HomeMy WebLinkAbout2008-02-20 Board of Ethics Minutes MINUTES OF
BOARD OF ETHICS MEETING
CITY OF CHULA VISTA, CALIFORNIA
February 20, 2008 Executive Conference Room 3:32 P.M.
Chair German called the meeting to order. German allotted the following time
suggestions: Item number 2, fifteen (15) minutes, Item 3, forty-five (45) minutes, Item 4,
forty-five (45) minutes, Items 5, 6, and 7 a total of 15 minutes for all.
1. Roll Cal
MEMBERS PRESENT: Michael German, Felicia Starr, Norma Toothman, Harriet
Acton, and Chris Searles.
Member Glanz arrived late, and apologized for being tardy due to a delay on the 805.
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 E hics.
2. Report om the City Attorney on Proposed Procedure to Follow in Receiving
Complaintsi and Setting Probable Cause Hearings.
Deputy City Attorney Joan Dawson handed out a flow chart for the board's
consideration. Dawson stated that the board needs the establishment of a procedure
regarding complaints. Dawson affirmed that the Board to Board of Ethics ordinance
actually sets forth that the City Attorney's Office is the recipient of complaints to the
Board of Ethics that are filed by the public. Dawson presented a proposal regarding
complaints, and advised that the complaints came in to the City Attorney's Office, and
advised that Joyce Malveaux is the secretary to the board. Dawson advised that
Secretary Malveaux would receive the complaint, log it in, give it an identification
number, and then provide a redacted copy removing the name and identifying
information of the complainant to the subject officer as notification that a complaint had
been filed. Dawson further advised that simultaneously or at the same time, likely by
way of email a scanned copy of the redacted copy of the complaint would be provided
to the Board of Ethics. Dawson stated that pursuant to Municipal Code section
2.28.090 there needed to be an initial review of all complaints to determine whether first .
of all there is jurisdiction for the subject of the complaint, and secondly in reviewing the
face of the complaint if it was in writing, under penalty of perjury, filed within 60 days of
the date of the alleged incident, and if it has not whether there would be good cause or
a reason that is shown for the delay in filing. Dawson termed this the facial review that
needed to take place under the ordinance. Dawson advised after the board made this
determination the board would then decide how to next proceed be it rejecting the
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complaint on facial grounds, lack of jurisdiction, not sworn under penalty of perjury, not
in writing, or not good cause shown for a delay of over 60 days. Dawson further
advised if the board found that there was sufficient grounds to move forward on the
complaint tl�e board would set the matter for a probable cause hearing on the next
agenda, and would order, through the Attorney's Office the noticing of the parties to
take place, at which point the matter would be set for the probable cause hearing.
Dawson provided the board with a proposed procedure to follow in which she would
seek some clarification for the board to put this procedure in place.
German noted that Dawson's first step of disseminating the information consisted of
sending.a redacted copy to all board members, and not just the chair.
Dawson concurred with German, and advised the information that would be redacted
would be identifying information, name, address, and contact information of the
complaining party.
German questioned if this information was just to remain confidential until probable
cause was-determined.
Dawson concurred and also stated this would also apply if there had been a waiver as
Mr. Hagerty had opined related to if the complaining party appeared in open session for
purposes of the probable cause hearing and presented a statement or additional facts
or evidence that would be deemed a waiver of the confidentiality provision.
German advised the board that this procedure only involved the initial step in getting the
complaint disseminated and to the board for the initial review up to the probable cause
hearing.
Searles felt the initial step made good sense, but questioned the timing of the meeting.
Searles thought the Charter still allowed for meetings to be called at the chair's behest.
Dawson.cocurred with Searles, and stated this process would not impact the Chair's
ability to call meetings. Dawson stated the matter would be placed on the agenda as
directed by the chair acting as the voice for the board. Dawson further stated that the
logical timeframe would be the next scheduled meeting or if the board felt the matter
was critical or important to call a special meeting the direction of the chair would be
followed.
German questioned what happened in the event another member of the board rather
then the chlair felt that time was of the essence and wanted the matter brought forth at a
sooner point in time if there would be an Brown Act issues.
Dawson provided under the Brown Act proper noticing would have to be done,-and then
the issue would be availability, and that no substantive discussions could occur via
email. Dawson's expressed her only concern with sending complaints by way of email
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is it may prompt whether intended or not a discussion by way of email of the substance
of the matter , and that has to be avoided. Dawson stated if a board member wanted to
place the In atter on an earlier agenda that individual board would need to notify the
chair and provide reason it would be within discretion of the chair, so long as there is
not a commm unication,among the majority or quorum there should be no issue. Dawson
was concerned with emails going back and forth and ending up with a serial meeting
situation.
German's thought was to have a proposal to have a quicker meeting rather than the
regularly scheduled one as this issue may come in to play and raise a violation.
Dawson suggested the individual board member having the desire to see the matter
move forward sooner communicate only with the chair and set forth the reason and if
okay with the board Ieave it within the discretion of the chair to call a meeting or not.
Dawson reiterated that doing substantive work on email.is a violation of the Brown Act
as it would been seen as a serial or meeting, and advised that substantive discussions
regarding complaints could not occur over email.
Searles moved to approve the proposed procedure for complaints with flexibility of the
timing of the meetings as directed by the chair. It was MSUC (Searles/Starr). Motion'
passed.
German then questioned who the individual was recording the meeting, and asked for
identification.
Member of the public identified herself as Teresa Accero.
German questioned whom Ms. Accero represented.
Accero stated that she had a website called Chula Vista Issues.
German wanted to confer briefly with staff counsel.
Dawson ad�ised that Accero was allowed to be in the meeting and videotape the
meeting, however if the board went into closed session for the purpose of deliberation
Ms. Acerro would not be permitted to be there.
German requested that Accero identify herself in the future so as not to catch anyone by
surprise so that they are aware of what is going on.
3. Probable Cause Hearing on ECO2-2006.
German prepared an outline of procedure to streamline and put into order the procedure
for considering complaints. German advised the first procedure was the identification of
the complaint, the taking of the complainant's evidence for purposes of moving this
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along the parties would be referred to as the complainant and the respondent. Exhibit A
to be marked as a redacted copy, which German redacted of complaint ECO2-2006,
dated and filed June 5, 2006. German further advised the complaint was in writing,
signed and sworn under penalty perjury related to allegedviolations occurring within 60
days of when it should have been discovered with the exercise of due diligence as
confirmed by its reference to a May 26, 2006 Star News article. German advised the
complaint therefore complied with the requirements of Chula Vista Municipal Code
2.28.090(a) as the board previously found at its June 14, 2006 meeting as reflected in
the minutes of that meeting approved at the July 14, 2006 meeting. German stated that
as there was no record that the complainant and respondent were given notice of the
June 14, 2006 hearing at which probable cause to proceed further with the complaint
was also found, the board re-noticed both complainant and respondent on January 11,
2008, of its intention to conduct a probable cause hearing as set,forth in Municipal Code
section 2.28.150 (a). German provided Exhibit B for marking purposes was a redacted
copy of the January 16, 2008 letter from the complainant to the Chula Vista Board of
Ethics. German then asked if the complainant was present would he or she like to
present any additional document or evidence at this time. German advised the
complainant before responding in.asking that question he reminded the individual that
they were entitled to maintain their confidentiality until the board had found probable
cause to proceed further, but the presentation of additional evidence in written or oral
form couldaive that confidentiality. German questioned if the complainant was
present andrwhether complainant wished to present any additional documentary
evidence at that time.
Mark Croshier identified himself and advised that he would stand on what was
submitted. .
German provided that the board had two pieces of documentary evidence in relation to
this complaint. German then questioned if anyone else was present who wished to
introduce o offer any documentary evidence in connection with the complaint.
Steve Castaneda identified himself and advised the board had in their possession a
letter from his attorney, Marc Carlos related to this matter.
German concurred with Castaneda, and advised he would take respondent's evidence
at a later time . German then asked if complainant wished to offer any oral evidence at
this time.
Mr. Croshier stated it appeared the City of Chula Vista was serious about what has
happened to the politicians from what he had been reading related to a candidate. -
Croshier stated that his reason for bringing this to the board's attention was he is also
serious about this. Croshier advised there was nothing personal between him and
Castaneda,I but when he saw as a retired police officer there was too much similarity in
what he was reading and what was occurring with Duke Cunningham, and that was his
cause for coming forward. Croshier stated whatever the board's decision, it was on
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their conscious.
German thanked Mr. Croshier, and went on to respondent's evidence. German affirmed
the respondent was present, and wished to offer documentary evidence at that time,
and marked letter dated February 19, 2008 from Marc X. Carlos, as Exhibit 1.
German questioned if respondent had any other additional written evidence.
Castaneda responded no.
German questioned if anyone else was present that wanted to offer documentary
evidence on the respondent's behalf.
German then asked if the respondent or his representative wished to offer any oral
evidence at this time.
Castaneda again replied no thanks.
German then asked if there was anyone else present who wished to offer any oral"
evidence on the respondents behalf.
German then questioned if the respondent-or his representative wished to make a
statement pursuant to his right under Chula Vista Municipal Code 2.28.150(a).
Castaneda replied not at this point, but had questions if the board proceeded further.
German then requested closing statements from either side. German then questioned if
the complainant wished to make a closing statement. Mr. Croshier advised he would
stand. German then asked if respondent wished to make a closing statement and
advised that this would be the final opportunity to address the board whether in terms of
presentation of evidence or making a statement prior to the board considering the
evidence and statements which had been brought forth for purposes of determining.
probable cause.- Castaneda replied no.. .
German then brought the matter to the board for consideration and asked if there was a
motion to onsider the matter in closed session pursuant to Government Code
54956.9(c). -
Mr. Hagen requested to be heard on this aspect, and recommended and strongly
suggested the board hear this matter in closed session.
Searles co mented in documentation the board received there is additional
commenta`y advice from the respondent's lawyer and felt that closed session would be
appropriate.
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Searles made a motion to go into closed session for consideration of ECO2-2006. It
was MSUC (Searles/Starr).
German then asked for any discussion.
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Searles stated in the last paragraph of correspondence from Marc Carlos there was an
ambiguity and quoted "these issues will be presented to the board and Mr. Castaneda is
ready and willing to litigate these issues, if necessary, in appropriate legal venues."
Searles ad�ised it was not clear to him who would be the target of that litigation, and felt
this was vague and felt because there may be issues of litigation pending as a result of
the board hearing this matter he felt the board should go into closed session. Searles
felt the board might receive some risks in hearing the matter in open session, and as an
individual id not want to assume that risk.
Glanz questioned of Hagerty what the risk of not going into closed session was.
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Hagerty concurred with the comments contained in the letter, and what he would
characterise as a potential threat of litigation that would create some exposure to the
board. Hagerty stated he had already given the board the opinion that the board had a
right to go into closed session to deliberate on these issues regardless of that. Hagerty
felt in the legal nature of the claims that are submitted in Exhibit 1 and some of the
language reflected in Exhibit 1 felt it important for the board to deliberate in closed
session on the issue.
Acton also,felt the matter should be discussed in closed session.
Based on the motion that previously passed the board went into closed session on
ECO2-2006 with a vote of 5 to 1 to go into closed session with Glanz opposed.
German asked everyone except committee members and staff to please adjourn until
called back in.
Board reconvened from closed session. Reportable action: It was MSUC
(Searles/StIarr) to find probable cause to pursue ECO2-2006, and to postpone further
consideration of the matter for ninety (90) days or the announcement of the jury's
verdict in Councilmember Castaneda's pending trial.
4. Probable Cause Hearing on ECO2-2007
The Board of Ethics heard oral and written evidence from both Plaintiffs identified as
Frank and Susan Luzzaro and Respondent Richard D'Ascoli represented by W. Lee
Biddle, Esq.
It was MSUC (Starr/Acton) that ECO2-2007 be continued in closed session for
consideration of the matter to determine whether probable cause exists.
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The board reconvened from closed session.
Reportable action: It was MSUC (Starr/Acton) to dismiss ECO2-2007 on.the basis that
the board having considered the evidence and with regards to Municipal Code sections
2.28.050(b)(1) through (7), unethical conduct, did not find the existence of probable
cause to continue further. The motion passed 5 to 1 in favor of the motion with Glanz
opposed.
5. Oral Communications
Mr. D'Ascoli stated he could see.the Lazarro's concern regarding the structure of the
RAC. He also stated he had asked the City, and received no clarification on the actual
charge of.the members of RAC. Mr..D'Ascoli felt the charge of the members needed to
be spelled out more clearly. Mr. D'Ascoli further stated this has been a horrible
experience for him to be accused of something that's unethical, and advised that he
really worked hard to be open and frank in the public as possible. Mr. D'Ascoli again
reiterated that the City needed to give the members of the RAC more clear guidelines
about how to move forward.
Susan Luzzaro stated that being a member of the public she was disappointed that
there was no real discussion of the duties, and that the board did not include this in the
discussion at all. Ms. Luzzaro advised that these duties are the guidelines that we have
to live by.
Mr. Luzzaro commented that he felt the board_ should have done more, and that the
board received the packet one to two months ago, and for members to be fumbling
around to see whether or not the issues were relevant boggled him. Mr. Luzzaro
suggested that when the board received its next complaint to do a little more homework
so they don't have to watch the board fumbling around looking for things.
German add ised he felt that both he and a majority of members gave this matter lengthy
consideration. German further advised that he completed two outlines for each of the
two cases before the board the preparation was there, and spoke for majority of the
board.
Starr stated that when the board is going through documents the board is merely
referring back and forth to what is being spoken on.
Searles apologized for the flipping and felt that all board members had done quite a bit
of preparation, including reviewing documents that had never been presented by
anybody. .
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6. Member Comments
Chair German thanked members of the public for their interest in coming, making
presentations and for taping the board as well.
German additionally thanked fellow board members for their time and for making the
most involved meeting under his tenure as chair. German stated that board had a lot of
work ahead of them,. but they finished it tonight.
Searles announced his wife was due in two weeks and he would not be at the next
board meeting.
7. Staff Comments
Dawson advised that under 2.28.150 because the board reached determinations on the
two complaints before the board there was a mandatory noticing requirement that
needed to be directed to go ahead and do that.
German advised he will so direct and will be in communication with Dawson concerning
the form of the notice as before.
Dawson stated that perhaps the next meeting might be a good time to go into
discussion regarding evidentiary standards and approaches.
ADJOURNMENT AT 7:15 p.m. to the next regularly scheduled meeting at 3:30 p.m.
Joyce ' aux
Recording ecretary
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