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HomeMy WebLinkAbout2006/06/14 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA June 14. 2006 Executive Conference Room 3:30 P.M. The meeting was called to order by Vice Chair Searles at 3:34 p.m. 1. Roll Call1lntroduction of New Members MEMBERS PRESENT: Felicia Starr, Guy Chambers, Chris Searles, Michael German MEMBERS ABSENT: Karen Batcher ALSO PRESENT: Nora Smyth, Contract Attorney; Lisa Foster, Contract Attorney Chair Batcher had indicated she would be unable to attend today's meeting. It was MSUC (Chambers/Starr) to excuse the absence of Karen Batcher. 2. Approval of the Minutes of April 26, May 24 and May 31,2006 Discussion ensued regarding the Board's prior review of the April 26 minutes. Vice Chair Searles asked if there were any corrections to the May 24 minutes. He noted that the adjournment time should be 5:00 p.m. rather than 4:45 p.m. Attorney Smyth indicated that Sean Hagerty's name was misspelled (2 "g's" instead of one). Vice Chair Searles noted that in the March 31, 2006 minutes, the name of the complainant should be removed. He felt that a numbering system should be developed to identify complaints rather than making the name of the complainant public. It was MSUC (Starr/German) to approve the April 26, 2006 minutes. It was MSUC (Starr/German) to approve the May 24, 2006 minutes with the corrections noted above. It was MSUC (Starr/German) to approve the May 31, 2006 minutes with the name of the complainant removed. At this time, Vice Chair Searles invited members of the public to come forward and speak. 6. Oral Communications Kevin O'Neill, 621 Del Mar Avenue, indicated he understood the need for closed session when there was a matter before the Board involving personnel issues or political misconduct, but he felt that in the case of the item regarding the CVRC, the public should have been given a copy of the advice provided by the attorneys to the Board of Ethics 1 June 14, 2006 Board of Ethics. He felt the public should have access to the content to better understand how the Board arrived at its decision. German questioned exactly what materials Mr. O'Neill was hoping to receive. Mr. O'Neill explained that any instructions or explanations (even if redacted) given to the Board by the City Attorney or outside counsel that helped them come to a decision would be helpful. He felt that there is an aura of distrust by the public, and if they could understand how the Board made their determination, this might alleviate some of that distrust. The Board thanked Mr. O'Neill for his comments. They then discussed their feelings regarding Closed Sessions, but it was their general agreement that it was preferable to err on the side of caution. This subject will be discussed again next month as part of the item on revising the Ethics Code, and the process for handling complaints. Vice Chair Searles then introduced Item 4 out of order. 4. Review of Municipal Lobbying Ordinance Attorney Smyth explained that this ordinance is heavily based on the City of San Jose's ordinance. It had its first reading by the City Council on May 23, 2006, and the Council asked that the Board of Ethics review it and provide their input prior to the second reading in July. Vice Chair Searles indicated he had reviewed the ordinance and had looked at similar ordinances from San Francisco, San Diego and New York in an effort to compare them. One area he felt needed clarification was regarding gifts. The draft ordinance Chula Vista is considering provides no guidance for lobbyists about giving gifts, e.g., are there monetary limits, or the timing of when gifts may be given. He also felt there should be a burden placed on the lobbyist to provide the City official with a written document outlining the date, the value, and a description of the gifts given. None of this is included in the draft ordinance. He was also concerned that there was no discussion about campaign consultants and their role as lobbyists and felt language regarding former employees acting as lobbyists or lobbyists being hired as employees needed to be included. Also, on Page g (17-13), he was concerned that the language in Item F-3 needed clarification. Therefore, he would like to see the original ordinance from San Jose to see if this ordinance is the same or has been edited. Attorney Smyth indicated she could obtain the original ordinance and distribute it to the Board before their next meeting on June 28. Member Searles offered to provide copies of the other ordinances he had reviewed. Another concern he had was on Page 7 (17-11), Section 3 (b), under Expenditure Lobbyist. He felt that Section (b) provided a way to circumvent the $1,000 limit. He also expressed his concern that there is nothing to limit activity expenses and he felt this needed to be addressed. Vice Chair Searles reminded the Board that the second reading of the ordinance is scheduled for the July 18, 2006 Council meeting so the Board will need to meet before Board of Ethics 2 June 14, 2006 that to develop their advisory position. He indicated that the Board might even consider asking the Council to postpone the second reading if the Board has not had enough time to review the ordinance and prepare their recommendation. 3. Ratification of 5/31/06 Special Meeting Reportable Action. Vice Chair Searles explained that the purpose of this action is to, in open session, repeat the motion made during closed session. Attorney Foster indicated that she did not believe this was legally required but since the item had been placed on the agenda the board could take this action. It was MSUC (Searles/German) to find no probable cause to move forward on the complaint submitted May 4,2006 (No. EC01-2006). 5. Advisory Opinion. Vice Chair Searles indicated his belief that the Code of Ethics process allows the Board to present a preliminary advisory opinion to the Council for their review and comment before finalizing the opinion. This was his interpretation of Section 2.28.060, which states, "The Councilmembers or other officials shall have the opportunity to present their interpretation of the facts at issue and of the applicable provisions of the code before such advisory decision is made." Attorney Foster indicated she believed the Board had the option of issuing the opinion in final form if they wished. In Section 2.28.090C, it states that the Board may "render advisory opinions either on request or own initiative" so, certainly if they are bringing an opinion forward on their own initiative, they are not bound to present it in preliminary form. The Board concurred that they believed they could present final opinions to the Council. Vice Chair Searles then addressed Section 2.28.050 and how some members of the public felt the CVRC salary issue was an indication of the Council's ignoring their charge of "being mindful of the public trust." Member Chambers felt that the language regarding using one's position or title for personal gain should cite the Section of the Code pertaining to this violation. Member German agreed that the CVRC salaries represented a disproportionate portion of the budget. He also suggested inserting verbiage in Paragraph 2, where it states "Personal gain on the part of the Mayor or any Councilmember, which would constitute a violation of CVMC 2.28.050 B1 , . . ." Attorney Foster commented that the letter could be shortened. She felt that quoting the sections of the Code verbatim was perhaps not necessary, and if the essence could be paraphrased or summarized, the document might be more powerful. Vice Chair Searles voiced three additional concerns regarding the CVRC regarding having a quorum without including any independent directors, the appeals process, and Board of Ethics 3 June 14, 2006 gifts and grants. He felt that the potential exists for at least the perception of unethical behavior the way the CVRC is structured and he believes this to be problematic. Member Starr indicated she thought the format of the letter was to include all issues that were discussed in regard to the case. Attorney Foster clarified that the purpose of the advisory letter was for the Board to comment on things outside the complaint that could not be fully discussed or determined in closed session, but which came about because of the complaint. Member Chambers commented that from that one complaint, many issues arose that were outside the complaint and he felt it was the Board's job to look into those questions and bring forward the Board's concerns to the Council. Attorney Foster questioned what message the Board would like to send to the Council if this letter became a final advisory opinion not seeking input from the Council. Member Chambers felt it should inform the Council that the Board sees the possibility for a potential ethics violation to arise because of the way the CVRC is structured. Attorney Foster asked if they wished to recommend that the Council change the structure of the CVRC. Vice Chair Searles indicated that when 90% of a fiscal budget is dedicated to salaries, there is a potential for a conflict. He therefore felt the Board's recommendation should be to reconsider the CVRC structure. Attorney Foster suggested beginning the opinion with language similar to: "In the course of reviewing a complaint, other issues that were not raised by the complainant, concerned the Board." Member German suggested some grammatical changes on Pages 3 and 5, and Attorney Foster recommended the elimination of the word "preliminary" before advisory opinion. It was MSUC (Chambers/German) and the board unanimously approved the advisory opinion to be presented to Mayor and Council with the corrections noted above. 7. Members' Comments - None. 8. Staff Comments - None. 9. Closed Session: Review of Complaint Received June 5, 2006 (Government Code Section 54956.9 (C)). The Board convened Closed Session at 4:32 p.m. Closed session ended at 5:42 p.m. Vice Chair Searles reported that there were three motions voted on: Board of Ethics 4 June 14, 2006 1) It was MSUC that there is probable cause to further investigate Complaint EC02-2006. 2) It was MSUC to refer Complaint EC02-2006 to the Fair Political Practices Commission and the San Diego District Attorney's Office. 3) It was MSUC to postpone further consideration by the Board of Ethics of Complaint EC02-2006 pending the findings of the Fair Political Practices Commission and/or the San Diego District Attorney's Office. Attorney Foster asked how the Board would like to implement the actions they took regarding Complaint EC02-2006. Member German will draft a cover letter to the Fair Political Practices Commission and the San Diego District Attorney's Office for transmitting the complaint. Board members will review and comment on the letter at the next meeting before transmitting the cover letter and Complaint EC02-2006 to the FPPC and DA's Office. MEETING ADJOURNED AT 6:30 P.M. TO THE NEXT REGULARLY SCHEDULED MEETING OF JUNE 28, 2006 AT 3:00 P.M. Board of Ethics 5 June 14, 2006