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HomeMy WebLinkAbout2007/11/28 Board of Ethics Minutes MINUTES OF BOARD OF ETHICS MEETING CITY OF CHULA VISTA, CALIFORNIA November 28, 2007 Citv Attornev Conference Room 3:30 P.M. 1. Roll Call MEMBERS PRESENT: Chris Searles, Felicia Starr, Todd Glanz, and Michael German. MEMBERS ABSENT: Norma Toothman, and Harriet Acton. ALSO PRESENT: Senior Assistant City Attorney Sharon Marshall, Joyce Malveaux, Legal Assistant, and Shawn Hagerty, Esq. 2. Approval of the Minutes of October 17, 2007. Chair German questioned whether there were any modifications or changes in order. Member Glanz wanted to clarify page 7 regarding section (b)(1) and stated that he didn't feel this section required the board to wait, but suggested that Mr. O'Toole said the board should wait until the District Attorney's investigations were concluded. Chair German suggested grammatical and punctual changes throughout the minutes, a change at the bottom of page 4 to read: "either's" point of view. Chair German also requested clarification on a comment made by Mr. Hagerty on the bottom of page 3. Mr. Hagerty stated the information at the bottom of page 3 regarding time limits were accurate as recorded in the minutes. Mr. Hagerty clarified that the time limit he referred to related to time to file or make the complaint itself, within sixty (60) days rather than time limit to act on the matter. Chair German recommended a change at the bottom of page 3, to read: there are the insert, "sixty (60) day time limits". Board members concurred. Member Searles questioned paragraph 4 beginning "It was MSUC." Searles stated that there was a motion unanimously carried voted with less than the majority of the sitting board because Chair German abstained. Searles further stated that only three members of the board voted on something, and this was not a vote because it was less than a quorum. Chair German questioned if whether in fact all members had to vote or just the quorum that allowed any vote taken to be effective. Senior Assistant City Attorney Marshall advised that unless there is a provision in the rules that provides a majority of the members must be present in order for a vote to carry, than a vote had to be a majority of the quorum. Senior Assistant City Attorney Marshall acknowledged that she didn't think there was any provision within the rules that allowed that, and a majority of the quorum would be enough for a vote to carry. 1 Member Glanz wanted additional language added on page 4, at the end of paragraph 3, paragraph beginning "Glanz states" to read: "Glanz responded that the board is duty bound to use City resources prudently and all those should diligently attend to every complaint made does not immediately expend such resources, and actually has not pursued complaints in the past. . ." Senior Assistant City Attorney questioned whether there were sections missing. Secretary Malveaux advised that the minutes were transcribed verbatim. Member Searles stated that he did not recall Glanz stating such language. Member Starr acknowledged the same. Glanz later affirmed that he was not certain if he actually stated anything regarding pursuing complaints. Chair German also did not recall Glanz's language regarding the board being duty bound. Member Searles questioned since Glanz was ambivalent about the second part of the language regarding pursuing complaints, if Glanz wanted to input duty bound language, but omit language regarding complaints being pursued. Searles stated that he would be surprised to hear the tape back, and hear that Glanz had mentioned that the complaint had been filed, but never heard by the board. Glanz stated that Searles may be correct. Glanz stated that the language he suggested is in the context of what he was communicating, and wanted language regarding the board being duty bound reflected in the minutes. Senior Assistant City Attorney Marshall was concerned that corrections to the minutes are not an opportunity to rearticulate what was previously said at the meeting, but rather to reflect things that are not accurate. Glanz then stated that minutes are not necessarily a verbatim transcription of what was said, and he doesn't believe they are. Starr stated that these particular minutes happen to be a verbatim transcript. That being said Glanz's suggested changes were not made to the minutes. Glanz next suggested the following language be inserted at the bottom of page 9, second paragraph, beginning "Glanz states", after final sentence ending with "City.": 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 has the ability to hear and approve the appointment process just as well as other options. Searles suggested the final paragraph read: Searles stated these were reasonable options, but was concerned with keeping the process within the City as civic groups are stakeholders within the City. This item will be tabled at another meeting. Searles stated that regarding Item 5, Ad Hoc Committee and Ethics Code Revision Letter to Mayor, the board wanted a response and was awaiting more information on the status of the Ad Hoc Committee. Regarding Item 6, Status re: Letter from Board of Ethics to Interim City Manager re: Reimbursement Request for Ethics Training dated July 17, 2006, German advised the board that a letter had been drafted and sent to current City Manager David Garcia. 2 Regarding Item 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. It was MSUC (Starr/Glanz) to approve the October 15, 2007, minutes as amended. 3. Discussion of EC02-2006. Mr. Hagerty stated the board could take action to rehear probable cause on the complaint. Mr. Hagerty additionally provided the board with a Confidential Attorney- Client Privilege letter dated November 27,2007, that addressed three points: 1) whether the there was anything in the Chula Vista Municipal Code which prevented the board from rehearing the probable cause issue; 2) the scope of the Board's jurisdiction under CVMC section 2.28.050(B)(1) to hear complaints that involve actions that are subject to current criminal prosecutions; and 3) how the actual hearing process should take place. Mr. Hagerty stated his interpretation was that the Board's jurisdiction fell in the area below criminal sanctions, and if a pending criminal investigation existed, it would be prudent for the Board to wait until that process was completed. Mr. Hagerty further stated if there was no criminal violation, the Board's jurisdiction would be to decide if there was an ethical violation. Mr. Hagerty advised if concluded that there was a criminal violation it would be presumed that there was also an ethical violation involved. Mr. Hagerty advised that the criminal process has already gone through, and there are sanctions in that process. Mr. Hagerty further the interpretation finds support in the legislative history, and a reasonable person could read this differently. Searles questioned if the criminal investigation, specifically referred to investigation of the same matter before the board, or the same respondent being investigated for criminal action. Mr. Hagerty responded he was referring to the same facts being investigated in the criminal setting. Searles questioned if in this particular circumstance, there is a specific investigation ongoing for perjury, and that investigation is not related to the issue before the Board, whether those two matters would be separate issues. Mr. Hagerty agreed. German stated that if the perjury charge, investigation or prosecution arose out of the same transaction, that gave rise to the matter before the board, then the matter would be considered one and the same. Searles questioned why that would be when the Board wouldn't be investigating the facts behind the perjury, but rather the perjury or whether or not a falsehood was presented after swearing to the oath. Mr. Hagerty again agreed, and stated that the problem here is that there are charges outside of the perjury that are on all fours with the matter before the board. If that were not the case, and there was perjury that was subject to the criminal investigation, but there were no criminal charges surrounding the action, then the board could continue because presumably there would have been some determination in that case that there wasn't the bases to go forward in the criminal setting on the specific facts. 3 Mr. Hagerty stated that regarding the third issue, procedure for the probable cause hearing, Chapter 2.28 of the Municipal Code does not set forth an appropriate procedure. Mr. Hagerty provided there is reasonable interpretation in the Brown Act that would allow the Board to conduct their deliberations in closed session, however, the Brown Act, provides that third parties are not allowed into closed session. Mr. Hagerty further stated, the Code provides the subject of the complaint an opportunity to present his or her side of the case. That would involve having an initial hearing in open session, where people could comment, give public testimony, and the subject of the complaint and the complainant would get to present their version of events. At this point if the Board felt it necessary, they could go into closed session to deliberate, take action, and then report out. Mr. Hagerty stated the Brown Act doesn't compel to ever go into closed session, but it is always an option. Further there is nothing apparent in the Code that compels the Board to go into closed session, but the option exists should the Board decide to do so. Searles stated that as the code is written it appears that the respondent is allowed in closed session. Mr. Hagerty advised that no one is allowed in the closed session. Searles clarified that the code says that the respondent should have the opportunity to come in and present facts, but doesn't say anything about the complainant so much, as the complainant has already presented the facts. Mr. Hagerty reiterated his analysis is closed session is only with the board and legal counsel to determine whether there is probable cause and go forward. Mr. Hagerty stated in his opinion, neither the complainant, nor the subject of the complaint, have an opportunity to be in closed session. Therefore, since the code says the subject has to have the opportunity to present its case to the board, that would have to occur in open session, which means anyone, including the complainant, could have an opportunity to be heard. Chair German further clarified both the complainant and the respondent have the opportunity to be present for the initial pre-deliberative process. Mr. Hagerty agreed. Member Searles questioned the matter of closed session being allowed under certain circumstances. Searles stressed his concern with pending litigation, and the standard of whether a reasonable person would be concerned that there is pending litigation as a result of this case, and whether airing out facts put the City, or the individual the City is representing at increased risk that might jeopardize their case if it goes to litigation. Mr. Hagerty stated that closed session does not just involve pending litigation, but initiation of litigation, including filing lawsuits, and administrative proceedings, which is why the board could go into closed session. Mr. Hagerty further stated the reason why the board could go into closed session is the board is an administrative body, taking an administrative action that will initiate an investigation. This falls within the definition of the Brown Act, which would allow the board to go into closed session. Searles stated that in this instance the board had received a letter from a lawyer in this case and feels that a reasonable person might be concerned about pending litigation. Searles further stated that nothing had been filed, but there is another case that the board may get to today where there is a question, which Jane Doe from the City is concerned about this issue, and there is no lawyer letter, pending litigation, or outright concern about litigation. Searles questioned whether regardless of that issue if the fact that the board would be conducting an administrative process allowed the board to go into closed 4 session even though there is no litigation anywhere in the horizon. Mr. Hagerty affirmed. Mr. Hagerty stated that his one concern with this issue is unlike other Ethic's Commissions, for example San Diego, these matters are held in closed session. Mr. Hagerty advised the difference is that commission has more authority than this board does. Mr. Hagerty stated it was reasonable to interpret the Brown Act, and the definition of litigation as encompassing the board's actions. Searles questioned whether it was more prudent to air facts with both complainant and respondent together before going into closed session. Mr. Hagerty advised the board that it was required for the board to air fact with blot complainant and respondent before going into closed session, which is consistent with the Brown Act. Mr. Hagerty informed the board that closed session is specifically designed to allow deliberations and discussions of a legal nature, or personnel related issues, and then to come out, make a decision and report that decision out. Searles questioned where the board was at with regard to notification of the respondent of the process. Searles moved that the board reconsider 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. It was MSUC (Searles/Starr) that EC02-2006 be reconsidered with proper notification to both complainant and respondent. The motion passed and carried unanimously. 4. Board of Ethics Appointment Process. Searles provided the board with a break down of facets involved and stated that the board was reconsidering the appointment process due to an inherent conflict of interest of having a board with an ethical purview over the Mayor and City Council. Searles presented that the screening team would be comprised of two Elected Officials, and two City Managers from our two sister cities, the City of Coronado and the City of Imperial Beach. Searles suggested that this team would be sent applications individually for review and would create rank lists on a quarterly basis. Searles stated that he chose quarterly basis is to decrease the city's heavy lifting in having to review applications on the board's behalf. Searles further stated that these lists would be submitted to City of Chula Vista staff in order to collate a master rank list, which would be kept updated on a quarterly basis in case there was a vacancy. Searles provided that a candidate would have been "adequately ranked" if at least three of the members from both cities had taken part in the ranking. Searles advised that both cities must be represented and a majority must exist. Searles provided that in terms of rank lists, such lists would be generated on a quarterly basis and kept up to date so that Mayor and Council had a master list, or reservoir to chose qualified applicants from. Searles recommended that the screening team would not meet, but would independently submit their lists to staff. Searles suggested in order to make this work, the application would have to be revised with an eye toward recognizing that four people who would never meet the applicant's would need to make an informed decisions about the applicant's qualifications. 5 Searles provided that obvious drawbacks to this system is that applications are submitted in the interim between quarterly rank lists that are submitted, and there may not be enough time for the applications to be reviewed, and applicant's might not get placed on a rank list. Searles stated that you might have an applicant that submitted an application in October, but because it's in the interim would not have made the rank list, if a decision is made in November since the next application process wouldn't be until January. Searles stated that this facet would be potentially unfair to a member of the public who would want to take part in the process, but didn't submit their application in enough time. Searles advised that another drawback was that this system doesn't fully satisfy the need for a complete independent process. Searles declared that ultimately this process would have taken the place of the judge and removed the judge's ranking of applicants and submission to the Mayor and City Council with four other people who don't have obvious and transparent conflicts of interests. Searles suggested that this system preserved the process by removing the Mayor and City Council from the full process, and allowing another set of eyes to do this, but reiterated it was still the job of the Mayor and City Council to do the appointments based on the rank lists. Searles advised that this system could still present a conflict of interest as the Mayor and City Council would appoint people who have some say over whether or not their behavior is ethical. Searles suggested alternatives to the system such as Service Learners, in which students of ethics would integrate the process into their ethics curriculum, and could be tasked with this job. Searles additionally advised the board that he knows the senior fellow for public service ethics at the Markkula Center for Applied Ethics in Santa Clara, Judy Nadler. Searles advised that Ms. Nadler has access to lots of national forums around city government ethics, as this is her specialty. Mr. Searles spoke with Ms. Nadler and she is interested in putting the boards questions regarding an alternate selection process to the nation and asking what the best practices are out there, and what other people are doing, as this is not the first time that this has come up. Searles further stated that he would be attending a meeting in late December, which is a training camp for government and public officials in which would be a forum that he could discuss this issue. Glanz stated that he believed the board needed to have an independent a process as possible. Sr. Assistant City Attorney Marshall stated that completely removing the council from the process might create a problem with the Charter as the Charter clearly says that the Council has to approve this. Glanz believed that on September 25, 2007 Council took up a motion and went somewhere and was concerned with the process with that. Glanz wanted to make sure that before the Council decided on whatever proposal the board had the issue should be discussed within the group and a resolution made within the group before going to Council. Glanz stated at the September 25, 2007 Council meeting, Mayor Cox made a 6 proposal and the proposal was accepted regarding the City Manager's screening committee. Starr questioned if the proposal made was with regard to board appointments. Glanz stated yes, Ethics Board appointments. Searles advised the board that he had not yet formally presented this matter before Council. Starr stated that she was aware that Mayor and City Council were also looking into this matter. Chair German questioned if there were any other concerns from the City Attorney's Office other than the issue with the Charter. Senior Assistant City Attorney Marshall stated that the City was planning on doing a Charter cleanup initiative in the November ballot, as there are several things that need to be cleaned up. Searles stated that he would be at the forum in mid-December and would sit down with Ms. Nadler to discuss, and that he would bring information back in January. Searles requested that this matter be tabled for January, and that he would bring back a final proposal with a menu of options, at which point the board could hopefully move forward. Chair German questioned the issue of interns, and if these interns would observe as part of their training. Searles clarified that these interns would be individuals who were interested in learning about public service ethics as either fellows of public policy or post graduate curriculum. Searles provided that there is a public policy curriculum at San Diego State University, and he had contacted the director of that program. Searles stated that the director informed him that there was not a public ethics service course or curriculum, but rather environmental ethics, and other types of ethics, but this particular matter didn't fall into any of the curriculum at San Diego State University. Glanz stated that the idea was to identify people who would be objective, and able to adequately judge what members would be productive on an ethics committee. Glanz felt that professor's would be a great avenue to explore. Searles suggested the board get completely out of town, and broaden the scope a bit. Glanz suggested his idea of having civic groups involved. 5. Ad Hoc Committee and Ethics Code Revisions Letter to Mayor. Glanz questioned if the matter of ethics code revisions had been made public. Chair German advised that matter had not been made public. Member Searles reflected back to past minutes and read: "In July Ms. Dawson had indicated that she would follow up on the status of agendizing this item for a Council meeting." Searles believed that the board was going to ask the question of the status of agendizing the ad hoc committee. Searles read: "that the process required 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 has 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 placing on the upcoming agenda." 7 Chair German confirmed that he would do a letter to Council requesting formation of ad hoc committee. 6. Review of New Complaint EC01-2007. Chair German opened the matter up for discussion. Searles stated that there are a number of people named in the complaint but not everyone fell under the purview of the board. Searles stated that the board's opinion regarding the Lincoln Club didn't matter, and that the board basically had jurisdiction over the Mayor, councilmen, planning commissioner, and the current Growth Management Committee chairman, as those individuals were either appointed and/or elected. Searles questioned what the violation was in the complaint. Searles informed the board that in reviewing the Code of Ethics he found two areas in which he would be concerned about: 1) section 2.28.050 (b)(4), unethical conduct, which is: "used or permitted the use of City time, personnel, supplies, equipment, identification cards/badges or facilities for unapproved noncity activities, except when available to the genereal public or provided for by administrative regulations." Searles stated that this section did not refer to City logo, but believed that the spirit of the section referred to anything owned by the City, and the logo is owned by the City. Searles also expressed concern over 2.28.040 - fair and equal treatment: "No official subject to this code shall grant or make available to any person any consideration, treatment, advantage or favor beyond that which is the general practice to grant or make available to the public at large. Searles believed that the allegation here is that the Lincoln Club gained some favor in using the City logo to legitimize a process in a way that would draw public to their event in order to promote. Searles stated that the open question for him to answer in this case is: Do one of the four people who are under the purview of this code, offer a consideration, treatment, advantage or favor beyond what is generally available or did they allow the use of some City resource that was not available to the general public? Searles questioned if the Mayor Cox, elected; Councilmember McCann, elected; or Kevin O'Neill, Growth Management Commissioner, or planning commissioner Dan Hom specifically allow for the use of the logo, and if that is the case that would be a violation. It was determined by the Board that Dan Hom was no longer a Planning Commissioner and would not fall under the board's purview. Chair German questioned the City Attorney if whether this issue goes not just to authorization, but who knew or should have know that the logo was going to be used? Mr. Hagerty provided that the board needs to look specifically at the language and the language talks about used or promoted. German stated that this section implies active knowledge on the part of one of these three people. German advised that the board had established the three people that the board had jurisdiction over, the two bases for the probable jurisdiction, and the questions of fact that that board needs to determine. German stated that this alone calls for an investigation, and required that the board question or have some statement or evidence from the three individuals involved. Searles additionally referred to section 2.28.050 (A)(1) there is both should and shall 8 language: "They should strive to protect and enhance the image and reputation of the city, its elected and appointed officials, and its employees. All citizens conducting business with the city shall be treated with courtesy, efficiency and impartiality and none shall receive special advantage beyond that available to any others. Officials shall always be mindful of the public trust and confidence in the daily exercise of their assigned duties, striving to conserve public funds through diligent and judicious management." Searles stated that the line regarding receiving special advantage beyond what's available to others because it's not quite as succinct as the other two parts that Searles described that seemed obvious to him. Searles felt that the complainant had submitted a very reasonable question, which was: Did the Lincoln Club receive special advantage by appearing as though it had some special relationship with the City? Searles advised that clearly in his mind this is an advantage that the Lincoln Club had. Searles again stated that the question was: Did one of these three people knowingly allow this resource to be used? Searles stated that he believed that this logo should not have been used. Searles further stated that if the Lincoln Club just chose to use the logo, shame on them, and he had no opinion about that officially. Chair German questioned if the finding of knowledge on the part of one of the individuals applied. Mr. Hagerty advised that the knowledge so applied. German stated that the board would not be able to assess the knowledge of the individuals until the board received evidence in the form of some statement, communication or interview by the three individuals. German advised that the initial step for the board is to determine probable cause. Mr. Hagerty advised the board to be careful because his understanding was that notice had been given to two of the officials. Secretary Malveaux stated that it was not considered notice because a formal letter wasn't done, but she was told by DCA Dawson to provide redacted copies of the complaint to Mayor Cox and Councilmember McCann. Mr. Hagerty advised the board to take the issue in parts and to first make a determination if there is any basis to even go forward and set this matter for probable cause, and then give notice. Chair German asked if any of the board members wanted to bring a motion to determine whether or not the board should have a probable cause hearing so as to proceed. Chair German stated that he is not a member of the Lincoln Club of San Diego County nor has he ever contributed to the Lincoln Club of San Diego County or any other Lincoln Club for that matter, but stated that he is an elected member of the San Diego County Republican Central Committee, which the Lincoln Club works with. Chair German stated that he put that out there as a potential conflict so that people could be aware of his thinking in that respect. Glanz stated that he appreciated the disclosure, and questioned if Chair German felt this would influence him in any way objectively. Chair German stated no. Glanz then questioned if the Lincoln Club was a republican club. Chair German stated that Lincoln Club's are republican fund raising clubs. Glanz wanted to ensure that Jim Pieri and Dan Hom were not in the purview of the board. Searles advised that he didn't know either of the individuals and wasn't aware of 9 what their current affiliation with the City was. Senior Assistant City Attorney Marshall advised that if Dan Hom is not currently on a commission he was on a commission. Senior Assistant City Attorney Marshall further advised that she was not certain if this was within the last year though. Mr. Hagerty stated that the code had a year provision in 2.28.020. Searles stated that understanding in (8)(7) it was no member of the City Council, and not a member of the commission or any other board. Senior Assistant City Attorney Marshall advised that in section (B)(7) that was true, but in (B)(5) it was somewhat ambiguous and talks about boards and commission members, and ex-city officers. Mr. Hagerty cautioned the board to think carefully as to how they are applying the particular sections, and agreed with Senior Assistant City Attorney Marshall, and in what the board had been discussing the ex-city section would not apply Searles then stated that the board would need to determine if Dan Hom is a current appointed official. Senior Assistant City Attorney Marshall advised that Secretary Malveaux went to determine this. Secretary Malveaux advised the board that Dan Hom's term expired 06/25/06, and was over a year. Chair German advised that a letter of notice would go to the Mayor, Councilmember McCann, and Kevin O'Neil, Growth Management Commissioner. German advised that he would do the letter. It was MSUC (Searles/Starr) to forward complaint EC01-2007 to probable cause hearing with formal notification of the three respondents, Mayor Cheryl Cox, Councilman John McCann, and Growth Management Committee Chair Kevin O'Neill for further consideration at the January Board of Ethics Meeting. The vote carried unanimously. Searles advised that it would be nice to get some information from the Lincoln Club and to also notify the complainant. Mr. Hagerty suggested that the board should also take this in part and felt that this would be part of the board's investigation if they found probable cause. Glanz stated that the board should notice the complainant if the board is going to give an opportunity for that individual to appear and participate. Glanz also suggested inviting to hear from Mr. Hom and Mr. Pieri as well. Starr stated that this would also be part of the investigative stage. 7. Oral Communications None. 8. Member Comments Searles provided board members with dates of the workshop for anyone interested. Searles advised that the workshop would be held in Los Angeles, near downtown on December 1ih and 18th 2007. Searles informed board members that they could go to fcu.edu for Santa Clara University and that information is available there. 10 Chair German stated that the next meeting would be held the third Wednesday in January on 01/16/08 at 3:30 p.m in the executive room. Chair German advised the board that he and Member Searles had a brief meeting with Councilmember Rudy Ramirez. Chair German stated that Mr. Ramirez wanted to know as a former Board of Ethics member how the board was doing and that Mr. Ramirez reiterated his support for the board, the need for comprehensive Board of Ethics reform. 9. Staff Comments None. ADJOURNMENT AT 5:40 to the January 16, 2008 meeting at 3:30 p.m. ~~~vo- Jo ce Malve Recording Secretary ..?' /' 11