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HomeMy WebLinkAbout2006/11/08 Board of Ethics Minutes MINUTES OF A BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA November 8, 2006 Attornev Conference Room 3:30 P.M. The meeting was called to order by Chair Searles at 3:36 p.m. 1. Roll Call1lntroduction of New Members MEMBERS PRESENT: Felicia Starr, Guy Chambers, Chris Searles, Harriet Acton, Norma Toothman, Michael German, Todd Glanz ALSO PRESENT: Elizabeth Hull, Assistant City Attorney 2. Approval of the Minutes of October 25, 2006 Member Glanz proposed a wording change to his remarks in the last paragraph of Page 6. He suggested rewording his comments to express the following: "Member Glanz asked why the complaint process was being reviewed prior to determining what the ethics sections of the Code would be comprised of. Member Glanz suggested that the Board first address and determine what the Ethics Code will consist of and thereafter determine the procedure for processing and deciding upon a complaint that is different from the process in place presently. Chair Searles explained. . . " It was MSUC (Germanrroothman) to approve the minutes of October 25, 2006 with the above modification to Member Glanz' comments. 3. Continued Review of Proposed Revisions/Amendments to Code of Ethics. Chair Searles took this opportunity to announce that, due to funding constraints, Nora Smyth, Contract Attorney, will no longer be advising the Board on the revisions to the Code. He recapped for the new members the history of the review of the Code, explaining that Ms. Smyth had been a part of the process from the beginning and did an excellent job of adapting portions of San Diego's code to fit Chula Vista's. Unfortunately, funding has run out and the City is no longer able to retain her. Member Starr asked if there would be any point to the Board writing a letter expressing their desire to continue with her services. Member German questioned whether the Attorney's Office would have any objection to Ms. Smyth advising the Board on a pro bono basis if she chose to do so. Attorney Hull explained that the City Attorney's Office had a limited contract with Nora Smyth to provide services up to a certain dollar amount. That amount had been exceeded in billable hours, and Ms. Smyth was notified that her contract was terminated inasmuch as there was no additional funding. Member Board of Ethics 1 November 8, 2006 German questioned the status of asking Council to provide funding for outside counsel services to the Board. Ms. Hull explained that it was her understanding this request would go forward to the Council with the Board's proposed revisions to the Code. Chair Searles attempted to bring the newer members up to date on this issue and explained that the Board had sent two letters forward recently, the first one addressed to the Mayor and Council, the City Manager and the City Attorney, requesting lirnited funding for additional training for Board members, i.e., a small stipend for registration. The second letter was addressed to the City Attorney, requesting funding on a case-by- case basis to retain outside counsel in certain circurnstances. The Board has not received a response to either letter yet. Member Toothman asked if copies of the letter could be distributed to the new members and Chair Searles indicated he would do so. Member Starr voiced her concerns regarding Attorney Smyth's departure after having been an advisor to the Board on the Code revisions since the inception of this project. Member Chambers agreed. Member German asked Attorney Hull when it was determined that the submission of Ms. Smyth's draft Code of Ethics to the Board would be the end of her service to the Board. Ms. Hull responded that when she spoke to Ms. Smyth regarding the fact that the money was running out, they had talked about transitioning the legal advice to the Attorney's Office when the draft was completed but nothing was firmly decided at that point. Member Glanz questioned the function of the City Attorney's Office with regard to the Board of Ethics, and if there was a conflict of interest. Ms. Hull responded that the Attorney's position is that there is no conflict, and indicated that, under the City Charter, the City Attorney is the advisor to all departments, all boards and commissions and the Mayor and City Council. There have been instances where the Board has felt there was a conflict between the Attorney's Office and the Board's duties so, to accommodate that, on occasion outside counsel has been hired, although that is a recent phenomenon, not an established practice. She explained that Nora Smyth was a former employee of the City Attorney's Office and when she left, there was an initial shortage of attorneys and not enough in-house staff to serve the Board of Ethics. Therefore, Nora was retained as outside counsel until the vacancies were filled. At this time the Attorney's Office is fully staffed and, inasmuch as the money budgeted for Ms. Smyth's services has been expended, it was felt that now was a good time to transition these services back to the City Attorney's in-house staff. There is still 30 days remaining on Ms. Smyth's contract but, unfortunately, there is no money left to pay her. The original contract anticipated that the funds would last until the termination date, but the Board meetings and work involved took more time than had been estimated. Chair Searles indicated that, in addition to Nora Smyth, the Board had had assistance from Lisa Foster, another outside attorney, in connection with their investigation of complaints. He informed Member Glanz the reason the Board had written the letter to the City Attorney requesting funding on a case-by-case basis for outside counsel was that it is the role of the City Attorney to represent the Mayor and City Council while acting in their capacity as City officials. It is also the role of the City Attorney to provide Board of Ethics 2 November 8, 2006 advice to the Board of Ethics when they are considering complaints from citizens regarding the Mayor and/or City Council while acting in their capacity as City officials and that is why he sees the need to occasionally hire independent attorneys to advise the Board in such situations. Ms. Hull further commented that, in the past, if a particular attorney in the Attorney's Office was advising the Mayor and/or Council in response to a complaint, a different attorney would be assigned to the Board of Ethics as their counsel. Discussion ensued about the Board's desire to be transparent and to avoid the public's perception of distrust, whether to have a value-based code or a compliance code, whether the Board needed outside counsel if they had no enforcement powers, and the cost of hiring independent attorneys. Member Toothman felt that, after listening to the discussions about outside counsel and the assistance provided by Nora Smyth, it appeared to her that the Board was not comfortable with having the City Attorney's Office act as their counsel, even though they respected Ms. Hull. It seemed apparent to her that the Board would like Ms. Smyth to continue working with them on the Code revisions until they were complete. Chair Searles asked Ms. Hull if, once the Board had reviewed the draft and made any changes, they could forward it to Ms. Smyth for her comments. Ms. Hull explained that, although there was 30 days remaining on the contract, there was no funding available. She felt that if the Board had specific questions of Attorney Smyth, she could call her and the City would be billed about $50 for a 15 minute phone call. However, if Ms. Smyth came down to Chula Vista to spend 2 or 3 hours traveling and attending a Board meeting to review the final document, that could be in the vicinity of $600, which probably would not be approved. Chair Searles indicated his goal tonight is to finish reviewing the remaining sections of the Code. Attorney Hull indicated that on the draft the Board has in front of them, the wording in blue indicates her comments or questions, whereas the red wording is Attorney Smyth's adaptation. Regarding Section 2.28.152 (a) (3), Attorney Hull questioned the Board as to who would do the prequalifying, the City or the Board. She explained that if the City performs this task, it would take 3 to 4 months for them to issue an RFQ (Request for Qualifications) and compile a list of qualified investigators. This list would be in effect for 3 years, and the Board would have the ability to select, on a case-by-case basis, an investigator of their choice from the list. The Board felt this was acceptable. Board of Ethics 3 November 8, 2006 Regarding subsection (b), the Board approved the red wording. Subsections c) and d) are satisfactory as worded. In subsection (e), Ms. Hull suggested changing the wording to read: "The ad hoc subcommittee of the hired investigator shall periodically report to the Board, in closed session, on the status of all pending matters, during the preliminary investigation. Failure to report. . . ." The Board concurred with this language. In Section 2.28.153, (b), Ms. Hull recommended striking the words, "by a concurring vote of at least four members" and adding wording to indicate this would be conducted in closed session. This section would then read: "Based on a review of the evidence presented, the Board shall determine in Closed Session whether there is cause to believe that. .." The Board agreed to this clarification. Chair Searles explained to the new members how the issue of closed versus open session had been determined after many discussions on this subject. He felt this may have to be revisited in the future but right now the Board is trying to get the revised complaint process completed so that it can be sent on to the City Council for approval, hopefully prior to another complaint coming forward, and then they can focus on other Code sections. Member Glanz expressed his desire to have more time to study this procedure and provide input. Chair Searles reiterated that nothing will be finalized today and nothing will be going forward to Council after today's meeting. Discussion ensued about finishing the review of the complaint process, tabling it without sending it forward, and focusing on the rest of the Code during the next few meetings. Members Starr and Chambers felt they did not want to table the complaint process until the rest of the Code was reviewed. Member Acton referred to the initial adoption of the Code by the City Council and how long the procedure took, so it was her opinion that bifurcating the complaint process and the rest of the code sections might make the process even more difficult and time- consuming. Member Toothman suggested that the new members could continue the review of the complaint process tonight and then spend time before the next meeting reviewing the sections that had already been approved by the Board. They could bring their comments and input to the next meeting for consideration. Member Glanz felt that that was not enough time to fully research what had been done and he felt he needed more time to review the procedure and make suggestions. He felt the process needed to be slowed down. At this point, Chair Searles recommended tabling discussion of bifurcating the complaint process and the rest of the Code until the next meeting, at which it will be an agendized item. He asked the members to be prepared at that time to discuss their reasons for Board of Ethics 4 November 8, 2006 supporting sending the complaint procedure forward as a discrete document, or waiting until the entire Ethics Code is reviewed and sending it as one document to the City Council. Chair Searles returned the discussion back to the review of the complaint procedure. In Section 2.28.153 (b) (1), the Attorney suggested removal of the word "that" for grammatical purposes. In subsection (b) (2), there were two grammatical changes, once again removal of the word "that", and the removal of an "s" at the end of the word "Ordinance." Regarding subsection c) Attorney Hull questioned whether there was an appeal process. The Board had discussed this issue at last month's meeting, and had determined there was no appeal process and were satisfied with the original wording. In Section 2.28.154, Preparation for Secondary Investigation, subsection (a), Attorney Hull questioned the word "approval" and Chair Searles suggested changing that word to "review", thus reading "The Board shall direct the preparation of an Investigative Summary for review by the Board." The Board concurred. In Subsection (b), Attorney Hull suggested removing the word "pertinent", to read, "The Investigative Summary shall include all facts discovered in the course of the investigation and all alleged ethical violations by Respondent." The Board concurred with this change. In Section 2.28.155, Secondary Investigation, subsection (a) (6), Attorney Hull called attention to the fact that this subsection references a "closed session", which creates a due process concern. The Board recalled discussing this in earlier sessions and making it an open process so felt this might just be a typo. The consensus was to remove the words "in closed session", thereby reading ". . .and present such to the Board pursuant to Government Code section 54956.9." Chair Searles took this opportunity to recap the proposed process, wherein the preliminary investigation is conducted in closed session but if that results in a determination of a violation of the ethics code, the process then becomes transparent and public and anyone can participate. Member Glanz questioned whether this was taken from the City of San Diego Code, and Member Searles explained it was a cannibalization tailored to fit the Board's needs. In Section 2.28.156, Final Determination, subsection (a) (I), Attorney Hull suggested deleting the words "by a concurring vote of at least four Board Members" inasmuch as this is already required by the Charter. Subsection (a) (4) makes reference to "reading a transcript prepared by a court reporter." There is no provision for a court reporter so this language should be reworded to read ". . . read the testimony (either in person or by Board of Ethics 5 November 8, 2006 listening to a recording), and reviewed the evidence or otherwise reviewed the entire record." The Board accepted these changes. At this point Chair Searles suggested stopping the review of the Code revisions so that they can discuss other issues and still end the meeting in a timely fashion. He asked the Board to review Sections 2.28.115 through 2.28.160 prior to the next meeting and be prepared to discuss any comments and concerns at that time. 4. Oral Communications No speaker slips had been received. 5. Members' Comments Member Glanz referred to the roster of members, which indicates his term expires in 6 months. Attorney Hull explained that he had been appointed to fill an unexpired term, and is eligible for reappointment to two full terms when his current term expires. If there is less than 24 months remaining on a term to which a new member is appointed, he/she is eligible for an additional two full terms. Member Acton questioned the meeting schedule for the Board, inasmuch as originally it met at the call of the Chair rather than on a set day and time. Chair Searles explained that due to the recent number of complaints the Board had received and the desire to move forward on the revisions to the Code, the Board has been meeting on a regular basis once or twice a month. Discussion ensued regarding the date and time of the next meeting. Chair Searles polled the Board and staff for their availability and, after considering several dates in November and December, a consensus was reached to hold the next meeting on Thursday, November 30, 2006 at 4:00 p.m. Chair Searles referred to his previously voiced intention to speak at a Council meeting under Oral Communications to inform the Mayor and Councilmembers of the Board's desire to revise the Ethics Code and update them on the progress being made. He had not done so yet and would postpone this until after the Board decides at the next meeting how they want to proceed with the revisions. Ms. Hull informed Member Searles that there is a place on the agenda for Boards/Commissions Reports, under which he can speak, and not be subjected to the three-minute rule for members of the public who speak under Oral Communications. 6. Staff Comments None. Board of Ethics 6 November 8, 2006 MEETING ADJOURNED AT 5:13 P.M. TO A SPECIAL MEETING OF THURSDAY, NOVEMBER 30, 2006 AT 4:00 P.M. ~V1~uJ~ ~ M~ry,t(n~ieri, Recording Secre~ry Board of Ethics 7 November 8, 2006