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HomeMy WebLinkAbout2015-04-15 Board of Ethics PacketCHWi5iA Board of Ethics Notice is hereby given that the Board of Ethics of the City of Chula Vista has called and will convene a Regular Meeting of the Board of Ethics on Wednesday, April 15, 2015, at 5:15 p.m. in City Council -Chambers, located at 276 Fourth Avenue, Building A, Chula Vista, California to consider the item(s) on this agenda. REGULAR MEETING OF THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA April 15, 2015 5:15 p.m. CALL TO ORDER ROLL CALL: Commissioners: Toothman ; Livingston ; Robles ; and Chair Schilling City Council Chambers 276 Fourth Avenue, Bldg. A Chula Vista Jemison Esquer ; CITY STAFF: James Lough, Esq. ; and Simon Silva, Deputy City Attorney PUBLIC COMMENTS Persons speaking dr -awing Public Comments may address the Board/Commission on any subject matter within. the Boar•d/Commission's jurisdiction that is not listed as an, item on the agenda. State law generally prohibits the Board/Commission from discussing or taking action on any issue not included on the agenda, but, if appropriate, the Board/Commission may schedule the topic for future discussion or refer the matter to stcff. Comments are limited to three minutes. ACTION ITEMS The Pem(s) listed in this section of the agenda ii1ill be considered individually by the Board/Commission and are expected to elicit discussion and deliberation. If you wish to speak on any item, please fill out a "Request to Speak" form and submit it to the Secretary prior to the meeting. Comments are limited to free minutes. 1. CONSIDERATION AND APPROVAL OF MINUTES FOR MARCH 11, 2015 AND MARCH 19, 2015 MEETINGS 2. FOLLOW-UP DISCUSSION REGARDING DISMISSED BOE COMPLAINTS HEARD ON MARCH 19, 2015 (2-18-15A AND 2-20-15A), INCLUDING: • PRESENTATION BY JAMES LOUGH OF STATUS REPORT AFTER CONSIDERATION OF BOE COMPLAINTS HEARD ON MARCH 19, 2015 • PRESENTATION BY CITY ATTORNEY'S OFFICE ON CONFLICTS ISSUES RELATED TO COUNCILMEMBER MIESEN • BOARD DISCUSSION REGARDING ITS AUTHORITY AND OPTIONS FOR POSSIBLE ADDITIONAL ACTION(S) ON DISMISSED BOE' COMPLAINTS, INCLUDING POSSIBLE REFERRAL(S) TO STAFF OTHER BUSINESS 1. STAFF COMMENTS 2. CHAIR'S COMMENTS 3. COMMISSIONERS'/BOARD MEMBERS' COMMENTS ADJOURNMENT to the regular meeting on May 21, 2015, in the Council Conference Room C101, Building A at 276 Fourth Avenue, Chula Vista, California. Materials provided to the Board of Ethics related to any open -session item on this agenda are available for public review in the Office of the City Attorney at 276 Fourth Avenue, Chula Vista, Building A, Chula Vista during normal business hours. In compliance with. the AMERICANS WITHDISABILITIESACT The City of Chula Vista requests individuals who require special accommodations to access, attend, andlor participate in. a City meeting, activity, or service, contact the Human Resources Department at (619) 691-5041 (California Relay Service is available for the hearing impaired by dialing 711) at least for ly-eight hours in advance of the meeting. I declare under penalty of perjury that I am employed by the City of Chula Vista in the Office of the City Attorney and that i posHalled this document On the according to Brown Act requirementsletin board , the City rat.�.n..,t l;C.... .% Page 2 (Board of Ethics Special Meeting March 11, 2015 DRAFT MINUTES OF A SPECIAL MEETING OF THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA March 11, 2015 5:15 p.m. A Special Meeting of the Board of Ethics of the City of Chula Vista was called to order at 5:16 p.m. in the Executive Conference Room -- Building A, located at 276 Fourth Avenue, Chula Vista, California. ROLL CALL PRESENT: Commissioners Toothman, Esquer, Livingston and Jemison, and Chair Schilling. ABSENT: Commissioner Robles. ALSO PRESENT: Deputy City Attorney Silva and Legal Assistant Ponds. PUBLIC COMMENTS Chair Schilling called for public comments on matters not listed on the agenda. There being no members of the public who wished to speak, Chair Schilling closed public comments. ACTION ITEMS 1. Nomination for and Election of Vice Chair ACTION: Commissioner Toothman moved to nominate Commissioner Jemison as Vice Chair. Commissioner Esquer seconded the motion, and it carried 4-0 by the following -vote: Yes: 4 Schilling, Toothman, Esquer, and Livingston No: 0 Abstain: Jemison Absent: Robles 2. Discussion and Action Regarding Selection of Outside Counsel to Advise Board of Ethics in BOE complaints 2-18-15A and 2-20-15B, Including Using List of Attorneys That Had Been Selected by BOE to Serve as the Enforcement Authority under Chula Vista Municipal Code section 2.52 (Campaign Contribution Ordinance) to Select Attorney to Serve as Outside Counsel Page 1 I Board of Ethics Minutes March 11, 2015 Jill Galvez, Chula Vista resident, spoke in opposition to Steve Miesen's appointment to City Council. ACTION: A motion was made by Commissioner Jemison to accept Deputy City Attorney Silva's advice to use a panel attorney from list of enforcement authority attorneys, previously approved by the Board of Ethics, in the order in which they were previously selected to hear cases. Commissioner Livingston seconded the motion, and it carried 5-0 by the following vote: Yes: 5 Schilling, Toothman, Esquer, Jemison and Livingston No: 0 Abstain: 0 Absent: Robles Deputy City Attorney Silva stated he would correct Complaint 2-20-15B to read as Complaint 2-20-15A on the next agenda. OTHER BUSINESS 1. STAFF COMMENTS Deputy City Attorney Silva discussed placing on a future agenda possible review of the BOE Complaint Form and other potential changes to the Ethics Code. He explained that an Ad Hoc Committee could be formed to address these issues and present to the full board. 2. CHAIR'S COMMENTS Chair Schilling discussed Commissioner Robles calling in sick and'agendized the matter for the Board's next regular meeting. Chair Schilling also announced that he is presently involved in litigation with the City of Chula Vista regarding violations of the Brown Act in the City Council appointment process. 3. COMMISSIONERS'/BOARD MEMBERS' COMMENTS The Commissioners discussed the next meeting date. The board members thanked Commissioner Jemison for accepting the position as Vice Chair. Commissioner Livingston stated for the record that he knows Jill Galvez, Chula Vista resident, but has never discussed the two complaints before the board with her. ADJOURNMENT Page 2 1 Board of Ethics Minutes March 11, 2015 ACTION: A motion was made by Commissioner Esquer to select Thursday, March 1.91h, 2015 as the next meeting date to take place in Council Chambers if available due to the expectation of large public attendance. Chair Toothman seconded the motion and it carried by the following vote: Yes: ' 5 Schilling, Toothman, Esquer, Jemison and Livingston No: 0 Abstain: 0 Absent: Robles At 5:46 p.m. Chair Schilling adjourned the meeting to the next Special Meeting on March 19, 2015 at 5:15 p.m, in the Council Chambers Chula Vista, California. Joyce Malveaux, Legal Assistant Page 3 1 Board of Ethics Minutes March 11, 2015 DRAFT MINUTES OF A SPECIAL MEETING OF THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA March 19, 2015 5:15 P.M. A Special Meeting of the Board of Ethics of the City of Chula Vista was called to order at 5:27 p.m. in the City Council Chambers, located in Building A, at 276 Fourth Avenue, Chula Vista, California. ROLL CALL PRESENT: Board Member Esquer, Livingston, Toothman, Jemison, and Robles. ABSENT: Board Member Schilling ALSO PRESENT: Special Counsel James Lough, Esq. and City Clerk Norris (The City Attorney's Office recused itself from participation in this meeting.) PUBLIC COMMENTS Vice Chair Jemison called for public comments on matters not listed on the agenda. There were none, ACTION ITEMS 1. Discussion and Action Regarding Selection of Outside Counsel to Advise Board of Ethics in BOE complaints 2-18-15A and 2-20-15A, Including Using List of Attorneys That Had Been Selected by BOE to Serve as the Enforcement Authority under Chula Vista Municipal Code section 2.52 (Campaign Contribution Ordinance) to Select Attorney to Serve as Outside Counsel* * This item was approved at the March 11, 2015 Board of Ethics Meeting. The approved item improperly listed one case number as 2-20-15B, Approval of this item will correct the typographical error to properly list the case as number 2-20-I5A. ACTION: Commissioner Robles moved to accept the correction of the case number. Commissioner Toothman seconded the motion, and it carried 5-0 by the following vote: Yes: Esquer, Jemison, Livingston, Robles, and Toothman. No: Abstain: Page 1 I Board of Ethics Minutes March 19, 2015 2, Discussion and Action regarding the "Prima Facie Review," pursuant to Chula Vista Municipal Code section 2.28, 110, of Ethics case numbers 2-18-15A and 2-20-15A Special Counsel Lough provided an overview of his opinion and recommendation to dismiss both cases pursuant to Chula Vista Municipal Code section 2.28.110, stating that the complaints did not contain a full allegation of facts that would constitute a violation of the specific prohibitions enumerated in the City's Code of Ethics. Daniel Munoz, Chula Vista resident, spoke in opposition to the appointment of Steve Miesen to the City Council because of his employment with Republic Services and described Republic Services as a "public/private" company. Mr, Munoz requested that the Board refer the matter to the State Attorney General. Russ Hall, Chula Vista resident, spoke in opposition to the appointment of Steve Miesen to the City Council. He stated that Mr. Miesen's position with Republic Waste was an issue of incompatible offices. He also stated that Mr. Miesen's campaign contributions created a conflict. City Clerk Norris read written communication from Jill Galvez, dated March 18, 2015, Special Counsel Lough answered questions from the Board Members regarding laws relating to the duties of the Board of Ethics. Member Toothman moved to continue discussion on the matter to the next meeting. Motion died for lack of a second, Special Counsel Lough advised the board to take action on Item 2 prior to taking any separate actions. ACTION: Member Toothman moved to continue discussion at the next meeting regarding the Prima Facie Review, pursuant to Chula Vista Municipal Code section 2.28.110, of Ethics case numbers 2-18-15A and 2-20-15A. Member Robles seconded the motion and it carried 4-1 as follows: Yes: Esquer, Jemison, Robles, and Toothman. No: Livingston Abstain: Special Counsel Lough recommended that the Board act on the Prima Facie Review at this meeting, then have other matters that may fall under the Board's purview handled separately at another meeting. ACTION: Member Toothman moved to repeal the previous action to continue the discussion to the next meeting. Member Livingston seconded the motion, and it carried 5-0 as follows: Yes: Esquer, Jemison, Livingston, Robles, and Toothman. No: Abstain: Page 2 1 Board of Ethics Minutes March 19, 2015 ACTION: Member Livingston moved to dismiss both complaints since they did not contain a full allegation of facts that would constitute a violation of the specific prohibitions enumerated in the City's Code of Ethics. Member Robles seconded the motion and it carried 5-0 as follows: Yes: Esquer, Jemison, Livingston, and Robles. No: Abstain: Toothman.* ACTION: Member Robles moved to add to the agenda for the next meeting possible action regarding the matters of the complaints filed with the request that Special Counsel Lough return with additional information. Member Toothman seconded the motion and it carried 5-0 as follows: Yes: Esquer, Jemison, Robles, and Toothman. No: Abstain: Livingston.** Member Robles asked that Special Counsel Lough begin gathering facts and documents about how appointment was made. Special Counsel Lough stated that he would return with a report to show what authority the Board would have to look into the appointment process within the discretion of the Chula Vista Municipal Code. *After the last vote on the matter (regarding adding item to future agenda), Member Toothman stated that for the record, she had abstained fiom voting on dismissing the complaints. There was no audible abstention or reason for abstention recorded during the voting process. **After the last vote on the matter (regarding adding item to future agenda), Member Livingston stated that he had abstained from voting on that matter since he did not understand how the Board could further investigate a matter for which there was not a formal complaint that would fall under the Board's purview. There was no audible abstention or reason for abstention recorded during the voting process. . OTHER BUSINESS 1. STAFF COMMENTS None. 2. CHAIR'S COMMENTS. Vice -Chair Jemison expressed thanks to Special Counsel Lough, Board Members and Public for their input. 3. -BOARD MEMBERS' COMMENTS Page 3 1 Board of Ethics Minutes March 19, 2015 Member Toothman — thanked Member Schilling for recusing himself from participation in this meeting. ADJOURNMENT At 7:11 p,m, Vice -Chair Jemison adjourned to the regular meeting of April 15, 2015 at 5:15 p.m. Donna R. Norris, City Clerk Page 4 1 Board of Ethics Minutes March 19, 2015 LOUNSBERY FERGUSON ALTONA & PEAK LLP ESCONDIDO AND SAN DIEGO 780 Main Street, Suite B Ramona, California 92065 sPVCTALCOUMFL 'telephone (760) 440-9729 JOHN W, WITT Facsimile (760) 743-9926 wAvtv.LFAP.com James P. Lough Email. TPi. t LFAP.com Of Counsel April 10, 2015 To: Chula Vista Board of Ethics From: James P. Lough, Special Ethics Counsel RE: Status Report to Board of Ethics The Board of Ethics (`BOE") conducted a prima facie review of two complaints at its March 19, 2015 meeting. The Board did not find a prima facie case under the facts alleged in either complaint, The BOE dismissed both complaints. However, the BOE requested that the matter be returned to the Board at its next regular meeting to discuss what options the Board has to review the general ethics issues related to the recent city council appointment process. This Status Report addresses some threshold issues for the Board, but leaves the general jurisdictional issues to the City Attorney's Office to present. Special Counsel will be prepared to address issues raised by the BOE on this subject. CITY ATTORNEY PARTICIPATION In the complaints previously considered by the BOE, the City Attorney and a Deputy City Attorney were named as persons participating in the alleged conduct. Since the dismissal of the two claims for failure to establish a prima facie case, the City Attorney's Office no longer has a conflict and can participate in general proceedings before the Board of Ethics. As part of the direction to the Special Counsel, the Board asked that public documents related to how that the City Council would deal with potential conflicts of their new member and related issues. As a companion to this Status Report, the City Attorney's Office will present this information and be available for questions about the process and conflict avoidance procedures that are being put in place for City Council and Staff. However, the City Attorney's Office will not be able to discuss matters related to the pending Brown Act suit brought by Chairperson Chris Shilling, Chula Vista Board of Ethics LOUNSBERY FERGUSON ALTONA & PEAK LLP General Jurisdictional Discussion (City Council Appointment Process) April 10, 2015 Page 2 of 2 CHAIRPERSON CONFLICT While the Chair can participate in other items on the BOE Agenda, it is recommended that the Chair continue to recuse himself on the matter of BOE general jurisdiction over issues that arose out of the recent appointment to the City Council. The reasoning in the previous conflict advice remains in place under this general item regarding potential advantage in an ongoing litigation matter. CONCLUSION Special Counsel will be available to answer questions if needed at the Board meeting. I will be prepared to answer questions regarding the jurisdictional options presented by the City Attorney's Office and to answer other questions related to this Agenda Item. 4/15/2015 CONFLICTS REVIEW Glen Googins, City Attorney Simon Silva, Deputy City Attorney Types of Conflicts © Government Code section 2090 f itohibited PirtancialInterest JAI Contracts] to GovernmentCode section 1099 [Incompatible Offices] n Political Reform Act [Prohibited Financial Interest In Governmental DecWon•GC 871001 o Common Law Doctrine Against Conflicts of Tnterests a Code of Rthics-CMC 2,42 Types of Conflict M Impacts office: • GC7o9oVPmhiWtedFinanciaflnterestinC(ntrart) ■ GC 1099 (Incompatib)e Office*) m Impacts ability to vote on specific items: ■ PRA a ComntgtlLAtVil►as 4/15/zo15 BALANCING INTERESTS n ACIUAL CONFLICT w PMCMM COMUCr/AlIMAl?ANCIi OF n IN OP.FICS TO PARTICIPAT9--TO DO TfM Puar.ICS Pusagm WHO IS THE CLIENT w The City is our client a We examine issues to support the City ability to serve the public and to ensure its actions are lawful Government Code section 1090 w It i.s a ululation of GC 1090 for aublic official to have a'Anancial interest" in the "making" of a contract to Such contracts are void M Timing of assumption of office is critical in deternaining if a GC 1090 violation has occurred N 4/15/2015 Government Code section 1090 d if contract pre -dates assumption of office then no GC 1090 violation n Well established rule! u Etertudly yr Vir(dez (1867) 32 Cal, 269 a Bldrige v. Stan Vle¢u Ucnl Hospr Disk (1990)22A Cni.App.3d311„321 ■ 85 OpaCal.Atty.GenI76 (2002) 84 Ops.Cal.Atty.Gen84 (2001) n 73 Ops,Cal.Auy.Gem791(1990) Government Code section 1090 m Going forward: P, New Contract, Modification, Atmadmient,Renewal o "Remote Interest" - Government Code section 1091(b)(2) Lemployee of contracting party] r Allows Citytoconba4butCouncilmemberMiesen may no t participate or vote on The mtatter Government Code section 1090 Conclusion . There is no CG 1090 violationbecause the Republic ServicesFranchise Agreement was Approved and entered halo prior to Conr►cilmember Mieseres assumption of office. CouncilmemberMiesen's positionwith Republic Services is a remote interest within the meaning of GC 1091.(b)(2) Lemployee]'and the City would be able to contract with Republic Services so long as CouncllrnentberMiesen did not participate 3 Government Code section 1099 es Government Code section x099 prohibits a person from simultaneously holding "public afficee that are incompatible o The first Inquiry is whether tltaro are two "public offices' u Coumilzuember is a public office a Republic Waste is not a public/govemmental entity. It fs a private Mrp(IratfoAL p The position of Division Manager is nota public office. Xnstead, Jus empfoyamt, GC1t199(c)atates that 1099 does not apply to etnployutent. Government Code section 1099 Conclusion o There is no GC 1099 violation becausq there are not two "public offices," o Republic Services is not a public/governmental entity It is a private company. n The position of Division Manager is employment as set forth in GC 1099(f) and as such is not a "public office," Political Reform Act 0 Political Reform Act (GC 87100) prohibits a City Council member from having a financial Interest in a governmental decision • FPPC established a 4 -part teat to deteruilne if such a oonflict exists e Is itivasonabty foreseeable that the decisionrvill lwve a materialfinaticiai effect onspectfiW financial interests o Does not preclude holding office, lixamined on a ruse by case (transactional) basis. 4/15/2015 .4 4/x.5/2015 Political Reform Act Conclusion m Tb, -PRA prohibits CounciimemberMiesen from participating in governmental decision in Which lie ]las a financial interest o The'confltctrecluires a trarWactionaireview o Council axed City items will be examined to determine if it is reasonably foreseeable that the decision may materially, affect his financial Interests (his income from his employinent) Common Law Doctrine Against Conflicts of interest to The Doctrine seeks to prohibit a division of loyalty to A councWnemberneedsto ask themselves, both subjectively and objectivelyy, do they have a personal interest (bias) that prevent them from adhering their loyalty to the City. ei if thereis an actual conflict they Aust recuse themselves o However, mere appeorance is insufficient to warrant recusal (See e.g. People v. Freewan (2010) 47 Cai.411,993, x006, Fn, 4.) Cominon Law Doctrine Against Conflicts of Interest m Does not preclndeholding office, txtmined on a case by case (transactionalbasis), CONCLUSION Similar to PRA mud will requite case by case review. Must resultin actual conflict for recusal, A Code of Ethics s► Guiding Principles -Provides a set of guidelines to consider when making a decision No sanctions related to guiding principles because then a is not always a clear answer and reasonable thin ds may differ on answer, particularly when actions done in good faith, a Specific Probibitions-narrowly drawn to comply with Ids' Amendment -"Due Process" Vigilance is the Key a To ensure there are no conflicts vigilance is required Q City Attorney's Office ■ DAgentlyworking to ID conflicts ■ Developing protocols for staff to ensure no confNct Issues arise and potentialforviolations are alinindzed Witt reach ovtto AG and FPPC as needed for assistance 4/1512015 0