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HomeMy WebLinkAbout02-05-2013 b2 council censure policy•council .A agenba Report 0.. 2/5/13 _I B 2 CITY OF SAN LUIS OBISP O FROM:J . Christine Dietrick, City Attorney SUBJECT :COUNCIL CENSURE POLIC Y RECOMMENDATIO N Revise the Council Policies and Procedures Manual to include a City Council Censure procedure . DISCUSSIO N Background On May 8 of last year, the Council amended its Policies and Procedures Manual to include a Council Confidentiality Policy (Chapter 7) that included Section 7 .2, which reads as follows : Any Councilmember disclosing or causing to be disclosed confidential information t o 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 th e City Council and shall, at a minimum, ensure that no public censure will occur unles s the accused Councilmember has been provided with notice of the accusation o f unauthorized disclosure, the facts supporting such accusation, and an opportunity t o be heard regarding the allegations . At the time it adopted the confidentiality policy, Council expressed a desire to consider a forma l censure process as part of its policies and procedures . Staff has conducted research into th e policies of other cities and proposes the policy in Resolution attached to this report for Council's consideration . Staff's recommendation of the policy is based on both legal and practical criteria , as follows : 1) a censure policy must provide adequate due process (notice and an opportunity t o be heard) to the subject of the proposed censure ; 2) the policy for reporting and investigation o f allegations must comply with the Brown Act's open meeting requirements ; 3) the procedure should reflect the Council and community culture ; and 4) the policy should not be undul y onerous or require the creation of a new regulatory structure . In this context, staff reviewed the censure policies of other cities . While several cities referenc e censure as a remedy for rules violations, few have formally adopted censure procedures . The formally adopted procedures located and reviewed by staff were from the cities of San Jose, Lo s Angeles, Oceanside, Belmont and South Lake Tahoe (available in the Council reading file or o n line). Staff is recommending a procedure that is modeled on policies adopted by the City of Sa n Jose and the City of Los Angeles, modified to reflect the size of our City Council and the City's existing advisory body structure . The process proposed is intended to encourage a process that i s•objective, fair and not politicized . B2-1 Council Censure Polic y Page 2 Authority and Legal Requirement s 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, fo r specified conduct ." A city council's statutory authority to censure arises from Government Cod e §36813, which provides "The council may establish rules for the conduct of its proceedings . I t may punish a member or other person for disorderly behavior at a meeting ." Censure is considered to be disciplinary in nature by courts that have considered the issue . The potential of a censure action to adversely affect one's public reputation has led courts to conclude that censure implicates a liberty interest that triggers the right of an accused member to a du e process hearing before censure action is taken . Because the proceeding is administrative i n nature, the hearing is not required to be a formal adversarial, evidentiary hearing . However, th e accused must be fully informed of the allegations against him or her and must have a full and fai r opportunity to question any person making allegations of misconduct and to refute the allegation s and evidence against him . This due process requirement is reflected in the Council's existin g confidentiality policy allowing for censure, as well as the proposed censure procedure . Alternatives to formal "censure" by Council Resolution, which are not considered punitive fo r due process purposes include actions to "criticize, "disapprove" or "condemn ." Such expression s of council opinion regarding actual or perceived conduct of a member is not considere d disciplinary in nature because they are not formal actions and the council as a body has the sam e free speech authority to express its opinion as its individual members . However, even if a non - disciplinary approach is taken, staff recommends the council member who is to be criticized , disapproved or condemned should be given prior notice that such action will be considered an d an opportunity to be heard on the matter . An investigation or verification of allegations an d separate hearings are not necessarily required . Censure Process Most cities with formally adopted policies reviewed by staff utilize rules committees or Counci l subcommittees to conduct investigations and make recommendations to the full Counci l regarding the merits of a particular complaint or recommendations regarding requests fo r censure . However, the City does not have a rules committee . Assigning an ad hoc committee consisting of two members of a five member Council to conduct investigations where one o r more other Council members may be complainants or witnesses is problematic under the Brow n Act because any meeting of more than two Council members is subject to public notice an d meeting requirements . Such requirements present a practical impediment to a prompt an d thorough investigation of a complaint by a Council subcommittee . Accordingly, the proposed policy designates an existing City Advisory Body, the Personne l Board, as the initial reviewer and investigator of complaints and assigns that body the role o f making a report and recommendation to the Council regarding the evidentiary support for a complaint and whether to schedule the matter for a censure hearing . Staff feels the Personne l Board is sufficiently versed in applying adopted rules to factual allegations of misconduct in the • • • B2-2 •Council Censure Polic y Page 3 personnel context to act as a proficient review body for this purpose . While Council member s are not "employees," the process and standards for disciplinary review of Council conduct in thi s context are very similar to the employee grievance or disciplinary appeals heard by the Personne l Board. The Policy proposes that the Board would be advised by the Assistant City Attorney i n conducting its review and formulating its recommendations . If Council wishes to modify th e policy to maintain the initial review and investigation of complaints at the Council level, staf f would recommend that duties be assigned to the Mayor, or to the Vice Mayor where allegations involve the Mayor . ALTERNATIVE S 1.Do not adopt a censure policy 2.Direct staff to modify the censure procedures propose d ATTACHMEN T Resolution adopting proposed censure polic y COUNCIL READING FIL E Policies of Other Cities T :\Council Agenda Reports\2013\2013-02-05\Council Censure Policy (Dietrick)\CAR .Censure Policy .2013 .2 .5 .doc • • B2-3 ATTACHMENT 1 RESOLUTION NO . XXXX (2013 Series ) A RESOLUTION OF THE CITY OF SAN LUIS OBISPO AMENDING ITS COUNCIL POLICIES AND PROCEDURES MANUAL TO ADD A COUNCIL CENSURE POLICY WHEREAS,the City Council has adopted a certain manual entitled "Council Policie s and Procedures" to define and ensure the proper conduct of the City's business by the Cit y Council and in compliance with State law and the City's Charter and Ordinances ; and WHEREAS,the Council periodically revises its Council Policies and Procedure s Manual to ensure clarity, consistency with state law, and conformity with the City Charter an d Ordinances . NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Lui s Obispo : SECTION 1 . Chapter Eight — Council Censure Policy — is hereby added to the Counci l Policies and Procedures Manual to read as follows : CHAPTER EIGHT COUNCIL CENSURE POLIC Y 8 .1 PURPOSE OF CENSURE POLIC Y In order to deter violations of law and serious violations of adopted City policies, the Cit y 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 fo r specified conduct, generally a violation of law or of City policy where the violation of policy i s 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 th e 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 th e Personnel Board, a complaint and request for a censure hearing concerning an alleged violatio n 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 perso n against whom censure is sought is entitled to due process of law, which requires notice and th e R • • • B2-4 Resolution No . XXXX (2013 Series)ATTACHMEN T Page 2 opportunity to be heard and to refute the evidence against him or her, by means of a censur e hearing . 8 .3 .3 The complaint shall contain specific factual allegations and any supportin g 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 advisor y 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 accuse d Council member as soon as possible following receipt, but in no event less than 72-hours prior t o the meeting of the Personnel Board at which the complaint and request for a censure hearing wil l be considered . 8 .3 .5 The Personnel Board shall consider whether additional investigation is necessar y 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 . 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 o r 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 th e 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 th e Assistant City Attorney and such other administrative support staff as may be necessary to assis t in its investigation and report to the Council . 8 .3 .8 Upon completion of its review of the complaint and any additional investigatio n the committee shall determine if, considering all the facts and evidence, there are reasonabl e grounds to believe or not believe that the alleged violation of law or serious violation of adopte d City policy occurred . The Personnel Board shall make a written report to the Council stating th e 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 t o the Council that the complaint is supported by sufficient evidence of a violation of law or seriou s violation of adopted City policy to warrant a censure hearing, or, alternatively, that the complain t is not supported by sufficient evidence of a violation of law or serious violation of adopted Cit y policy to warrant a Council censure hearing . 8 .3 .9 If the Personnel Board determines that the allegations are supported and a censur e hearing is warranted, the City Clerk shall be notified and shall set the matter for a public censur e hearing before the City Council ; if the Personnel Board concludes that the allegations are no t supported and a censure hearing' is not warranted, the Board's recommendation will b e 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 place d on its agenda for further consideration . In either case, a copy of the final report shall be provide d • to the accused member at the same time it is provided to the City Council . • B2-5 Resolution No . XXXX (2013 Series) ATTACHMENT Page 3 8 .3 .10 If a public hearing is set before the City Council, it shall be far enough in advanc e to give the member subject to censure adequate time to review the allegations and evidenc e against him or her and prepare a defense, but no longer than 30 days from the date of th e Personnel Board's recommendation . 8 .3 .11 At the hearing, the member shall be given an opportunity to make an openin g 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 .A member may choose to be represented and to designate his or her representative to speak on hi s or her behalf. 8 .3 .12 A City Council decision to censure requires the adoption of a Resolution makin g findings, based on substantial evidence, that the member has engaged in conduct that constitute s a violation of law or a serious violation of an adopted City policy . The Resolution must b e affirmed by at least three affirmative votes of the Council . The accused Council member shal l not participate in the City Council's deliberations after the public hearing is closed or in any vot e by the City Council on the proposed censure . SECTION 2 . Staff is directed to review the Council Policies and Procedures Manual fo r typographical and clerical errors and to correct any such errors prior to fmal publication . SECTION 3 . A copy of the Council Policies and Procedures Manual shall be maintaine d on file in the Office of the City Clerk, shall be distributed to all Council Members an d Department Heads, and shall be available to the public online and during reasonable busines s hours . Upon motion of Council Member , seconded by Council Member , and on the following roll call vote : AYES : NOES : ABSENT : • • • B2-6 Resolution No . XXXX (2013 Series) ATTACHMEN T Page 4 The foregoing resolution was adopted this 5 `h day of February 2013 . Mayor Jan Marx ATTEST : Maeve Kennedy Grime s City Clerk APPROVED AS TO FORM : •J . Christine Dietrick City Attorney • • • Page intentionally left blank .