Loading...
HomeMy WebLinkAbout2008-01-16 Board of Ethics Minutes - I MINUTES OF BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA January 16, 2008 Executive Conference Room 3:30 P.M. Chair German started by assigning time values to each of the items on the agenda Chair German allotted one minute to item 1 roll call, 15 minutes to item 2 discussion of complaint receipt protocol, 45 minutes to item 3 probable cause hearing on ECO2-2006, 45 minutes to item 4 probable cause hearing on EC01-2007, 10 minutes to item 5 initial review of new complaint ECO2-2007, and a total of 4 minutes to the remaining items 6 oral communications,.item 7 member comments and item 8 staff comments. 1. Roll Call MEMBERS PRESENT: Michael German, Felicia Starr, Norma Toothman, Harriet Acton, Todd Glanz and Chris Searles. ALSO PRESENT: Deputy City Attorney Joan Dawson, Joyce Malveaux, Legal Assistant, and Shawn Hagerty, Esq. of Best, Best and Krieger as outside counsel to the Board of Ethics. 2. Discussion of Complaint Receipt Protocol. Deputy Cit Attorney Joan Dawson advised the board needed to establish a protocol for receipt of complaints. Dawson referred the board to Board of Ethic's duties and procedure set forth in Chapter 2.28 of the Municipal Code. Dawson declared there was no specific protocol within the ordinance, but it was both she and Mr. Hagerty's recommendation a protocol be established for receipt of complaints. Dawson stated by way of email she notified Mr. German of one option or recommendation for the Board to consider. Dawson provided when a complaint was received it came to the City Attorney's Office as the City Attorney's Office staffed the secretary to the board, and the secretary was an employee of the City Attorney's Office. Dawson recommended the secretary logged the complaint in; notified the individual named in the complaint, which was a required component when someone was accused of unethical conduct; notified the chair o receipt of a new complaint; provided the chair with a copy of the complaint; and not mrke copies of the complaint for the rest of the board until the complaint was introduced at a board meeting. Dawson suggested it was her recommendation the complaint be initially introduced for purposes of determining jurisdiction to hear the complaint; whether the board wanted to proceed with a probable cause hearing; and then the board direct the secretary to do the proper noticing. 1 p I Dawson advised the second issued before the board was in terms of type of evidence when the board was actually holding a probable cause hearing and also when the board was taking the matter beyond the probable cause hearing in instances wherein the board determined there was probable cause. Dawson further advised probable cause was not defined within the Municipal Code, but the definition should be clearly articulated in some written rule, protocol or procedure, along with the type of evidence that would be introduced and accepted. Dawson acknowledged section 2.28.090 (a) of the Municipal Code stated in regards to complaints "To receive or initiate complaints of violations of the code of ethics. All complaints.shall be sworn under penalty of perjury and shall be in writing, containing full allegation of facts which would constitute a violation of the code." Dawson suggested the board do an initial facial review basically looking at whether the complaint was made under penalty of perjury, was in writing, and stated a full allegation of the facts. Dawson affirmed another thing not set forth in the section, and she would argue was that the submitting party had some firsthand knowledge of the allegations. Dawson stated that generally if you did an affidavit or declaration under penalty of perjury an aspect of it was that the individual making the complaint had some personal knowledge, and that would be something prudent for the board to consider. Dawson further stated there was a requirement all alleged violations must be submitted within 60 days of the occurrence, and that was something that needed to be reviewed. Dawson did not believe in terms of the types of evidence there was protocol in place for whether hearsay would be.admissible for purposes of the probable cause hearing, and whether that type of evidence would be allowed. Mr. Hagerty concurred with Dawson's recommendations, and added the board did have the authority under the ordinance to adopt rules and procedures for the conduct of the board's business. Mr. Hagerty advised he felt it was very important for the board to have established protocols everyone followed, and not reinvent the wheel every time. German stated the second aspect of Dawson's discussion regarding specific probable cause issues, standards of proof, and evidence was substantially dealt with by the board within the last year and one-half when the board revised the second portion of the ethics code. German acknowledged he believed this work was substantially behind the board, but the first portion came up in the context of that issue so that should be addressed1 Searles questioned the logic behind not notifying the entire board of the complaint and passing it on in a PDF format at the time the complaint came in. Searles declared the entire board had a part to play in deciding the merits of complaint. Searles additionally questioned why not prepare the entire body before a meeting. Dawson responded-that would be a protocol decision for the board to make. Dawson advised her decision was made from the fact there is confidentiality assured to the complaining party that is actually set forth in the ordinance. Searles queried if confidentia ly to the complaining party included the board. Dawson elaborated this would be a policy call, and the answer to Searles' question was no. Dawson elaborated 2 for purposes of looking purely at the board the cloak of confidentiality would be for the board to put the complaint within that cloak. German advised it was at his direction the most recent complaint was distributed to board members. Searles stated his feelings on having the complaint sent to all board members before hand was if the matter was agendized on the following meeting the board should be prepared to discuss the complaint. Searles also stated he was confused about the 60 days because it appeared Dawson's interpretation of the code in referring to 2.28.090( ), duties of the board was that the board had to review the complaint within 60 days of the most recent event. I , . German affirmed receipt meant constructive receipt, and when a complaint was delivered to,the clerk's office it was considered constructive receipt of the board. German made a motion to add another five minutes to the discussion of Item Number 2, Discussion of Complaint Receipt Protocol. German requested a motion from one of the members tO either adopt or not adopt the protocol suggested by the City Attorney, specifically,that the complaint be distributed to the Chair of the board only prior to the complaint being disclosed to other board members._ It was MSUC (Tooth man/Sea rles) for an additional five minutes to discuss complaint receipt protocol. Toothman stated it would not be beneficial to board members to not know what was going on with respect to complaints prior to a meeting. Glanz questioned what the motion on the floor was. German confirmed the motion was to not accept the recommendation of the City Attorney that a complaint be referred only to the chair of the board for review of legal sufficiency prior to being distributed to all members of the board. Toothman made a motion when a complaint was received by the City Attorney's Office, it should then be distributed to the entire board for their consideration as to whether or not it met legal sufficiency entirely separate from any subsequent decisions as to probable cause. It was MSUC (Toothman/Starr). Motion carried, none opposed. 3. Probable Cause Hearing on ECO2-2006. German advised it had been requested this item be put over to the next item. Item 3 was re-agendized following item 4. 3 1 German read into the record a letter dated January 16, 2008 from Mark Croshier: "City of Chula Vista Board of Ethics: I appear here again before you today to show that I.am still with coricern on a matter that I presented to the commission in year 2006. 1 have nothing further to add to the verbal and written statements I submitted back then.. It appeared that commission as a whole felt my point was worthy of review and commended me for bringing it to their attention. But left with impression what I presented on its face didn't meet the level needed to submit it to the Council for a disposition. I must admit that I was bothered that your body has use of independent counsel and'has subpoena power, the only City commission with such a privilege to my knowledge and that you didn't act upon the basic information that I had presented in search of the answers that you thought were needed. Then as now, I didn't have the availability or the resources to pursue the matter to meet the level you were requiring. I stand on the fact that it shouldn't have taken the mind of a retired police detective to bring before you what I thought to be in conflict with the ethics I expected of a public servant entrusted with the well being of the City that I love and have dedicated myself to. I further believe what I have brought-to you is not only unethical, but soon to be proven criminal. I pray that your disposition is resolved in fairness to the people of Chula Vista and the subject that I have brought to your attention. Further, there is nothing pe sonal in my actions, other than I find conflict in an elected official being involved in matters and people that can gain favor or profit. Respectfully, Mark Croshier." German asked for any other evidence or testimony to be offered on this agenda item. Attorney Marc Carlos, representative for Councilmember Steve Castaneda stated he represented Mr. Castaneda in the matter before the board, as well as the case being handled by the District Attorney in San Diego County. Mr. Carlos advised the board he had been in trial on another matter when he was informed of this hearing. Mr. Carlos stated this was his first opportunity to.review the matter. Mr. Carlos requested an opportunity to present the board with written pleadings, or a legal memorandum, which outlined Castaneda's position. Mr. Carlos provided, currently he was unable to provide the board with said legal memorandum as he was just brought in on this matter, along with his trial schedule. Mr. Carlos requested this matter be tabled for a brief period of time to allow him to respond. German questioned Mr. Carlos regarding the amount of time he would need. Mr. Carlos responded at least four weeks as he was presently in trial.. German alvised Mr. Carlos he understood his position and just like any court this board should resolve a matter on its merits and without any prejudice due to time. German then solicited thoughts from his fellow committee members on whether.or not Mr. Carlos' request should be granted. Glanz stated he was not comfortable with proceeding on this matter due to criminal. 4 I matters pending. Glanz felt it was inefficient, and had no problem with allowing the councilman to justly present whatever defense or response he had to the matter brought before the,board. Searles questioned how respondent's counsel, Mr. Carlos only heard about the matter today when the board had provided ample notice. Mr. Carlos advised he was under the impression his client was notified on January 11, 2008, last Friday. Mr. Carlos further advised Mr. Castaneda tried contacting him on Monday and Tuesday, but as he was in trial he had just received the message today. German clarified respondent was given adequate notice on last Friday, January 11, 2008, but due to Mr. Carlos' schedule he only received notice of the matter today. German requested any other discussion on the matter. Starr requested a guarantee when the board reconvenes at the next meeting Mr. Carlos would have some sort of report prepared and ready. Mr. Carlos�declared one of the issues expressed by one of the board members was waiting until the termination of Mr. Castaneda's criminal matter, and the trial on that matter started February 25, 2008. Starr stated the board agreed Mr. Castaneda's criminal matter was a_separate issue. German affirmed at the board's November 2007 meeting the board agreed the criminal matter was separate. Mr. Carlos stated the matter regarding Mr. Castaneda had been assigned to a trial court. Mr. Carlos advised motions would be heard in two weeks, and the actual trial started on February 25, 2008, and was expected to last about two weeks. Searles wanted clarification from Mr. Hagerty on the difference between the criminal trial and the matter before the board. Searles felt this clarification was pertinent to the suggestion the two matters could not run together. Mr. Hagerty advised if the board was going to get into that sort of detail the board first needed to deliberate on probable cause. Searles moved to continue ECO2-2006 to the following previously scheduled meeting of the Board of Ethics in order to give respondent's counsel adequate time to prepare a response. It was MSUC (Searles/Starr) ECO2-2006 be put over to the board's next regularly scheduled meeting of February 20, 2008, at 3:30 p.m. 4. Probable Cause Hearing on EC01-2007 Searles offered to read materials for the record in letter responses regarding EC01- 5 i 2007 from Mayor Cheryl Cox, Councilmember John McCann, Mr. Kevin O'Neill, and T.J. Zane, Executive Director of the Lincoln Club of San Diego County. i I German read into the record letter dated January 16, 2008 from Councilmember John McCann to the City of Chula Vista Board of Ethics: "Dear Board of Ethic members, I would like to submit the following response to the questions that were raised concerning the October 14, 2007 Lincoln Club of San Diego "Chula Vista Mixer & Fundraiser". I was only an invited guest and was.not a host. I did not participate in.the planning of the event and only attended the event. The Lincoln Club did not seek by approval to use the seal and I had no conversations with anyone from the Lincoln Club regarding the use of the City seal. In addition, I had no knowledge that the Lincoln Club was intending to use the City seal. My campaign for Assembly received no money from the fundraiser. I have no oversight or any responsibility for the actions of the Lincoln Club or any other third party. Yours in service, signed John McCann, Councilmember, City of Chula Vista." Searles read into the record letter dated January 13, 2007, from Mayor Cheryl Cox: "Dear Chairman German, Thank you for the opportunity to attend.the January 16, 2008 meeting of the Chula Vista Board of Ethics, during which an alleged ethics violation will . be discussed. Since I will be in attendance at Mayor Jerry Sanders' Southern CA Mayors Summit Re: Water Bonds on that date, my timely attendance at the Board of Ethics hearing at 3:30 p.m. is unlikely. I respectfully submit this response to Complaint No. EC 01-12007. In clarification, the complaint does not allege, as the Notice of Probable Cause Hearing delivered to my door on January 11, 2008, indicates that I was to host [italics mine] the Lincoln Club's "Chula Vista Mixer & Fundraiser." Rather, the complaint accurately indicates that I would attend this event. The event details (attached) state that the event was to be hosted by Lincoln Club Members Dan Hom, Jim Pieri, and Kevin O'Neill. Further, it indicates that I was to be a "special guest." When I was notified by Union-Tribune Reporter Tanya Marines on October 30, 2007, of the filing of the above complaint, I immediately contacted by telephone Lincoln Club Executive Director T.J. Zane (619/480-8718) and asked that the City of Chula Vista logo be removed from its posting on.the Lincoln Club's web-based invitation. Mr. Zane sent me an email (attached) in which he declared that he would be sure to "refrain from using the City's logo or official seal per you [Cox's] request." I contacted the office of our City Attorney to advise of my conversation with Mr. Zane and his responding email. The City Attorney fo lowed up with a letter to Mr. Zane. Mr. Zane apologized to the City Attorney (email attached) and gave his "assurance the logo will not be used again the future." He copied me on his apology, for which I thanked him in a response email. 1) 1 did not suggest or authorize the use of the City logo by the Lincoln club. 2) 1 had no role in the preparation of its invitation. or its web-posted information. 3) 1 had not seen the invitation until it was emailed to me by Mr. Zane through correspondence referenced above. 4) 1 requested the Lincoln Club to discontinue its use of the City Logo as soon as its use by the Club was brought to my attention. If you require further clarification, please let me know. Thank you for your service to the residents of Chula Vista. 6 j Respectfully, Cheryl Cox Mayor." German read into the record letter dated January 15, 2008, from M. Kevin O'Neill: "Dear Board of Ethics Board Members: First and foremost, I apologize for not being present to address this matter. I take my honor and standard of ethics very seriously. The use of the Chula Vista logo by the Lincoln Club was done without sinister or dishonest intentions. When I first heard of Mr. Watry's letter to the City Attorney (October 18, 2007) calling its use into question, I contacted the Executive Director of the Club regarding their policy on the use of logos. Mr. Zane responded that it was the Club's custom and practice t use the logo of the City in which they held a function. It was meant as a sign of respect and not to signify any official sanction of the event. My sense of the matter was that the logo was in the public domain as opposed to the Seal of the City. In any case, once an objection had been raised it was removed from the announcement. Mayor Cox and Councilmemer McCann were invitees and had absolutely nothing to do with the announcement or planning of the event. Additionally, I was one of the "hosts" for the event. We did not have any participation in the creation of the announcement as the Lincoln Club handled that. On balance, no harm was meant and no harm was done. This unfortunate complaint is a result of a small faction within our City who can tolerate no opinion or point of view that is different from their own. In a response to Peter's letter to the City Attorney, around the 30th of October, I pointed out the inconsistency of his position. The mean spirited web site CV Parody prominently displayed the City logo in the upper left hand quadrant while Peter and Susan Watry's photo and a link to their blog site took up the right hand quadrant (Exhibit A). Over the years I seem to recall the use of the City logo by many civic and service groups on their announcements with no backlash. Thank you for your efforts on behalf of our community. Should you have any questions, please do not hesitate to contact me. Cordially, M. Kevin O'Neill." German advised that Exhibit A is a screen print of CV Parody on �acation. Starr read i to the record letter dated January 15, 2008, from T.J. Zane, Executive Director of the Lincoln Club of San Diego County: "Dear Ethics Board Members: It was brought to Ty attention recently that you have agendized the above referenced complaint number for discussion at your next meeting, tomorrow, January 16, 2008. This unsolicited letter is submitted for your consideration with the hope it may provide some background as you discuss whether or not probable cause exists for your Board to take further action on the Complaint against any/all Respondents. In early October 2007, the Lincoln Club of San Diego County began to promote a membership mixer/fundraiser to be held in the City of Chula Vista on October 24, 2007. The promotionalemails sent to Lincoln Club members only and an "Events" page on the Club's webite included language identifying Chula Vista Mayor Cheryl Cox and Chula Vista Councilman John McCann as "special guests" of.the Club for this event, and Lincoln Club members Dan Hom, Jim Pied, and Kevin O'Neill as "hosts" of the event. The promotional emails and Events page on the Club's website also included a graphic representation of the City of Chula Vista logo/seal. Notwithstanding the fact the event was canceled but later rescheduled as a result of the wildfires that swept through the area during that timeframe, none of the individuals named above were involved, advised or had any!oversight whatsoever with the creation of the Club's promotional material for this event and the Club's emails were sent and the Events page on our website was posted without first informing any of the individuals above. Within one (1) hour of having been advised by the Chula Vista City Attorney's office of the Club's inappropriate use of the City's logo/seal, the logo was removed from the Club's website, an email was sent to the City Attorney with my assurance that the City's logo will no longer be used by the Club in the future and no further use of it has occurred. I regret an error on the part of Lincoln Club staff has resulted in an ethics investigation of Mayor Cox, Councilman McCann and Mr. O'Neill and any inconvenience said investigation have caused them. Use of the City's seal/logo by the Club was not done with malice and I hope, beyond the offended sensibilities of a few, no real harm was done. Respectfully submitted, J. Zane, Executive Director." German questioned whether there was any further evidence before the board in relationship to EC01-2007. There was none. German then questioned if there was any testimony to be offered with respect to the complaint. German advised the members they needed to determine how the board was going to handle the probable cause hearing. German declared it had been the prior practice of the board to deliberate and resolve those matters in closed session. Searles moved the matter be considered in open session to determine whether or not probable cause existed with respect to EC01-2007. It was MSUC (Searles/Starr). Searles stated the question was who specifically was under the jurisdiction of the board, and whether any of those people had an ethical violation: Searles advised the board had letters from the involved individuals, Kevin O'Neill, Councilmember John McCann, and Mayor Cheryl Cox, along with the Lincoln Club, but the board did not have any purview over the Lincoln Club. Searles provided what he and the board should be concerned with was whether anyone of the three individuals specifically allowed or gave their permission to the Lincoln Club to use the logo. Searles stated he did not see there was any evidence that occurred. Searles further stated it was hard for him to suggest there was probable cause to move forward. Searles said, it was not to say it was not misleading, and it could not have gave a reasonable person some thought about whether or not there was a direct relationship between the Lincoln Club and the City. Hagerty declared the complaint alleged there were three officials within the board's jurisdiction involved in a misuse of the City's seal. Hagerty further declared the board now asked the complainant, and subjects to provide any information. Mr. Hagerty advised they board had before them, the original complaint, and four letters, three from the subjects, and one from the Lincoln Club. Mr. Hagerty provided the question was whether the three subjects of the board's jurisdiction were involved in the use of the City's seal. It was Mr. Hagerty's opinion the board's charge was to look at the evidence before them, which was now four letters, and the original complaint and make a determination. Hagerty suggested the evidence before the board needed to be 8 interpreted,, but the pieces of evidence submitted today tended to show, based on the board's assessment there was no involvement. Hagerty advised the board to weigh the evidence in the letters versus the evidence in the complaint and determine based on the information.before the board. Hagerty reiterated questions about what the money was used for, in his opinion, was not framed by the complaint or the board's jurisdiction, and the probable cause before the board. Toothman questioned the issue surrounding Mayor Cox and Councilmember McCann being special guests, and not having received the invitation until the day of. Toothman declared this went beyond common sense, and if someone used her name as a special. guest it would be impossible to not know about the logo. Acton advised she had a problem because she knew everyone involved very well. Acton declared it was her belief in many times the Lincoln Club, along with other clubs and organizations had used the City's logo without asking for permission. Starr provided based on the facts presented and the evidence submitted she saw no clear-cut violation of any ethical code. German concurred and shared Starr's thoughts. German affirmed based on elementary jurisdictional principal the board only had jurisdiction over three people in this instance. German further affirmed based on evidence before the board, it did not meet the probable cause standard, and believed it should end at that point. Glanz declared he felt the standard was low and didn't feel the matter should be dismissed on the superficial outside without further delving into it. Glanz wanted the board to look further into what obviously was a complaint about the use of the logo that the members knew about. Glanz reiterated he was not saying the individuals knew about the use of the logo, but procedurally believed the board needed to hear more responses, and this matter shouldn't be thrown out on its face. It was MS UC (Acton/Toothman) the board find no probable cause to pursue EC01- 2007. 5. Initial Review of New Complaint ECO2-2007. German advised the board at this point they needed to make sure the complaint was good as to form, without focusing on the allegations, and all procedural requirements had been complied with. German affirmed the complaint was signed, and received by the City Attorney's Office. German further affirmed the allegations in the complaint were specific and exhibits supporting the allegations were attached to the complaint. German made no comment about the sufficiency of the evidence, and stated all appeared in order. Searles proclaimed respondent in this case met the criteria for being under the purview 9 of the board, and the question of ethical behavior regarding that individual documentation appeared to be in order. Searles suggested it would be good to move on and hear probable cause. It was MSUC (Searles/Starr) ECO2-2007 be agendized, and set for a probable cause hearing at the next regularly scheduled meeting of February 20, 2008. Additionally, it was MSUC (Searles/Starr) notice be provided to both plaintiff and respondent of the date and time of.the probable cause hearing. 6. Oral Communications German advised this was an opportunity for the general public to address the Board of Ethics on any subject matter, not an agenda item. A member of the public (name unknown) questioned if probable cause would be discussed text time, and whether complainant should not be identified, and whether this excluded t e public from attending the next board meeting. This member of the public further questioned if he wanted to attend the next meeting how would he know when to be there. German advised it was the complainant who waived their privilege against identification by appearing. Hagerty stated when a notice was provided to the complainant there would be a statement within the notice that the complainant was entitled to remain anonymous, however if done appeared and was heard at the hearing then one would obviously be waiving that right. Hagerty further stated that one could also appear and not be heard, but it was incumbent upon the board to maintain the confidentiality of the complainant until after probable cause was complete, unless the complainant came forward and either submitted something in writing or appeared and waived. 7. Member Comments Acton stated she had been hit in the head, and that's why she hadn't been at the meetings for some time-, but she was trying to catch up. Board me7bers welcomed Acton back. German thanked members for finishing ahead of schedule. German sgested board had not been moving on wrapping up the amendments to the Board of Ethics Code. German wanted board members to consider whether or not it would be a good idea to assign to individual members, portions of the code not yet dealt 10 with, in order for draft outlines of changes to be made and voted upon. German advised he was just planting the seed for this matter to be considered at a later time. Searles advised he was expecting his third child, and that he may miss a meeting or two after March. 8. Staff Comments None. j ADJOURNMENT AT 5:45 to the next regularly scheduled meeting at 3:30 p.m. Jo ce x Recording Secretary i 11