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Meeting Minutes

August 22, 2001
2:00 P. M.
City Administration Building, 12th Floor
Committee Room
202 C Street


Lisa Foster
Albert Gaynor
Charles La Bella
Dorothy Leonard
April Riel
Dorothy Smith
Gregory Vega

Agenda Item No. 1 - Call to Order.

Commissioner Leonard convened the meeting upon the request of staff. All Commissioners were present.

Agenda Item No. 2 - Oath of Office.

City Clerk Charles G. Abdelnour administered the oath of office to the Commissioners.

Agenda Item No. 3 - Commissioner Introduction and Comment.

Commissioners introduced themselves by name. Commissioner Foster stated that she is very pleased to be present and is ready to work. Commissioner Smith stated that she hoped the Commission would fulfill its charge to the best of its ability and for the good of the City of San Diego. Commissioner Vega stated it is a pleasure to be part of the Commission.

Commissioner Leonard commented that for the people who have worked together on the formation of an Ethics Commission for several years, this is a momentous occasion. Commissioners Leonard and Foster were members of the Ethics Advisory Board, which was tabled for a few years. Commissioner Leonard stated her thanks to the current City Council, who decided it was time again to move forward. Commissioner Leonard stated that there are challenges ahead of the Commission, and a lot of work to get organized.

Deputy City Attorney (DCA) Lisa Foster reminded Commissioners that the meeting was being recorded by a legislative recorder, and that Commissioners need to speak into live microphones in order for their comments to be recorded.

Agenda Item No. 4 - Election of Chair and Vice Chair.

DCA Foster stated that a vote of four Commissioners is needed to elect the Chair and Vice Chair.

Commissioner Leonard asked for nominations for Chair. Commissioner Foster nominated Commissioner Leonard. Commissioner Gaynor seconded the nomination. Commissioner Leonard asked for additional nominations. There being none, Commissioner Leonard called for the vote. Commissioner Leonard's nomination for Chair was adopted by unanimous vote. Commissioner Leonard thanked the Commissioners for their confidence in her. She stated her pleasure to be able to work with the Commissioners, and commented on the talent among the Commissioners.

Commissioner Leonard then asked for nominations for Vice Chair. Commissioner Smith nominated Commissioner Gaynor. Commissioner Foster seconded the nomination. Commissioner Gaynor nominated Commissioner Smith, who declined the nomination. Commissioner Smith moved that Commissioner Gaynor be elected by acclamation. Commissioner Vega seconded the motion, which was adopted unanimously.

Agenda Item No. 5 - Signing of Declaration - Prohibition on Running for Elective Governmental Office.

DCA Lisa Foster reported on a waiver form prepared by the City Attorney's Office in conjunction with the requirements of San Diego Municipal Code (SDMC) section 26.0406(c). By signing the form, Commissioners agree that during their tenure on the Commission and for a period of twelve months after ending their service, they will not become a candidate for elective governmental office. The form includes language stating that the Commissioners have had the opportunity to review the prohibition requirement with the counsel of their choice, should they so choose. The forms will not be collected today, to allow Commissioners the opportunity to think over whether or not they have any questions prior to signing. The matter will be brought up again at the Commission's next meeting to respond to any concerns Commissioners may have about the prohibition.

Daniel Beeman made public comment on this agenda item. Mr. Beeman stated that he has run for City Council, and is concerned about this item because he could not apply for appointment to the Ethics Commission because he will probably run again for Council. He also wonders if someone who runs political campaigns can run. He has not heard much about the background of the regulations of who can be a member of the Commission, and would like to find out more about that. He stated he might step aside from running for a few years, if he can run a campaign. He stated he is a political activist, and that he feels that is his duty as a citizen. He believes the prohibition takes a little bit away from being involved with the Ethics Commission as a member. He stated that if you feel strongly enough about your government, then maybe you feel strongly enough to run, and that is the kind of Ethics people we need to have on the Commission. He stated his hope that the Commission will show how to run a really ethical campaign.

Chairperson Leonard directed Mr. Beeman to SDMC section 26.0406 regarding qualifications for Commission membership.

DCA Foster commented that the qualifications presented in SDMC section 26.0406 were a policy decision made by the City Council as a part of approving the ordinance which created the Ethics Commission.

Chairperson Leonard commented that copies of that ordinance are available from the City Clerk's Office.

Agenda Item No. 9 - Commission Staff and Budget.

Chairperson Leonard took this item out of order because it involved a City staff report.

DCA Foster introduced Executive Assistant City Attorney Leslie Devaney.

Ms. Devaney welcomed the Commissioners on behalf of City Attorney Casey Gwinn.

Ms. Devaney stated that staffing requirements outlined in the Ethics Commission ordinance are that the Commission have "no less than." Ms. Devaney added that that language enables the Commission to have more staff than are outlined in the ordinance. She stated that the Commission shall have no less than a full-time executive director who will be confirmed by Council. She suggested that the selection of the executive director might be one of the first things the Commission wishes to consider. The individual may be classified or unclassified, and the Commission may determine what kind of pay is needed to fulfill the duties that Commission desires of its executive director.

Ms. Devaney stated that the ordinance also requires the Commission to have a clerical assistant; again, the Commission will determine what kind of duties that person shall have. Ms. Devaney stated that depending upon the responsibilities assigned to this position, the position should be run through the City's Personnel Director. A question to ask would be whether to have the position be classified or unclassified.

Ms. Devaney stated that the ordinance also requires the Commission to have an investigator. She noted that while the City Attorney's Office has investigators, it might be prudent for the Commission to determine on its own what type of duties should be assigned to its investigator, and to determine whether or not the position is already on a list under the Personnel Director. Ms. Devaney offered the City Attorney's job description for investigators, to assist the Commission in making that decision. Ms. Devaney noted that, as with the other positions, the Commission should contact the Personnel Director about whether there are existing lists, or whether there is a need to advertise outside of the City to find someone to fulfill those duties that are expected by the Commission.

Ms. Devaney introduced Principal City Attorney Investigator Robert Abel as point-person until the Commission has its own investigator. Mr. Abel manages all the investigative support staff for all the civil deputy city attorneys in the City Attorney's Office. Ms. Devaney stated the Commission could reach Mr. Abel either through herself, or through DCA Rick Duvernay.

Ms. Devaney noted that Mr. Duvernay has been appointed to assist the Commission, and was unable to attend today's meeting. Mr. Duvernay was Attorney of the Year for 2000, has worked on the MSCP program for the City, has worked to develop the project with NTC, has worked on the specific plan for North County Future Urbanizing Area, is a 1982 Boston University graduate with an MBA from Rhode Island University, is a 1988 graduate of USD, and an excellent attorney from the City Attorney's Office. Ms. Devaney noted that Mr. Duvernay is very excited to be working with the Commission, and that the Commission will be very happy to have him.

Ms. Devaney commented that the City Council will be the body to approve the Commission's budget, and that the budget is another area the Commission must consider, in addition to considering the duties and the staff needed to get the job done.

DCA Foster added that in the FY 2002 budget, Council has allocated $300,000 to the Ethics Commission. She noted that the figure may be adjusted if it is inappropriate.

Commissioner Foster asked about the difference between "classified" and "unclassified," and requested clarification regarding personnel lists.

Ms. Devaney stated that "classified" employees may be represented by unions, and that there are lists of classified employees and would-be employees. When an entity is seeking to fill a particular kind of position, if a list exists, then the entity must make its selection from that list. If the duties of a position do not fall within a specified classification, the Commission may work with the Personnel Director to go beyond existing lists and perhaps hire from without. Classified employees are protected under the Civil Service Commission's rules and regulations. Ms. Devaney suggested that the Commission invite the Personnel Director to describe the pros and cons of hiring classified versus unclassified staff.

DCA Foster also suggested that the Commission request the Personnel Director to speak about hiring. She noted that there are formalities regarding the Civil Service Commission should the Ethics Commission wish to hire its executive director or any of its staff as unclassified employees. Additionally, such a request to exempt a position from classified service must be approved by the City Council.

Commissioner Riel asked if the $300,000 budget includes salaries, office space and overhead. Ms. Devaney responded that her impression is that the budget was for Commission start-up costs, and that the Commission would have the opportunity to adjust it later.

City Clerk's Office elections analyst Bonnie Stone stated that the City's budget currently indicates that the $300,000 allocated to the Ethics Commission is for non-personnel expenditures. She noted that it appears the Ethics Commission may share space with the Redistricting Commission until such time as the latter disbands, at which time the Ethics Commission will have its own space in the Executive Office Complex across the street from the City Administration Building.

DCA Foster introduced Ms. Stone to the Commission, noting that Ms. Stone is helping to fill in the gaps with Commission staffing until such time as the Commission has its own staff.

Chairperson Leonard asked if samples of job descriptions from other Ethics entities exist for the Commission's use. DCA Foster offered to get such samples. Chairperson Leonard noted they would be helpful; she stated that in addition to setting a meeting schedule, preparing for hiring is one of the first things the Commission must accomplish, as well as getting office space, so that the Commission may begin functioning.

Agenda Item No. 6 - City Staff Report - Ethics Commission Worklist and Timeline.

DCA Foster noted that there is an existing draft worklist which is a work in progress, to give the Commission something with which to get started. The ordinance lists several tasks.

Rules Committee Consultant Bill Baber stated that the worklist derives from City Council discussions during Rules Committee and Council confirmation, and is also based on the technical language of the ordinance.

Mr. Baber noted that the Commission has no policies and procedures in place, and suggested that policies and procedures should be a priority.

Commissioner Foster stated that there are two areas the Commission will deal with: the ethics area, and the campaign area. If the Commission is to deal with the March 2002 election, then those procedures should be decided upon first. Commissioner Foster requested information about Council procedures, because Council must approve the Commission's procedures.

Mr. Baber responded that from the day the Commission provides the procedures to Council, it would be a minimum of one month before the adoption of those procedures would appear on the Council's agenda. Mr. Baber also noted that it would be prudent to hash out many of the issues at Rules Committee before going to Council. He stated that the hiring of an executive director could probably go straight to Council. In general, he recommended four or five weeks' lead time. For instance, if Ethics Commission procedures were to become effective February 1, 2002, then the Commission would have to forward them to Council no later than the second week of December, 2001.

DCA Foster stated that how to memorialize the Commission's procedures is a topic open for discussion. She noted that in Los Angeles and San Francisco, the ethics commissions' administrative procedures are in the cities' charters. She noted that it would be consistent with other administrative enforcement procedures in the City to have the Commission's procedures be a part of the SDMC.

Mr. Baber noted that if the procedures require adoption of an ordinance, a second reading would be required, which would entail another two weeks, for a total of seven weeks between the time the Commission sends the procedures to Council and the time those procedures become effective.

Chairperson Leonard stated that Mr. Baber and DCA Foster have a great deal of information about what ethics commissions in other jurisdictions have done, and that it would be helpful to look at San Francisco and Los Angeles in particular, as they were developed under California law.

Commissioner Foster stated that modifying the procedures of San Francisco and Los Angeles would be helpful, rather than having to reinvent the wheel.

DCA Foster stated that California is the best model, but noted that looking at other ethics commissions, such as those in Honolulu and Dallas, might provide some different, helpful ideas. She noted the procedures for Los Angeles and San Francisco are very detailed, and comply with due process.

Commissioner La Bella suggested the formation of subcommittees to deal with office space, personnel, and a survey of other ethics organizations' procedures nationwide, with two Commissioners handling each subject and reporting back to the Commission as a whole.

Chairperson Leonard asked DCA Foster to comment on the applicability of the Ralph M. Brown open meeting act to Ethics Commission subcommittee meetings.

DCA Foster responded that the use of subcommittees could expedite the Commission's work, as subcommittees are not subject to the noticing and agenda requirements of the Brown Act if there are three or fewer Commissioners on a particular subcommittee. However, four Commissioners meeting together requires noticing the meeting and having it be public under the Brown Act.

Chairperson Leonard noted that all discussion and actions would take place in a public arena. Because office space appears to be settled, two issues for subcommittees were identified: personnel, and other ethics commissions' procedures. Chairperson Leonard indicated that additional issues might be identified as today's meeting progressed.

Agenda Item No. 7 - City Attorney Staff Report - Charter Amendment Authorizing Subpoena Power.

DCA Foster stated that this is an issue that the Commission may wish to address early. If a measure is to go to the voters on the March 2002 ballot to change the City Charter by giving the Commission subpoena power, then draft language must be provided to the Rules Committee no later than September 26. The Council will then take up ballot measures in November.

DCA Foster stated that Government Code sections 37104 and 37105, provided to the Commissioners, are the basis of the City Attorney's opinion that the Commission needs to have subpoena power. The Government Code currently rests subpoena power for the City in the legislative body, and requires that subpoenas be signed by the Mayor.

DCA Foster noted that there is case law that has held that this is a municipal affair for Charter cities. Consequently, it is possible to override the dictate that subpoena power be with the City Council by addressing this in the City Charter and having that Council power delegated to the Commission if the voters are willing to approve such as a ballot measure.

DCA Foster stated that the City Attorney's Office has been discussing various ways to approach this issue. Options include:

  1. Have a longer Charter section describing the Commission and including all the characteristics of the Commission. Los Angeles and San Francisco have their ethics commissions' duties, responsibilities and procedures outlined in their charters. The consensus of opinion in the City Attorney's Office is that this approach is not desirable for the issue of subpoena power, because it is overkill. Council has already established the Commission by ordinance. Were it to be reestablished by Charter, then if any changes were desired, a Charter change arguably would be required, rather than an ordinance. Consequently, some flexibility would be lost with whatever subjects were incorporated into the Charter. Additionally, it could call into question the Council's authority to establish the Commission in the first place. The City Attorney's Office does not believe this is an issue, but does not wish to create any appearance that it is an issue.

  2. The prevailing idea in the City Attorney's Office at this time is to prepare some shorter ballot language which addresses subpoena power alone, leaving the establishment of and details regarding the Commission and the details in the SDMC. Two possibilities have been discussed:

    1. To limit subpoena power to the Ethics Commission; or

    2. To provide that subpoena power may be delegated by the Council by ordinance to any commission or board that it establishes. This gives the Council the flexibility to delegate subpoena power to entities other than the Ethics Commission, should it wish to do so.

DCA Foster stated that the intent of the City Attorney's Office is to share these ideas with the Commission and get Commissioners' input on the issue. She said that models from the other ethics commissions will not work for San Diego because they would entail substantial loss of flexibility. Additionally, it is not necessary to put a very detailed provision about the Commission in the Charter.

Commissioner Foster stated that the reason other cities have their ethics commissions in their city charters is because the commissions were all established by initiative, as opposed to establishment by the councils themselves. Commissioner Foster agreed with the City Attorney's Office's opinion that in San Diego it is not necessary to include the Ethics Commission in the Charter. She noted her concern that for some odd reason the Charter amendment might not pass, which would create a conflict between the Charter and the ordinance, which in turn would create many additional problems.

Commissioner Foster suggested a subpoena subcommittee be created to propose ballot measure language, and that the subcommittee report back to the full Commission at the next meeting.

DCA Foster suggested that because of time constraints, the subcommittee will probably want to meet with DCA Duvernay at the earliest time possible.

Chairperson Leonard stated that all three issues currently to be addressed by subcommittees are high priority.

Agenda Item No. 8 - Commission Calendar.

Chairperson Leonard stated that the Commissioners will need to discuss how frequently they will meet, particularly in the beginning. The availability of a room to hold meetings is also a factor to be considered. She recommended meeting at least twice a month for the first few months, which will give subcommittees the opportunity to meet between Commission meetings.

Commissioner Vega stated he thought twice a month was fair.

Chairperson Leonard asked what meeting space is available to the Commission. DCA Foster responded that depending upon meeting time and date, other space such as Council Chambers might be available.

Commissioner Foster asked whether the Redistricting Commission meets in its office space, or if there is room for it to meet in its space. DCA Foster responded that it would be possible to hold a subcommittee meeting there, but not a public meeting.

Chairperson Leonard stated she had three mandatory meetings each month related to Proposition MM, and several for her Mission Trails Regional Park volunteer work. She asked if other Commissioners had any public meetings which are real constraints, and when the Committee Room or Chambers might be available.

Commissioner La Bella stated that early in the day is the better. Ms. Stone responded that the City Administration Building essentially opens at 8:00 a.m.

Commissioner Vega asked whether subcommittee meetings had to be held in the City Administration Building. Chairperson Leonard responded that they did not, but the question currently confronting the Commission was regarding the public meetings. Chairperson Leonard stated that once the subcommittees are appointed, each subcommittee could determine its own schedule.

Chairperson Leonard stated her desire to establish a meeting schedule for at least the months of September and October.

Commissioner Vega stated that having two meetings in September might be desirable, as only five weeks remain before September 26, the deadline to have ballot proposal language to Rules Committee.

Chairperson Leonard clarified that she wishes to have two meetings in September and two meetings in October.

Mr. Baber stated that for ballot proposal language to be docketed for Rules Committee on September 26, the Commission would need to get that language to Rules no later than September 20 or 21.

Chairperson Leonard stated that it would be wise to hold two public meetings before September 21.

Mr. Baber suggested that because Council meets Mondays and Tuesdays, the Commission may wish to avoid meeting on those days.

Commissioner Foster suggested meetings be held in the evenings.

Commissioner Gaynor suggested that the first few meetings be held in the evenings or early in the mornings, preferably in the evenings, so that Commissioners' other commitments may be discharged.

It was determined that the next two meetings would be held in Council Chambers on Thursday, September 6, at 5:00 p.m., and Thursday, September 13, at 5:00 p.m.

It was then determined that two more meetings would be held in Council Chambers on Thursday, October 4, at 5:00 p.m., and Thursday, October 18, at 5:00 p.m.

Chairperson Leonard asked for two volunteers to serve on each subcommittee: personnel, survey of other jurisdictions' ethics commissions for procedures, and subpoena power. She stated that membership could expand to three on any subcommittee, but not four, because of Brown Act open meeting requirements.

Commissioners Smith and Riel volunteered for the procedures subcommittee.

Commissioners Foster and Vega volunteered for the personnel subcommittee.

Commissioners Gaynor and La Bella volunteered for the subpoena subcommittee.

Chairperson Leonard stated that she could participate in any subcommittee meeting for which she is free, as she would be only the third Commissioner attending, and no quorum would be constituted. She stated she would like to participate in subcommittee meetings, as she finds them helpful.

DCA Foster indicated that space for subcommittee meetings should not be an issue.

Ms. Stone will set up a meeting for the personnel subcommittee with Personnel Director Rich Snapper.

DCA Foster will provide materials from other jurisdictions for the procedures subcommittee. Commissioner Foster requested copies of those materials, even though she is not part of the subcommittee. DCA Foster stated her willingness to distribute the materials to all Commissioners.

Because DCA Duvernay will be the Commission's full-time attorney and will be the one drafting the language for Rules Committee, he will serve as staff for the subpoena subcommittee.

Chairperson Leonard stated that all three subcommittees will report at the September 6 meeting.

Mr. Baber stated that he has already received some resumes for the various Commission staff positions.

DCA Foster stated that the Commission might also be interested in seeing the applications from individuals who applied for the Redistricting Commission's chief of staff position, which was a temporary position.

Commissioner Vega asked for clarification about noticing requirements for classified versus unclassified positions. DCA Foster responded that Personnel would be best able to answer procedural questions.

Commissioner Gaynor asked if staff had a recommendation for the Commission regarding seeking staff from within the City, or outside. DCA Foster responded that it was an asset for the Redistricting Commission to hire from inside, because of time constraints related to finding office space and hiring staff. She noted that with the Ethics Commission, because there is more time for the executive director to become oriented to the City, she would not discount someone from outside.

Chairperson Leonard stated the Commission will want the best possible person, with the best possible skills to do the job.

Commissioner Vega asked if the Commission would determine the salary of its staff, and whether the Commission would be affected by classified versus unclassified status in that regard. DCA Foster responded that there will be constraints depending upon the classification of the position.

Mr. Baber stated that Mr. Snapper will be very helpful to the Commission in this regard.

Inquiries from people interested in applying for Commission positions should be addressed to Ms. Stone.

Chairperson Leonard observed that today's agenda does not include an item for general public comment. DCA Foster responded that today's meeting is a special meeting, since no regular meeting schedule existed when today's agenda was established. She stated that from now on, meetings should be treated as regular meetings, and non-agenda public comment should be included as the first item of business after calling the meeting to order. Allowing for non-agenda comment is a Brown Act requirement.

Chairperson Leonard asked whether non-agenda comment should be first or last on the agenda. DCA Foster responded that the Commission may decide where to include it.

Commissioner Riel asked for clarification about the Commission's purpose to enforce the City's governmental ethics laws. She stated it is important for the Commissioners to have all existing documentation from the City related to ethics, so Commissioners can have a good feel for what they are enforcing. Commissioner Foster suggested the possibility of establishing a subcommittee to collect whatever documentation exists. She also suggested that Commissioners have a list of who is under their jurisdiction, not by name, but by position.

Ms. Stone called the Commissioners' attention to sections of their binders: "Current City Ethics Provisions" and "City Clerk's Info Brochures." She noted that the Clerk's Elections web site has a great deal of information on it, including the designated positions and disclosure categories from the conflict of interest codes of each City department, agency, board and commission.

Commissioner Smith asked about Charter section 129.1, which is referred to on the oath of office card distributed to each Commissioner. Ms. Stone responded that the back of the card, which is where that reference is made, is for City employees, not board or commission members.

Commissioner Foster asked for clarification about whether state law enables a jurisdiction to set regulations stricter than those in the Government Code with respect to ethics and campaign finance laws. DCA Foster responded that it is explicit in the Political Reform Act that local agencies can enact stricter regulations, but not looser regulations. DCA Foster noted that the City's campaign contribution limit is stricter than that in state law.

Commissioner Foster asked for any published material from the Fair Political Practices Commission. Mr. Baber responded that the material is available on-line.

Mr. Baber stated that the Commission would make proposals to the Council, and Council would have to pass any ordinance. He noted that it could be a task for the Commission to collect the City's existing regulations and policies related to ethics.

DCA Foster suggested that Commissioners may wish to discuss items to be placed on the next agenda. Chairperson Leonard responded that there will be three subcommittee reports, and discussion on the prohibition against running for elective office.

Mr. Baber suggested that City Clerk Deputy Director Joyce Lane discuss with the Commission what the Clerk's role has been and will be related to the filing of campaign statements, financial interest statements, and lobbyist reports. It would help the Commission and the Clerk's Office to determine how the two will interface.

DCA Foster suggested that the Commission may wish a Brown Act discussion with the City Attorney's Office.

Chairperson Leonard asked Commissioners how long they wished Commission meetings to last, and suggested two hours. Commissioner La Bella stated his belief that less is better, as it forces one to be on time and to be more efficient while there. Chairperson Leonard suggested that the Commission attempt to adjourn within an hour and a half.

Chairperson Leonard stated that if a Commissioner will be unable to attend a meeting, that Commissioner should notify Ms. Stone until other staff is in place.

Chairperson Leonard asked the Commissioners if they had any other housekeeping items. Commissioner Smith asked DCA Foster how soon she could provide them with the procedures materials from other ethics commissions. DCA Foster responded she could provide them within a week, as she has most of them in her possession already.

Commissioner Gaynor asked for materials related to subpoena power. He stated he remembered the Mayor commenting that he hoped Commissioners will plug having subpoena power to the public, since there will be a vote on the issue. Commissioner Gaynor asked for clarification as to whether there will be a general plan related to Commissioners speaking in public, or if that will be left to each Commissioner's discretion. Chairperson Leonard responded that there has been discussion about the extent to which Commissioners may involve themselves in the political arena, including supporting their own ballot measure. DCA Foster noted that there is a restriction on Commissioners supporting or opposing candidates, but nothing about ballot measures. Chairperson Leonard stated that there would be an effort coordinated with Council related to promoting the ballot measure.

Commissioner Gaynor asked for clarification as to responding to press inquiries related to the Commission. He stated he saw nothing to prohibit Commissioners from doing so. DCA Foster agreed.

Chairperson Leonard asked subcommittees to meet after adjournment to select a meeting time, and to advise Ms. Stone or the Chair of that time, so the Chair may attend those meetings her schedule allows.

Commissioner Gaynor asked when DCA Duvernay will return. Ms. Stone responded she will find out, and relay the information to Commissioner Gaynor.

Agenda Item No. 10 - Adjournment.

Chairperson Leonard asked for any other comments from Commissioners. There being none, the meeting was adjourned.

Dorothy Leonard, Chairperson
Ethics Commission

Bonnie J. Stone
Deputy City Clerk