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HomeMy WebLinkAbout2006/03/02 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA March 2. 2006 Cedar Conference Room 4:00 P.M. The meeting was called to order by Chair Batcher at 4:01 p.m. 1. Roll Call MEMBERS PRESENT: Karen Batcher, Felicia Starr, Guy Chambers, Chris Searles, Michael German MEMBERS ABSENT: None 2. Approval of the Minutes of February 22, 2006 It was MSUC (Batcher/Searles) to approve the minutes of February 22, 2006 as submitted. 3. Discussion re: Hearing Complaints in Open vs. Closed Session Chair Batcher announced that each member of the public wishing to speak on this item would have 3 minutes to concisely present their concerns to the Board. She explained that there was an informational sheet that was being handed out to the public, which was a sampling of four different cities and their Ethics Commissions' procedures for processing complaints. At this point, attorney Lisa Foster introduced herself and explained her role as outside counsel to the Board to advise them regarding the complaint against a Councilmember that was discussed at the last meeting. She is the one who compiled the information being handed out regarding other cities' procedures. She indicated that three of the cities included used closed session before probable cause is determined. The fourth, Oakland, conducts the entire process in open meetings. Member German mentioned that he and a Professor of Ethics at UCSD have been having e-mail exchanges regarding general questions about the procedures used in other jurisdictions to handle ethics complaints. The professor suggested that reviewing the Ethics Codes of Berkeley, Santa Monica, Davis, San Francisco and Oakland might be helpful to the Board so he was happy to see some of these cities included. At this time, Chair Batcher invited members of the public to offer comments regarding hearing probable cause determination of complaints in Open vs. Closed Session. Nick Aquilar - Mr. Aguilar indicated his support for holding these hearings in public unless there is a compelling reason not to, such as those cited in the Brown Act, e.g., Board of Ethics 1 March 2, 2006 personnel matters, pending litigation, etc. Another point he wished to make was that he believed that when the procedures adopted by subordinate groups of municipalities, i.e., Boards and Commissions, do not address an issue by remaining silent, it would be better to err on the side of openness. His interpretation would be that since the City Council has not given the Board direction to exclude the public, the intent would be to hold these hearings in public, not the opposite. He cited State law as being clear that unless the item is specifically covered by the Brown Act or specifically exempted from the Public Records Act, the public should have access to that information. Patricia Aquilar - Ms. Aguilar stated that she was speaking as an individual and not in her position as President of Crossroads II. She indicated that although she did not have an opinion on the appropriateness of holding discussions on ethics complaints in open or closed session, it was her belief that this decision should be made by the City Council, not the Board of Ethics. Past practice of the Board has been to hold discussions in open session and, unless the Council makes the determination that they be held in closed session, she believes it would be better to err on the side of full public disclosure as has been done in the past. Regarding the complaint before the Board now, she had seen a copy of a letter from the respondent indicating he welcomed having the complaint discussed in open session, so she felt the determination of open vs. closed session was moot for this complaint, but that the Board should continue to discuss the issue for possible changes to the ordinance regarding future complaints. Jackie Lancaster - Ms. Lancaster questioned the timeframe between the complaint being received by the City and by the Board of Ethics and wondered why it took three weeks for the Board to get it. The secretary explained that the Board only meets once a month and received the complaint as part of their agenda packets. They do not receive information outside of that process. Harriet Acton - Ms. Acton introduced herself as having been one of the original Ethics Board members. She gave a brief history of how that original board was created, explaining that the City Council wanted an independent commission selected by judges. She commented that she was present at this meeting to see how the Board has evolved, what are the current rules, and how it operates. She stated that when she was on the Board, they did consider complaints about public officials, and those meetings were held in public, which practice she believes should be continued. Members of the Board asked Ms. Acton when the Board of Ethics was originally chartered, but she was not sure. The attorney responded that the ordinance indicates it was originally established in 1967, but was amended in 1989. Shirlev Mever - Ms. Meyer spoke in favor of hearing the complaints in open session, although she suggested that the complaint procedures be streamlined so that that all complaints received by the City should be forwarded to members of the Board within two days of receipt by the City Clerk. She also felt that if at least two members of the Board found the complaint to have merit, the complaint should be reviewed in open session. Board of Ethics 2 March 2, 2006 Sandy Duncan - Ms. Duncan advocated continuing to review complaints in open meetings. She asked for clarification of the Board of Ethics' appointment process and the secretary explained that the Presiding Judge of the Superior Court reviews the applications and forwards them to the Mayor for selection. Ms. Duncan also advocated training for new members of the Board prior to them sitting on the commission. She voiced her belief that the City Attorney should be an elected rather than appointed position, as in the City of San Diego. In closing, she suggested that the Board bring the two pending complaints forward in a timely fashion, in open session. Jackie Lancaster - Ms. Lancaster wished to make an additional comment, that there should not be preferential treatment for the complaint against Mayor Padilla. The complaint regarding Council member Castaneda was held in open session and she felt this complaint should be treated the same. There being no further comments from the public, Chair Batcher thanked those who spoke for their input and opened the item for discussion by members of the Board. Member German asked for clarification, inasmuch as he had been absent from the last meeting, that the issue before the Board today is the decision on whether to hold determination of probable cause hearings on complaints in either open or closed sessions. Chair Batcher responded that that is the only item being discussed today and she explained that there were several motions made at the last meeting regarding a decision on this issue, but none received a majority vote. Member Chambers indicated that he is a member of the Deputy Sheriff's Association and the procedure they use for reviewing complaints is to discuss the merits of the case in executive (closed) session, but they do agendize the item with a brief description to allow other members to give input prior to the closed session. He also referred to the memo from Mayor Padilla agreeing to have the complaint heard in open session but was concerned that this might set a precedent for future complaints as well. He feels the process must be standardized and that is the job of the Board - to see that all complaints are treated the same. Attorney Foster interjected that in both San Diego and Los Angeles, probable cause determination is considered in closed session unless the subject of the complaint agrees to have it discussed in an open meeting. Member Searles felt that receiving a letter agreeing to an open session from a respondent who is a city official could be construed as being politically motivated. It would certainly be an unpopular move in the eyes of the public to request the hearing in closed session. Therefore, he did not feel the burden to make the decision for open vs. closed session should rest with the respondent. The other Board members concurred that this was an excellent point. Chair Batcher asked Attorney Foster if a precise definition of "probable cause" could be established, inasmuch as it is more vague than "beyond a reasonable doubt", and she Board of Ethics 3 March 2, 2006 wanted to feel confident that all Board members had the same interpretation. Attorney Foster agreed and read several definitions from the Slack's Law Dictionary for "reasonable cause". 1) reasonable cause, having more evidence for than against; or 2) reasonable grounds for belief in the existence of facts warranting the proceedings complained of; or 3) an apparent stated fact found to exist upon reasonable inquiry, that is, such inquiry as the given case renders convenient and proper, which would induce a reasonably intelligent and prudent man to believe in a criminal case that the accused person had committed the crime charged, or in a civil case that the cause of action existed. It was her sense that the first definition was the one that would apply in this instance. Member German felt that complaints presented should include factually based evidence before being considered by the Board for a determination of probable cause. Chair Satcher felt that a member of the community bringing forward a complaint did not necessarily have access to all the facts, but was basing the complaint on something they had heard or had a suspicion about. She thought if the complaint received was thorough and the information was presented in a logical manner, if members of the public were invited to give input, and the respondent was asked if he/she wished to provide any additional information, that would be enough for her to decide whether or not there was probable cause to move forward to a full investigation and request records from the City in order to make a final determination. She referred to the complaint which was considered by the Board last November and stated that that complaint was also presented with a great deal of back-up information, as is the case with this recent one. She felt that members of the public who feel that they truly have a complaint will spend the time to research and provide as much evidence as they can in order that their complaint will be taken seriously. Member Searles' concern was that not all members of the community have the resources to present such well-researched complaints and he did not want them to feel disenfranchised. He also felt he was getting mixed messages regarding the authority of the Board. On the one hand, there was discussion that any changes the Board makes to the ordinance will have to be approved by the City Council and, on the other hand, former member Acton said that the Board was established to be independent and autonomy is a very important component of the Board of Ethics. Attorney Foster said that there is a third alternative in dealing with this issue. The Board can be empowered by the City Council to create its own procedures, therefore not requiring Council approval. Discussion ensued regarding asking Council to change the ordinance to empower the Board to create its own operating procedures, as is the case with the City of Oakland. Board of Ethics 4 March 2, 2006 Chair Batcher brought the discussion back to the decision regarding open vs. closed session for reviewing probable cause determination. Member Starr asked if the decision was with regard to this particular complaint only or for future complaints as well. Chair Batcher stated she felt the community had made it clear they feel the complaint regarding Mayor Padilla should be discussed in open session, as was the previous complaint about Councilman Castaneda. Member Searles asked for clarification regarding any action taken at today's meeting to discuss probable cause determinations in closed session. His understanding is that any action taken in that direction today could not be applied to any complaints until the City Council approves the new language. Member Starr concurred. Chair Batcher asked Attorney Foster if there was a policy regarding this. Attorney Foster responded that for most purposes the Board cannot change procedures without the Council's approval. What complicates this issue, however, is that because the Code is silent on this issue, she believes that the provisions of the Brown Act can then come into play. Her suggestion was that there was really no point to going into closed session on the Padilla complaint because it already has been discussed in such detail in open session. Discussion ensued regarding the provisions of the Brown Act that enable the Board to consider items in closed session without specifically being referenced in the Code, e.g., pending litigation. The Attorney gave examples of instances in which the Brown Act could be invoked for holding a closed session, and reiterated that the recent complaint against Mayor Padilla had received so much publicity there was no reason to consider it in closed session. Closed sessions are to maintain confidentiality regarding the identity of the complainant and respondent, and the details of the complaint. In the case of the current complaint, all these details are already public. The members discussed whether if they took action tonight on closed vs. open session, and voted for closed session, would they have to waive that action for the Padilla complaint. Member Searles questioned if they could vote again on this issue since they had already considered a motion last week which failed. Chair Batcher indicated an issue could be revisited at any time and they were not precluded from voting on it again. Attorney Foster clarified for Member German that the confidentiality of the Padilla complaint had not been breached by the Board, but rather by members of the public, including the complainant, who made the details of the complaint public. It was MSUC (German/Chambers) that, for the purposes of probable cause determination only, Board hearings will be conducted in closed session. It was MSUC (German/Chambers) that, based on the statement submitted by Mayor Padilla that he had no objection to holding the probable cause determination in open session, that this hearing be conducted in open session. The Board clarified that this motion is in no way to be construed as precedent setting and regards this complaint only. Board of Ethics 5 March 2, 2006 The Board then continued on with the rest of the agenda items. The secretary indicated that the agenda was incorrectly numbered, and did not include any items for Nos. 4, 5, 6 and 7. 8. Oral Communications (for subjects not on the agenda) Nick Aquilar - Mr. Aguilar mentioned that the term "probable cause" generally applies to criminal cases and is a higher standard and may eliminate consideration of matters that are intended to be considered under the Ethics Code. Patricia Aquilar - Ms. Aguilar called the Board's attention to AB 1234, legislation which passed last year and took effect January 1, 2006, which requires ethics training for all members of legislative bodies, including City Councils. She felt that the Board might want to initiate discussion on this item at a future meeting and establish requirements for how that training should be conducted. Attorney Foster explained that this legislation sets out specific areas that must be addressed in the training and most cities she has worked with have adopted or are in the process of adopting guidelines to be included in the training. She thought that perhaps the Ethics Board could be involved in reviewing the guidelines. Ms. Aguilar indicated that to her knowledge the City of Chula Vista has not in an open meeting discussed what they were doing regarding meeting the requirements of AB 1234. Chair Batcher thanked all the members of the public for their interest and input. 9. Member Comments Chair Batcher expressed her appreciation to all the members of the Board for taking so much time to deal with the issue before them, and she was very pleased that they had accomplished consensus on it. Member Searles commented on the second complaint received at the last meeting, regarding Hilltop Park and other issues. He felt that that complaint should be referred to Public Works/Parks. Attorney Foster reminded the Board that that complaint had been received anonymously and, under the Board's procedures for accepting complaints, an unsigned complaint cannot be considered unless one of the Board members initiates an investigation. Member Searles inquired if there was a procedure for a Board member to initiate a complaint or to refer a complaint to a City department or another commission. Chair Batcher received several e-mails from the public to her office e-mail, and another member has received a letter at his home address. She was concerned by this because she felt all communication to the Board members should be through the City. Board of Ethics 6 March 2, 2006 Her advice to the Board was that if any of them received communications at work or at home, these should be forwarded to the Secretary to the Board, Joyce Malveaux, so that they could be distributed to the entire Board. She felt that the public should be aware that the Board acts collectively, not as individuals, and all communications should be addressed to the entire Board. Member Searles concurred that public communication with one member of the Board could be construed as an individual believing he/she had a special relationship with that Board member, and therefore the correspondent should be made aware that any communication to the Board needs to go to the entire Board. Attorney Foster suggested that if anyone member of the Board receives a private communication, they should respond to the sender by indicating that the communication has been forwarded to the secretary of the Board for distribution to all members. Chair Batcher also reported that she has been contacted by members of the press on occasion but it is her policy to not give out any information other than what has been provided at the public meeting. Member German inquired if the Board needed to be kept informed of members' involvement and participation in the activities of other civic organizations. Chair Batcher believed that personal involvement in community affairs is personal until there is a conflict and, at that point, the member has an obligation to present it to the Board. The Attorney concurred with Chair Batcher, with the proviso that the member should make the Board aware if there is a personal or financial involvement with an individual who is the subject of a complaint. At that point, they should probably recuse themselves. 10. Staff Comments Secretary Malveaux indicated for the record that she had handed out copies to the Board of an e-mail received from Susan Loftus and a letter from Peter Watry addressed to Member Searles. There being no further comments, the meeting was adjourned at 5:40 p.m. to the next regularly scheduled meeting of March 22 at 3:30 p.m. Board of Ethics 7 March 2, 2006