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HomeMy WebLinkAbout2006/07/14 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA Julv 14. 2006 Executive Conference Room 12:00 NOON The meeting was called to order by Vice Chair Searles at 12:02 p.m. 1. Roll Call1lntroduction of New Members. MEMBERS PRESENT: Felicia Starr, Guy Chambers, Chris Searles, Michael German MEMBERS ABSENT: None ALSO PRESENT: Elizabeth Hull, Assistant City Attorney, Nora Smyth, Contract Attorney 2. Approval of the Minutes of June 28, 2006. Vice Chair Searles tabled this item for consideration later in the meeting. 3. Vote for Chair and Vice Chair. This item was tabled pending questions regarding the expiration of the present Chair's term. 8. Oral Communications. Vice Chair Searles asked if any members of the public who were present at the meeting were there to present general comments or to speak on an agendized item. Kevin O'Neill, 621 Del Mar Avenue, referred to the Board's Advisory Opinion of June 15, 2006. He expressed his appreciation for the Board's work in developing this opinion and voiced his belief that the Board should have more autonomy and a broadened scope. He indicated he would contact the City Council to see how this might be accomplished. Don Sevrens, Union Tribune, asked if the Board would continue to examine the policy of conducting meetings outside of public view. He encouraged the Board to do so. Peter Watry indicated he was at the meeting with regard to Item 4. At this point, City Attorney Hull clarified that the Board could vote for Chair and Vice Chair inasmuch as the term of the Chair had expired in July. The floor was opened for nominations. Board of Ethics 1 July 14, 2006 3. Vote for Chair and Vice Chair. Member Starr moved, and Member German seconded, the nomination of Chris Searles as Chair. Member Searles thanked them for the nomination but explained that if he were appointed Chair, he was interested in moving forward to deal with some very important issues and that might require meeting more often than once a month. If the Board agreed to that, he would accept the nomination. The motion to appoint Chris Searles as Chair unanimously carried. It was moved by Member Chambers, and seconded by Member Starr, to nominate Michael German as Vice Chair. Member German accepted the nomination, and the motion to appoint him Vice Chair carried unanimously. 2. Approval of Minutes of June 28, 2006. Contract Attorney Smyth indicated that, on Page 6, in the last paragraph before Item 9, Staff Comments, the minutes state in the last sentence of this paragraph that she would contact a retired judge to see if he/she might be willing to screen applicants for the Board. In actuality, this would require an amendment to the Municipal Code. This sentence should be deleted and replaced with: "Attorney Smyth stated that retired judges could perhaps perform the duties not now being performed by the Presiding Judge of the South County. It would require amending the Municipal Code and she will research that issue." It was MSUC (German/Starr) to approve the minutes of June 28, 2006 with the correction proposed by Contract Attorney Smyth. 4. Continued Review of Proposed Revisions/Amendments to Code of Ethics. Member German questioned the wording in Section 2.28.075, Qualification of Members, in Item c, which states, "No member of the Board shall become a candidate for elective governmental office during his or her tenure on the Board, . . ." This wording preempted members from running for office for state, judicial, school boards, etc. and it was the Board's consensus that this was meant to apply to only City of Chula Vista elected offices. Therefore, it was requested that this language be changed to read, "No member of the Board shall become a candidate for Mavor and/or Citv Council of the Citv of Chula Vista during his or her tenure on the Board,.." Discussion then ensued regarding the twelve month limitation prior to running for City office. It was decided to postpone action on this section pending review by the City Attorney and advice on legal options. Attorney Smyth referred to several sections of Chapter 2.28 where she had been trying to obtain additional information from the City of San Diego regarding provisions in their ordinance. The person she contacted is on vacation so she was unable to get a response to her questions. Board of Ethics 2 July 14, 2006 Chair Searles referred to Section 2.28.156, Final Determination, where it states that the determination shall be made in closed session. Attorney Smyth explained this is one of the things that needs to be decided, i.e., at what point documents could be released to the public. Chair Searles recapped for those present the procedure that was being proposed for handling complaints. He explained that there is a review of the complaint in closed session when it is submitted, and if it appears to have merit, a preliminary investigation is conducted by an independent investigator. Then a preliminary determination is made whether or not to move forward with a further, or secondary, investigation. That secondary investigation moves on and the respondent may come before the Board at that time to respond to the facts collected by the investigator, and then a final determination will be made based on both sets of facts, to determine if there was any wrongdoing. Attorney Smyth questioned what the Board's desire was regarding public disclosure from the point of the secondary investigation. Member Searles felt that at the point of the secondary investigation, the meetings should be open to the public in order to avoid any impression of secrecy. Attorney Smyth indicated that if that was the Board's desire, subsection 6 of Section 2.28.155, Secondary Investigation, should be deleted. Discussion then followed regarding subsection 2 of Section 2.28.156, Final Determination, which states, ". . . the Board may request that such individual attend the closed session meeting to discuss any issue relevant to the Secondary Investigation." Chair Searles felt that at this point the meetings should be conducted in open session. Member Chambers felt that the Board could have the meetings open to the public, but conduct final determination discussions in closed session, similar to jury deliberations. Attorney Smyth reminded the Board members that any action on this issue requires a majority of the membership to pass, and in this instance that means 4 votes, or a unanimous decision. Attorney Smyth went on to say that some of the Board's changes would require revamping of other sections of the Code for consistency, e.g., the one year statute of limitations for filing a complaint would also require an amendment to Section 2.28.090. She can make the changes suggested tonight regarding secondary investigation, but she felt the entire document should be redlined and reviewed by another attorney as well, in order to ensure there are no conflicting passages. Chair Searles inquired as to an estimated timeline of when the revised ordinance could go before the City Council. Attorney Smyth explained that it would first have to go to the City Attorney's Office for review, and then to the City Clerk's Office for numbering. Attorney Hull indicated that it would be best to present the entire redlined version to the Attorney's Office, not in a piecemeal fashion. She anticipated it might take a month to review the document, and then the agenda process would require another month to get it scheduled for a Council meeting. Attorney Smyth indicated she would be on vacation Board of Ethics 3 July 14, 2006 until mid-August but that when she came back she would work on the section regarding disclosure of Board records. She also reminded the Board that their original intent was to not rewrite the entire ordinance but to focus on the complaint process. She asked how often the Board planned to meet in an effort to complete their revisions, and Chair Searles responded he thought they should meet twice a month, at least until this issue was resolved. Attorney Smyth indicated she could probably have a draft prepared for the Board's review sometime in September, probably the second week. It was moved by Chair Searles, seconded by Member Starr, and unanimously carried that the secondary investigation phase of the complaint process be conducted in open session. Chair Searles requested that any members of the public who would like to provide input on this item come forward at this time. Peter Watry urged the Board not to meet in secret. He also referred to the June 29th City Attorney's letter to the Board which stated that all complaints must be submitted within 60 days of occurrence, and that the salary of the CVRC was set by resolution in November 2004, therefore rendering the complaint beyond the 60 day timeframe. He stated he never mentioned the resolution in his complaint and that the stipends were not taken until last June, and that fact was not publicized until the Union Tribune revealed it. The Attorney's memo further states that additional compensation is justified because "the CVRC anticipates an active public participation process which will include numerous public meetings/workshops. . ." According to Mr. Watry, the Council elected to hire a committee (RAC) to conduct the public workshops rather than doing them themselves. The Board thanked Mr. Watry for his comments. 5. AB1234 Training for the Board of Ethics. Chair Searles referred to a packet distributed to the Board regarding AB 1234, which requires elected and appointed officials to receive ethics training. It is a self study exercise, which he recommended all Board members read and mail in with a $25 processing fee (reimbursable) to get certified. He then asked Attorney Hull where the City was in meeting the requirements of this legislation. Attorney Hull responded that Ann Moore, the City Attorney, was in the process of taking the "Train the Trainer" course, and she will be responsible for coordinating the City's training. The law does not go into effect until January 2007 and she was unsure when the City would actually be implementing the training. Chair Searles urged the Board not to wait for the City to implement the training, but rather to take the course prepared by the Institute of Local Government. Board of Ethics 4 July 14, 2006 6. Review of Correspondence from City Attorney of June 29, Correspondence to City Manager re Ethics Training, Correspondence to City Attorney re Independent Counsel. 2006, Proposed and Proposed Chair Searles distributed two drafts he proposed the Board send to the City Manager's Office and the City Attorney's Office. The first letter is to Interim City Manager Jim Thomson, requesting reimbursement for ethics training undertaken by Board members, in addition to the training mandated by AB 1234. In this draft, Chair Searles indicated that the Board members would not expect to be reimbursed for travel and hotels. He felt that once in a four year term Board members should have the option of being trained in the field of public ethics. Discussion ensued regarding the hardship paying for their own travel and hotels might cause some Board members. Attorney Hull indicated that the only Board she was aware of who received off-site training was the Planning Commission, and the City paid for the travel, hotel and meal allowance. Chair Searles agreed to remove the sentence regarding the Board not asking for reimbursement. It was MSUC (German/Starr) to approve the draft letter to the City Manager with the deletion of the second sentence of the second paragraph. The second draft is to the City Attorney explaining the Board's concerns regarding the City Attorney's office providing legal advice versus independent counsel. Three options are presented in the draft. Chair Searles recognized that the Charter clearly states it is the rightful role of the City Attorney's office to provide counsel to the Board of Ethics. However, the Charter does not preclude the Board from asking for additional counsel, and he felt this provided a good balance. Member Chambers asked if Contract Attorney Smyth's role was only with regard to the revisions to the Municipal Code, and Attorney Hull responded that it was. Member German then asked for Ms. Hull's comments on the memo. She indicated that the first paragraph refers to the Attorney's Office as playing a "dual role as both counsel to the Mayor and City Council as well as to the board itself." She clarified that the Attorney's Office does not advise the Mayor and Council, but the City. The client is the City, not the Mayor and Council. If they have an individual legal problem, the City Attorney's Office is not their lawyer. The Board concurred with changing the wording of the sentence to "plays a dual role as both counsel to the City of Chula Vista as well as to the board itself." Member German suggested several wording changes. In the first paragraph, the second sentence reads: ".. .the current board members have been troubled bv the appearance of a conflict of interest. .." He thought that it would be better to say, ". . .the current board members have been concerned over the appearance of a conflict of interest. .." Also, the second sentence of the second paragraph begins, "In many instances, the City Attorney's Office will have already provided. .." His suggestion was to begin the sentence as follows: "Indeed. the City Attorney's Office mav have already provided. . . " The Board concurred with these changes. The Board discussed the three options proposed for requesting independent counsel and elected to go with the third option, which reads, "The Board of Ethics would like to Board of Ethics 5 July 14, 2006 request that the City Attorney continue to provide counsel to the board but that an independent counsel be assigned to the Board at the request of the Chair or Vice-Chair on an as needed basis as determined by the Board of Ethics. Regarding the letter to the Interim City Manager, it was the consensus of the Board to send copies of this letter to the City Attorney and the Mayor and City Council; and on the letter to the City Attorney regarding independent counsel, a copy should be sent to the Mayor and Council. 7. Approval of 2005-06 Summary of Activities. The Board reviewed the Summary of Activities for FY 2005-06. Member Starr noticed a typographical error under Comments and Recommendations to Council. It should read, "The Board of Ethics is in need of (3) additional member~ . . ." It was MSUC (Chambers/Starr) to approve the 2005-06 Summary of Activities with the correction noted. 8. Oral Communications. Members of the public had been given an opportunity to speak earlier in the meeting. 9. Members' Comments. Member German asked if the Union Tribune reporter was still present, but he was not. Member German wished to discuss with him certain inaccuracies in the article regarding the complaint filed by Peter Watry regarding the CVRC. The article implied that the Board was not going to investigate the matter, whereas the matter had been discussed in detail prior to the complaint being dismissed. He will call Mr. Sevrens with his comments. Member Chambers indicated he felt that today's meeting had been very fruitful, and he thanked Attorney Hull for her assistance. He also expressed his concern about the need to have additional members appointed to the Board in a timely fashion. 10. Staff Comments. Ms. Hull explained that the City Council had been occupied with vacancies on the Planning Commission because that Commission did not have enough members to achieve a quorum, but three new members had recently been appointed, so she will talk to the Mayor's staff about making the Board of Ethics' vacancies a priority. Secretary Malveaux reminded the Board members to bring their agenda packets to the meetings. Board of Ethics 6 July 14, 2006 11. Closed Session: Conference with Legal Counsel regarding Existing Exposure to Litigation (Government Code Section 54956.9 (b) - One Case. The Board recessed to Closed Session regarding existing exposure to litigation from 1:45 p.m. to 1 :55 p.m. The meeting reconvened and Chair Searles mentioned that there is one item the Board did not address at today's meeting, the June 29, 2006, City Attorney's response to the Board regarding Advisory Opinion A001-2006, and he suggested having a meeting that would have only this one item on the agenda. Member German indicated he will be out of town August 30 through September 6. After polling the members regarding their availability for future meetings, it was decided to schedule a meeting for July 21, 2006, at 10:00 a.m. to discuss the letter from the Attorney, and to meet on Wednesday, August 9, 2006, at 3:30 p.m. for the Board's regular meeting. MEETING ADJOURNED AT 2:00 P.M. Board of Ethics 7 July 14, 2006