima facie finding. If the investigation is not completed within the 90 days, such fact shall be reported to the Board. After this stage is complete the matter should be set for a probable cause hearing within 30 days. 4. The Board may set the matter for a probable cause hearing. The Board shall endeavor to set the probable cause hearing within 45 days of the prima facie finding. 2. 28.150 Complaint Procedures -Probable Cause Hearing. The purpose of the probable cause hearing is to determine if there are facts and circumstances, of a reasonably trustworthy nature, sufficient to justify a person of reasonable caution or prudence in the belief that a violation of the specific prohibitions has occurred (probable cause). To find probable cause, there must be an affirmative vote of the majority of the entire voting membership. The following procedures shall be followed in the conduct of a probable cause hearing: A. Both parties shall be provided notice that the probable cause hearing has been set. B. The complainant and Respondent shall be informed that they may lodge with the Board ten days before the hearing additional evidence and a statement on their behalf for the Board's consideration. If such evidence is not provided to the Board within the time frame indicated, the Board may, but is not required to, exclude such evidence. As soon after receipt of such evidence by the Board, the Board should endeavor to provide the opposing parry a copy thereof. C. At the hearing, the Board shall review, but is not limited to, the following: the complaint, including any supporting documents, that was filed; information acquired during any Board ordered investigation or request for information; and any other documents or evidence provided to the board before the probable cause hearing. D. The Board, in its discretion, may permit additional documents or evidence to be admitted into the probable cause hearing. The Board, in its discretion, may also permit witnesses to testify. Witnesses may be subject to cross-examination, as permitted by the Board. E. Both parties may comment on the issue of probable cause, as permitted by the Brown Act. F. If the Board determines that probable cause does not exist, the Board shall dismiss the complaint. G. If the Board determines that probable cause exists the Board should set a Final Hearing within 45 days thereafter. 2.28.160 Complaint Procedures -Hearing on the Merits. If probable cause is determined to exist by the Board, then the Board shall conduct a hearing on the merits (Hearing on the Merits) as set forth herein: A. Prior to the Hearing on the Merits, the Board may request additional information as set forth in section 2.28.160. The Board should set a date by which a request for additional information should be completed. B. Both parties shall be provided notice of the Final Hearing. The Board may provide copies of materials upon which the complaint is based to either party. C. In the discretion of the Board, Complainant may present an opening and closing statement, present additional evidence and witnesses, including rebuttal evidence and witnesses, and cross examine witnesses. D. In the discretion of the Board, the Respondent may present an opening and closing statement, present additional evidence and witnesses, including rebuttal evidence and witnesses, and cross examine witnesses. E. The Board may admit, but is not limited to, evidence provided at the Hearing on the Merits, information provided with the complaint, information provided pursuant to section 2.28.160 or subdivision E of this section, information provided at the probable cause hearing, and any other evidence it determines should be considered. F. The Hearing on the Merits is not a formal judicial proceeding, but the Board will exercise control over the hearing to ensure that it is conducted in an orderly and expeditious manner. While the technical rules of evidence are not applicable and hearsay is admissible, evidence that is admitted should bear an indicia of reliability. 2.28.170 Complaint Procedures -Decision After Hearing on the Merits. The Board shall document its decision in a written statement of decision. A vote of five board members is required to make a finding of misconduct. Each finding of misconduct must be supported by a preponderance of the evidence. The statement of decision should be prepared expeditiously and shall be served upon both parties via certified mail with a certificate of mailing. A. Misconduct Found -Declaration of Misconduct. If the Board makes a finding of misconduct, the statement of decision shall contain, and be labeled as such, a Declaration of Misconduct. The Declaration of Misconduct shall detail the misconduct that has been found to be true and the supporting evidence. The Declaration of Misconduct shall be a final decision on the merits and shall not be changed by the City Council. The Declaration of Misconduct may contain a recommendation of sanctions against the City Official found to have engaged in misconduct, including, but not limited to, the following: (1) a reprimand, censure, or removal from office. The Declaration of Misconduct may also recommend remedial actions to prevent misconduct in the future. B. No Misconduct Found -Declaration of No Misconduct. If the Board makes a finding of no misconduct, the statement of decision shall contain, and be labeled as such, a Declaration of No Misconduct. The Declaration of No Misconduct, shall detail the basis for its finding. Even though no misconduct is found, facts may develop which reveal a potential for misconduct. Accordingly, in a separate action, the Board may recommend remedial actions to the City Council for appropriate action. 2.28.180 Conflicts City Officials subject to the Specific Prohibitions set forth in this chapter should not participate in or influence the complaint process as set forth in Sections 2.28.120 to 2.26.170. To this end, when a complaint involves a Board of Ethics board member, a councilmember (including the mayor) or the City Attorney, the following procedures shall be followed: A. If a complaint involves a Board of Ethics board member, then they shall recuse themselves and not participate in or influence the complaint process. B. If a complaint involves a councilmember, including the Mayor, then they shall recuse themselves and not participate in or influence the complaint process. C. If the complaint involves the City Attorney, the City Attorney and his or her Office, shall recuse themselves and not participate in or influence the complaint process. Outside counsel shall be appointed to advise the Board of Ethics regarding the complaint alleging misconduct by the City Attorney. The Board of Ethics may establish procedures for the selection of such counsel. 2.28.190 Disclosure of Board Records The purpose of this section is to advance the public's interest under the Public Records Act to access information concerning the conduct of Board in a manner that will not compromise the Board's ability to conduct effective and confidential investigations into alleged violations of the City of Chula Vista's Code of Ethics. The Board and its staff shall not make public comments regarding a pending matter until the Board has made a final decision on the merits or until the matter is otherwise closed. The complaint may be released to the public. The complaint may be redacted consistent with Section 2.28.120 (regarding requests for confidentiality. The Board may release its records unless they fall within the categories that follow: A. Preliminary or draft memoranda, documents, or records not kept in the ordinary course of business. B. Personnel, medical, or personnel files, the disclosure of which would constitute an unwarranted invasion of personal privacy. C. Documents or record protected under any law (state or federal) related to privilege. D. Records exempt from disclosure under the California Public Records Act (Government Code section 6250 et.seq.) E. Documents or records where the public interest against disclosure outweighs the public interest served by disclosure. Such documents may include, but are not limited to, the following: 1. The names of juvenile witnesses; or 2. Personal or otherwise private information related or unrelated to the investigation if the disclosure would constitute an unwarranted invasion of privacy. 3. The identity of a confidential source; or 4. Information, which, if disclosed, would create a credible risk of endangering any individual; or 5. Information, which, if disclosed, would endanger the successful completion of an investigation where the prospect of enforcement proceedings is concrete and definite. 2.28.200 Severability. If any provision of this chapter, or the application of any such provision to any person or circumstance, shall be held invalid, the remainder of this chapter to the extent if can be given effect, or the application of those provisions to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this chapter are severable.