HomeMy WebLinkAbout2006/06/28 Board of Ethics Minutes
MINUTES OF A
BOARD OF ETHICS MEETING
CITY OF CHULA VISTA, CALIFORNIA
June 28,2006
Executive Conference Room
3:00 P.M.
The meeting was called to order by Vice Chair Searles at 3: 15 p.m.
1. Roll Call/Introduction of New Members
MEMBERS PRESENT: Felicia Starr, Guy Chambers, Chris Searles, Michael German
MEMBERS ABSENT: Karen Batcher
ALSO PRESENT: Elizabeth Hull, Assistant City Attorney; Lisa Foster, Contract
Attorney; Nora Smyth, Contract Attorney
Chair Batcher had indicated she would be unable to attend today's meeting. It was
MSUC (German/Starr) to excuse the absence of Karen Batcher.
2. Approval of the Minutes of June 14, 2006
Secretary Malveaux indicated that the June 14 Closed Session actually ended at 5:42
p.m., not 6:04 as stated in the minutes.
Discussion ensued regarding wording on Page 2, the second sentence of the second
paragraph, which states: "They then discussed their own conflicted feelings regarding
Closed Sessions..." Member German felt that this language perhaps conveyed a lack
of unanimity, and suggested removal of the words "own conflicted". He also referred to
the next to last paragraph on Page 3, where it states, "Member German felt that the
CVRC salaries represented a disproportionate portion of the budget." In fact, he was
voicing his agreement with Member Searles on this issue so it was his suggestion to
change this sentence to read, "Member German agreed that the CVRC salaries..." The
Board concurred with these two clarifications.
It was MSUC (German/Starr) to approve the minutes of June 14, 2006 with the revisions
discussed above.
At this time, Vice Chair Searles indicated that he felt the agenda should be taken out of
order and that certain items should be coupled because of their similar natures.
Attorney Foster mentioned that she was only present to offer advice on Items 6 and 4,
so Member Searles suggested the following order: Item 6, Item 4, Item 5, Item 3, Item
7, Item 8, Item 9.
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6. Approval of Pending Correspondence
Vice Chair Searles referred to a letter received from the Complainant who submitted
Complaint EC01-2006 to the Board of Ethics requesting information on how the Board
made their decision that there was a finding of no probable cause on this complaint. He
indicated that although there are some instances in the Charter where the Chair or Vice
Chair has the power to respond directly to certain correspondence, he felt that a
response to this particular complaint should have the approval of the Board. He
distributed copies of his draft response and indicated his concern was not to divulge any
information from the Closed Session. Attorney Foster also had been asked to respond
to certain legal aspects of the complaint and the City Attorney's Office was currently
reviewing her response. She felt that her letter and Chair Searles' were complementary
and not duplicative. Chair Searles then read his response into the record:
Dear Sir:
Thanks you for your letter regarding the process and outcome of your complaint
submitted to the Board of Ethics dated May 4, 2006. Your surprise at the unanimous
decision by the Board after its review of your complaint over two closed sessions is not
unexpected. Your complaint was submitted in good faith after much work on your part.
In the end, despite a thorough and careful review of the allegations and facts, the Board
could find no evidence that the Chula Vista Redevelopment Corporation ("CVRC') was
constructed for the purpose of personal gain pursuant to the applicable sections of the
Chula Vista Municipal Code. The decision of the Board regarding your complaint is final
and no new action will be taken without the submission of new evidence in the matter.
Peripherally, you may be interested to know that the Board issued an advisory opinion
(AO#01-2006) addressed to the Mayor and City Council expressing its concern
regarding the infrastructure of the CVRC.
With respect to your concerns regarding the closed session, I can assure you that the
specific issues you raise will be discussed by the Board in its ongoing review of the
complaint and investigation process in open session as we move forward. The Board
does not take your concerns lightly and, prior to your letter, was already moving to
resolve open questions generated in this regard. We welcome your attendance as we
explore these issues in upcoming open session.
Please know that the board is working very hard to complete a thorough review of the
current ethics code and complaint process in an effort to strengthen its effectiveness.
Your civic passion is well admired and your input as we move forward is invaluable.
It was MSUC (German/Chambers) to approve the draft letter and send it to the
complainant.
4. Review Cover Letters to Fair Political Practices Commission and San Diego
District Attorney's Office re: EC02-2006
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June 28, 2006
At the June 14, 2006 Board meeting, Member German volunteered to prepare
transmittal letters to the FPPC and the DA's Office informing them of the Board's finding
of probable cause on EC02-2006, and asking them to review this complaint for further
action. Vice Chair Searles thanked Member German for preparing the letters and asked
what information should be provided to the two agencies to assist in their review.
Discussion ensued and the consensus was that the attachments to the letter should
include the complaint packet the Board had used to make their determination, the
probable cause finding, a copy of the Ethics Code, and the letters sent to the
complainant and the respondent regarding the Board's finding.
Board member German asked in what manner he should sign the letter and it was
determined he would sign as G. Michael German, Board Member, Board of Ethics.
It was MSUC (Starr/German) to approve the letters and the attachments for finalization
and transmittal to the appropriate agencies.
At this point, Attorney Foster left the meeting.
3. Continued Review of Municipal Lobbying Ordinance
In response to Member Searles' concerns and questions raised at the last meeting,
Attorney Hull indicated that State law governs the value of gifts which must be reported
($50 and over) and that a gift of $340 prohibits an official from voting on an item that
affects the donor of the gift. Member Searles stated that he still felt that the onus should
be on the lobbyist to present a formal written document indicating a description of, the
value of, and the date the gift was given. He also felt that language should be added
regarding campaign consultants working as lobbyists or lobbyists collecting campaign
contributions. Lobbyists have to disclose when they contribute to a campaign but they
don't have to disclose collecting gifts and money on behalf of others. The other issue
he was concerned with was disclosure if the city hired a former lobbyist, or if a lobbyist
hired a former city staff member. His intent was not to prohibit these practices, but
rather to disclose them to the public.
City Attorney Hull explained that at this point the charge of the Board is to review the
ordinance prior to the second reading and forward any comments or recommendations
to the City Council. The second reading will take place as scheduled on July 18, and
then the Council can review the Board's recommendations and amend the ordinance if
they choose to do so.
Discussion ensued regarding the City's proposed ordinance and those of other cities,
e.g., San Jose and San Francisco. Member Searles inquired as to why the Chula Vista
ordinance does not cover the Redevelopment Agency and Attorney Hull responded that
the Redevelopment Agency is a state agency and the City has no authority to regulate a
state agency.
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June 28, 2006
After further questions regarding the ordinance, the Board asked how they could
transmit their concerns to the Council prior to the second reading. Attorney Hull
indicated that she would include the Board's comments in the staff report, and if any
members of the Board wished to be present at the Council meeting to answer any
questions the Council might have, they were welcome to attend.
Member Searles asked Attorney Hull to provide the Board with a copy of State law that
would be relevant in regard to lobbyist activities.
It was MSUC (German/Chambers) to adopt the ordinance and forward the following
recommendations to the City Council for inclusion in the ordinance:
a) The lobbyist should provide a list of gifts they have given to
Councilmembers and this should be publicly disclosed.
b) There should be documentation of when a lobbyist collects campaign
contributions, and this should be disclosed.
Vice Chair Searles then moved to take Item 7 out of order.
7. Oral Communications
Peter Watry, 81 Second Avenue. Mr. Watry explained that on May 3 he had submitted
a claim against the Mayor and Council charging that they had used their position for
personal gain, a violation of the Code of Ethics. The response he received from the
Board of Ethics was that there was no finding of probable cause. He continued to voice
his belief that the Council had violated the Ethics ordinance by giving themselves a
raise in the form of a CVRC stipend for work which he did not feel represented
"additional duties".
Attorney Hull reminded the Board that Mr. Watry was free to speak on any issue;
however, the Board could not respond in any way to items that had not been agendized.
The Board had considered the complaint and made their determination and in order for
it to be discussed further, Mr. Watry would have to file a new complaint and the Board
would have to schedule it for a future agenda.
Vice Chair Searles indicated to Mr. Watry that the Municipal Code prohibits the Board
from rehearing the same complaint, so unless new evidence is presented, the Board will
not be able to consider his complaint again.
5. Continued Review of Proposed Revisions/Amendments to Code of Ethics
Contract Attorney Smyth recapped the Board's previous actions and reviewed the
changes she had incorporated into the latest draft. The changes to Section 2.28.150
included:
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June 28, 2006
Section (a)(2) clarification of the language regarding informal complaints and the
Board's ability to respond to these; (b) change wording "Preliminary Review" to "Review
of Complaint"; (c) (1) delete words "administrative remedies"; (e) delete this section
regarding the Election Campaign Control Ordinance; (f) (5) and (6) delete these two
sections. In regard to Section (h), she included a copy of San Diego Ordinance 26.0455
regarding Disclosure of Commission Records, which she felt the Board might like to
review and perhaps incorporate some sections into the Chula Vista ordinance. It was
determined that the wording in Section (d) referring to "Final Administrative Complaint"
should be changed to "Investigative Summary".
At this point, Attorney Hull indicated she would be leaving the meeting. Vice Chair
Searles tabled discussion of Item 5 to ask Ms. Hull several questions regarding outside
legal counsel for the board versus representation by the City Attorney's Office. Attorney
Hull responded that the City Charter governs this issue. The Charter states that the City
Attorney is the legal counsel for the City Council and all Boards and Commissions. In
addition, the Ethics ordinance is consistent with this. In the past there have been some
issues where outside legal counsel advised the Board on several complaints but
historically the City Attorney is the body providing legal advice to the Board. She
emphasized that the client of the City Attorney is the City, not the City Council. The City
acts through its elected representatives, the City Councilmembers.
Discussion ensued regarding the provision of legal services to the Board. Contract
Attorney Smyth explained that she had been the attorney advising the Board when she
was a City employee. After she left, there were reduced staffing problems in the office
and she was asked to provide contractual legal services to the Board. Attorney Hull
further explained that for years former City Attorney Kaheny provided legal advice to the
Board and then she herself acted in that capacity before Attorney Smyth came to work
for the City. If the Board feels that there is a conflict of interest in reviewing certain
complaints, they can ask the Council for authorization to hire independent counsel.
The question of attendance in Closed Session was raised and Attorney Hull explained
that, under the Brown Act, the Board has the authority to request the City Attorney or
any other staff to leave the Closed Session. That is the practice of the City Council on
occasion.
The Board thanked Attorney Hull for staying and for answering their questions.
Discussion regarding Item NO.5 continued.
Regarding Section 2.28.151, Attorney Smyth recommended deleting Item 2. However.
she volunteered to call the City of San Diego and see why this option was included in
their ordinance.
Section 2.28.152 adapted the San Diego's language to apply to Chula Vista's Board of
Ethics. In Section (b) the words "formal investigation" need to be changed to
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"Preliminary Investigation". The Board concurred with the 90 and 180 day benchmarks
to commence and complete the investigation.
The Board discussed the process for Closed Session versus open meetings and Vice
Chair Searles reiterated his belief that the complaint should be initially reviewed in
Closed Session, a preliminary investigation should be conducted, the findings should be
reported in Closed Session, and the respondent should have the opportunity to provide
input regarding the allegations. If the determination is that the complaint has validity, all
ensuing discussions should be held in open session. If the determination is that the
complaint is not valid, the complainant and respondent should be notified of that fact
and no further action need be taken on the complaint.
Concerning Section 2.28.153, Preliminary Determination, Section (b), Attorney Smyth
will review the language dealing with the number of voting members.
Regarding Section 2.28.153, Preparation for the Secondary Investigation, (a) should
read, "The Board shall direct the preparation of an investigative summary for approval
by the Board."
In Section 2.28.154, Secondary Investigation, Section 4 indicates that the written
response to the Investigative Summary must be filed by the Respondent within 30 days.
The Board discussed this timetable and concurred it was reasonable. Attorney Smyth
will look into Section 6 regarding why this part of the investigation would be closed to
the public. She suggested removing Section (a) 7.
Section 2.28.155, Final Determination, in Section (a) 1 the number of members required
for the vote needs to be determined. In Section (b) the word violation should be
pluralized.
The Board discussed how long a time period would be considered reasonable from
when an incident occurred and when a complainant was brought forward. The
consensus was that it should be no more than one year. Attorney Smyth will bring
proposed language to the next meeting regarding this issue.
Attorney Smyth had distributed a copy of San Diego's Section 26.0406, Qualification of
Members. After reviewing the provisions, the Board agreed that a similar section should
be included in Chula Vista's revised Code.
The Board discussed the current vacancies and the appointment process. Previously
the South Bay Court judges reviewed the applications and made recommendations to
the Mayor and Council. However, last year the Court decided they no longer wished to
do this. Attorney Smyth asked the Board if they would like her to contact a retired judge
and see if he/she might be willing to screen the applicants, and they indicated they
would appreciate it if she could do that.
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9. Staff Comments
Attorney Smyth requested the members to thoroughly review the sections of the Code
discussed today and prepare their comments before the next meeting. Also, in the past
they have discussed descriptions for what constitutes ethical and unethical conduct, and
clarification as to who this applies to. She indicated she had spoken to Susan Bigelow,
the City Clerk, regarding training. Biannual general training used to be provided jointly
by the Clerk's and City Attorney's Office, which included FPPC, Brown Act, ethical
conduct, and Robert's Rules of Order. This has not been offered recently. However,
AB 1234, which goes into effect January 2007, mandates training for public officials.
The interpretation of public officials differs from jurisdiction to jurisdiction, and she will
find out what Chula Vista is planning to do in this regard. She spoke to the Director of
Budget and Analysis regarding training for the Board of Ethics and he suggested the
Chair of the Board approach the City Manager regarding funding for training. He
indicated the City Manager has discretionary funds that can be used for purposes such
as this. Regarding money to hire an outside investigator, if the revised ordinance is
adopted and calls for hiring an outside investigator, money will be included in the budget
for such expenses. If the Council authorizes that an outside investigator be hired, they
will create a budget for that. She will check on this further to determine if she
understood the process correctly. She also spoke to a representative from the City of
San Diego and learned that they do not provide specific training for their Ethics
Commission.
Attorney Smyth then indicated that Karen Batcher had resigned due to her numerous
personal and business commitments and her inability to devote the necessary time to
continue on the Board.
8. Members' Comments
Member Starr expressed her disappointment over Karen Batcher's resignation but
wished her well.
Member German echoed Member Starr's comments and voiced his satisfaction at being
a member of this particular Board.
Member Chambers also felt that the Board was performing a valuable service to the
community.
Vice Chair Searles discussed a document called "Local Government and Ethics
Ordinances in California". It is a 60-~age summary of ethics ordinances throughout the
state from the beginning of the 20t century through 1998. He thought it was very
interesting and informative. Secretary Malveaux will distribute copies to the other
members. He also referred to a publication by the Institute of Local Self Government
entitled "Developing a Local Agency Ethics Code - a Process Oriented Guide", which
discusses developing from scratch an ethics code.
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June 28, 2006
Member Searles also wished to mention that according to the Brown Act, members
cannot communicate via e-mails to discuss business. Instead, items of business
should be saved for the meetings.
Member Searles indicated he planned to contact the City Attorney regarding the Board's
ability to hire independent counsel and to discuss with her the presence of non-Board
members at Closed Sessions. He will also contact the Acting City Manager regarding
the provision of training for Board members.
Next meeting's agenda will include election of Chair and Vice Chair, and continued
review of proposed revisions/amendments to the Code of Ethics,
MEETING ADJOURNED AT 6:11 P.M. TO THE NEXT REGULARLY SCHEDULED
MEETING OF JULY 14, 2006 AT 12:00 NOON.
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MaryA arbieri 1V1
Recording Secretary r
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