HomeMy WebLinkAbout2006/11/30 Board of Ethics Minutes
MINUTES OF A
BOARD OF ETHICS MEETING
CITY OF CHULA VISTA, CALIFORNIA
November 30, 2006
Attornev Conference Room
4:00 P.M.
The meeting was called to order by Chair Searles at 4:00 p.m.
1. Roll Call/Introduction of New Members
MEMBERS PRESENT: Felicia Starr, Chris Searles, Harriet Acton, Michael German,
Todd Glanz, Guy Chambers
MEMBERS ABSENT: Norma Toothman
ALSO PRESENT: Elizabeth Hull, Assistant City Attorney
Secretary Malveaux noted that Member Toothman had called to say she was ill. It was
MSUC (Starr/German) to excuse the absence of Member Toothman.
At this time, Councilmember-elect Rudy Ramirez introduced himself and indicated his
desire to see the Board complete the work begun on revising the Code of Ethics. He
emphasized his support of this effort and informed the Board that he also planned to
introduce a lobbyist ordinance and would like their input on this document.
Chair Searles briefly explained the progress the Board had made on revising the Ethics
Code and their discussions about their perceived role of the Board, i.e., rule based
versus value based code. Mr. Ramirez offered his assistance and the Board thanked
him for his interest in their work.
Member Glanz stated he wished to put an item on the next meeting agenda - formation
of an ad hoc committee.
It was MSUC (Starr/German) to schedule this item on the next agenda.
2. Approval of the Minutes of November 8, 2006
Member Glanz proposed a wording change to his remarks at the end of the last full
paragraph on Page 4. He suggested rewording his comments to express the following:
"Member Glanz felt that that was not enough time to fully research what should
be done and he felt that more time should be spent researching and studying,
and conferring on, the procedure, particularly in light of the recent appointments
to the Board. He felt the process needed to be retraced or slowed down in that
sense."
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It was MSUC (Starr/German) to approve the minutes of November 8, 2006 with the
above modification to Member Glanz' comments.
3. Continued Review of Proposed Revisions/Amendments to Code of Ethics.
Regarding Section 2.28.160, Disclosure of Board Records, Attorney Hull had some
concerns regarding the wording of this section, which was adapted from the City of San
Diego's Code. She explained that, under the Public Records Act, if a complaint was
forwarded to the FPPC or District Attorney for investigation, the documents the Board of
Ethics produced were not necessarily protected information once the complaint was
closed. As an example, she cited instances where the City Council may have reached
a settlement in Closed Session and, once the litigation was no longer pending litigation,
under the Public Records Act someone could get access to the original documents.
Also, in the case of the City of San Diego, they are an autonomous agency and the
holder and keeper of documents, whereas the Board of Ethics is not; the Chula Vista
City Council serves in this capacity. Her suggestion was to simplify this section to read;
"The documents will be retained as confidential as allowed pursuant to the California
Public Records Act Section 6250 et seq."
Member German agreed that simplifying the language was advisable, and suggested
wording similar to; "Disclosure shall be governed by the terms and precedent of the
California Public Records Act."
Member Glanz had a different perspective. He felt the complaint process should be
open from the beginning. His understanding is that the Board has no enforcement
powers or judicial powers and its function historically has been to render advisory
opinions about ethics separate and apart from the legalities. He felt the term "issues"
was preferable to the term "complaint", and felt that once an issue was brought forward,
it was the duty of the Board to deliberate and reflect on it in open session.
Member Chambers referred to the Board's earlier decision to conduct part of the
process in closed session, and how this seemed to be the best choice. Discussion
ensued as to how this decision was reached and that the Board was comfortable with
the proposed process.
Chair Searles expressed his feeling that if the Board is looking at issues or complaints
from an ethical rather than legal point of view, and the Attorney's office is dealing with
the litigation aspects, there is probably no need for closed sessions on the part of the
Board.
Member Glanz felt that once a person brings an issue forward to the Board for them to
make a determination on its ethicality, that person signs off on it like in a court of law,
and the issue becomes public. He felt that members of the public have the right to
participate, and also thought that the individual members of the Board could each
render a separate written opinion on the ethicality of each issue brought forward. Then,
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November 30, 2006
the other members could support a particular opinion of one of the members of the
Board or provide their separate opinion to the public and City Council and make it a part
of the record.
It was MSUC (Searles/Glanz) that Section 2.28.160 and any references to it should be
removed from the draft Code of Ethics. Attorney Hull thought this was a good decision.
Attorney Hull reminded the Board that they had questions about funding for outside
counsel and she distributed copies of Section 2.52.170 of the Municipal Code relating to
the campaign ordinance. Section C earmarks $100,000 to fund the retention of special
counsel, separate from the city attorney's budget and to be used solely for investigation
and prosecution of alleged violations of this chapter.
4. Full Review of Proposed Revisions to Code of Ethics - Sections 2.28.150 through
2.28.156
Chair Searles indicated that the Board should now proceed with a full review of those
sections previously approved by the Board so that the new members could provide their
input. The main item for discussion was Section 2.28.150, Procedure upon complaint.
Member Glanz felt that the term "complaint" to him represented an issue that would be
reviewed by a body that had judicial enforcement powers, not an advisory body. Chair
Searles did not feel that the lay public considered this in the same way. The rest of the
Board concurred with their continued acceptance of the word "complaint" and the
wording was not changed.
Discussion ensued regarding issues versus formal complaints and the Attorney pointed
out that this is addressed under Section 2.28.060 regarding Advisory Opinions.
Member Glanz felt that perhaps that section should be incorporated into the complaint
procedure. He also felt that under Section 2.28.150 (a) (1), the letter to potential
complainants indicates that the Board will be reviewing conduct "that may be within the
Board's investigative and enforcement authority", neither of which the Board has.
Member German suggested italicizing the words investigative and enforcement
authority and revisiting this issue later. Attorney Hull indicated she will take care of this.
Member Glanz also felt that subsection (a) (1) (d) should be deleted, and that
subsection (b) regarding the Preliminary Review in closed session should be eliminated
as this should be an open process.
At this point, Chair Searles indicated that he would like to move through the sections
one by one, allowing Board members to offer comments or concerns on those sections.
He asked if there were any other member comments on Section 2.28.150 and there
were none. Chair Searles reminded the Board that any member could voice concerns
but that unless a majority agreed, there would be no changes to the existing wording.
Member Glanz wished to make it part of the record that the overall general concepts
that he was proposing be incorporated in the code for the purpose of dealing with issues
or complaints.
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November 30, 2006
Chair Searles asked if there were any concerns regarding Section 2.28.151. Member
Glanz noted his concern. Regarding Section 2.28.152, Member Chambers had a
question about the ad hoc committee membership, and Member Glanz had a concern.
Regarding Sections 2.28.153, 2.28.154, 2.28.155 and 2.28.156, Member Glanz had
concerns.
Chair Searles remarked that it was getting late and he would designate 8 minutes for
members to address their concerns in general at this time.
Member Chambers asked Attorney Hull for clarification on the number of members on
the ad hoc subcommittee. Ms. Hull explained the composition of one to three members
was so that it would not represent a quorum of the Board and be subject to Brown Act.
Chair Searles voiced his concerns regarding the role of the Board, i.e., whether they
wished to be a more punitive type of body. He explained that he had agreed with part of
the complaint process being conducted in closed session because of the threat of
potential litigation. However, his vision for the Board is not as a board of compliance
but as a true board of ethics that will consider issues of ethical behavior, not from a
legal standpoint, but as a matter of right or wrong. If that is what the rest of the Board
envisions as its role, there is no need for closed sessions, which can result in
undermining the public's trust. He asked Attorney Hull for her opinion.
Member Chambers felt that it was unreasonable to expect the Attorney to come up with
an opinion without studying the matter further.
Member German agreed with Chair Searles' vision for the Board but felt that revisiting
the issue of open versus closed session was not on the agenda for today's meeting so
should be scheduled for a future date.
Member Glanz reiterated his belief that the review of complaints should be held in open
session because of the lack of enforcement powers of the Board. He felt the onus
should be on the complaining party to produce the evidence when bringing forward their
complaint or issue, after which they need to sign off on it.
Chair Searles summarized what he believed to be Member Glanz' vision of the
complaint procedure: The complainant brings forward an issue and presents any
relevant evidence; the complaint is reviewed by the Board in open session; the Board
members make a consensus decision as to the ethicality of the issue; each member (if
he/she so chooses) states his/her individual opinion and how they arrived at such.
Member Glanz agreed that essentially that was true but also stressed that he did not
see the need for a preliminary hearing in closed session to determine probable cause to
investigate further.
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November 30, 2006
Member Chambers was concerned that the unity of the Board would be compromised if
they could not discuss things in closed session before coming to a decision.
Member Acton felt that, from her past experience on several city boards and
commissions, there are times when issues have to be considered in closed session. In
general, she favors open meetings, but does not want to preclude the Board from
having the option of closed session discussions.
5. Disposition of Code Revisions: Sections 2.28.115 through 2.28.160
At this point, Chair Searles asked the members to make a decision on Item 5 of the
Agenda, Disposition of Code Revisions. He asked them to voice their opinions on
whether they wished to send the Complaint Procedure (Sections 2.28.150 thru
2.28.156) forward to Council as approved, or put it on the back burner until the review of
rest of the Ethics Code is completed and forward it as one document.
Chair Searles indicated that the Commission had done a lot of hard work so far but that
there is still a lot of work to be done in revising the Code and he felt the Board needed
to make a determination on whether it should be a value based code. He stressed that
if it was to be representative of the city, as opposed to just the vision of the individuals
on the Board, the Mayor and City Council need to be involved as well as members of
the community. He felt that the ad hoc committees could reach out to the public and the
Council for their views and input.
Member Starr was concerned that if the complaint procedure did not go forward soon,
the revised process would not be in place if a new complaint is filed.
It was MSUC (German/Acton) to hold the Code Revisions to Sections 2.28.150 through
2.28.156 until the entire Code of Ethics is reviewed, and then forward the document in
its entirety to the City Council for adoption.
6. Oral Communications
No speaker slips had been received.
7. Members' Comments
Member German wished to stress that the best way to have a productive meeting is for
the members to review their packets and be prepared.
Member Chambers also felt that keeping to the agenda was important.
Member Glanz reiterated his concern that the meetings should start at a later time in
order to allow the working public to participate. He felt that the Board was
disenfranchising working people from attending the meetings without hardship.
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November 30, 2006
Chair Searles recommended that there be no board meeting in December due to the
holidays, but he polled the members for their availability in January. The consensus
was to meet on January 10 at 4:15 p.m.
Chair Searles mentioned that he still plans to attend a City Council meeting and inform
them of the Board's progress on revising the Ethics Code. Member Glanz offered to go
along and Chair Searles welcomed his attendance.
8. Staff Comments - None
MEETING ADJOURNED AT 5:55 P.M. TO A SPECIAL MEETING OF WEDNESDAY,
JANUARY 10, 2007 AT 4:15 P.M.
~J~R~ec;t!
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November 30, 2006