HomeMy WebLinkAbout19C - REPORT LETC COMMITTEEREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
SEPTEMBER 18, 2018
TITLE:
RECEIVE AND FILE REPORT FROM THE
LEGISLATIVE AFFAIRS, ETHICS,
TRANSPARENCY AND COMMUNICATIONS
COUNCIL COMMITTEE
(STRATEGIC PLAN NO. 5, 1)
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CITY ANAGER
RECOMMENDATION
Receive and file report.
DISCUSSION
CLERK OF COUNCIL USE ONLY:
9--100
❑ As Recommended
❑ As Amended
❑ Ordinance on 1st Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
At the Special, Legislative Affairs, Ethics, Transparency and Communication Council Committee
meeting held on August 15, 2018, the members discussed and provided staff direction on draft
policy regarding City Council censure for violations of Code of Conduct and Ethics. The
Committee had been presented with various policy options for consideration of sanctions,
censure, disapproval, and admonitions. The committee members unanimously agreed to direct
staff to bring back a receive and file report to the City Council that recommends a status quo
policy. The City has a values based Code of Ethics and Conduct; thus, existing methods of
reporting both Brown Act and Political Reform Act violations are appropriate and should remain.
The attached exhibit provides existing reporting mechanism for the Orange County District
Attorney's office, Grand Jury, Fair Political Practices Commission and/or the Attorney General's
Office depending on the type of violation.
STRATEGIC PLAN
Approval of this item allows us to meet Goal #5. Community Health, Livability, Engagement &
Sustainability, Priority #1, Establish a comprehensive community engagement initiative to expand
access to information and create opportunities for stakeholders to play an active role in
discussing public policy and setting priorities.
FISCAL IMPACT
There is no fiscal impact associated with this action.
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M ria D. Huizar
Clerk of the Council
Exhibit: 1. Reporting Mechanism
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Exhibit 1
BROWN ACT VIOLATIONS
Existing Methods of Reporting Brown Act Violations
1. OC District Attorney's Office — Special Prosecution Unit
2. Grand Jury (authorized under AB1945)
3. Attorney General
How to report violations
1. Majority Vote of the City Council in Open Session
2. Member of the Public submit to Enforcement Agency
Caution — Legislative Actions May be Voided
Meetings of public bodies must be "open and public," actions may not be secret, and action
taken in violation of open meetings laws may be voided. (§§ 54953(a), 54953(c), 54960.1(d))
What are the Penalties for Violating the Brown Act?
If you are a public official, you need to take the Brown Act seriously. There are both criminal and
civil penalties for violating the Brown Act. Participation in unauthorized meetings is a
misdemeanor. There are specific remedies available for disclosure of confidential information
obtained in closed session.
An action for an injunction or declaratory relief for violations of the Brown Act may be brought by
any interested person or by the District Attorney. The court may order the action taken by the
legislative body null and void. Prior to bringing an action, however, the complainant must make a
demand on the legislative body to cure the defect. If the legislative body fails to cure, then the
complainant may file suit.
Action by the legislative body will not be null and void if:
1. The legislative body substantially complied with the provisions of the Brown Act.
2. The action involved the sale or issuance of notes, bonds or a contract with a third party.
3. The action was taken to collect a tax.
4. If the person had actual notice of the item of business within 72 hours prior to the meeting
(or 24 hours for a special meeting) despite the lack of agenda.
5. A court may award court costs and reasonable attorneys' fees to any successful plaintiff.
Local agencies may be entitled to attorneys' fees where the case is found to be frivolous
and without any merit.
Because the penalties for violation of the Act can be severe, it is imperative that all public officials
acquaint themselves with the provisions of the Brown Act. The Act applies to legislative bodies of
local agencies. Remember that a meeting includes every gathering of the majority of the
members of the legislative body, with certain limited exceptions.
All meetings must be noticed with a posted agenda containing the necessary elements --a
description of each item to be discussed, time and place of the meeting, and an opportunity for
the public to address the legislative body. The reason for any closed session must be disclosed
both on the agenda and orally prior to convening the closed session. Following the closed
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Exhibit 1
session, an oral or written report of the action taken in closed session must be given which
includes the vote of the legislative body members.
Meetings must be held in an accessible location within the jurisdiction, Any and all interested
persons must have the opportunity to attend. All materials used by the members of the legislative
body both in preparation for and at the meeting are public records.
Remember, it is always better to err on the side of openness to protect yourself. If you have any
questions regarding the application of the Act to any part of your agendas, meetings or
gatherings, whether informal or formal, seek legal advice.
Summary of Consequences of Violation.
A. Criminal penalties-- misdemeanor where action taken in violation of the act.
B. Civil remedies --
1. Injunction, mandamus, declaratory relief
2. Action may be voided following notice to correct, which must be received within
90 days, and acted on within 30 days, lawsuit filed within 15 days.
C. Attorney fees
1. Awarded against agency, not individual.
About the Orange County District Attorney's Office
The Office of the District Attorney's Special Prosecutions Unit is responsible for prosecuting
political corruption. Political/public corruption includes all criminal acts that relate to the election to
and/or holding of a public office. The integrity of the political process is vital to our democracy.
Among the crimes in this category are campaign money laundering, candidate residency
violations, Political Reform Act violations, conflicts of interest, misuse of public funds and Brown
Act violations.
The Special Prosecutions Unit reviews all complaints of political corruption submitted to the
District Attorney. Often the complaint is discussed with other agencies such as the United States
Attorney, the California Attorney General and the California Fair Political Practices Commission.
A determination is then reached as to which agency is best suited to handle the complaint. This
decision is based on such considerations as the gravity of the violation, potential punishments
and any possible conflicts of interest on the part of the District Attorney. If it is decided that the
District Attorney can best handle the complaint, a thorough investigation is completed by the
Special Assignments Unit of the District Attorney's Bureau of Investigations. A prosecutor
specializing in these types of cases in the Special Prosecutions Unit then determines if there is
sufficient evidence to prove a specific crime beyond a reasonable doubt. If so, that prosecutor will
file charges and handle the case to its conclusion. The District Attorney believes that such crimes
encroach on the fundamental democratic political process and should be vigorously prosecuted.
State Legislation Authorizing Grand Jury to Investigate Violations
Legislation, effective January 1, 2003 (AB 1945), confirms that it is a violation of the Brown Act to
disclose confidential, closed session information.
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Exhibit 1
Assembly Bill No. 1945
CHAPTER 1119
An act to add Section 54963 to the Government Code, relating to open meetings.
[Approved by Governor September 30, 2002.
Filed with Secretary of State September 30, 2002.]
LEGISLATIVE COUNSEL'S DIGEST
AB 1945, Simitian. Open meetings: closed sessions: confidential information.
The Ralph M. Brown Act generally requires that the meetings of the legislative body of a
local agency be conducted openly and publicly, but also provides that the legislative body
of a local agency may hold closed sessions for specified purposes. The act provides that a
member of a legislative body who attends a meeting of that body where action is taken in
violation of the act, and where the member intends to deprive the public of information to
which the member knows or has reason to know the public is entitled under the act, is
guilty of a misdemeanor.
This bill would provide that a person may not disclose confidential information, as defined,
that has been acquired by being present in a closed session authorized under the act, as
specified, unless the legislative body authorizes disclosure of that confidential information.
The bill would provide that a violation of these provisions may be addressed by the
use of remedies that are currently available by law, including, but not limited to,
injunctive relief to prevent the disclosure of confidential information under these
provisions, disciplinary action against an employee who has willfully disclosed
confidential information, and the referral of a member of a legislative body who has
willfully disclosed confidential information to the grand jury for investigation and
possible accusation under specified procedures. The bill would provide that a local
agency may not take any of these actions against a person for making a confidential
inquiry or complaint to a district attorney or grand jury concerning a perceived violation of
law, expressing an opinion concerning the propriety or legality of actions taken by a
legislative body in closed session, including disclosing specified facts to a district attorney
or grand jury to establish the illegality of action taken or potential illegality of action
deliberated upon that would be illegal if the action is taken, or disclosing information
acquired by being present in a closed session that is not confidential information.
The people of the State of California do enact as follows:
SECTION 1. Section 54963 is added to the Government Code, to read:
54963. (a) A person may not disclose confidential information that has been acquired by
being present in a closed session authorized by Section 54956.7, 54956.8, 54956.86,
54956.87, 54956.9, 54957, 54957.6, 54957.8, or 54957.10 to a person not entitled to
receive it, unless the legislative body authorizes disclosure of that confidential information.
(b) For purposes of this section, "confidential information" means a communication made
in a closed session that is specifically related to the basis for the legislative body of a local
agency to meet lawfully in closed session under this chapter.
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Exhibit 1
(c) Violation of this section may be addressed by the use of such remedies as are
currently available by law, including, but not limited to:
(1) Injunctive relief to prevent the disclosure of confidential information prohibited by this
section.
(2) Disciplinary action against an employee who has willfully disclosed confidential
information in violation of this section.
(3) Referral of a member of a legislative body who has willfully disclosed confidential
information in violation of this section to the grand jury.
(d) Disciplinary action pursuant to paragraph (2) of subdivision (c) shall require that the
employee in question has either received training as to the requirements of this section or
otherwise has been given notice of the requirements of this section.
(e) A local agency may not take any action authorized by subdivision (c) against a person,
nor shall it be deemed a violation of this section, for doing any of the following:
(1) Making a confidential inquiry or complaint to a district attorney or grand jury concerning
a perceived violation of law, including disclosing facts to a district attorney or grand jury
that are necessary to establish the illegality of an action taken by a legislative body of a
local agency or the potential illegality of an action that has been the subject of deliberation
at a closed session if that action were to be taken by a legislative body of a local agency.
(2) Expressing an opinion concerning the propriety or legality of actions taken by a
legislative body of a local agency in closed session, including disclosure of the nature and
extent of the illegal or potentially illegal action.
(3) Disclosing information acquired by being present in a closed session under this chapter
that is not confidential information.
(f) Nothing in this section shall be construed to prohibit disclosures under the
whistleblower statutes contained in Section 1102.5 of the Labor Code or Article 4.5
(commencing with Section 53296) of Chapter 2 of this code.
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Exhibit 1
POLITICAL REFORM ACT VIOLATIONS
Referred to: Fair Political Practices Commission( (FPPC)
Mission of the Enforcement Division:
The mission of the Fair Political Practices Enforcement Division is to fairly, effectively and
efficiently enforce the provisions of the Political Reform Act.
What We Do:
The Act gives the Division the authority to investigate and administratively prosecute violations of
the Political Reform Act. A violation of the Act may be prosecuted for a penalty fine of up to
$5,000 for each violation. The team of Enforcement Division investigators, attorneys, auditors,
political reform consultants and support staff works vigorously to ensure that cases are handled
swiftly, effectively and fairly.
Enforcement Process:
A matter will be fully investigated when there is sufficient information to believe that a violation of
the Act has occurred. Information regarding potential violations of the Act comes from citizen
complaints, referrals from other governmental agencies, media reports, audit findings or may be
identified internally.
When sufficient evidence exists to prove a violation of the Act, the Enforcement Division will bring
a prosecution action to the Commission, or may issue a Warning Letter, depending upon the
facts of the case and the public harm caused. If the evidence is insufficient to warrant
prosecution, a case may be closed with an Advisory Letter or without violation.
The Enforcement Division also operates a campaign audit program of both mandatory and
discretionary audits.
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Exhibit 1
How to File a Complaint:
Anyone who suspects a violation of the Act should file a sworn complaint with the Enforcement
Division. To file a complaint click the button below.
Violations of the Act include:
• Conflict of interests,
• Campaign money laundering,
• Gift limit violations,
• Campaign mass mailing at public expense,
Failure to file or report all interests on required Statements of Economic Interest
• Inadequate, untimely, or no filing of required campaign statements and reports,
• Improper campaign reporting,
• Improper receipt of campaign funds, including receiving funds from anonymous sources
and contributions in excess of limits,
• Improper expenditures of campaign funds, including using campaign funds for personal
use.
Violations do NOT include:
• False or misleading campaign materials,
• Election fraud,
• Misuse of public funds unrelated to campaign mass mailing,
• Violations of the Elections Code, the Penal Code, or any laws other than the Political
Reform Act,
• Issues related to Federal campaigns,
• Open meeting law issues (Brown Act, Bagley -Keene),
• Local ordinances,
• Vandalism of campaign signs.
• Residency requirements for running for or holding office.
FPPC Toll -Free
1-866-ASK-FPPC (1-866-275-3772)
Monday through Thursday
9:OOam - 11:30am
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Exhibit 1
CODE OF ETHICS AND VALUES VIOLATIONS
Values based Code
• The City Attorney, or his/her designee, shall serve as a resource person to those persons
covered by the code to assist them in determination of appropriate actions consistent with
the Code.
Code associated with AB1234 (State's Ethics Training)
Fair Political Practices Commission enforces AB1234 violations.
Code Adopted via Resolution on June 2, 2008
The people of the City of Santa Ana, at an election held on February 5, 2000, approved an
amendment to the City Charter of the City of Santa Ana which states: "The City of Santa Ana
shall adopt a Code of Ethics and Conduct for elected officials and members of appointed boards,
commissions, and committees to assure public confidence in the integrity of local government
elected and appointed officials." Consistent with the vote of the people, the following Code of
Ethics and Conduct is hereby adopted by the City of Santa Ana to ensure effective and fair
operation of the local government of the City of Santa Ana.
PREAMBLE
It is the intent of this code to achieve fair, ethical, and accountable local government for
the City of Santa Ana. The people of Santa Ana expect public officials, both elected and
appointed, to comply with both the letter and the spirit of the laws of the State of California, the
United States of America, and the Charter, Municipal Code, and established policies of the City of
Santa Ana affecting the operations of local government. In addition, public officials are expected
to comply with the provisions of this Code of Ethics and Conduct established pursuant to the
expressed will of the people. All persons covered by this code will aspire to meet the highest
ethical standards in the conduct of their responsibility as an elected or appointed official of the
City of Santa Ana.
This code addresses various aspects related to the governance of the City of Santa Ana
and supplements, but does not supplant other laws and rules that prescribe the legal
responsibilities of City officials. These include, but are not limited to, the Federal and State
Constitutions, various provisions of the California Government Code (such as the Brown Act and
the Political Reform Act), the Labor Code, laws prohibiting discrimination and harassment, and
the City of Santa Ana Charter and Municipal Code. Elected and appointed officials are expected
to be familiar with these laws to ensure that they exercise their public responsibilities in a proper
fashion. This code is not designed to be used as a tool to remove appointed officials, as the City
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Exhibit 1
Council retains the right under the Charter and Municipal Code to remove appointed officials in
accordance with those provisions.
While it is not possible to anticipate and provide a rule of conduct and ethics for all
situations that public officials may face, this Code of Ethics and Conduct is designed to provide a
framework to guide public officials in their daily duties.
SCOPE
The provisions of this Code of Ethics and Conduct shall apply to the Mayor and members
of the City Council, and to all members of the boards, commissions, and committees appointed
by the City Council or the Mayor or the Mayor and City Council, including any ad hoc committees.
Further, the provisions of this Code of Ethics and Conduct shall only apply to these officials and
members acting in their official capacities and in the discharge of their duties.
CORE VALUES
Attitudes, words, and actions should demonstrate, support, and reflect the following
qualities and characteristics for the well being of our community. The five core values and
expressions that reflect these core values are as follows:
INTEGRITY/ HONESTY
1 am honest with my fellow elected officials, the public and others.
• 1 do not promise what I believe to be unrealistic.
• I am prepared to make unpopular decisions when my sense of the public's best interests
requires it.
• 1 credit others' contributions to moving our community's interests forward.
I do not knowingly use false or inaccurate information to support my position or views.
• 1 safeguard the ability to make independent, objective, fair and impartial judgments by
scrupulously avoiding financial and social relationships and transactions that may
compromise, or give the appearance of compromising, objectivity, independence, and
honesty.
RESPONSIBILITY/PROTECTING THE PUBLIC'S INTERESTS
I do not accept gifts, services or other special considerations because of my public
position.
• 1 excuse myself from participating in decisions when my or my immediate family's financial
interests may be affected by my agency's actions.
• 1 do not give special treatment or consideration to any individual or group beyond that
available to any other individual.
• 1 refrain from disclosing confidential information concerning litigation, personnel, property,
or other affairs of the City, without proper legal authority, nor use such information to
advance my financial or other personal interests.
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Exhibit 1
FAIRNESS/ACCOUNTABILITY
• 1 promote meaningful public involvement in the agency's decision-making processes.
• 1 treat all persons, claims and transactions in a fair and equitable manner; I make
decisions based on the merits of the issue.
• If I receive substantive information that is relevant to a matter under consideration from
sources outside the public decision-making process, I publicly share it with my fellow
governing board members and staff.
• 1 work to contribute to a strong organization that exemplifies transparency and open
communication.
RESPECT FOR FELLOW ELECTED OR APPOINTED OFFICIALS, STAFF, AND THE PUBLIC
• 1 treat my fellow officials, staff and the public with patience, courtesy and civility, even
when we disagree on what is best for the community.
• I work towards consensus building and gain value from diverse opinions.
• I respect the distinction between the role of office holder and staff; I involve staff in
meetings with individuals, those with business before the agency, officials from other
agencies and legislators to ensure proper staff support and to keep staff informed
• 1 conduct myself in a courteous and respectful manner at all times during the performance
of my official City duties.
• 1 encourage full participation of all persons and groups; I am aware and observe important
celebrations and events which reflect the values of our diverse population.
PROPER AND EFFICIENT USE OF PUBLIC RESOURCES
• 1 do not use public resources, such as agency staff time, equipment, supplies or facilities,
for private gain or personal purposes.
• 1 make decisions after prudent consideration of their financial impact, taking into account
the long-term financial needs of the agency, especially its financial stability.
• 1 demonstrate concern for the proper use of agency assets (such as personnel, time,
property, equipment, funds) and follow established procedures.
1 am a prudent steward of public resources and actively consider the impact of my
decisions on the financial and social stability of the City and its residents.
IMPLEMENTATION AND ENFORCEMENT
City of Santa Ana elected and appointed officials of the various boards, commissions and
committees have the primary responsibility to assure that ethical standards are understood and
met, and that the public can continue to have full confidence in the integrity of government. This
code of ethics will be most effective when the elected and appointed officials are thoroughly
familiar with it and embrace its provisions.
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Exhibit 1
Upon adoption of this code, all current elected or appointed officials shall be given a copy
of the code and asked to affirm in writing that they have received the code, understand its
provisions, and pledge to conduct themselves by the code. All new members of the City Council,
upon election or reelection, and members of boards, commissions, and committees appointed by
the City Council, upon appointment or reappointment, shall be given a copy of the code and are
required to affirm in writing they have received the code and understand its provisions, and
pledge to conduct themselves by the code. Additionally, all members of the City Council, boards,
commissions, and committees, as part of their AB1234 training, shall be provided additional
training clarifying the provisions and application of this code. The City Attorney, or his/her
designee, shall serve as a resource person to those persons covered by the code to assist them
in determination of appropriate actions consistent with the code.
A periodic review of the code shall be conducted to ensure that the code is an effective
and vital document.
This Code of Conduct is intended to be a reflection of the community's values as
articulated by the Mayor and City Council as they represent the will of the people of the City of
Santa Ana.
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Exhibit 1
CHARTER AND MUNICIPAL CODE VIOLATIONS
No reporting mechanism; following Charter provisions may apply:
Charter Section 420. - Violation and penalty.
The City Council may make the violation of its ordinances a misdemeanor or infraction
which may be prosecuted in the name of the People of the State of California or may be
redressed by civil action and may prescribe punishment for such misdemeanor or infraction in
the same manner as provided in the penal code of the State of California as the same now
reads or as hereafter amended.
(Ord. No. NS -1642, 8-2-82, approved at election 11-2-82)
Charter Section 1100. - Investigations by the city council or city manager.
The City Council, the City Manager, or any person or committee authorized by either of
them, shall have power to inquire into the conduct of any office, department, agency, or officer
of the City and to make investigation as to City affairs, and for that purpose may subpoena
witnesses, administer oaths, and compel the production of books, papers, and other evidence.
Charter Section 1501. - Violations.
The violation of any provision of this charter shall be deemed a misdemeanor and be
punishable upon conviction in the same manner as provided in the Penal Code of the State of
California as the same now reads or as hereafter amended.
(Ord. No. NS -2074, § 9, 8-6-90, approved at election 11-6-90)
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