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HomeMy WebLinkAbout2006/03/22 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA March 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, Michael German ALSO PRESENT: Nora Smyth, Contract Attorney, and Lisa Foster, attorney with McDougal, Love, Eckis, Smith, Boehmer & Foley. 2. Approval of the Minutes of March 2, 2006 Member Chambers indicated that on Page 1, the third paragraph of Item 3 states that "Member Chambers mentioned he and a Professor at UCSD. .." This statement was actually made by Member German, not Member Chambers. Member Searles indicated that Chair Batcher's name was misspelled on Page 6, Item 9. It was MSUC (German/Searles) to approve the minutes of March 2, 2006 with the referenced corrections. 3. Review of Complaints Received February 3, 2006 and November 23, 2005 Chair Batcher felt that the unsigned complaint should be considered first. It was her opinion that this complaint did not involve any ethics violations but the Commission could refer the individual issues to the appropriate city departments. Member Searles indicated that he had met with the Engineering Department concerning the complaint regarding the alley (No.3). After looking at the situation he was satisfied that everything had been done per standard practice and he felt there was no need to consider this item any further. As far as the complaint regarding Hilltop Park (No.2), he will bring this issue forward to the Parks and Recreation Commission at their next meeting. The remaining item (No.1) was in regard to bodyguard service. It was Chair Batcher's feeling that this issue is in the vein of how the City spends city funds and that should be forwarded to the City Manager or Finance for review. She was informed that the City Attorney's Office is in the process of reviewing the bodyguard contract at this time, so referring this complaint may be moot now. It was MSUC (German/Chambers) to refer Items No. 1 and 2 to the City Manager's Office for follow-up by the appropriate department. Board of Ethics 1 March 22, 2006 It was MSUC (German/Starr) to dismiss the unsigned complaint inasmuch as there is no cause to move forward. Chair Batcher indicated that the next item for review is the complaint regarding the appointment of Patricia Chavez to the City Council. She indicated she felt the Board members should discuss this item initially before asking the public to submit comments. She indicated that, in her opinion, it was the Board's aim to determine whether any violation of Section 2.28.010 of the Municipal Code had occurred. That section states "all public officials should conduct themselves in a manner that will tend to preserve public confidence in and respect for the government represented." Member Searles agreed, but it was his opinion that in addition to determining if a violation of the cited Municipal Code section had occurred, it was also necessary to determine if a violation of the Brown Act had taken place. He felt that the Code was very vague regarding what is and what is not enforceable, and that these issues should be addressed when the Board reviews the ethics ordinance for suggested amendments. Attorney Foster agreed that the public finds the Code is very unclear on which sections are enforceable and which are advisory only. She pointed out that while Section 2.28.050 sets out a list of specific prohibitions, Section 2.28.040 says that "no official subject to the Code shall grant or make available to any person any consideration or advantage." This is arguably an enforcement issue but it is not listed under the prohibitions of Section 2.28.050. Board Member German agreed with Member Searles that the core issue to be decided was if a violation of the Brown Act had occurred. Member Starr questioned if the Board could look into seeing if there had been a violation of Section 2.28.040 of the Municipal Code, even if this section had not been cited in the complaint. Chair Batcher felt that lay people could not be expected to know all the provisions of the Ethics Code and that the Board could certainly investigate all possible violations even if they had not been referenced in the complaint. Member Chambers agreed, but felt the task today was really to deal with a possible Brown Act violation. Member German felt that now that the Board members had indicated their positions, the meeting should be opened up for public comment. Chair Batcher reminded the members of the public their comments would be limited to 3 minutes each. Sharon Flovd, 273 D Street, distributed a packet of facts she had compiled in response to the Watry complaint and the ethics investigation. These included a memo from the Mayor's secretary regarding distribution of the December 15 memo, a memo from the City Clerk asking the Councilmembers to review the applications and notify Natalie Flores or herself of the names of those they wished to interview, the names submitted by Council for interviews, Council minutes from December 6 and 16 and January 10 reflecting comments from Councilmember Castaneda regarding Patricia Chavez and the appointment process, and miscellaneous information regarding campaign contributions to Rudy Ramirez. Patricia Aquilar, 1048 Surrey Drive, Bonita, stated it was her opinion that when the Council discussed the appointment process at their December g meeting, it was their Board of Ethics 2 March 22, 2006 intent to interview 13 applicants. She felt the Mayor had unilaterally decided on December 15 to change that process and that constituted unethical behavior and a betrayal of the public trust. She referred to Councilmember Castaneda's former testimony that he had not received the memo on the 1Sth and felt the rest of the Council should be interviewed to determine when they received the memo. She stated it was her belief that there was enough probable cause to launch an investigation. She read from the transcript of the December 9 minutes regarding discussion between Councilman Rindone and Mayor Padilla about the appointment process. She further compared this process to that of selecting the CVRC positions, in which the "winnowing" of candidates took place in a public meeting, whereas she felt that the process for the appointment of Patricia Chavez was done in private. It was her belief that the Board should not be investigating this complaint as a violation of the Brown Act but rather as a violation of the Ethics Ordinance. Peter Watry, 81 Second Avenue, voiced his opinion that no ordinance could possibly foresee every possible future violation and he felt the Board should use their judgment to determine if there was unethical conduct. He didn't necessarily agree with Ms. Aguilar that the Mayor made a unilateral decision to change the process after the December 9 meeting; however, he felt that the decision to do so was definitely done behind closed doors. Steve Haskins, 4045 Bonita Road, expressed his concern that the Board was focusing on a possible violation of the Brown Act rather than investigating the allegations regarding the date the Mayor's memo was actually distributed. He felt that with computer technology it would be possible to determine when the memo was actually typed even if it could not prove when it was distributed. He felt enough testimony had been presented for probable cause to investigate this issue. Attorney Foster clarified that for a violation of the Brown Act to have occurred, at least three Councilpersons had to confer to take action outside the public hearing process. The theory that the Mayor unilaterally changed the process does not represent a violation of the Brown Act because one person acting alone does not meet the criteria for violating the Act. She felt it was relevant to make this point. Gerry Scott, member of Crossroads II, referred to Ms. Floyd's information on contributions made to the campaign of Rudy Ramirez and other allegations she presented. He disagreed with her "list of facts" and wished to voice his support for Mr. Watry. Sandv Duncan, 262 Second Avenue, wished to relinquish her time to Patricia Aguilar for additional comments. Patricia Aquilar wished to reiterate that the appointment process, whether accidentally or on purpose, resulted in an undermining of the public trust in the city government, as was evidenced by the numerous letters written by the public to the press, and the editorials that came out. There being no further public comments, the Board returned to discussion of Agenda Item 3. Board of Ethics 3 March 22, 2006 Member Starr indicated that she felt there were enough red flags for her to feel the complaint should be investigated further, i.e., there was more evidence to look into it than resolution to dismiss it. Chair Batcher reminded the members of the Board that today's meeting was just a probable cause hearing, not an investigation into the merits of the complaint to determine if there was a violation. Attorney Foster asked Member Starr if she was focusing on any particular sections of the Code, to which she responded that there were two areas, Section 2.28.050, Unethical Conduct, and Section 2.28.010, Establishment of Code of Ethics. Member Chambers asked her if she felt that the Mayor had violated these sections of the Code and, if so, based on what. Member Starr responded that as a member of the public, were she not a member of the Board, she would have had questions regarding the process for the appointment of Patricia Chavez and particularly about the dispersal of the memo. Member Searles felt that although the memo is problematic, the discussion at the December 9 meeting could have resulted in each of the Councilmembers present believing that they were to generate a list of names and come up with a limited number of interviewees rather than interviewing every qualified applicant. The transcript of the meeting indicates that they could have made that inference. The discussion of the CVRC appointment process may have caused some confusion and, although it was apparent from the transcript that the Mayor and Councilman Rindone were familiar with that subject, the other Councilmembers may not have been. He felt that if there were any questions about the process, why weren't those questions raised at the time of the appointment? He thought it was unfortunate that the members of the public, who were present at the December 9 meeting, as well as Councilman Castaneda, did not fully understand the process that was being discussed for the appointment, but he did not feel that that was necessarily a violation of the Ethics Code, just poor communication. He agreed that public confidence may have been eroded, but a lot of the letters sent to the press were in regard to the qualifications of the candidate, not the appointment process. Chair Batcher indicated that since these meetings have been publicized, she has been misquoted on many occasions. As an aside, she wished to comment that what is printed in the press is not necessarily accurate. Member German referred to Page 2 of the December 23, 2005 memo from the City Attorney to Peter Watry, wherein it states that the City Council decided at the November 29, 2005 Council meeting that with regard to CVRC appointments, they would interview only those candidates who were selected by at least one other Council member. He felt that since that process was adopted in public, and there was no evidence of any ex parte communications among the Councilmembers regarding use of that process, he did not feel that any violation had occurred. Board of Ethics 4 March 22, 2006 Mr. Watry interjected that over the past many years, the Council has always decided in open meeting what process would be used in appointments and that just because they had used a particular method for appointing CVRC members did not mean that would be the process used for all future appointments. It was Member German's understanding that the transcript of the December 9 meeting indicates that all the Councilmembers were aware they would be following the same process as used for the CVRC. Mr. Watry felt that Councilmember Rindone had made a motion to use the CVRC process, but that the motion died for lack of a second, so it was his (Mr. Watry's) belief that since the motion died, the Council would be interviewing all the qualified applicants. Member Searles referred to later discussion during the meeting, where Councilman Rindone talked about using the CVRC process to come up with the list. Member Searles indicated he understood the public outcry regarding how the list was whittled to only three interviewees and, as a citizen of Chula Vista, he himself would have liked to see how that eliminatory process was conducted. Chair Batcher indicated that her interpretation of the December 9 transcript indicates that the Mayor initially indicated that regardless of how many candidates submitted applications, the Council would have to accommodate their schedules to conduct the interviews. At that point, Councilman Rindone suggested using the process that had been used for the CVRC, which he felt had worked well. Sandv Duncan questioned how Patricia Chavez' name appeared on all the Councilmembers' lists. Chair Batcher clarified that each of the Councilmembers knew Patricia Chavez from her work on a subcommittee established by Patty Davis. Member Searles felt that the problem was poor communication of the political process. He did not see that there was any manipulation of the process for the personal gain of a particular individual. As far as the dispersal of the December 15 memo, he felt that Councilmember Castaneda had ample opportunity to voice his concerns or questions earlier in the process. Member Chambers indicated that he agreed that it was a poor communication model that unfortunately resulted in the undermining of the confidence of the community in the city government. He felt it was the Board's task to revise the Municipal Code in an effort to avoid future miscommunications, but this complaint did not indicate there were any intentional ethics violations. Board of Ethics 5 March 22, 2006 Ms. Aguilar stated that it was her opinion that prior to Councilman Rindone's suggestion on Page 4 of the transcript, the process discussed was to interview all qualified candidates. She felt that although he made the comment to follow the CVRC process, no one supported it. Discussion ensued among the Board members regarding their interpretation of the intent of the Council after Councilman Rindone's suggestion. Member German felt that after Councilman Rindone made his suggestion there was no opposition to the method he proposed. Member Searles questioned that if Mayor Padilla originally proposed interviewing all the candidates and Councilmember Rindone wished to interview fewer applicants, why is the complaint against the Mayor? His interpretation of the transcript is that after Councilman Rindone suggested using the CVRC process, all present agreed, so he didn't see the purpose of the complaint against the Mayor. Mr. Watry felt that the December 15 memo from the Mayor changed the rules. Member German quoted from the memo, which states, "Pursuant to previous Council appointment procedures, only those applicants selected by at least two Councilmembers will be interviewed." That "previous Council appointment procedures" refers to the CVRC process. Mr. Watry reiterated he did not feel that was a precedent and Member German respectfully disagreed with him. Member Searles asked if anyone felt that the CVRC process did not involve the Council members generating lists of and then interviewing only those applicants who appeared on at least two lists. Ms. Aguilar stated that there was someone on the Mayor's CVRC list who was not on any other list. The Mayor asked for another Councilmember to include this person on their list. Member German indicated he felt that this time they fine tuned the process and submitted their lists in writing rather than verbally so the opportunity to change their lists was eliminated. Member Searles felt that there were two parts of the CVRC process, one of which was followed in this instance and one that was not. The CVRC appointment was discussed in open session and this clearly was not. However, the basic premise that did get followed was that the prospective interviewee's name had to appear on at least two lists. It was clear to him from reading the December 9 transcript that this was the procedure agreed upon and if anyone did not understand it or agree with it, they should have spoken up about their confusion or disorientation about the process at that time, not go through the entire process, validate the appointment and then claim confusion. Chair Batcher reminded the Board that it was getting late and they would need to either continue this item or take action in a timely manner. Board of Ethics 6 March 22, 2006 Attorney Foster called their attention to the memo from the City Clerk dated December 13 indicating that 19 applications had been received, and asking the Councilmembers to submit the names they wished to include in the interview process to either Natalie Flores or herself by noon of the 14th Member Searles referred to the letter City Attorney Moore had sent to Mr. Watry explaining why she did not feel there was a violation of the Brown Act. Attorney Moore also indicates in that memo that at no time did the Councilmembers share their lists. If this was so, Mayor Padilla was not privy to the names on the other lists. Chair Batcher referred to the Clerk's December 13 memo, which states that the names were to be turned in by noon so that "staff could begin calling to schedule for interviews." It does not indicate that the list of names was going to be sent to any of the Councilmembers, and that is consistent with Ms. Moore's memo. Member German reiterated that he felt the Council was aware that the process to be followed was the same as for the CVRC appointments. Chair Batcher agreed that if there was some confusion someone should have come forward earlier. Member Searles felt that he had spent many hours reviewing all the documentation with the intent of looking for a violation of either the ethics ordinance or the Brown Act. He indicated he would not vote for probable cause, but he did agree with Member Chambers that at the very least the Board should send a public communication to the City Council that the process should have been more clearly communicated. He hoped that the City Council learned a lesson from this so a similar problem can be avoided in the futu re. It was MSC (German/Chambers) that pursuant to Section 2.28.150 of the Board of Ethics Code, the complaint dated and received February 3, 2006 by Peter Watry be dismissed summarily for lack of probable cause and the interested parties be notified in writing of this action. AYES: NOES: Batcher, German, Chambers, Searles Starr It was MSUC (Chambers/German) to send a letter of reprimand to the City Council indicating the Board's displeasure with the poor communication involved in this recent appointment process. Member Searles offered to draft the proposed language for the letter and will submit it to the Board for their approval prior to the next meeting. Attorney Foster indicated that she felt the appointment process was so important that it should not be left to a case-by-case decision but maybe the Council should look into including the process as part of the Charter or Municipal Code. It was her belief that other cities have the appointment procedure set out in their Municipal Code and that would avoid the public's perception that the Council was hiding something by meeting in closed session. Chair Batcher wished to express to Mr. Watry that the Board had spent a lot of time investigating the complaint and although he might be disappointed in the outcome, she Board of Ethics 7 March 22, 2006 did want him to know that the Board did thoroughly consider the allegations before coming to their decision. 4. Vote for a New Vice Chair Chair Batcher nominated and Member Chambers seconded the appointment of Member Searles as Vice Chair. Member Searles accepted the nomination and was unanimously appointed to serve in this capacity. 5. Oral Communications (for subject matter that is not on the agenda) Patricia Aquilar complimented Chair Batcher on her conduct of the meetings. She felt she acted very professionally and treated members of the public with respect and allowed them to present their views. She then asked if any of the Board members had received any requests from City officials attempting to influence their decision regarding the outcome of this complaint. Member Searles referred to the letter the Board had received earlier from Mayor Padilla indicating that he did not care whether the complaint was heard in open or closed session, and Member Searles reiterated his earlier remarks regarding the lack of value of such a statement in the political arena. He also mentioned he had had a communication from Mr. Watry, which he explained had to be submitted to the entire board, not individual members. 6. Members' Comments Member Searles stressed his concerns that the Board needs to move forward quickly on reviewing the ethics ordinance. He felt that the Board needed to focus their efforts on getting this done even if it meant having special meetings and putting in extra time. Member Chambers agreed, and Chair Batcher explained that this process had actually started about six years ago but hadn't made much progress until recently when the current Board started reviewing it section by section. More progress had been made in three or four months than had been achieved in six years. She further clarified that the review process would normally be the subject of the Board's monthly meetings if there hadn't been these recent complaints. Chair Batcher felt that now that the Board had dealt with the complaints before them, they could get back to reviewing the revisions to the ordinance and, if future complaints are received that take up the Board's time, they can discuss having special meetings or creating an ad hoc committee at that time. Member Searles' concerns were that until the Code is changed to hold probable cause hearings in Closed Session, the current practice of open meetings must remain in effect. That is why he felt it was important to move forward on suggested amendments to the ordinance. Attorney Nora Smyth indicated that the powers of the Board include the ability to adopt rules of procedure for the conduct of its business. She felt it would be easier to develop Board of Ethics 8 March 22, 2006 rules for their own procedures that would not have to be approved by any other body. Going before the Council to change the ordinance may take some time but in the short term, she felt the Board could adopt their own procedures for dealing with complaints. Chair Batcher felt this was a more desirable option. Member Searles was comfortable with this as long as the Board agreed on a process. Attorney Foster felt that the Board was certainly empowered under the Code to create a procedures manual and this might be a short-term resolution, but after seeing the Board struggle with this complaint particular with regard to which sections of the Code are enforceable and which are not, at some point in time that needs to be looked at. There is a lot of vague language, e.g., the reference to officials conducting themselves in a way that preserves public confidence, which cannot be enforced, and she felt it was important for the Board to revise those sections and make them clear. Discussion ensued regarding items in the press that were misreported or misquoted. 7. Staff Comments Attorney Foster indicated that she would not be providing assistance to the Board now that the complaint was resolved. She announced that she had been appointed Interim City Attorney for the City of Poway, but she could continue to provide assistance to the Board on an as needed basis. ADJOURNMENT AT 6:30 P.M. TO THE NEXT REGULAR MEETING OF APRIL 26. 2006 at 3:30 P.M. ~~~ RECORDING SECRETARY U Board of Ethics 9 March 22, 2006