Loading...
HomeMy WebLinkAbout2006/10/25 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA October 25. 2006 Attornev Conference Room 3:30 P.M. The meeting was called to order by Chair Searles at 3:37 p.m. 1. Roll Call1lntroduction of New Members MEMBERS PRESENT: Felicia Starr, Guy Chambers, Chris Searles, Harriet Acton, Norma Toothman, Todd Glanz, Michael German (arrived 3:45 p.m.) ALSO PRESENT: Elizabeth Hull, Assistant City Attorney; Nora Smyth, Contract Attorney 2. Approval of the Minutes of September 27,2006 Inasmuch as there were not sufficient members present who had also been present at the September 27 meeting, this item was tabled. 3. Introduction of New Board of Ethics Members Chair Searles welcomed the new members and asked them to briefly introduce themselves. Harriet Acton explained that she was a returning member and, in fact, an original member of the Board of Ethics from the 1980's. She is very active in the community, and was the Chair of the Charter Review Commission until she was recently termed out. Todd Glanz indicated he is a trial lawyer and this was the first time he had served on a Board or Commission. Norma Toothman introduced herself as a wife, mother, and employee of San Diego Gas & Electric and is also involved in the community as well as being a member of the Charter Review Commission. The current members of the Board then provided some information on themselves. Guy Chambers introduced himself as a Captain in the Lemon Grove Station of the Sheriff's Department. Michael German indicated he was Deputy Attorney General in San Diego, and he has served on the Board of Ethics for one year, was recently elected Vice Chair, is active in the Republican Party of San Diego, and is a Bonita resident. Board of Ethics 1 October 25, 2006 Felicia Starr introduced herself as the most senior member of the current Board of Ethics, the mother of 11 and an employee of Sharp Hospital. Chris Searles explained that he had recently become the Chair of the Board, is a family physician and a psychiatrist at UC San Diego, and conducts training in those two disciplines. He is also a member of the Parks & Recreation Commission. Chair Searles welcomed the new members and expressed the Board's pleasure in finally having a full complement. There now being sufficient members present to vote on the approval of the September 27 minutes, discussion returned to Item 2. 2. Approval of the Minutes of September 27, 2006 Chair Searles indicated he had two corrections to the minutes. The first correction is in the second sentence of the last paragraph of Page 2, where it states, "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 and not take action other than referring it to the appropriate authority." What he actually said was, "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 and refer it to the appropriate authority." The second correction is the deletion of last sentence of Item 3, on page 4, which states, "Chair Searles will contact Elizabeth Hull of the Attorney's Office to report on the Board's action." He felt the wording implied he would be taking immediate action to accomplish this, whereas his intent was simply to notify the Attorney's office bye-mail of the Board's discussion, which he subsequently did. Member German had indicated earlier that he had a correction, but upon rereading the minutes, he was satisfied with them. It was MSC (Starr/German) to approve the minutes of September 27, 2006 with the amendments discussed above. AYES: NAYS: ABSTENTIONS: Starr, German, Searles, Chambers None Toothman, Acton, Glanz 4. Continued Review of Proposed Revisions/Amendments to Code of Ethics. Chair Searles recapped for the new members the history of the review of the Code, explaining that a past Board had begun the work on this document, but the complaint process portion (Sections 2.28.150 thru 2.28.160) had been developed more recently in an attempt to make it more transparent for the public. Many of the revisions proposed were derived from a review of the City of San Diego's Code, by tailoring relevant Board of Ethics 2 October 25, 2006 sections to fit the Board of Ethics' vision for Chula Vista. He explained that the draft before them now highlights in color the changes proposed by the Board. Member Acton questioned what the powers of the Board are with regard to revising the Code. Chair Searles explained that the Board is empowered to review the Code for effectiveness and efficiency, and suggest changes to the City Council for adoption. Member German commented that in the review of several recent complaints by the Board, he felt the Board was trying to move in a more independent direction than in the past. Attorney Hull indicated she had reviewed the draft document and had included comments and questions she felt were relevant. Chair Searles mentioned that the Board would have to meet sooner than their next regular meeting to finalize the changes to the document. Member Chambers inquired whether the ordinance would require two readings by the Council, and Attorney Hull explained it would take two readings and an additional 30 days after the second reading to go into effect. In order to be agendized for a Council meeting, the report would have to be submitted to staff 3 weeks prior to the meeting but, due to the holidays, the Council will not be meeting on a regular schedule, so the changes probably would not go into effect until 2007. Chair Searles introduced Attorney Nora Smyth and explained to the new members that Ms. Smyth had been an employee of the City Attorney's Office providing legal counsel to the Board. After taking a new job, she was retained by the City as a contract attorney to continue working with the Board on the revisions to the Code. Ms. Smyth began reviewing the red lined changes proposed by the Board at the September meeting. Section 2.28.090, Duties of the Board, originally set a 60 day limitation for submission of complaints. The Board felt this timeframe was too short, and is recommending a one year time period to report the complaint after its occurrence. In Section 2.28.115, subsection c) was amended to say, "No member of the Board shall become a candidate for a Citv of Chula Vista elective office..." At this time, Chair Searles stated that he knew the new members of the Board had not had much of an opportunity to review the proposed ordinance changes. He felt that even though those changes had been approved by a vote of the Board, the new members should have the opportunity to express on the record any comments or disagreements they would like to make public. Board of Ethics 3 October 25, 2006 Member Glanz expressed his understanding that the ordinance could be amended at a future date if suggestions were made to improve it, and he was assured this was the case. Member Toothman asked for clarification Section 2.28,115 b), c) and d). She inquired what "City of Chula Vista office" refers to in subsection b), and Chair Searles responded it only referred to the Mayor and City Council. Discussion ensued as to whether attending functions for Council candidates came under this prohibition. It was the City Attorney's opinion that as long as the Board members did not represent themselves as Board of Ethics members supporting a candidate, but rather as private individuals, participation in political events did not violate this section. In addition, Attorney Hull pointed out that the ordinance is not in effect yet so it does not currently govern actions of the board members. Member Toothman's question about question c) was answered by the response to b), and Chair Searles explained subsection d) as meaning that, while on the Board of Ethics, a member may not lobby the City Council on a project. Attorney Hull explained that the Council is considering adoption of a lobbyist ordinance, and has appointed a subcommittee to look at the issue, but it is not currently in place. Ms. Hull referred to the comments she had on Section 2.28.115. She questioned how the Board planned to determine if members were in compliance with the qualifications established in this section. After discussing this, the Board agreed that they would be a self-policing agency and would, by advisory opinion, inform the City Council of any problems and request for removal of the particular member. Ms. Hull then referred to the language in subsection a), which required each Board member to be a "qualified elector" of the City. This language is inconsistent with the Charter, which changes the term "qualified elector" to "registered voter." The Board thanked her for bringing this to their attention and asked Attorney Smyth to make this change. Also in subsection a), Attorney Hull questioned how the Board would define "high moral character and integrity" since it is subjective, but the consensus was to leave this language in place without further definition. Ms. Hull questioned whether in Subsection b), the wording "a candidate for City of Chula Vista office" referred to supporting elected officials only, or included appointees, e.g., Board or Commission members. The Board determined they wished to include appointed officials as well, and Attorney Hull suggested rewording it to read, "a candidate for City of Chula Vista elected or appointed office." Discussion then ensued regarding the language "publicly support or oppose", and whether or not this could interfere with a spouse's ability to support or oppose a candidate, e.g., placement of a yard sign at home or a bumper sticker on a family car. Board of Ethics 4 October 25, 2006 Regarding subsection c), Ms. Hull asked the Board to clarify if "candidate for City of Chula Vista office" referred to elected office only, and not applicants appointed to other positions. The Board verified that was their intent, and it was suggested that the language might better read, "No member of the Board shall become a candidate for elected City of Chula Vista office during. . ." Regarding subsection d), Ms. Hull explained that, although the lobbyist ordinance had gone to Council for first reading, it was sent back for revisions and a subcommittee of two councilmembers has been coordinating this review. She expects that the revised document will be very different from the original version. Inasmuch as there is no ordinance in place, nor a definition of lobbyist, it was decided to delete subsection d) at this time. In Section 2.28.150, Procedure Upon Complaint, (a) (1), Ms. Hull suggested two wording changes in the second paragraph, to read: "The Board of Ethics will make reasonable efforts to complete the Review within thirty calendar days, or within fifteen calendar days if the complaint was received within ninety calendar days of a municipal election and alleges violations by a candidate seeking office at that election. After the Review, the Board of Ethics will vote in closed session on whether or not to conduct a Preliminary investigation." In subsection (b), she suggested that rather than referring to "Section 54956.9 of the California Government Code", the reference be expanded to include all of the Brown Act ("California Government Code Section 54950 et seq. as mav be amended from time to time"). That way, if the act is amended or modified, the Code of Ethics will not have to be updated each time that occurs. In subsection (d), Ms. Hull questioned whether the wording "within 90 calendar days of a municipal election" referred to 90 days before, 90 days after, or both? The consensus was to leave the wording as is, so the time period could encompass both before and after. Member Glanz interjected that he felt this document was of major importance and asked if the item could be reopened so that the three new members of the Board could have time to study it and offer input before finalization. Attorney Smyth indicated that this is still a draft and changes can be discussed and incorporated into the final document. Chair Searles clarified that the Board had only voted to forward the draft changes to the Attorney's Office for review and input. The final document that will be forwarded to Council has not been completed so there will be certainly be an opportunity for new members to be involved in the process. At this point, Member Starr indicated she had to leave the meeting so she asked that this item be tabled until a date was set for the next meeting. Chair Searles polled the members for their availability on November 8 at 3:30 p.m., which would be immediately Board of Ethics 5 October 25, 2006 following the City's ethics training session, scheduled from 1 :30 to 3:30 p.m. Member Glanz asked how long the meetings generally last, and was told they are usually over within two hours. Chair Searles returned discussion to Section 2.28.150. Ms. Hull pointed out that subsection (e) (4) should end with a period, and the deletion of the word "or". Ms. Smyth also brought to the Board's attention that the numbering of the subsections is not consistent at this time but will be corrected before the final document goes forward. Attorney Hull questioned subsection (g) (2), as to whether or not a complainant had the ability to appeal the Board's decision not to go forward. Chair Searles reiterated the Board's feeling that the complainant would be told the Board had used due diligence in reviewing the complaint and coming to their decision. If the complainant subsequently had different information to present, he/she would have to bring forward a new complaint. Member Glanz asked the Board to recap for him the process that had been followed in previous complaints. Member German explained that when complaints came before the Board, they performed an investigation to determine if there was probable cause and substance to the complaint. On the last complaint the Board reviewed, they discussed the complaint over several Board meeting before determining that there was no reason to go forward with it. However, in the case of another complaint where the Board did determine there was probable cause, the complaint was referred to the DA and the FPPC for resolution. Chair Searles explained that right now there are two different points of view as to how the Board should operate. The first is as a board of compliance, whereby the Code sets out a specific list of prohibitions that encompasses what is considered an ethics violation. The second point is view is to consider the Board truly a Board of Ethics, which doesn't focus on the law or whether an individual has a right to do something, but rather on what is the right thing to do. This is what he expects the Board will get into when they are reviewing the rest of Chapter 2.28, when they discuss the purpose and duties of the Board. He explained that the Board has reviewed the ethics codes of several other cities in California in an attempt to see what works best and he asked the secretary to provide this information to the new members. Member Glanz questioned whether the Board could decide what their powers are, and Attorney Hull clarified that the Board currently has powers and duties set out in the Ethics Code. They could make suggestions to change those; however, it is at the discretion of the City Council whether or not to approve those changes. Member Glanz asked why the complaint process was being reviewed prior to looking at the sections of the Code that deal with the purpose of the Board. Chair Searles explained that the Board was in the process of reviewing those sections when a particular complaint came forward and they realized the ineffectiveness of the complaint procedure so decided to focus on that portion first. He suggested that Member Glanz Board of Ethics 6 October 25, 2006 review the minutes of the previous meetings to gain a better understanding of the history of this issue. Regarding Section 2.28.150, subsection (h), Attorney Hull indicated she will need additional time to study the issue of public disclosure of documents, inasmuch as some of this may be preempted by the Public Records Act. In Section 2.28.151 (a), Attorney Hull thought the language in the last sentence might be ambiguous. Member German suggested changing the word "recommend" to "take", making the sentence read, "The Board shall take one of the following courses of action:" Regarding Section 2.28.152, Preliminary Investigation, under subsection (a) (1), Attorney Hull asked if the entire board would be conducting the investigation, which would represent a violation of the Brown Act unless it were done during a public meeting. Also, if the Board is doing they investigation, they are also the finders of fact, which places them in an awkward situation. In addition, she recommended that the Board incorporate into the ordinance a mandatory appropriation of funds for hiring someone to conduct investigations. Chair Searles felt that the existing language allowed the Board to have the maximum flexibility. Member Toothman asked if Attorney Hull could bring back language regarding the earmarking of funds. Such language exists currently in the campaign financing portion of the Elections Code, and she can adapt it for the Ethics Code and bring it back to the Board at their next meeting. Attorney Smyth reported that she had spoken to someone at JAMS (Judicial Arbitration & Mediation Service) regarding getting retired judges to screen applicants for vacancies on the Board. He asked her to draft a letter of what the Board is looking for and he will submit it to their membership to see if it is something they can do. Attorney Hull volunteered to draft a letter from the Board for their review at the next meeting. 5. Oral Communications - None 6. Member's Comments Chair Searles and Members German and Chambers expressed their pleasure at having a full board and thanked the new members for their interest in serving. 7. Staff Comments - None MEETING ADJOURNED AT 5:33 P.M. TO THE NEXT REGULARLY SCHEDULED MEETING OF NOVEMBER 8, 2006 AT 3:30 P.M. liIIa arbieri,~ecret Board of Ethics 7 October 25, 2006