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HomeMy WebLinkAbout2007/10/17 Board of Ethics Minutes MINUTES OF BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA October 17. 2007 Attornev Conference Room 3:30 P.M. 1. Roll Call MEMBERS PRESENT: Felicia Starr, Todd Glanz, Chris Searles, and Michael German. MEMBERS ABSENT: Norma Toothman, and Harriet Acton. Chair German indicated that there been calls received from Norma Tootham and Harriet Acton and that they would not be available at tonight's meeting. Chair German moved to excuse Member Toothman's and Acton's absences. Members Searles and Starr seconded, and the motion carried unanimously. ALSO PRESENT: Deputy City Attorney Joan Dawson, Joyce Malveaux, Legal Assistant, and Shawn Hagerty, Esq. 2. Approval of the Minutes of August 15, 2007. Chair German questions whether there are any modifications or changes in order. There are none. Chair German directs the board members to page 4 of the agenda, item 3, Discussion of EC02-2006. German advises that since this is a separate agenda item today he respectfully requests that the members review the 3rd paragraph that begins "Member Searles clarified. . . ", and wants to make certain that the board members are comfortable with the minutes as far as their factual accuracy goes. Chair German further directs the board members to the paragraph that begins "Member Searles responded. . . when the complaint was initially heard a representative of the respondent was present when the board decided to consider the matter in closed session" and questions whether this purports with the board members' recollection. Member Searles states that the language as so written is consistent. It was MSUC (Starr/Glanz) to approve the August 15, 2007 minutes as submitted. 3. Discussion of EC02-2006. Chair German advises that there is a representative of Councilmember Castaneda present. German requests that this individual state their name for the record. The individual advises her name is Linda Wagner. DCA Dawson advises that board members for clarification that Ms. Wagner is not a legal representative, but a staff representative. Member Glanz requests that others present identify themselves to the board members. Shawn Hagerty of Best Best and Krieger advises that he is special 1 counsel on the discussion of EC02-2006 only. Also present was Sandy Duncan. Chair German states that Mr. Hagerty is present due to a question concerning EC02- 2006, or the Castaneda complaint. Chair further states that the reason why Mr. Hagerty was retained for purposes of today's meeting only by the City Attorney was that the City Attorney felt uncomfortable and perhaps there would be a conflict in representing the Board of Ethics interest today in light of what is to be discussed under this agenda item. DCA Dawson further states that the Board of Ethics had previously requested that when certain complaints came up that the City Attorney retain independent counsel. Glanz questions when there was a request made for independent counsel. Searles advises that this determination was made in June 2006 before Glanz became a member. Chair German states that the issue is whether or not the board complied with the notice provisions in originally handling the Castaneda complaint. Chair German asks Ms. Wagner whether she feels comfortable stating Councilmember Castaneda's position. Ms. Wagner states that in speaking for herself, she can say that she doesn't recall any notice. Chair German states that this conflicts with the minutes of August 15 and June 14,2006. Chair German asks what the members have to say regarding this. Mr. Hagerty states that the ordinance requires that notice be provided to the subject of the complaint, and that any opportunity to appear and be heard be provided. Mr. Hagerty states that the legal issue is whether that notice was given as required in the statute it is a required element for the board's action on the complaint itself. Glanz questions which ordinance this comes from. Mr. Hagerty states Chula Vista Municipal Code section 2.28.150(a). Searles states that as the code reads there is a sixty-day (60) window in which the board must receive the complaint based on when a reasonable person would have discovered that a violation occurred. Searles advises that in reading 2.28.150 he doesn't see a time limit, but it reads "upon receipt of a complaint or information the board shall determine by majority vote if there is probable cause to believe a violation has occurred." Searles advises that it goes on to say "the board shall notify the officer alleged to have violated the Code of Ethics. The officer shall be entitled to submit a statement. If no probable cause is determined the board shall dismiss. If it is determined the board shall take further investigatory action." Searles advises that he does not see a time limit on notification. Searles states the first step in the conduct of hearing a complaint is to determine by majority vote whether probable cause has occurred. Searles states that in looking at the time frame here, the board received a complaint, it met the test that a reasonable person would have seen as a reasonable amount of time, and as he recalls, they decided as a board to table the matter until today. Starr further advises that this was also stated and motioned, seconded, and approved that there is probable cause to further investigate the complaint. Searles advises that 2 would be the first step as provided in 2.28.150, and that the board has done this. Searles states now the board is bringing the matter back having already gone through the District Attorney's Office. Searles advises that as he reads the code there is no time frame, and is not certain what precludes the board from notifying the respondent now and moving ahead with this case. Mr. Hagerty states that the legal issue is that the board made a determination of probable cause and the notice needs to occur before that determination is made because if the two sentences are read in context the notice would be given when the complaint is received, before the probable cause hearing and the subject of the complaint has an opportunity to appear and be heard prior to the determination of probable cause. Mr. Hagerty advises that Searles is correct in terms of there being no specified time frame as to when the board needs to take action after the probable cause decision is made, but the notice needs to occur before the probable cause hearing. Mr. Hagerty advised that the factual issue is for the board to determine as it relates to whether or not notice was given prior to the probable cause hearing. Mr. Hagerty stated for this to be a sustainable probable cause decision there needs to be evidence that that notice was provided. Mr. Hagerty further advised that if notice was given the board needs to consider whether they need to reconsider the probable cause and then take whatever action the board believes to be appropriate, and provide appropriate notice. Searles states that the question is whether or not the board is able to document or prove that they sent at least written notification, which seems the reasonable thing to do, and that this can't be a word of mouth type of thing. DCA Dawson states that the confusion is that there was notification to the councilmember after the probable cause hearing by way of letter signed by Searles basically stating that there was a vote of the board to find probable cause and that is the only documentation that was found. Searles questions whether the way the code is read explicitly says that notice must be given before the probable cause and if so where this is stated. Mr. Hagerty advises that this is found in the third sentence of 2.28.150(a) which reads: "the board shall notify the officer of the alleged. . . immediately, and that the officer shall be entitled to submit a statement, or may appear personally at such time as the issue of probable cause is to be discussed by the board." Starr questions how was it that the board notified the councilmember that they were having the meeting so that he would send a representative, and that there must have been something that went out to him and his office in regards to this. Chair German advised that there was the agenda of the board for that particular date and as evidenced in the minutes from last August the respondent commented on the case in the public newspaper so it would appear that the respondent had actual notice although that is not necessarily the written notice that is being discussed. Searles questions that if the board cannot identify that proper notice was served if this precludes them from reviewing this case again with proper notice. Mr. Hagerty advises that there are the sixty (60) day time limits discussed earlier, but he believes that the 3 board could renotice the matter and reconsider the probable cause issues, and states that he can review the sixty-day time period issue and advise the board again in the context of the probable cause hearing because this still may be an issue, but the board has taken an action, the subject is now aware of this, and now it is just a matter of handling the procedurally correctly and preserving issues. Chair German suggests an alternative, stating if Mr. Hagerty's research determines that the board can proceed legally with the matter the question then becomes if whether or not the board chooses to do so and if this would be proper, particularly in light of the District Attorney's action which grows out of the City's issues alleged in the complaint, as well as whatever else may be occurring before the Fair Political Practices Commission ("FPPC"). Starr states that since the board has already approved that there was probable cause the board needs to complete the circle. Glanz states that he does not understand who the complainant is and whether or not the complainant is pursuing the complaint as this matter occurred a long time ago. Chair German states that subsequent to the complainant lodging the complaint with the City, the board has not heard further from him. Glanz questions if the complainant has come forward since over a year ago and who the complainant is. Chair German states the complainant is Mark Croshier. Glanz again questions if Mr. Croshier is still interested in pursuing the issue. Chair German advises that the board is not aware of this and questions if that is a relevant question as the complaint is directed to the board. Searles states that he believes that if someone submits a complaint under penalty of perjury and signs there name on it and this board decides there is merit to move the complaint forward then the facts haven't changed. Searles further advises that complainant could have been a person that has passed away and it would still be irrelevant, as this is a matter that is on the table. Chair German provided background on the matter and states that the board initially had a meeting and determined that there was probable cause, a letter was then drafted by the board to the District Attorney's Office and the FPPC, on or about the same time notice was given to Councilmember Castaneda. Chair German further provides that they later learned in speaking with Patrick O'Toole that the District Attorney's Office is pursuing the matter, yet there has still been no word from the FPPC regarding the status of this complaint. Searles states that the board had also received advice from the City Attorney's Office that it probably wasn't okay at the point to look at this complaint if there wasn't an opinion submitted by the District Attorney and/or the FPPC. Member Searles states the reason why the board didn't notice at that point was because the board had decided in closed session that there appeared to be something there, but was told that they probably couldn't move forward with this if there appears to be something else in the purview of the FPPC or the District Attorney's Office, and that they would have to be given an opinion advising whether there was some illegality involved from either's point of view before the board could move forward. Searles further states that this matter was then tabled pending a response from the FPPC and the District Attorney's Office. Searles states that part of the issue surrounding 4 notification was that the board didn't feel as though, or was basically told that, this was not in the board's purview until they had an opinion from the District Attorney's Office or the FPPC. Glanz reads the three motions from June 14, 2006, items 1-3: "The board convened closed session at 4:32 p.m. on June 28, 2006, closed session ended at 6:04; Vice Chair Searles reported that there were three motions voted on. 1) It was MSUC that there is probable cause to further investigate complaint EC02-2006; 2) It was MSUC to refer complaint EC02-2006 to the FPPC and the San Diego District Attorney's Office; 3) to postpone further consideration by the Board of Ethics of Complaint EC02- 2006 pending the findings of the FPPC and/or the San Diego District Attorney's Office." German advises that this is the motion to table. Glanz continues "Attorney Foster asked how the board would like to implement the actions they took regarding complaint EC02- 2006. Member German will draft a cover letter to the FPPC and the San Diego District Attorney's Office for transmitting the complaint. Board members will review and comment on the letter at the next meeting before transmitting the cover letter and Complaint EC02-2006 to the FPPC and DA's Office." German advises that the board never heard back from the FPPC, initially heard back from the District Attorney's Office, and later learned independently through the press and that the District Attorney's Office was pursuing the matter, and stated that when Patrick O'Toole spoke to board members at the last meeting he went into some detail about the issue. Mr. Hagerty states that the first issue is that if the board cannot establish that appropriate notice was given for the probable cause hearing that the board needs to assume that they haven't established probable cause yet, and that references being made to the board establishing probable cause should not be made as the board needs to redo this if they are going down that route. Mr. Hagerty states that issue number two is that it appears the board was previously advised, and as the code is written that a relationship must exist between at least one of the specific definitions of unethical conduct and a FPPC investigation and a District Attorney's Office investigation. To an extent there is an ongoing District Attorney investigation and trial, there may be an issue as to whether the board still needs to wait until that is concluded, at least if they are duplicating the actions of the District Attorney. Searles states that the board has had additional guidance from the City Attorney's Office, which provided that the board could have an investigation in parallel. DCA Dawson confirmed that she advised the board that they could have an investigation in parallel, and that it is ambiguous. DCA Dawson stated that she can see where the board has been advised by the City Attorney's Office in the past related to the fact that the board had to table the matter, and that the specific provision is 2.28.050(b) where it states: "specific prohibitions, City officials including non-paid commission, board and committee members, shall be considered to have committed unethical conduct if any of the following occur: 1) used one's position or title for personal gain, but not found to be an active illegality or conflict of interest by the District Attorney, Grand Jury or FPPC." DCA Dawson advised that she believes that 2.28.050(b) is the subsection she believes the City Attorney's Office has relied on in the past to state that the board has to wait, but she thinks there is going to be specific facts that are going to have to weigh in the process to determine whether or not the board is relying on that or if it is in essence the same action and that is a factual determine. 5 DCA Dawson advised that whether or not the probable cause hearing has to wait she believes the answer is probably no. Mr. Hagerty advised the board that if they are operating under section (b)(1) there is an issue about the board's ability to conclude that ethical conduct has in fact occurred if there is a pending Grand Jury or FPPC prosecution going on. Mr. Hagerty further stated that this section is clearly designed to catch action that doesn't amount to a violation, but is, in the opinion of the board and consistent with the code, still something that in the board's interpretation is unethical conduct. It, therefore seems appropriate to wait until there is a determination made and if there is an actual prosecution, then the board cannot rely on that section. Mr. Hagerty advised that if the board is proceeding under any of the other sections, the board would not have the same issue, but with respect to section (b)(1) that issue is prevalent. German states that for purposes of the notice issue before the probable cause hearing there is general agreement among the board that the board has difficulty in proving that proper notice was given to the councilmember by the board prior to probable cause hearing. Searles states that the three questions on the table are: 1) whether or not the board is going to move forward and notice the respondent appropriately; 2) if the board is allowed to proceed within the sixty-day window; and 3) section (b)(1) says that the board should have an opinion from either the DA, the FPPC or Grand Jury, and if this applies. Searles further stated that with regards to noticing the respondent, this is easy to do, and should have been done previously, as the board relies on guidance in the implementation of the Code from the City Attorney's Office; with regard to the sixty-day notice Searles request an opinion from Mr. Hagerty regarding whether or not this is an issue, as the Star News broke the story in May 26, 2006, and that the complaint was submitted on June 5, 2006, appears to be enough. Mr. Hagerty advised that board that he agrees with this. Searles stated that the last issue with regard to section (b)(1), and the reason why this matter has been back and forth is because this is ambiguous and is up to interpretation, and the question is whether it has to be all three agencies agreeing or can it be the DA, Grand Jury or FPPC, as it reads in which the board already has an opinion from the DA. Searles states that if the opinion doesn't have to come from all three agencies, his view would be that the board is able to move forward. Searles then questions if whether the board is able to discuss and implement action about what the people have a right to do, which is the law, and what is right to do, which is ethics. If there is a concurrent or parallel legal investigation with legal ramifications how possibly could that preclude a Board of Ethics from moving forward to discuss what is right to do and not what one has a right to do. Searles states if the board is empowered to look at the ethical question, then how possibly could the board preclude a parallel investigation based on the legality of the issue when that is not in play here. Searles states that the board has no prosecutory powers, nor powers to implement the law or to investigate the law. Searles advised that this is about ethics, and does not see how a legal investigation precludes this board from issuing an advisory opinion or making a discussion about what they feel is ethical or not. 6 German advised that he would like to rule out any other bases for ethical consideration under (b); specifically, the board has identified section (b)(1) as the one section of the code most closely embracing the complaint here. German questions Mr. Hagerty regarding whether the other bases, two through seven, do not provide a basis for consideration by this board? Searles advise that having looked at the complaint it would be impossible to determine whether or not it is solely section (b)(1) that is in play or whether any of the other provisions are in play. Starr states she believed there were two sections that the board determined to make a decision on, but she doesn't recall which one besides (b)(1). Searles states that it appears to him that a fact-finding process has to occur before the board can determine which specific prohibition is in play. Searles further advised that without the benefit of the respondent's answer he doesn't see how the board can make a determination of which specific prohibition is in play. Glanz states that his first point is 1) in reading (b)(1), it seems to him to say that with anyone of those entities, District Attorney, Grand Jury, or FPPC, conducting an investigation or prosecution, that would require the board to wait, but regardless of that he doesn't feel it is prudent to go forward with a complaint against any individual that is already being charged with multiple felonies as being investigated by the District Attorney and that the board has other priorities and that there are other things the board can do. Glanz states that the board can use a lot of what happens with a criminal prosecution or investigation that is going on and feels it would be a waste of time to pick up the same issue that the DA is or will potentially investigate and prosecute. Glanz advised that he doesn't see the reason for pursuing this and that the board has a lot of things to do and again the councilmember has been charged with multiple felonies and considering priorities, let alone 228.050(b)(1) he doesn't see it as being a prudent use of time. Starr stated the board has already determined that there was probable cause and the board can't just not follow through, and that the board has to complete the process. Glanz advised if that is the case it should be done after the multiple felonies that the councilmember is being charged with are resolved, rather than wasting time and resources. Searles states that he respectfully disagrees with Glanz' second point because he believes that the code is pretty clear that even though there are lots of other things the board could and maybe should be doing this is part of the board's job to investigate signed complaints by members of the public, as that is what the board is charged with. Searles advised that this may be inconvenient and so then the test is the more felonies you have and the more you are inconvenienced by the legal point of view the more likely the board is not to investigate the complaint is not sensible. German states that the immediate question before the board is how to deal with a matter that has been tabled. German questions Mr. Hagerty and DCA Dawson if Robert's Rules of Order provide the standard for de-tabling a motion. German advised that it is his recollection that there is a heightened standard in terms of how many votes are needed to bring a motion off the table. Mr. Hagerty directed German back to the original notice issue and in his view advised the board that they needed to start the entire process over. Mr. Hagerty advised the board that he is not saying that they 7 cannot consider the complaint that was filed, and that the board has already provided to both the DA and FPPC , cannot be pulled back, but it would seem to him that the board needs to decide if notice wasn't given if they want to hold a new probable cause hearing, as well as deciding which prohibition the board falls under, whether or not it makes sense to go forward given there is a pending trial with the DA that implicates some of the same issues. Mr. Hagerty advised that board that they should start by assuming that notice wasn't given if the board wants to reset the matter for a probable cause hearing. German advised that in order to bring the matter back as an active matter the board must first take the matter off the table. German recollection of Robert's Rules of Order under which the board operates is that motions to table and/or to bring off the table have a higher voting standard. German advised that he does not have the answer to this question and has asked DCA Dawson to determine this. DCA Dawson states that Municipal Code section 2.04.470(c) provides: "a motion to postpone temporarily, purpose: to set aside on a temporary basis a pending made motion" not on point, provided that it may be taken up against the consideration during the current meeting or the next regular meeting", it's not on point. Mr. Hagerty states this is a good question, but the point is that if the board didn't do the original steps correctly most of what occurred should be wiped clean and the board should start all over. Mr. Hagerty advised that he doesn't feel that the board needs any certain motion to do that as this is a code issue and potentially deprocess issue. Mr. Hagerty further states that his only other question is whether or not the board still has jurisdiction to start the process again, as he doesn't see anything in the code that says the board doesn't because the complaint was made in a timely fashion. Mr. Hagerty advised that this is the issue he would like to focus more on, and if the answer is that the board still has jurisdiction he would suggest the board renotice the matter and restart the process. Searles moved to reconsider complaint EC02-2006 with proper notification to both the complainant and respondent, and that this matter is renoticed for the following meeting of the Board of Ethics. It was MSUC (Searles/Starr) to reconsider complaint EC02-2006 with proper notification to both complainant and respondent, and that this matter is renoticed for the following meeting of the Board of Ethics, and the motion passes with Searles, Starr in favor, no reason for Chair German to vote to cause or break any tie. Glanz opposed. German advised that implementation requires notices to the respondent, Mr. Castaneda. German questions DCA Dawson if whether this notice should come from the board. DCA Dawson advised that she is not aware of a formal procedure in place, but section 2.28.110(c) states: "that the City Attorney or an appointed representative", meaning of the board, "shall act as secretary to the board. The secretary shall cause notice of the meeting of the board to be kept and distributed. The secretary shall also give appropriate and required notice of all meetings to all members and persons having business before the board." DCA Dawson advised that she believes it is established 8 that the City Attorney is the secretary for the board. DCA Dawson asked that the board provide directions specifically in this instance just provide the notice and requested that German as the chair formulate the notice and we would provide the administrative/clerical function. Chair German tabled this item for the next meeting of the Board of Ethics. 4. Board of Ethics Appointment Process Member Searles advised that he had the opportunity to speak with Mark Ochenduszko, City Manager for the City of Coronado, Gary Brown, City Manager of Imperial Beach, and Phil Monroe Councilmember for City of Coronado regarding selection process. Searles advised that the ultimate goal here is to create an appointment process or at least a review that is outside of the City Council and the Mayor. Searles advised that the Mayor is one hundred percent behind this, and has also independently discussed this with folks in Coronado. Searles proposed that the City of Coronado has a monthly City Manager and Mayor meeting and that during this time they could review applications and rank applications independently and then submit their rank list back to a body or to an administrative person to create one ranking list to submit to the Mayor and City Council. Searles advised that the Mayor and City Council ultimately has to approve the applicants, but having a process where applications are independently reviewed by four people, two which are elected officials, two of which are City Managers would be an official way to do this. Chair German questions if this is work would be done on a volunteer basis. Searles advised there are no fees involved and that these individuals are willing to do this on their on, in their own time. Glanz states that he believes the system currently in place is not something that can be changed. Glanz states that the code says: "the board shall be composed of seven members appointed by the City Council." Glanz expressed concern that he would like to have someone making recommendations or appointments that are more independent from the political process. Glanz suggests some type of representation that is truly politically independent, and he doesn't see that. German questions if whether Searles' proposal involves any politicians. Searles advised that his proposals includes two elected officials and two City Managers who are not elected, but outside of the City of Chula Vista without any stake in City business. Glanz advised that he believes these officials do have a state in what the City of Chula Vista does. German questions Glanz if whether or not these people are associated with City of Chula Vista Government, as they are not elected or appointed managers of the City of Chula Vista. Glanz states correct. German questions of the individuals are elected officials and/or appointed managers of neighboring cities. Glanz states correct. German then states that the question then becomes what is the link between those neighboring officials and the Chula Vista Board of Ethics, and their interest or nexus between their positions and what the board does in the City of Chula Vista. Glanz proposed that a committee be formed that has representatives on it from various civic groups in the City including the Chamber of Commerce. Glanz further stated that the City Council can hear about and 9 approve the appointment process just as well as other options with various City Managers. Searles stated that he felt these were reasonable options, but had concern about keeping this process within the City as civic groups are stakeholders within the City. This item will be tabled at another meeting. 5. Ad Hoc Committee and Ethics Code Revisions Letter to Mayor. The board wanted a response on this item and requested more information on the status of the Ad Hoc Committee 6. Status re: Letter from Board of Ethics to Interim City Manager re: Reimbursement Request for Ethics Training dated July 17, 2006. Chair German drafted a letter to current City Manager David Garcia regarding reimbursement request for Ethics training. 7. Adoption of a Resolution re: holding Board of Ethics Meetings in the Executive Conference Room the Third Wednesday of Each Month at 3:30 p.m. It MSUC (Searles/Starr) to adopt a resolution to hold all future Board of Ethics Meeting in the Executive Conference Room on the third Wednesday of each month at 3:30 p.m. 8. Oral Communications None. 9. Member Comments None. 10. Staff Comments None. ADJOURNMENT AT 5:30 p.m. to the November 28, 2007 meeting at 3:30 p.m. ~~~VC7-- r- Recording Secretary 10