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HomeMy WebLinkAbout2006/08/23 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA Auqust 23, 2006 Executive Conference Room 4:00 P.M. The meeting was called to order by Chair Searles at 4:01 p.m. 1. Roll Call/Introduction of New Members MEMBERS PRESENT: Felicia Starr, Guy Chambers, Chris Searles, Michael German ALSO PRESENT: Elizabeth Hull, Assistant City Attorney 2. Approval of the Minutes of July 14, 2006 It was MS (German/Starr) to approve the minutes of the July 14, 2006 meeting. Chair Searles indicated that he would like the minutes to reflect that he had offered Peter Watry the opportunity to speak under Oral Communications at the July 14 meeting, but Mr. Watry waived that opportunity in order to speak at the end of Item 4 (Continued Review of Proposed Revisions/Amendments to Code of Ethics). He also asked Attorney Hull if the wording on Page 5, third paragraph of Item 6, accurately reflects her comments regarding the role of the City Attorney's Office, in particular the sentences, "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." After discussing this further, Attorney Hull suggested replacing those two sentences with the following: "She clarified that the Attorney's Office does not represent the Mayor and Council in their individual capacity. If they have an individual legal problem, the City Attorney's Office is not their lawyer." For the sake of clarification, Chair Searles asked Attorney Hull if a complaint was brought to the Board of Ethics regarding the behavior of the Mayor and/or City Council in the context of performing a function of their job, in that case would the Attorney's Office represent them. She responded that there was potential for that to occur. It was MSUC (German/Starr) to approve the minutes of July 14, 2006 with the amendments discussed above. 3. Continued Review of Correspondence from City Attorney dated June 29, 2006 re: Response and Clarification to Actions of the Board of Ethics. This item pertains to a memo from the City Attorney in response to the Board's Advisory Opinion A001-2006. Before discussing this, however, Member German reported that he had contacted Don Sevrens of the Union Tribune to discuss the article regarding Peter Watry's complaint relating to the CVRC, and the implication that the Board of Ethics 1 August 23, 2006 Board did not investigate the matter. He explained to Mr. Sevrens that the Board had in fact discussed the matter in detail prior to dismissing the complaint. Regarding the matter of investigating complaints, Member German reiterated his understanding that the Board has the right and obligation to investigate matters that are clearly delineated in the Ethics Code as it is written, but he felt that future amendments to the Code should include language to clear up any ambiguities so there is less potential for misunderstanding. Chair Searles indicated that the letter from the Attorney was helpful and written in good faith, but he knew that there were some portions the Board had issues with and would like to discuss further. Member Chambers stated his concern that the Board was "hamstrung" in their investigation of complaints by the existing language in the Code, and he felt the language needed to be revised to reflect the needs of the Board. Attorney Hull emphasized that under the current wording of the Code, there are seven guidelines that have to be followed in order for an ethics violation to be a prosecutable offense. Chair Searles summarized his interpretation of ethics as the difference between what someone has the right to do (law) as opposed to what is right to do (ethics). He felt that under the existing Code, Chula Vista's Board is a board of compliance rather than a board of ethics. He questioned whether this is the path on which the Board members wish to continue. Member German felt that although these are valid observations, right now the Board is two-thirds of the way through the review of the complaint procedure and needs to stay focused on the conclusion of this task. He also wished to publicly express that he did not believe the Attorney's Office had been dictating to the Board, as had been implied by the press. The other members of the Board concurred. Chair Searles asked for other Board member comments. Member Starr indicated she felt it was difficult to discuss the Attorney's response without the person who had instigated the complaint being present to offer input. Attorney Hull clarified that she had worked with the City Attorney on the response and its main purpose was to address Advisory Opinion A001-2006 which implied that the Board was looking beyond the Code for a potential violation. The intent of the Attorney was to make it clear to the Board that they needed to stay within those confines. She apologized that the information in the memo had not been provided to the Board earlier in the process. Chair Searles agreed that it would have been very helpful to have had this information prior to the Board issuing the Advisory Opinion and that he hoped the Board and the Attorney's Office would be working together more closely from now on. Board of Ethics 2 August 23, 2006 Moving forward, Chair Searles indicated he wished to revisit the Board's Advisory Opinion regarding the CVRC; one of his concerns was with regard to the makeup of a quorum, and the appeals process. Clearly the meeting quorum is constituted by City Directors, as does the quorum for the appeals process. Reading from the last page, first paragraph, the letter states: "The concerns raised here are presumptive that the City Directors will be acting independently. It is as likely that there would be four independent Directors and one City Director taking action as an action being taken by five City Directors". The memo states that the City maintains the appropriate level of control, but goes on to say that the chance of there being an independent director present is equal to the chance that it would be a City Director. His concern with this is that an appeals process whose fairness is predicated by chance is inherently unfair and that if chance has to be relied on for the appeals process to be fair, that doesn't seem very fair. If the original decision is made by City Directors and the appeal is heard by only City Directors, it does not really represent an appeals process. Chair Searles went on to say that his vision for the Board is not to act as a punitive body, but to be able provide support for the Mayor and Council in their decision making and to allay public distrust. His opinion is that the Code is flawed, that the section regarding to ethics violations lists seven specific prohibitions, but elsewhere in the Code, under Fair and Equal Treatment, there is wording specifying that "No official who is subject to the Code shall grant or make available to any person any consideration, treatment or advantage or favor beyond which is the general practice to grant or make available the public at large." This wording is not included in the seven specific prohibitions, and this makes the Code appear ambiguous. Attorney Hull clarified that the response in the Attorney's letter applies to the findings of an ethics violation and the enforcement provisions, and that there could be a due process concern with utilizing language outside of that area of the Code. She added that she did not believe there was anything in the Code that prevents the Board from developing advisory opinions from time to time and presenting them to the Council for guidance. Chair Searles referred to the existing appeals process, and wondered why the structure was set up in such a way that it creates a situation where the Mayor and City Council are in a position of conflict, where they are in the position of being the initial deciders and the appeals deciders. The perception is that this is not a fair process. Member German concurred and referred to a case involving mine workers where it was determined that an appellate board cannot be comprised of people who had an underlying interest in the decision. He felt that, even though the Ethics Board does not have the authority to rewrite the Chula Vista Redevelopment Corporation by-laws, it is within their powers to recommend or advise the Council that the Board sees a potential conflict in this case. Board of Ethics 3 August 23, 2006 Chair Searles referred to a point in the response letter on Page 3, where it states the Board felt the stipend was inappropriate and uncalled for. He stated that was not accurate, that the Board never said the stipend was inappropriate and uncalled for, or even that it was unjustified, but rather that it was excessive that 90% of the CVRC budget was for salaries. He understood that this was done throughout the State, but he was concerned regarding the public perception about fiscal management. Attorney Hull explained that when the CVRC budget was prepared for the first year, most of the expenses were unknown except for the amount of the stipend. Unfortunately, there was a lack of communication between the Attorney's Office and the Board, and many of the concerns raised in the Board's Advisory Opinion could have been addressed earlier had there been more interaction. Chair Searles reiterated his desire for the Board of Ethics to have more authority and not just act as a board of compliance. He felt that the first priority of the Board was to get a full complement of members, followed by the completion of the revision of the complaint process. After that, he would like to see some workshops with the City Attorney and City Council to look at what other cities are doing and what cutting edge ethics policies are about, and create something really meaningful and valuable that will support the public's trust. Member Starr felt that this could actually work against the Board in winning the public's confidence, that the Board could be perceived to be working too closely with the City Council in developing ethics policies. The Board concurred with this point and agreed that community input would need to be included in the process. 4. Review of Correspondence from District Attorney's Office dated July 26, 2006, re: EC02-2006 This letter is in response to Member German's letter regarding the Casteneda referral of July 14, 2006. The Board reviewed the letter from Mr. O'Toole, Special Operations Attorney and had various comments regarding it. Member Starr referred to the second paragraph, where it states that the District Attorney's Office does not provide "advisory opinions" as to possible violations of law. She did not recall Member German's letter requesting an advisory opinion. Member German indicated that as a matter of general law, he could appreciate where the District Attorney is coming from. Member Chambers agreed that it appeared they were saying that regardless of the possibility of criminal action, the Board can decide to investigate the complaint administratively if they so choose, and the District Attorney's Office is not at liberty to discuss any investigation they may be conducting into the criminality of the complaint. Chair Searles reiterated that this is just another example of how the current Code hampers the Board's investigative abilities. Member German offered to contact the DA's Office to explain that the Board is in the process of revising the City's Ethics Board of Ethics 4 August 23, 2006 Code and would like to coordinate with the D.A. in an effort to understand what areas are within the purview of that office. Member Starr felt that the letter indicates that two separate investigations of the complaint (one for ethics code violations and one for state law violations) could be conducted simultaneously by both agencies, although the District Attorney's findings would supersede those of the Board. Attorney Hull explained that previously, when the Board felt there was a potential state law violation, they referred the complaint to the District Attorney and it was considered closed at that point. The Board may never know the outcome of the investigation by the D.A. The Board questioned Attorney Hull if any prior complaints that had been referred to the District Attorney had been prosecuted and she responded that she did not know of any. Member German asked if there was any way to check with the FPPC as to the status of the complaint referred to them. Attorney Hull said she would call the FPPC to find out if the complaint has been referred to an attorney and, if it has, she will find out the status. 5. Update on AB 1234 Member Chambers indicated that the law firm McDougal, Love is in the process of scheduling ethics training for the Cities of Imperial Beach and Lemon Grove, and that Chula Vista may be able to piggyback onto these sessions at no cost to the city. He asked Attorney Hull to contact the law firm to get information on dates, times and locations of these workshops. Chair Searles asked if the City was working on AB 1234 training and, if so, which employees would be receiving the training. Attorney Hull indicated the City is looking for a trainer, the details have not yet been worked out but the training will be scheduled for sometime with the next three months. Chair Searles indicated he had attended a workshop in Los Angeles at the Ethics Institute and it was a good experience. He brought back some books from the course to share with the other Board members. 6. Oral Communications - None 7. Member's Comments Member Chambers mentioned that he felt tonight's discussion regarding working with the Attorney's Office before issuing advisory opinions would lead to improved communications and more effective action on the part of the Board. Member German indicated that earlier he had thought there might be a need to go into closed session to discuss an item but that was no longer necessary. He also wished to disclose that he had been considering applying for the vacant Port District position and Board of Ethics 5 August 23, 2006 had asked the Attorney's Office if that would be a conflict with his Board membership and he was advised he would be required to give up his post or not apply. He decided not to apply for the Port position because the Board is short of members right now, he had recently been reappointed for a second term, and he feels the Board is making a lot of progress on important issues. Chair Searles thanked Member German for his commitment to the Board. He went on to say that he is pleased that the Board is working towards having a more meaningful role with independence and adequate funding in terms of resources, and trying to develop a mechanism that serves the purpose of promoting what is right to do rather than just penalizing what is wrong. He thanked all the members of the Board for their hard work and commitment to this end. Member German stressed the need to get more members appointed to the Board. Chair Searles commented that in order to expedite the process of scheduling today's meeting, he had polled the other Board members for available dates and times, but he did not plan to make this a recurring task. 8. Staff Comments Attorney Hull indicated she had spoken to the Mayor's Office after the last meeting and conveyed the Board's concerns about having three vacancies and the difficulty of achieving a quorum. MEETING ADJOURNED AT 5:15 P.M. TO THE NEXT REGULARLY SCHEDULED MEETING OF SEPTEMBER 27,2006 AT 3:30 P.M. Board of Ethics 6 August 23, 2006