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HomeMy WebLinkAboutcc min 1988/12/08 CIIY OF CHULA VISTA OFFICE OF THE CITY CLERK NOTICE OF JOINT COUNCIL/BOARD OF ETHICS MEETING NOTICE IS HEREBY GIVEN THAT THE CITY COUNCIL WILL HOLD A JOINT MEETING WITH THE BOARD OF ETHICS ON THURSDAY, DECEMBER 8, 1988 TO DISCUSS THE PROPOSED CODE OF ETHICS. The meeting will be held at 7:00 p.m. in the Council Conference Room, City Hall, 276 Fourth Avenue, Chula Vista, CA. 11/29/88 Ful~'az CMC/, C k "1 declare under penalty of perjury that I am employed by the City of Chu;a Vista in the O:;;ce of the City Clerk znd th?,t I pos;:ed :~a ' ,i";'c ':c"',' ~es ~u'l~in-: ,.'nd at ~t~ ~1 on 276 FOURTH AVENUE/CHULA VISTA, CALIFORNIA 92010/(619) 691-5041 MINUTES OF A JOINT CITY COUNCIL BOARD OF ETHICS MEETING Thursday, December 8, 1988 Council Conference Room 7:00 p.m. City Hall ROLL CALL COUNCILMEMBERS PRESENT: Mayor Cox, McCandliss, Nader, Malcolm, Moore BOARD OF ETHICS PRESENT: Donald Swanson, Harriet Acton, David Ferguson, Rudolfo David, Leo Kelley, Jerry McNutt (newly-appointed ~lember George Ronis was not present; it was noted he has not taken his Oath of Office) STAFF PRESENT: Deputy City Manager Thomson, City Attorney Harron Mayor Cox opened the meeting by stating it was called to discuss the proposed Code of Ethics. Chairman Swanson referred to a letter from Councilman Malcolm noting the concerns and changes he had in the proposed Code, It was concurred by the Board Members and Council that the proposed Code would apply strictly to the City Council (the elected officials), City Manager, City Attorney, City Clerk and the members of the Boards/Commission/Committees. Deputy City Manager Thomson stated that in the Quality of Work Life program one of the top priorities is to have the bargaining units adopt a Code of Ethics. It is hoped the bargaining units will sign an agreement this month which will be forwarded to the Council some time in January. Three proposed Codes were submitted for consideration at this meeting: Exhibit "A" the Code proposed by the Board of Ethics; Exhibit "B" is the same Code submitted by Councilman Moore in which he noted several recommended changes; Exhibit "C" is the one submitted by the City Attorney. Councilwoman McCandliss stated she would not want to consider Exhibit "C" and suggested that the Board Members and the Council focus on Exhibit "B" which proposed Code contained everything in Exhibit "A" with the crossed out words and changes as suggested by Councilman Moore. Minutes - 2 - December 8, 1988 Joint Council/Board of Ethics A general discussion was held on each section of the proposed Code. Following are the actions taken by the City Council: Section 2.28.010 - Establishment of Code of Ethics MS (McCandliss/Nader) to maintain the original wording of the Board of Ethics and amend the paragraph by deleting the words "and employees" /three places in the paragraph), substitute the word "should"; take out the word "public" leave in the word "official"; remove the word "uniformly". The motion failed by the following vote: AYES: McCandliss, Nader NO: Cox, Moore, Malcolm ABSENT: None The paragraph therefore, will read as follows: "The respected operation of democratic government emphasizes that public officials be independent, impartial and responsible to the people. The public judges its government by the way public officials conduct themselves in the post to which they are elected or appointed. All public officials should conduct themselves in a manner that will tend to preserve public confidence in and respect for the government represented. Such confidence and respect can best be promoted if every official, whether paid or unpaid, whether elected or appointed, will seek to carry out these goals." The Councilmembers concurred that wherever the word "and employees" was in the Code it should be deleted since a separate Code will be submitted for the employees. The rest of Section 2.28.010 stands. Section 2.28.020 Responsibilities of Public Office It was concurred by the Councilmembers that there needs to be a statement inserted defining who is specifically covered by the Code. MSUC (Nader/Cox) to title the section "Application of the Ordinance" and to list the followin~ officers to be covered: City Council, City Manager, City Attorney, City Clerk, members Boards, Commissions and Committees. Councilwoman McCandliss referred to the recommended crossed out wording "the highest" and the recommended verbiage by Councilman Moore to change it to "a high standard". She indicated she would prefer to see the words "t~"FTighest" left in the paragraph. A motion was made by Councilwoman McCandliss to reinstate the word "highest standards" and to reinstate the last sentence in this paragraph: "Their conduct in both their official and private affairs should be above reproach. Minutes - 3 December 8, 1988 Joint Council/Board of Ethics The motion died for lack of second. Section 2.28.030 Loyalty No changes proposed. Section 2.28.040 (1) Fair and Equal Treatment A general discussion was held concerning fundraisers, dinners, and luncheons to which the City Councilmembers are invited due to their official capacities. Also there are times when a Councilmember may help a citizen get some service from the City and this should not be deeme~ "unethical behavior." Mayor Cox indicated there is a Charter provision covering this. City Attorney Harron noted, as specified in the Charter, that Council is prohibited from interfering with the administration of the City. Councilman Moore suggested the words "as set forth by the Charter" be inserted. With the concurrence of the Council, Mayor Cox referred this paragraph to the City Attorney to come back with the proper verbiage. In answer to Councilman Nader's question, City Attorney Harron stated that he sent the proposed Code to ex-Councilmember Lauren Egdahl for his comments; however, none has been received to date. MS INader/Malcolm) that a section be added on non-discrimination of both private and public conduct of City officials. Discussion was held on the motion at which it was decided that the Code should be guidelines for the people covered and it should not be anything but that. Councilman Malcolm withdrew his second and the motion died for lack of second. Councilman Nader asked staff to review the old Code of Ethics policy as far as discriminatory conduct is concerned. Section 2.28.040 (2) Interest in Appointments Mayor Cox expressed his concern with this paragraph stating that he does not fully understand what it is referring to. He noted how the Council makes appointments to the B/C/C's and questioned whether this would be deemed an unethical practice. Chairman Swanson stated that the paragraph was put in primarily because of the appointment of Dr. Robert Penner to the Unified Port District. Minutes 4 December 8, 1988 Joint Council/Board of Ethics MSUC ICox/Nader) to delete paragraph number 2 - Interest in Appointments and to refer this policy to staff to include it in the Civil Service rules. Section 2.28.050 - Unethical Conduct (sub-section 2b): "Knowingly engaged in activities or divulge confidential information that while not illegal would bring discredit to the individual or the city government." A general discussion was held concerning the specific wording of this section. City Attorney Harron declared it was unconstitutional and should be deleted. MS/Malcolm/McCandliss) to delete paragraph 2b: In answer to the Councilman's questions, City Attorney Harron explained what could or could not be disclosed from Closed Sessions of the City Council and further discussed the provisions of the First Amendment rights. Councilman Nader suggested this paragraph be referred back for a narrower language - to refer to the personal gain of one person at the expense of the City. SUBSTITUTE MOTION MSUC (Nader/Malcolm) to refer this paragraph back to the City Attorney to modify the language. Section 2.28.050 - /sub-section 2c) "Solicited or accepted emoluments exceeding ten dollars ($10.00) in value from any individual or organization doing, planning or attempting to do business with the City." Chairman Swanson stated that at the suggestion of Councilman Malcolm to increase this amount, the Board has agreed to raise it from $10 dollars to $25. The members discussed the fact that the FPPC specifies that when a Councilmember exceeds $50 for a one calendar year as a gift, he/she must disclose that and questioned why the Board would want to go beyond that standard. Councilmembers noted that they are invited in their official capacity to many meals, function, fundraisers, etc. and it would then be difficult to accept one of these functions since most are over $25. Chairman Swanson suggested that the meals be deleted in the amount stated ($25). Mayor Cox noted that as an example, Council, among other City dignitaries, was invited to the Chula Vista Shopping Center opening at which time they each received a deck chair. He questioned whether this had to be reported since he was sure the cost of the deck chair may have exceeded $25. Minutes 5 December 8, 1988 Joint Council/Board of Ethics Chairman Swanson stated that all gifts to City officials should be given to the City and not to the individuals themselves. The deck chairs, even though they did have the Councilmen's names on them should have been given to an organization such as the Boys' Club. MS (Malcolm/Moore) to delete paragraph 2c. SUBSTITUTE MOTION MSUC (McCandliss/Nader) to refer this back to the Board to work on it and bring back something else. This is also referred to the City Attorney. Section 2.28.050 (sub-section 2d) "Made known false statements about members of the City Council or other City employees that tend to discredit, embarrass, or endanger the reputation of those persons. It was concurred that the words "or other City employees" be deleted from this paragraph. City Attorney stated that in order to make false statements you have to prove malice. Councilman Nader stated that if a person knowingly and maliciously makes false statements then that should be specified. Section 2.28.050 (sub-section 2f) "Ex-City officers who were compensated for services are barred for one year from directly representing any person, including themselves, with or without compensation, in any matter before those units of the City departments, boards, or commissions where they had direct responsibilities, functions, and influence during their public service." Councilman Nader suggested adding to the words "including themselves" the words "for compensation", deleting with or without." MSC (Cox/Moore) to refer paragraph f back to the Board of Ethics. The motion carried with Councilman Malcolm voting no. Section 2.28.050 (sub-section 2g) "Endorsed or recommended any commercial product or service in the name of the city or in the employee's official capacity within the city without prior approval of a City Council policy." MSUC (Nader/Malcolm) to include the words "for compensation" which will now read "Endorsed or recommended for compensation any commercial product..." Section 2.28.050 (sub-section 2h) "Failed to declare to the appropriate authority the nature and extent of any financial or personal interest in a city contract or other city related matter when participating in discussions of or giving an official opinion on said matter." Minutes 6 December 8, 1988 Joint Council/Board of Ethics City Attorney Harron stated that according to the Government Code this is illegal and it would constitute a felony. MSUC (Malcolm/Moore) to delete paragraph 2h. Section 2.28.060 Applicability of Code Councilman Malcolm asked whether a Councilmember would have the right to go to a minority member of the Board for an opinion without having his concern or problem publicized in the newspaper. He felt that Councilmembers should be able to get informal opinions from members of the Board. It was moved by Councilman Nader to direct staff to add language to this section to provide the Board of Ethics to create a standing sub-committee for the purpose of rendering advisory opinions. City Attorney Harron stated that this motion would violate the provisions of the City Charter. Councilman Nader explained that all he is asking for is to have a Councilmember get an opinion from one member of the Board which would not be binding on the entire Board. Councilman Moore noted that all requests for opinions going to the Board of Ethics must be put in writing. Chairman Swanson confirmed the statement. The City Attorney recommended this section should be deleted from the Code since it is preempted, especially the last sentence which reads, "This code shall be operative in all instances covered by its provisions except when superseded by an applicable statutory or Charter provision and statutory or Charter action is mandatory, or when the application of a statutory or Charter provision is discretionary, but determined to be more appropriate or desirable." MSUC (Cox/Moore) to delete this last sentence from this section. The motion carried with Councilman Nader absent. Section 2.28.070 - Creation of the Board of Ethics - No changes proposed. Section 2,28.080 Purpose The members of the Council and Board discussed this paragraph Councilman Malcolm explained his concern stating that "a person is innocent until proven guilty; however, this paragraph does not define that. He further stated his concern with split votes on the Board concerning their decisions and opinions. He suggested any decision coming from the Board should have an extraordinary vote and not a vote such as 4-3. Minutes - 7 - December 8, 1988 Joint Council/Board of Ethics MSUC (Malcolm/Moore) to direct the City Attorney to come back with that type of wording whereby it would take an extraordinary vote or five affirmative votes of the Board for rendering a decision. Section 2.28.100 - Powers of the Board - No changes. Section 2.28.110 - Organization The question was discussed concerning the newly appointed member of the Board and his not attending any of the meetings and not answering calls or letters sent to him; whether he is a bona fide member at the time he is appointed or when he takes his oath of office. This constitutes a problem to the Board since they have six members and he would be the seventh member on the Board for voting purposes. A motion was made by Councilman Nader to direct that the City Attorney be the ex-officio member of the Board of Ethics. The motion died for lack of second. Paragraph 3 - "The City Attorney or an appointed representative shall act as secretary to the Board. The secretary shall cause notice of the meetings of the Board to be kept and distributed. The secretary shall also give appropriate and required written notice of all meetings to all members and persons having business before the Board. The secretary shall keep a record of the attendance of Board members and shall notify the Board whenever any member is absent from regularly scheduled meetings three consecutive times without receiving permission of the Board, expressed in its official minutes." City Attorney Harron stated that this paragraph is not necessary since it is already in the state law. MSUC (Cox/Nader) to delete this paragraph. Section 2.28.120 - Meetings Paragraph 2 "A written notice of the meeting shall be sent to each Board member and to all persons having business before the Board by the secretary not less than seventy-two (72) hours before the date of the meeting, provided, however, that emergency meetings required to discuss urgent business matters or matters wherein time is of the essence may be called, as provided in Section 2.04.040 of the Chula Vista Municipal Code, upon twenty-four (24) hours notice." City Attorney Harron stated that this paragraph is also covered in the state code and should be deleted. MSUC (Cox/Moore) to delete paragraph 2. Minutes - 8 - December 8, 1988 Joint Council/Board of Ethics Councilman Nader stated that there should be at least a minimum number of meetings held each year by every B/C/C. MSUC (Nader/McCandliss) to delete the words "or in that individual's absence" in the first paragraph, which now reads "The Board of Ethics will hold meetings at the call of the chairman, the vice-chairman or a majority of the members of the Board and to require that they hold a minimum number of meetings a year, such as one annual meeting. Paragraph 3 - "The time, place and agenda of meeting shall be stated in the notice of meeting distributed by the secretary." Paragraph 4 - "A majority of members shall constitute a quorum for the transaction of business." City Attorney Harron stated that both these paragraphs should be deleted as they are covered by State law. MSUC (Nader/Cox) to delete paragraphs 3 and 4. Section 2.28.130 Order of Business MSUC ICox/Moore) to add Oral Communications to the order of business. Section 2.28.140 Parliamentary Procedure City Attorney Harron stated that the parliamentary procedures outlined in paragraphs l, 2 and 3 should be deleted. MS (Nader/Cox) to delete paragraph 1 which refers to adopting the Robert's Rules of Order as the basic parliamentary procedures. City Attorney Harron reiterated that paragraphs 1, 2 and 3 should be deleted. SUBSTITUTE MOTION MSC (Cox/Moore) to delete paragraphs 1, 2 and 3. Nader voted no. Section 2.2.8.150 Conduct of Hearing upon Complaint Councilman Nader moved that the last sentence in paragraph 1 should be deleted which states, "All other meetings of the Board shall be open to the public and the Board shall strictly adhere to the provision of the Ralph M. Brown Act." City Attorney Harron noted that all meetings of the B/C/C's should be held in public session. Councilman Nader withdrew his motion and asked that this paragraph come back with a rewording of the language indicating that the person involved could have either an open or a closed session. Minutes 9 December 8, 1988 Joint Council/Board of Ethics Attorney Harron reminded Councilman Nader that this provision is not needed since it is already provided for in the State Code. Councilman Nader withdrew his motion. MSUC {McCandliss/Moore) to delete paragraph 1. MSUC (Cox/Nader) to delete paragraph 2. MSUC IMoore/Malcolm) to delete paragraph 3. Councilwoman McCandliss asked Chairman Swanson to provide the Councilmembers with a summary of the Board's version of how they would be conducting their hearings. Councilman Nader asked that the City Attorney keep the Board of Ethics advised on all provisions of the Brown Act and its changes. City Attorney stated he is already doing that and will continue to do so, Paragraph 4 - As it refers to the appropriate investigation or hearing by the Board Councilman Malcolm questioned what would happen if there was an improper allegation a9ainst one of the Councilmembers. Councilman Nader questioned a political abuse of a Councilmember since most of these allegations come close to the time of the elections. What if the charges was unethical? City Attorney Harron referred to the opinion given by the Attorney General which is based on the U.S. Supreme law, noting that these statements were illegal. Councilman Nader asked for a copy of the Attorney General's opinion. He indicated that the Board should have the power to investigate whether or not an unethical complaint is being issued. Section 2.29,090 ~ Duties of the Board MSUC INader/Moore) to insert in the first paragraph the words "under penalty of perjury"; therefore, the paragraph will read, "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 .... " The motion carried with Councilwoman McCandliss out. Councilman Nader suggested that the Code include the limitations of what kind of items the Council can vote on without having a conflict of interest. Minutes lO - December 8, 1988 Joint Council/Board of Ethics Councilman Malcolm stated he would like to see the Chairman of the Board of Ethics authorized to call a meeting and would like to see a vote given by a majority of the members that prior to considering a complaint to have them vote on whether or not there is a complaint that serves the hearing and then to proceed. He questioned who determines if the complaint has merit. City Attorney Harron stated that any action would have to be voted on by a majority of the membership. In answer to member Acton's question as to whether they would be able to get an opinion from the City Attorney concerning the complaints, City Attorney Harron responded stating he acts only as secretary of the Board of Ethics and will not be giving them legal opinions concerning the complaints on either himself, the City Clerk or the City Council. If there is an allegation against any of these persons, he would request the Council to appoint another attorney to sit with the Board of Ethics on this complaint. Councilman Moore stated that the accused should get a written copy of the complaint at the same time as the Board of Ethics. Councilman Malcolm questioned some of the activities in City Hall and Public Services Building, such as Toys for Tots and whether this program would be deemed unethical. Chairman Swanson stated that the Board modified that section noting that they should be "City approved" programs. CODE OF ETHICS As an elected or appointed public official of the City of Chula Vista, California: 1. I will not use the city or its resources for private gain, political solicitation, or purposes other than official governmental business. 2. I will avoid conflicts of interest and the appearance of such conflicts. 3. I will never give special favor or grant privilege to anyone. 4. I will not divulge or use for personal benefit confidential information obtained in the course of my duties. 5. I will accept no favors or receive benefits for myself, family or friends. 6. I will report corruption, waste, and inefficiency wherever discovered. Minutes - ll December 8, 1988 Joint Council/Board of Ethics 7. I will provide a full day's work for a full day's pay. 8. I will be guided in all my activities by truth, fair dealings, and good judgment. 9. I will endeavor to help my associates reach personal and professional excellence. 10. I will recognize and promote the good performance of others. 11. I will promote the City of Chula Vista, this Code of Ethics, and be proud to have served as an elected or appointed public official. Councilman Moore expressed his concerns regarding condition number 7 and stated he would like to see this referred back to the Board. He also questioned condition number 6 and the word "inefficiency" declaring that there is inefficiency in every organization. There are average hours worked by each employee for average productivity and it is not the job of the City Council to report inefficiency "wherever they discover it." He also stated his concerns with condition ten, stating that it is not the Council's task to recognize and promote the good performance of others that is the City Manager's job. Councilman Malcolm agreed, stating that he would like to see these referred back to the Board of Ethics for better definitions. MSUC (Malcolm/Moore) to refer back to the Board of Ethics the following conditions for rewording: 3, 5, 6, 7, 9 and 10. MSUC (McCandliss/Malcolm) to accept in concept the proposed Code of Ethics with the exception of those items that have been referred back to the Board and to the City Attorney and which will be coming back. ADJOURNMENT AT 10:50 p.m. J lasz, City Clerk