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HomeMy WebLinkAbout2006/02/22 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA February 22, 2006 Cedar Conference Room 3:30 P.M. The meeting was called to order by Chair Batcher at 3:30 p.m. 1. Roll Call1lntroduction of New Members MEMBERS PRESENT: Karen Batcher, Felicia Starr, Guy Chambers, Chris Searles. MEMBERS ABSENT: Michael German It was MSUC (Starr/Chambers) to excuse the absence of Member German. At this point, Chair Batcher introduced Lisa Foster, an attorney with the firm of McDougal, Love, Eckis, Smith, Boehmer & Foley. Inasmuch as some of the issues to be discussed at tonight's meeting involve members of the City Council, the Council prefers to have an outside attorney present to assist the Board rather than a member of the City Attorney's Office. In addition, Chair Batcher proposed to take Item 7 (Review of Complaints received 2/3/06 and 11/23/05) out of order in order that Councilman Castaneda could provide his comments at this time. Councilman Castaneda indicated he wished to discuss a memo (included in the Board packets) dated December 15, 2005 from the Mayor to the members of the City Council regarding Council appointments. The memo delineates the process that occurs in relation to those individuals that submitted applications for appointment, those that actually received interviews, and the ultimate appointment of the individual filling the vacancy. The memo sets out the process involved. Councilmember Castaneda said that his purpose in attending tonight's meeting was to inform the Board that he never saw a copy of this memorandum prior to the appointment hearing. In fact, he attended the interviews and the appointment hearing on December 17 and up to that time had not received the December 15 memo. His assistant, Linda Wagner, can attest to that. He explained that after the hearing he and his family went on a brief vacation, returning on December 22 and he came into the office on December 23. Although he was unsure when the memo was distributed, he had never seen it before leaving for vacation on the 17th Member Starr inquired as to how the memo was finally delivered, via hard copy or e- mail. Councilmember Castaneda responded that when he returned from vacation, he learned that a hard copy had been left on the desk of his assistant sometime subsequent to the 15th Member Chambers questioned whether the other Council members had received the memo earlier than he did. Councilmember Castaneda indicated he had not spoken to Board of Ethics I February 22, 2006 the other members regarding the delivery date of the memo, but he just wanted to make the record clear that he had not seen this memo prior to the interview process. Member Searles asked if the process described in the memo had in fact been followed, and Councilmember Castaneda replied that it had. He explained that the City Clerk had put together packets of the applications, and a cover memo asking the Councilmembers to submit to the Mayor the names of any individuals they would like to have interviewed. That memo did not set forth any process for the appointment. He explained that the week prior to the appointment, there was discussion among the Council relative to the process and it was his belief that the Council would follow the same procedures they had when appointing members to the Chula Vista Redevelopment Corporation. In that instance, an open hearing was conducted and all the applicants' names were put on the table for consideration and judged on their qualifications. In the case of the Council appointment, he submitted five names for consideration but later found out that only those applicants who received two referrals went on to the interview. Member Starr inquired if the Councilmembers were limited to a specific number of names they could submit, and Councilmember Castaneda indicated there was no limit. However, he wished to reiterate that at the time he submitted his choices, he did not know that two referrals were needed for those names to be included in the interview process. The Board thanked Councilmember Casteneda for providing his input on the appointment process. Chair Batcher returned the meeting to the regular agenda at this point. 2. Approval of the Minutes of January 25, 2006 Member Searles indicated that on Page 5 of the minutes, under Item 5, it states that he mentioned that he was currently a member of the Parks and Recreation Commission and, since the Board of Ethics has purview over that Commission, he felt he needed to resign as Commissioner. The minutes reflect that the Attornev felt that was not necessary, that he could just recuse himself on certain items. In actuality, it was Chair Batcher who had made this comment, not the Attorney, and he felt this should be clarified in the rninutes. It was MSUC (Chambers/Starr) to approve the minutes of January 25, 2006 with the referenced correction. 3. Resignation of Julius Bennett Chair Batcher announced that she had received a memo from Member Bennett announcing his resignation from the Board of Ethics due to his relocation to Los Angeles. She felt he had been an invaluable asset to the Board and was sorry to see him leave. It was MSUC (Starr/Searles) to accept with regret the resignation of Reverend Bennett. Board of Ethics 2 February 22, 2006 4. Review of Proposed Revisions/Amendments to Code of Ethics Chair Batcher indicated that inasmuch as Attorney Nora Smyth was not present at tonight's meeting and since the attorney is such an integral part of the Code revision process, this item should be tabled to the next regular meeting. The Board concurred. 5. Discussion re: Closed Session Procedure for Complaints. Chair Batcher explained that at the last regular meeting this item had come up in discussions about the proposed revisions to the Code of Ethics, with regard to taking complaints in Closed Session and whether to discuss complaints in Closed Session or open forum when determining probable cause. Therefore, action on this item should also be tabled. 6. Complaint Procedure Item 6 is tied to Item 5 inasmuch as no determination had been made regarding whether to review complaints in Open or Closed Sessions. At this point Chair Batcher felt it should be on a case-by-case basis until the revision of the Code of Ethics is completed. 7. Review of Complaints received 2/3/06 and 11/23/05 Chair Batcher informed the Board that with regard to the complaints referenced in this item, the Board has the option of whether to proceed in Closed Session or in an open forum. Member Chambers felt that due to the legal issues, the review should be conducted in Closed Session. Chair Batcher felt that in determination of probable cause, possible harm to the subject of the complaint could result if the hearing was open. She felt that if probable cause to proceed was determined, the subsequent hearing could be in open session but the initial cause hearing should be in Closed Session. Member Searles felt that while he firmly believes in transparency of government, he did not feel he had had enough time to review the complaint and discuss it in open session. Member Starr asked if it would be possible for the public to give input on these complaints without the Board discussing the complaints in public. Member Searles felt that was a good idea but that the public should understand that the complaint review process is a lengthy procedure and this is only the first step in a long process. Also, determining probable cause in Closed Session does not mean that the process will not be open to the public down the line if probable cause is found. He also felt that if a complaint was discussed in Closed Session and probable cause was not found, the public should then have access to the discussion process to see how the Board's determination was made. Board 0 f E thi cs 3 February 22, 2006 Chair Batcher indicated that in the case of the two complaints on today's agenda, they relate to a very public issue so she would not mind having the discussion process revealed to the public after the determination of probable cause is decided, but making this information public defeats the purpose of a Closed Session. Member Searles felt that by making a determination on a case-by-case basis, the perception might be that the Board was trying to hide something in some cases, and not in others. He felt it was better to weigh in on the side of reviewing complaints in Closed Session in order to protect individuals from unsubstantiated claims. Members Starr and Batcher agreed, and Member Chambers reiterated his belief that complaints should be discussed in Closed Session. Chair Batcher felt that Member Searles' earlier suggestion that the Board receive public comments and then meet in Closed Session seemed a good solution and she asked Attorney Foster if this could be accomplished. Attorney Foster said that the Board has the discretion do this. The only requirement in the Municipal Code is that until probable cause determination is made, the identity of the complaining party cannot be revealed. In San Diego there is a two step process - the probable cause hearing is always held in Closed Session. If probable cause is determined, the remainder of the proceedings are open to the public and the documents are no longer considered confidential. Under State law, through provisions of the Brown Act, Chula Vista could elect to proceed as San Diego does or can continue to operate as in the past where the probable cause hearings were held in open session. Attorney Foster felt that the Board should address this issue when they are making their revisions to the Code of Ethics and establish a firm procedure to be followed in reviewing future complaints. Chair Batcher felt that it would be appropriate to take input from the public, and consider that information when reviewing the complaint for probable cause, but if the complaint is not found to have merit, only the Board's findings should be released to the public, not the detailed discussions. Attorney Foster stated that Item 7 cannot be discussed in Closed Session at today's meeting because that was not the way it had been noticed on the agenda. If the Board decides to take up the item in Closed Session, it will need to be set for another date and noticed properly, citing the section of the Brown Act that and the language required to hold a Closed Session. She suggested that if the Board decided to consider the complaints in Closed Session at a future meeting, the members of the public who were in the audience with regard to this item could be allowed to provide their comments under Oral Communications today. Chair Batcher indicated it was her desire to schedule the probable cause hearing as a Closed Session, but to do so in a prompt manner, and to allow the public to comment on this issue or any other at today's meeting. Board of Ethics 4 February 22, 2006 It was moved by Chair Batcher to not discuss the two complaints today but that a Closed Session be scheduled within the next two weeks for the sole purpose of discussing these complaints. This motion was trailed to later in the meeting to allow members of the public to speak on Item 5. Patricia Aquilar - Ms. Aguilar felt that the Board's decision to consider the complaints on today's agenda in Closed Session is unfair and inappropriate inasmuch as the last complaint heard by the Board was held in open session and there has been no change to the ordinance in the intervening time between the complaints. Peter Watrv - Mr. Watry thought that if the determination that there was no probable cause was made in Closed Session without the public knowing the details of how that decision had been reached, the perception would be that the Board was hiding something. Steve Haskins - Mr. Haskins' concern was with the process. He felt it would be more appropriate if the Board did not treat any complaints differently than in the past until the Code is amended. Chair Batcher responded to this point by saying that the Board has been actively working on revising the procedural ordinance, in particular with regard to the complaint process. After much discussion, they were at the point of drafting language to be included in the Code of Ethics that probable cause hearings would be held in Closed Session. The existing Code is silent on this issue and the Board felt it was important to have a consistent policy formalized. She wished to emphasize that under the present ordinance the Board has the choice to consider the complaints in open or closed session and that this because prior complaints may have been considered in open session, this Board has the option to go either way. Mr. Haskins inquired if the public would have a chance to review the revisions to the Code of Ethics before Board approval. Chair Batcher explained that all the meetings regarding this issue had been open to the public. Patricia Aguilar stated that it was her belief that until the City Council takes action to approve the revisions to the Ethics Code, no changes should be made in the way complaints are handled. Sandv Duncan - Ms. Duncan was at the last meeting and, although the Board spoke at length regarding the complaint process, no formal action had been taken on this issue. She felt it was unfair that at today's meeting, the Board was considering discussing the complaints in Closed Session. Chair Batcher indicated that she had only received the complaint today; it required more time to review, and she felt she would be doing a disservice to both the complainant and the respondent by discussing it today. That was the consensus of the Board members. Member Searles clarified that at the meeting last month which Ms. Duncan attended, the discussion centered around whether or not to accept anonymous complaints and Board of Ethics 5 February 22, 2006 establishing a process for initiating a complaint, which is a separate issue from the decision to discuss the complaint in open meeting or Closed Session. Chair Batcher reiterated that the Board is not changing any rules at this point, inasmuch as the current Code does not address the issue of closed vs. open session. Prior practice was at the discretion of the sitting Board, but this Board is not bound by past decisions since the Code is silent on this issue. Don Sevreins (Union Tribune) wished to clarify if the Board was still on Item 5 or had moved to Item 7. He asked if the two complaints could be identified to distinguish them. Chair Batcher explained that Item 5 was still being discussed and that until there is a determination of probable cause, the names of the complainants and respondents must remain anonymous. Patrick Heald (Star News) said he understood that this was a quasi-judicial process and he agreed that there was a need for anonymity, but he wished to know the nature of the complaints even if the name and other identifying information was redacted. He felt this information should be provided and that the public has a right to that access. Attorney Foster explained that revealing the nature of the complaint could inadvertently reveal enough information to identify either the complainant or the respondent. That is why San Diego's probable cause hearing is held in Closed Session. This is to avoid harm to the reputations of the persons involved in the complaint, and to avoid the process being used as a weapon, particularly during election campaigns. Steve Haskins said there is nothing in the existing Code that states the complaint cannot be released to the public, just the name of the complainant. It was his opinion the complaint was a public record and could be released to the media. Attorney Foster stated that if the Board determines that this matter will be considered in Closed Session, State law prevents the Board from releasing the complaints to the press. Member Chambers reminded Mr. Haskins that a motion was on the table to consider these complaints in Closed Session and, until action was taken on that motion, no information on these complaints could be provided. Mr. Heald asked if the complaint considered in November was a violation of State law because that was discussed in open session. Attorney Foster clarified that when that complaint was heard, there was no discussion of holding a Closed Session. She reiterated that the current Code is silent and the decision is at the discretion of the Board. If it is their desire to discuss the complaint in Closed Session, they have the option of using the provisions of State law and the Brown Act to keep the hearing closed. Mr. Severeins felt there was an inconsistency here. Chair Batcher asked him to explain what he felt constituted an inconsistency. He stated that it appeared the two unnamed Board of Ethics 6 February 22, 2006 anonymous cases on today's agenda were about to be handled differently from the November complaint. Chair Batcher reiterated that the Board has been actively involved in the process of changing the complaint procedure and it was her feeling that the Board was seriously leaning towards making the probable cause hearing in Closed Session. She said it had been fully discussed in the minutes of the past meetings and these minutes are available for public review. Member Chambers responded to Mr. Severeins that last month's meeting (January 21), was the first meeting he and Member Searles had attended as Board members. At that meeting, former Board of Ethics member Rudy Ramirez spoke to the Board regarding the work that was in the process of being done to revise the City's Ethics Ordinance, and there was detailed discussion of the probable cause hearing being held in Closed Session. This is not a new idea being presented today and much thought has gone into this. Member Searles clarified that he was not ready to discuss these complaints in either open or closed session today inasmuch as he had just received them and did not feel he could have an articulate discussion that was meaningful to the public. He did not think it would be fair to the complainant or the respondent to discuss the claims today without a more thoughtful overview. Ms. Duncan still felt that copies of the complaint should be released to the public and the press today. Chair Batcher indicated that decision would not be made until the vote regarding addressing the complaint in open versus closed session was decided. If the vote is to handle this in an open forum, copies will be made available to the public. However, if the vote is to schedule the complaint for a Closed Session at a future meeting, the complaint will remain non-public. Shannon McMahon, Union Tribune, clarified that she felt the members of the public were not asking that the complaints be discussed, but rather wanted to know the content of the complaints. She could understand why the Board was reluctant to discuss the complaints without a more thorough review, but she could not understand the Board's reluctance to reveal the subject matter of the complaints. She asked what State law allows this. Attorney Foster cited the section of the Brown Act 54956.9C. If the hearing is noticed for Closed Session, the law requires that this section specifically be cited in the agenda. Ms. McMahon asked if it was necessary to file under the Public Records Act to receive copies of the previous minutes. The Secretary Malveaux said she could release the minutes without a Public Records Act request. Member Chambers inquired as to the potential of releasing the documents at this point, since a determination had not been made to hear the complaints in Closed Session and therefore there was no need for confidentiality yet. Board of Ethics 7 February 22, 2006 Attorney Foster said that the documents are not a public record until the decision ;s made to hear the complaints in open session. Chair Batcher closed public comment on this issue and asked if the Board would like to take action on the trailed motion. The members indicated they wished to comment on this proposed action before voting. Member Searles stated that when this item was discussed at the last meeting, he would have voted for the hearings to be conducted in Closed Session but, since the item was not on the agenda for that meeting, no vote could be taken. Since hearing the testimony today, however, he has reconsidered his position. He believes this issue has the potential to be very divisive to the community and feels that any decisions by the Board should be considered via a transparent process; therefore, he felt he had no choice but to vote for these complaints to be heard in an open session. Member Starr indicated that she has sat on both sides of the table in similar situations and believes an open session is the forum under which these complaints should be considered. She felt that the Board should continue to review the Code and make revisions, but she did not feel comfortable handling these complaints in Closed Session at this time. Member Chambers felt that due diligence and maintaining the integrity of the complaints warrant handling them in Closed Session. He indicated he had been involved over the years in situations of a similar nature. He feels the public's input is very important and should be taken into consideration when the complaint is reviewed, but in Closed Session. Chair Batcher reiterated her strong belief in reviewing these types of complaints in Closed Session because of the potential harm to the respondent. She felt that getting information from the public was very useful, but still feels the determination of probable cause should be done in a closed meeting. It was moved by Chair Batcher, seconded by Member Chambers to give the public an opportunity to provide input on complaints before the Board considers them in Closed Session. If the Board votes that there is no probable cause to move forward, the complaint will remain confidential. If there is a determination of probable cause, the documents will be released to the public at that time. AYES: NOES: Members Chambers and Batcher Members Searles and Starr The motion failed to carry. Discussion ensued regarding the need for the public to have copies of the complaint, even if redacted. There is nothing to keep the complainant from revealing the information to the press. Board of Ethics 8 February 22, 2006 Member Searles felt that public input was vital but the public cannot provide meaningful comments without access to the information in the complaint. Chair Batcher mentioned that at in earlier meeting, there had been discussions about putting the onus on the complainant to provide facts supporting the complaint. Attorney Foster indicated that the person who is the subject of the complaint receives notice and has an opportunity to either be present or submit comments in writing, so the Board also has that information on hand in their review process. Member Chambers acknowledged the concerns of the members of the public but wanted them to understand what the Board had to do to maintain its integrity and not become a political tool. Attorney Foster pointed out that the probable cause determination is a very limited threshold decision to determine if there is enough information to warrant going further with the investigation. It is not the final decision and does not mean there is no opportunity to provide input. It is a two-step process. Chair Batcher asked if the Soard wished to table the motion until there was a full Soard or if any of the members would like to revise the motion. Her concern with tabling it until there is a full Board is that, even if there is a full complement of members, that does not guarantee that they will all be present at a meeting and this issue may not be dealt with for months. That is not fair to either the complainant or the respondent. Member Starr inquired as to why these complaints were being handled differently from the one brought forward in November. Chair Satcher responded that the current complaints were received while the Soard was in the process of reviewing the complaint section of the Ethics Ordinance and they were discussing whether to adopt the procedure used by the City of San Diego, i.e., probable cause hearings were decided in Closed Session. Chair Batcher once again asked if the Board would consider a revised motion. Member Searles asked if there was a way to describe the nature of the complaint without identifying the complainant or the respondent. Attorney Foster indicated there was nothing to preclude the Soard from providing information on the complaint, as long as the names were held confidential. She felt that the document could be made available with the name redacted and that the probable cause determination could still be made in Closed Session. Chair Batcher stated she had a problem with this because if the complaint was made public but discussion on probable cause was in Closed Session, only the complainant's accusations would be public. She felt the issue could not be bifurcated - all aspects had to be either open or closed. At this point, Chair Satcher indicated she had to make a correction to an earlier statement. The respondent had not been notified of today's meeting. Board of Ethics 9 February 22, 2006 Member Searles inquired as to whether the Board of Ethics had ever had a Closed Session of any nature. Secretary Malveaux responded that during the four years she has been at Board meetings, there has never been a Closed Session. Member Searles indicated that he did not see any justification for changing the process now. He felt the Board needed to go in the direction of precedent unless someone could articulate a reason not to. Member Chambers read a passage from Section 2.28.150 of the Municipal Code, part of which states, "Information immediately shall not be revealed about the identity of the complainant until and after it is determined that probable cause for such complaint exists." The Code further states, ''The officer shall be entitled to submit a statement to the Board of Ethics for consideration or may appear personally at such time as the issue of probable cause is to be discussed by the Board. If no probable cause is determined, the Board shall dismiss the matter summarily and notify the interested parties in writing. If probable cause is determined, the Board shall take further investigatory and procedural steps necessary to resolve the matter." Attorney Foster then stated that it was her understanding that since notification to the respondent had not already occurred, there was a procedural problem with going forward because that individual has the right to provide information to the Board before the probable cause hearing. Discussion ensued regarding the fact that the Board has not decided to discuss probable cause of the complaint today, so therefore this is a moot point. Member Starr felt that, although she was sensitive to the possible harm to the complainant and respondent, she felt the Board had an obligation to the community as a whole to be open. Chair Batcher wondered about the possibility of frivolous complaints being filed, and Member Searles and Starr felt that all complaints had to be treated the same. The members discussed how to describe the complaint without actually handing it over to the public. Attorney Foster referred to the policy of the City of San Diego, where a brief description of Closed Session items is printed on the agenda and the members of the public are given the opportunity to speak on these issues prior to the City Council going into Closed Session. Member Searles felt the Board was compelled to offer some description of the complaints to the public. He thought it was necessary to make a compromise and move in that direction. Member Searles moved to offer mutually agreed upon descriptions to the public in order to allow for public comments on the complaints before the Board today. Board of Ethics 10 February 22, 2006 He clarified that he was not ready for the Soard to discuss the complaints today, that his motion was only for the public to offer comments. Member Chambers inquired if this motion was only with regard to the complaints today, or for all complaints that come before the Soard. Member Searles clarified that this was the process he was proposing for all complaints until the Soard completes their review of the Code of Ethics and makes any revisions to the complaint process as part of that review. The Attorney asked to which agenda item the motion on the table referred, and Member Searles indicated it was Item 7. Discussion ensued about piggybacking an additional motion regarding Closed Session. Member Chambers moved, Chair Satcher seconded to offer a brief description of each complaint to the public, hear public testimony, and discuss the complaint in Closed Session. The vote on the motion was: AYES: NOES: Members Chambers and Satcher Members Starr and Searles The motion did not carry. Chair Satcher moved/Member Chambers seconded that the issue of holding the probable cause hearing in an open versus closed session be tabled until a fifth member is appointed and a majority can prevail. The vote on the motion was unanimously approved. Chair Satcher moved that a general description of the complaints be provided to the public today in order that they have the opportunity to offer comments. Member Starr felt that, in order to make sure the action was legal, Attorney Foster should develop the verbiage for this motion. Attorney Foster stressed that the discussion regarding the complaint descriptions has to be public since there is nothing agendized for a Closed Session. The difficulty in providing the descriptive language tonight is this will have to be done in open forum. Chair Satcher was asked by the Soard to propose general language describing the complaints. She indicated that the subject of the first complaint is in regard to the procedure and manner in which the City's newest Councilmember was appointed to the City Council to fill Councilmember Patty Davis' vacated seat. The second complaint (which was received anonymously in the form of a narrative) deals with a major irrigation project at Hilltop Park, alley blacktopping in the vicinity of "J" Street, and bodyguard services for an elected official). Chair Satcher indicated she was not even sure these were ethical issues. Board of Ethics 11 February 22, 2006 Attorney Foster referred to the section of the Code which requires that official complaints be signed under penalty of perjury, which requirement an anonymous complaint obviously does not meet. She also stated that she did not believe the Board had any prerogative to consider such a complaint. She felt that under the current provisions of the ethics ordinance, the complaint could not be accepted, although during the review process for revising the ordinance, language could be included to allow consideration of anonymous complaints. Member Searles felt that the anonymous complaint could be treated as an informational item, and an individual Board member could then initiate a complaint on his/her own based on an informational item if that was the desired course of action. The Board concurred with his assessment. Chair Batcher reviewed what had occurred so far on today's agenda. Item 4 was continued until Attorney Smyth could be present. Item 5 has been tabled until the Board has another member. She was unsure what Item 6 entailed but believed it to be part of the process involved in Item 5 so therefore Item 6 will be tabled to be considered when Item 5 comes back. Regarding Item 7, pursuant to the motion earlier in the meeting, the complaints will not be reviewed today but will be considered when another member is present to provide the opportunity for a majority vote on whether the probable cause hearings will be conducted in open or closed session. 7. Review of Complaints received 2/3/06 and 11/23/05 - Public Comment Chair Batcher reiterated that the Board would not be reviewing these two complaints tonight, but that members of the public were invited to provide comments at this time. Peter Watrv - Mr. Watry explained that he had been present on December 9 when the City Council met to discuss the procedure for selecting a replacement for Patty Davis. At that meeting, they set Wednesday, December 14, as the deadline for receipt of applications, and the following Friday, December 16, as the time to interview certain applicants and make a selection. Councilmember Rindone brought up the possibility of only interviewing applicants who had been nominated by two Councilmembers but, according to Mr. Watry, there was no concurrence on this suggestion. In fact, Mr. Watry felt that the Mayor was quite clear that everyone who was nominated by a Councilmember would be interviewed, even urging each Council member not to nominate more than 3 people. When the announcement was made that there were 19 applicants, but only three were being interviewed, Mr. Watry felt that at some time between December 9 and December 16, the method of choosing interviewees had changed. He then submitted a letter to the City Attorney to investigate a possible violation of the Brown Act because he felt that somehow the procedure was changed after the December 9 open meeting. In response to his letter, the City Attorney supplied him with a copy of the Mayor's December 15 memo to the City Council establishing the procedure whereby a nominee had to receive a referral from two Councilmembers in order to move forward to the interview portion of the process. It was his opinion that that decision had been made in private and was therefore a violation of the Brown Act. He also submitted a copy of the complaint to the District Attorney but has not had a response from that office yet. Board of Ethics 12 February 22, 2006 Mr. Watry distributed a list of the 19 applicants, from which 13 names were submitted to the Council, and only 3 of those 13 were interviewed. He referred to a sentence in the December 15 memo which states, "Pursuant to previous Council appointment procedures, . . .", According to Mr. Watry, the last time the Council made an appointment was ten years ago and neither Councilmember McCann nor Castaneda was aware of what the previous procedure had been. It was also his belief that the December 15 memo was actually submitted after the appointment was made. Member Searles referred to the list of applicants submitted by the Councilmembers and questioned if the only person whose name appeared on every list was Patty Chavez, and Mr. Watry confirmed this. Steve Haskins - Mr. Haskins indicated he thought Councilman Castaneda's comments regarding delivery of the December 15 memo were very interesting and he felt that perhaps before the probable cause hearing took place, the Board should speak to other members of the Council. It was also his contention that the memo constituted contact by Councilmembers regarding an issue that was contrary to what had been discussed in public, and that communication represented a violation of the Brown Act. Member Searles questioned the earlier comment by Mr. Watry that at the December 9 meeting, Councilmember Rindone brought up the process of only interviewing candidates that had two Council referrals. Mr. Watry affirmed that was true but reiterated there was no discussion from the rest of the Council and that the Mayor indicated that all applicants would be interviewed. Patricia Aquilar - Ms. Aguilar indicated that she was speaking as an individual citizen and not on behalf of Crossroads II. She spoke regarding the Board's action to postpone the probable cause hearing until the Board had another member. She referenced prior comments that there might not be a majority present at the next meeting or even the one after that. It was her contention that since the two earlier motions to consider the complaints in Closed Session had both failed, the Board should review them in open session. She then referred to the Municipal Code Section 2.28.010, which states, "All public officials should conduct themselves in a manner that will tend to preserve public confidence and respect for the government represented." She concurred with Mr. Watry's observation that at the December 9 Council meeting, it was clear that the intent was to interview any applicant that any Councilmember nominated, and the transcript of this meeting confirms that. The memo from the Mayor, which is dated December 15, says that the Council will interview only those applicants who were selected by two Council people. She felt this memo is contrary to what was discussed in public at the December 9 Council meeting. Councilmember Castaneda stated earlier than he not received the December 15 memo before leaving on vacation on December 17, which she felt was disturbing. It was her belief that this process violated the public trust, and undermines confidence in the government. She felt the selection process used for the appointment was unilaterally decided upon by the Mayor, and that the preponderance of letters to the press regarding this issue indicates a lack of public trust and, therefore, a violation of the City's Code of Ethics. Shannon McMahon - Ms. McMahon referred to an earlier comment by a Board member that regarding the confidentiality of the complaints, people usually knew what the issues Board of Ethics 13 February 22, 2006 involved were and articles came out in the newspapers so the community was usually aware of the issues. She felt this was not always true, e.g., on the second claim regarding Hilltop Park, J Street, etc., she still was unsure what the complaint referenced and felt it would be hard for members of the public to give input without having details. There being no further comments from the public, Chair Satcher returned to the agenda. 8. Oral Communications (for subiects not on the aqenda) None. 9. Member Comments Member Chambers indicated that he was pleased with the way the Board had operated tonight. He felt that although the members were divided on some issues, they respected each other's opinions and he looked forward to working together on revising the ordinance. Member Searles commented that he hoped that the Board would continue to meet often in the short-term, inasmuch he felt it was important to move forward on the complaints as quickly as possible. Member Batcher agreed and stated her desire to address this issue in a timely fashion even if it is inconvenient to have more frequent meetings. 10. Staff Comments Attorney Foster indicated that the Board could call special meetings if that was necessary to accomplish having a full Board present. The only problem she could foresee with that was being able to notice all interested parties. Secretary Malveaux responded that she had an "interest list" of community members to whom she e-mailed meeting notices. She asked if anyone present at tonight's meeting was not on that list and would like to be included. Member Searles asked if the Board minutes were put on the City's website. Secretary Malveaux replied that they are not currently but she could contact the City Clerk's Office to see if this could be accomplished. Attorney Foster reminded Member Searles that the minutes cannot be public until after they are approved by the Board and any corrections have been made. Member Starr inquired about the status of filling the two vacancies on the Board. Secretary Malveaux explained that the City Clerk's Office provides copies of the applications to the City Attorney's Office, and they forward them to the Presiding Judge of the South Bay Municipal Court. Then the applications are forwarded to the Mayor, who reviews them and selects a new Board member. Board of Ethics 14 February 22, 2006 Attorney Foster asked if the process was open right now. Secretary Malveaux replied it is and asked members if they knew of anyone who might be interested in serving on the Board. Chair Batcher indicated her desire to set a date for a special meeting of the Board to revisit the issue of discussing complaints in open or closed session. That would be the only item on the agenda for the special meeting. She asked the Board members to review their calendars for a date within the next two weeks. After discussion, the consensus was to hold the special meeting on March 2 AT 4:00 p.m. Secretary Malveaux indicated that Attorney Smyth might not be available on that date, but Attorney Foster volunteered to cover for her if she could not be present. ADJOURNMENT AT 7:00 P.M. TO THE SPECIAL MEETING ON MARCH 2, 2006 AT 4:00 P.M., AND THE NEXT REGULAR MEETING OF MARCH 22 AT 3:30 P.M. L \iJ \t.-WOLL. M R ARBIE RECORDING SECRETARY . 11.7 \ Board of Ethics 15 February 22, 2006