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HomeMy WebLinkAbout2011/08/09 Item 07- Proposed Amendments to Chapter 2.28 [Board of Ethics]CITY COUNCIL AGENDA STATEMENT ~~f~~ CITY OF "~``CHULAVISTA August 9, 2011 Item ITEM TITLE: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHAPTER 2.28 [BOARD OF ETHICS] OF THE CHULA VISTA MUNICIPAL CODE AND ADDING SECTIONS 2.28.160 THROUGH 2.28.200 TO SAME SUBMITTED BY: CITY ATTORNEY'S OFFICE VIA CHULA VISTA BOARD OF ETHICS REVIEWED BY: CITY ATTORNEY~~~s- FELICIA STARK, CHAIR BOARD OF ETHICS~~J 4/STHS VOTE: YES ~ NO ~X SUMMARY Chapter 2.28 of the Chula Vista Municipal Code established the Boazd of Ethics and sets forth ethical standards for City Officials. Chapter 2.28 further provides that the Board of Ethics shall make recommendations regarding Chapter 2.28 to ensures its continuing pertinence and effectiveness. The Boazd of Ethics, via an ad hoc committee and during a year-long period, reviewed Chapter 2.28 and now presents to the City Council proposed amendments and additions to Chapter 2.28 for its consideration and adoption. ENVIRONMENTAL REVIEW The Development Services Director has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that this activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the actions proposed are not subject to CEQA. RECOMMENDATION It is recommended that City Council approve the ordinance. BOARDS/COMMISSION RECOMMENDATION The Board of Ethics voted to recommend to City Council, that City Council approve the proposed amendments and additions to Chapter 2.28 of the Chula Vista Municipal Code. 7-1 August 9, 2011 Item ~ Page 2 of 4 DISCUSSION Chapter 2.28 of the Chula Vista Municipal Code established the Boazd of Ethics and sets forth ethical standards for City Officials. Chapter 2.28 further provides that the Board of Ethics shall make recommendations regarding Chapter 2.28 to ensure its "continuing pertinence and effectiveness." Pursuant to that mandate, the Board of Ethics reviewed Chapter 2.28 and now presents to the City Council amendments and additions to Chapter 2.28 for its consideration and adoption. 1. Review Process The Board of Ethics is tasked with making recommendations regarding Chapter 2.28 to ensure the Chapter's "continuing pertinence and effectiveness." To carry out this mandate, the Board of Ethics approved the creation of an ad hoc committee to review Chapter 2.28 in the early part of 2010. The ad hoc committee ("Ad Hoc Committee") was composed of Board of Ethics Chair Felicia Starr and Boardmembers Al Sotoa, G. Michael German, and Anthony Jemison (as an alternate). The Ad Hoc Committee was assisted by staff from the City Attorney's Office. The Ad Hoc Committee initially met once a month, but starting in January 2011 the Ad Hoc Committee met multiple times per month. The Ad Hoc Committee meetings were open to the public and noticed as such. At the conclusion of the ad hoc committee meeting process, the Ad Hoc Committee presented its proposed amendments and additions to Chapter 2.28 to the Boazd of Ethics. After several meetings, which included substantive discussion and further additions to the proposed revisions to Chapter 2.28, the Board of Ethics voted to recommend the City Council that City Council approve the proposed amendments and additions to Chapter 2.28, which are set forth in Attachment A. 2. Issues Identified During the ad hoc committee review process many topics and issues were discussed and considered in developing the recommended revisions to Chapter 2.28, including, but not limited to, the following: • Clarifying and increasing persons subject to Chapter 2.28. • Creating an actual "Code of Ethics" and developing its terms. • Clarifying the duties, purpose, and composition of the Board of Ethics. • Increasing the Board's ability to refer matters to other governmental entities involved in the enforcement of ethical violations. • Clarifying and streamlining the complaint hearing process from receipt of the complaint to final decision. • Ensuring that Due Process principles are followed in the complaint heazing process, including: o Providing for adequate and timely notice regarding the receipt of a complaint 7-2 August 9, 2011 Item Page 3 of 4 o Providing for the right to confront and cross-examine witnesses, including disclosure of the complainant's name. • Increasing the significance and impact of the Boazd's findings and recommendations. 3. Summary of Proposed Revisions. The following is a summary of the major proposed amendments and additions to Chapter 2.28: • City Officials subject to the current version of Chapter 2.28 includes the Mayor, Councilmembers, the City Manager, the City Clerk, the City Attorney, and board and commission members. It is now proposed that the term City Officials be increased to include persons whom the Board believes significantly impact the making of City policy, specifically Department Directors and Assistant City Managers. • Chapter 2.28, as currently written, does not contain a single Code of Ethics. Instead, it provides ethical guidance in various sections of Chapter 2.28. In addition, some sections appeaz to be aspirational in nature and others involve prohibited conduct. To resolve this lack of clarity, a single Code of Ethics is created in amended section 2.28.030. The Code of Ethics combines the current sections involving ethical guidance into one section and adds additional ethical guidance. The ethical guidance is divided into two categories. The first category is titled "Guiding Principles." The "Guiding Principles" are intended to be principles that City Officials should use to guide their conduct. Because they set an aspirational standazd they are not meant to be sanctionable under the chapter. The second category sets forth "Specific Prohibitions." The "Specific Prohibitions" details specified conduct that City Officials may not engage in and that are subject to investigation and action by the Boazd of Ethics. • Chapter 2.28, as currently written, provides that the Boazd of Ethics may conduct hearings upon receipt a complaint. However, it did not provide any specificity as to how a complaint should be addressed. The proposed amendments provide a specific procedure on how to address a complaint, including actions upon receipt of a complaint, provisions for a prima facie review of the complaint, provisions for a probable cause hearing, provisions For a hearing on the merits, and an ability to investigate the complaint. The hearing process is progressive, in that it seeks to ensure that cases that are insufficient or lack merit are resolved at the earliest possible stage. In so doing, the complaint process is not abused and City resources are not wasted. • Chapter 2.28.150, as currently written, provides that the name of the complainant shall not be disclosed, "until and unless it is determined that probable cause for such complaint exists." That current language was troubling to members of the public that addressed the ad hoc committee. Generally, speakers felt it was improper to keep the name of the complainant confidential because it denied the subject of the complaint the "right to confront their accuser." The Ad Hoc Committee balanced those concerns with the need to keep the name confidential, particularly in situations where retaliation may occur. The ad hoc committee 7-3 August 9, 2011 Item 7 Page 4 of 4 surveyed other Cities and Agencies to determine how that issue was addressed by those respective entities. After discussion by the ad hoc committee, proposed section 2.28.130(C) was drafted to address the competing interests. Section 2.28.130(C) provides that the name of the complainant would not be confidential (and subject to disclosure) unless the person filing the complaint request confidentiality and there is good cause to withhold such name. The section then provides for a review process to determine if good cause exists. If good cause is not found, the party making the complaint would be given an opportunity to withdraw their complaint. In addition, if good cause is found, the confidentiality is only for a limited period, in that the name is subject to disclosure after the probable cause hearing if probable cause is found. • Chapter 2.28.150(B) provided that the Boazd of Ethics, afrer finding misconduct, would forward its findings and recommendation to City Council for action. However, such procedure minimized the impact of the hearing process, the findings that were made, and attendant recommendations. As a result, proposed section 2.28.170 seeks to strengthen the impact of the hearing process, findings, and attendant recommendations. It does so, by creating a "Declaration of Misconduct" that may not be changed by City Council. In so doing, it recognizes that the Board of Ethics has conducted an extensive hearing process, involving documents and witnesses. In addition, section 2.28.170 it details a range of actions that the Board of Ethics may recommend to City Council. Adding the range of actions provides notice to City Officials that, if misconduct is found, the consequences aze serious and would be treated as such. DECISION MAKER CONFLICT The proposed action is not site specific, and, as a result, no conflicts have been identified. CURRENT YEAR FISCAL IMPACT The Boazd of Ethics is composed of Chula Vista citizen volunteers, and as such the members donate their time to perform their duties under the Chapter. The City does incur costs in terms of staff time and resources to prepare agendas, process complaints, and attend hearings as needed. The number of complaints received varies from year to year. However, it is anticipated that the proposed amendments will not significantly add to current costs of implementing Chapter 2.28. ONGOING FISCAL IMPACT As discussed above, the number of complaints received varies from yeaz to year. However, it is anticipated that the proposed amendments will not significantly add to current costs of implementing Chapter 2.28. ATTACHMENTS A. Strike-out version of Amended Chapter 2.28. Prepared by: Felicia Starr, Board of Ethics Chatr and Simon Silva, Deputy City Attorney, City Attorney's Office. 7-4 Chapter 2.28 BOARD OF ETHICS AND CODE OF ETHICS* Sections: 2.28.010 Establishment of Board of Ethics and Ceode of eEthics. 2.28.020 Application of the Code of Ethicsc-13aptee. 2.28.030 Be~al~Code of Ethics. 2.28.040 c^~° °"'' °^^^' '"°""'Creation of Board of Ethics. 2.28.00 cnc°-ciiic¢I coixaact.Purpose. 2.28.060 ^ a.,:°^n ^" ~°.Duties of the Board of Ethics. x.28.070 C F '' '' '' ° `'''"Powers of the Board of Ethics. 2?8.080 gxtTeseOrganization. 2.28.090 r'"«'°° ^F`~'° ~'^^"a'yleetin,~s. 2.28.100 ° ^`«'~°''^""'Order of Business. 2.28.110 9atiartAdvisorv Opinions. 2.28.120 ~.4eet-cgs Complaints-Form Referral to Other Enforcement Aeencti~, and Requests for Confidentiality. 2.28.130 n«a^^-~~sComplaint Procedures-Receipt of Complaint. 2 ~8.1~40 r' a F>,°^«'^^ """" "^""'1""'Complaint Procedures-Prima Facie Review. ~ ~8 150 Complaint Procedures-Probable Caise Hearing. 2 ~8 160 Complaint Procedures-Hearing on the Merits. 2 ~8 170 Complaint Procedures-Decision After Hearin;, on the Merits. 2.28.180 Conflicts. 2.28.190 Records. 2.28?00 Severability. * For provisions of Charter law concerning appointive boards and commissions, see city Charter § § 600 - 606. 2.28.010 Establishment of Board of Ethics and Ceode of eEthics. r r t '1,1 1, 1, 1,°..r ...v„ ..4 ~ ^F rl.o ..:r:- ..,,] 1.... 7: ,.t:.. r FF 7 - r 1. L... ,.F .1.' .,.]o r., ..+ rl. ,... F,. .. .: ,.,] b J ~ r i ATTACHMENT A 7-5 Public office is a public trust and City Officials shall exercise their public duties in a manner that preserves that trust The publids trust can best be preserved if City Officials adhere to a high standard of ethics that transcend the standards prescribed by law. High ethical standards require that all Citv Officials understand, and avoid unethical behavior. Unethical behavior can develop in a variety of situations, but it occurs when the public interest is not the sole and paramount interest in all actions conducted by all City Officials The pumose of this chapter is to encourage the hi,hest standards of behavior by City Officials. increase public confidence in Citv officials, to identity and take appropriate action with respect to unethical behavior and to assist City Officials with decision making in areas of ethical concern Accordingly, the Board of Ethics, as stated in Section 2?8.040, and the Code of Ethics, as stated in Section 2.28.030, are hereby established. (Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.48). 2.28.020 Application of eha~te~of the Code of Ethics. T~~The Code of Ethics shall apply only to "Gifu Officials." Citv Oftcials shall mean members of the Chula Vista city council, includin~~ the Mayor, the sCity rr~Manager, the sCity aAttorney, the Csity sClerk, board members and commissioners, Assistant City Managers, City department heads, as well as to ex-city officers who were subject to'~'° °°~fl~~' °F'~'°'°... ""''° this chapter. (Ord. 2453 § 1, 1991; Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.49). D l-1' FF 1 r.. ,.F ....1.1:., .. .,a H°la „FF...a F,.« rl.° 1`°..°F.r ..F rY,...,..l.l:,. a r t-• ,~ ,.I1.. rl,° 1.. ..F rl.° ter:.. ~r°r° ...7 .-, 1'r. ...J ~cmcT rl- F F ..+ Tl.° ° L... ~.] r....4.~ ~ rl.° ,. FF. ,. ~l ..rte ' o 2.28.030~eyaityCode of Ethics. TI ,l .l FF. ,...I....1,...l,l ..,71.° ° r.. rl.° .lo ..F. .-1. ~.] «F,. rr i-I' 1- ,7 1- .1 .] F 1, :r: ,... L,.. rl.° .. :..r° .,..rl..~«; r., l1Ff ~:21S 7 1,7 - ,7 t- 1_ 1, 1, H 1...,, .. ..,.1 ..rl.°«~ r...7.. The Code of Ethics is divided into two areas, Guiding Principles, as set forth in subdivision A and Specific Prohibitions, as set forth in subdivision B. The Guiding Princi~tes are intended to provide a set of principles from which City Officials can draw upon to assist them in conducting the public's business As such. the Guiding Principles are directory in nature and not subject to the complaint procedures set forth in Sections ~ ~8 120 through ~ 28 170 The Specific Prohibitions are actions that Citv Officials shall not engave in and as such are subiect to the complaint procedures set forth in Sections 2.28.120 through 2.28.170. A Guiding Principles The public fudges its Qovernment by the way City Officials conduct themselves in the posts to which they are elected or appointed. All City Officials should conduct themselves in a manner that will tend to preserve public confidence in, and respect for the government they represent The ptupose of these Guiding Principles is to encourage the highest standards of behavior by City Officials, transcending ATTACHMENT A 7-6 standards required by law_ increase public confidence in Che Citv Officials that serve the public and assist City Officials with decision-making in areas of ethical concern. City Officials in the performance of their duties. should strive to adhere to the followin¢ Guiding Principles: 1 Citv Officials are a¢ents of public purpose and hold office for the benefit of the public As such. City Officials have a duty to act in the best interests of the up blic• 2 City Officials must strive to protect the public's resources through diligent and judicious management. 3 Citv Officials should not engage in. permit, or condone fraud, but should be proactive to identify fraud and seek to correct the causes that lead to the fraud. Fraud in public service includes but is not limited to, making a false or misleading representations about a material factor en¢aging in deceitful conduct. 4 Citv Officials should not enaaQe in permit or condone waste but should be proactive to identify waste and seek to correct the causes that lead to the waste. Waste in public service involves the extravagant, careless, or needless expenditure of city funds or the consumption of city property that results from deficient ,practices systems controls. or decisions. ~ City Officials should not enaa<=e in permit or condone abuse but should be proactive to identify abuse and seek to correct the causes that lead to the abuse. Abuse involves the improper use of city resources, including abuse of position. authority or resources such as tolls, vehicles, or other city propem-. 6 City Officials must be loyal to the public they serve and should put the public's interests above their personal interests. 7 City Officials must protect and enhance the image and reputation of the Citv. 8 City Officials must treat all citizens conducting business with the City with due courtesy efficiency. and impartiality. and no one citizen shall receive special advantage. 9 City Officials must always be mindful of the public trust and confidence in the exercise of their assi~ed duties and shall refuse to condone breaches of public trust or improper attempts to influence the decision-making process. 10. City Officials must always be mindful of conflict of interest laws and abide by them. 11 City Officials must be aware of all their financial interests. thereby ensuring that such financial interests do not influence their conduct or actions. 12 Citv Officials should avoid an appearance of a conflict of interests when possible. However they should be mindful that recusal or abstention should be reserved for actual conflicts or where a ¢ood faith determination has been made by the Citv Official that recusal or abstention is appropriate. 13 Citv Officials are expected to abide by all local state. and federal laws. B Specific Prohibitions It is prohibited and shall be deemed unethical for a Ciri° Official to engage in one or more of the followins actions: ATTACHMENT A 7-7 1 Accept gifts favors or promises of future benefits which might compromise or tend to impair independence of iudament or action. 2 Use his~her position to unduly influence the deliberations or outcomes of oftlcial proceedings both during and outside of those proceedings, of bodies of which he/she is not a member. in derogation because of the value of the independent advice of boards commissions and other advisory bodies to the public decision- making process. 3 Use their official title or position for personal Qain Personal Qain includes but is not limited to situations. wherein a City Official solicits items of value in consideration of their official title or position. 4 Divulv_e confidential information for personal gain or for the gain of associates in a manner contrary to the public interest or in violation of any law. 5 Use or permit the use of Citv resources including but not limited to funds. seals or logos city time personnel supplies eauipment identification cards/ badges or facilities for unapproved non-city activities except when available to the general public provided for by administrative reeulations or policies, or approved by City Council. 6 Appear on behalf of the private interests of third parties before the Council or any board commission or proceedins of the city: nor shall members of boards. commissions and other advisory boards appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies. except for limited exceptions, as provided for in Fair Political Practices Commission Regulation 18702.4. 7 No Cx-City Officer (not including a former mayor or councilmember) for a period of one-year after leaving office or employment shall for compensation act as an agent or attomey for or other otherwise represent, any other person by making oral or written communication before any city administrative office or agency or officer or employee thereof if the appearance of communication is made for the pumose of influencing any action or proceeding invoh~ing the issuance. amendment awarding or revocation of apermit license, grant, or contract for the sale of purchase of goods or property. 8 No former member of the Citv Council, including the Mayor, shall be eligible to appear as a compensated representative at any time before the Council, or any commission board or city staff in connection with any case or other matter with which he/she personally participated while an official or employee of the city for twelve (1~) months following the date of separation from elected or appointed office except by permission of the Citv Council finding on four-fifths vote that special identified and articulated circumstances exist, cast at a regular public meeting taken after the involved member of the Citv Council has left office. Such special identified and articulated circumstances, include but are not limited to, determinations that it is in the best interest of the Ciri~ to permits such representation that the former councilmember, including the Mayor, is uniquely qualified to appear on the matter or it is impractical to require another representative to appear on the matter. ATTACHMENT A 7-8 9 Endorse or recommend for compensation anv commercial product or service in the name of the city or in the employee's oftlcial capacity within the city without prior approval by a city council policy 10. Violate Goverrnnent Code section 87100 related to financial interests and >overnmental decisions made by them. If a complaint is filed with the Board of Ethics alleging a violation of this subsection, the Board of Ethics recognizes that the Fair Political Practices Commission ("FPPC"1 is the primary enforcement authority of the Political Reform Act and that their decisions should be given great wei<=ht As such if a complaint is filed concurrently, then the Board of Ethics may defer action on such allegation, as set forth in this chapter. If a complaint is not filed concurrently the Board of Ethics may submit a complaint to the FPPC and defer action until such complaint is addressed by the FPPC. A ruline on the merits by the FPPC may be accepted as a finding of the Board. 11 No City official shall coerce any of their subordinates or any other Citv employee to participate in an election campaign contribute to a candidate or political committee engage in any other political activity relating to a particular party, candidate or issue or to refrain from engage in any lawful political activity. A eneral statement encouraQina another person to vote does not violate this prohibition. l2 No Citv Official shall display campaign materials in anv city owned vehicle under their control and operated by that City Official Campaign materials included, but are not limited to bumper stickers signs. or other similar items. 13 No City Official shall aid and abet another City Official to violate the Specific Prohibitions enumerated in this subdivision nor shall they aid and abet any person to engage in conduct that would constitute a violation of the Specific Prohibitions enumerated in this sub-division on their behalf. 14 No City Official shall negotiate for employment with any person firm or organization at the same time that aforementioned person, firm, or organization has a matter pendino before Citv Council Board or Commission, or city department and upon which the City Official must act or make a recommendation. (Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.50). 2.28.040 Creation of the Board of Ethics. AT FF 1 l.' rl.:~ ,....lo .. L.., 11 .. «• .. .....Uv '1 1,1 ~ a«~ l,:«:«.. «.,lo~ 1 ~'''7 A Board of Ethics shall be created and appointed in accordance with Section 600 of the city of Chula Vista Charter and in the manner set forth in this chapter. (Ord. 2453 § 1, 1991; Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.51). 2.28.050 Purpose. n !` 1 D 1' (1 F 1, L.: ,.1. ear ,...11:«....:.. R..,r ..F «,.61:.- ~ o ~S =: rl. N..,• ..e ~ a o rl- ,7 ,1 .. 1,; ,.1, «,1..«,7 ,.F,. «a„rr ,.«,7 «F,. Tl,' _ r a .] F 1.' '.1 L. F 11 ..i :gel: «.1 :C.. ..l.:l,: r: ,. ~ t.. r o c ATTACHMENT A 7-9 7.' 1. FF 1 .~+ n «F..«n..:.. rhv « .:r ..F rho:« ~ ..nod3..xj.o~~ ' .... .. ..«n. ~~, .. ~.y ~._.____., _____. __ r----___ __ ___- __-.~ .. ~~ tl' «+ nn.7 Fnll,. «In .. rh« ..h nr n«.7 n+: Tho h ,l h n ~ o oFF. n: o«n., n«,1 «n..r: nl;+., n«.] n ~h~ll v ~~ ~aI b ' b ~ n «..l.l:n F.«,7n +h«......h .l:l;..onr ~nl1 ;.. a: ~: ~..~ .-.n«nno«.n«+ ~,..,,~_._ 7.,»,.___ _~____ _____-o__ ____b___- _- _~______ _- ____ ~. b Y h ..\ ..hn11 l.o n n:,l n«,~,7 +,. 1. n.,o n ...: rro.l norh;nnl n «,l..~y,y~~y;~y{' J t T T ,7 « r:+l e F « nl ,. ... h. + «..+ F.,, n.l r., }.o ~,.+ ,.F :lln,.nl: r.. ,. _ ~~ fl' F' 1 1, h ,1' :,.+ nrr,.««e. !_«n«,l T..«.. „v An;« D„l;r:n~1 Dv~nr;n ~ . rn cviixim-ssiv~«x- 7 ~ i a' .lnn,l ,. ... F.,le«+: nl :«F,..-... nr: ,.« F,.« « «~l r. .-Fn«rl..o ,. ,.F 0 .. .7:..1.. nl r.. rho ;+~ ..icT. V 1 .7 F 1 r r.. «+n nhnn+... .«ho .,F rho n: r., n:l ~ «tl~c:i~,: a~ A T i A A +l.n . ,.Fn o el nl:e «+ :an«r: F. ~.,ti,.« G AT FF F ,.A ,.F ,. nGe« le .. FF..- «in «+..l. nll R. I nl «;++o n+: « hoF n;r. n.T.., ..+«n+:. nFF. ,. FF «1,. e +hn ,.F :F+he nr: n,ln F 7. F' {l, n.7.« ..+..n+:. nti nfl. nti n,l: > V' ~ t -,7 ,7 .1 n,7 F,.« ,. ..nr:n« .. ..1 nv...i„nr_,.« ,. rhn F h «+ha «l,. nFF:n nl :rte .:rh: +he n:r. -:rh,. .+« 7 AT 1. F h n:l ..7...11 he ol:..: hl,. F,..- n ...] .,F .,no :_ .~.iAn« lnn..:«,. FF F 1 o«r h.. « hn ,..., rl.e « «..11 nF ..« ho ~ n:,l ,. ,.1+n«+ ,. n:,] Y .J h - «r:+., n «rv..lln,l 1... +l.o n.r.. ,... rho ...1 r:l r=~ n a »v «+„ «r;,_..-h:nh nF:rn a.«a:nn a.,..., the /' «Jr o F' 11 ~,7 «+: r:a «+h. +ho ..F rT.e :1 C.«,1:«,. F,...v nY J Y~ FF+1- h 7 ',7 'F. n,l «,7 n.w: .ln n,l n+n o ,rr_ n .~~« a It is the purpose of this Board of Ethics advise and make recommendations to the city council of the city of Chula Vista on all matters relative to potential unethical conduct and to make such necessary and appropriate recommendations to the City Council for the implementation of the code of ethics and amendments thereto, which may become necessary from time to time The Board of Ethics will serve as a hearine body for ATTACHMENT A 7-10 violations of this chapter and shall render impartial and objective opinions and insure that those covered by this chapter are appropriately informed. Members of the Board of Ethics should be aware that they are in a unique postion of trust given their role under this chapter and as such must strive to avoid any appearance of bias or partiality Accordingly they should be aware that their conduct and actions will be scrutinized by the public at all times but particularly during the election cycle _(Ord. 2629 § 1, 1995; Ord. 2453 § 1, 1991; Ord. 2297 § 1, 1989; Ord. 1040 § 1, 1967; prior code § 1.51). 2.28.060 Duties of the Board of Ethics. b '1 - L- 1, CF 1 L. 11 1. «L.n ,. .. n.w....:«, r,.., e o..r rl, It shall be the function of the Board of Ethics to implement this chapter. The duties of the Board shall be: A To receive or initiate complaints of violations of this chapter B To hear and investigate complaints and transmit the findings and recommendations to the Citv Council. C To render advisory opinions or interpretations with respect to the application of this chapter either on request or on its own initiative. D To propose revisions of this chapter to assure its continuing pertinence and effectiveness. (Ord. 2297 § 1, 1989). 2.28.070'' '' ` " " a ` '"' Powers of the Board of Ethics. n a c "~ " 11 " a a .,«oa .an .;,t, e^^+: znn ,.cr"o ~rcv Fvrcznzicrrrac /`L. :^.,1 r"n«r o. 2'lQ !`~,TrT /" ........t,..,. - _ _~. In order to carry out its duties the Board of Ethics is authorized to receive complaints, conduct investigations upon complaints or information received, make referrals to other governmental agencies regarding unethical conduct, hold hearings. swear witnesses. render advisory opinions and adopt rules of procedure 'for the conduct of its business. (Ord. 2297 § 1, 1989). 2.28.080-gurfleseO rgan ization. > ' ,7 '71 " " a I1 ...,.1..«,.«a,..-,. n..,7 ..l. nll .o..llo.. :...... n.w:nl n...l "' «,7 a rl.nr rl. ,. a.] "[• 4}i ,- n"n...re n«,_.1. r e ;« ATTACHMENT A 7-11 A The Board of Fthics shall be composed of seven members appointed by the City Council for a term of four vears as prescribed by the provisions of the city Charter and the municipal code of the city of Chula Vista. Members for the Board of Ethics shall be appointed in the manner as set forth in Chula Vista Municipal Code section 2.25.00. subdivision D Irregularities in the interview process set forth in Section 2?5.050, subdivision U may be brought to the attention of the Citv Council. No person may be appointed as a member of the Board of Ethics, or shall be entitled to retain their membership if he or she within the past 10 years prior to the date of appointment, has been convicted of any felony or a crime involving moral turpitude or has been found to have committed a criminal violation of the Fair Political Practices Act. B The chair and avice-chair for the Board of Ethics shall be chosen and perform their duties as set forth in Municipal Code sections 2.25.180 and ?.25.190. C The City 4ttornev or his or her appointed representative shall act as secretary to the board The secretary shall cause notice of the meetings of The board to be kept and distributed The secretary shall also give appropriate and required written notice of all meetings to all members and persons having business before the board. (Ord. 2297 § 1, 1989). a ~. ,.:,..., The Board of Ethics will hold meetings as set forth in'_Vlunicipal Code section 2.2~.200(A)(21. (Ord. 2297 § 1, 1989). 2.28.100 n ` '' '' aOrder of Business. ATTACHMENT A 7-12 Tl i .1 F t-' 1, ,l «1.. «.~ «.7, ..r . ~+: b ~ A The following shall be the order of business for all meetings: 1. Roll call of members. ~ Readin« of minutes of previous meeting. 3 Amendment or approval of minutes of previous meetintY. 4 Consideration of matters continued from previous meeting. 5 Consideration of new complaints or requests. 6 Consideration of proposed or existino state leeislation in the field of ethics and amendments to the code of ethics of the city of Chula Vista. 7. Other business. 8. Oral communication. The aforementioned order of business may be moditled by an affirmative vote of the Board of Ethics. B Items of business shall be placed on the a>;enda as set forth in Municipal Code section 2 25 210(A). (Ord. 2297 $ 1. 19891. (Ord. 2297 § 1, 1989). 2.28.110$~a~iettAdvison- Opinions. 1-' 1 , '1 1. 11 ~ Fo. F.. o.+.~ht: .. A +o l: ~r ..«A ..1: C .....+:..«.... 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Tl. 1. 1. 11 ..:,l ~ e .,« ..11 «. ver:«,.~ T.. r r 1 1- 1- I1 r ^.7 ,1 ' L. ,...1. e«..,. ,.f l...rl...1. ~ ;. .7 1. 1, 1. .7 1, r L,..i l of o.. r .. ,.1.~ .. re e F.. :A I- n f L....... .,,or: «.... ,.C rl.e l... nv.] k. 1. ~ 1,v «r ..«,1 ,7:.-r.. :l...r...~ Tl . ,, ____~~ 1- 1 1 1 • „ .,«.7 .e.7 ,.~: rr o.t «, .r:..e _ ..F ..I1 .«vo r:«,.,- .,. . .I1 «b ATTACHMENT A 7-13 When a City Official has doubt as to the applicability of a provision of this chapter to a particular situation he or she may make a written inquiry to the Board of Ethics for an advisory opinion The puroose of the advisory opinion is to assist the Citv Official in the task of jud~in~ themselves so as to enable them to properly carry out their responsibilities as trustees in the public interest, and to conform their conduct to the Code of Ethics The Citv Official shall have the opportunity to present their interpretation of the facts at issue and of the applicable provisions of this chapter before such advisory opinion is rendered. The Board of Ethics may also, on its own initiative. issue advisory opinions regarding the interpretation or implementation of any provision of this chapter (Ord. 2778 § 1, 1999; Ord. 2630 § 1, 1995; Ord. 2297 § 1, 1989). 2.28.1201~4eeEings= ~ex~Complaints-Form Referral to Other Enforcement A2encv, and Requests for Confidentiality. A All complaints re¢arding violations of this chapter shall be in writing, identify a person subject to the Code of Ethics, contain a full allegation of facts that would constitute a violation of the specific prohibitions enumerated in this chapter, and sworn under penalty of periurv All alleged violations must be submitted within 90 days of occurrence or when it should have been discovered with the exercise of reasonable diligence Justification for any delay in filing complaints is the responsibility of the complainant For complaints concerning unethical patterns of behavior such complaints must be received by the Board of Ethics within 90 days of the most recent event comprising the pattern of behavior complained of or within 90 days of when the last event should have been discovered with the exercise of reasonable diligence. The Board of Ethics will in its discretion. Limit the pattern of behavior to those events the Board of Ethics feels are proximately related in time to be a part of the same pattern of behavior. B The Board may refer the matter to a local. state or federal enforcement agency that may have iurisdiction over the matter at any stage of the proceedings and may hold in abeyance Board action pending results of the referral. The Board of Ethics may, but is not required to resume Board action on the matter if it has been provided notice of inaction by the agency to whom the complaint was referred the expiration of any applicable statute of limitations or inaction for more than one year by the agency to whom the complaint was referred Local state and federal enforcement agencies include, but are not limited to. the United States Attorney's Office, the California Attorneds General's Office the San Diego County District Attorney`s Office, the San Diego County Grand Jurv and the Fair Political Practices Commission (FPPC). If the Board learns of misconduct during any stage of the proceedings, but the misconduct is not within the specific prohibitions set forth in this chapter, the Board of ATTACHMENT A 7-14 Fthics may make a referral to the appropriate Ioca1 state or federal enforcement a~encv that may iurisdictions over the allesed misconduct. C The name of the complainant shall be disclosed unless the complainant has requested that their name be kept confidential and there is food cause to withhold such name. Requests for confidentiality shall be addressed as follows: 1 To request that their name be kept confidential the complainant must provide, with their complaint a detailed factual statement. sworn under penalty of periurv. that they would suffer harm or retaliation if their name were to be disclosed. Conclusionarv or speculative statements of harm or retaliation are insut~cient to establish good cause. 2 Upon a request for confidentiality the Chair and two board members. chosen by the Chair shall form an ad hoc sub-committee within two business days beine informed by the City Attorney's Office of a request for confidentiality and. afrer consideration of the request determine if good cause exists to withhold disclosure of the name The Chair shall inform the complainant of its decision within five business days. If the decision is to deny the request for confidentiality, complainant shall have five business days to withdraw their complaint. If complainant requests that the complaint be withdrawn the entire complaint shall be returned to complainant and their complaint shall not be disclosed The complaint and complainant's name shall be not disclosed durin>? this evaluation process. Upon a finding of Good cause by the ad hoc sub-committee formed under this section. the name of the complainant shall be kept confidential unless and until a finding of probable cause is made The complaint shall also be redacted accordin ley(Ord. 2297 § 1, 1989). 2.28.130 Complaint Procedures-Receipt of Complaint. Tl. F n L. ll l.e +l.o ,...,7 o.. ,.F 1... ~:«o~o F,..-..I1 «.vor: «,.... a A D 11 II F «..1.,.... D D A' F «..re....F««o.: p o b ' ....... «.o..,, (~ ',1 F ,7 ..+:« ..r.. 0 1„ ~1.. r: .. rl... F: el.] ..F ..rl.: «,7 r r r n iT n 1 .. «: ,.« A. The following procedures will be followed upon receipt of a complaint 1 The complaint wi1L be assigned a case number. 2 The complainant (`'Complainant") will be sent a letter that provides notice that the complaint was received the date of the next hearing in which the complaint will be addressed and which eenerally explains the procedures that will be followed. 3 The subiect of the complaint (hereinafter "Respondent") will be sent a letter that provides notice that a complaint has been received namino them as the subiect. the date of the next hearing in which the complaint will be addressed. and which ATTACHMENT A 7-15 generally explains the procedures that will be followed The Respondent will also be sent a copy of the complaint with the letter The complaint may be redacted as provided for in ? 28 120 subdivision C, (related to confidentiality requests). 4 The Chair of the Board of Ethics shall be notified that a complaint has been received Notwithstanding any other time frames, the Chair may set a special meeting on the complaint. 5. A preliminary review (hereinafter "Prima Facie Review") of the complaint will be set within 30 days of receipt of the complaint If the complaint is received within 90 days of a municipal election in which a City Official is a candidate, the Prima Facie Review of the complaint will be set within 15 days of the receipt of the complaint The Chair and members shall be sent copies of the complaint for their review prior to the hearine The Chair and members receiving copies of the complainC shall not discuss the complaint nor disclose the complaint to any person outside of the hearing. (Ord. 2297 § 1, 1989). 2 28.140 Complaint Procedures-Prima Facie Review. The Board of Ethics will conduct a prima 'facie review (`'Prima Facie Review") of the complaint The purpose of Prima Facie Review is to determine if the complainant has made a prima facie showing that the complaint complies with the requirements Sections 2 28 1~0 subdivision A (Complaints-Form Referral to Other Enforcement AQenev, and Request for Confidentialityl thereby establishinv iurisdiction. A prima facie review ma~esult in the following: A lNo Prima Facie Showing Made-Dismissal] After completine the Prima Facie Review the Board may dismiss the complaint for any of the following reasons: 1 The complaint is not in writing or is not made under penalty of periury; 2 The Respondent is not a City Official within the meanine of this chapter: 3 The complaint does not contain a full allegation of facts that would constitute a violation of the specific prohibitions enumerated in this chapter: 4 The complaint restates other complaints containing essentially similar or identical allegations that have already been disposed of_ and the evidence presented does not warrant reopening of the previous case; 5 The allegations contained in the complaint are already under investieation by the Board of Ethics; 6 The complaint consists of speculation opinion frivolous contentions or absurd accusations; or 7 The Board of Ethics determines other good cause requires dismissal. If the dismissal is for this reason the good cause must be set forth in the minutes of the preliminary review. If the complaint is dismissed the Board shall issue a letter to the Complainant and Respondent as soon as possible indicating the reason for the dismissal of the complaint. Such letter is not a conclusive Ending and is not intended to be evidence in any enforcement action initiated by another agency. ATTAC~H]~IbENT A B (Prima Facie Showing blade-Further Action.l If the Board determines that a prima facie showzn~ has been made then the Board shall determine the appropriate course of action. including the following: 1 The Board may request additional information from Complainant or the Respondent The Board shall endeavor to complete this action within 45 davs from the prima facie findinU. If the information is not received within the 45 davs such fact shall be reported to the Board. After this stage is complete, the matter should be set for a probable cause hearing within 30 davs. 2 The Board may create an ad hoc sub-committee comprised of one to three Board members to conduct further investigation. The ad hoc sub-committee shall endeavor to complete its investigation within 90 davs of the prima facie finding If the investigation is not completed within the 90 davs. such fact shall be reRorted to the Board After this stage is complete the matter should be set for a probable cause hearing within 30 davs. 3 The Board may hire an individual from a list ofpre-qualified investigators to conduct an investigation This provision is subject to available funding. The investigator shall endeavor to complete the investigation within 90 davs of the prima facie findino If the investigation is not completed within the 90 davs, such fact shall be reported to the Board After this stage is complete the matter should be set for a probable cause hearing within 30 davs. The Board may set the matter for a probable cause hearing The Board shall endeavor to set the probable cause hearing within 45 davs of the prima facie tinding. 2.28.150 Complaint Procedures-Probable Cause HearioE. r'^_a°°• ^"'^^'`^^ ^^^^ ^^TM ^'ni b ~`~ .7 TL t, a 1, 11 'F. 1, FF. ,...« nlle..o,l +.. 1, n..a . ..1 ~ro<i al.,, ..,.,le ,.F n+1.:.... F 1- ,7 1. ..1 n:..+ .. «F,.«..,nti....: +.,.7:..av1.. l...a ..r,..ll «,.r « nnl p« 1- ',~ f 1. 1 t ... t:l ...] , «l,. :+ . .7oro ,.,1 +L. nt ,.L...1.1„ e F l Jl T1. ..FF: ,. nL,nll L.,, ..+: rl o.7 r.. ~i..-.:+ ,. ntnr,. ..a +,. +l.e 1... «.~1 ..F r i•_______~ t_. .t_ v___] rF _ ._..~1~,.L1..... n..:n ,7 oao.-..,:.noA r}.a 4,..~«,7 nl.nll e 1- '1 a ,.a: F,. ...+n nay,] n.rt:o ,«:t:« TF.....l.nl.lo ,7 L 1. .7 1. 11 1 F. 1, n+: n+.. ...] .+ o.a, _..1 na,. . •,. f ..t. m~1.,o 4~Cn.1- T2 nTF A en+:..n+: ,... ,.« 1, on«:.. ,. rl.o 4. a 1, I1 F ,7 1. Ff' F YY Y a ~ , , rl L .l 1- 11 F A F ,l' R.,, ,.:+. :1 +.. ..r .. n+: F.~ +l.o .. A:+: .l A /!l«.J 7'1(1'7 C 1 1040 The purpose of the probable cause hearing is to determine if there are facts and circumstances of a reasonably trustworthv nature. sufficient to iustifv a person of reasonable caution or prudence in the belief that a violation of the specific prohibitions has occurred (`probable cause") To find probable cause there must be an affirmative ATTA~I3I~NT A vote of the majority of the entire voting membership. The followine procedures shall be followed in the conduct of a probable cause hearing: A Both parties shall be provided notice that the probable cause hearing has been set. B The complainant and Respondent shall be informed that they may lodge with the Board ten days before the hearing additional evidence and a statement on their behalf for the Board's consideration If such evidence is not provided to the Board within the time frame indicated the Board may, but is not required to. exclude such evidence. As soon after receipt of such evidence by the Board, the Board should endeavor to provide the opposink? party a copy thereof C At the hearing the Board shall review. but is not limited to. the followin¢: the complaint including any supporting documents that was filed: information acquired during any Board ordered investigation or request for information; and any other documents or evidence provided to the Board before the probable cause hearing. D The Board in its discretion maypermit additional documents or evidence to be admitted into the probable cause hearing The Board in its discretion, may also permit witnesses to testify Witnesses may be subject to cross-examination. as permitted by the Board. E Both parties may comment on the issue of probable cause as permitted by the Brown Act. F If the Board determines that probable cause does not exist, the Board shall dismiss the complaint. G If the Board determines that probable cause exists, the Board should set a hearing on the merits within 45 days thereafrer.. 2 28.160 Complaint Procedures-Hearing on the Merits. If probable cause is determined to exist by the Board, then the Board shall conduct a hearing on the merits ("Hearin on the Merits") as set forth herein: A Prior to the Hearing on the Merits the Board may request additional information as set forth in section ~ ~8 140 subdivision B. The Board should set a date by which a request for additional information should be completed. B Both parties shall be provided notice of the Hearing on the Merits The Board may provide copies of materials upon which the complaint is based to either party. C In the discretion of the Board Complainant may present an opening and closing statement present additional evidence and witnesses, includin~> rebuttal evidence and witnesses, and cross examine witnesses. D In the discretion of the Board the Respondent may present an opening and closing statement present additional evidence and witnesses. including rebuttal evidence and witnesses. and cross examine witnesses. E The Board may admit but is not limited to. evidence provided at the Hearin¢ on the Merits information provided with the complaint information provided pursuant to section ~ ~8 140 subdivision B or subdivision A of this section, information provided at the probable cause hearing and any other evidence it determines should be considered. ATTA~HM,~NT A F The Hearin~on the Merits is not a formal iudicial proceedins. but the Boazd will exercise control over the hearing to ensure that it is conducted in an orderly and expeditious manner While the technical rules of evidence are not applicable and hearsay is admissible, evidence that is admitted should bear an indicia of reliability. 2 28 170 Complaint Procedures-Decision After Hearing on the Merits. The Board shall document its decision in a written statement of decision. A vote of five board members is required to make a finding of misconduct. Each findintr of misconduct must be supported by a preponderance of the evidence. The statement of decision should be prepared expeditiously and shall be served upon both parties via certified mail with a certificate of mailing. A. Misconduct Found-Declaration of Misconduct. If the Board makes a finding of misconduct the statement of decision shall contain, and be labeled as such a Declaration of Misconduct. The Declaration of Misconduct shall detail the misconduct that has been found to be true and the supporting evidence. The Declaration of Misconduct shall be a final decision on the merits and shall not be changed by the Citv Council The Declaration of Misconduct may contain a recommendation of sanctions against the City Official found to have engaged in misconduct including but not limited to_ the following: (1) a reprimand, censure, or removal from office. The Declaration of Misconduct may also recommend remedial actions to prevent misconduct in the future. Government Code sections 3250 et seq IFirefiahter Procedural Bill of Rights Actl and 3300 et sen f Public Safety Officers Procedural Bill of Rights Actl provides appeal rights for the Police and Fire Chief The Police and Fire Chief shall be provided the appeal rights required under the aforementioned Government Code sections and City Council shall act as the body hearing>, any such appeal. B. No Misconduct Found-Declaration of No Misconduct. If the Board makes a finding of no misconduct the statement of decision shall contain, and be labeled as such, a Declaration of No Misconduct. The Declaration of No Misconduct shall detail the basis for its findin¢. Even though no misconduct is found. if facts have been revealed and which show a potential for misconduct, then, in a separate action the Board may recommend remedial actions to the Citv Council for appropriate action. 2.28.180 Conflicts City Officials subject to the Specific Prohibitions set forth in this chapter should not participate in or influence the complaint process as set forth in Sections 2.28.120 to ~ ~6 170 in their official capacities To this end when a complaint involves a Board of ATTACHty7~NT A Ethics board member a councilmember (including the manor) or the Citv Attorney, the following procedures shall be followed: A If a complaint involves a Board of Ethics board member- then the named Board of Ethics board member shall recuse him or herself. B If a complaint involves a councilmember including the Manor then the named councilmember shall recuse him or herself. C If the comklaint involves the Citv Attorney the Citv Attorney and his or her Office, shall recuse themselves Outside counsel shall be appointed to advise the Board of Ethics regarding the complaint alleein~ misconduct by the City Attorney. The Board of Ethics may establish procedures for the selection of such counsel. 2.28.190 Disclosure of Board Records The purpose of this section is to advance the public's interest under the Public Records Act to access information concernin¢ the conduct of Board in a manner that will not compromise the Board's ability to conduct effective and confidential investigations into alleged violations of the Citv of Chula Vista's Code of Ethics. The Board and its staff shall not make public comments regarding a pendin¢ matter until the Board has made a final decision on the merits or until the matter is otherwise closed. The complaint may be released to the public The complaint may be redacted consistent with Section 2.28.120 (regardinn requests for confidentiality) The Board may release its records unless then fall within but not limited to, the categories that follow- A Preliminary or draft memoranda documents or records not kept in the ordinary course of business. B. Personneh medical. or other similar files the disclosure of which would constitute an unwarranted invasion of personal privacy. C Documents or records protected under any law (state or federal) related to privilege. D Records exempt from disclosure under the California Public Records Act (Government Code section 6250 et.seq.). F Documents or records where the public interest against disclosure outweighs the public interest served by disclosure. Such documents may include, but are not limited to. the following: 1 The names of juvenile witnesses. or ~ Personal or otherwise private information related or unrelated to the investigation if the disclosure would constitute an unwarranted invasion of privacy; or 3 The identity of a confidential source: or 4 Information which if disclosed would create a credible risk of endangering any individual; or 5 Information which if disclosed would endanger the successfirl completion of an investigation where the prospect of enforcement proceedings is concrete and definite. 2.28.200 Severability. If any provision of this chapter or the application of any such provision to any person or circumstance shall be held invalid 'the remainder of this chapter to the extent if can be ATTA~H]„VI~NT A liven effect or the application of those provisions to persons or circumstances other than those as to which it is held invalid. shall not be affected thereby. and to this end the provisions of this chapter are severable. ATTA~~~NT A ORDINANCE NO. 2011- ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHAPTER 2.28 [BOARD OF ETHICS] OF THE CHULA VISTA MUNICIPAL CODE AND ADDING SECTIONS 2.28.160 THROUGH 2.28.200 TO SAME WHEREAS, Chapter 2.28 codified ethical standards for City Officials, created a Board of Ethics, and provided to investigate and hear violations of those standards; and WHEREAS, the Board of Ethics is charged with reviewing Chapter 2.28, to propose revisions to ensure the Chapter's "continuing pertinence and effectiveness," and the Board of Ethics has undertaken such review; and WHEREAS, the Board of Ethics, in the course of such review, has sought, inter alia, to provide greater clarity of the ethical standards required of City Officials by creating a Code of Ethics and to provide a streamlined hearing process to investigate violations of those standards, codifying minimum due process protections; and WHEREAS, the City desires to update Chapter 2.28, to ensure the Chapter's continuing pertinence and effectiveness. NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION 1: ACTION Chapter 2.28 of the Chula Vista Municipal Code is amended, including the addition of sections, as follows: BOARD OF ETHICS AND CODE OF ETHICS* Sections: 2.28.010 Establishment of Board of Ethics and Code of Ethics. 2.28.020 Application of the Code of Ethics. 2.28.030 Code of Ethics. 2.28.040 Creation of the Board of Ethics. 2.28.050 Purpose. 2.28.060 Duties of the Board of Ethics. 2.20.070 Powers of the Board of Ethics. 2.28.080 Organization. 2.28.090 Meetings. 2.28.100 Order of Business. 2.28.110 Advisory Opinions. 2.28.120 Complaints-Form, Referral to Other Enforcement Agency, and Requests for Confidentiality. 7-22 Ordinance No. Page 2 2.28.130 Complaint Procedures-Receipt of Complaint. 2.28.140 Complaint Procedures-Prima Facie Review. 2.28.150 Complaint Procedures-Probable Cause Hearing. 2.28.160 Complaint Procedures-Hearing on the Merits. 2.28.170 Complaint Procedures-Decision After Hearing on the Merits. 2.28.180 Conflicts. 2.28.190 Records. 2.28.200 Severability. * For provisions of Charter law concerning appointive boards and commissions, see city Charter §§ 600 - 606. 2.28.010 Establishment of Board of Ethics and Code of Ethics. Public office is a public trust and City Officials shall exercise their public duties in a manner that preserves that trust. The public's trust can best be preserved if City Officials adhere to a high standard of ethics that transcend the standards prescribed by law. High ethical standards require that all City Officials understand, and avoid unethical behavior. Unethical behavior can develop in a variety of situations, but it occurs when the public interest is not the sole and paramount interest in all actions conducted by all City Officials. The purpose of this chapter is to encourage the highest standards of behavior by City Officials, increase public confidence in City officials, to identify and take appropriate action with respect to unethical behavior, and to assist City Officials with decision-making in areas of ethical concern. Accordingly, the Board of Ethics, as stated in Section 2.28.040, and the Code of Ethics, as stated in Section 2.28.030, are hereby established. 2.28.020 Application of the Code of Ethics. The Code of Ethics shall apply only to "City Officials." City Officials shall mean members of the Chula Vista city council, including the Mayor, the City Manager, the City Attorney, the City Clerk, board members and commissioners, Assistant City Managers, City department heads, as well as to ex-City Officials who were subject to this chapter. 2.28.030 Code of Ethics The Code of Ethics is divided into two areas, Guiding Principles, as set forth in subdivision A, and Specific Prohibitions, as set forth in subdivision B. The Guiding Principles are intended to provide a set of principles from which City Officials can draw upon to assist them in conducting the public's business. As such, the Guiding Principles are directory in nature and not subject to the complaint procedures set forth in Sections 2.28.120 through 2.28.170. The Specific Prohibitions are actions that City Officials shall not engage in, and as such, are subject to the complaint procedures set forth in Sections 2.28.120 through 2.28.170. A. Guiding Principles. The public judges its government by the way City Officials conduct themselves in the posts to which they are elected or appointed. All City Officials should conduct themselves in a manner that will tend to preserve public confidence in, and respect for, the government they represent. The purpose of these Guiding Principles is to encourage the highest 7-23 Ordinance No. Page 3 standards of behavior by City Officials, transcending the standards required by law; increase public confidence in the City Officials that serve the public; and assist City Officials with decision-making in areas of ethical concern. City Officials, in the performance of their duties, should strive to adhere to the following Guiding Principles: 1. City Officials are agents of public purpose and hold office for the benefit of the public. As such, City Officials have a duty to act in the best interests of the public. 2. City Officials must strive to protect the public's resources through diligent and judicious management. 3. City Officials should not engage in, permit, or condone fraud, but should be proactive to identify fraud and seek to correct the causes that lead to the fraud. Fraud in public service includes, but is not limited to, making a false or misleading representations about a material fact or engaging in deceitful conduct. 4. City Officials should not engage in, permit, or condone waste, but should be proactive to identify waste and seek to correct the causes that lead to the waste. Waste in public service involves the extravagant, careless, or needless expenditure of city funds, or the consumption of city property, that results from deficient practices, systems, controls, or decisions. 5. City Officials should not engage in, permit, or condone abuse, but should be proactive to identify abuse and seek to correct the causes that lead to the abuse. Abuse involves the improper use of city resources, including abuse of position, authority, or resources such as tolls, vehicles, or other city property. 6. City Officials must be loyal to the public they serve and should put the public's interests above their personal interests. 7. City Officials must protect and enhance the image and reputation of the City. 8. City Officials must treat all citizens conducting business with the City with due courtesy, efficiency, and impartiality, and no one citizen shall receive special advantage. 9. City Officials must always be mindful of the public trust and confidence in the exercise of their assigned duties and shall refuse to condone breaches of public trust or improper attempts to influence the decision-making process. 10. City Officials must always be mindful of conflict of interest laws and abide by them. 11. City Officials must be aware of all their financial interests, thereby ensuring that such financial interests do not influence their conduct or actions. 12. City Officials should avoid an appearance of a conflict of interests when possible. However, they should be mindful that recusal or abstention should be reserved for actual conflicts or where a good faith determination has been made by the City Official that recusal or abstention is appropriate. 13. City Officials are expected to abide by all local, state, and federal laws. B. Specific Prohibitions. It is prohibited and shall be deemed unethical for a City Official to engage in one or more of the following actions: 1. Accept gifts, favors, or promises of future benefits, which might compromise or tend to impair independence of judgment or action. 2. Use his/her position to unduly influence the deliberations or outcomes of official proceedings, both during and outside of those proceedings, of bodies of which he/she is 7-24 Ordinance No. Page 4 not a member, in derogation because of the value of the independent advice of boards, commissions and other advisory bodies to the public decision-making process. 3. Use their official title or position for personal gain. Personal gain includes, but is not limited to situations, wherein a City Official solicits items of value in consideration of their official title or position. 4. Divulge confidential information for personal gain or for the gain of associates in a manner contrary to the public interest or in violation of any law. 5. Use or permit the use of City resources including but not limited to funds, seals or logos, city time, personnel, supplies, equipment, identification cards/ badges or facilities for unapproved non-city activities, except when available to the general public, provided for by administrative regulations or policies; or approved by City Council. 6. Appear on behalf of the private interests of third parties before the Council or any board, commission or proceeding of the city; nor shall members of boards, commissions, and other advisory boards appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies, except for limited exceptions, as provided for in Fair Political Practices Commission Regulation 18702.4. 7. No Ex-City Officer (not including a former mayor or councilmember) for a period of one-year after leaving office or employment shall, for compensation, act as an agent or attorney for, or other otherwise represent, any other person by making oral or written communication before any city administrative office or agency or officer or employee thereof, if the appearance of communication is made for the purpose of influencing any action or proceeding involving the issuance, amendment, awarding, or revocation of a permit, license, grant, or contract for the sale of purchase of goods or property. 8. No former member of the City Council, including the Mayor, shall be eligible to appear as a compensated representative at any time before the Council, or any commission, board, or city staff in connection with any case or other matter with which he/she personally participated while an official or employee of the city for twelve (12) months following the date of separation from elected or appointed office, except by permission of the City Council finding on four-fifths vote that special identified and articulated circumstances exist, cast at a regular public meeting taken after the involved member of the City Council has left office. Such special identified and articulated circumstances, include but are not limited to, determinations that it is in the best interest of the City to permits such representation, that the former councilmember, including the Mayor, is uniquely qualified to appear on the matter, or it is impractical to require another representative to appear on the matter. 9. Endorse or recommend for compensation any commercial product or service in the name of the city or in the employee's official capacity within the city without prior approval by a city council policy. 10. Violate Government Code section 87100 related to financial interests and governmental decisions made by them. If a complaint is filed with the Board of Ethics alleging a violation of this subsection, the Board of Ethics recognizes that the Fair Political Practices Commission ("FPPC") is the primary enforcement authority of the Political Reform Act and that their decisions should be given great weight. As such, if a complaint is filed concurrently, then the Board of Ethics may defer action on such allegation, as set forth in this chapter. If a complaint is not filed concurrently, the Board 7-25 Ordinance No. Page 5 of Ethics may submit a complaint to the FPPC and defer action until such complaint is addressed by the FPPC. A ruling on the merits by the FPPC may be accepted as a finding of the Board. 11. No City official shall coerce any of their subordinates or any other City employee to participate in an election campaign, contribute to a candidate or political committee, engage in any other political activity relating to a particular party, candidate, or issue, or to refrain from engage in any lawful political activity. A general statement encouraging another person to vote does not violate this prohibition. 12. No City Official shall display campaign materials in any city owned vehicle under their control and operated by that City Official. Campaign materials included, but are not limited to, bumper stickers, signs, or other similar items. 13. No City Official shall aid and abet another City Official to violate the Specific Prohibitions enumerated in this subdivision nor shall they aid and abet any person to engage in conduct that would constitute a violation of the Specific Prohibitions enumerated in this sub-division on their behalf. 14. No City Official shall negotiate for employment with any person, firm, or organization at the same time that aforementioned person, firm, or organization has a matter pending before City Council, Board or Commission, or city department and upon which the City Official must act or make a recommendation. 2.28.040 Creation of the Board of Ethics. A Board of Ethics shall be created and appointed in accordance with Section 600 of the city of Chula Vista Charter and in the manner set forth in this chapter. (Ord. 2297 § 1, 1989). 2.28.050 Purpose. It is the purpose of this Board of Ethics advise and make recommendations to the city council of the city of Chula Vista on all matters relating to potential unethical conduct and to make such necessary and appropriate recommendations to the City Council for the implementation of the code of ethics and amendments thereto, which may become necessary from time to time. The Board of Ethics will serve as a hearing body for violations of this chapter and shall render impartial and objective opinions and insure that those covered by this chapter are appropriately informed. Members of the Board of Ethics should be aware that they are in a unique postion of trust given their role under this chapter and as such must strive to avoid any appearance of bias or partiality. Accordingly, they should be aware that their conduct and actions will be scrutinized by the public at all times, but particulazly during the election cycle. (Ord. 2297 § 1, 1989). 2.28.060 Duties of the Board of Ethics. It shall be the function of the Board of Ethics to implement this chapter. The duties of the Board shall be: 7-26 Ordinance No. Page 6 A. To receive or initiate complaints of violations of this chapter. B. To hear and investigate complaints and transmit the findings and recommendations to the City Council. C. To render advisory opinions or interpretations with respect to the application of this chapter, either on request or on its own initiative. D. To propose revisions of this chapter to assure its continuing pertinence and effectiveness. (Ord. 2297 § 1, 1989). 2.28.070 Powers of the Board of Ethics. In order to carry out its duties, the Board of Ethics is authorized to receive complaints, conduct investigations upon complaints or information received, make referrals to other governmental agencies regarding unethical conduct, hold hearings, swear witnesses, render advisory opinions and adopt rules of procedure for the conduct of its business. (Ord. 2297 § 1, 1989). 2.28.080 Organization. A. The Board of Ethics shall be composed of seven members appointed by the City Council for a term of four years, as prescribed by the provisions of the city Charter and the municipal code of the city of Chula Vista. Members for the Board of Ethics shall be appointed in the manner as set forth in Chula Vista Municipal Code section 2.25.050, subdivision D. Irregularities in the interview process set forth in Section 2.25.050, subdivision D, may be brought to the attention of the City Council. No person may be appointed as a member of the Board of Ethics, or shall be entitled to retain their membership, if he or she, within the past 10 years prior to the date of appointment, has been convicted of any felony or a crime involving moral turpitude or has been found to have committed a criminal violation of the Fair Political Practices Act. B. The chair and avice-chair for the Board of Ethics shall be chosen and perform their duties as set forth in Municipal Code sections 2.25.180 and 2.25.190. C. The City Attorney or his or her appointed representative shall act as secretary to the board. The secretary shall cause notice of the meetings of the board to be kept and distributed. The secretary shall also give appropriate and required written notice of all meetings to all members and persons having business before the board. (Ord. 2778 § 1, 1999; Ord. 2630 § 1, 1995; Ord. 2297 § 1, 1989). 2.28.090 Meetings. The Board of Ethics will hold meetings as set forth in Municipal Code section 2.25.200(A)(2). 2.28.100 Order of business. A. The following shall be the order of business for all meetings: 1. Roll call of members. 2. Reading of minutes of previous meeting. 7-27 Ordinance No. Page 7 3. Amendment or approval of minutes of previous meeting. 4. Consideration of matters continued from previous meeting. 5. Consideration of new complaints or requests. 6. Consideration of proposed or existing state legislation in the field of ethics and amendments to the code of ethics of the city of Chula Vista. 7. Other business. 8. Oral communication. The aforementioned order of business may be modified by an affirmative vote of the Board of Ethics. B. Items of business shall be placed on the agenda as set forth in Municipal Code section zas.2lo~A>. fiord. zz9~ § 1,19s9~. 2.28.110 Advisory opinions. When a City Official has doubt as to the applicability of a provision of this chapter to a particular situation, he or she may make a written inquiry to the Board of Ethics for an advisory opinion. The purpose of the advisory opinion is to assist the City Official in the task of judging themselves, so as to enable them to properly carry out their responsibilities as trustees in the public interest, and to conform their conduct to the Code of Ethics. The City Official shall have the opportunity to present their interpretation of the facts at issue and of the applicable provisions of this chapter before such advisory opinion is rendered. The Board of Ethics may also, on its own initiative, issue advisory opinions regarding the interpretation or implementation of any provision of this chapter. 2.28.120 Complaints-Form, Referral to Other Enforcement Agency, and Requests for Confidentiality. A. All complaints regarding violations of this chapter shall be in writing, identify a person subject to the Code of Ethics, contain a full allegation of facts that would constitute a violation of the specific prohibitions enumerated in this chapter, and sworn under penalty of perjury. All alleged violations must be submitted within 90 days of occurrence or when it should have been discovered with the exercise of reasonable diligence. Justification for any delay in filing complaints is the responsibility of the complainant. For complaints concerning unethical patterns of behavior, such complaints must be received by the Board of Ethics within 90 days of the most recent event comprising the pattern of behavior complained of, or within 90 days of when the last event should have been discovered with the exercise of reasonable diligence. The Board of Ethics will, in its discretion, limit the pattern of behavior to those events the Board of Ethics feels are proximately related in time to be a part of the same pattern of behavior. B. The Board may refer the matter to a local, state, or federal enforcement agency that may have jurisdiction over the matter at any stage of the proceedings and may hold in abeyance Board action pending results of the referral. The Board of Ethics may, but is not required to, resume Board action on the matter if it has been provided notice of inaction by the agency to whom the complaint was referred, the expiration of any applicable statute of limitations, or inaction for 7-28 Ordinance No. Page 8 more than one year by the agency to whom the complaint was referred. Local, state and federal enforcement agencies include, but are not limited to, the United States Attorney's Office, the California Attorney's General's Office, the San Diego County District Attorney's Office, the San Diego County Grand Jury, and the Fair Political Practices Commission (FPPC). If the Board learns of misconduct during any stage of the proceedings, but the misconduct is not within the specific prohibitions set forth in this chapter, the Board of Ethics may make a referral to the appropriate local, state, or federal enforcement agency that may jurisdictions over the alleged misconduct. C. The name of the complainant shall be disclosed unless the complainant has requested that their name be kept confidential and there is good cause to withhold such name. Requests for confidentiality shall be addressed as follows: 1. To request that their name be kept confidential, the complainant must provide, with their complaint, a detailed factual statement, sworn under penalty of perjury, that they would suffer harm or retaliation if their name were to be disclosed. Conclusionary or speculative statements of harm or retaliation are insufficient to establish good cause. 2. Upon a request for confidentiality, the Chair and two board members, chosen by the Chair, shall form an ad hoc sub-committee within two business days being informed by the City Attorney's Office of a request for confidentiality and, after consideration of the request, determine if good cause exists to withhold disclosure of the name. The Chair shall inform the complainant of its decision within five business days. 3. If the decision is to deny the request for confidentiality, complainant shall have five business days to withdraw their complaint. If complainant requests that the complaint be withdrawn, the entire complaint shall be returned to complainant and their complaint shall not be disclosed. The complaint and complainant's name shall be not disclosed during this evaluation process. 4. Upon a finding of good cause by the ad hoc sub-committee formed under this section, the name of the complainant shall be kept confidential unless and until a finding of probable cause is made. The complaint shall also be redacted accordingly. 2.28.130 Complaint Procedures-Receipt of Complaint. A. The following procedures will be followed upon receipt of a complaint: 1. The complaint will be assigned a case number. 2. The complainant ("Complainant") will be sent a letter that provides notice that the complaint was received, the date of the next hearing in which the complaint will be addressed, and which generally explains the procedures that will be followed. 3. The subject of the complaint (hereinafter "Respondent") will be sent a letter that provides notice that a complaint has been received naming them as the subject, the date of the next hearing in which the complaint will be addressed, and which generally explains the procedures that will be followed. The Respondent will also be sent a copy of the complaint with the letter. The complaint may be redacted as provided for in 2.28.120, subdivision C, (related to confidentiality requests). 7-29 Ordinance No. Page 9 4. The Chair of the Board of Ethics shall be notified that a complaint has been received. Notwithstanding any other time frames, the Chair may set a special meeting on the complaint. 5. A preliminary review (hereinafter "Prima Facie Review") of the complaint will be set within 30 days of receipt of the complaint. If the complaint is received within 90 days of a municipal election in which a City Official is a candidate, the Prima Facie Review of the complaint will be set within 15 days of the receipt of the complaint. The Chair and members shall be sent copies of the complaint for their review prior to the hearing. The Chair and members receiving copies of the complaint shall not discuss the complaint nor disclose the complaint to any person outside of the hearing. 2.28.140 Complaint-Prima Facie Review. The Board of Ethics will conduct a prima facie review ("Prima Facie Review") of the complaint. The purpose of Prima Facie Review is to determine if the complainant has made a prima facie showing that the complaint complies with the requirements Sections 2.28.120, subdivision A, [Complaints-Form, Referral to Other Enforcement Agency, and Request for Confidentiality] thereby establishing jurisdiction. A prima facie review may result in the following: A. [No Prima Facie Showing Made-Dismissal.] After completing the Prima Facie Review, the Board may dismiss the complaint for any of the following reasons: I. The complaint is not in writing or is not made under penalty of perjury; 2. The Respondent is not a City Official within the meaning of this chapter; 3. The complaint does not contain a full allegation of facts that would constitute a violation of the specific prohibitions enumerated in this chapter; 4. The complaint restates other complaints containing essentially similar or identical allegations that have already been disposed of, and the evidence presented does not warrant reopening of the previous case; 5. The allegations contained in the complaint are already under investigation by the Board of Ethics; 6. The complaint consists of speculation, opinion, frivolous contentions, or absurd accusations; or 7. The Board of Ethics determines other good cause requires dismissal If the dismissal is for this reason, the good cause must be set forth in the minutes of the preliminary review. If the complaint is dismissed, the Board shall issue a letter to the Complainant and Respondent as soon as possible, indicating the reason for the dismissal of the complaint. Such letter is not a conclusive finding and is not intended to be evidence in any enforcement action initiated by another agency. B. [Prima Facie Showing Made-Further Action.] If the Board determines that a prima facie showing has been made, then the Board shall determine the appropriate course of action, including the following: 1. The Board may request additional information from Complainant or the Respondent. The Board shall endeavor to complete this action within 45 days from the prima facie 7-30 Ordinance No. Page 10 finding. If the information is not received within the 45 days, such fact shall be reported to the Boazd. After this stage is complete, the matter should be set for a probable cause hearing within 30 days. 2. The Board may create an ad hoc sub-committee comprised of one to three board members to conduct further investigation. The ad hoc sub-committee shall endeavor to complete its investigation within 90 days of the prima facie finding. If the investigation is not completed within the 90 days, such fact shall be reported to the Board. After this stage is complete the matter should be set for a probable cause hearing within 30 days. 3. The Board may hire an individual from a list ofpre-qualified investigators to conduct an investigation. This provision is subject to available funding. The investigator shall endeavor to complete the investigation within 90 days of the prima facie finding. If the investigation is not completed within the 90 days, such fact shall be reported to the Board. After this stage is complete the matter should be set for a probable cause hearing within 30 days. 4. The Board may set the matter for a probable cause hearing. The Board shall endeavor to set the probable cause hearing within 45 days of the prima facie finding. 2.28.150 Complaint Procedures-Probable Cause Hearing. The purpose of the probable cause hearing is to determine if there are facts and circumstances, of a reasonably trustworthy nature, sufficient to justify a person of reasonable caution or prudence in the belief that a violation of the specific prohibitions has occurred ("probable cause"). To find probable cause, there must be an affirmative vote of the majority of the entire voting membership. The following procedures shall be followed in the conduct of a probable cause hearing: A. Both parties shall be provided notice that the probable cause hearing has been set. B. The Complainant and Respondent shall be informed that they may lodge with the Board ten days before the hearing additional evidence and a statement on their behalf for the Board's consideration. If such evidence is not provided to the Board within the time frame indicated, the Board may, but is not required to, exclude such evidence. As soon after receipt of such evidence by the Board, the Board should endeavor to provide the opposing party a copy thereof. C. At the hearing, the Board shall review, but is not limited to, the following: the complaint, including any supporting documents, that was filed; information acquired during any Board ordered investigation or request for information; and any other documents or evidence provided to the Board before the probable cause hearing. D. The Board, in its discretion, may permit additional documents or evidence to be admitted into the probable cause hearing. The Board, in its discretion, may also permit witnesses to testify. Witnesses may be subject to cross-examination, as permitted by the Board. E. Both parties may comment on the issue of probable cause, as permitted by the Brown Act. F. If the Boazd determines that probable cause does not exist, the Board shall dismiss the complaint. G. If the Board determines that probable cause exists, the Board should set a hearing on the merits within 45 days thereafter. 7-31 Ordinance No. Page 11 2.28.160 Complaint Procedures-Hearing on the Merits. If probable cause is determined to exist by the Board, then the Board shall conduct a hearing on the merits ("Hearing on the Merits") as set forth herein: A. Prior to the Hearing on the Merits, the Board may request additional information as set forth in section 2.28.140, subdivision B. The Board should set a date by which a request for additional information should be completed. B. Both parties shall be provided notice of the Hearing on the Merits. The Board may provide copies of materials upon which the complaint is based to either party. C. In the discretion of the Board, Complainant may present an opening and closing statement, present additional evidence and witnesses, including rebuttal evidence and witnesses, and cross examine witnesses. D. In the discretion of the Board, the Respondent may present an opening and closing statement, present additional evidence and witnesses, including rebuttal evidence and witnesses, and cross examine witnesses. E. The Board may admit, but is not limited to, evidence provided at the Hearing on the Merits, information provided with the complaint, information provided pursuant to section 2.28.140, subdivision B, or subdivision A of this section, information provided at the probable cause hearing, and any other evidence it determines should be considered. F. The Hearing on the Merits is not a formal judicial proceeding, but the Board will exercise control over the hearing to ensure that it is conducted in an orderly and expeditious manner. While the technical rules of evidence are not applicable and hearsay is admissible, evidence that is admitted should bear an indicia of reliability. 2.28.170 Complaint Procedures-Decision After Hearing on the Merits. The Boazd shall document its decision in a written statement of decision. A vote of five board members is required to make a finding of misconduct. Each finding of misconduct must be supported by a preponderance of the evidence. The statement of decision should be prepared expeditiously and shall be served upon both parties via certified mail with a certificate of mailing. A. Misconduct Found-Declaration of Misconduct If the Board makes a finding of misconduct, the statement of decision shall contain, and be labeled as such, a Declaration of Misconduct. The Declaration of Misconduct shall detail the misconduct that has been found to be true and the supporting evidence. The Declaration of Misconduct shall be a final decision on the merits and shall not be changed by the City Council. The Declazation of Misconduct may contain a recommendation of sanctions against the City Official found to have engaged in misconduct, including, but not limited to, the following: (1) a reprimand, censure, or removal from office. The Declaration of Misconduct may also recommend remedial actions to prevent misconduct in the future. Government Code sections 3250 et.seq. [Firefighter Procedural Bill of Rights Act] and 3300 et.seq. [Public Safety Officers Procedural Bill of Rights Act] provides appeal rights for the 7-32 Ordinance No. Page 12 Police and Fire Chief. The Police and Fire Chief shall be provided the appeal rights required under the aforementioned Government Code sections and City Council shall act as the body hearing any such appeal. B. No Misconduct Found-Declaration of No Misconduct. If the Board makes a finding of no misconduct, the statement of decision shall contain, and be labeled as such, a Declaration of No Misconduct. The Declaration of No Misconduct shall detail the basis for its finding. Even though no misconduct is found, if facts have been revealed and which show a potential for misconduct, then, in a separate action, the Board may recommend remedial actions to the City Council for appropriate action. 2.28.180 Conflicts City Officials subject to the Specific Prohibitions set forth in this chapter should not participate in or influence the complaint process as set forth in Sections 2.28.120 to 2.26.170 in their official capacities. To this end, when a complaint involves a Board of Ethics board member, a councilmember (including the mayor) or the City Attorney, the following procedures shall be followed: A. If a complaint involves a Board of Ethics board member, then the named Board of Ethics board member shall recuse him or herself. B. If a complaint involves a councilmember, including the Mayor, then the named councilmember shall recuse him or herself. C. If the complaint involves the City Attorney, the City Attorney and his or her Office, shall recuse themselves. Outside counsel shall be appointed to advise the Board of Ethics regarding the complaint alleging misconduct by the City Attorney. The Board of Ethics may establish procedures for the selection of such counsel. 2.28.190 Disclosure of Board Records The purpose of this section is to advance the public's interest under the Public Records Act to access information concerning the conduct of Board in a manner that will not compromise the Board's ability to conduct effective and confidential investigations into alleged violations of the City of Chula Vista's Code of Ethics. The Board and its staff shall not make public comments regarding a pending matter until the Board has made a final decision on the merits or until the matter is otherwise closed. The complaint may be released to the public. The complaint may be redacted consistent with Section 2.28.120 (regarding requests for confidentiality). The Board may release its records unless they fall within, but not limited to, the categories that follow: A. Preliminary or draft memoranda, documents, or records not kept in the ordinary course of business. B. Personnel, medical, or other similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. C. Documents or records protected under any law (state or federal) related to privilege. D. Records exempt from disclosure under the California Public Records Act (Government Code section 6250 et.seq.). 7-33 Ordinance No. Page 13 E. Documents or records where the public interest against disclosure outweighs the public interest served by disclosure. Such documents may include, but are not limited to, the following: 1. The names of juvenile witnesses; or 2. Personal or otherwise private information related or unrelated to the investigation if the disclosure would constitute an unwarranted invasion of privacy; or 3. The identity of a confidential source; or 4. Information, which, if disclosed, would create a credible risk of endangering any individual; or 5. Information, which, if disclosed, would endanger the successful completion of an investigation where the prospect of enforcement proceedings is concrete and definite. 2.28200 Severability. If any provision of this chapter, or the application of any such provision to any person or circumstance, shall be held invalid, the remainder of this chapter to the extent if can be given effect, or the application of those provisions to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby, and to this end the provisions of this chapter are severable. SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. SECTION II: Violations of Chapter 2.28 that occurred prior to the effective date of this Ordinance, shall be subject to the provisions of Chapter 2.28 and/or Board of Ethics policies or procedures in effect before the effective date of this Ordinance. SECTION III: The City Clerk is directed to publish this ordinance in accordance with the City Charter and applicable state law. Presented by Glen R. Googins City Attorney Approved as to form by Glen R. Googins City Attorney 7-34 1 1 .~ . Chapter 2.28 [Board of Ethics] Sets Ethical Standards for City Officials Creates Board of Ethics ( "BOE ") Charges BOE with ensuring the Chapters "continuing pertinence and effectiveness." BOE undertook a review of Chapter 2.28 BOE created Ad Hoc Committee Consisted of three boardmembers and alternate Met monthly and then more frequently beginning Jan. 2011 m Open to public and noticed There had been prior reviews -those actions considered as well a The full BOE considered Ad Hoc recommendations, added some of their own, and now recommends City Council Approval As review process developed, themes /goals evolved: Clarity Due Process Avoiding duplicity Avoiding Abuse Pertinence and Effectiveness Review of Chapter 2.28 was broken down into three areas: {° Code of Ethics Technical Amendments Complaint Procedures Ethical Standards - Current Code ~ References to a "Code" Rules found in many sections Lack of clarity Created Code of Ethics - Chapter re- titled Combination of existing rules and new ones too Code of Ethics divided into: r Guiding Principles Specific Prohibitions Aspirational goals Transcend what is required by law Examples: 2.28.030(A)(3) -(5) (Fraud, Waste, and Abuse) Grand jury recommended c Guiding principles - Prohibition counter part Specific Prohibitions Prohibited and would be unethical conduct Clear Notice c Examples -Added 2.28.030(B)(10) -(14) Increased persons subject to Code of Ethics Consistency with other CVMC sections How BOE members chosen How to place items on Agenda Increased ability to report to other enforcement agencies 7, Identified ethics concerns for BOE members -See 2.28.050 Due Process Notice Opportunity to be heard Defined Procedures Progressive -from Prima Facie to Hearing on Merits Receipt Prima Facie Review Probable Cause Hearing Hearing on Merits Decision Confidentiality-2.28.120(B) Balancing of interests Process Declaration showing good cause y Ad Hoc Committee review (5 days) No good cause -can withdraw complaint Confidentiality only until probable cause has been found Prima Facie Review Probable Cause Hearing Hearing on the Merits PROGRESSIVE REVIEW Declaration of Misconduct Declaration of no Misconduct BOE Declarations are Final decisions 71 Recommendation to City Council for Action CD C� CD CD CD C7 C CD CD Vr . V CD CD c--r CD CD CD C� r-+ CD C� �Q