Loading...
HomeMy WebLinkAbout11-10-2014 B2 Considerationof Alleged Brown Act ViolationCity of San Luis Obispo, Council Agenda Report, Meeting Date, Item Number FROM: J. Christine Dietrick, City Attorney SUBJECT: DISCUSSION OF COUNCILMEMBER ASHBAUGH CLOSED SESSION DISCLOSURE RECOMMENDATION Consider available remedies for unauthorized disclosure of deliberation from closed session and provide direction to staff. DISCUSSION Background On October 21, 2014 the Council noticed a closed session to consider legal risks and received legal advice regarding assertions made in agency correspondence regarding the Council’s proposed action to overrule the Airport Land Use Commission’s inconsistency finding regarding the City’s proposed General Plan Land Use and Circulation Element update. The Council met in this noticed closed session with its legal advisors and the City Attorney reported out that no reportable action was taken during the closed session. During the Council’s open session discussion of the proposed overrule action, Councilmember Ashbaugh made public statements regarding Councilmember Carpenter’s actions in closed session and was advised that discussion of closed session information in public session was not permissible. The precise public statement and counsel response is set forth in the City Clerk’s transcript of the relevant exchange attached to this report as Attachment 1. The day following the meeting, the City received a “Demand to Cease & Desist; Demand to Cure or Correct RE: Ralph M. Brown Act” (hereinafter “Demand”), related to Councilmember Ashbaugh’s comments and another contention related to another part of the same meeting that is not relevant to this matter. The Demand and the City Attorney’s response thereto are included as Attachment 2. Subsequently, staff received requests from the majority of the Council to place an item on the agenda to discuss the unauthorized disclosure and available remedies to address the disclosure. Relevant Statutory and Policy Provisions The Ralph M. Brown Act, California Government Code Section 54963 (Attachment 3) provides: (a) A person may not disclose confidential information that has been acquired by being present in a closed session authorized by Section … 54956.9 (the section under which the closed session at issue was noticed) …to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information. 11/10/14 B2 B2 - 1 Closed Session Disclosure Page 2 (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. The purpose of the closed session at issue was to receive legal advice on a matter on which the City faces an identified litigation risk and for Councilmembers to collectively deliberate those risks with legal counsel. Chapter Seven of the City Council Policies and Procedures Manual (Attachment 4) similarly prohibits disclosure of confidential closed session material, and also sets forth in greater detail the need for and importance of maintaining the confidentiality of closed session discussion and materials. The City Council Policies and Procedures Manual also explains in greater detail what information constitutes confidential information and those persons authorized to receive such information. Both the Brown Act and the Council’s policies recognize that closed session confidentiality is important to open and frank Council deliberation of legal issues and the ability of agency counsel to provide forthright and comprehensive legal advice with the confidence that such deliberations and advice will not be used against the interests of the City. Obviously, a breakdown of confidentiality compromises such frank discussion, consideration of issues and the deliberative process of elected officials on important legal issues. Potential Remedies 1. Public Criticism, Disapproval or Condemnation Council has a variety of options available to it to address instances where it believes there has been a breach of confidentiality or other questionable conduct by one of its members. The least process intensive options, which are not considered punitive for due process purposes, include actions to “criticize,” “disapprove” or “condemn.” Case law has established that such expressions of Council opinion regarding actual or perceived conduct of a member are not considered disciplinary in nature because they are not formal actions adjudicating misconduct charges and the Council as a body has the same free speech authority to express its opinion as its individual members. However, even if a non-disciplinary approach is taken, it is advisable that the Council member who is to be “criticized”, “disapproved” or “condemned” should be given prior notice that such action will be considered and an opportunity to be heard on the matter. Such notice has been provided to Councilmember Ashbaugh and, if the Council wishes to proceed in this manner, Councilmember Ashbaugh should be given an opportunity to be heard on any assertions of inappropriate conduct prior to the Council deciding to make any collective statement on the issue. In other words, if the Council so desires, the Council could proceed at its noticed meeting with such action without the need for further notice or process beyond the current agenda item after the public and Councilmember comment, if any. The Council could simply agree via consensus to express disapproval of the conduct without additional formal motion or resolution. In short, such informal action would express the opinion of concurring Councilmembers B2 - 2 Closed Session Disclosure Page 3 regarding the conduct, but would not constitute a formal finding or adjudication that there has been a serious violation of rules or law. 2. Formal Censure In 2011, the Council experienced similar closed session disclosures, arguably resulting from misunderstandings of the Brown Act and the nature and scope of the closed session privilege. In response, the Council directed the City Attorney to draft a confidentiality policy and a censure procedure to clarify expectations around confidential information and to provide for a formal censure procedure as a means by which to address disclosures. Additionally, as an added reminder, a cover sheet is added to all Closed Session correspondence which states the confidential nature of the material enclosed and each recipient must sign and return the materials to the City Attorney after the closed session. The Council’s formal censure policy is included as Attachment 5. Censure is defined by Black’s Law Dictionary as the “formal resolution of a legislative, administrative or other body reprimanding a person, normally one of its own members, for specified conduct.” A city council's statutory authority to censure arises from Government Code §36813, which provides “The council may establish rules for the conduct of its proceedings. It may punish a member or other person for disorderly behavior at a meeting.” The City Council Policies and Procedures Manual defines censure as follows: Censure is a formal Resolution of City Council reprimanding one of its own members for specified conduct, generally a violation of law or of City policy where the violation of policy is considered to be a serious offense. Censure should not follow an occasional error in judgment, which occurs in good faith and is unintentional. Censure carries no fine or suspension of the rights of the member as an elected official, but a censure is a punitive action that serves as a punishment for wrongdoing. Because a censure action is premised on a formal finding of a violation of law or rules, it is considered to be disciplinary in nature by courts, which have concluded that censure implicates a liberty interest that triggers the right of an accused member to a due process hearing before censure action is taken. This due process requirement is reflected in the Council’s existing censure procedures, which would require a formal investigation of a written complaint by a Councilmember to the City’s Personnel Board, a determination by the Board of whether there is evidence that the conduct alleged constitutes a violation of law or serious violation of policy, and, if so, a hearing before the City Council. In the investigative process and at the Council hearing, Councilmember Ashbaugh would have the opportunity to present evidence and testimony that the conduct alleged did not constitute a serious violation of law or policy. Any formal censure action would obviously require further noticing, investigation and, potentially, a future hearing on the matter. 3. Formal Statutory Remedies While the Brown Act includes a variety of remedies for violations of its open meeting, noticing and other provisions, Section 54963 of the Act (Attachment 3) specifically addresses the B2 - 3 Closed Session Disclosure Page 4 available relevant remedies for violation of the provisions of that section prohibiting disclosure of confidential information, as follows: (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. Of the statutory remedies available, there is only one that appears relevant in this situation. Councilmembers are not employees subject to traditional employment disciplinary measures and injunctive relief requires proof of likely recurrence and imminent harm and is not particularly useful to remedy past actions. Thus, the available statutory remedy is referral of the matter to the grand jury for investigation. Upon referral, the determination of whether the conduct at issue constitutes a violation of the law is subject to independent grand jury determination. The grand jury does not have enforcement authority, but does have the ability to issue a report of its findings and recommendations. Any person can make a complaint to the grand jury. ATTACHMENTS 1. City Clerk’s transcript of exchange on 10/21/2014 2. Cease and Desist Demand and City Attorney’s Response 3. California Government Code, Section 54963 4. City Council Policies and Procedures Chapter 7 5. City Council’s Formal Censure Policy t:\council agenda reports\2014\2014-11-10 (rescheduled reg mtg)\consideration of alleged brown act violation (dietrick)\car.ashbaugh closed session disclosure.2014.11.10.docx B2 - 4 Verbatim Excerpt from the City Council Meeting of October 21, 2014 (October 21, 2014, 9:51:53 P.M.) 1 Council Member John Ashbaugh: I think Dan, to suggest that you felt slighted that the Council moved 2 forward without you -- you were unprepared then, you were unprepared in Closed Session, you asked 3 no questions as I recall of our legal counsel during Closed Session. There was no attempt, to me, to help 4 us, and you, understand what’s at stake here -- 5 City Attorney Christine Dietrick: [Interjection] Madam Mayor, Council Member Ashbaugh, the 6 discussions that occurred did or did not occur in closed session, are matters of attorney-client privilege, 7 and a single council member is not free to waive that privilege. 8 Council Member Ashbaugh: -- (Simultaneously) Excuse me it’s my time to talk here. 9 Mayor Jan Marx: -- (Simultaneously) Yes. (pause) you can’t. (pause) so. (pause) right. 10 Council Member Ashbaugh: That’s fine, I just want to make it clear. To seek clarity tonight with this 11 group of people is exactly what I’m doing as well, I’ve noted everybody’s testimony very carefully, I’ve 12 developed a list of questions, I’ve asked those questions to staff and of council here in public session, my 13 questions have been answered. I am confident based on the preponderance of testimony we have, 14 based on the preponderance of evidence we have, based on the aggregate of interests that I see 15 represented here in a balanced community with peoples whose employees whose workforce are unable 16 to work in this community, that this is the right thing to do, that an override is the right thing to do. 17 (Dialogue continues) 18 (October 21, 2014, 9:53:07 P.M.) 19 TRANSCRIBED BY: Anthony Mejia 20 Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 1 B2 - 5 Integr(tySLO0©TE RECEIVED Via: Electronic Mail& Hand-delivery OCT 23 2014 Wednesday, 2014 October 22 SLO L.. . I ATTORNEY J. Christine Dietrick City Attorney Mayor Jan Howell Marx City of San Luis Obispo San Luis Obispo City Council 990 Palm Street 990 Palm Street San Luis Obispo CA 93401-3236 San Luis Obispo CA 93401-3236 805) 781-7140 805) 783-7752 cdietrick@a,slocity.org jmarx(a locity.org DEMAND TO CEASE AND DESIST; DEMAND TO CURE OR CORRECT RE: RALPH M. BROWN ACT ($$ 54960.2, 54960.1); NOTICE OF PENDING LITIGATION (GOV. CODE & 54956.9(b)(3)(C) BOARD CLERK: PLEASE FORWARD TO ALL BOARD MEMBERS AND FILE IN BOARD CORRESPONDENCE. Hon. Mayor and City Attorney Dietrick: I Cease and Desist Demand Pursuantto Government Code Section 54960.21, herein is a demand to the San Luis Obispo City Council (hereinafter, "City Council") to cease and desist the following practices which violate provisions of California's open meeting laws (California Government Code §54950 et seq.), to wit, the Ralph M. Brown Act (hereinafter, "Brown Act"), and that the City Council make an unconditionalcommitment as prescribed in subdivision (c) of section 54960.2 not torepeat such practicesin the future: Practice 1:Disclosure of confidential closed session matters ((54963, 54959.) On October 21, 2014, Council Member John Ashbaugh improperly disclosed, in open regular session2, certain confidential information acquired by being present during the special closed session meeting on the same date. All statutory references are to the California Government Code,unless otherwise indicated. 2 Item PH2,October 21,2014,http://www.slocity.org/cityclerk/agendas/council.asp PO Box 14107 San Luis Obispo CA 93406-4107(805)602-2616 Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 2 B2 - 6 Demand to Cease & Desist, Demand to Cure or Correct RE Ralph M Brown Act Integrity San Luis Obispo Practice 2 Participation by staff in council deliberations Viewpoint discrimination (§ 54954 3) The City Council has a terrible record of permitting staff to interrupt, interject and inject opinionsinto deliberations of the City Council The most recent example occurred during the regular session on October 21, 2014 During deliberations on item PH23, staff member Derek Johnson spontaneously interrupted City Council deliberations to interject a challenge to Council Member Dan Carpenter Such interruptions are common in City Council meetings and would require significant effort to document for full appreciation, which is not attempted here Staff members are not elected officials and have no business interjecting personal opinionsinto the deliberations of officials elected by voters These frequent interruptions, assuagements, allegations interjections, opinions and statements infringe on the public's right to be heard and to comment at meetings of the City Council (§ 54954 3, Cal Const , Art 1, § 3 ) Every member of the public must be afforded equal and non-discriminatory ability to comment to the City Council regardless of viewpoint (Ibid) Much case law has been written on these fundamental rights The City Council practice of allowing interruptions by staff affords staff special status and ability to influence City Council deliberations that is not equallyafforded to members of the public The City Council must stop this discriminatory practice II Cease & Desist Action Required The City Council has 30 days from receipt of this letter to provide me with an unconditional commitment to cease, desist from, and not repeatthe practices notedabove The form of such an unconditional commitment is specified in § 54960 2, and should substantially be as follows To Kevin P Rice, Integrity San Luis Obispo The San Luis Obispo City Council has received your cease and desist letter dated October 22, 2014, alleging that the following described past action of the legislative body violates the Ralph M Brown Act 3 Council agendas are available at http//www slocity org/cityclerk/agendas/council asp 2 Laws Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 2 B2 - 7 Demand to Cease & Desist; Demand to Cure or Correct RE: Ralph M. Brown Act Integrity San Luis Obispo Describe alleged past action, as set forth in the cease and desist letter submitted pursuant to subdivision (a) ] Inorderto avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the San Luis Obispo City Council hereby unconditionally commits that it will cease, desist from, and not repeat the challenged past action as described above. The San Luis Obispo City Council may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as "Rescission of Brown Act Commitment. " You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing. Very truly yours, Jan Marx, Mayor III Demand to Cure or Correct Pursuant to Government Code Section 54960.1, herein is also a demand to the San Luis Obispo City Council to "cure or correct" the action of Council Member John Ashbaugh described in Practice 1" (supra), as follows: Pursuant to Section 54963, subdivision(c), any one or more of the following: 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 grandjury. Sincerely, kt 31/ F?:17 Kevin . Rice cc: Anthony Mejia, CityClerk <amejia@slocity.org> City Council<council_all@slocity.org> 3 IntegrrtyS LOQ Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 2 B2 - 8 f i ` City Attorney's Office 990 Palm Street.San Luis Obispo.GA 93401-3249 s 04Z 805 781 7140 October 28, 2014 Kevin Rice Integrity SLO.org P.O.Box 14107 San Luis Obispo, CA 93406-4107 Dear Mr. Rice: I received and have had an opportunity to review your"Demand to Cease & Desist; Demand to Cure or Correct RE: Ralph M. Brown Act" (hereinafter '`Demand"). Your Demand contends that the City Council has violated the Brown Act by: 1) Disclosure of confidential closed session matters by Councilmember Ashbaughpursuant to Government Code Sections 54959 and54963; and 2) Permitting staff participation in Council deliberations, constituting viewpoint discrimination pursuant to California Government Code Section 54954.3. After reviewing the facts and applicable provisions of the Brown Act, I conclude that the City Council, as a body, has not engaged in any action that would constitute a violation of the Brown Act. Accordingly, there is no Council action to cure. Your first allegation of Councilaction in violation of the Brown Act is premised on the open session statement of a single Councilmember without the concurrence, consent or direction of the majority of the body. The Councilmember was immediately apprised by me that such comments were impermissible and that a single Councilmember does not havethe authority to waive the attorney-client privilege held by the body regarding closed session discussions. The Councilmember has subsequently acknowledged the impermissible conduct and issued apologies, both to his colleagueto whom the remarks were directed and to members of the public. With regard to yourspecific Demand, it has been clearly established by the courts that the Brown Act provisions youcite apply only when a party seeks to invalidate an action of a legislative body. (See Ingram v. Flippo (App. 6 Dist. 1999) 74 Cal.App.4th 1280 (1999), review denied [Timing requirements and cure and correct provisions of Brown Act apply only when a party seeks to have a particular action of a legislative body declared null and void and not when suit is brought todetermine the applicability of the Brown Act's open meeting provisions to past conduct or threatened future actions of the legislative body]; See also Open & Public IV, Chapter 6, pp. 47-48 ["If the meeting involves mere deliberation without the taking of action, there can be no misdemeanor penalty."], citing California Government Code section 54959). Thus, the provisions you cite do not apply here because there has been no action of the Council in violation of the Brown Act and, therefore, there is nothing subject to cure under the provisions you cite. Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 2 B2 - 9 The provisions of Government Code section 54963 do set forth the available remedies for violation of the confidentiality provisions. As to subsection (1), the injunctive relief option is an ineffective tool to remedy a past individual violation, where there is nostatement of intention to continue with a course of unauthorized conduct. As recognized by the distinction in statutory language between subsections (2) and (3), elected members of the legislative body are not "employees" subject to traditional disciplinary measures. Thus, the available statutory remedy, pursuant to subsection (3), is torefer the matter to the grand jury, which is an option the Council majority, as the holder of the privilege could direct. However, the section providingfor available remedies is not the same as the correct and cure provisions, and, as notedabove, those provisions do not apply to the unauthorized actions of an individual. The Council may also consider non-statutory remedialoptions under its own policies and procedures. I have been directed to place an item on the November 10, 2014 regular meeting agenda for the Council toconsider and provide direction on available remedial options. The staff report for thatitem will be published with the rest of the regular agenda on November 4, 2014 and it will be heard as a business itemin opensession. Finally, I find no merit to your claim that a staff member's provision of factual information to the Council, after the Council has received public input in accordance with the section you cite, constitutes a violation of the Brown Act. The Community Development Director and his staff drafted and presented the staff report to the Council and providedpertinent information to the Council when recognized by the Mayor. City staff members are Council's professionally trained and paidadvisors, who are charged inthecourseand scope of their duties for the City to provide information, advice and recommendations to the City Council to assist the Council in its deliberations on a large volume of verycomplex decisions. Staffs fulfillment of those duties does not constitute a violation of the Brown Act. I am aware of absolutely no legal authority or practicalinterpretation that would even suggest such a conclusion. Thus, I will not recommend that the Council take any action on this aspect of your Demand. Please feelfree to contact me should you have any questions regarding the foregoing. Sincerely, Chris me Dietric City Attorney Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 2 B2 - 10 § 54963. Confidential information acquired during an authorized..., CA GOVT § 54963 © 2014 Thomson Reuters. No claim to original U.S. Government Works.1 West's Annotated California Codes Government Code (Refs & Annos) Title 5. Local Agencies (Refs & Annos) Division 2. Cities, Counties, and Other Agencies (Refs & Annos) Part 1. Powers and Duties Common to Cities, Counties, and Other Agencies (Refs & Annos) Chapter 9. Meetings (Refs & Annos) West's Ann.Cal.Gov.Code § 54963 § 54963. Confidential information acquired during an authorized closed legislative session; authorization by legislative body; remedies for violation; exceptions Effective: January 1, 2003 Currentness (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. (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 grandjury.1 (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. Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 3 B2 - 11 § 54963. Confidential information acquired during an authorized..., CA GOVT § 54963 © 2014 Thomson Reuters. No claim to original U.S. Government Works.2 (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. Credits (Added by Stats.2002, c. 1119 (A.B.1945), § 1.) Footnotes 1 So in enrolled bill. West's Ann. Cal. Gov. Code § 54963, CA GOVT § 54963 Current with urgency legislation through Ch. 931 of 2014 Reg.Sess., Res. Ch. 1 of 2013-2014 2nd Ex.Sess., and all propositions on 2014 ballots End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works. Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 3 B2 - 12 Council Policies & Procedures Manual 2014 - Adopted 05/20/2014 Page 35 CHAPTER SEVEN COUNCIL CONFIDENTIALITY POLICY 7.1 PURPOSE AND PROHIBITION AGAINST DISCLOSURE 7.1.1 PURPOSE AND INTENT In order to keep the City Council fully informed about pertinent legal issues that may impact the City Council's decision-making, the City Attorney and other attorneys retained to represent the City issue confidential legal opinions and/or conducts closed sessions when authorized to do so by the Brown Act. Unauthorized disclosures of confidential information obtained from such confidential communications harm the City by compromising the City’s negotiating positions, diminishing the willingness of City staff and other Council members to communicate fully and frankly with the City Attorney, and exposing the City to unwarranted litigation risks and significant damages awards against the City. It is the intent of the Council that the City’s confidential information shall be maintained inviolate and that unauthorized disclosures of such information be deterred and/or censured. 7.1.2 PROHIBITION AGAINST DISCLOSURE No person in receipt of Confidential Information, as defined herein, shall disclose or cause to be disclosed all or part of any confidential information to any unauthorized person. 7.2 PUBLIC CENSURE FOR UNAUTHORIZED DISCLOSURE Any Councilmember disclosing or causing to be disclosed confidential information to any unauthorized person may be subject to public censure by the City Council. Any censure proceeding shall be conducted in accordance with a process established by the City Council and shall, at a minimum, ensure that no public censure will occur unless the accused Councilmember has been provided with notice of the accusation of unauthorized disclosure, the facts supporting such accusation, and an opportunity to be heard regarding the allegations. 7.3 DEFINITIONS For purposes of this policy, the following words and phrases shall be defined as follows: 7.3.1. CAUSE TO BE DISCLOSED Failure to exercise due care in maintaining the confidentiality of the Confidential Information, whether verbal or written. Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 4 B2 - 13 Council Policies & Procedures Manual 2014 - Adopted 05/20/2014 Page 36 7.3.2 CONFIDENTIAL INFORMATION 7.3.2.1 Any information within the scope of a duly authorized closed session, whether provided orally or in writing, by any attorney, consultant, staff member or Council member acting within the scope of the closed session (See Gov't. Code Sec. 54963); or 7.3.2.2 Any oral or written communications by or from the City Attorney, Assistant City Attorney, or any retained counsel representing the City’s legal interests containing the attorney's legal opinions, advice, thoughts, mental impressions or conclusions that are given on behalf of the City. 7.3.2.3 Confidential Information does not include information that is: required by law to be reported out of closed session; authorized to be disclosed by a majority vote of the City Council; or otherwise authorized to be disclosed under the law. 7.3.3 UNAUTHORIZED PERSON 7.3.3.1 With respect to confidential information communicated during a closed session, any person, other than a Councilmember, not in attendance at the closed session; or 7.3.3.2 Any person to whom the oral or written confidential information is not directed or addressed; or 7.3.3.3 Any person who has a disqualifying conflict of interest in the subject matter of the confidential information. 7.3.3.4 Unauthorized person does not include Charter Officers and Department Heads and the staff of Charter Officers and Department Heads, when such persons have a need to know the confidential information in order to discharge the duties of their positions for the benefit of the City. Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 4 B2 - 14 Council Policies & Procedures Manual 2014 - Adopted 05/20/2014 Page 37 CHAPTER EIGHT COUNCIL CENSURE POLICY 8.1 PURPOSE OF CENSURE POLICY In order to deter violations of law and serious violations of adopted City policies, the City Council may take formal action against its members for such misconduct in the form of censure. 8.2 DEFINITIONS 8.2.1. CENSURE Censure is a formal Resolution of City Council reprimanding one of its own members for specified conduct, generally a violation of law or of City policy where the violation of policy is considered to be a serious offense. Censure should not follow an occasional error in judgment, which occurs in good faith and is unintentional. Censure carries no fine or suspension of the rights of the member as an elected official, but a censure is a punitive action that serves as a punishment for wrongdoing. 8.3 CENSURE PROCEDURE 8.3.1 Any member of the City Council may submit, in writing to the Chair of the Personnel Board, a complaint and request for a censure hearing concerning an alleged violation of law or serious violation of City policies by another member. 8.3.2 Prior to any formal action by the City Council to censure a member, the person against whom censure is sought is entitled to due process of law, which requires notice and the opportunity to be heard and to refute the evidence against him or her, by means of a censure hearing. 8.3.3 The complaint shall contain specific factual allegations and any supporting evidence of specific conduct alleged to violate existing law or adopted City policies. The Personnel Board within 30 business days shall review the record and either (1) issue an advisory opinion to the Council; or (2) conduct further investigation and/or a hearing on the matter. 8.3.4 A copy of the complaint and request for censure shall be provided to the accused Council member as soon as possible following receipt, but in no event less than 72-hours prior to the meeting of the Personnel Board at which the complaint and request for a censure hearing will be considered. 8.3.5 The Personnel Board shall consider whether additional investigation is necessary and, if so, shall appoint an ad hoc committee to complete the necessary investigation and make a written report of the investigation to the full Board. Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 5 B2 - 15 Council Policies & Procedures Manual 2014 - Adopted 05/20/2014 Page 38 8.3.6 The ad hoc committee will determine the process by which statements are taken. Witnesses may choose to provide a signed declaration under penalty of perjury attesting to his or her knowledge of the facts surrounding the allegations. If a witness is unwilling to submit such a declaration, the Council may issue a subpoena to compel the witness testimony before the Personnel Board, consistent with its subpoena power granted under the City Charter. 8.3.7 The Personnel Board and ad hoc committee, if necessary, shall be staffed by the Assistant City Attorney and such other administrative support staff as may be necessary to assist in its investigation and report to the Council. 8.3.8 Upon completion of its review of the complaint and any additional investigation the committee shall determine if, considering all the facts and evidence, there is sufficient evidence to believe or not believe that the alleged violation of law or serious violation of adopted City policy occurred. The Personnel Board shall make a written report to the Council stating the specific law or policy alleged to have been violated, and summarizing the complaint, evidence, and the results of any additional investigation. The Board shall also make a recommendation to the Council that the complaint is supported by sufficient evidence of a violation of law or serious violation of adopted City policy to warrant a censure hearing, or, alternatively, that the complaint is not supported by sufficient evidence of a violation of law or serious violation of adopted City policy to warrant a Council censure hearing. 8.3.9 If the Personnel Board determines that the allegations are supported by sufficient evidence and a censure hearing is warranted, the City Clerk shall be notified and shall set the matter for a public censure hearing before the City Council; if the Personnel Board concludes that the allegations are not supported by sufficient evidence and a censure hearing is not warranted, the Board’s recommendation will be forwarded to the City Council and no further action taken, unless the City Council directs, by a majority consensus of the City Council during Council Communications, the matter to be placed on its agenda for further consideration. In either case, a copy of the final report shall be provided to the accused member at the same time it is provided to the City Council. 8.3.10 If a public hearing is set before the City Council, it shall be at least 14 days following the Personnel Board’s recommendation in order to give the member subject to censure adequate time to review the allegations and evidence against him or her and prepare a defense, but no longer than 30 days from the date of the Personnel Board’s recommendation. 8.3.11 At the hearing, the subject member shall be given an opportunity to make an opening statement, closing statement, and to question his or her accusers. The hearing shall not be a formal adversarial hearing and the Rules of Evidence shall not apply to the proceeding. The subject member may choose to be represented and to designate his or her representative to speak on his or her behalf. Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 5 B2 - 16 Council Policies & Procedures Manual 2014 - Adopted 05/20/2014 Page 39 8.3.12 A City Council decision to censure requires the adoption of a Resolution making findings, based on substantial evidence that the member has engaged in conduct that constitutes a violation of law or a serious violation of an adopted City policy. The Resolution must be affirmed by at least three affirmative votes of the Council. The accused Council member shall not participate in the City Council’s deliberations after the public hearing is closed or in any vote by the City Council on the proposed censure. Consideration of Alleged Brown Act Violation Agendized for 11/10/2014 Attachment 5 B2 - 17 Page intentionally left blank. B2 - 18