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HomeMy WebLinkAbout2013-02-27 Board of Ethics Special PacketNOTICE OF SPECIAL 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 SPECIAL SESSION ON WEDNESDAY, FEBRUARY 27, 2013 AT 5:15 P.M. IN CONFERENCE ROOM C101, LOCATED AT CITY HALL, 276 FOURTH AVENUE, CHULA VISTA, CALIFORNIA, TO CONSIDER THE FOLLOWING: 1. Roll Call. 2. Discussion and Action (Including Approval) Regarding Proposed Amendments to Chula ,(r Vista Municipal Code Chapter 2.28 (Board of Ethics) and Creation of Chapter 2.01 (Code of Ethics) to be Placed in the Chula Vista Municipal Code, Including but not limited to Consideration of Direction by City Council, Recommendations by the Board of Ethics Ad Hoc Committee, and/or Updating Recommendations previously approved by the Board of Ethics. 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 Malveaux, Secre ary 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, ora majority of all, members of the Board. Such records shall be available at the Office of the City Attorney located at 276 0. Avenue, Chula Vista, California. THE CHULA VISTA BOARD OF ETHICS IS COMMITTED TO HONOR THE PUBLIC TRUST BY PROMOTING ETHICAL VALUES AND MONITORING ETHICAL STANDARDS IN ALL ASPECTS OF CITY GOVERNMENT I declare under penalty of perjury that 1 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 t n Act requirements. Date Sign 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 EFFECTIVE JANUARY 1, 2013 CALIFORNIA CODE OF JUDICIAL ETHICS Amended by the Supreme Court of California effective January 1, 2013; previously amended March 4, 1999, December 13, 2000, December 30, 2002, June 18, 2003, December 22, 2003, January 1, 2005, June 1, 2005, July 1, 2006, January 1, 2007, January 1, 2008, and April 29, 2009. Preface Preamble Terminology Canon 1. A judge shall uphold the integrity and independence of the judiciary. Canon 2. A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities. Canon 3. A judge shall perform the duties of judicial office impartially, competently, and diligently. Canon 4. A judge shall so conduct the judge's quasi-judicial and extrajudicial activities as to minimize the risk of conflict with judicial obligations. Canon S. A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary. Canon 6. Compliance with the code of judicial ethics. 1 SUMMARY OF BOE ACTIONS RE REVISIONS TO CHAPTER 2.28 The August 8, 2011 City Council action directed the BOE to make changes to the ordinance proposed by the BOE via three types of actions consisting of: (1) specific edits to the proposed text of Chapter 2.28 (hereinafter "Specific Edits"); (2) areas in. which to expand upon (hereinafter "Areas to Expand"), and (3) areas to examine and determine if additional language may be created to address areas (hereinafter "Areas to Examine'. The following is a summary of BOE recommendations. ) "Specific Edits" City Council directed that the following six (6) specific edits be made to t revisions to Chapter 2.28: he proposed Edit No. 1.. BOE proposed Section 2.28.030(A)(12).read: "City Official's should avoid an appearance of a conflict of interest when Possible. However, they should be mindful that recusal or abstention should b reserved for actual conflicts or where a good faith determination has been made by the City Official that recusal or abstention is appropriate. Council directed that Proposed Section 2.20.030(A)(12) be amended as fo llows "City Official's should avoid an appearance of a possible. conflict of interest when that .where a good faith determination has been made by the City Official that recusal or abstention is appropriate. The Board of Ethics had incorporated council's direction and it is now fo 2.01.030(A)(12). However, BOE proposes the following alternative. and in Section The BOE originally drafted the language to ensure that recusal or abstention is to avoid a difficult or controversial vote. Elected official are elected to conduc t used Public's business and that unwarranted recusals or abstentions would deprive the the electorate of a voice on matters that concern the public. Accordingly, he BOE recommends that the original language -be kept, but in the alternative that language be added to reflect that an elected official is elected to conduct the public's business eve when it calls for making a difficult or controversial decision. Thus the BOE proposes the following language: p "City Official's should avoid an appearance of a conflict -of interest when possible. Recusal or abstention is appropriate when a good faith determination has been made by the City Official that such action is required. However, elected officials subject to this chapter are reminded that they are elected to conduct the public's business and should not abstain or recuse themselves without cause." The Board of Ethics believes that its proposed alternative provides the appropriate guidance in the area of conflicts by: (1) reminding Public Officials to be aware of the appearance of conflicts and actual conflicts; (2) recognizing that often times the determination of whether an actual conflict exists is a difficult judgment call (and, for which their good faith efforts in exercising their judgment is accounted for in their decision making process); and (3) reminding the elected officials subject to this code that they are elected to conduct the public's business and that they should not recuse themselves or abstain on a matter because it involves a difficult or unpopular decision. In addition, the above language is not a specific prohibition subject to sanctions, but a "Guiding Principle." "Guiding Principles" are intended to' be reminders of items to consider when making a decision. Edit No. 2. BOE proposed that section 2.28.030(B)(2) read (in the Specific Prohibitions section) that a City Official may not: "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." City Council directed that the entire section be removed. That language is removed from the proposed ordinance provided to council, but the BOE proposes the below alternatives. The BOE believes that the section should be kept and is necessary to ensure the City's boards and commissions are independent and free of coercion by City Council. The BOE submits that the section should be kept as written, but if Council does not want to adopt such language the following are alternatives that should be considered: Proposed alternative to be placed in the Specific Prohibitions section: "City Officials may attend City of Chula Vista board and commission meetings However, they may not � �,esitien te—engage. in conduct that is threatening, intimidating, -or coercive simpacts that it im acis e 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. Mere attendance does not constitute a violation of this section " Or, proposed alternative to be placed in the Guiding Principles section: "The City values the ability of the bBoards and cOommissions to provide an honest, forthright, learned, and independent advicse to the City, thereby fostering greater public input into the conduct of City government. Accordingly, while City officials may attend City board and commission meetings City Officials should be mindful that their actions, whether intentional or not, .may unduly impair or influence the Boards' and Commissions' ability to provide honest, forthright, learned, and independent advice to the City and therefore City Officials should avoid such actions. The BOE recommends that the original proposed language be included in the ordinance, or in that one of the two alternatives be adopted. Edit No. 3. BOE proposed section 2.28.060(A) read as follows: "A. To receive or initiate complaints of violations of this chapter." Council directed that the BOE's ability to initiate complaints be removed. The new language reads as follows. "A. To receive or initiatecomplaints of violations of this chapter." Council directed that the BOE's ability to initiate complaints be removed. However, the BOE submits the following alternative: "Board Referral For Investigation. 1. If an individual BOE member personally observes a violation of the Code of Ethics, he or she may inform the BOE and request that the matter be referred to a panel attorney ("Panel Attorney') that is serving as the enforcement authority under CVMC 2.52 for investigation. If a panel to serve as the enforcement authority has not been established the Board of Ethics shall establish in a manner similar to the process used to create the panel for the enforcement authority,a panel of attorneys to serve pursuant to this section The Board of Ethics may refer the matter to a Panel Attorney if the BOE member presenting the request makes a prima facie showing as set forth in section 2.28.110. This provision may not be used in the place of or to circumvent the other provisions in this chapter for the submission of complaints. Once a BOE member submits a request under this, section, they shall recuse themselves from voting on the complaint. 2. The BOE referral shall go to a Panel Attorney for investigation and determination if probable cause exists on the complaint. The Panel Attorney may dismiss the complaint if they determine that probable cause does not exist or if they conclude they cannot prove that probable cause exists. If they dismiss the case for lack of probable cause, they shall inform the Board of Ethics. If the Panel Attorney determines If probable cause exists, the sal present their case as set forth pursuant to section 2.28.120. If the Board of Ethics determines that probable cause exists another Panel Attorney will -continue the investigation for submission to the BOE for a full hearing. Panel Attorneys assigned under this paragraph will be assigned in the same manner they are assigned to investigate complaints for violations of chapter 2.52. The Panel Attorney shall present the matter for a full hearing as set forth in section 2.28.130. The proposed language permits a complaint to be referred for investigation, but other than the decision to make the referral, the BOE does not otherwise investigate the matter. Under the proposed procedure, only a BOE member with personal knowledge of the misconduct will make a request of the BOE to refer the matter for investigation. If the BOE agrees, then the matter will be referred to the panel of attorneys assigned as the Enforcement Authority for CVMC 2.52 for investigation. The first assigned Panel Attorney will conduct an investigation and determine if probable cause exists that the complaint is true. If there is no probable cause, the investigating Panel Attorney shall not file a complaint and notify the BOE of its decision. If there is probable cause based upon that investigation, a second Panel Attorney would then take over the case, and if they believe it can be proven by a preponderance of the evidence, then they shall submit it to the BOE for a full hearing. If the second Panel Attorney believes they can prove the case by a preponderance of evidence (the current standard of proof in BOE cases) then they will submit the case to the full BOE for final determination. If the second Panel Attorney does,not believe they can prove the case, then they shall dismiss the case and inform the BOE of his or her decision. In this manner, the BOE simply refers the matter to an attorney, does not participate in'the investigation and prosecution of the case,. and the BOE member who made the initial request does not participate in the case. This provides a way for the BOE to "investigate" cases; but to be sufficiently removed to make an independent decision as to its merits. Edit No. 4: Proposed section 2.28.060(D) [page 6] read as follows: D. To propose revisions of this chapter to assure its continuing pertinence and effectiveness. City Council directed that it be rewritten to read as follows: D. To propose revisions of this chapter or other City policies to assure its continuing pertinence and effectiveness. The BOE supports this proposed change. Edit No. 5. Proposed section 2.28.120(C)(2) [page 8] read as follows: Upon a request for confidentiality, the Chair and two board members, chosen by the Chair, shall form an ad hoc sub -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. City Council directed that it be rewritten as follows: Upon a request for confidentiality, the Chair and two, board members, chosen by the Chair on a rotatin basis, shall form an ad hoc sub -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. The BOE supports the proposed change. Edit No. 6. Proposed section 2.28.170(B) [page 12] read as follows: 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, if facts have been revealed and which show a potential for misconduct, then, in a separate action, the Board may recommend remedial actions to the City Council for appropriate action. City Council directed that it be rewritten as follows: 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 The BOE supports the proposed change. Proposed section 2.28.180(C) [page 12] read as follows: C. If the complaint involves the City Attorney, the City Attorney and his or her Office, shall recuse themselves: 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. City Council directed that it be rewritten as follows: C. If the complaint involves the City Attorney, the City Attorney and his or her Office, shall recuse themselves. Outside counsel shall be appointed by the Board of Ethics to advise the Board of Ethics regarding the complaint alleging misconduct by thea City Attorney. The Board of Ethics may establish procedures for the selection of such counsel. The BOE* supports the proposed change. "Areas to Expand" The City Council also directed that certain areas of the proposed ordinance changes be expanded or clarified. The areas included: 1. Determining criteria to be a member of the BOE, including consideration of exclusions similar to those used by the State Redistricting Commission. 2. Determining criteria to determine if "good cause" exists to keep a complainants name confidential until probable cause has been determined. 3. Determining criteria to select a qualified investigator. The BOE undertook an examination of the issues surrounding the additional criteria and prepared changes to the ordinance as directed by City Council. 1. BOE membership. With regard to determining the criteria to be a member of the BOE, there were twoareas that the BOE examined, specifically the criteria to be a member and criteria to be excluded from membership. In terms of the criteria to be a member, the BOE determined the current criteria sufficient. It examined whether special skills, such as being an attorney, professor of ethics, and the like, should be required for membership. However, it was determined that having specialized skills, while favorable, were not required for membership. It was believed that requiring specialized skills would limit the number of applicants. If the City Council wanted those with specialized skills they could be selected through the interview and appointment process. In other words, a wider net could be cast to find qualified applicants, which would include those specialized skills, without having to make' it a requirement. As a result, the BOE did -not propose any specialized skill set. With regard to exclusions from serving a .BOE member, chapter 2.28, as previously proposed by the BOE, exclude the following: "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." The Board was directed to consider additional exclusions in the manner similar to the State Redistricting Commission ("SRC"). The SRC excluded those with "conflicts" and then defined what constituted a conflict. The conflicts generally included those that had an interest in the outcome of the redistricting. Thus, leader in politcal parties and lobbyist were excluded. The SRC's exclusions were "narrowly tailored" to achieve the a legitimate state interest. Thereby, avoiding infringing upon First Amendment rights. The BOE adopted a similar approach to determining exclusion criteria for prospective members. The BOE chose to exclude those that would have an interest in the outcome of an ethics complaint adjudication. The exclusions generally seek to exclude those that would be baised for or against a City Official based on certain relationships with that City Official, i.e. employee (or prospective employee), staff member in a campaign, or relative. While others could have been added, such as individuals in leadership positions within political.parties, it was determined that so doing would go beyond a "narrowly tailered" solution to the concern about bias. The section is proposed to read as follows: No person shall 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, has been found to have committed a criminal violation of the Fair Political Practices Act, or has a conflict of interest as defined in this chapter. 3. A conflict of interest shall mean the following: i. The applicant or any of applicant's relatives is or has been an employee of or sought employment from any City Official subject to this chapter; ii. The applicant or any of applicant's relatives is or has been supervised in an employment setting by any City Official subject to this chapter; iii. The applicant has served in any capacity (include staff member, advisor, volunteer, or endorsement) involving the election, selection, or appointment of any City Official subject to this chapter to any public office (elected or appointed); iv. The applicant has served in any capacity (including staff member, advisor, volunteer, or endorsement) opposing the election, selection, or appointment of any City Official subject to this chapter to any public office (elected or appointed); V. The applicant is related to any City Official subject to this Chapter. 2. Confidential Name Criteria. The BOE proposed that.a complainant's name be kept confidential until probable cause has been determined to protect that person from harm or retaliation for filing a complaint. City Council directed that additional language be added to set forth criteria to be considered in determining when good cause exists that a person may be harmed or retaliated against for filing a .complaint. Accordingly, the BOE proposes the following criteria: "Facts that may be considered to determine if good cause exists may include, but are not limited to: i. The existence of an employer/employee or supervisor/subordinate relationship between respondent and complainant or the existence of such a relationship between complainant's spouse or immediate relative(s) and respondent or respondent's spouse or immediate relative; ii. Facts that show that complainant would be shunned, ostracized, or rebuked by any organization or group to which they belong if disclosure if their name were to be made public; iii. Evidence of prior acts of retaliation or harm by respondent against complainant or any other person; iv. The existence of criminal convictions for crimes of violence by or the existing of any restraining orders against respondent. Conclusionary or speculative statements of harm or retaliation are insufficient to establish good cause." The criteria focuses on areas in which a complainant could be retaliated against, including in their employment, finances, or memberships. It also focuses on prior conduct by the subject of the complaint that would support the' conclusion that they may retaliate against the complainant. 3. Criteria to Select Qualified Investigator. Chapter 2.28 permits the BOE to use a qualified investigator should the BOE require additional information in a complaint. City Council directed that additional language be added to set forth criteria to be considered in selecting an investigator. Accordingly, the BOE proposes the following criteria: "The Board of Ethics shall establish a written policy for the selection of pre- qualified investigators. In determining qualifications, the Board of Ethics shall consider, but is not limited to the following: i. Professionallicensing; ii. Experience in conducting investigations; iii. Area or areas of expertise required -for the investigation; iv. Available support staff; v. Reasonable costs; vi. The Existence of conflicts of interest; vii. Proven ability to timely complete tasks." The criteria that was created closely follows the criteria used by the BOE in selecting attorneys to serve as the Enforcement Authority for Chapter 2.52. "Areas to Examine" The City Council also asked to the BOE to address some areas of concern, including potential abuse of Chapter 2.28 by .the filing of frivolous complaints. The BOE examined the scenario presented by Councilmember Castaneda wherein a person would file a meritless complaint and simultaneously hold a press conference -the goal being that the filing of a complaint alone causes negative stigma to attach. The BOE considered what ordinance changes could be made to address this situation. The BOE determined that the ordinance as written addresses such a concern. The complaint process is progressive in that meritless complaints are dismissed at the earliest stage possible and if a complaint results in a full hearing, but the complaint is meritless a declaration of no misconduct is made. It was concluded that if burdensome rules were. created to discourage the filing of complaints, then persons who had complaints with merit would not come forward. The BOE also examined whether all who participated in the preparation of the complaint must sign the complaint. The concern, in part, was that the person was signing as the front for another person or entity and may have a motive to bring forth an untrue complaint. The BOE considered if there were any ordinance changes to address such a situation. The BOE determined that requiring all "participants" would be unenforceable. First, the BOE was concerned that defining "all participants" would lead to confusion with a net either being too vague or overbroad. In addition, it might discourage complaints with merit from being filed. Second, the crux of requiring the disclosure of all who participated really is to see what motives the complainants have in filing the complaint. The BOE felt that the requirement -that it be signed under penalty of perjury, the progressive nature of the complaint process, and the ability to cross-examine (as permitted under the chapter and which would ostensibly be relevant to show bias on the part of the complainant) would be able to address any such concerns. Accordingly, the BOE does not make a recommendation for additional ordinance language. The BOE in considering the various proposals noted that many of the changes and areas to review as directed by council, pointed to the concern that Chapter 2.28 may be abused by persons who simply want to file a meritless complaint for political purposes—to say that their opponent has had complaints filed against them, but in reality none of them, were found to be true. The BOE believes that the requirement of a signature under penalty of perjury, the ability to dismiss meritless complaints as early as -possible, detailed provisions for the conduct of hearings affording the respondent the ability to cross-examine witnesses, and findings of no -misconduct serve to reduce abuse as much as possible. At the same time, it is important not to hinder or dissuade the filing of complaints with merit. If a City Official has engaged in misconduct they should held accountable. .