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HomeMy WebLinkAbout2007/08/15 Board of Ethics Minutes MINUTES OF BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA Auqust 15, 2007 Attornev Conference Room 3:30 P.M. The meeting was called to order by Chair German at 3:43 p.m. 1. Roll Call MEMBERS PRESENT: Felicia Starr, Guy Chambers, Chris Searles, Michael German, Norma Toothman, Todd Glanz MEMBERS ABSENT: Harriet Acton Ms. Acton had requested an excused absence from this meeting due to personal reasons. It was MSUC (Searles/Glanz) to grant Ms. Acton an excused absence. STAFF PRESENT: Joan Dawson, Deputy City Attorney (left at 5:15); Sharon Marshall, Senior Assistant City Attorney, Cheryl Ponds, Legal Assistant Chair German requested a motion to take Item 7 out of order so that the representative from the District Attorney's Office could be heard first. It was MSUC (Starr/Searles) to consider Item 7 at this time. 7. Discussion with Patrick O'Toole from the District Attorney's Office Public Integrity Unit. Chair German introduced Patrick O'Toole of the District Attorney's Office Public Integrity Unit. Mr. O'Toole explained that he has been working for the DA's Office for approximately two years. Bonnie Dumanis, the current DA, had determined that the office should give more priority to public integrity cases and Mr. O'Toole has been setting up the unit, which was formally announced to the public in March 2007. Mr. O'Toole discussed the Grand Jury system and the modifications made by his office. The Public Integrity Unit may compel public officials to answer questions and produce public records. Prior to its formation, testimony was voluntary, and a search warrant was required to acquire public records. The new Grand Jury system is modeled after the Federal system, combined with some pre-existing statutory rules from the State system. He explained that the State Grand Jury System has been in existence since California was a territory, but it has primarily been used for indictments, not as an investigative tool. These changes were all reviewed by and approved by the District Attorney and the Superior Court. Previously, the Grand Jury was not in session unless it was considering an indictment. The revisions have changed the Grand Jury from case-specific to a sitting panel. There is a Grand Jury all the time now - a panel sits for 30 days, and every 30 days a new panel comes in. He also discussed the requirement for secrecy in Grand Jury investigations, and the "sanctity of the oath," whereby people may be charged with Grand Jury perjury if they lie during an investigation. He stated the unit's primary concern is with public officials privately benefiting for doing official work. He also explained that his office only has jurisdiction over violations of the California Criminal Code, and not over various cities' Municipal Codes. Also, violations of an Ethics Code do not come Board of Ethics 8/15/07 Page 1 under the jurisdiction of his office if they are not criminal offenses. He then asked if there were any questions from the Board. Chair German questioned some of the recent prosecutions for perjury and, in particular, how some investigations (e.g., Scooter Libby) focus on a collateral or minor matter, as opposed to dealing with the more important issues. Mr. O'Toole explained that in order for perjury to be committed, it requires a material and intentional falsehood. If someone before the Grand Jury lies as to his whereabouts at a particular time or where he lives, and the response is not material to the case, that would be a lie but not perjury. He then discussed various aspects of the Steve Castaneda and Jason Moore investigations which are in the public transcripts. Member German asked if the same standards would be applicable to Joe Q. Public as to elected officials, and he responded that the only difference in his mind was that there is a higher standard for public officials, and he expects them to be honest, ethical and law-abiding. Chair German expressed the Board's concern in the past that they had investigated complaints and forwarded them to the District Attorney's Office and never heard back on the determination by the D.A. He explained that the Board is currently in the process of reviewing and revising the City's Ethics ordinance, and wondered what might be done to improve the coordination between offices. He also explained that the FPPC had not responded to the Board either. Mr. O'Toole explained that the FPPC is an administrative body and they do not have the same ethical constraints as the D.A.'s Office in so far as discussing the status of a case. The District Attorney, on the other hand, cannot legally comment on any investigations. He recognized that this is frustrating but it is the way it is. Member Glanz questioned what Mr. O'Toole's opinion was of the role of the Board of Ethics and what it should be. Mr. O'Toole responded that the Board is the voice of the City regarding what it considers to be required or expected behavior and if someone falls short, the Board's function should be to remedy that. He felt that it is up to the City Council to determine the role of the Board, and that the type of Board that works for one City may not function well for another. Member Glanz asked Mr. O'Toole if it was his opinion that the Board should not investigate a complaint before discussing it with the Public Integrity Unit. Mr. O'Toole felt that complaints that fell within the normal realm of the Board of Ethics should be handled as regular business but if the complaint dealt with the possibility of criminal behavior, the Board should contact his Unit, they would take a look at it and, if they felt it would compromise their investigation, they would ask the Board to hold off, or if the Board could consider certain aspects of the complaint while the D.A. investigated others, his office would let them know. Member Searles questioned the use of 12 different Grand Juries for the investigation process, and then using the same Grand Jury for the indictment phase. It was his concern that one of the people serving on the investigation Grand Jury phase might also be selected for the indictment process. Mr. O'Toole indicated this could not happen. Member Searles then questioned what would happen (for instance, in the City of San Diego) if the Public Integrity Office is investigating a complaint and finds that there is an ethical violation but not a criminal act, where does that go? Mr. O'Toole indicated that many complaints they receive are referred administratively without review by the Public Integrity Unit. He indicated that most problems in San Diego are ethical/governance issues rather than violations of the California Criminal Code. Board of Ethics 8/15/07 Page 2 Member Searles referred to Mr. O'Toole's earlier remarks regarding the Castaneda case, and his belief that if Councilman Castaneda had consulted with the City Attorney's Office before considering purchasing the property in question, perhaps the problem would have been avoided. Member Searles asked whether there is a role for the Ethics Board to provide ethical opinions to public officials. Mr. O'Toole responded that if an official had City Attorney advice that it was okay to do something, or an opinion from the Ethics Board, assuming that that advice was not suspect or corrupt, (even if it were foolish), he would take that into account when determining whether to bring an indictment. Member Chambers voiced his concern about the importance of closed sessions to protect the reputation of the individual. He briefly described the Board's discussions regarding open versus closed settings for hearing complaints. Mr. O'Toole agreed that this has always been a problem, but he felt that the more confidence people had in the confidentiality of the investigation, the more likely they would be to open up. Member Toothman asked what remedy a politician would have if it were inadvertently leaked that there was an investigation. It was Mr. O'Toole's opinion that the media, if they are ethical, should print a retraction. Chair German asked Mr. O'Toole how he decides which cases to investigate. Mr. O'Toole explained that he looks at the nature of the allegation to see if it involves corruption or other criminal behavior, rather than charges about Brown Act violations or other non-criminal acts. He also prioritizes referrals from the City Attorney, law enforcement, and ethics groups. Chair German inquired as to how the Board of Ethics could be given subpoena powers, and Mr. O'Toole responded they would have to discuss that with the City Attorney. Mr. O'Toole handed out copies of the Public Integrity Unit Case Flow Chart, and the Board thanked him for his time and patience in speaking to them. Discussion ensued regarding the remaining items on the agenda and the time available to consider them. It was MSUC (Searles/Glanz) to vote on approval of the minutes, and then take Item 4 and Item 3 in that order. 2. Approval of the Minutes of July 26, 2007. It was MSUC (Searles/Starr) to approve the minutes of July 26, 2007 as submitted. 4. Board of Ethics Appointment Process. Member Searles recapped his discussion with Coronado City Councilman Phi Monroe regarding the Board's desire to have an outside appointment process for new members. Mr. Monroe had spoken to the Coronado City Manager regarding the idea of connecting with other cities in the County to create independent review boards for certain appointments, and he felt it was a good idea. Member Searles had been working on a template for creating such a board, and felt that having a mix of City Managers and elected officials would provide a good balance. Ultimately, the Mayor and Council would have to approve the appointment, but the background and experience checks, etc. would be performed by the independent board. Board of Ethics 8/15/07 Page 3 Member Glanz indicated he had not had much success in his attempt to secure volunteers to review Ethics Board applicants, but he questioned the need for elected officials on the proposed panel. It was MSUC (Toothman/Glanz) that Member Searles be authorized to pursue preparation of an enabling proposal for discussion at the next Board meeting. 3. Discussion of EC02-2006, and Letter from Board of Ethics with Cover Letter from City Attorney's Office to California Fair Political Practices Commission re: EC02-2006. Chair German recapped that this item concerned the letter the Board of Ethics had sent to the FPPC and were still awaiting a response. Member Searles clarified that this is an open complaint. As a body, the Board had voted that this complaint merited consideration and over a year has passed since it was forwarded to the FPPC. At this point, the Board needs to decide whether to bring the complaint back. The Board has the ability, per the Code of Ethics, to proceed with this complaint if they wish to. Member Searles asked if there had been proper notification. Attorney Dawson cited Municipal Code Section 2.28.150, and read the applicable portion, i.e., "Upon receipt of a complaint or information as prescribed by the Code of Ethics, the Board shall determine by majority vote if there is probable cause to believe a violation has occurred. The Board shall notify the officer alleged to have violated the Code of Ethics of the charges contained in the complaint or information immediately but shall not reveal the identity of the complainant until and unless it is determined that probable cause for such complaint exists. The officer shall be entitled to submit a statement to the Board of Ethics or may appear personally at such time as the issue of probable cause is to be discussed by the Board. If no probable cause is determined, the Board shall dismiss the matter summarily and notify interested parties in writing. If probable cause is determined, the Board shall take further investigational and procedural steps necessary to resolve the matter." It was her concern that when this complaint was originally considered, that notice was not given, and that the 60 day window expired. Member Searles responded that when the complaint was initially heard, a representative of the respondent was present when the Board decided to consider the matter in closed session. Also, as a matter of public record, the respondent commented on the case in a public newspaper, so it would appear the respondent had notification. The Board questioned whether the Code delineated specific means of notification, e.g., did it need to be written. Attorney Dawson stated the Code did not specify the notice had to be written. However, she was concerned with what was reasonable and appropriate, and due process considerations. She also mentioned that she had called the FPPC (Terry Rindell, telephone 916-327-2718) regarding the complaint and was told the FPPC does not give status reports, although they do notify the complaining party (Board of Ethics) when the case is closed. Chair German volunteered to call Ms. Rindell for an update. He then questioned whether the Board can move ahead on this complaint based on the concern regarding the notice. It was Attorney Dawson's interpretation of the Code that the respondent has the right to receive immediate notice prior to the hearing of the Board regarding probable cause, even if it is a closed session. The Code, as stated earlier, provides that the respondent shall be entitled to submit a statement or to appear in person. Board of Ethics 8/15/07 Page 4 Member Searles indicated that it appeared the Attorney was saying that even though a representative of the respondent was present at the meeting where it was determined there was probable cause, and even though the respondent commented on the complaint in the press, there still needed to be notification in writing. Attorney Dawson suggested that if the Board wished to reconsider this complaint, they would have to renotice it and give the individual an opportunity to appear before the Board. The fact that it would not be "immediate notice" could possibly be grounds for the respondent to protest. Discussion ensued regarding the history of the complaint, and conflicting advice received from the City Attorney's Office at the time. Chair Searles voiced his concern that the Board's ability to look at a case could be at risk even though a sitting Chula Vista Board of Ethics unanimously found it to have merit for investigation. Attorney Dawson wished to comment on the ambiguity. She cited Municipal Code Section 2.28.050 B 1, Specific Prohibitions, where it states, "Used one's position or title for personal gain but not found to be an act of illegality or conflict of interest by the District Attorney, Grand Jury or Fair Political Practices Commission." In her opinion, the ambiguity was in that section of the Code itself. The advice given to the Board in the past that there needed to be a determination that it was not illegal conduct is consistent with that section. However, elsewhere there are issues regarding timing, specifically a 60 day window to act. That is why the Board is in the process of reviewing the Ethics Ordinance, looking at inconsistencies and clearing up ambiguities. Chair German asked the question again as to what the Board wishes to do with this complaint, and make a motion to that effect. Member Toothman indicated she felt the Board should move forward with the complaint, but give the newer members of the Board some time to review it. Member Searles voiced his belief that there is a responsibility of the Board to continue this case inasmuch as there was a determination that an ethics violation might have occurred. He felt that this path was necessary, even if caused criticism of the Board for being beyond the 60 day window interpretation. Ms. Dawson read the section of the Code pertaining to the 60 day window, as follows: "For Board action, complaints concerning unethical patterns of behavior must be received by the Board within 60 days of the most recent event comprising the pattern of behavior complained of or within 60 days of when the last event should have been discovered with the exercise of reasonable diligence." In her opinion, that basically states that if the Board of Ethics receives a complaint that is more than 60 days old, they would not have the ability to act. Chair German indicated that the Board had acted on the complaint well within the 60 day window - the only problem was with the notification. Member Glanz expressed his concern with not having been a part of the original discussions about the complaint. It was MSC (Searlesrfoothman) to itemize this complaint as a closed session item on the next agenda. The Board of Ethics will consider further discussion of this case, and proper notification will be made to the respondent and the complainant. Member Glanz voted "no." Attorney Dawson indicated that the notifications to the respondent and complainant must come from the Board. Board of Ethics 8/15/07 Page 5 Chair Searles mentioned as a point of order that in previous closed sessions, representatives of the respondent had been present but not representatives of the complainant. Attorney Dawson indicated that that was proper because the complaining party has the right of confidentiality. Chair Searles asked if they had a right to be there, and Attorney Dawson indicated if the complaining party wished to be present and/or have a legal representative present, that would be acceptable. It was also her opinion that the respondent and complainant should be notified of this fact. It was MSUC (Searlesrroothman) to notify the complainant and respondent in Case EC02-2006 that they may be present themselves and/or have legal representation present at the closed session when this complaint is discussed. Member Glanz at this point wished to clarify his earlier opposing vote on reconsidering this case. He stressed he was uncomfortable with the process only. At this point, Ms. Dawson indicated she would have to be leaving the meeting shortly but wanted to present some information on Item 6. 6. Status of Ad Hoc Committee and Ethics Code Revision Time Line. At the July 26, 2007 meeting, Ms. Dawson had indicated she would follow up on the status of agendizing this item for a City Council meeting. The process requires the Board of Ethics to submit a letter to the Mayor in order to get the item on an agenda. Even though a verbal request had been made, a formal written request from the Board to the Mayor is procedurally necessary. Once the Mayor approves the request, it will be forwarded to the City Clerk for placement on an upcoming agenda. Chair German will draft the letter to the Mayor, and it will be on the next meeting agenda for approval by the Board. 8. Follow-up re: Letter from the Board of Ethics to the City Attorney's Office re Independent Counsel dated July 17, 2006. 9. Follow-up re: Letter from the Board of Ethics to Interim City Manager re Reimbursement Request for Ethics Training dated July 17, 2006. Member Searles indicated that Item 8 and Item 9 refer to letters he wrote to the City Attorney requesting the appointment of independent counsel on a case-by-case basis, and to then Interim City Manager Jim Thomson requesting additional paid training in public service ethics Neither request had been responded to. Attorney Dawson had followed up with the City Attorney, who indicated that when the letter was received, she did not feel a response was necessary because the City has always provided outside counsel when it was necessary and would continue to do so. The role of the City Attorney's Office is to advise the City, not the individual elected officials. If the Board of Ethics perceived a need for outside counsel, they would notify the City Attorney's Office and it would be provided, as has been done in the past. Also, the Attorney's Office is currently working on an outside counsel policy which will be presented to the City Council sometime before the end of the year. Board of Ethics 8/15/07 Page 6 I I Regarding Item 9, Ms. Dawson indicated she had forwarded the Board's request to Interim City Manager Thomson to City Manager David Garcia earlier today and she didn't know if he had seen the original request. Chair German asked if she could follow-up with Mr. Garcia sometime next week to see if he has had a chance to review it. She indicated she would. Member Glanz suggested that both Items 8 and 9 be placed on the agenda for status reports next month. Member Searles stated his understanding that Item 8 has actually been responded to via Attorney Dawson's comments, although unfortunately it took 13 months for the Board to get an answer. If this is true, there is no point in agendizing Item 8 for the next meeting. The Board concurred, and only the response from the City Manager (Item 9) will be carried forward. Chair German referred back to Item 6 regarding the timeline for the Ethics Code revisions, and indicated that the minutes from February 21, 2007 reflect that the Board's goal to present the draft revisions to the Council is the end of 2007. Even though the timelines for getting the ad hoc committee active and conducting public workshops and incorporating input from those meetings are not on schedule, it will still be his goal to have the Code revisions ready for Council review by the end of the year. 10. Oral Communications David Krogh, 712 East J Street, a member of the GMOC, indicated he had never attended a Board of Ethics meeting before and he was impressed with the work they were doing. He questioned how it came to be that Patrick O'Toole had attended today's meeting. Chair German explained that the impetus for inviting Mr. O'Toole was to learn more about the Public Integrity Unit, and how the Board could work with them to mutual advantage. Chair German apologized for the confusion earlier regarding the location of the meeting room for today's meeting. He had been trying to get it moved to the Executive Conference Room, which is a larger facility, but there was a conflict at 4:00 p.m. 11. Members' Comments Member Searles commended the members of the public for sitting through this lengthy meeting. He also mentioned he had enjoyed the presentation by Patrick O'Toole and looked forward to working with the Public Integrity Unit. Member Toothman also indicated she found Mr. O'Toole's talk very informative. Member Chambers indicated he had talked to Bonnie Dumanis about a month ago regarding procedures and protocol, but he felt that Patrick O'Toole had given insight into the way the Public Integrity Unit operates, and their rules regarding criminal versus ethical infractions. Chair German thanked the Board for their support of him. He also indicated his appreciation of Mr. O'Toole's presentation. Board of Ethics 8/15/07 Page 7 12. Staff Comments. None. ADJOURNMENT 5:35 P.M. TO THE NEXT REGULARLY SCHEDULED MEETING OF SEPTEMBER 19, 2007 IN THE ATTORNEY CONFERENCE ROOM. ~:~sEc12y Board of Ethics 8/15/07 Page 8