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HomeMy WebLinkAbout2006/09/27 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA September 27.2006 Executive Conference Room 3:30 P.M. The meeting was called to order by Chair Searles at 3:40 p.m. 1. Roll Call1lntroduction of New Members MEMBERS PRESENT: Felicia Starr, Guy Chambers, Chris Searles, Michael German ALSO PRESENT: Elizabeth Hull, Assistant City Attorney; Nora Smyth, Contract Attorney 2. Approval of the Minutes of August 23, 2006 It was MSUC (German/Starr) to approve the minutes of the August 23, 2006 meeting as submitted. Chair Searles indicated that Attorney Hull had to leave the meeting early so he recommended taking Items 4, 5 and 6 out of order. 4. California Fair Political Practices Commission Status on EC02-2006. Chair Searles explained that the complainant has submitted a request for the Board to revisit this issue. Attorney Hull contacted the FPPC, who informed her that they had received the complaint and are reviewing it; however, they could provide no information on their review nor indicate how long it would take, but only state that it was in the "intake unit." Until a response is received from the FPPC, this item will have to be continued. 5. Information from McDougal, Love, Eckis re AB 1234 Training Workshops Attorney Hull contacted the firm of McDougal, Love, Eckis regarding the training they are providing on AB1234 to certain contract cities. Attorney Hull had not received a response, but would be speaking with the firm on September 28, 2006. She did report that the City Council had, pursuant to the terms of AB 1234, designated which employees would be required to take the training, i.e., all Form 700 filers. Training will take place during the first two weeks of November, one daytime session for employees and one evening session for Boards and Commissions members and others who are unable to attend the day session. This training will be conducted by the law firm of Best, Best and Krieger. Board of Ethics 1 September 27,2006 The Commission felt that the designation of training for all Form 700 filers was an excellent decision on the part of the City Council. Before leaving the meeting, Attorney Hull updated the Board on the interviews for the current Board vacancies. The Council will be conducting interviews at 5:00 p.m. during the October 3 Council meeting. She believed there were 6 or 7 potential candidates. Member German inquired if the Board members could attend the interviews as observers, and Ms. Hull indicated that it was an open Council meeting. 6. Oral Communications No speaker slips had been received from members of the public. 3. Continued Review of Proposed Revisions/Amendments to Code of Ethics Contract Attorney Smyth reminded the Board that they had requested a red lined version of the sections of the Code they had reviewed and to which they made suggested revisions. She had also gone through other sections of the Code to make sure any changes the Board made that affected other areas would be updated as well. She presented a draft to the Board reflecting these changes. Attorney Smyth recapped the changes to Section 2.28.090, Duties of the Board, where complaints may be submitted within two years of the occurrence, rather than 60 days, and the addition of Section 2.28.115 which sets out the Qualification of Members. Former Section 2.28.150, Conduct of Hearing Upon Complaint, is recommended for deletion and replacement by a new Section 2.28.150, Procedure Upon Complaint, and subsequent Sections 2.28.151 through 2.28.160, which deal with the investigation and final determination process. She had retained a section from the original Code, from Ordinance 2297, adopted in 1989, which states: "If, after appropriate investigation or hearing, the board shall find that a conflict of interest or a breach of ethics, as prohibited by the code of ethics, did, or continues to exist, the board shall forward its findings to the city council to correct or rectify the condition that exists. Said notification shall be accompanied by a statement of facts and findings and recommendations." Member Starr questioned how the findings could be forwarded to the city council if the complaint was about a councilmember. Discussion ensued about whether other cities have provisions for fines or other punishment, and the fact that making the findings public is often punishment since it can result in the person being voted out of office. Chair Searles reiterated his earlier statements that he did not wish to see the Board of Ethics become a punitive body, but rather focus on what is right to do. He felt that if a councilmember was involved in unethical, but not illegal, behavior, the duty of the Board should be to make it public but not take action other than referring it to the appropriate authority. Board of Ethics 2 September 27,2006 Discussion ensued regarding Section 2.28.050, Unethical Conduct, which sets out the 7 guidelines and specific prohibitions to which city officials must conform. These are the instances that are considered to constitute unethical conduct by city officials. Chair Searles questioned why Section 2.28.040, Fair and Equal Treatment, is not included in the section regarding unethical conduct, since it relates to city officials being prohibited from granting favors to individuals that are not available to the public at large. His vision on the Board's role is not as a board of compliance, since the 7 prohibitions are already addressed by State Code, but rather to develop a value based code. Attorney Smyth reminded the Board that the focus of today's discussion is the complaint procedure and that the other sections of the Code can be addressed as part of the complete overhaul of the Code. She also referenced the Board's previous intent to review and revise the manner in which Board members are selected, perhaps having retired judges review the applications, etc. She further stated that it is within the Board's purview to review and modify Chapter 2.28 in any way they deem appropriate, including the definition of unethical conduct. The members discussed their views on the purpose of the Board, and the consensus was that, after reviewing the redlined complaint procedure sections, they will revisit the other sections of the Code for discussion at future meetings. Member German questioned the two year deadline for submission of complaints in Section 2.28.090. In actuality, the Board had set the deadline as one year. Attorney Smyth will make this change. Regarding Section 2.28.115, Qualification of Members, the wording in subsection c) shall be amended to read: "No member of the Board shall become a candidate for a Citv of Chula Vista elective office during his or her tenure on the Board, and for twelve months thereafter. Each prospective Board member shall sign. . ." The language in former Section 2.28.150 is deleted in its entirety, and replaced by a revised procedure, which includes Sections 2.28.150 through 2.28.160. In Section 2.28.155, Secondary Investigation, subsection 6, Member German suggested that the words "Notice that" precede the current wording, i.e., "Notice that at the Board's discretion, the Board, ad hoc subcommittee or hired investigator may. . . " Chair Searles questioned the language in Section 2.28.156, subsection a) 3, and suggested changing the wording, "The Board shall find that an ethical violation occurred. . . " to "The Board shall find that unethical behavior occurred. . ." The term "violation" is used throughout the Code so, for consistency, the wording will remain unchanged. With regard to Section 2.28.160, Disclosure of Board Records, Chair Searles asked what is the responsibility of the Board to be a part of the process of disclosure of records. Under the Public Records Act, when someone makes a request for public records, a response must be issued within 10 days as to whether or not the records will Board of Ethics 3 September 27,2006 be provided. Chair Searles wondered how the Board could meet this requirement, inasmuch as they do not meet every 10 days. Attorney Smyth explained that in the City of Chula Vista, the City Attorney's office reviews public records requests, and they would have to follow the guidelines established in this chapter. Attorney Smyth suggested adding wording in subsection f), as follows: "When Board materials are requested by members of the public, the Board, or its desiqnee, shall review the requested materials. . ." The Board concurred with this wording. Chair Searles moved that today's revised redlined draft of Chapter 2.28 be forwarded simultaneously to the City Attorney's and City Clerk's Offices, with a request that the City Attorney's Office focus on any sections that the Board has made changes to, offer suggestions and guidance, and not simply strike out inappropriate language but explain specifically the Attorney's concerns regarding the legality of the language. Member German seconded the motion, which carried unanimously. Chair Searles will contact Elizabeth Hull of the Attorney's Office to report on the Board's action. 7. Members' Comments Discussion ensued regarding correspondence received alleging a violation of Chula Vista's campaign ordinance. Inasmuch as this item is not on the agenda, the complaint will need to be agendized for a future meeting. Member Starr commented she was glad to see the Council will be interviewing and appointing new members to the Board. 8. Staff Comments Attorney Smyth suggested that while the complaint procedure is being reviewed by the City Attorney and City Clerk, the Board might wish to start working on the section regarding the manner in which Board members are selected, particularly since the Judges of the South Bay Court will no longer be involved in the process. She suggested setting up a procedure whereby retired judges could be asked to perform this function. Chair Searles indicated he will contact the City Attorney's Office to let them know the Board would like to continue using Nora Smyth as counsel regarding revisions to the Code of Ethics. He also expressed his feeling that the Board should at some point apprise the City Council of the work they are doing on revising the Code, by speaking at a Council meeting. He volunteered to attend an upcoming Council meeting before the next Board meeting and briefly update the Councilmembers on the Board's progress. Chair Searles asked what the procedure was for getting the revised complaint procedure on a Council agenda after the City Attorney's Office and City Clerk's Office have completed their roles. Attorney Smyth responded that a staff report would have to be prepared and processing the item would require two weeks, e.g., to be placed on the Board of Ethics 4 September 27,2006 November 14 Council agenda, the item would have to be submitted to the City Clerk on October 30. Chair Searles polled the members for their availability for the next Board meeting and all were available on October 25 in the afternoon. MEETING ADJOURNED AT 5:45 P.M. TO THE NEXT REGULARLY SCHEDULED MEETING OF OCTOBER 25,2006 AT 3:30 P.M. ~b~r Recording Secretary Board of Ethics 5 September 27, 2006