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HomeMy WebLinkAbout2015-07-15 Board of Ethics PacketBoard of Ethics 1 aeciare unser penaay or 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 Hal according to BrownAct require ments. /Q1,Z. 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, July 15, 2015, at 5:15 p.m, in HR Training Room B111 and Bl 12, located at 276 Fourth Avenue, Building C, Chula Vista, California to consider the item(s) on this agenda. REGULAR MEETING OF THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA July 15, 2015 5:15 p.m. CALL TO ORDER ROLL CALL: Commissioners: Toothman ; Livingston ; Robles ; and Chair Schilling CITY STAFF: Silva -;Ponds ; and Malveaux OUTSIDE COUNCIL: James Lough, Esq. PUBLIC COMMENTS HR Training Room B111 & B112 276 Fourth Avenue, Bldg. C Chula Vista Jemison Esquer ; Persons speaking during Public Comments may address the Board/Commission on any subject matter within the BoardlCommission's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the BoardlCommission 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 staff. Comments are limited to three minutes. ACTION ITEMS The Rem(s) listed in this section of the agenda will be considered individually by the BoardlCommission 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 five minutes. 1. Discussion and Action regarding referral of BOE complaints 2-18-15A and 2-20-15A to other enforcement authority pursuant to Chula Vista Municipal Code section 2.28.090(B), including review of referral letter. 2. Report from limited term Ad Hoc Committee assigned to review and propose revisions to the BOE complaint form. OTHER BUSINESS 1. STAFF COMMENTS 2. CHAIR'S COMMENTS 3. COMMTSSIONERS7/BOARD MEMBERS' COMMENTS ADJOURNMENT to the regular meeting on August 19, 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, and/or 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 forty-eight hours in advance of the meeting. Page 2 (Board of Ethics Regular Meeting July 15, 2015 LOUNSBERY FERGUSON ALTONA & PEAK LLP 960 Canterbury Place, Suite 300 Escondido, California 92025-3870 Telephone (760) 743-1201 Facsimile (760) 743-9926 www.LF".com James P. Lough Of Counsel July 16, 2015 Mr. Russ Hall 59 Sierra Way Chula Vista, CA 91911 RE: Complaint No. 1-18-15A Dear Mr. Hall: ESCONDIDO AND SAN DIEGO SPECIAL COUNSEL JOHN W. WITT Phone: 760-743-1201, ext. 137 Email: JPL@LFAP.com This letter is to inform you that on March 16, 2015, at the regularly scheduled Board of Ethics ("BOE") meeting, the BOE conducted a "Prima Facie" review of the above entitled complaint pursuant to Chula Vista Municipal Code section 2.28.110. After a review of the complaint, the BOE has dismissed the complaint pursuant to Chula Vista Municipal Code section 2.28.110(A)(3) [Complaint failed to state a full set of facts showing violations of Specific Prohibitions set forth in 2.01.030(C)]. As such, the BOE does not have jurisdiction in the matter. On July 15, 2015, the BOE took further action on your complaint. It referred your complaint to various law enforcement agencies for their review. A copy of the referral is attached to this correspondence. The BOE will receive updates from this office at its regular meetings when and if any information is received from these law enforcement agencies. Yours truly, LOUNSBERY FERGUSON ALTONA & PEAK, LLP James P. Lough, Esq. Attachment LOUNSBERY FERGUSON ALTONA & PEAK LLP 960 Canterbury Place, Suite 300 Escondido, California 92025-3870 Telephone (760) 743-1201 Facsimile (760) 743-9926 www.LFAP.com James P. Lough Of Counsel July 16, 2015 Ms. Helen Prosser 190 San Miguel Court Chula Vista, CA 91911 RE: Complaint No. 1-20-15A Dear Ms. Prosser: ESCONDIDO AND SAN DIEGO SPECIAL COUNSEL JOHN W. WITT Phone: 760-743-1201, ext. 137 Email: JPL@LFAP.com This letter is to inform you that on March 16, 2015, at the regularly scheduled Board of Ethics ("BOE") meeting, the BOE conducted a "Prima Facie" review of the above -entitled complaint pursuant to Chula Vista Municipal Code section 2.28.110. After a review of the complaint, the BOE has dismissed the complaint pursuant to Chula Vista Municipal Code section 2.28.110(A)(3) [Complaint failed to state a full set of facts showing violations of Specific Prohibitions set forth in 2.01.030(C)]. As such, the BOE does not have jurisdiction in the matter. On July 15, 2015, the BOE took further action on your complaint. It referred your complaint to various law enforcement agencies for their review. A copy of the referral is attached to this correspondence. The BOE will receive updates from this office at its regular meetings when and if any information is received from these law enforcement agencies. Sincerely, LOUNSBERY FERGUSON ALTONA & PEAK, LLP James P. Lough, Esq. Attachment LOUNSBERY FERGUSON ALTONA & PEAK LLP ESCONDIDO AND SAN DIEGO 960 Canterbury Place, Suite 300 Escondido, California 92025-3870 Telephone (760) 743-1201 Facsimile (760) 743-9926 www.LFAP.com James P. Lough Of Counsel August 16, 2017 Jodi Reinke, Chair California Fair Political Practices Commission 428 J Street, Ste. 620 Sacramento, CA 95814 Kamala D. Harris, Attorney General California Department of Justice 1300 I Street Sacramento, CA 95814 Bonnie Dumanis, District Attorney Office of the District Attorney 330 W. Broadway, 13th Floor San Diego, CA 92101 Dear Ms. Reinke, Ms. Harris, and Ms. Dumanis: SPECIAL COUNSEL JOHN W. WITT Phone: 760-743-1201, ext. 137 Email: JPL@LFAP.com The purpose of this correspondence is to forward two complaints that were filed with the Chula Vista Board of Ethics ("CV BOE") alleging violations of state law related to the recent appointment of a new member to the Chula Vista City Council. (Attachments "A" & "B".) The Chula Vista Board of Ethics hears complaints related to violations of "Specified Prohibitions" as set forth in Chula Vista Municipal Code ("CVMC") section 2.01.030(C). A copy of the enabling legislation of the Board of Ethics that establishes its jurisdiction is attached. (Attachments "C" & "D".) The CV BOE reviewed the complaints and dismissed them because they failed to make a "prima facie" showing that any of the enumerated "Specified Prohibitions" were violated. To ensure that the issues contained in the complaints are adequately addressed, the Board of Ethics has voted to refer the complaints to your office for review within your jurisdiction. The Jodi Reinke, et al. LOUNSBERY FERGUSON ALTONA & PEAK LLP July 9, 2015 Page 2 of 2 complaints made allegations involving Government Code Sections 1090, 1099, 8920, 87100 et seq. and common law conflicts. Pursuant to CVMC section 2.28.090(B), the CV BOE may refer complaints in which they do not have jurisdiction to an appropriate enforcement agency for their review and consideration. Accordingly, the complaints and the written administrative record (Attachments "E"- "?") are attached for your review and consideration. The CV, BOE makes no finding as to the merits of the complaints since they do not fall within its jurisdiction. If you have any questions, please contact Special Counsel James P. Lough at jplglfap.com, (760) 743-1201or (760) 440-9729. Yours truly, JPL and firm letterhead JPL:kld Attachment A: Complaint No. Attachment B: Complaint No. Attachment C: CVMC Chapter 2.01, Attachment D: CVMC Chapter 2.28, Attachment E: Written Administrative Record of the BOE March through present. LOUNSBERY FERGUSON ALTONA & PEAK LLP ESCONDIDO AND SAN DIEGO 960 Canterbury Place, Ste. 300 Escondido, CA 92025 NSEL Telephone (760)743-1201 cou Facsimile (760) 743-9926 JOHN IIN W. WITT TT www.LFAP.com James P. Lough Of Counsel REGULAR BOARD MEETING CHULA VISTA BOARD OF ETHICS JULY 15, 2015 TO: Chula Vista Board of Ethics FROM: James P. Lough, Special Ethics Counsel DATE: August 16, 2017 Email: JPLnu,LFAP.com SUBJECT: ITEM ONE: Referral to Law Enforcement Agencies of Complaints 1-18-15-A & 1-20-15A with the BOE Written Administrative Hearing Record Recommended Action: To Authorize Special Counsel to Send the Referral to the Various Law Enforcement Agencies and Send Complainants Notice of Action Taken by BOE. 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. The matter w continued twice to this meeting. This Report contains the draft referral letter, with attachments, and the proposed Notice of Action. These were both prepared based on direction provided by the members of the Board of Ethics at its last meeting. REFERRAL TO LAW ENFORCEMENT AGENCIES Attached is the proposed letter to the San Diego County District Attorney, California Attorney General and the Chair of the Fair Political Practices Commission. It is a modified version of the draft form referral prepared by the City Attorney's Office for general usage. It also contains language and other elements suggested by Board members at the last meeting. Chula Vista Board of Ethics Regular Meeting (July 15, 2015) Agenda Item No. 1 August 16, 2017 Page 2 of 2 LOUNSBERY FERGUSON ALTONA & PEAK LLP The letter will have an attachment that includes the written administrative record of the Board of Ethics Agenda Items related to the two complaints. This record was prepared by the City Attorney's Office staff and will include a Table of Contents. The Record includes all written material considered by the Board of Ethics in its deliberations. At this time, there are no approved minutes from the meetings in question. Once minutes are approved, Special Counsel can forward them to the three law enforcement agencies. Also, any new materials related to the Complaints that are received by the Board may be forwarded as well. NOTICE OF ACTION The two Notices of Action are also to be considered by the Board. They were based on the draft generic notice prepared by the City Attorney's Office. However, they have been amended to deal with the referral issues as directed by the Board. The Notices will each include a full copy of the written administrative record of BOE proceedings in the Referral approved by the Board. MONITORING OF REFERRAL The Referral lists Special Counsel as the liaison with the law enforcement agencies as requested by the Board. As information becomes available from the law enforcement agencies, Special Counsel will provide written reports to the Board. If deemed appropriate by the Board, Special Counsel can provide updates at Board meetings. Please be advised that these agencies are not under any obligation to keep the Board of Ethics informed of the progress of their review. None of the three agencies has a duty to provide legal opinions to the Board of Ethics on this matter. The Fair Political Practices Commission does provide opinions to persons seeking to determine if their potential future conduct runs afoul of conflict rules. However, they have no legal responsibility to issue a formal opinion based on this referral. 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. Attachments: Draft Referral Letter Chula Vista Board of Ethics LOUNSBERY FERGUSON ALTONA & PEAK LLP Regular Meeting (July 15, 2015) Agenda Item No. 1 August 16, 2017 Page 3 of 2 BOE Administrative Record ATTACHMENT 1 CHUJV'ISTA 1 declare under penalty of pei jury that I am employed by the City of Chula Vista in the offico of the City Clerk and that 1 posted the document according to Brown Act requiremCnts, Board of Ethics -e Notice is hereby given that the Board of Ethics of 'the, City of Chula. Vista has called and will convene a Special Meeting of the Board of Ethics oh Thursday, Mauch 19, 201 S, at 5:1 S fl,m.:in Council Chathbers, .located at 276 Fourth Avenue, Building A, Chula Vista, Calf forth to consider the itcm(s) on this agenda. SPECIAL MEETING OF THE BOARD OF ETHICS OF THE CITY OF CHULA VISTA Match 19, 2015 5:X5 p.m. CALL TO ORDER ROLL CALL: Commissioners: Tootbman ; Livingston; Robles ; atnd Chair Schilling-. CITY STAFF: James Loltgh, Esq., Outside Counsel Council Chambers Building A 276 Fourth Avow Chula Vista, CA Jemison Esquer ; PUBLIC. COMMENTS Peewons speaking during Public Comments may gddress the Board/Commission on any subject matter within the Board/Commission's jur•lsdiction that is not listed as an Item on the. agenda, State law generally prohibits the Board/Conimission from discussing or taking action on any Issue not included on the agenda, but, if appropriate, the SoardlCommission may schedule the topic for ffrtirre discussion or refer, the matter to staff. Comments are limited to three minutes. ACTION ITEMS The Item(s) listed In this ,rection of the agenda will be considered individually by th'e .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 siibmlt it to the Secretary, prior to the meeting, Comments are limited to five minutes. 1. Discussion and Action Regarding Selection of Outside Counsel to Advise Board, of Ethics in BOE complaints 2-1-8-15A and 2-20-15A„ Including Using List of Attorneys That Had .Been Selected by BOE to Serve as the Enforcement Authority under Chttla Vista Municipal Code section 2.52 (Campaign Contribution Ordinance) to Select Attorney to Serve as Outside Counsel* * This iters was approved al the March 11, 2015 Board of Ethics Meeting, The approved iters improperly listed one case number as 2-20-15B. ,Approval of this item will corj ect the typographical error to properly list the case as number 2-20-15A 2. Discussion and Aetion regarding the "pc➢ma Facie Roview," pursuant to Chula Vista Municipal Code section 2,28,110, of Ethics case numbers 2-18-15A and 2-20-15A OTHER ]RUSINE, SS I STAFF COMMENTS 4. CHAIR'S COMMENTS 5. COMMISSIONERSYBOARD MEMBERS' COMMENTS ADJOURN1 E, NT to a date to be determined or tho regular meeting Qii April 15, 2015, in the Council Conference Room C.101, Building A at 276 Fourth Avemie, Chula Vista, California. Materials provided to the Roar'd of EthiCs related to any open -session item on this agenda are available for public review in the Offee of the City.lttorney at 276 Fourth Avenue, Chula Vista, Building A, Chula Vista during normal business hozn s. In compliance with the AMERICANS WITHDISABILITIESACT The City of Chula Vista requests Individuals who require special accommodations to access, attend, andlor participate In a Citytee .ting, activity, or service,, contact the Human Resources Department at (619) 691-5041 (Cul{fornia Relay Service Is avtxilable for the hearing impaired by dialing 71.1) at leas!Jbivy-eight hours in advance of'the meeting Pago 2 ►Board of Ethics Special Meeting March 1.9, 2015 RECEIVED 1-7 'TIME STAMP HUA cry F A .15 •F�8 � 18 Ali .32 ,J�TY ['014ULA-VIS T A CITY OF CHUL # VISTA rvlT'Y ERK'- OFFICE a BOARD OF ETHICS COMPLAINT FORM Please print or type. This form may be completed and filed with the City Clerk at 278 Fourth Avenue, Chula Vista, CA 91910. See reverse side of form for additional information, COMPLAINANT'S NAME Russ Hall DAXIIKE—PliONE COMPLAINANTS ADDRESS CITY ZIP Chula Vista 91911 ALTERNATH PHONE ( > LOCAWN OF INCIDENT City Council Chambers m OAT ' N TIM aF INCIDENT ff 1°5 1 NAL E OF crrY of Icw�{s) City Attny. & staff, Mayor and Counoilmembers NARMTIVEOFCOMPLAINT Re: Miesen appointment to City Council (see attached) CONTINUED ON ADDITIONAL. SHEETS CLRTIFICATIQN: declare that,ttie statements made on this form, as well ps any attached statements of my own, are true and correct to the best of my knowledge and belief. T Is declaration is made under penalty of perjury, under the laws of the State of California. Signed: t�✓.!� bate: . ` I reI toSe I torrnally that the appointment of Mr. Miesen to the City Council be reviewed. by the 'State Atto ney General ( or outside counsel if appropriate ). The State AG traditionally rules and opines on issues that appear to suggest conflicts of interest as described in California Code 1090. It strongly appears that Miesen has 1090 issues that would be better resolved by the State AG. As noted in La Prensa in a recent editorial: "The City Attorney, Glen Googins, took a very narrow view, looking at only the financial disclosure form, and stated that because the city contract with Republic Services, where Miesen serves as Division Manager, would not come up in the next two years, that he was good to go." The City Attorney was remiss in not looking deeper into the entire relationship that Miesen has been in with the City including but not limited to Miesen's ownership status in Republic Waste. He is a Division Manager of Republic Services, the sole provider of trash pick-up, recycling, and management of a landfill on public lands. Republic Services is considered a PI BLIC/PRWATIE partnership. That means they are a private contractor that has been outsourced to provide a city service. This would be similar to Sweetwater Authority, a public agency Haat serves the needs of the city. A water district and an elected office was cited in an example of incompatible offices which "presented a significant potential for a clash of duties and loyalties..." As pointed out significantly by La Prensa: `Because Miesen is simultaneously serving as the head of a public private partnership and as an appointed city council person whose job it is to oversee the outsourcing contract, the Miesen appointment would fall under the Common Law doctrine prohibiting "self-dealing". the statutes relating to incompatible offices (offices referring to public offices as well as positions of authority in other organizations), and California Law, section 1.090, According to the Attorney General, "Section 1090 essentially prohibits a public official from being financially interested in a contract in both the official's public and private capacities." Miesen not only owns shares of Republic Waste, but he also collects a substantial salary as Division Manager. Further Googins may have neglected to refer to the following: Chapter XIV, CODE OF 13-TIRCS Governnient Code Section 8920 et seq., which in part states: E. Potential Conflict in Duties or Functions — The incompatible offices prohibition does not require proof of an actual clash between the two offices in the context of a particular decision. It is enough that there is potential for a significant clash between the Uvo offices at some point in the future. And then there is the problem of significant political contributions that Mr. Miesen and Republic/Allied Waste have made to elected officials most notably the City Attorney, Mayor and Couneilmembers. If forma 460's show that political contributions have been wade front. Miesen and his company to current sitting city officials, it would seem that these 460 filings should have been revealed prior to the nomination consideration of Miesen. It would seem that ethics considerations should have immediately come into play with recusals from each official that received political contributions from Miesen and all officials from Republic/Allied. Therefore, Mr. Miesen may have never been nominated if such responsible actions had taken place prior to his consideration, The appearance of Miesen gaining appointment because lie politically contributed to the "right people" certainly sends the wrong message about Chula Vista and destroys the credibility of the entire appointment process and suggests the office of City Councilmember is "for sale". Please print or type. This farm maybe completed and filed with the City Clerk at 276 f=ourth Avenue, Chula Vista, CA MID. o. See reverse side of form for additional information. 01/v* (I015K OFC! �5 FED rIT 1 17f b 111 A a CITY O1= CHU LA VISTA UTY CLQ : S %FIGS BOARD OF ETHICS COMPLAINT FORM COMPLAINANT'S NAME' � ,,j�Os � DAYi NONH ' GO "" ZIP Ar • Cf E � f 1.00 DATE AND 71M F tNCI Vmr L�f !S CINT�' 14 LL. © 3 NAMgOF MY OFFICMS) f*cv s Y1/ltit/Z ��kr~A-s e t3tvAso05sa n ion, Nh.0-C.i tJ NARRATIVE OF coMPUUNr(:4- , Gvl c. A G-Lr�N Goo Gl N s 51 tm o rV G d m _i acft�evmO � nfese Cr N T Gc d WE< IkAt.t ML TSS �UFMefulfi 60AJFL1cT' aF N 215! AMP commolv 1.4w 41ut7 1N 'OMbL e,, ©FFje-SSR7"vi~�s. 'fila o! o 0J Sear f - C-0 . to a rand !s Y Gte, �S[ S e, &yl'a t : section 2.01.030(C): 18. No City official shall negotiate for employment with any person, firm, or organization at the same time that aforementioned person, firm, or organization has a matter pending before City Council, board or commission, or a City department and unon whish the . Uty official must act or make a recommendation. (Ord. 3264 P4 1. 2013 6llkice-, >fcoe mie.sen S the. DcUcsroA1 4-016,ESC �i�,en %as�� �7ncL tS Cpt�, ct �Gis d� �vi cls�AJ ess wl t lea Gl5 thahcer., rr trneln""�' ��tet/C �7`eUt� fteS aWillj d� VI Ile tY a vlf 0 t'(�ZjU t r CgNT1NUED ON ADDITIONAL SHEETS CERTI�iC,ATItaN: I declare 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 knowledge and belief. This declaration is made under penalty of perjury, under the taws of the State of California. Signed: Date: l &PJTfAJU RD Page Z 0 Please print or type. `This form may be completed and filed with the City Clerk at 276 Fourth Avenue, Chula Vista, CA 91910_ See reverse side of form for additional Wbrmatlon. CHWVRA CITY OF CHUMP► VISTA, BOARD OF ETHICS COMPLAINT FORM TIME STAMP COMPLAIE DAYTIME PHONE �. � � piz DSS �� - c COMPLAINAWS ADDRESS CITY ZIP ALTERNATE PHONE t LOCATION OF INCIDENT DATE AND TIME OF INCIJ)M NAME OF CITY OFFICIAL Sj NARRATIVE OF COMPLAINT 4F ."F-"F-9IEsT wl" ne ar^d rvLatNR5 0f b(c . W�tsf t- ova ]Wk eo (e Of C-G,-tA VlSt4- `rhe c��'&xluciL mus r /ticAK iJ��t s torus 010 ac Wq jle-vksOtJL- T2A6tf �°DL.�-�.ci(nN 7�rt(.s . �(na J S•f�.ve. f2e send- ? 7�t.e C� +avis 04 CWA V(- ST- l d ` Ae— Wfi-STE Corm ,- -Afy i'ke. O -f G.GWii- cSt ~h Vrii55eh15 d OTMCvt7" 'ta X4(50 `i ta.-f- e- C/' A-7To"8 f1�t1 S 57 �� GveLL -thg 6V &Aj7 fy 6avAt �r L f-'��use. -fAe-M-5C--fVeSm Test' t ' vt ezo fikn(It)bA) of a (r t of Me- Me -(Seo ao A, Metvj-r d. Ve `fe rte(2 Bu)n) Pepsaiujjt.. �'�► QS CC!' *qnC1C O'F Cpm Al h NDN 1 U lav CONTINUED ONADDiTiONAL.SH2ETs Q CERTIFICATION; dl'U'�> ©fheg AAJP I declare 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 knowle ge and belief. This declaration is made under penalty of perjury, under the laws of the State of California. Signed: Date; ` ':M� Joyce Malveaux From: Jill Galvez <jmgalvez@cox.net> Sent: Monday, April 13, 2015 8:1.7 PM To: Joyce Malveaux; <allison.sampite-montecalvo@utsandiego.com>; Robert Moreno; brian.lightbody@cox.net; carlos@thestarnews.com; don.sevrens@uniontrib.com; ejentz@gmaii.com; jerrythomas8@cox:net; Spethman S K; La Prensa San Diego; Samlongacre2@gmall.com; s_watry@cox.net; <p.watry@cox.net>; Karen Prosser; Bonitabarn Cc: Jill Galvez Subject: Re: Board of Ethics Agenda - Wednesday, April 15th at 5:15 p.m. Attachments: 18701.pdf; ATT310314.htm Dear Joyce, Please distribute this to the ethics commission prior to Wednesday's, meeting. There seems to be some confusion about the term "public official" as it relates to 1099 incompatible office and 1090 conflicts of interest provisions. 1 hope these passages will clear things up: According to government code 87200, Steve Miesen is a public official in his capacity as Division Manager of Republic Waste, a public/private partnership, agency franchise, and contractor with the city of Chula Vista. Please read pages 2 & 3 of the attached PDF, found at http ///fppc.—ca.gov/lega—l/.regs/ctirrent/I 8701 -pdf Section 18701(b) "For purposes of Government Code section 87200, the following definitions apply: (1) "Other public officials who manage public investments" means: (C) individuals who, pursuant to a contract with a state or local government agency, perform the same or substantially all the same functions that would otherwise be performed by the public officials described in subdivision (b)(1)(13) above. 18701 (b)(1)(B) "high level... employees ... management of public investments Steve Miesen is the division manager of Republic Waste. He is the highest level local executive who manages the Chula Vista landfill, a public investment, htip:!Ltpe.ca.gov/legaYregs/current/l 870 I&df (Regulations of the Fair Political Practices Commission, Title 2, Division 6, California Code of Regulations.) § 18701. Public Official, Definitions. (a) For purposes of Government Code section 82048, which defines "public official," and Government Code section 82019, which defines "designated employee," the following definitions apply: (1) "Member" shall include, but not be limited to, salaried or unsalaried members of committees, boards or commissions with decisionmaking authority. (A) A committee, board or commission possesses decisionmaking authority whenever: (i) It may snake a final governmental decision; (ii) It may compel a governmental decision; or it may prevent a governmental decision either by reason of an exclusive power to initiate the decision or by reason of a veto that may not be overridden; or (iii) It makes substantive recommendations that are, and over an extended period of time have been, regularly approved without significant amendment or modification by another public official or governmental agency. (B) A committee, board, or commission does not possess decisionmaking authority under subsection (a)(1)(A)(i) of this regulation if it is formed for the sole purpose of researching a topic and preparing a report or recommendation for submission to another governmental body that has final decisionmaking authority. (2) "Consultant" means an individual who, pursuant to a contract with a state or local government agency: (A) Makes a governmental decision whether to: (i) Approve a rate, rule, or regulation; (ii) Adopt or enforce a law; (iii) Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; (iv) Authorize the agency to enter into, modify, or renew a contract provided it is the type of contract that requires agency approval; (v) Grant agency approval to a contract that requires agency approval and to which the agency is a party, or to the specifications for such a contract; (vi) Grant agency approval to a plan, design, report, study, or similar item; (vii) Adopt, or grant agency approval of, policies, standards, or guidelines for the agency, or for any subdivision thereof; or (B) Serves in a staff capacity with the agency and in that capacity participates in making a governmental decision as defined in regulation 18702.2 or performs the same or substantially all the same duties for the agency that would otherwise be performed by an individual holding a position specified in the agency's Conflict of Interest Code under Government Code section 87302, (b) For purposes of Government Code section 87200, the following definitions apply: (1) "Other public officials who manage public investments" means: (A) Members of boards and commissions, including pension and retirement boards or commissions, or of committees thereof, who exercise responsibility for the management of public investments; (B) High-level officers and employees of public agencies who exercise primary responsibility for the management of public investments, such as chief or principal investment officers or chief financial managers. This category shall not include officers and employees who work under the supervision of the chief or principal investment officers or the chief financial managers; and (C) Individuals who, pursuant to a contract with a state or local government agency, perform the same or substantially all the same functions that would otherwise be performed by the public officials described in subdivision (b)(1)(B) above. (2) "Public investments" means the investment of public moneys in real estate, securities, or other economic interests for the production of revenue or other financial return. (3) "Public moneys" means all moneys belonging to, received by, or held by, the state, or any city, county, town, district, or public agency therein, or by an officer thereof acting in his or her official capacity, and includes the proceeds of all bonds and other evidences of indebtedness, trust funds held by public pension and retirement systems, deferred compensation funds held for investment by public agencies, and public moneys held by a financial institution under a trust indenture to which a public agency is a party. (4) "Management of public investments" means the following nonministerial functions: directing the investment of public moneys; formulating or approving investment policies; approving or establishing guidelines for asset allocations; or approving investment transactions. Comment: In limited circumstances, the members of nonprofit organization may be "public officials." (In re Siegel (1977) 3 F'PPC Ops. 62.) Note: Authority cited: Section 83112, Government Code. Reference: Sections 82019, 82048, 87100, 87200 and 87302, Government Code. HISTORY 1. New section filed 1-22-76; effective thirtieth day thereafter (Register 76, No. 4). 2. Amendment of subsection (c) filed 4-28-82; .effective thirtieth day thereafter (Register 82, No, 18). 3. Amendment of subsection (b) filed 10-19-89; operative 11-18-89 (Register 89, No. 42). 4. Repealer and new section filed 11-23-98; operative 11-23-98 pursuant to the 1974 version of Government Code section 11380.2 and title 2, California Code of Regulations, section 18312(d) and (e) (Register 98, No. 48). 5. Editorial correction of 4 (Register 2000, No. 25), 6. Amendment of section heading, section and Note filed 1-11-2001; operative 2-1-2001. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of Administrative Laiv, 3 Civil C010924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992 (FPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements) (Register 2001, No. 2). 7. Amendment filed 12-29-2005; operative 1-28-2006. Submitted to OAL for filing pursuant to Fair Political Practices Commission v. Office of,4dministrative Law, 3 Civil CO 10924, California Court of Appeal, Third Appellate District, nonpublished decision, April 27, 1992. (1jPPC regulations only subject to 1974 Administrative Procedure Act rulemaking requirements.) (Register 2005, No. 52). LOUNSBERY FERGUSON AL'T'ONA & PEAK LLP ESCONDIDO AND SAID DIEGO 960 Canterbury Place, Suite 300 Escondido, California 92025-3870 Telephone (760) 743-9201 SPECIAL COUNSEL JOHN W. WITT Facsimile (760) 743-9926 mvw.LFAP.com James P. lough Of Counsel TO: FROM: DATE: SUBJECT: Direct: (760) 743-1201 Email: JPL (t LFAP.com Chula Vista Board of Ethics James P. Lough, Special Counsel March 18, 2015 Prirna Facie Review: Chula Vista Municipal Code Section 2.28.110 (Ethics Complaints: Appointment of Councilmember Steve Miesen, January 13, 2015) You have asked our office to review two complaints objecting to the Appointment of Councilmember Steve Miesen. (Attachments "A" & "B".) Under Chula Vista Municipal Code ("CVMC") Section 2.28.110, the Board of Ethics is required to review the two complaints to determine if they establish a prima facie case of violations covered by CVMC Chapter 2.28 warranting further investigation. As discussed below, it is the recommendation of Special Counsel that the two complaints be dismissed for not meeting the standards set out in CVMC Section 2.28,110(A)(3). The allegations contained in the two complaints do not contain allegations of facts that would constitute a violation of the specific provisions enumerated in CVMC Chapter 2.28. The issues raised relate to matters outside of the jurisdiction of the Board of Ethics. GOVERNMENT CODE SECTION 1090 (ANTI -CONTRACTING PROHIBITION) The primary allegation under both complaints deals with Government Code Section 1090 ("1090").' Because a public official cannot "serve two masters", the Legislature adopted the anti - contracting provisions to regulate private contracts with public entities to regulate and, in many cases, prohibit participation by public officials. (Attachment "C".) These regulations fall into three categories: prohibited interests (1090); remote interests (1091); and non -interests (1091.5). It is our understanding that the City Attorney rendered an opinion on the applicability of the anti - contracting laws to the appointment of Councilmember Miesen. As discussed below, it is not All statutory references are to the California Governinent Code unless otherwise noted. LOUNSBERY FERGUSON ALTONA & PEAK LLE Chula Vista Board of Ethics March 18, 2015 Page 2 of 5 within the scope of the appointment of Special Counsel to render a second opinion on this issue. It is the charge to this office to assist the Board in determining whether there is a prima facie case under CVMC 2.28. Any opinion about the appointment process by this office would not have any legal effect on the appointment or the assumption of office of Councilmember Miesen. (See, People v. Chacon (2007) 40 Cal.th 558.) However, with regard to the scope of this opinion, the law is clear that contracts entered into before the appointment of a public official do not violate 1090. (Beaudry v. Valdez (1867) 32 Cal. 269; 85 Ops. Cal. Atty. Gen. 176 (2002); 84 Ops. Cal. Atty. Gen. 34 (2001),) The official may continue to serve during the term of the contract. The appointment does not void the contract. If the contract is extended, amended or renegotiated, the issue will arise again. This opinion does not cover past transactions prior to the January 13, 2015 appointment. It also does not speculate on the possible future contract issues involving the appointed Councilmember. While this opinion is limited to the jurisdiction of the Board of Ethics, some explanation is needed to explain the three interests under the anti -contracting legislation. The most important interest is the "prohibited interest". A prohibited interest bars the person from serving as a public official because of the contract interest. These interests are of such a degree that mere service in a public position is not tolerated. (See, Lexin v. Superior Court (2010) 47 Cal. 40' 1050, 1073; Thomson v. Call (1985) 38 Cal, 3d 638, 650.) The second interest is a "remote interest". (§1091.) A remote interest is an interest of the public official in a contract that allows the official to hold public office as long as they disqualify themselves from any participation in any involvement in their contract issues with the City. The Legislature, under 1091, has set out specific rules that define what type of interest is "remote". The third type -of interest is a "non-interest". (§ 1091.5.) This category allows an official to serve as a public official and vote on the matter as long as they disclose their interest in the contract. These "interests" typically involve non-profit private positions. ,>iURISDICTION OF THE BOARD OF ETHICS OVER 1090 ISSUES Under CVMC Chapter 2.28, the jurisdiction of the Board of Ethics is established. (CMVC Sec. 2.28.020 (PURPOSE).) The Board is to hear issues of violations of the prohibitions established under the City's Code of Ethics. (CVMC Chapter 2.01.) The Code of Ethics "Specific Prohibitions" are found under CVMC Section 2.01.030(C). There are thirteen separate subsections that list the prohibited conduct subject to the Board's enforcement authority. Prohibited contracting is not listed in any of these categories. The absence is not surprising considering the State Legislature's intent when it adopted 1090. The California Legislature meant to establish statewide standards and the means that they were not be enforced. Intentional violations are subject to criminal prosecution by the County District LOUNSBERY FEPGUSON ALTONA & PEAB LLP Chula Vista Board of Ethics March 18, 2015 Page 3 of 5 Attorney or the State Attorney General. Lesser violations are also subject to the jurisdiction of District Attorneys and the Attorney General. In recent year's, the Legislature has given concurrent authority over 1090 issues to the Fair Political Practices Commission. (§ 1097. 1.) This jurisdiction is not granted pursuant to the Political Reform Act (87100 et. seq.), but through specific sections of §1090 el seq. Therefore, CVMC 2.01,030(C)(9) regarding violations of the Political Reform Act do not come into play. Even if it did, the FPPC rules regarding conflicts of interest do not arise until there is an action taken in a conflicted matter. The appointment of a public official who is interested in a contract, by itself is not a violation. (Beaudry v. Valdez (1867) 32 Cal. 269; 85 Ops. Cal. Atty. Gen. 176 (2002); 84 Ops. Cal, Atty. Gen. 34 (2001).) Since none of the thirteen prohibitions listed under CVMC 2.01.030(C) prohibit interests in contracts, the two complaints do not state a prirna facie case for a 1090 et seq. contracting violation under Chula Vista Ethics rules. Potential enforcement . of the anti -contracting rules lies with other enforcement agencies determined by the California Legislature. GOVERNMENT CODE 8920 ET SEQ. ETHIC RULES The second claim under the first complaint (Attachment "A") relates to the State Code of Ethics. This California Government Code is not applicable to local Chula Vista officers. The rules only apply to state officers. Attached is a copy of the applicable portions of the Attorney General's Conflict of Interest Guide on the subject. (Attachment "D") They clearly lay out the inapplicability of these rules. MATTER PENDING BEFORE THE OFFICIAL (CVMC 2.01.030(C)(13)) The second complaint (Attachment "B") raises the claim that the official is negotiating for employment at the same time that the official "must act or make a recommendation'. The appointment of Councilmember Miesen was not an action that he tools on a matter that he was a "city official" and "must act or make a recommendation". At some future time, the Councilmember may be faced with an issue involving the contract between his employer and the City. However, his appointment does not raise that issue. As discussed above, the more taking of office does not constitute a violation. (Beaudiy v. Valdez (1867) 32 Cal, 269; 85 Ops, Cal. Atty. Gen. 176 (2002); 84 Ops. Cal. Atty. Gen. 34 (2001).) No matter, was .pending where Councilmember Miesen acted as an official under CVMC 2.01.030(C)(13). CALIFORNIA CONLFICT OF INTEREST VIOLATION The second complaint raises a Political Reform Act Conflict of Interest allegation. However, as discussed above, the complaint deals with the appointment of the Councilmember. This action does not constitute participation by the appointed Councilmember in a matter that he has a personal financial interest requiring recusal. At the time of the appointment, the Councilmember was not a public official. (See, 82048; Fair Political Practices Commission Regulation ("Regulation") LOUNSBERX FERGUSON ALToNA & PEAK LLP Chula Vista Board of Ethics March 18, 2015 Page 4 of 5 §1,8701, subd. (b)(1).) Once appointed, there was no action taken or matter considered where he had a financial interest. (Regulation § 18702.1, subds. (a)(1)-(4).) One may occur in the fixture, but there is no issue under the FPPC conflict of interest regulations at this time. COMMON LAW CONFLICT ALLEGATION Common law conflicts deal with bias and other conflicts that predate the Political Reform Act and are judicially enforced. (Clark v. City ofHerinosa Beach (1996) 48 Cal.AppAth 1152.) In Clark, the court concluded that in an adjudicatory hearing, the common law is violated if a decision maker is tempted by his or her personal or pecuniary interests. In addition, the doctrine applies to situations involving a nonfinancial personal interest. (Xd. at p. 1171, fn. 18; 92 Ops, Cal. Atty. Gen. 19 (2009).) Here, there has not been a decision that Councilmember Miesen has been involved in that would trigger the common law doctrine under the allegations of either complaint. Therefore, the common law allegation does not present a prima facie case. INCOMPATIBLE OFFICES The second complaint raises the holding of two "incompatible" offices claim. (§1135 et. seq.). The state rules on incompatible offices are not self-executing. (§1126, subd. (a).) The Board of Ethics does not have a specific ordinance that specifies standards for incompatible offices that meet the state requirements to implement the incompatible office statutes. Without specific standards, no enforcement could take place and no priniafacie case can be established Since the issue is a contractual relationship, the issue is not the office but the timing and impact of the contract with the City. This issue is covered by the anti -contracting laws that the State Legislature has designated other enforcement agencies that do not include the Board of Ethics. None of the thirteen categories in 2.01.030(C) would apply. COUNCIL RECUSAL ON THE APPOINTMENT The final allegation in the second complaint asks that the entire City Council be recused from the appointment process involving Mr. Miesen. However, the complaint lists no grounds for such a recusal. None of the Councilmembers who voted on the matter are alleged to have a financial interest in the vote to approve Councilmember Miesen. Furthermore, the Board of Ethics has no jurisdiction to override City Council actions. CONCLUSION LOUNSBERY FERGUSON ALTONA & PEAXC LLP Chula Vista Board of Ethics March 18, 2015 Page 5 of 5 Special Counsel reconunends that the Board of Ethics find that there are no grounds in either complaint to make a prima facie case. regarding the appointment of Councilmember Miesen. The main question raised in both complaints is about the appointment of a Councilmember who works for a company that had a contract to perform services for the City prior to his appointment. The appointment itself did not raise any issues about the terms and conditions of the contract. No vote was taken or contemplated on the contract. Since no vote was taken or contemplated on the contract itself, the City's conflict of interest rules do not come into play at this time. The authority over anti -contracting issues has been placed elsewhere by the California Legislature. It lies with the District Attorney, State Attorney General and the Fair Political Practices Commission. Any citizen, including the complainants, may file complaints with the agencies that have jurisdiction over such matters. The Board of Ethics was established without jurisdiction over 1090 -type contracting claims. If it had jurisdiction over these matters, that jurisdiction would likely conflict with state law and impair the City Council's ability to determine whether to affirm or reject a contract that violates these rules. (§ 1092.) It could also interfere with the enforcement actions of those agencies that are charged with enforcement. I will be present at the meeting to answer questions. JPL;kld Attachments _ r r .:11, RN:fVV. V , ;a v qq �• •'171qMY5 STAMP Olt tjULAN1,SM' --CffY OF CHU& VISTA BOARD OF UHICS COMPLAINT FORM hlnaso prk,t ar ts�a.'TStka fuf,�tt iztay l,a • • • . -. : • ' aott,i>fo%J o,od fRGxi N1tU p,a t,:ity t:rvrk .. � .. • ai 27E11' otccih rAvonuo, Citrus VSala, CA Dim. soa►verse awe of forth for " addifi nai IrOrmottolt, , �v, •1Nh �'T�9 htrtFJl+� �..�.....,w--.. _ _...: • - ... ..�. LA'1ttAhii'13h's? )R '3 � � oil' p. _ �.. Chula Visf 919 1 _ r•_ �--y �� f• � o�,� ��_._�'-_-._.� MWI. �!C { 2 • •' >� 7I sp5Ti6n ° iii r > NT'_ T tso s; 1a`al ii 41a " ,l counog CiidtCllSt E'S rrrt n cl7Y si=c ui��(s) city.Attny. $;tf;• i3ta, !Bayoeind Counci4msmhets �wi�� E�Aftt',rij' 1F4 C0+ hSt33 po : m) sell appolfi"t`f onttb G;Ly come 86d LTI oiled) -- _ _ _._ __.. _...� _. - • — ^ . COUTttdUT'I:i &N Wrtl(;AL Stii�L�'i E deulrats thafi s sf4otngl1t8 m9do 41111118 fllim, Ss,Wolf ps•mty of taoflod $t,1tnrt on{s mg are [file �R11d cdhvbt o 6o - Dest or my Ril6vvledgo artd isc 11:31 tl clad r�zfiesn is retacte trttds� .iseltttJty o+ Elcrjur}�, un�ol� tPst� lett+�s o� tha Ste fe tlP Call�nrrt[a. ; r� �, Stalled; c.�,,�I._ t u� ragib: � .... r, (MO el 1 zbrzraalJq that i o 4pp6111tal Blit of Mix. Mllesatz t(i the City Cott llcil be x8vievW by the.... '8tf3f;e ,Mtoi4tey Legend ( or outside r tinsel if approp bxa ). The State A.Cs EVadittonal ly' xulps ,ad opitles aL Issues flint all)w to sugge,, t oonffiets of hat:exest as described. ita. Cayorit a Colo 090.A sttoa gly appeati that Miosezi has 1090 ihsue s 14 -would be better t:esolved by,the Stato A.C. As ncltl dd is1 i a pt cnsa ilx a t�ceatt ecliroriat: "The Mw Ators ey, Glon 6009111s, took a very r3aat-aw viow,10*klr e, Ariiy kh� ttll�ilL1it discroaura form, at'ad stated that b0oauso the pixy cwtraet with Republic gotvlcer,, whom Mh, s,ola sez~ros as Division N onagor, woteld not c oatta "p to mo#ap3;t ��� yaars, that ho. 1lUr7� .goad to ue," Tho City AA-ttowey Arras roxnlss h, Aot loolritlg deoper hito trace entire xOJ4t1O1W ip that .' . Yiesou has been in. with the City fnclbtgng bra not UnAted to i!/,I:iesen's owxaevhip sta tis ' itx vpoilZit: Waste. He fs auvw0ka Uanager of Re-PA6110 sate Prowlaor Of troall Pim up, a ee7elike, and wstt of a 12udfl on public liaw&.:Relnklie,, se ike.4 as u:licl� d a f<'1f RUCiPMAT fax€ts ;itilr. TWA a encs ilzaY are, a Ighlate gfwkwtow Haat ha",�aEt ttbwts#aErec to lr 7ide ep> r s;,z v;+ , Thia w eidil be sir-aflas: to 'e prat r Authority, a public agency that 801TO 0.4 needs ox the cay. A 110iter diOefct and au a.ecta Offieq gats efteai im an example of b1collipatiblo omen whiob "pr wm ad a. sigWillearat' 3fia tial f, k d a'Al of duties and Isy�i2ies.. ,r> A5 Myth** out sitr•,zltfleaWly by 1APrezl34; "'Because Klesen is Sixulfalteously servins as th a • , bead of a pub] private pattztez'ship and ac ail apppfntod city colm"Dil, pasolt whoso,job it is to aVa3 see G qui` os►rCill e« t;,xaGt, tllc Mics. u a;�pointnlelat wo4ld. fWq usurer the Caxtzraozl i aw doetria o Itsolziba'riag "s l%�ceaii3ag ; itao stlrtx►te�s tEfatztig inc can Itntif3le niEms (offcos rofOah1g to gxtblie O rets as well as poSitlaitS pFautlaori tis Other ori aliizatlaug'}, aurl Califaania w> SCeiioaz, i4K�0. A rooxcling to irae Aitoxaley {�te>:al, "Soctioft. t0?U ecsenxia�ry profaibliq a puhiic ofticfal 2:t4att t3eialt; �ruaszciaily iutaxc�ted ill it coxltlact iZz ilntl3.tlle a�zCinl's pzlbl3c acid 1>aivatr� ogyaCides."MPSen net *allyowns shales of Ropubfic Waste, but lie also OROS a. sUWttlitiai salary asMvision Manager. laliz•Citcr• Cinog'�.9 rrlay raavc ue�leCicti fix+ re€ea• to'tiYc falla�ring; �:15a17t+;r T. GC}1��; Cly �T:��tCS fsaaarnwat Code Section 9920 ct s(q., wllrbh ill part staves. B, P'c7t+cmdal Coli ifct its a./IAW or Rmotions —The 4100314WItible Offices prc3hibitio,l duos not regi lz•c proof ofw ao tlal Clash barren the, Uvo offices za tragi confox't of a iwu(# alar k1wision. It is enol3gh tllst thein is potentillx fQT a 51guitac3itt 01f1di lllrtween lite tiro offices a sonlo POW 'i11 the ftltta 0 l%latl filen alae r$ frac proia(ena o�,af,gt3E iGautpolltiaaJ coutrfriuticnls tkaat 11 s, l Iie$eu and cr�ttlrizti/A.1Lc d `r sta Izavc wade to clecte�� o:fci'at5 xlxost notably ttic ��xs ;� A'�cn�,ae�y, S s�Y(r at�t Coaltal3irl�C'�abers, if%xz3x 4!0's show that politi�:al �nlztlita�tiaolls 11a.ve bt<all, tlat�c1c i'irotn. N.Eirsc;7 - . alld Itis edzllpally to ow-ent sluing etty 0ftiars' It lymild wvall that E:Ilfao 460 i~liuzgs slloWd have . beau mvealod pvjor to t1iG J�.Gl13iXiaE'i01x cajislderatioa of *Nfl ton. f would swla that, ctbtc$ cO)w1 C.ratiom shotild have it-media%!y Conte into play AV411 xoCUMS ;t'lortx encb Offiloial ilia received political owitlibutions fyom Miecwu aad all ek&103 f1'4t11JRgM H(;/Airfed. +'Ilez-elore, N3i. Mosctt may 1_iaVo alavor Well r-vnaillatod X had tak'on. place Pticx to his consideration•. he, apps ataIMO OEM= gctinllag al)pobltuleclt t1g,413= lle politkally Coal-4itnitcci to tfto "right it(,o,)la" cs?actal3sly $ouds tlse vYrong 3.nessago about•C;Ztula Vista. and dtstcoyS flat credibility of the ellth-0 appohl'11k1i;S-A prooes$ aald wgaosts'ttle eruct of City CounciRazol zvr is "for sale M i� ■ 'i 0s ..... �E,.i...4: �.:.'-, .. .,..._:...:: .r+_.4 :. I... ....J.: ,= �•:..:. :V_.. .w:.-.1..4'F�.. L.�_i ._'.l L.. _.... Wise�optjiorWile. fbreiamimay bo "OvI,«,teicl;sns;i filed IAgit "* City Clerk at 'J6k"butit; vanue, ohulafta, Cit �19`I0. �r�e revarsasjde eFfvt>hf fer e�fdlliunat BtfnrmaGnti. 11ME. STA fti1� t A V S 13-OJW-!)D Or ETHICS C%t'iMPl.f1i Y FORM billillill �.�" J_ "ifs; ��`` L ' �•�.�.rJ6 �I l j� .,..._ '' �', � •� ' �.,, v�..r�i Ut'�'"[^� �'^l��i'-•-�� ..._w____.,. �a7El! n�r:,� >:il�t;l N5' ...._ h Amill ri+rpt tluc CYjf _ � � tD m.`wl" 2tV =v''Clul�ct�i`lI`3'— n 0-1 d- irlt1J,? o!'idF?r2cJ i f"d— a� t�'JC�� 3 �'{L-r= Wr 'j ! Ar, Is. hla Clt offioinl shall }1.;gQrfaib flflr etylploym,ent �Vdfj Iny p0g$01). fIem, or o ganizaildti- at the Sarna time that a farnr€i'r;0oned' amore, 'grm, or Orrla zaftn hhs a m,tfilr pendiino WOrO City Couno 1, Ward or curt inlission .dr a City depik rnbrtt and upon whi(,,h fho .. C�lty Official rYlMt gat or make a recorrttmandatiort, (flrd..8204 )%, j•j•g iti•C,n fa l' e— vt%A.57�Po_ /!hl 1jf^ I •Ln .!� PlLn.. �9_H :r. .. 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Gw ��."n+' _, `f f EF w•.-.•..,. ,.`• '^f. -..w«- .--....1�.7 'lam (�Y. { jf'{1��/ice-..{/#�.y.. �3+..(� �f V. -L e, f[-�.•t n j�{�t IA A��. � j{�)) n5 �j�" ev j t��{t : 1 j,„y ) r� y�Iyt_� /�t fldi�yf a�yNSh1 pl i !i.-� � 4�' V*+w 0 f �[L.•,�{�, {�w•.—, i ! 1 P i t »�.-- tJ J 4! h�.tr r�df 64ft�'•idt�At��3u€�«p11Sfiit?bXtflt#�t+St32 Ohs, I das,ars (hat }trade t:rr (OIs Is Iwi) as weH as any attotshed otatements df my �wv, ere (vuG € ild orrarikta tho �sfi of nay i o }a > e ar d 3�E.tiex TWO deofarat9nn Is rafide under penally of rparjury, ander -rho law'sof the ftft uli 735 1i LlR pate;'",r..olc�J1A ki r .3/1322 OVEIMMENTCODE SECTION 1090-1099 CA Codes (gw1DDO.1t_) 1090. (a) Membors or t:ho I.egisla•ture, s'ka'te, county, district, judicial d1strict, and City officers or employees shall not bo financially interested in any contract made by 'them in their, official capaci-ty, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or atrlpl.oyetes be purchasers at any sale or~ vondors at any purchaso ►made by them in -their officivI capacity. (b) An individual shall not aid or abet a Member of the Legislature or a state, county, district, judicia� district, or city of-Rcer or, ernployeo in violating subdivision (a). (c) As used in this article, "district" means any agency o -F the state formed pursuant to general law or special. Tact, for the local performance of governmental or proprietary functions within limited boundaries. 1.090.1. No officer or employee of the State nor any Member of the Legislature shall accept any commission for the placement of ;insurance on behalf of 'he State, 1691. (a) An officer shall not be deemed to be interested in a contract entered into by a body or board of which the officer is a member within the meaning or this article if the officer has only a remote :interest in the contract and if the -fact of that interest Is disclosed to the body or board of which the officer is a member and rioted in its offi<ial records, and thereafter the body or hoard authorizes, approves, or ratzF es the contract in good faith by a vote of its membership sufficient for tate purpose without counting the vote or votes of the officer or member with thg remote interes=t. (b) As used in this article, "remote interest" means arty of the following (1) That cYf on officor or employee of a nonprofit entity e>cempt from taxation purs►zar,•t to Section SOI.(+c)(3) of the internal_ Revenue code (26 U.S.C. sec, pursuant to section 501(x,)(5) or tile Internal. Revenue Code (25 t).S,C. Sec. 5ra2(c)(5)), or a nonprofit corporation, except els provided in paragraph (8) of subdivision (a) of Section 1091.5. (2) That of an employee or, agent of the contracting party, if the contracting; party has 1.0 or more other employees and if the officer was on omployee or agent of that contracting party -For at len5t three years prior to the officer' initially accepting his or her office and the officer owns less than 3 percent of the shares of smock of the contracting party; and the employee or agent: is not an officer or director o,f the contracting party and did not directly participate in formulating the bid of the contracting party. For, purposes of this paragraph, time of employment with the Contracting party by the officer shall he counted in computing the three-year period specified in this paragraph even though the con'cracting parlay has been converted frau one form of hugi.nees ritta:thnvrrr,ieVnfa.ca-gotr/cc9i•U►uOSPI ayawa?3eat) orv-9avt&rgr0Ur01001-MQUIIO= 9tx,>rJ-ION 1112 3111vas CA Cortes { v:10A4 1C J) organization to a different form o•f business organization within three years of the initial taking of office by the officer. Time of employment in that case shall be counted only if, after the transfer or change in organization, the real or ultimate ownership of the contracting party is the same or substantially similar to that which existed before the transfer or change in organization, For purposes of this paragraph, stockholders, bondholders, partners, or other persons holding an interest in the contracting party are regarded as having the "real or ultimata ownership" of the contracting party. (3) That of an employee or anent of the contracting party, If all of the following conditions are met; (A) The agency of which the person is an officer is a local publ.i.c agency located In a county with a population of less than 4,000,800. (h) The contract is .compel-Atavely bid and i's not for personal. services. (C) The employee or agent is not in a primary management; capacity with the contracting party, is not an officer or, director of the contracting party, and holds no ownership interest in the contracting party. (D) The contracting party has 10 or more other employees. (G) The empl.ovee or agent did not directly participate in formulating the bits of the contracting party. (F) The contracting parity is GhG lowest responsible bidder. .(4) That of a parent- in the earnings o -f his or her minor child for personal se=rvices. (5) That of a landlord or tonan't: of the contracting parity. (G) That of an attorney of the contracting parity or, that of an owner, officer, employee, or agent of a firm that renders, or has rendered, service to the contracting party in the capacity of stockbroker, insurance agent, insurance braker, real estate agent, or real. estate broker, if these individuals have not received and will not receive remuneration, consideration, or a commission as a result of the contract and if these individuals have an ownership Interest of xA percent or more in -the law practise or firm, stock brokerage firm, insurance firm, or real estate f-Irin. (7) That of a imamber, of a nonprofit corporation formed under the Food and Agricultural Code or a nonprofit corporation 'formed under the Corporations rade for the sole purpose of engaging in the merchandising of agricultural_ products or the supplying of eater. (8) That of a supplier of gbocls or services when 'chase goods or, services have been supplied to the contracting party by the officer for ai; least five years prior to his or her exec; ion or appointment to office. (g) That of a person subject to the provisions of section 1.390 in any contract or agreement entered into pursuant to the provisions of tale California Land Conservation Act of 1,965. (10) Except as provided in subdivision (b) of Section 1091..5, that of a director of, or a person having an ownership interest of, 1.0 percent or more in a (sank, bank holding company, or savIngs and loan association with which a parity to the contract has a relationship of borrower or dr:posi.tor, debtor or creditor. (11) That of an engineer, geol.ogi.st, car, architect employed by a consulting engineering or architectural firm. This paragraph applies only to an empl.oy,_c, of a c:orrsulting ,farm who does not serve in a primary )management rapacity, and does not apply to an officer or director of a consulting firm. (1.2) That of an elected officer otherwise subject to Section .1092, an (Iny housing assistance payment contract entered into pursuant to Section S of eche United States Mousing Act of 1.937 (42 U -SX. Sec. 1.437•f) as amended, provided that the housing assistance payment contract was in e:.isf:enC.e before Section 1090 became applicable to ruin:ih��r�=.i iido.ca.9rwtc�i.faii dis�laYcoclelscct4ar-nnv& roti GiGi1t 0`LJ(34&fiio=10001093 2112 P,t13121W CA Codes (gov.109Q1093) -the officer and wail). be renewed or extended only as to the existing tenant, or, in a Jurisdiction in whish the rental vacancy rate is less than 5 percent, as to new 'tenants in a unit previously under a section 8 contract. This section applies to aany person who became a public official on or after November 1, 1986. (13) That of a person receiving salary, per diem, or reimbursement for expenses from a goveramont entity, (14) That of a person owning ;Less than 3 percent of the shares of a contracting'party that is Fa for-profit corporation, provided that the ownership of the shares derived from the person's empaloyment ba th than: corporation. (:1.5) That; of a party to litigation involving the body or board of which the officer is a member in connection with an agreement in which all of the following apply: (A) The agreement is entered into as part of a settlement of litigation in which the body or board is represented by legal counsel. (n) After a review of the merits of the agreement and other relevant facts and circumstances, a court of competent Jurisdiction finds that the agreement. serves The public interest. (C) The interested member has recused himself or herself from all p4r-tic5pation, direct or indirect, in the, making of the agreement ort behalf of the body or board. (16) That of a person who is an officer or employee of an investor-owned utility that is regulated by the Public Utilities Commission with respect to a contract between the investor-owned utility and a state, county, distract, judicial district, or city body or board of which the: person Is a member, if the contract requires the investor-owned utility to provide energy ef—Ficiency rebates or other type of program to encourage energy efficiency that bvnefits the public when all of 'the following apply: (A) The contract is funded by utility consumers pursuant to regulations of the Public Utilities commission. (B) The contract, provides no individual benefit: to the person that is not also provided to the public, and the investor --owned utility receives no direct financial profit -from the contract. (C) The person has recused himself or herself from all participation ire making the contract on behalf of the state, county, district, ;judicial district, or city body or board of which he or she is a member. (b) The contract i.ntplements a program authorized by the Public Utilities Commission, (c) This sOcti.on is not appl.i(able to any officer interested in a contract who influences oi` Ittel"Pts 'to influence anOther trie ()er 0f the body or board of which he on she is a member to enter into •the contract. (d) The willful failure of an officer to disclose the fact of his or her interest in a contract pursuant to this section is punishable as provided :in Section 1097. That Violation doe> not void the contract unless the contracting party had knowledge of the fact of the remote interest of the officer at: the time the contract was executed. ' 1091.1. The prohibition against an interest in contracts provided by this article or any other provision of law shall not be deemed to prohibit any public officer or Member Of any public bob rd or, commission from subdividing ?ands owned by him or in which he has an interest and which subdi.vix;i.on of lands is effected Lander the provisions of Division x (comnreocir,S witt1 Soct}on 6641.0) of Title 7 t,ftp//..nares.laair�Enra.gallartl-l+itdc➢Spr2yCpsSi3')sst:tfoll=AovF'tardtl{Y�Si1(�11•(�C{�G£vi118=i4�•1t)97 3fnL V131015 CA Gales (9ov:1000.10M of the Government Code or any local ordinalice concerning subdivisions; provided, that (a) said officer or member of such board or commission shall First fully disclose the nature of his interest in any such lands to the legislative body having ,Jurisdiction over the subdivision thereof", and (b) said officer or member of such board or commission shall not cast his vote upon any matter or contract concerning said subdivision in any manner whatever. 1091.2. Section 1090 shall not apply to any contract or grant made by local worleforce investment boards created pursuant to the federal Workforce investment Act of 1998 except where both of the following conditions are met: (a) The contract or grant directly relates to services to be provided by any member of a local work -Force i.nvestr;ient board or, the entity the member represents or financially benefits the member or, the entity he or she represents. (b) The member fails to recuse himself or herself from making, participating in making, or in any way attempting to use his or her official position to influence a decision on the grant or, grants. 1091.3. Section 1090 shall not apply to any contract or grant made by a county children and -families commission created pursuant to the California Children and Families Act of 1998 (Division 109 (commencing with Section 130100) of the Health and Safety Code), except where both of the following conditions are met: (a) The Contract or grant directly relates to services to be provided by any member of a county children and families commission or the entity the: member represents or financially benefW the member or the entity he cir she represents. (b) The member fails to recuse himself or herself from making, participating in making, or in any qday attempting to use his or her official position to influence a decision on the grant or grants. 3.091..4. (a) As used in Section 1091, "remote interest:" also includes a person who has a financial interest in a contract, if all of the following conditions are mat: (1.) The agency of which the person is a Board member is a speer l cj9,yGrwct serving a pops i-ation of less than 45,020 th-it ai.s a landowner voter district, as defined in Section 56050, that does not distribute water for any domestic use. (2) The contract is for either Of the -rol.loWIng: (A) The maintenance or repair of the district's property or facilities provided that the need for maintenance or repair services has been widely advertised. The contract will result in materially less expense to *the district than the expense that would have resulted under reasonably available alternatives and review of these alternatives i., documented in records available for public inspection. (B) The acquisition of propetAty that the governing board of i+he district has determined is necessary for the district to carry out its functions at a price not exceeding the value Of the property, as determined in a record ovailable for Public inspection by an appraiser who is a member of a recognized organiYation of apprait0trs. (3) The person did not; pat^tic3.pate in the formulation of the t�irrthvv�w.tc;nfo.na.c�ovlc`1i-45ir�fUfb�iF�yC�t1A7SE3ctit!n=gQv&9tcx1(i~0'!( t-E>?G�UOC:fi16 IM M 4M2 3t1301s CA Coda (goM090-1 W% contract on behalf of the district:. (4) At a public meeting, the governing body of the district, after revlow of written documentation, determines that the property acquisition or maintenance and repair services cannot otherwise be obtained at a reasonable pr1ce and that the contract is in the best interests of the district, and adopts a resolution stating, why tho contract is necessary and in the best -interests of the district. (b) If a party to any proceeding challenges any fact or matter " required by paragraph (2), (3), or (4) of subdivision (a) to qualify as a remote interest under subdivision (a), the district: shall, near the burden of proving this fact or matter. 1091.5. (a) An officer or employee shall not be deemed to be Interested in a contract if his or her interest: is any of the following; The ownership of less than 3 percent of the shares of a corporation for profit, provided that the -total' annual. income -to hire . or her -from dividends, including the value of stock dividends, from the corporation does not exceed 5 percent of his or her total annual income, and any other payments made to him or her by the corporation no not exceed 5 percent of his or her total annual income. (2) That of an officer in being reimbursed for his or her actual and necessary expenses incurred in the perforivance of official duties. (3) That of a recipient of public servlces geperall•y provided by the public body or board of which he or She is a member, an the same germs and conditions as if he or she were riot a member of the body or board. (4.) That of a landlord or tenant of the contracti.►1g party if -the contracting party is the -Federal government or any federal department or agency, this state or an adjoining state,, any department: or agency of this state or an adjoining state, any county or city of this state or an adjoining state, or any public, corporation or special, judicial, or other public district of this state or an adjoining stat: unless the subject matter of the contract is the property in which the officer or employee has the interest: as landlord or tenant in which event: has or her interest shall be deemed sa remote interest within the meaning of, and subject to, the provisions of section 1091. (5) That of a tenant in a public housing authority created pursuant to part 2 (commencing with Section 34200) of Division 24 of they Health and Safety Code in which he or she serves as a member of the board of Commissioners, of the a;athorilty or of a community development commission created pursuant to Parc 1.7 (commencing with Section. 34140) of Division 24 of the Health and Safety Code. (G) That of a spouse of an officer or employee of a public agency in his or her spouse's employment or officehol.ding if his or her Spouse's employment or offi.cehol.ding has existed for at least one year prior to his or her election or appointment. (7) That of a nonsal.aried member of a nonprofit corporation, provided that this i.n1_el°es•t is disclosed to the body or board at the time of the first consideration of the contract, and. provided further that this interest is noted ;n its offlci.a3, records. (S) That of a noncompensated o,Mlcer of a nonprofit, tax-exempt corporation, wliich, as one of its primary purposes, supports -the functions of the body or board or to WNCh the body or board has a legal Obligation to give particular consideration, and provided further that this intorea'c Is noted in its official records. For purposes of this paragraph, an officer is "noncompensated" itttn:iN,t�vay.legfnfaca,c�t��irgi,k�i;yc�sPlaycc�lu7s�lip!t-c�ov&ttrsx�Pfi(k�t•P2040t�tirlia='105P-io;� C�12 a/4=0'rG even though he or she receives reimbursement from tile nonprofit, tax, -exempt corporation for necessary travel, and ether actual expenses incurred in performing the duties of his or her office. (9) That of a person receiving salary, per diem, or reimbursement for expenses from a government entity, unless the contract directly involves the. departmetit of the government entity that employs the officer or employee, provided that the interest is disclosed to the body or board at the time of consideration of late contract, and provided further that the interest is noted in its official record. (10) That of an attorney of the contracting party or that of an owner, officer, employee, or agsnt of a firm which renders, or has rendered, service to the contracting party in the capacity of stockbroker, insurance agent, insurance brokuv, real estate agent, or real estate broker, if these individuals have not received and will not receive remuneration, consideration, or a commission as a result of the contract and if these individuals have an ownership :interest of less than 10 percent In the law practice or firm, stock brokerage firm, insurance firm, or real estate firm. (1) Except as provided in subdivision (b), tjiat of- an officer or employee of, or a person having less than a 10 -percent: ownership Interest in, a bank, batik holding company, or savings and :loan association with which a party to the contract has a relationship of borrower, depositor, debtor, or creditor. (12) That of (A) a bona fide nonprofit, 'tax-exempt corporation having among its primary purposes the conservation, preservation, or restoration of park and natural_ lands or historical resources for public benefit, which corporation enters into an agreement with a public agency to provide services related to park and natural lands or historical resources and which services are found by the public agency, prior to entering into the agreement or as part of the agreement, to be necessary to the public interest to plan for, acquire, protect, conserve, improve, or restore park and natural lands or' historical resources for public purposes and (8) any officer, director, or employee acting pursuant to the agreement on behalf of the nonprofit corporation. For purposes of this paragraph, "agreement" includes contracts and grants, and "park," "natural lands," and "historical resources" shall have th4 meanings set forth in subdivisions (d), (g), and (1) of Section 5942 of the Public Resources Code. Services to be provided to the public agency may include -those studies and related services, acquisitions of property and property interests, 'and any activities relPted to thoso studies and acquisitions necessary for the conservation, presorvation, improvement, or restoration of park and natural lands or historical rasources. (3.3) That of an officer, employee, or member of the Board of Directors of the California Noosing Finance Agency with respect to a Loan product or programs if the of fic6r, employee, or member participated in the planning, discussions, development, or approval. of the loan product or program and both of the -following two conditions exist; (A) The loan product or program is or may be originated by any lender approved by the agency. (B) The loan product or program is generally available to qualifying borrowers on 'terms and conditions that are substantially the same for all qualifying borrowers at the �i.me the loan is made. (14) That o -r a party to a contract for pWlic services entered into by a special district That requires a person to be .a Landowner or a representative of a landowner to serve on the board of which the officer or employee is a member, on the same •corms and conditions as i.� he or she v,ere not a member of the body or board, For purposes of this paragraph, "public services" includes the powers and purposes flttpl�tnr l.to�rro,r , oufrgi•bir>h4ispiay ocio,s:ciran�Obv&grot =011701 JEIe='IQ�t'rc��3� $tit 3!1312015 CriCWM (pV'.1 l 0-1M9) generally provided pursuant to provisions of they ('later Code relating to irrigation districts, California water, districts, water storage districts, or reclamation districts. (b) An officer or employee shall, not be deemed to be interested in a contract made pursuant to competitive bidding under a procedure e3stOlished by law if his ot* her sole interest is that of an officer, director, or employee of a bans: or Savings and loan association with which a party to the contract has the relationship of borrower or depositor, debtor or creditor. 7.099„6. An officer who is also a n►ernber of 'the governing body of an organization 'that: has an interest; in, or to whieh the public agency may transfer an :ln•terest in, property that the public agency may acquire by eminent domain shall not vote on any matter affecting that organization. 1092. (a) Every contract; made In violation of any of the provisions of Section 1090 may be avoided at the instance of any party except: the officer interested therein. No such contract may be avoided because of the interest: of an officer therein unless the Contract is made in the'official capacity or the officer, or by a board or body of which he or she is a member. (b) An action under this section shall be Commenced within four years after the plaintiff has discovered, or in -the excrri.se of reasonable care should have discovered, a violation described in su4d1vision (a). 1692.5, Notwithstanding Section 1092, no lease or purchase of, or encumbrance on, real property may be avoided, under the terms of Section 7.092, in derogation of the interest of a good faith lessee, purchaser, or encumbrancer where the lessee, purchaser, or encumbrancer paid value and acquired the interest without actual knowledge of a violation of any of the provisions of Section 1090. 1093. (a) 'rhe Treasurer and Controller,, county and city officers, and their deputies rand clerks shall not purchase; or sell, or in any manner receive for their own or arty other person's use or benefit any state, county or city warrants, ,crap, orders, demands, claims" or other evidences of indebtedness against the state,, or, any county or city thereof. L7 (b) An individual shall not: aid or abet the Treasurer, Controller, a county ar city officer, or their deputy or clerk, In violating subdivision (a). (c) This section shall not: apply to evidences of lndebt.ednoss issued to or, held by an officer, deputy, or clork for services rendered by thein, nor to evidences of the funded indebtedness of 'the state, Cotint:y, or city. 1094, Every officer whose duty it is t:o audit: and allow the accounts of other, State, county, or city officers shall, before allowing such accounts, require each of such officers to male and file with him an affidavit or certificate under penalty of perjury tilI�:IPa�Mt+.les�rrt;o.ca.gav+a�l'•hin+disr��y+cw��7sec(f 4lt��cs��rcx,o�-t1iQt7t•t3'�fXl��til4� tQ;�-1(KJ9 311312016 CACCdes (govIWO-10A that: he has not violated any of the provisions of this article, and any individual who wilfully makes and subscribes such certificate to an account which he knows to be False as to any material matter shall be guilty of a felony and upon conviction thereof shall be subject 'to the penalties {prescribed for perjury by the Penal Coda of this state. ?095, officers charged with the disbursement of public moneys shall not pay any warrant or other evidence of indebtedness against the State, county, or city when it has been purchased, sold, received, or transferred contrary to any of the provisions of this article. 1096. Upon the officer charged with the disbursement of public moneys being Informed by affidavit that any offi.cer, whose account is about to be Settled, audited, or paid by him, has violated any of the provisions of this article, the disbursing officer shall suspend such settlement or payment, and cause the district a't'torney to prosecu•ke the officer for such violation. r -F Judgment is rendered for fine defendant upon such prosecution, the disborsing officer may proceed to settle, audit, or pay the account as If.no affidavit had been filed, 1097. (a) every officer or person prohibited by the laws of this state •Profs malting or being :interested in contracts, or from becoming a vendor or purchaser at sales, or from purchasing scrip or other evidences of indebtedness, including any member of the governing board of a SChooi district, who willfully violates any of the provisions of those laws, is punishable by a fine of not more than one thousand dollars 0:3,600), or by ioipri.sonmtrnt in the statc- prison, and is -Forever disqualified from holding any office in this state. (b) An individual who willfully aids or abets an officer or person in violating a prohibition by the, laws of this state from making or being interested in contracts, or from becoming a vendor or purchaser at sales, or from purchasing scrip, or outer evidences of indebtedness, including any member of .the governing board of= a school district, is punishable by a -Fine of not more than one -thousand dollars or by imprisonment; in the state pt^ison, and is forever disqualified -from holding any office in this state. 3.097.1. (a) The Com►ni.ssidn Shall have the jurisdiction to commence an administrative action, or a civil action, as set -forth within the limitations of this section and Sections 1097.2, 1097.3, 1097.4, and 3.097.54 against an officer or person prohibited by Section 1©90 from snaking or being interested in contracts, or from becoming a vendor or purchaser at sates, ar from purchasing scrip, or other evidences of indebtedness, including any member of the govevna.ng board of a school district, who violates any provision of -chose laws or, who causes any other person to violote any provision of those laws, (b) The Cvmmissi.on shall not have jurisdiction to commence all adoddstrativn or dVil scti.an or an investigation that Might lead to an adnrini.strati.ve or civil action pursuant to subdivision (a) against a person excetst upon written authorization from the district attorney of the county In which the alleged violation 6ccurred. A {1ttp;ltvn�vl.tt;{�ntn.ca.�uvt�7i-bi►vcn5}Naysc�ir�?kF�i��gnvd��C�x+p=o1001o?D�Gte�• 1Q9G 105►3 8112 3H91416 Cts Codes (P(:14W1rs9 civil action alleging a violation of 5er.•Gion 1.090 shall not be filed against a person pursuant to this section if 'tile Attorney General or, a district attorney is pursuing a criminal, prosec:utIon of that person pursuant to Section 1097, (c) (1) The Commission's duties and authority under the Political. Reform Act of 1974, (Title 9 (commencing with Section 810611)) • to issue opinions or advice shall nat be applicable to Sections 1.093, 1031., 1091.2, 1.091..2, 1091.3„ 1091..4, 9.091.5, 7.693.66, or 1097, except as provided in this subdivision. (2) A person subject to Section 1.090 may request the Commission 'to issue an opinion or advice with respect to his or her duties under Section logo, 1091., 1091.1, 1091.2, 1.097..3, 9.091,4, 1091.5, and 1091..6. The Commission shall decline to issue an opinion or advice relating to past conduct. (3) The Commission shall forward a copy of the request For an :. opinion or advise to the Attorney General's office and the local district attorney prior to proceeding with the advice or opinion. (4) When :Issuing the advice or opinion, the Commission shall either prov:Ide to the person who made the Pequest: a copy of any written communications submitted by the Attorney General or a local district attorney regarding the opinion ois advice, or shall advise the person that no written communications ware submitted. The failure of the Attorney General or a local district attorney to submit a written communication pursuant to this paragraph shall not gave•rase to an a.tt'ferenco that the Attorney General or Local di,str%ict attorney agrees with the opinion or advice. (5) The opinion or advice, when issued, may be offered as evidence of good faith conduct by the requester in an enforcement proceeding, if the requester truthfully disclosed all material facts and committed the acts complained of in reliance on the opinion or advice. Any opinion or advice of the Commission issued pursuant to this subdivision shall not be admissible by any person other, than the requester in any proceeding other than a proceeding brought: by the ConmUssion pursuant to this section. The Commission shall include an any opinion or advjceG that it a.ssues pursuant to this subdivision a statement 'that the opinion or advice Is not admissible in a criminal proceeding against any individual other than the requester. (d) A decision issued by the CommiSS;an pursuant to arr adnInistrative action Commenced pursuant to the Jurisdiction established In subdivision (a) shall not be admissible in any proceeding other than a proceeding brought by the Commission pursuant: to this section. The commission shall include in any decision it issues pursuant to an administrative action commenced pursuant to the jurisdiction established in subdivision (a) a statement that the decision applies only to proceedings brought by the Commission. (e) The Comtlltssl.on may adopt, amend, and rescind regulations to :. govern the procedures of the Commission consistent With the requirements of this section and Sections 1.097.2, 107,3, 1097.4, and 1.097.5, 'these regulations shall be adopted an accordance With the Administrative Procedure: Art (Chaptor 3.5 (commencing with Section 11340) of part l of Division 3 of Title 2). (•C) pox purposes of this section and 5ections :1097.2, 1097.3, 1097.4, and 1.1397.5, „cc)mmi.ssion" means the Far political prlactices commission, 1.6iS7.2. (ca) upon the. sworn CoMplain•t o -F a person or on its elan i.ni.tia'ti.ve, the Commission shall investigate possible violatl.ons of Section 1090, as provided in Section 1097.1. Auer complying with subdivision (b) of Section 1097.1, the commission shall provide a written roti-Fication to the pet^son filing a complaint in the manner hll�)ItrnNvr.l�tir�acagovlcgi l tvQis(�l fCod�?SeCii r t&grotr; QiU�1-D2C fife 1091). low Jli2 31132018 CACtdem (pov;1090-100) described in Section 83125. (b) The Commission shall not make a finding of probable cause to believe section 1090 has been violated unless the Commission has notified the person who is alleged to have violated Section 1.090 In the manner described in Section 83235.5. (c) If the Commission determines there is probable cause to believe Section 1096 has been violated, it may hold a hearing to determine if a violation has occurred, subject to the requirements of subdivision (b) of Section ;14,97,:1. and in the manner described in Section 891.16. (d) If the Commission rejects the decision of an administrative law judge made pursuant to Section 1.1.51.7, the Commission shall state the reasons in writing for rejecta,ng the decision, as required by Section 931.16.3. (e) The Commission shall have all of the subpoena pourers provided in Section 8311.5 to assist In the performance of the Gomttti.ssion's duties under this section. (f) The Commission may refuse to excuse any person from testifying, or from producing books, records, correspondence, documents, or other evidence in obedience to the subpoena of the commission notwithstanding an objection that the testimony or evidence req"ired of the person may tend to incriminate the person. A person who is compelled, al=ter having claimed the privilege against self -incrimination, to testify or produce testimonial evidence, shall not have that testimony or the testimonial evidence the person produced used against that person its a separate and subsequent prosecution. However, the individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying. The Commission shall not colmpe;l, any person to testify or, produce testimonial evidence after the person has claimed the privilege against self-incrimination unless the Commission has obtained written authorization •trout the Attorney General and the district attorney of the county in -which the alleged violation occurred. (g) The Commission shall not commence an administrative action pursuant to this section against a person who is, subject to Section logo alleging a violation of that section ;f -the ComAssion has commenced a civil action pursuant to Section :1.097.3 against: that person for the sarae violation. For purposes Of this subdivision, the commencement of the administrative action shall be the cage of the service of the probable cause hearing notice, as required by subdivision (b), upon the person alleged to have violated Section (h) An administrativo action broughc pursuant to this section shall. be subject to •the requirements of Soc•tion 91000.5. 1.697.3. (a) Subject; to the requirements o -F Section 1.097.1., the Commission mayfile a civil action for an alleged violation of Section 1.690. A person meld liable for such a violation shall be subject to a civil. fine payable to the Comtti 5si.on for deposit in the General f=und of the state in an amount not to exceed the greater ar" ten thousand dollars ($20,000) or three times the value of the financial benefit received by the d6fendant for each violation. (b) The Commission shall not commence a civil action pursuant to thJ5 SeCti.on alleging a Violati 3MV015 CA Codes (csrnrt0$0-iM section shall not be filed more than four years anter The date the violation occurred. 1097,4. In addition to any other remedies available, the Commission may obtain a judgment; in superior court -For the purpose of collecting any unpaid monetary penalties, Mees, or civil penalties imposed pursuant: to Section 1097,1, 1097.2, or, 1097.3. Penalties shall be collected in accordance with Section 91O13,5, 1097.5, (a) If the time for judicial review of a final Commission order or decision issued pursuant to Section 1097.2 has lapsed, or if all means of Judi,ci.al review of the order or decision have been .. exhausted, the Commission may apply 'to -tile clerk of the superior Court: for a judgment to collect the penalties imposed by the order or decision, or 'the order as modified in accordance with a decision on judicial review. :. (1) The application, which shall include a certified copy of the order or decision, or the order as modified in accordance w1th a decision ort ,judicial review, and proof of service of the order or decision) constitutes a sufficient showing to warrant issuance of the judgment: to collect the penalties. The clerk of the court shall enter the ,judgment immediately to con; ormi:ty with the application, (2) An application made pursuant to this section shall be made to the clerk of the superior court; in the county where the monetary penalties, fees, or civil penalties were imposed by the commission. (3) A judgment entered in accordance with this section has the same force and effect as, and is subject to all the provisions of law relating to, a judgment: in a civil action and may be enforced In the same manner as any other Judgment of the court in which it is entered. (4) The Commission may bring an application pursuant to this section only within four years after the date on which the morietary penalty, fee, or civil penalty was ;imposed. (b) The remedy available under this section Is in addition 'to those available, under, Section 1097.4 or any other law. 1098. (a) Any current public officer or employee who willfully and knowingly discloses for pecuniary gain, to any other person, confidential information acquired by him or her, in the course of his or her official duties, or uses arty such in�formati.on for the purpose of pecuniary gain, is guilty of a misdemeanor. (b) As used in this section: (x) "Confidential information" means information to which all, or the following apply: (A) At: the ti.rne of the use or disclosure of the information, the information is not a public record subject to disclosure under the Public Records Act:. (f;) At the time of the use or disclosure of the information, the disclosure is prohibited by (i) a statute, regulation, or rule which applies to the agency in which the officer or employee serves; (ii) the statement of Incompatible activities adopted pursuant to Section 19990 by the agency in which the officer or employee serves; or (ii,i) a provision in a document .similar to a statement of i'ncompati.bl.e activities if the agency in which the officer or eMpl.oyee serves is a local agency. (C) The use or disclosure of the inforination will have, or could r�lp:ii� hx�.feginfo,G#z-guvlct�i uirUdis�laycpde?acotiwiut v&g�aup�01Gt39-Q�t 1090, ION 11M 3/1312015 CA Codes reasonably be expected to have, a material financial effect on any investment or interest in real property which •the officer ar employee, or any person who provides pecuniary gain to the officer or employee in return forthe information, has at thetime of the use or disclosure of the information or acquires within 90 days following -the use or disclosure of the information. (2) For purposes of paragraph (i): (A) "Interest In real property" has the defi Government Code Sect -ion 8920 et seq.i8 A, The Basic Prohibition Governmwnt Cade secoon 11924, tale Code of Ethics, applies to state elected arid' appointed officers. it does not apply to civil service employees. The Code of Ethics ganccalllr' prohibits officers Rom participating in decisions that will have a direct .monetary effect on thein. Specifically, the Cade ofEtlncs prohibits officers firom: (l) having any direct or indirect �jhancial interest, or (2) engaging in any business transaction or proNssional activity, or (3) 'incurring any financial obligation., which is in substantial conflict with the proper discharge of 4-11e officiai'4 duties. (§ 8920, subd. (a).) A substantial conflict anises when an offiriol expects to derive a direct roonctary gain or Sumer a direct monetary loss by reason of his or her official activity. Where the officer will be so aftectod, by to decision, the officer should disqualify himself or herself ft om. the decision. A substantial conflict does not exist if an official acscrum no greater benefit or detriment as a inember otic btisiness, prt)f�ussion, occupation or group than any other member. Q 8921.) R. Special Rules for Ugislative Officials Briefly summa -iced, the Code ofEthics prohibits legislators and legislative elnpiayees from doing the following; l . Accepting employinent that the legislator or legislature eMployee 11as reason to believe would impair his or her independent judgment as to of-ficiai duties or that would induce the legislator or legislative employee to disclose confidential irf''ormation aoquirecl by him or her in t11e,:ourse of, and by reason of, official dutios. (§ 8920, subd. (b)(l).) 2. 'Willfully and knowingly disclosing confidential information acquired in the coarse of and by reason of Ills or her official duties or using that information for pecuniary gain. (§ 8920, subd. (b)(2).) 3. to general, accepting Or a911reeing to <xcaept, or being in partnership with any ' person who accepts or agrees to accept, any etnploy.ment, tee, or other thing, of'tnonetary value., in consideration of his or her appearh)g, a69'eeing to appear, or taking any action on. behalf of atlothor porson ix;tbrc: any state board or agency. ) Nceptions to this piohibitiori include the Following: attorney representation before ally court; representation before the Workers' Corapem9ation. Appeals Board; inquiries on bobalf of comtituents; advocacy witftow compensation; intervention on behalf of others to require a state board or agency to perform a is All further statutt�r>> re•fevencas ill this Chanter are to tfle cgry rjiment Codo Lmle i othetnvisC indic ate(L XIV. Code 0j'Eth cis Page 103 ntittisterial, non -discretionary act; advocacy on behalf of the, legislator or legislative employes himself or herself; and, receipt of parttxership or :term compensation, if the legislator or legislative= employ" dors not share either directly or indirectly in any foe, less any oxpenses attributable to the fee resalring from the transaction. Q 13920, subd, (b)(3).) 4. Receiving or agreeing to receive anything of value for services in connection with the legislative process. (§ 8920, subd. (b)(4).) S. P rtipipating, by taking any action, on the flOOT of either Douse or in aotnfnittee or elsewhere, in the passage or defeat of legislation in which a legislator or legislative employee has a personal hiterest, exoept as follows' Disclesure if the Member files a statement disclosing his or her personal interest to be entered on the journal, and states Haat lie or elle is able to cast a hir and objective vote, he: or she xray dote for the final passage of the legislation. Nondisclosure The Member may be excused fxom disclosing, his or her personal interest in legislation and from voting for the final passage of that legislation, without any entry to the Courtrai if the Member believes that lie or sho should abstain from voting and he or she informs the presiding officer prior to the commencement of the vote. Q 8920, subd. (b)(S).) G, Penalties and Enforcement Knowing andwillfulviolations are punishable as.misderneastors, and any person who conspires to violate these provisions may be guilty of a felony. ( 8926.) T `'xF .5��"�asgry:r:or �_VNinu,cfmr�z �x�r� zer�tzt rfir' »amu XI V Code of Ethics Page 104 111310- "--:c X1 -V, COME OF ETHICS Government Code Section 5920 et seq.►$ A. The Basic. Prohibition Government Cade section 8920, the Code of Ethics, applies to state elected aAd appointed officers. It does not apply to eivil service employees. The Code of Ethics generally prohibits officers from participating in decisions that will have a direct rm:netary of cot on them, SpccificaRy, the Code of Ethics prohibits officers from: (1) having arty direct or indirect financial interest, or (2) engaging in aiiy business transaction or professional activity, or (3) incurring any financial obligation, which is in substantial conflict with Che proper discharge of the official's duties, (§ 8920, subd, (a),) A substantial conflict arises when an officinal expects to det'ive a direct monetary gain or stiffer a direct monetary lass by reason of his or hoer official activity. Where the officer will be so affected by a decision, the officer should disqualify himself or herself irons the decision. A substantial conflict does not exist ifait official accrues no greater benefit or detriment as a member of tc busittC8S, profession, Occupation or group than any other member, Q8921.) B. Special Rules for Legislative Offitilals Briefly summarized, the Code of Ethics prohibits legislators and le'islativo employees front doing the following: 1. Accepting employment that the legislator or legislative employee has reasonto belkviz would impair iris or her independent judgment. as to official duties or that would induce the legislator or legislative employee to disclose confidential information acquired by hint or tier in the course sof and by reason of, official duties. (§ 8920, subd. (b)(1).) 2. `,Ni.lIfully and knowingly diselositig confidential infoonation acquired fti the course of and. by reason of his or h6r official duties or using that information for pecuniary gain, (c} 8920, subd. (b)(2).) 3. in general, accepting or agreeing to aocept, or being in partnership with any person who klecepts or agrees to accept, any employment,, fee, or other thing of monetary value, in consideration o#'his or her appearing, agreeing; to appear, or taking any action on behalf of another person before any state tvard or agoncy. Exceptions to this prohibition include die fallowing: attorney: representation Wore any court; represen ation before the Workers' Compensation Appeals Board; inquirio on behalf ofconstituonts; advocacy without compensation; intervention on behalf of others to require a stats: board or agency to perform a is All further statutory ro renes in. Chis Chapter arse to the Goma)ment Code unloss olhvirt lse indicated. �•:z �x+xa ...;i tT�,..,ri.F;,�;� r�.<��-s�����'r��:w�.^-,,,,. ^�„�- ��r�����.���r�w�:, � W-�rv.xxr*� s+�..x-,:� �-r...t�x, XIV Code of 1,71 tics Page 103 ministerial, non -discretionary act, advocacy on behalf ofthe legislator or legislative employee bimselfor herself; and, receipt of'partnership or firm Compensation, if the legislator or legislative employee does not shhre either directly or indirectly in any fee, less any expenses attributable to the foe resulting from the transaction. Q 89211,, subd. (b)(a).) 4. Receiving or agreeing to receive anything of'value for services in connection with the lcbislative process. (ti 8920, subd. (b)(4).) 5. Participating, by faking any action, on the floor of either house or in corrrtitittee or elsewhere, in the passage or defeat of legislation in which a legislator or legislative employee has a personal interest, except as follows: Disclosure It die rVIernber files a statement disclosing his or her personal interest to be entered ria the journal, and states that lire or she is able to cast a. fair and ribiective vete, he or she may vote for tho ficial Massage of the legislation. Nondisclosure . The Member may be excused fkom disclosing his or her personal interest in legislation and from voting for the final passage of that. legislation, without any entry in the journal ifthe Member believes that he or she should abstain fiorn voting and lie or she informs the presiding officer prior to the commencement of the vote. (§ 8920, subd, (b)(5).) C. NXIAlties And Enforcement Knowing and ,willful violations are punishable as misdemeanors, acid any person who conspires to violate these provisions may be guilty of Felony. (§ 8926) **94ee* s.��3i€�.i'.�d.���''�T`��;"�s'�+A•, a'^�z'�r;�»�:;�,.c.��r�zµu� rp �� �..'�:�=N�.�"rs"�a""�.��T•�-.:"-+..��.�.�3' XIV Coda of Hthias gage 104 ATTACHMENT 2 !.��Vir cH tU %su 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 during Public Comments may address the BoardlCommission on any subject matter within the Board/Comjrzission'sjurisdiction that is not listed as an, item. on the agenda. State law generally prohibits the BoardlComn ission from discussing or taking action on any issue not included on the agenda, but, if appropriate, the Aoard/Commission may schedule the topic for future discussion or refer the matter to staff. Comments are limited to three minutes. ACTION ITEMS The .Item(s) listed in this section of the agenda will be considered individually by the BoardlCommission 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 f ve 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. COMMISSIONERSVBOARD 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 itemon 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 ►vith the AMERICANS WITHDISABILITIESACT The City of Chula Vista requests individuals who require special accommodations to access, attend, and/or 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 forty-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 Ialtathe bulletin ording to Brown Act requirements. the CiyHlcc oated:4 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 Jernison, 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 Livhigston. 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 2-24-15B, 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 19th, 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 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 2-20-15A. 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 from 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 adjo-urned 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 780 Main Street, Suite B Ramona, California 92065 Telephone (760) 440-9729 Facsimile (760) 743-9926 nnvrv.LFAP.com James P, -Lough 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 ESCONDIDO AND SAN DIEGO SPECIAL COUNSEL JOHN W. WITT Email: JPI(t,LFAP.com 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 lit 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 LomsmRY 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 Godgins, City Attorney Simon Silva, Deputy City Attorney Types of Conflicts a GovernmentCode section 1090 ftohibited Firtandalinterestin Contractsl q GovernmentCode section 1099 [Incompatible Offices] a Political Reform Act [Prohibited Financial Interest in Governmental Decision -W 871001 o Common i�,cv *Doctrine Agaitist Conflicts of interests a Code of Ethics-CVMC 2,01 Types of Conflict a Impacts Office: ■ GC9090[ProldWedPhunciatInterest inContract] ■ GC 1099 [Incompatible Offices) in Impacts ability to vote on specific items ■ PRA * Connnon Uiv Blas 4/1.5/2015 BALANCING INTERESTS o ACTUAL CONFLICT a PEKCJEM C0NMCr/A1'PBARMCE OF JWROPRIM m iN OFFiCR TO PARUCIPAn--TO DO Ti M PUBLICS 13USIN13SS WHO IS THE CLIENT w The City is our client m We examine issues to support the City ability to serve the public and to ensure its actions are lawful Government Code section 1090 u Itis a violation of CC logo fur apublic official to have a "finandal irderest" in the "retaking" of a contract to Such contracts are void o Timing of assumption of office is critical In determining if a GC IM violation has occurred 2 4/1.512015 Government Code section 1090 n if contract pie -dates assumption of office then no GC 1090 violation n Well established utile: a Beoudly v. Virldcz (186* 92 Cal, 269 o Etdrtgev. Sierra Vino Local Hosp. Dist. (1990) 27.4 CaLApp.M311,321 d 85 Ops.Cal.Atty.Gen176(2002) * 84 Ops.CaLAtty.Gen34 (2001) u 73 Ops.Cal.Alty.Gen'191(1990) Government Code section 1090 a Going forward: ■ New Contract,Modilication,AuwndmentRtno%Val o "Remote Interest" —Government Code section 1091(b)(2) [employee of contracting party] P, Allows atyto contract butCouncilmemberWesen may notparttcipateor vote on the matter Government Code section 1090 Conclusion . There is no CG 1090 violation because the Republic Services Franchise Agreement was approved and entered into prior to Councilmember MieserA assumption of office. CounctmemberM wen's posit onwith Republic Services is a remote Interest within the meaning of GC 10911 (b)(2) [employee]'and the City would be able to contract widt'Republic Services so long as councilmentberMiesen did not participate 3 4/15/2015 Government Code section 1099 n Government Code section x099prohibits a person from simultaneously holding "public offices" that are incompatible a The first inqu ty is whether there are two "public offices' n Counclintembex is a public offica RepulAc Waste is not a publle/governmental entity. It Is a private corporation, n 'Me position of Division Manager isnot a ppublic office. instead, itis empioyntea GC1t199(*tates that 1099 does not apply to etnployuient. Government Code section 1099 Conclusion o Thereis no GC 1099 violation becausq there are not two "public offices," o Republic Services is not a public/governmental entity it is aprivate 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 o political Reform Au (GC 7100) pichlbits a City Counciimembex fromhavinga financial interest in a governmental decision o RPPC established a d -part test to determine if such a coalct exists ■ is itivasonabiy foreseeable tbat the decision will have a material financial effecton specified finamiai interests o Does not preclude holding office, Vxamtned on a case by case (hansactional) basis. A. 4/15/2015 Political Reform Act Conclusion n Tlie PRA prohibits CounctimemberMlesen from participatingin governmental decision in wluch he has a financial interest o The'conflict requires a transactionalieview o Council and City Items will be examined to determine if it is reasonably foreseeable that the dectsionmay materially affect his financial interests (his income from his employment) Common Law Doctrine Against Conflicts of Interest o The Doctrine seeks to prohibit a division of loyalty to A councilnemberneeds to ask themselves, both subjectively and objective)yy, do they have a personalinterest (bias) that 21 prevent therm from adherhig their loyalty, to the City. 0 1f there is an actual conflict they must recuse themselves o However, mere appearance is .insufficient to warrant recusal (See e.g. People V. Freeman (2010) 47 CalAth 993,1006, Fn. 4.) Common )raw Doctrine Against Conflicts of Interest a Does not preclude holding office, Sxtunined on a case by case (transactionalbasis). CONCLUSION Similar to PICA and will require case by case review. Must result in actual coof ict for recusal. 5 Code of Ethics Q Guiding Principles Provides a set of guldeWtes to consider when making a decision. No sanctions related to guiding principles because there is not atrvays a clear answer and xeasonableminds may differ on answer, particularly when actions done in good faith, a Specific Prohibitions -narrowly, drawn to comply with 141h Amendment "Due Zvoew" Vigilance Is the Key a To ensure there are no conflicts vigilance is r�qul ed 4 City Attorney's Office . D111gentiyworking to M conflicts u Developing protocols for staff to ensure nacoaWt issaesarise and potenbalfor violations are minimized ■ W>'ilreachonttoAGandFPPCasneededfor assistance 4/15/2015 1`J ATTACHMENT I'A CHMENT 3 \tl/ CH AASTA 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, May 20, 2015, at 5:15 p.m. in Council Conference Room C101, located. at 276 Fourth Avenue, Building A, Chula Vista, California to consider the item(s) on this agenda. REGULAR MELTING OF THE BOARD OF ETHICS OF THE CITY Or CHULA VISTA May 20, 2015 SAS P.M. CALL TO ORDER ROLL CALL: Commissioners: Tootlunan ; Livingston_; Robles ; and Chair Schilling__, CITY STAFF: Silva ; Ponds ; and Malveaux PUBLIC COMMENTS Room C101- Building A 276 Fourth Avenue Chula Vista Jemison Esquer ; Persons speaking during Public Comments may address the Board/Commission on any subject matter within the Board/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 staff Comments are limited to three minutes. ACTION ITEMS The Iteni(r) listed in this section of the agenda will be considered individually by the Board/Commission and are expected to elicit discussion and deliberation. .f 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 five minutes. 1. Discussion and Action regarding May 1, 2015 Memorandum by the City Attorney's Office regarding "Summary of Advice Regarding Board of Ethics (BOE) Authority to Make Referrals to Other Enforcement Authorities and. related Matters," including possible referral of BOF; complaints 2-18-15A and 2-20-15A to other enforcement authority pursuant to Chula Vista Municipal Code section 2,28.090(B). I declare under penalty Of perjury that i am employed by the City of Chula Vista in the Office of the CityAttoraey and that t posted this document on the bulletin board at the City Hall according to Brown Act requiremeft Dated ' r� /s t,sy' gigned( ` -/ "/' �I11 lu` .��� �� :�cc� 2. Discussion and Action regarding review and revisions to Board of Ethics ("BOE") complaint form, including formation of limited term Ad Hoc Committee to review and propose revisions to the BOE complaint form. 3. Discussion and Action regard review and revisions to Chula Vista Municipal Code ("CVMC") sections 2.01 (Code of Ethics) and 2.28 (Board of Ethics, including foil -nation of a limited term Ad Hoc Committee to review and propose revisions to CVMC sections 2.01 and 2.28. OTHER HUSINESS 1. STAFF COMMENTS 2. CHAIR'S COMMENTS 3. COMMISSIONERS'(BOARD MEMBERS' COMMENTS ADJOURNMENT to the regular meeting on June 17, 2015, in the Council Conferenee'Roorn 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 Once of the City Attorney at 276 Fourth Avenue, Chula Vista, Building A, Chula Vista during normal business hours. lit 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, activi)i, 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 forty-eight hours in advance of the meeting. Page 2 (Board of Ethics Special Meeting May 20, 2015 cnyoF CHOLAVISTA TO: Board of Ethics FROM: Glen R, Googins, City Atto171e ",;Cr --. Simon Silva, Deputy City Attorney 111 15, DATE: May 1, 2015 SUBJECT: Summary of Advice Regarding Board of Ethics (BOE) Authority to Make Referrals to other Enforcement Authorities and Related Matters The purpose of this Memorandum is to summarize and clarify the legal advice provided you at your most recent regular meeting on April 15, 2015 with respect to Agenda Item No. 2. As you will recall, this item was agendized as a follow up to yoiur dismissal at your Match 19, 2015 meeting of ethics complaints filed by Russ Hall and Helen -Prosser against the City Council and the City Attorney. These complaints alleged conflict of interest violations sten ming from the City Council's decision to appoint Steve Miesen to fill a vacant seat on the Council. Although your March 19"' action dismissed the complaints, a number of you continued to have concerns and wanted to know your options, As a result, special counsel was asked to return on April 15tt' to advise you on what additional options you may have with respect to the HaWrosser claims themselves, or the general subject matter thereof. After listening to the tape of your March 191t' meeting, we thought that you, and the public generally, would also benefit from a formal presentation of the legal analysis we had conducted regarding the Miesen appointment and our approach to conflict of interest matters generally. )BACKGROUND The BOB received two complaints (2-18-15A and 2-20-15A) regarding the appointment of Steve Miesen to the position of City Counciln-iember. The BOE dismissed the complaints because it determined that there was no prima facie showhlg that the allegations constituted violations of "Specified Prohibitions" set forth in Chula Vista Municipal Code ("CVMC") section 2.01. The BOB subsequently asked if there were other actions the Board could take with. regard to the complaints, with a particular interest in a possible referral to another agency. At your April I St" meeting, follow lip Item No. 2 included a number of eleinclits, First came a brief report from Jim Lough, special counsel to the BOB, regarding BOB authority to refer the complaints to other agencies. Second, was a presentation by the City Attorney's Office on the conflicts of interest analyses we had performed with respect to Mr. Miesen. As you will recall, this included an extensive summary of our analysis and our conclusions that neither Government Code 1090 (prohibited financial interests in conflicts), nor Goverinnent Code 1099 (incompatible offices) applied to disqualify Mr. Miesen from holding office, We also indicated that we were continuing to analyze each decision coining before the City Council for conflicts, and that we were expecting to seek guidance from the FPPC in one or more instances,, particularly where the decision before Coiuncil involved a substantial increase in residential units, (and therefore customers for Republic Services). Finally, we indicated that we were working with City staff to develop a set ofprotocols for ongoing iuiteractions with Mr. Miesen in order to avoid undue influence and mitigate the possibility for ethics violations. [A copy of the power point that guided our presentation on these matters is attached at Attachment 1.1 After public input was taken, many Board members asked questions of Mr. Lough and of our office regarding what options the Board .might have to take fiirther action with respect to the HaWrosser complaints, the general subject matter thereof, or with respect to other matters that might be brought before them not otherwise within their purview. Specific questions were asked regarding the scope of the Board's "referral" authority, and the Board's authority to seek "a second opinion" on the City Attorney's conflict of interest advice. Ultimately the Board took no action regarding a referral or a second opinion. The Board did, however, approve our proposal to keep the Board apprised of how it was handling ongoing conflicts issues, including any interactions with the FPPC. Our office also proposed exploring with the Board possible enhancements and clarifications to the Ethics Code, and improvements to the complaints process. The Board proceeded to refer for consideration at its next meeting consideration of review of and improvements to the existing Ethics Complaint forill. SUMMARY OF AUTHORITY Like all City Boards and Commissions, the BOE is subject to the terms of the City Charter and the CVMC. Although still subject to the City Charter, the BOB was created via ordinance, Therefore, its authority derives from the CVMC. The CVMC Chapters applicable are 2.01 (Ethics Code), 2.25 (General Rules for Boards and Commissions) and 2.28 (Board of Ethics), Based on our review of the City Charter and the CVMC we advise that the Board does home the authority to refer a complaint over to another agency for eilforcerrrent at any stage in its proceedings, even if it has already acted to dismiss the complaint for failure to state a clann within the Board's jurisdiction. The details of this are discussed in Section 1 of this Memorandum, below. The Board does not, however, under the City Charter or the CVMC, have the authority to seek a "second opinion" with respect to legal advice given to the Board or the City by the City Attorney. This is discussedin greater detail in Section 2 of this Memorandum., below. 1. The Board of Ethics May Make a "Referral" to an Enforcement Agency for Their Consideration to Take Enforcement Action on the Referred Matter. CVMC Section 2,28.090(B) sets forth the BOE "referral" authority as follows; "The Board may refer the matter to a local, state, or federal enforcement agency that may have jurisdiction over the platter at any stage of the proceedings and may hold in abeyance Board action pending results of the referral. The Board of Ethics may, but is not required to, resume Board action on the matter if it has been provided notice of inaction by the agency to whom the complaint was referred, the expiration of any applicable statute of limitations, or inaction for more than one year by the agency to whom the complaint was referred, Local, state and federal enforcement agencies include, but are not limited to, the United States Attorney's Office, the California Attorney General's Office, the San Diego County District Attointey's Office, the San Diego County Grand Jury, and the Fair Political Practices Commission (FPPC). If the Board learns of misconduct during any stage of the proceedings, but the misconduct is not within the specific prohibitions set forth in this chapter, the Board of .Ethics may make a referral to the appropriate local, state, or federal enforcement agency that nnay have jurisdiction over the alleged misconduct." (A copy of Section 2.28.090(B) is attached as Attachment 1.) Within Section 2,28.090(B) there are two disthict bases to make "referrals" to other agencies. pursuant to the first sentence in Section 2.28.090(B), the BOE may make a referral to an enforcement agency on a matter where both the BOE and the other agency share jurisdiction. The section contemplates that the BOB would hold its action on a complaint in abeyance -until the other agency acts or no action is taken by the other agency over a prolonged period of time, In such case, the BOB would then resume its consideration of the con -plaint. The BOB may make a referral tinder this provision at any stage of the proceedings. Pursuant to the second sentence in Section 2.28.090(B), the BOB may make a referral to an enforcement agency on an allegation of "misconduct " where the BOB does not have jurisdiction .,e, a complaint which does not state a violation of the "Specified Prohibitions" under 2.01.030(C)(1)-(13). Thus, in the situation where the complaint does not state a violation of the "Specified Prohibitions," but otherwise makes allegations of "misconduct," a referral -nay be made to another agency which may have jurisdiction in the matter, Based on these provisions, with respect to the Hall/Prosser complaints, Mr. Lough has advised that the .Board may refer those complaints to the Attorney General for its consideration for enforcement of any violations of state law within the AG's piuview. Per Mr. Lough, however, this may not be necessary as Ms. Galvez has already filed a complaint with the AG's office on these same facts. If the Board still wanted to refer the matter, Mr. Lough advised that the Board should take care with its referral to make sure that its communication to the AG does not state or imply any cleterinination by the BOB that any "misconduct" had inn fact occurred. This is for two reasons. First, the Board has made no such determination. Second, because the Board has found the complaints to be outside the CVMC prescribed "Specific Prohibitions" the Board has no authority to make such a deterinination. 2. • The BOB has no Authority to Seek a Second.Oyinion on Advice Provided by the City Attorney on a Conflict of Interest Issue, or any Matter, Pursuant to the City Charter and the CVMC, the City Attorney is charged with providing legal advice to the City. Only the Ciiy Attorney, when he or she determines the City Attorzley's office has a conflict of interest, or the City Council, in very limited circumstances, can authorize the solicitation of legal advice from a third party. The BOB clearly has jurisdiction to consider and act on allegations that the City Attor'ney's conduct violated "Specified Prohibitions" in the City's ethics code, This jurisdiction could include a referral of any ethics complaint or allegation of "misconduct" to another government agency for "enforcement". But this is not the same thing as looking to another government agency for a "second" legal opinion for the City because a complainant or the Board itself does not agree witIt the City Attorney's opinion, or wants it confirmed. Nowhere in the Charter or the CVMC is the BOE given this authority, either expressly or implicitly, Accordingly, the BOB has no oversight authority over conflict of interest advice provided by the City Attorney to the City Council with respect to Mr, Miesen. Even if the Board had such authority, it does not appear that the AG's office would have the authority to respond. The Attorney General's Office, pursuant to Govermnent Code section 12519, only provides advice to specified entities, such as state legislators, the Governor, Lt. Governor, Secretary of State, Controller, Treasurer, State Lands Commission, Superintendent of Public Instruction, Insurance Commissioner, any state agency, and any county counsel, district attorney, or sheriff. The BOB is not an enumerated entity. Section 12519 sloes permit a City Attorney's Office to seek legal advice, but only in its role as a criminal prosecutor and then only on matters of criminal law. The "Attorney General's Guidelines for Issuing Opinions on Question o£Law" states, "Under section 12519, the Attorney General may give opinions only to the specified public officials, and not to private citizens or to public officials who are not listed in the statute." (A copy of the "Guidelines" are attached to this memorandum as Attaclulient 2.) Thus, the Attorney General's Office does not provide legal advice to entities Mice the Board of Ethics. -CONCLUSION In sum, the BOB may make a referral to an enforcement agency on an item the BOB has jurisdiction oil and hold BOE action in abeyance on a complaint it hasjurisdiction. over. If the BOE has no jurisdiction, the BOB may also make a referral to all appropriate enforcement agency. The BOE may not obtain a second opinion, regarding a matter in which the City Attorney's Office has opined. We will be available at your upcoming meeting to answer any questions youmay have regarding this Memorandum. In the interim, if any Board member has any questions, please don't hesitate to contact Simon Silva at (619) 691-5037. Questions regarding possible further Board action on the Hall/Prosser complaints specifically should be directed to James Lough at (760) 743-1201. cc: James Lough, Esq. ATTACHMENT 4j�5/2o7.5 CONFLICT'S REVIEW Glen Gobgins, City Attorney Sinton Silva, Deputy City Attorney Types of Conflicts a Government Code section 1090[Prohibited Mtandsl InterestIn Contracts] • Goverment Codesection1099[Incompatible offices] a PolificailteformAct [Prohibitedkinaneial interest in Governmental TUecision-GC 87100] a CommonlawDoch-ineAgainstConflictsof Interests p Code of Ethics-CVlvIC2,01 Types of Conflict a ImpactsOffice: � GC1(l90[S�Aohtbif8dklr�anetallnkerestinContrgCt] u GC 1099 (Tncompatibte Offices) m Impacts ability to vote on specific items: w PIiA * ComatonLativBtas I 4/15/2-015 BALANCING INTERESTS n ACTUAL CONFLICT p FWCiF-VBDCONFLICT/AMARMCROF IM7.'ROFRUM w IN OFFICE TO PARTICtPAT9—TO DO "CHH PUBLIMBUSINM WHO IS THE CLIENT is The City is our client m We examine issues to support the City ability to sexve the public and to ensure its actions are lawful Government Code section 1090 u It is a violation of GC 1090 fox a public official to have a "financial interest° in the "making" of a contract ta Such co&acts are vold n Timing of assumption of office is critical in determining if a GC 1090 violationhas occurred OA 4/15/2015 Government Code section 1090 p If contract pre -dates assumption ofWicethen no GC 1090 violation m Well established rule; e $eaedey v, Valdcx (1$67) 32 Cal. 269 Eldrlgev. Skrm Vlem L=1 Hosp. Dist (1990) 271 Cai,A,pp,84311, 921 p 85OpsCal.Atty.Gen176(2002) a "Ops,CalAtty.Genad(2001) o 73 Ops.CatAtty.GmJ91(1990) Government Code section 1090 p Going ferward, a New ContractModiOcatioe, Amendment, Renewal o"Remote Zntexese--GovernmentCodesection 1.091(b)(2) [employee of contractingporty) . AUo-,vs City to contract but Councilmeoib" h iesen may notpaMdpate or voteon thematter Government Code section 1090 conclusion . There ism CG 1090 violation because the Republic Services Franchise Agreement was approved and entered into prior to Councilmember Mleser(s assumption of office. CouncHme►nberMieseds positionwith Republic Services is a remote interest witlitn the meaning of GC 1091.(b)(2) [employee)'and the City would be able to contract withRepublic Services so long as CouncitmemberMiesen did notparticipate Government Code section 1099 o Government Code section x099 prohibits a person from simultaneously Balding "public offices" that are hicompa tible o The £irsthiquiryis whether there aretwo „public offices' ' n Coumeilntem�ex h a publfe office Repttblk Waste isnot a public/governmental entity. It fs a private corporation. p 'i'heposJttonof DJvJslon Manager is not a ptiWc office. Instead,Jtisemployntont. GC1099(c)tates' thatx099 dnesnot applyto employment. Government Code section 1099 Conclusion o There is no GC 1099 violation becausetthere are not two "public offices,,' a Republte Services is not a public/governmental entity It Is a private company, o The position of Division Manager Is employment as se forth In GC 1099 (0 and as such is not a "public office." Political Reform Act o Political Reform .1 ct (GIC 87100) proluthits a City Councilmembev from having a fhianclal interestina governmental decision p FPPC established a 4 -part test to determine if such a con£iict exists ■ Is itreasonabiy foreseeable that the declsionwlll have a material financial effect onspecified financial interests a Does not preclude holding office. Examined on a case by case (hw9actional) basis. 4/15/2.015 . ,4 4/15/2015 Political Reform Act Conclusion n The MA prohibits CoutethnemberMiesen from participatingirt governmental decision in which he has a financial interest o The'confiict requhw a transncttonalreview • Council axed City items will be examined to determine if it is reasonably foreseeable that the decisionmay materiallyy affect his financial. Interests (his income from lis employment) Common Law Doctrine Against Conflicts of interest n The Doctrine seeks to prohibit a division of loyalty n A coundImemberneedsto ask themselves, both subjectively and objectively, do they have a personal interest (bias) that will prevent them from adhering their loyalty to the City. a If there Is an actualconfllct they must rmuse themselves a However, mere appearadceisinsufficientto ww-raittrecusal (See e,g. People v. h mnna (2070) 47 Cal.4'h 993,1006, Ian. 4.) Common Law Doctrine Against Conflicts of Interest o Does:notpreeiudeholdingoffice. Vixanined on a case by case (transactionalbasis). CONCLUSION Similar to PRA and will require case by case review. Mustresuttinactual conflict for recusal. 5 Code of Ethics o GuidingpxInciples-p'rovldes a set of guidelines to consider witenniaking a decision. No sanctions ielatedto guiding principles because thexeis not always a cleat answer axtd masonablemirtds may differ on answer, particularly when actions done in good faitb, m Specific Prohibitions narrowly dram to comjily with 141' .Amendment -"Due Ptocese Vigilance is the Key m To ensure there are no conflicts vigilance is xt'quhed m C4 Attorney's Office Diligently working to m conflicts ■ DevolOping protocols for staff to ensure no conflict issues arise and potential forvlolations are uiinunized W;ltxeachouttoAG andPPPC asneededfor as3lstancs ' 4/15/2015 9 ATTACHMENT 2 STATt3 OV CATAVORNIA OFFICE OFTF-IC ATTORNEY CTBNBRAL KAMALA D. HARRIS Arrotih4Y GIiN)MA). ATTORNEY GENERAL'S GUIDELINES FOR ISSUING OPINIONS ON QUESTIONS OF LAW June 2014 The Attorney General's authority to issue .legal opinions is set out in Government. Code section 12519: "The Attorney General shall give his or her opinion in writing to any Member of the Legislature, the Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, State Lands Conunission, Superintendent of Public Instruction, Insurance Conunissioner, any state agency, and any county counsel, district attorney, or sheriff when requested, upon any question of law relating to their respective offices. "The Attorney General shall give his or her opinion in writing to a city prosecuting attorney when requested, upon any question of law relating to criminal matters." RE, CIPII{NTS Under section 12519, the Attorney General may give opinions only to the specified public officials, and not to private citizens or to public officials who are not listed m the statute. Constitational Officers. The Attorney General may provide as opinion to any state constitutional officer: the Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, State Lands Commissioner, Superintendent of Public Instruction, and Insurance Commissioner. 13001 S'r TUT • SUTH 1740 - SACRANICK o, CALIFORNIA 9.58 14 • Ptlatii; (916) 324-5437 H�M; Legislators, The Attorney General may provide an opinion to "any Member of the Legislature," This refers to the State Senate aiid the State Assembly, but not to local legislative bodies such as city councils or county boards of supervisors. Requests may be made by individual state legislators, but not by legislative committees or consultants. State Agencies. The Attorney General may provide an opinion to "any state agency." The Attorney General interprets this as permitliizg opinions to be provided to state -level departments, agencies, boards, and commissions, This does not include local agencies, even though the local agency has been organized under state statutes. A request by a state agency or department should be made by or on behalf of the head of the state agency or department, not by individual employees of the agency. A request by a state board or commission must be authorized by a majority vote of the board or commission, The California Supreme Court and Court of Appeal are state agencies authorized to request opinions. Requests should coin from the chief justice or a presiding justice of the court or, as is usually the case, be submitted by the Administrative Office of the Courts. County Counsel, District Attorneys, and Sheriffs. The Attorney General may issue an opinion to "any county counsel, district attorney, or sheriff." The request should be made by or on behalf of the elected or appointed district attorney, county counsel, or sheriff, not by individual deputies or employees. City Prosecuting Attorneys. The Attorney General may issue an opinion to "a city prosecuting attorney when requested, upon any question of law relating to crirhinal matters." Opinions may not be given to city attorneys who do not prosecute criminal cases, Whether or not a city attorney prosecutes criminal cases, an opinion may not be given to a city attorney on a question of civil lav'. QUESTIONS PRESENTED Government Code section 12519 states that opinions will be provided on "questions of law." Requests that require factual investigations or that would require the resolution of a factual dispute are declined, Requests for advice, or for policy determinations, are also declined. Section 12519 also states that opinions will be given to specified officers on questions "relating to their respective offices," Requests for opinions posed on behalf of others, or on questions unrelated to the office, are declined. 2 For •policy reasons, the Attorney General also declines to give opuilons on legal questions under special circumstances. The limitations include: Conflicts of Interest under the Political Reforms Act. The Attorney General normally recommends that questions concerning conflicts of interest arising under the Political Reform Act of 1974 (California Government Code §§ 81000-91015) be directed to the Pain Political Practices Commission, which administers the Act, A public official may rely on the Commission's opinion as a defense in enforcement actions regarding the requirements of the Political Reform Act. Local Laws, The Attorney General declines opinion xequests calling for interpretation of local charters, ordinances, resolutions, regulations, or rules, Responsibility for interpreting and enforcing local laws nests with local government lawyers. Pending Legislation. The Attorney General declines opinion requests regardhig the validity or interpretation of legislation prior to its enactment. Responsibility for providing opinions on pending bills rests with the Office of Legislative Counsel. Litigation. The Attorney General declines opinion requests involving legal issues that are pending in a judicial or adininistrative proceeding. Issuing an opinion on a question that is at issue in litigation nnight be perceived as an attempt to influence the litigation. When the Attorney General's Opinion Unit becomes aware that a question raised in an existing request has become the subject of litigation, the assignment to prepare the opinion is cancelled. Conflict of Interest. Occasionally, the Attorney General declines a request because it presents a conflict of interest with respect to other legal matters with which the Attorney General's Office may be involved. PROCESS Contents of Request. An opinion request should be submitted in writing, and signed by the public official or head of the agency authorized to make the request. The request should set out the question to be answered as clearly as possible, along with enough description of the background and context of tine question to allow a precise legal analysis to be prepared. Any request that is made by a department or officer that employs legal counsel must be accompanied by a legal analysis prepared by the department or officer's legal counsel. Requests from a sheriff must be accompanied by the legal analysis of the district attorney or county counsel. A Deputy Attorney General in the Opinion Unit may contact the requester for additional background information, or to discuss whether revisions to the question are desirable, Comments by Interested Persons. After a request for an opinion has been accepted, the matter will be assigned to a Deputy Attorney General in the Opinion Unit for research and drafting, During the preparation period, the Attorney General's Office welcomes any interested person or entity to submit its continents on the issues tinder consideration. The Attorney General's Opinion Unit makes substantial efforts to solicit comments from persons or entities who may have luiowledge of the issues, but we realize that we cannot expect to reach everyone, and we encourage all those with an interest to snake themselves and their views luiown to us. All comments submitted before a draft is prepared will be considered, but early comments are strongly preferred. Drafting and Internal Peview. Tire Deputy Attorney General assigned to the matter is primarily responsible for directing research into the question, and for drafting the opinion. After a draft opinion has been prepared, it is circulated internally within the Attorney General's Office for extensive review and revision, This process is crucial to ensuring the quality and value of a written opinion, and the process can be protracted., Due to many variables, it is often not possible to accurately predict when a particular opinion will be issued. Proposed analyses and conclusions of bending opinions are not discussed outside of the Attorney General's Office. Publication. Once the Attorney Gencral,has formally approved an opinion, it is provided first to the requester, and then to the public. Published opinions are available on the Attorney General's website, through online legal research services, and in law libraries, Putblie Information. All written requests for Attorney General's opinions, as well as all written views submitted on questions under consideration, are public documents and may be disclosed to third parties under the Public Records Act. 4 ATTACHMENT 4 `u _C" or. 1 declare under penalty of perjury that I am employed by the City of Chula Vista in the Office of the City Attorney and that t posted this document on the bulletin board at the City Nall according to Brown Act requirements. . 11-/ Notice is hereby given that the Board of Ethics of the City of Chula Vista has called and will convene a Special Meeting of the Board of Ethics on Tuesday, June 30, 2015, at 5:15 p.m. in Council Conference Room C101, located at 276 fourth Avenue, Building A, Chula Vista, California to consider the item(s) on this agenda. SPECIAL MEETING OF THE BOARD OI+' ETHICS OF THE CITY OF CHULA VISTA June 30, 2015 5.15 p.m. CALL TO ORDER Room C101- Building A 276 Fourth Avenue Chula Vista ROLL CALL: Commissioners: Toothman ; Vice -Chair, Jemison Esqucr ; Livingston ; Robles ; and Chair Schilling CITY STAFF: Silva ; Ponds___,- and Malveaux OUTSIDE COUNCIL: James Lough, Esq. PUBLIC COMMENTS Persons speaking during Public Comments may address the Board/Commission on any subject matter within the Board/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 staff Comments are limited to three minutes. ACTION ITEMS The Item(s) listed in this section of the agenda will be considered individually by the Board/Commission and are expected to elicit discussion and deliberation, .if you wishto 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 five minutes. 1. Discussion and Action regarding referral of BOB complaints 2.18 -ISA and 2-20-15A to other enforcement authority pursuant to Chula Vista Municipal Code section 2,28.090(B), including review of referral letter. 2. Report from limited term Ad Hoc Committee assigned to review and propose revisions to the BOB complaint form, OTHER WSW "1 8 1. STAFF COMMENTS 2. CHAIR'S COMMENTS 3. COMMISSIONERS7BOARD MEMBERS' COMMENTS ADJOURNMENT to the regular meeting on July 15, 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 hent on this agenda are available for public review in the Ofce of the City Attorney at 276 Fourth Avenue, Chula Vista, Building A, Chula Vista during normal business hours. lit compliance )villt the AMERICANS IWITHDISABILITIESACT The City of Chula Vista requests individuals who require special accommodations to access, attend, and/or 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 forty-eight hours in advance of the meeting. Page 2 (Board of Ethics Special Meeting June 30, 2015 June 30, 2015 Jodi Reinke, Chair California Fair Political Practices Commission 428 J Street, Ste. 620 Sacramento, CA 95814 Kamala D. Harris, Attorney General California Depaifiment of Justice 13001 Street Sacramento, CA 95814 Bonnie Dumaius, District Attorney Office of the District Attorney 330 W. Broadway, 13' Floor San Diego, CA 92101 Dear Ms. Reinke, Ms. Harris, and Ms. Dumanis: The purpose of this correspondence is to forward two complaints that were filed with the Chula Vista Board of Ethics ("CV BOE"). (Attachments "A" & "B".) The Chula Vista Board of Ethics hears complaints related to violations of "Specified Prohibitions" as set forth in Chula Vista Municipal Code ("CVMC") section 2.01.030(C). The CV BOE reviewed the complaints and dismissed thein because they failed to make a "prima facie" showing that any of the enumerated "Specified Prohibitions" were violated. While the complaints were dismissed by the Board of Ethics, the complaints made allegations that did not fall within any of the "Specified Prohibitions" as set forth in CVMC 2.01.030(C). The complaints made allegations involving Government Code Sections 1090, 1099, 8920, 87100 et. seq. and common law conflicts. Pursuant to CVMC section 2.28.090(B), the CV BOE may refer complaints in which they do not have jurisdiction to an appropriate enforcement agency for their review and consideration. Accordingly, the attached complaints are attached foi your review and consideration. The CV BOE makes no finding as to the merits of the complaints since they do not fall within its jurisdiction. Re: Chula Vista Board of Ethics LOUNSBERY FERGUSON ALTONA. & PEAK LLP June 26, 2015 Page 2 of 2 If you have an uestions, please contact Special Counsel James P. Lough a Yours truly, Anthony Jemison, Vice Chair Chula Vista Board of Ethics JPL:kid Attachments June 26, 2015 Mr. Russ Halt "ELM' `I -IW RE: Complaint No. 1-18-15A Dear Mr. Hall: This letter is to inforin you that on March 16, 2015, at the regularly scheduled Board of Ethics (`BOE") meeting, the BOE conducted. a "Prima Facie" review of the above entitled complaint pursuant to Chula Vista Municipal Code section 2.28.110. * After a review of the complaint, the BOE has dismissed, the complaint pursuant to Chula Vista Municipal Code section 2.28.110(A)(3) [Complaint failed to state a full set of facts showing violations of Specific Prohibitions set forth in 2.01.030(C)]. As such, the BOE does not have jurisdiction in the matter. The Board. of Ethics decision is final. Yours truly, Anthony Jemison, Vice Chair Chula Vista Board of Ethics June 26, 2015 Ms. Helen Prosser RE: Complaint No. 1-20-15A 'Dear Ms. Prosser: This letter is to inform you that on March 16, 2015, at the regularly scheduled Board of Ethics ("BOE") meeting, the BOE conducted a "Prima Facie" review of the above entitled complaint pursuant to Chula Vista Municipal Code section 2.28.110. After a review of the complaint, the BOE has dismissed the complaint pursuant to Chula Vista Municipal Code section 2.28.110(A)(3) [Complaint failed to state a full set of facts showing violations of Specific Prohibitions set forth in 2.01.030(C)]. As such, the BOE does not have jurisdiction in the matter. The Board of Ethics decision is final, Yours truly, Anthony Jemison, Vice Chair Chula Vista Board of Ethics Fr ATTACHMENT 5