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HomeMy WebLinkAboutAgenda Statement 1988/09/20 Item 11a - d COUNCIL AGENDA STATEMENT . Item lla-d ITEM TITLE: Meeting Date 9/20/88 (A) Ordinance~- Amending Chapter 2.28 of the Chula Vista Municipal Code to Add a Code of Ethics (Board of Ethics) (B) Ordinanc~- Amending Chapter 2.28 of the Chula Vista Municipal Code to Add a Code of Ethics (Len Moore) SUBMITTED BY: (C) Ordinance:::-- ~- - Amending Chapter 2.28 of the Municipal Code regarding functions and duties of the Board of Ethics (Staff) (D) Resolution 137g!fRatifYing the Selection of George Ronis and David Ferguson to serve on the Board of Ethics City Attorne~ (4/5ths Vote: Yes___No~) . Subsequent to its joint meeting with the City Council, the Board of Ethics made a number of changes in the proposed Code of Ethics and now recommends that the City Council adopt the revised ordinance which is attached as Ordinance (A). Councilman Moore has suggested some changes and these are shown in Ordinance (B). Staff recommends alternative Ordinance (C) which would result in the Board of Ethics serving in primarily an advisory capacity. BOARDS/COMMISSIONS RECOMMENDATION: The Board of Ethics recommended by a vote of 5-0 approval of Ordinance (A). RECOMMENDATION: Staff recommends adoption of Ordinance (C) and the resolution appointing George Ronis and David Ferguson to the Board of Ethics. DISCUSSION: After meeting with the City Council, the Board of Ethics made a number of changes in their recommended proposal. The Board I s deletions are shown by crossouts and its additions are shown by underlining in the attached Ordinance (A) . Of note, the Board deleted a number of specific prohibitions found in Section 2.28.050, which were the object of much discussion at the joint meeting. The Board continues to recommend that these specific prohibitions not be all inclusi ve. This could unfortunately result in the application of ex post facto standards. . Agenda Item No. lla-d Meeting Date: 9/20/88 Page 'IWo . Subsection "c" would prohibit acceptance of any emolument exceeding $10 in value. For comparison purposes, the Political Reform Act doesn't require reporting of gifts under $50 and doesn't require abstention until $250 is received. Subsection "d" continues to make it unethical to "knowingly make false statements about members of the City Councilor other City employees that tend to discredit or embarrass the reputation of those persons". As discussed in the last report, this section may run afoul of the First Amendment to the Constitution. As stated in 70 OPS. ATI'Y. GEN. 1, there is practically universal agreement that the major purpose of the First Amendment is to protect free discussion of governmental affairs. In Gertz v. Welch (1973) 418 u.S. 323-341, the court stated that "although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. The First Amendment requires that we protect some falsehood in order to protect speech that matters". Hyperbole is quite common in discussions of public officials. It is not uncommon for people to refer to public officials as "another Hitler" or "a tyrant" or some other equally obnoxious sobriquet. These comments are not true and they do tend to discredit and embarrass public officials, but they are protected by the First Amendment. . Subsection "e" continues the prohibition on the use of City facilities for unapproved non-City acti vi ties. An example discussed by the Board of Ethics was the "Toys for Tots Program" which was conducted by City employees during the last Christmas holiday season. ~'lhile it is possible that charitable solicitations such as these could at some point so interfere with the work of the City that they would need to be curtailed, it is hard to conceive that this conduct could be characterized as "unethical". Subsection "f" would prohibit ex-Councilmembers, ex-officers or ex-employees from representing themselves or any other person before a City department, board or commission where they had direct responsibilities during their pUblic service. Some government agencies do have similar prohibitions which typically last for a period of one to two years. The Board of Ethics proposal has no limitation and would apparently last forever. This section is a little nonsensical when you realize that the former Councilmernber or employee will no longer be under the Board's jurisdiction. Section 2.28.150 purports to have all hearings other than those involving Councilrnembers in closed session. This is inconsistent with the Brown Act (Government Code Section 54957) which does not include an exemption for members of boards and commissions. . . Agenda Item No. lla-d Meeting Date: 9/20/88 Page Three The Board's proposal continues the "investigator-judge-jury" role and recommends adoption of a "new" Code of Ethics which is remarkably similar to the former Code of Ethics which was repealed. It continues the practice of Councilmembers appointing members to the Board of Ethics and does not give recognition to the recently adopted procedure of seeking a recommendation from the Presiding Judge of the Municipal Court. The proposal has added a number of standards which are included as Exhibit 1 to the proposed ordinance. Still, the proposed Code is subjective, vague and subject to ex post facto application. COUNCILMAN MOORE'S PROPOSED REVISIONS Also attached to the report are some proposed revisions suggested by Councilman Moore. For the most part, these revisions were offered to clarify the language. In particular, Councilman Moore recommended that Section 2.28.020 be amended to clearly spell out that the provisions of the Code apply only to the City Council, members of boards and commissions, the City Manager, City Attorney and City Clerk. This is consistent with the action taken by Council at the joint meeting. While the Board of Ethics accepted this limitation, it did not change the language of the ordinance because it hopes that some time in the future, City employes will come under the Code after appropriate meet and confer procedures are followed. . STAFF ALTERNATIVE In contrast to the "investigator-judge-jury" role proposed by the Board, staff continues to recommend that the Board play an advisory role much like that played by other boards and commissions in the City. The City Council could turn to the Board for advice whenever it is considering matters which may have ethical overtones just as the Planning Commission reviews matters dealing with land use, and the Civil Service Commission considers matters dealing with employees. As questions corne up about the Political Reform Act, the Board could review the Act and make recommendations to the Council for legislative amendments when it is deemed appropriate. This could become part of the legislative program which the City currently has in effect. Given the part-time nature of the Board and the fact that it has no investigator, independent counsel, or full-time staff, it would be difficult for the Board to conduct thorough investigations or to adjudge what are sometimes very complicated financial transactions. Casting the Board in this role results in duplication of governmental agencies. The Fair Political Practices Commission, the District Attorney, the U. S. Attorney General, the Grand Jury and the courts already perform this role. The Political Reform . /3 }p~ Agenda Item No. lla-d Meeting Date: 9/20/88 Page Four Act comprehensively regulates the subject of conflict of interest. Adding more layers of government to perform this same task does not necessarily improve ethics and it could result in the creation of more confusion. Judge Borunda screened all the applicants and interviewed the candidates for the Board of Ethics. As a result, he has recommended George Ronis and David Ferguson to fill the two openings. A resolution (D) is attached hereto for Council ratification. FISCAL IMPAcr: N/A 4660a - .. ., . .