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HomeMy WebLinkAbout2011/06/21 Item 12CITY COUNCIL AGENDA STATEMENT ~~~ CITY OF CHULA VISTA June 21, 2011 Item ~~ ITEM TITLE: REPORT FROM THE BOARD OF ETHICS REGARDING A PROPOSED POLICY TO IMPLEMENT BOARD OF ETHICS PARTICIPATION IN SELECTION OF THE CAMPAIGN CONTRIBUTION ENFORCEMENT AUTHORITY ATTORNEY AND REQUEST FOR CITY COUNCIL DIRECTION SUBMITTED BY: FELICIA STARK, CHAIR, BOARD OF ETHICS NORMA TOOTHMAN, MEMBER, BOARD OF ETHICS REVIEWED BY: CITY ATTORNEY~,~ 4/STHS VOTE: YES ~ NO ^X SUMMARY Chapter 2.52 of the Chula Vista Municipal Code (Campaign Contribution Ordinance) was amended to assign the role of selecting the Campaign Contribution Enforcement Authority Attorney ("Enforcement Authority Attorney") to the Boazd of Ethics. The Board of Ethics, having considered conflicts with the Charter as a result of such assignment and by a vote of the majority of its members, seeks City Council direction on the implementation of that assignment. The Board of Ethics proposes and recommends to the City Council that the Board of Ethics be permitted to implement its assignment by adopting a procedure summarized as follows: (1) the City Attorney's Office and Board of Ethics will work together to develop professional criteria for the selection of attorneys to serve as the Enforcement Authority Attorney; (2) the City Attorney's Office, based on that professional criteria, will solicit applicants for the position of Enforcement Authority Attorney and confirm their qualifications; (3) the Boazd of Ethics will interview the qualified applicants for the position of Enforcement Authority Attorney; and select a panel of at least three attorneys to act as Enforcement Authority Attorney; and (4) the City Attorney will hire the attorneys so selected and assign cases on a random, rotating basis. The Boazd of Ethics asks that this procedure be approved by City Council to effectuate City Council's desire that the Boazd of Ethics select the Enforcement Authority Attorney while ensuring compliance with Charter provisions regarding City Attorney hiring authority. 12-1 June 21, 2011 Item ~'L. Page 2 of 4 ENVIRONMENTAL REVIEW The subject of the proposed resolution is not a "project" within the meaning of CEQA (Pub. Resources Code §21000, et. seq.) as set forth in the State CEQA Guidelines section 15060(c)(3). RECOMMENDATION That City Council approve and direct the Board of Ethics to implement its assignment to select the Campaign Contribution Ordinance Enforcement Authority Attorney by using the selection procedure presented herein and recommended by the Board of Ethics. DISCUSSION From June 2010 to December 2010, the City Attorney's Office, under City Council direction, was tasked with reviewing the Campaign Contribution Ordinance (Chula Vista Municipal Code section 2.52 ("Chapter 2.52")) and making recommendations to address City Council's concerns regazding the vulnerability of the ordinance to abuse, duplication of efforts, and high cost of enforcement. The City Attorney's Office presented a detailed report summarizing proposed changes and legal issues. Changes were made to Chapter 2.52 to address most of the legal issues. During the process of amending Chapter 2.52, it was proposed that the Board of Ethics be assigned to select attorneys to serve as the Enforcement Authority Attorney to investigate and enforce Chapter 2.52. The City Attorney's Office advised that such an assignment would violate the City Charter, specifically Chazter sections 503 and 505. The City Council proceeded, nevertheless, to approve such an assignment to the Boazd of Ethics. Under the City Charter section 503, the City Attorney's Office serves as the legal advisor to all board and commissions, including the Boazd of Ethics. Moreover, under the Chula Vista Municipal Code section 2.28.110(C), the City Attorney's Office is assigned as the secretary to the Boazd of Ethics. In this capacity, the City Attorney's Office advised the Board of Ethics and presented its same concerns regarding conflicts with the Charter related to this assignment. The City Attorney's Office provided the Board of Ethics a range of options to respond to its assignment, including: (1) that the Boazd of Ethics implement its assignment as written; (2) that the Boazd of Ethics recommend alternatives to the City Council; or (3) that the Board of Ethics decline to implement the assignment and refer the matter back to City Council for direction. The Board of Ethics engaged in robust and extensive discussions regarding the nature of its role and altemative means to reconcile with Council's assignment and the Charter's mandates. During the discussion, the City Attorney proposed one possible altemative procedure as follows: (1) the City Attorney's Office and Board of Ethics will work together to develop professional criteria for the selection of attorneys to serve as the Enforcement Authority Attorney; (2) the City Attorney's Office, based on that professional criteria, will solicit applicants for the position of Enforcement Authority Attorney and confirm their qualifications; (3) the Board of Ethics will interview the qualified applicants for the 12-2 June 21, 2011 Item ~2 Page 3 of 4 position of Enforcement Authority Attorney; and, select a panel of at least three attorneys to act as Enforcement Authority Attorney; and (4) the City Attorney will hire the attomeys so selected and assign cases on a random, rotating basis. The Board of Ethics asks that this procedure be approved by City Council to effectuate City Council's desire that the Board of Ethics select the Enforcement Authority Attorney while ensuring compliance with Charter provisions regarding City Attorney hiring authority. The City Attorney's Office presented this altemative in the spirit of wanting to achieve the City Council objective of involving the Board of Ethics, while at the same time not running afoul of the Charter. In addition, the City Attorney's proposed alternative took into consideration, existing municipal code sections, specifically, Section 2.25.050(D). In Section 2.25.050(D), involving the selection of Board of Ethics board members, a list of applicants for membership on the Board is forwarded to two city managers for interview and recommendation. From there, those persons that aze recommended for appointment by the two city managers are then referred to the City Council for final consideration for appointment. The Board of Ethics selection process, as found in Section 2.25.050(D), provides for an independent review of candidates, but retains the Charter's mandate that City Council appoint all board and commission members. The proposed alternative procedure for the selection of attorneys to act as the Enforcement Authority Attorney similarly provides for an independent review of candidates, but retains that Charter's mandate regarding the hiring of outside counsel by the City Attorney's Office. Chula Vista Municipal Code section 2.28.080 permits the Board of Ethics to make recommendations regarding the implementation of its duties. Chula Vista Municipal Code section 2.28.100 permits the Board of Ethics to adopt rules of procedures for the conduct of its business. With the aforementioned Municipal Code sections as the backdrop, the Boazd of Ethics then voted on how to proceed on City Council's assignment to the Boazd of Ethics the role to select the Enforcement Authority Attorney. By a vote of 5-2, the Board of Ethics voted to express to the City Council the Board's desire to carry out its assigned duties and to recommend to City Council that the Boazd of Ethics be directed and permitted to select Enforcement Authority Attorney as proposed above. A draft of the policy is attached hereto. If the City Council approves this recommendation, the Boazd of Ethics will proceed to finalize, adopt and implement this procedure consistent with this draft. The City Attorney's Office should also be directed to prepare any ordinance changes to implement the selection procedure proposed by the Board of Ethics. Note from the City Attorney: This modified procedure does not address the different procedure that will be required if allegations are made against the City Attorney himself/herself. This needs to be resolved soon, certainly by no later than prior to next City Attorney election. DECISION MAKER CONFLICT The proposed action is not site specific, and, as a result, no conflicts have been identified. 12-3 June 21, 2011 Item ~2- Page 4 of 4 CURRENT YEAR FISCAL IMPACT To be determined. ONGOING FISCAL IMPACT The ongoing fiscal impact will vary depending on the number of cases assigned for investigation. In 2004 through Council Action, the annual budget was to include $100,000 for investigation and prosecution of such cases. In December 2010, Council action eliminated requirement to set aside these funds and thus the current proposed budget has no such line item. If funds are needed they would come from the City Attorney's outside services account. ATTACHMENTS Draft policy for City Attorney and Board of Ethics Engagement of Outside Counsel as the City's Enforcement Authority. Prepared by: Felicia Starr, Chair, Board of Ethics, Norma Toathman, Member, Board of Ethics, and Simon Siha, Deputy City Attorney, City Attorney's ice. 12-4 DRAFT BOARD OF ETHICS Campaign Contribution Enforcement Authority Selection Process Policy Amendments to Chapter 2.52 (Campaign Contribution Ordinance) assigned to the Board of Ethics the role of selecting the Campaign Contribution Enforcement Authority Attomey ("Enforcement Authority Attorney") to investigate and prosecute violations of that Chapter. This policy sets forth the procedures to be followed in the selection of a panel of attorneys to serve the Enforcement Authority Attorney. The procedures are as follows: 1. [Development of Professional Criteria and Solicitation] The City Attorney's Office and the Board of Ethics shall work together to develop professional criteria to establish minimum qualifications to serve as an Enforcement Authority Attorney. Professional criteria may include, but are not limited to, the following: a. Member of the California Bar in good standing for a minimum of ten consecutive years; b. Experience in general municipal or public entity law; c. Experience in some criminal investigation or prosecution establishing an understanding of the role of investigator/prosecutor; d. Experience in civil litigation establishing an understanding of the rules of civil procedure and of the local courts; e. Experience in or advising elected officials in their capacity as public servants; £ Establishment of a local office or ability to provide services in San Diego County; and g. Reasonable fees structure to assure cost effective investigations and prosecutions. The City Attorney's Office, using the established professional criteria, would solicit applications from interested outside counsel by providing a public announcement for applications. The announcement and request for applications would be contained in the following: (1) The official City Internet website; (2) the San Diego County Bar Association official publication; (3) various legal periodicals and newspapers including the San Diego Dailey Transcript and the Los Angeles Dailey Reporter. In addition, direct referrals from members of the San Diego County Bar Association would be solicited. 2. [Interview and Selection of Enforcement Authority Panel] A list of attorney applicants ("candidates"), whose qualifications have been confirmed by the City Attorney to assure compliance with the minimum qualifications (above), would be forwarded to the Board of Ethics for its independent consideration. From the list, the Board of Ethics may select those candidates it wishes to interview for the final panel. Interview questions would be developed by the Board and designed to identify the most qualified and ATTACHMENT 12-5 independent. After interviews, to be conducted in public, the Board of Ethics would choose, in its sole discretion, at least three, and up to five attorneys for placement on the panel. 3. [Assignment of Specific Panel Enforcement Attorney] After formal establishment of the "Enforcement Authority Panel' by the Board of Ethics, the names of those attorneys on the panel would be forwarded to the City Attorney and the City Attorney would hire these attorneys to be on standby service. In the event of a complaint being received under the Campaign Contribution Ordinance, the City Attorney's Office would by random process (the drawing of names/rotation assignment) assign a specific panel attorney to investigate/prosecute the matter. Per the Municipal Code the City Attorney would not participate in the investigation or prosecution of the complaint by the selected panel attorney. ATTACHMENT 12-6