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2012-10-17 Board of Ethics Packet
NOTICE OF REGULAR MEETING OF THE 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 REGULAR SESSION ON WEDNESDAY, OCTOBER 17, 2012 AT 5:15 P.M. IN THE CONFERENCE ROOM C101, LOCATED AT CITY HALL, 276 FOURTH AVENUE, CHULA VISTA, CALIFORNIA, TO CONSIDER THE FOLLOWING: Roll Call. 2. Discussion and Action on Ethics Complaint BOE 10-8-12A (regarding Councilmember Bensoussan), including conduct of Prima Facie Review of Complaint. 3. Update on Chula Vista Municipal Code Chapter 2.28 (Board of Ethics) Ordinance Changes. 4. 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. 5. Members' Comments. 6. Staff Comments. .6 U\ U oljal Jo a Wiveaux, 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 4h Avenue, Chula Vista, California. Notice Dated: 10/12/12 THE CHULA VISTA BOARD OF ETHICS IS COMMITTED TO HONOR THE PUBLIC TRUST BY PROMOTING ETHICAL VALUES AND MONITORING ETHICAL STANDARDS IN ALL ASPECT F ITY GOVERNMENT T�c�ecrare under penalty of perjury that I am employed by the City of Chula Vista in the Office of the City Attorney and that I posted this document on the bulletin board at the City Hall according to Brown Act requir ments. Dated: igned. ` (GQ� Mitch Thompson Memo Date: October 17, 2012 To: Board of Ethics City of Chula Vista From: Mitchell L. Thompson, Former Council Member mitchthompsonmitch acimail.com Subject: Ethics Complaint BOE 10-8-12A (regarding Councilmember Bensoussan), including conduct of Prima Facie Review of Complaint. The following is submitted as written testimony in the above-mentioned matter. Recommendation: That your prima facie review conclude a dismissal and a finding by your Board that the complaint does NOT meet your threshold test in that it does NOT contain "a full allegation of facts which would constitute a violation of the code...." as required under §2.28.090(b) of the Chula Vista Muncipal Code. Rationale: 1. Collecting a Contribution from an individual(s) who area land developer or whom work for a land developer is NOT illegal. - There are state court cases that establish a developer's right to make political contributions. 2. A Political Contributions in and of itself DOES NOT establish a "use of position for personal gain". The mere collection of properly documented contributions (on FPPC 460 forms) absolutely does not constitute any violation of ethics whatsoever. In order for this standard to be met, I believe that the complainant would have to provide additional evidence that the contribution did in fact result in personal gain. That gain would have to be for other than contributions to a political campaign. Otherwise, all such contributions would be, by definition, illegal and not allowed. 3. Timing of Complaint Demonstrates Political Motivation - Three things cause one to believe this to be politically motivated: 1) Complainant has gone on record numerous times opposing the candidate in question; 2) two council members met the facts and circumstances for a complaint and only one of those two had a complaint filed against them; and 3) the timing of the complaint is just before an election involving the council member in question. Thank you for the opportunity to be heard. Mitch Thompson O k cr n' (DD n 13 PO r n rD m cQ C3'' CD CD r+ CD CD Li CD C f 0 CD V �( ILJ CD IITI 0 CD CD CSD n O CSDCD CDD CD �. CD n • � �► p � C�4 ,s� (DCD CD CD CD � � o CD. oCD CD 0 CD ar CD CD CD CD CD • �' CD CD CD �+ CD O k cr n' (DD n 13 PO r n rD m cQ l i Disqum, on ReGeipt" of Cainrqmiqn C o ni,'. r '11', b 0 rl S Basic Rules Generally, the ethics laws with respect to campaign contributions emphasize disclosure rather than disqualification.44 The emphasis on disclosure enables the public to assess for itself the degree an official could be influenced by campaign contributors who appear before the agency. Both financial and in-kind support must be disclosed .41 Moreover, the courts have held the receipt of campaign contributions does not generally give rise to a duty to disqualify oneself based on bias issues. For example, a court determined a city council member who received a campaign contribution from a developer is not automatically barred from acting on the developer's land use permit application .46 The court did leave open the possibility this scenario could, under certain circumstances, create a problem. However, under limited (and sometimes counterintuitive) circumstances, certain local agency officials must disqualify themselves from participating in proceedings regarding licenses, permits and other entitlements for use if the official has received campaign contributions of more than $250 during the previous twelve months from any party or participant .41 Note campaign contributions may be both monetary (dollars) and "in-kind" (goods or services) contributions .41 In addition, these officials are prohibited from receiving, soliciting or directing a campaign contribution of more than $250 from any party or participant in a license, permit or entitlement proceeding while the proceeding is pending and for three months after the contribution .49 Affected Officials Generally speaking, this requirement does not apply to officials directly elected to the board of local agencies while acting in the scope of the office for which they were elected. However, elected officials are covered by this prohibition when they sit as members of other boards to which they were not elected (such as joint powers agencies, regional government entities or local agency formation commissions).50 Other covered officials include appointed board or commission members who become or have been candidates for elective offices' These prohibitions apply only with respect to campaign contributions from persons who are financially interested in the outcome of the specified proceedings. Those interested persons include: ■ Parties to the proceeding (such as applicants for the permit, license or entitlement); and ■ Participants." A participant is a person who is not a party but who actively supports or opposes a particular decision in a proceeding involving a license, permit or other entitlement for use and who has a financial interest in the outcome of the decision. A person qualifies as a "participant" if he or she attempts to Conditioning favorable decisions on receipt of campaign contributions is chargeable as a violation of several federal laws. One is the federal fraud laws. Under federal wire and mail fraud laws, the public has the right to the "honest services" of public officials.53 The basic concept is that a public official owes a duty of loyalty and honesty to the public—similar to a trustee or fiduciary. 54 That duty is violated when a public official makes a decision that is not motivated by his or her constituents' interests but instead by his or her personal interests.55 The potential penalties for federal fraud are steep. The maximum penalty for being guilty of wire and/or mail fraud includes a jail term of up to 20 years and a $250,000 fine. 16 A demand for campaign contributions can also constitute extortion. Extortion occurs when someone obtains money through threat of harm or under color of official right.57 To be chargeable as a federal of- fense, the act must affect interstate commerce. The maximum penalty for extortion under federal law is 20 years in prison and a $250,000 fine.58 influence the officers or employees of the agency with respect to the decision or testifies in person before the agency with respect to the decision.19 Kinds of Proceedings Affected The general rule applies to all proceedings involving licenses and permits, including use permits. This includes: ■ Business, professional, trade and land use licenses and permits; ■ Land use permits; ■ Franchises; and ■ Contracts, other than competitively bid, labor or personal employment contracts .60 Examples of land use permits include conditional use permits,61 zoning variances,62 and tentative subdivision and parcel maps .61 Examples of covered contracts include consulting contracts, whether engineering, architectural or legal.64 Actions That Must Be Taken Disclosure When someone files a permit or license application, that individual must publicly report all covered officials to whom the individual made contributions of more than $250 during the previous twelve months .61 Likewise, a covered official must publicly disclose on the record of the proceeding any party or participant who has contributed more than $250 during the previous twelve months to that official. The disclosure must be made prior to the agency making any decision in the proceeding (without the covered official's participation).66 Disqualification If, prior to making a decision in the proceeding, a covered official knowingly receives more than $250 in campaign contributions from a party during the previous twelve months, that official must disqualify himself or herself from participating in the proceeding. Likewise, with respect to contributions received from a participant, the covered official must disqualify himself or herself if he or she has reason to know, prior to making a decision in the proceeding, that the participant is financially interested in the outcome of the proceeding.61 (Note the disqualification requirement is triggered by actual receipt of campaign contributions, not simply solicitation of campaign contributions if none are received. Of course, there are significant ethical issues associated with soliciting campaign contributions from either parties or participants while a decision is pending.) Disqualification means the official may not participate in making any decision in the proceeding, and may not in any way attempt to use his or her official position to influence the decision. Avoiding Disqualification A covered official may avoid disqualification if he or she returns the contribution, or that portion which is over $250, within 30 days from the time the official knows or has reason to know of the contribution and the proceeding.68 No Contributions During the Proceeding While the permit or license proceeding is pending and for three months after the decision, covered officials are prohibited from soliciting or receiving campaign contributions from either parties or participants (persons who actively support or oppose a particular decision and are financially interested in the outcome). This prohibition includes a prohibition against soliciting, receiving or directing contributions on behalf of another person or on behalf of a campaign committee .61 Even when the law does not constrain an official's political fund-raising activities (other than requiring disclosure of donors), it is important to be extraordinarily judicious in choosing those one will ask for campaign contributions. If an individual or company has matters pending with one's agency, they (and others, including the media and one's fellow candidates) are going to perceive a relationship between the decision and whether they contribute to one's campaign. The unkind characterization for this dy- namic is "shake -down." Two important points to remember: ■ The legal restrictions on campaign fund-raising are minimum standards. ■ Public officials who indicate their actions on a matter will be influenced by whether they receive a campaign contribution put themselves at risk of being accused of soliciting a bribe or extortion. RESOURCES FOR FURTHER INFORMATION For more information, the Fair Political Practices Commission has produced "Campaign Contributions May Cause Conflicts for Appointees and Commissioners," which is available online at www.fppc.ca.gov. For specific questions, please contact the Fair Political Practices Commission or agency counsel. Likewise, all parties and participants are prohibited during this period of time from making contributions of more than $250 to any officials involved in the proceedings.70 Penalties The disqualification requirements are part of the Political Reform Act. A refusal to disqualify oneself is punishable by a variety of sanctions, Criminal Sanctions A knowing or willful violation of these requirements is a misdemeanor .72 A person convicted of a misdemeanor under the Political Reform Act may not be a candidate for elective office for four years following the convic- tion.73 Such a conviction may also create an immediate loss of office under the theory the official violated his or her official duties74 or create a basis for a grand jury to initiate pro- ceedings for removal on the theory failure to disclose constitutes willful or corrupt misconduct in office .75 Jail time is also a possibi I ity. 76 depending on the severity of the violation and the degree of intent to violate the law that enforcement entities are able to demonstrate." RESOURCES FOR FURTHER INFORMATION For more information, see the Every- day Ethics for Local Officials column on fund-raising ethics (see www.ca-ilg.org/ fundraising). Civil Sanctions District attorneys, some city attorneys, the Fair Political Practices Commission or a member of the public can bring an action to prevent the official from violating the law.77 If the action is brought by a member of the public, the violator may have to reimburse the costs of the litigation, including reason- able attorney's fees.78 Administrative Fines Violations may result in civil and criminal penalties. In addition, the Fair Political Practices Commission may impose administrative penalties. The administrative penalty for violation of the Political Reform Act is a fine of up to $5,000 per violation.79 25 See Cal. Gov't Code § 1770(h) (providing a vacancy occurs upon conviction of a felony or of any offense involving a violation of official duties). 26 Cal. Gov't Code §§ 3060-3074 (providing for proceedings to be brought by the grand jury for removal from office). 27 See Cal. Penal Code § 19 (providing misdemeanors are punishable by imprisonment in county jail up to six months, a fine not exceeding $2,000, or both). 28 Cal. Gov't Code §§ 83116, 91001(b), 91001.5, 91004, 91005. 29 Cal. Gov't Code § 91012. 30 Cal. Gov't Code § 83116. 31 2 Cal. Code Regs. § 18703.5. 32 See Cal. Gov't Code § 82029. 33 See generally Cal. Gov't Code §§ 91000 and following. 34 See Cal. Gov't Code § 91003(b). 35 See for example, People v. Honig, 48 Cal. App. 4th 289, 55 Cal. Rptr. 2d 555 (1996). 36 See Cal. Gov't Code § 91000(a). 37 See Cal. Gov't Code § 91002. 38 See Cal. Gov't Code § 1770(h) (providing a vacancy occurs upon conviction of a felony or of any offense involving a violation of official duties). 39 Cal. Gov't Code §§ 3060-3074 (providing for proceedings to be brought by the grand jury for removal from office). 40 See Cal. Penal Code § 19 (providing misdemeanors are punishable by imprisonment in county jail up to six months, a fine not exceeding $2,000, or both). 41 Cal. Gov't Code §§ 83116, 91001(b), 91001.5, 91004, 91005. 42 Cal, Gov't Code § 91012. 43 Cal, Gov't Code § 83116. 44 This is a requirement of the Political Reform Act. See generally Cal. Gov't Code §§ 87200 and following. 45 Cal. Gov't Code § 87202. 46 Woodland Hills Residents Association v. City Council, 26 Cal. 3d 938, 164 Cal, Rptr. 255 (1980). But see Cal. Gov't Code § 84308 and 2 Cal. Code Regs. §§ 18438-18438.8 (defining who is disqualified from acting on a land use entitlement application after receipt of a campaign contribution). 47 Cal. Gov't Code § 84308. 48 See Cal. Gov't Code § 82015; 2 Cal. Code Regs. § 18215. 49 See Cal. Gov't Code § 84308(b). 50 See Cal. Gov't Code § 84308(ax3); 2 Cal. Code Regs. § 18438.1. 51 See Cal. Gov't Code § 84308(ax4); 2 Cal. Code Regs. § 18438.1. 52 See Cal. Gov't Code § 84308(b) and (c); 2 Cal. Code Regs. § 18438.4. 53 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1346 (honest services). Pamela Bensoussan Subject: FW: "Pay for Play" before Ethics Commission Attachments: Ethics Comm agenda.doc -----Original Message ----- From: Susan Watry [mailto:s watr a,cox.netI Sent: Fri 10/12/2012 8:51 PM Subject: "Pay for Play" before Ethics Commission Attached is the agenda for the Ethics Commission for next Wednesday, Oct. 17, 5:15 in City Hall. Item one is my ethics complaint against Councilwoman Pamela Bensoussan. She took $1,900 in donations from a developer, then voted "yes" on his controversial project. You might call it, "Pay for Play." Peter Watry Pamela Bensoussan Subject: FW: Lake Pointe -- too much residential Attachments: Lake Point graphic.pdf -----Original Message ----- From: Crossroads II [mailto:crossroadsii@cox.net] Sent: Fri 9/21/2012 8:47 PM Subject: Lake Pointe -- too much residential Friends and members -- attached is our flier about a very important item on the Council's agenda Tuesday. In the General Plan, there were two locations near the Olympic Training Center zoned for commercial. 18 acres are now being turned into 427 apartment units. Now the developer wants to turn the other 12 acres into 284 more apartment units, too. Crossroads II believes we are getting too much residential, and not enough commercial or industrial. That is one reason why Chula Vista has such a low tax base. We urge you to come Tuesday to oppose this zone -change. The public hearing is at 6:30 pm certain. 'v -u ;u 0 o; Al a (D D (< c 0 O) W 3 IF -, (D 0) (D O N n typ N X � N n N N 7 (D O. 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We offer no opinion on the application, if any, of other bodies of law such as common law conflicts of interest, or Government Code Section 1090. QUESTION Will your receipt of campaign contributions from Dave Paynter ("Paynter"), disqualify you from voting on his land use application, which is before the Clovis City Council? CONCLUSION No. A campaign contribution is considered neither a gift nor income for purposes of the Act's conflict-of-interest rules under Section 87100. In addition, the disqualification provisions of Section 84308 do not apply to a local government agency official, such as a city council member, who is directly elected by the voters and is acting as a member of that agency. ' The Political Reform Act is contained in Government Code Sections 81000 through 91014. All statutory references are to the Government Code, unless otherwise indicated. The regulations of the Fair Political Practices Commission are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regulations. All regulatory references are to Title 2, Division 6 of the California Code of Regulations, unless otherwise indicated. File No. A-09-011 Page No. 3 Step Two: Will you be making a Governmental Decision? You will be "making" a governmental decision when, acting within the authority of your office or position, you vote on a matter, appoint a person, obligate or commit your agency to any course of action, or enter into any contractual agreement on behalf of your agency. (Section 87100; Regulation 18702.1.) Accordingly, you will make a governmental decision if you vote on Mr. Paynter's land use application. Step Three: What Are your Economic Interests? A public official has an economic interest if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the enumerated economic interests, including: • An economic interest in a business entity in which he or she has a direct or indirect investment of $2,000 or more (Section 87103(a); Regulation 18703.1(a)); or in which he or she is a director, officer, partner, trustee, employee, or holds any position of management (Section 87103(d); Regulation 18703.1(b)); • An economic interest in real property in which he or she has a direct or indirect interest of $2,000 or more in fair market value (Section 87103(b); Regulation 18703.2); • An economic interest in any source of income to him or her, which aggregates to $500 or more within 12 months prior to the decision (Section 87103(c); Regulation 18703.3); • An economic interest in any source of gifts to him or her, if the gifts aggregate to $420 or more within 12 months prior to the decision (Section 87103(e); Regulation 18703.4); • An economic interest in his or her personal finances, including those of his or her immediate family (Section 87103; Regulation 18703.5.) Campaign contributions are not among the enumerated economic interests above and are not considered either "income" or "gifts." (Sections 82030(b)(1) and 82028(b)(4).) Therefore, the campaign contributions that you received from Mr. Paynter are not a potentially disqualifying economic interest and we may end our analysis of a potential conflict of interest here. Resolution No. 2011-001 Page 4 BOARD OF ETMCS 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 "BOB 1-11-11A." For two complaints on that same date, the case numbers shall be BOE 1-11-11A 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 hi 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. 2011001 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. 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: on R. ("roogins Cit rney Resolution No. 2011-001 Page 3 PASSED, APPROVED, and ADOPTED by the Board of Ethics of the City of Chula Vista, California, thisl Sth 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 Stak, Chair ATTEST: Che 1 Ponds, Secretary to Board of Ethics STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF CHULA VISTA 1, 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 15th, day of June 2011, Cherq Ponds, Secretary to the Board of Ethics Chula Vista Municipal Code 2.28.050 Chapter 2.28 BOARD OF ETMCS* Sections: 2.28.010 Establishment of code of ethics. 2.28.020 Application of chapter. 2.28.025 Responsibilities of public office. 2.28.030 Loyalty. 2.28.040 Fair and equal treatment. 2.28.050 Unethical conduct. 2.28.060 Advisory opinions. 2.28.070 Creation of the board of ethics. 2.28.080 Purpose. 2.28.090 ]duties of the board. 2.28.100 Powers of the board. 2.28.110 Organization. 2.28.120 Meetings. 2.28.130 Order of business. 2.28.150 Conduct of hearing upon complaint. * For provisions of Charter law concerning appointive boards and commissions, see city Charter §§ 600 — 606. 2.28.010 Establishment of code of ethics. The respected operation of democratic govern- ment emphasizes that public officials be indepen- dent, impartial, and responsible to the people. The public judges its government by the way public officials conduct themselves in the posts to which they are elected or appointed. All public officials should conduct themselves in a manner that will tend to preserve public confidence in, and respect for, the government represented. Such confidence and respect can best be promoted if every official, whether paid or unpaid; and whether elected or appointed, will seek to carry out these goals. The purpose of this code is to establish ethical standards of conduct by setting forth those acts or actions that are incompatible with the best interests of the city and by directing disclosure by such offi- cials of private financial or other conflict of inter- ests in matters affecting the city, Further, it is the purpose of this code to assist the aforementioned officials in the task of judging themselves, so as to enable them to properly carry out their responsibil- ities as trustees and fiduciaries of the public inter- est. (Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.48). 2.28.020 Application of chapter. This chapter shall apply only to members of the Chula Vista city council, city manager, city attor- 2-37 ney, city clerk, board members and commission- ers, as well as to ex -city officers who were subject to the conflict of interest code. (Ord. 2453 § 1, 1991; Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.49). 2.28.025 Responsibilities of public office. Public officials are agents ofpublie purpose and hold office for the benefit of the public. They are bound to uphold the Constitution of the United States and the Constitution of this state and to carry out impartially the laws of the nation, state and municipality, and thus to foster respect for govern- ment. They are bound to observe in their official acts a high standard of morality and to discharge faithfully the duties of their office, recognizing that the public interest must be a primary concern. (Ord. 2297 § 1, 1989). 2.28.030 Loyalty. Elected and appointive officials should adhere to the rules ofwork andperformance established as the standards for their position by the appropriate authority. Officials should not exceed their author- ity or breach the law or ask others to do so. (Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.50). 2.28.040 Fair and equal treatment. No official subject to this code shall grant or make available to any person any consideration, treatment, advantage or favor beyond that which is the general practice to grant or make available to the public at large. (Refer to civil service commis- sion for the hiring rules.) (Ord. 2453 § 1, 1991; Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.51). 2.28.050 Unethical conduct. A. General Policy. One of the highest callings is that of public service. With that service comes a requirement to conduct oneself in a manner above reproach, since the citizens of the community expect and deserve a high standard of conduct and performance. This code of ethics provides the fol- lowing general guidelines and specific prohibitions to which city officials must conform in the pursuit of their assigned duties and responsibilities: 1. All city officials should endeavor to fulfill their obligations to the citizens of Chula Vista, city management and fellow employees through respect and cooperation. They should strive to pro- tect and enhance the image and reputation of the city, its elected and appointed officials, and its 2,28,060 employees. All citizens conducting business with the city shall be treated with courtesy, efficiency and impartiality and none shall receive special advantage beyond that available to any others. Officials shall always be mindful of the public trust and confidence in the daily exercise of their assigned duties, striving to conserve public funds through diligent and judicious management. B. Specific Prohibitions, City officials (includ- ing nonpaid commission, board and committee members) shall be considered to have committed unethical conduct if any of the following occur: 1. Used one's position or title for personal gain but not found to be an act of illegality or con- flict of interest by the district attorney, Grand Jury or Fair Political Practices Commission, 2. Knowingly divulged confidential infor- mation for personal gain or for the gain of associ- ates in a manner disloyal to the city. 3. Knowingly made false statements about members of the city council or other city employ- ees that tend to discredit or embarrass those per- sons. 4. Used or permitted the use of city time, per- sonnel, supplies, equipment, identification cards/ badges or facilities for unapproved noncity activi- ties, except when available to the general public or provided for by administrative regulations. 5. No ex -city officer for a period of one year after leaving office or employment shall, for com- pensation, act as agent or attorney for, or otherwise represent, any other person by making any oral or written communication before any city administra- tive office or agency or officer or employee thereof, if the appearance or communication is made for the purpose of influencing administrative action, or influencing any action or proceeding involving the issuance, amendment, awarding, or revocation of a permit, license, grant, or contract, or the sale or purchase of goods or property. 6. Endorsed or recommended for compema- tion 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. 7. No member of the city council shall be eli- gible, for a period of one year after leaving office, for employment by, or be on the payroll of, or be a paid consultant or paid contractor to, the city, or to any entity controlled by the city or the city council ("controlled entities"), or to any entity which receives a majority of its funding from the city or of its controlled entitles, except by the permission of the council finding on four-fifths vote that spe- 2-38 cial identified and articulated circumstances exist, cast at a regular public meeting taken after the involved member of the city council has left office. (Refer to Civil Service Commission for the hiring rules.) (Ord. 2629 § 1,1995; Ord. 2453 § 1, 1991; Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.51). 2.28.060 Advisory opinions. When a councilmember or other official has doubt as to the applicability of a provision of this code to a particular situation, written inquiry should be made to the board of ethics for an advi- sory opinion. Said person should be guided by that opinion when given. The couneilmembers or other officials shall have the opportunity to present their interpretation of the facts at issue and of the appli- cable provisions of the code before such advisory decision is made. (Ord. 2297 § 1, 1989). 2.28.070 Creation of the board of ethics. A board of ethics shall be created and appointed in accordance with Section 600 ofthe city of Chula Vista Charter and Chapter 2.28 CVMC. (Ord. 2297 § 1, 1989). 2.28.080 Purpose. It is the purpose of this board to advise 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. This board will serve as ahearing body on all such matters and shall render impartial and objective opinions and insure that those covered by this chapter are appro- priately informed. (Ord. 2297 § 1, 1989). 2.28.090 Duties of the board. It shall be the function of the board of ethics to implement the code of ethics adopted by the coun- cil for public officers and employees, The duties of the board shall be: A. To receive or initiate complaints of viola- tions of the code of ethics. All complaints shall be sworn under penalty of perjury and shall be in writ- ing, containing full allegation of facts which would constitute a violation of the code. All alleged vio- lations must be submitted within 60 days of occur- rence or when it should have been discovered with the exercise of reasonable diligence. Justification for any delay in filing complaints is the responsi- bility of the complainant. Chula Vista Municipal Code 2.28.150 For board action, complaints concerning uneth- ical patterns of behavior must be received by the board within 60 days of the most recent event com- prising the pattern of behavior complained of, or within 60 days of when the last event should have been discovered with the exercise of reasonable diligence. The board will, in its discretion, limit the pattern of behavior to those events the board feels are proximately related in time to be a part of the same pattern of behavior. B. To hear and investigate complaints and transmit the findings and recommendations to the city council. C. To render advisory opinions or interpreta- tions with respect to the application of the code, either on request or on its own initiative. D. To propose revisions ofthe code to assure its continuing pertinence and effectiveness. The affir- mative vote of five members of the board shall be necessary for it to find conduct to be unethical. (Ord. 2297 § 1, 1989). 2.28.100 Powers of the board. The board of ethics is authorized to receive com- plaints, conduct investigations upon complaints or information received, hold hearings, swear wit- nesses, render advisory opinions and adopt rules of procedure for the conduct of its business. (Ord. 2297 § 1, 1989). 2.28.110 Organization. A. The board shall be composed of seven mem- bers appointed by the city council for a term of four years, as prescribed by the provisions of the city Charter and the municipal code ofthe city of Chula Vista. Prior to exercising their authority to appoint a person to membership, the city council shall refer for recommendation the list and qualifications of applicants to the presiding judge of the South County Division of the San Diego Superior Court or his or her designee, who shall review the list of applicants and their qualifications, and who should select not less than five for the purpose ofconduct- ing in-person .interviews and who shall conduct such interviews. if said judge or designee declines or fails to review such applicants, or conduct such interviews, or make such recommendations, then the council shall interview such applicants them- selves personally, and may make an appointment jointly passed with four affirmative votes. No such person may be appointed as a member, or shall be entitled to retain their membership, if he or she, within the past 10 years prior to the date of appoint- ment, has been convicted of a crime involving moral turpitude, or has been found to have commit- ted a criminal violation of the Fain Political Prac- tices Act. B. The board 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, com- mencing on July i st each year. The chair shall pre- side 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 representa- tive shall act as secretary to the board. The secre- tary 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 busi- ness before the board. (Ord. 2778 § 1, 1999; Ord. 2630 § 1, 1995; Ord. 2297 § 1, 1989). 2.28.120 Meetings. The board of ethics will hold meetings at the call of the chair or the vice -chair or a majority of the members ofthe board. The board shall hold at least one meeting per year, (Ord, 2297 § 1, 1989). 2.28.130 Order of business. The following shall be the order of business for all meetings: A. Roll call of members, B. Reading of minutes of previous meeting. C. Amendment or approval ofminutes ofprevi- ous meeting. D, Consideration of matters continued from previous meeting. E. Consideration of new complaints or requests. F. 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. G. Other business. H. Oral communication. (Ord. 2297 § 1, 1989). 2.28.150 Conduct of hearing upon complaint. A. Upon receipt of a complaint or information as prescribed by the code of ethics, the board shall determine by a majority vote if there is probable cause to believe a violation has occurred. The board shall notify the officer alleged to have vio- lated the code of ethics of the charges contained in the complaint or information immediately but shall not reveal the identity of the complainant until and 2-39 (Revised 6/12) 2.29.010 unless it is determined that probable cause for such complaint exists. The officer shall be entitled to submit a statement to the board of ethics for con- sideration or may appear personally at such time as the issue of probable cause is to be discussed by the board. If no probable cause is determined, the board shall dismiss the matter summarily and notify interested parties in writing. If probable cause is determined, the board shall take further investigatory and procedural steps necessary to resolve the matter. B. If, after appropriate investigation or hearing, the board shall find that a conflict of interest or a breach of ethics, as prohibited by the code of eth- ics, did or continues to exist, the board shall for- ward its findings to the city council to correct or rectify the condition that exists. Said notification shall be accompanied by a statement of facts and findings and recommendations. (Ord. 2297 § 1, 1989). (Revised 6112) 2-40 Chapter 2.29 CHARTER REVIEW COMMISSION Sections: 2,29.010 Creation. 2.29.020 Purpose and intent. 2.29.030 Functions and duties. 2.29.040 Membership. 2.29.050 Meeting schedule, 2.29.010 Creation. There is hereby created a Charter Review Com- mission. The provisions of Article VI of the City Charter, Chapter 2.25 CVMC and this chapter shall govern this Commission. (Ord. 3211 § 3, 2011; Ord. 2518 § 2,1992; Ord. 2400 § 1, 1990). 2.29.020 Purpose and intent. It is the purpose and intent of the City Council in establishing the Charter Review Commission to create an advisory body to serve as a resource to advise and make recommendations to the City Council and the City Manager on issues affecting the provisions of the City Charter. The Commis- sion will review the organizational framework of City government, work to identify language to amend the City Charter to clarify or improve the workings of the City government, and recommend changes sufficiently in advance of elections to allow thoughtful City Council review and determi- nation of whether to place the matter on the ballot. (Ord. 3211 § 3, 2011; Ord. 2518 § 2, 1992; Ord. 2400 § 1, 1990). 2.29.030 Functions and duties. The functions and duties of the Charter Review Commission shall be as follows: A. Constitute a forum for City-wide discus- sions, research and analysis of matters relating to current or proposed provisions of the City Charter, and amendments thereto. B. Help coordinate citizen and staff ideas with regard to potential Charter changes. C. Formulate specific language for proposed Charter changes to be submitted to the City Coun- cil in a form appropriate for placement on the ballot at an election wherein the proposed Charter changes can be submitted to the electorate. D. Provide analyses and reports to the City Council in connection with said recommendations. E. Prepare and submit proposed ballot argu- ments in favor of or against proposed Charter Chula Vista Municipal Code 2.30.030 changes. (Ord. 3211 § 3, 2011; Ord. 2518 § 2, 1992; Ord. 2400 § 1, 1990). 2.29.040 Membership. The Commission shall consist of seven voting members, to be appointed in accordance with Arti- cle VI of the City Charter and Chapter 2.25 CVMC. (Ord. 3211 § 3,2011; Ord. 2518 § 2,1992; Ord. 2400 § 1, 1990), 2,29.050 Meeting schedule. A. Regular Meetings, The Commission shall hold regular meetings on the date and at the time as called by the chair or a majority of the Commis- sion, in the Community Room, located in the Chula Vista Police Department at 315 Fourth Avenue. B. Pre -Election Meetings. The Commission shall meet no later than the first Wednesday of the seventh month preceding the next regularly sched- uled municipal election, at which time the Com- mission shall assign duties to its members as may be necessary; and consider agenda issues for fur- ther deliberation and discussion by the Commis- sion. If a pre-election meeting is the Commission's first meeting held during the City's fiscal year, it shall constitute a "regular meeting," as that term is used in CVMC 2.25.180. C. The Commission may change its regular meeting day, time or location by written resolution in accordance with CVMC 2.25.200. (Ord. 3211 § 3, 2011; Ord. 2518 § 2, 1992; Ord. 2400 § 1, 1990). Chapter 2,30 ECONOMIC DE'VELOPMEN'T' COMMISSION% Sections: 2.30.010 Creation, 2.30.020 Purpose and intent. 2.30.030 Functions, duties and goals. 2.30.040 Membership, 2.30.050 Meeting schedule. * Prior legislation: Ord. 2531, 2.30.010 Creation. There is hereby created an Economic Develop- ment Commission. The provisions of Article VI of the City Charter, Chapter 2.25 CVMC and this chapter shall govern this Commission. (Ord. 3211 § 4, 2011), 2.30.020 Purpose and intent. It is the purpose and intent of the City Council, in establishing the Economic Development Com- mission, to create an advisory and coordinating body to serve as a resource to advise and make rec- ommendations to the City Council and City Man- ager on economic development issues and opportunities that would benefit the community. (Ord. 3211 § 4, 2011; Ord. 2380 § 2, 1990; Ord. 1215 § 1, 1969; prior code § 2.1301). 2.30.030 Functions, duties and goals. A. The goals of the Commission shall be as fol- lows: 1. Assess the job needs of the residents of Chula Vista, and after doing so, engage in a variety of activities that will help create, retain and attract jobs and capital investment that will meet the employment needs of the community. 2. Help ensure that there are adequate educa- tional programs available to support the instruc- tional needs of the jobs being created. 3. Immediately establish a specific plan of action to help implement the objectives of the City Council. 4. Help assure prospective industrial and commercial developers and existing commercial and industrial interests of the cooperation of the City to benefit both business and the community. 5. Catalog current and planned industrial and commercial sites, and furthermore, identify other potential industrial and commercial areas that 2-41 (Revised 6112) Please print ortype. This form may be completed and fined mah the City clerk at 276 Rurth Avenue, Chula Vrsta, CA 91910. See reverse side of fom for addAionai Information. CITY OF CHULA VISTA BOARD OF ETHICS COMPLAINT FORM ,i2 opt A11:50 *nME STAMP V1`)7 ev�nrivnvrarwu�irr COU�j/�/Z, G� � S S'�" 2s''2.ol�- �1/GyJsf Nmecrrx omcwL(s) On September 25, 2012, Councilwoman Pamela Bemsoussau voted "yes' on,Agenda Item #9, for a project called "Lake Pointe." Lake Pointe was a controversial project, turning 12 acres of "Commercial" land into "Residential" land for 284 condo/rental units. Many people :&om the existing single-famly homes surrounding the Lake Pointe site clearly expressed their opposition to the project. I, myself, showed the Council how this conversion of land to "Residential" is becoming excessive, and this explains why we have such a low tax base, and that this approval would be bad for the oily of Chula Vista. In spite of what seemed to be good reasons to reject the project, it passed on a 4.1 vote. Two of those 4 votes apparently accepted campalga-donations from the developer BEFORE the vote (see Attachment). This complaint has to do wrth Councilwoman Bensoussan being one of those two, and accepting $1,900 from the developer DEFOU the vote. Councilwoman Bensoussacn. clearly "used her position for personal gain;' an unethical action and one that the Code of Ethics says " Publie officials are prohibited from" doing. (Continued on nextpage) CERTIt=lCATlON: . t'dealare that the statements made on this form, as well as any attached statements of my own, are true and correct to the best of my kn is made under penalty of perjury, under the laws of the State of California. Date: . D f 'Z. Signed- (Conflnued'from tie previous page) As evidenced on the attached sheets, Councilwoman Bensoussan accepted $1,900 from seven different people associated with Integral Communities, the developer of Labe Pointe. In my opinion, it is not only unethical to accept money for a favorable vote, but it would be equally unethical to take the money and then vote "no." But not to worry, she did not do that. The Sweetwater Nigh School District has recently had several administrators and Board members indicted for much the same thing, and it is being called "Pay -to -Play. X regret that "Pay -to -Play" has apparently now conte to the City government of Chula Vista. Or maybe in Pamela's case it ought to be called, "Play -for Pay" behavior. "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." This "pay for play" gig should be a slam-dunk for youl [Attached: Pamela Bensoussan's Form 460s showing the seven individuals associated with Integral Communities and their contributions to her, totaling $1,900 -- all PRIOR to the vote.) ATTACBM NT 6 OWNERSHILP DISCLOSURE FORM 4jf D e v e l o p in e n t S e r v i c e s D e a r t m e n t Planning Division Developmentopment Processing CRY OF APPLICATION APPENDIX S •Ci it1lA �1STt1 Disclosure Statement Pursuant to City Council Policy 101-01, prior to any action on. a matter that requires discretionary action, by the City Council, Planning Commission or other official legislative body of the City, a statement of disclosure of certain ownerships, financial interest, payments, and campaign contributions must be filed The following information must be disclosed:A- 1. list the names orail persons having a financial interest' Giaojer at s the subJecco application, project or contract {e g., owner, appiica , contractor, subcontractor, material 2. If any person* identified in.section 1 -above is a corporation or partnership, list the names of all individuals with an investment of $2000 or more in the business (corpora tion/partnership) entity 3•, if any persoe identified in section 1 above is a non-profit arganizat)on or trust, list the names of any person who is the director ofthe non-profit organization or the names of the trustee, beneficiary and trustor of the trust 4„ please identify every person, Including any agents, employees, consultants, or independent contractors, whom you have authorized to represent you before the City in this matter. u, Has any person "identified Iry 1, 2-r 3., or 4., above, or otherwise a5sodgtedwith this Contract, project at application, bad any financial dealings with an Or Wal** Of the City of Chula vista as it relates to this contract, projector application mrithin the past 12 montitsl Yes No if yes, bdafiydescribe the nature• of therfinAncW Interest the of#iG14 " ntxy haveirt this £9n tract km Apy:b eevorro .274 Fourth Avenue. .1. Chula vista I California j 41910 E wo 6915101 7'J D e p a r t m e.n t D eve t o p m e n t S e r v i c e s Planning Division j Development Processing +✓N1CnYof5iA APPLICATION APPENDIX B btactosure Statement - Page 2 6. Has any person "Identified in 1., 2.,.3 , or 4, above, or otherwise associated with this contract, project or application, made a campaign contribution of more than $250 within the past 12) months to a currentmember of the City of AulaVlstaCounjCl? Yes No if yes which council member? 7. Has any person *identified in 1 •, .., 3, or ove, or otherwise associated with this contract, project or application, provided more than $420 tat an item of equivalent value) to an official" of the City of Chula vista in the past (12) months? (Chis Includes any payment that confers a personal benefit on the recipient, a rebate or discount in the price of anything of value, money to retire -a legat debt, gift, loan, etc) Yes... tfyes;whkhofficiai" and what was the nature oft lie Item provided? . _. a. Has anyperson *Identified in 1., 2 , 3., or 4., above, or otherwise assotiated with this contract, pro)ect or application, been a source of income of $500 or more to an official•° of the City of Chula Vista In -the past (12) months? Yes No y� f If yes, which officiat" and the nature of the item provided? Date ,I�C ��- - II sign atureofContractor] A plicant Print or type name of Contractor/Applicant * Person Is identified as; any individual, Firm, co-paetnershlp, joint venture,. association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, or any other group or combination acting as a unit. * official inciudos, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission or committee of the City,andCity employee or staff members. aat' This disclosure Statement must be completed at the time the project application, or contract, is submitted to City staff For processing, and updated within one week prior to conshieration by legislative body, Last Updated; March 16, 2010 rtgn ae�v02b4. 276 Fourth Avenue 1. china Vista Icallforala 1. 91910 ( (619) 691.4101 Toly t—$a I . � }� � } • � ; ' »� �� :- •a,! k � « • ■ \. w W a � � ol � « LO g Y Q� t N � U a �U.pYf fQ � 3 E <i �+ £ § � I $«| # 2 © 8.1 vt �,•� J � All i 0. Ir ILE K k. t Z. C14 -..w gag ap ICO, AM Ic "00 SMAR -O, F90 0 OL w 0 ce)AE E 8 1.11>1 1CL 40, -:09 t:..N -1 co z cl im. OL Lu L i 0. Ir I V C. I ad 0.0 Ao- ZL